Some Insights from Carl Schmitt for the 21st Century

In order to interpret the present political situation, Carl Schmitt’s thought is still topical; regardless of the many insights that can be drawn from it, at the present time some theses advocated by the Plettenberg thinker in the late 1920s and early 1960s, well before the contemporary “epoch,” following the collapse of communism, the “rise” of globalization (and the death of the jurist), are particularly interesting.

First, it is appropriate to explain the extraordinary increase, a few years after the collapse of communism, of populo-sovereign-identitarian parties, by recalling what he wrote in his speech, “Das Zeitalter der Neutralisierung und Entpolitisierungen” (“The Era of Neutralizations and Depoliticizations“), (of 1929).

Schmitt argues in this text that European spiritual life has developed over the last four centuries (i.e., in modernity) by changing centers of reference (from the theological to the metaphysical, from this to the moral-humanitarian and finally to the economic): “If a domain of thought becomes central, then the problems of other domains are solved in terms of the central domain—they are considered secondary problems, whose solution follows as a matter of course only if the problems of the central domain are solved. In a theological age, everything runs smoothly if theological questions are in order; everything else is “provided” by definition. The same is true of other ages” (86).

This center of reference is decisive and prevalent” “Above all the state also derives its reality and power from the respective central domain, because the decisive disputes of friend-enemy groupings are also determined by it” (87).

He continues: “As long as religious-theological matters were the central focus, the maxim cujus regio ejus religio3 had a political meaning. When religious-theoretical matters ceased to dominate the central domain, this maxim also lost its practical import. In the meantime, however, it moved from the cultural stage of the nation and the principle of nationality (cujus regio ejus natio) to the economic domain, where it came to mean: one and the same state cannot accommodate two contradictory economic systems, i.e., capitalism and communism are mutually exclusive (87-88).

After the collapse of communism, the last exculpatory of the “political” (i.e., that between the bourgeoisie and the proletariat) disappeared. Fukuyama wrote that after the victory of liberal democracies, the end of history had come. This prediction is wrong because it presupposes the exhaustion of all reason for conflict; which is impossible because the element of conflict and struggle (Machiavelli and Duverger among many) is a presupposition of the political that is connatural to it (Freund). To think that man, zoon politikon, can exist without a political dimension presupposes changing his nature, which is what the young Marx thought he could do and has instead turned out to be impossible.

Rather, the bourgeois/proletarian justification has been replaced by a different one. The transition between one friend/foe justification and the next, Schmitt wrote, has a decisive political effect: “The succession of stages—from the theological, over the metaphysical and the moral to the economic—simultaneously signifies a series of progressive neutralizations of domains whose centers have shifted” (89). In this process, “The former central domain became neutralized in that it ceased to be the central domain,” but at the same time and progressively “in the dialectic of such a development one creates a new domain of struggle precisely through the shifting of the central domain. In the new domain, at first considered neutral, the antitheses of men and interests unfold with a new intensity and become increasingly sharper. Europeans always have wandered from a conflictual to a neutral domain, and always the newly won neutral domain has become immediately another arena of struggle, once again necessitating the search for a new neutral domain” (90; italics mine). Which appears to be precisely what has happened in the last 30 years. After a (brief) phase in which “post-communist” globalization was thought of as a stable and “peaceful” era, given the planetary hegemony of the U.S., the first cracks, evenly distributed in two categories, were glimpsed: humanitarian wars and, even more, the emergence of antagonists—enemies—of the globalized order. Both converged in supporting the thesis that history—and conflicts—were far from over. As for the “humanitarian” wars, mostly denominated as such in English and qualified as international police operations, definitions aside, they remained wars nonetheless; nor even very appreciable according to the intentions expressed, since already four centuries ago Francisco Suarez warned against such wars. As regards the enemy of the “new order,” at first Islamic fundamentalism, the whole thing proved that an order, however desirable, cannot disregard the fact that some group of men do not appreciate it, and to such an intense degree that they go so far (always) as to fight it politically, and in extreme cases, with arms.

It was so evident that the “new order” was dialectically generating new hostilities, new enemies and new conflicts.

It remained, and in part remains, unclear on what spiritual center of reference the opposition, internal to the Euro-Atlantic West, between populists and globalists is based. What is clear, however—and can serve to identify the center of reference—is that sovereign-populist-identitarians on the one hand and globalists on the other refer to opposing pairs of values/ideas that we list below (without claiming to be exhaustive), of which the first column refers to sovereign-populism, the second to globalization:

NATION/HUMANITY
EXISTING/NORMATIVE
COMMUNITY/SOCIETY
NATIONAL INTEREST/GLOBAL INTEREST

It is barely worth mentioning a few examples. For existing/normative, I would refer to what I wrote about the Hungarian Constitution. As for the community/society opposition, it is less obvious but begins to emerge from the constitutional declarations of “sovereigntist” countries (see the Polish and Hungarian Constitutions).

That the term a quo and ad quem of these is the nation and not humanity is quite obvious and needs no explanation.

