As an occasional feature on TELOSscope, we highlight a past Telos article whose critical insights continue to illuminate our thinking and challenge our assumptions. Today, Beau Mullen looks at Mika Ojakangas’s “Carl Schmitt and the Sacred Origins of Law” from Telos 147 (Summer 2009).
Central to Carl Schmitt’s geophilosophy is his view that law is intrinsically linked to the physical location. This connection between the terra firma and the law is an essential element of what he refers to as nomos. Schmitt sees this as the most authentic form of law, distinguishable from views that perceive law as a normative or positive regime. In his article “Carl Schmitt and the Sacred Origins of Law,” Mika Ojakangas elucidates Schmitt’s conception of nomos, its relation to Schmitt’s view of mythopolitical legitimization of the state, and the consequences of rejecting the notion of such a link by secularization.
According to Schmitt, there could be no order or orientation without a tangible physical location to ground it in. Ojakangas explains:
Of importance here is that the earth is capable of offering the measures of order and orientation to man because it has the inner capacity to be demarcated. It is precisely the demarcation of lines on the soil that marks the point where authentic law emerges. Therefore, law can never be universal. It exists only in a particular place and consists of what is within its own boundaries. (37)
The current rejection of this logic could explain the difficulties experienced by the European Union, where sovereignty and boundaries were given a backseat to more cosmopolitan goals.
Ojakangas ties the sacred origin of Schmitt’s nomos to the more martial aspects of Schmitt’s philosophy that he is often associated with, in particular the legitimacy of land appropriation. Before a proper nomos can be established a land must be conquered or otherwise acquired and boundaries drawn. Ojakangas writes:
With the shift of emphasis from the cultivation of land to its appropriation, the farmer, as a paradigmatic figure, is also displaced. Farmers are replaced by such warlords as the Biblical Joshua. Joshua, who “seized the whole land,” is a “classic example.” By expelling Ken’nites, Canaanites, and other peoples from their land, Joshua lays the foundation for order and orientation, and through destruction and merciless slaughter, founds nomos. (39)
While in the case of Joshua bloodshed is the prerequisite for the founding of the nomos, Ojakangas points out that it is not necessarily the use of force or even the appropriation of land that constitutes a nomos; they can occur without a nomos being established, but the sacred nature of the event. The actions of Joshua are legitimate because they are divinely commanded and are meant to establish an ordered society. Ojakangas points to this emphasis on the establishing of a well-ordered (and presumably just) polis as what differentiates Schmitt’s from the callous “might makes right” Sophistry personified in the Socratic dialogues by Callicles.
It is difficult to see how a land-based system of order can be properly seen as a just order, inasmuch as it was necessarily brought into existence by—at the very least—a taking (or in the extreme, a slaughter). Also troubling is the assertion that this legal order is binding only to a particular geographic location. Certainly, to some observers it would appear that Schmitt is espousing a form of relativism, in which the legal order of the polis is instituted by its inhabitants and therefore just. What separates Schmitt from this view is the emphasis on law’s sacred origin; without it, the instituting of law would merely reflect the customs and norms of those residing on the soil. Ojakangas points to a quote from Heraclitus in The Nomos of the Earth: “‘All human laws are nourished by a single divine law.’ It is such nourishment that endows men with order and orientation, not only on the eve of modernity as well” (46).
Our modern political world, however, is not one where law is viewed as being inspired by the sacred or divine. In fact, there is great effort to separate constitutional order from any kind of theological basis. Religion is now relegated to the sphere of the private individual, its intrusion into the realm of the political is seen to be highly improper. In Schmitt’s view, this results in the delegimatizing of the established order. Ojkangas explains:
. . . Schmitt refuses to call modern territorial states within fixed boundaries genuine land bound orders. Even though the modern state realizes the principle of cujus regio, ejus religio (“whose region, his religion”), thus localizing religion in space, metamorphoses in the sphere of the Christian religion unraveled all the unifiying effects of this localization. (47)
The link between religious order and political order, at least in the West, has been effectively severed. This break results in the absence of real law; the legal now is not the law of the divine but rather the law of men.
Ojakangas writes that if we are to accept Schmitt’s reasoning, nowhere is this break more acute than in a secular democracy. Ojakangas writes:
If we follow Schmitt, however, the will of the people has to be understood in terms of what he calls secularization: the will of the people in democracy is the exact equivalent to the will of God in theistic theology. But today the will of the people is no longer a secularized theological notion; it has ceased to be a substitute for God’s will. There is nothing divine in people’s will, not even an imitation of the divine. (53)
This assertion by Ojakangas is the piece’s most startling implication. Without any sacred rooting, nothing, it seems, stands in the way of a secular democracy giving way to majoritarian impulses and whatever chaos and upheaval that may entail. The stage, it seems, could be set for greater injustice and nihilism in a secular democracy, where the will of the people is informed only by self-interest, rather than in a state grounded in a political theology.
One must also wonder how, if law has a sacred origin, law itself could truly be possible in a secular society where nothing is sacred? This paradox is seemingly only resolved if the secular state recognizes some form of the sacred, or possibly pseudo-sacred, to legitimate its law. Even more troubling is that there is no apparent solution to the nihilism caused by sacred law giving way to modern profane law. For most, the inverse is equally unappealing—the secular regime being replaced by the theocratic one. A look at the current global crises gives a glimpse of just how impossible the situation may be; we are at once confronted by the tottering European Union and rising totalitarian theocracy in the Middle East.