When it comes to the national interest, it is also evident as a government objective, apart from the recent events of Diciotti and Interior Minister Salvini, which have brought it back to the center of the political debate. And it could be referred to as a “re-establishment” because it has always been the compass of the modern state (and ancient political syntheses).

To find a phrase that sums up the position of the sovereigntists in a few words, one can just go back to Sieyès’ statement: “The Nation is all that it can be by the mere fact of existing.” A statement that would surely shock a globalist.

And continuing the abbot’s quotations, among many: “The nations of the earth are to be regarded as individuals devoid of all social ties, that is, as they say, in the state of nature. The exercise of their will is free and independent of all civil forms…However a nation wills, it is sufficient that it wills; all forms are good, and its will is always supreme law…a nation can neither alienate nor interdict to itself the faculty of will; and whatever its will may be, it cannot lose the right to change it should its interest demand it.”

The second conception to be considered in assessing the contemporary political situation is the one that emerges, among Schmitt’s writings, from Land and Sea (Land und Meer). The foundation of this text is that human existence is determined by the space in which it lives, its perception of it and the opportunities space offers. Therefore, this determines or co-determines political, economic and social relations—in particular, law. Maurice Hauriou wrote that the law known, elaborated, and applied by jurists is that of sedentary societies, based on the relationship with the land (and thus, also with territory as an element of the political institution, particularly—but not only—of the modern state). While the French jurist contrasted sedentary societies with nomadic ones and explained much of the institutions of the former with the relationship with the land and with an existence oriented to regular production, Schmitt deepened the diversity between maritime existence and land existence, and in particular that “universal history is a history of the struggle of the power of the sea against the power of the land.”

What was new in modern history, Schmitt argued, was that Britain, in the 16th century, decided on a maritime existence, far more than maritime powers such as Athens or Venice and to some extent, even Carthage had done in other eras. Hence the English commercial (and industrial) expansion. Hegel also emphasizes certain different types of activities, and tying the development of industry and trade to the sea (Elements of the Philosophy of Right, §247).

This fact was considered by Schmitt to be decisive for both international law and the Westphalian European political order. The resulting balance, he derived from that of land and sea (continental powers and maritime power) and between European states. None of which were capable of hegemonizing the others, because they would not have the strength to impose themselves on a coalition of them, somewhat as Machiavelli noted for the Italian states (and the balance among them) of his era. In this sense, the sovereignty of the states, built around the legal equality of the states—disregarding the factual equality, made some sense, precisely because the factual equality among them—or at least among the major ones—was not so far off; and, on the other hand, the disparity could be compensated for by a shrewd policy of alliances (and conversely of neutrality).

This all came into crisis with the 20th century; Schmitt argued that “in international law, generic and universalistic ideas are the typical weapons of interventionism;” and that “A legal conception coordinated with an empire spread over the whole earth (i.e., the British empire) naturally tends toward universalistic arguments.” He continues: “Such a conception does not concern a determined and united space nor its internal order, but in the first instance the security of communications between the scattered portions of the empire” (Völkerrechtliche Formen des modernen Imperialismus).

In the paper, “Great Space against Universalism,” (“Großraum gegen Universalismus“) the Plettenberg jurist reiterated, with reference to the Monroe doctrine, the contradictory nature of the universalist interpretation to the original enunciation of that doctrine. Schmitt writes, “It is essential that the Monroe doctrine remain authentic and not falsified, as long as the idea of a concretely determined great space, in which powers foreign to space cannot meddle, is fixed. The opposite of such a fundamental principle, conceived from concrete space, is a universalistic world principle, embracing the whole earth and humanity. This naturally leads to intrusions of everyone into everything. While the idea of space contains a point of view of delimitation and division and for this reason enunciates an ordering juridical principle, the universalistic claim of world intromission destroys all rational delimitation and distinction” (italics mine).

Schmitt continues: “In effect, the original American Monroe doctrine has nothing to do with the fundamental principles and methods of modern liberal-capitalist imperialism. As a true doctrine of space it stands, on the contrary, in pronounced opposition to a transformation of the earth into an abstract world market of capital without regard to space… That such a falsification of the Monroe doctrine into an imperialistic principle of world trade was possible will remain for all time a striking example of the intoxicating influence of empty buzzwords.” As for the interpretation given it by Woodrow Wilson: “he did not mean roughly a conforming transference of the spatial, non-interventionist thinking contained in the true Monroe doctrine to other spaces, but on the contrary a spatial and unlimited extension of liberal democratic principles to the whole earth and to all mankind. In this way he sought a justification for his unprecedented interference in non-European space” (italics mine).

Scmitt continues that the two Roosevelts and Wilson made “a specifically American spatial thinking a world ideology above states and peoples; they attempted to use the Monroe Doctrine as an instrument of Anglo-Saxon capital’s domination of the world market.”

This has resulted in converting “a spatially conceived principle of non-interference into a general system of delocalized meddling” and thus has become an ideological tool of democracy and “the conceptions associated with it, particularly ‘free’ world trade and ‘free’ world markets, in place of the original and true Monroe principle.” Combining for the purpose status quo and pacta sunt servanda, “that is, a simple contractual positivism,” with the ideological principles of liberal-capitalism.

The overall result is that the Monroe Doctrine, as interpreted in the years between the two world wars, gives the measure “of the contrast between a clear spatial order resting on the fundamental principle of non-intervention by foreign powers in space against a universalist ideology, which turns the whole earth into the battleground of its interventions and stands in the way of any natural growth of living peoples” (italics mine).

The situation today is different: the evolution of the international order with the UN (and the UN Charter), the prohibition of the use of force (see Art. 2, 4 of the UN Charter), the powers of the Security Council, the doctrine of “responsibility to protect,” peacekeeping operations, and especially the “defense of human rights” (and more) have complicated the situation.

What can the lessons of Carl Schmitt and, in particular, the doctrine of “large spaces” be used for?

It seems to be possible to answer that two conceptions (explicit and implicit to the same) and yet intersecting can be usefully applied. The first of which is political realism in relation to the concept of sovereignty. As the German jurist writes, the problem of sovereignty, arguably the main one, is to reconcile the political aspect with the legal aspect. For if the distinctive feature of sovereignty is legal absoluteness (not being conditioned by law but being “above” it), it must be combined with factual limits (with the familiar problematic issue of how much absoluteness applies internally and how much absoluteness can apply externally, i.e., with respect to subjects of international law (states and “order in fieri” distinguished by Bodin early on). As Schmitt writes “In political reality there is no supreme power, that is, greater than all, irresistible and functioning with the security of the law of nature… The reconciliation of supreme power in fact and in law constitutes the basic problem of the concept of sovereignty. Hence all difficulties arise” (italics mine). For another is the sovereignty of the U.S.A. or China, another that of San Marino or Liechtenstein. Transposed to the contemporary situation, this means that while one censures—rightly—violations of “human rights” or genocide (e.g., of the Kurds in Iraq) and goes off to wage a “just war” on the Rwandans or Saddam, one is careful not to wage war on Putin over the Donbass or Crimea, nor on China over Hong-Kong. It should be noted that while Hong-Kong is under Chinese sovereignty—and at least the classical territorial character of this may apply—this is not the case for the aforementioned territories in Eastern Europe, both of which—prior to annexations and occupations—were part of Ukraine; which has thus suffered a violation of (its own) sovereignty—as opposed to China. At this point, given the “double standards, double measures,” one wonders whether the criterion of “big space” does not apply as a concrete criterion of behavior and decision: while Russia was (in fact) granted intervention in a republic formerly part of the USSR, i.e., its own “big space,” the same was not exercised to protect populations, human rights, and in the case of Ukraine, territorial integrity. Hence the realism intrinsic to the Schmittian conception (registers) and rules much more than the idealism of such. (Idealism, which in practice, is often the fusion of interests and patronage).

The second conception that appears to underlie the concept of “great space” is one that links Max Weber’s concept of power (and of authority) and “law” understood here as “order.” Weber writes in defining it, that “power designates any possibility of asserting within a social relation, even in the face of opposition, one’s will.” Shortly thereafter, he writes: “The State should be understood to mean an institutional enterprise of a political character in which, and to the extent that, the administrative apparatus successfully advances a claim to a monopoly of legitimate physical coercion, with a view to the implementation of orders” (Economy and Society).

In current usage, until a few decades ago, states were called powers, at least those capable of exercising command internally and thus protecting their independence, even without (or with minimal) external political hegemony. In factual terms, it is the ability to assert one’s will that determines being a power. Which by applying Spinoza’s formula, tantum juris quantum potentiae, determines the factual limits of powers and thus of the legal capacity to exercise them. As the Dutch philosopher wrote, “If therefore the power by which natural things exist and operate is the same power as God, it is easy to understand what natural law is…. By natural right I therefore mean the same laws or rules of nature, according to which everything happens, that is, the same power of nature; therefore, the natural law of the whole of nature, and consequently of each individual, extends as far as its power” (Theologico-Political Treatise; italics mine). And within the “great space” it is relatively easy for the hegemonic power to exercise it. Likewise, for the most part, it has an interest in doing so because of the connections and relationships that join it to its neighbors or satellites. Respecting them is the condition for a state of peace to be easily achieved. Far more than trying to impose a unity of the world, without that unity being achieved in peace by the only historically possible way: by maintaining the pluriverse, conforming to the arrangement of interests, powers and borders; that is, by limiting and determining it with objective criteria that can be easily perceived and applied. For as Schmitt wrote, the unity of the world is not the unity of the ecumene, but “of the unitary organization of human power, the purpose of which would be to plan, direct and dominate the earth and the whole of humanity. It is the great question whether humanity is already ripe to endure a single center of political power” (Concept of the Political).

That there is a religion, a theology supporting such a hypothetical center, which has the capacity to resist elementary objections and criticism, Schmitt does not believe so. Certainly not the ideology of progress, since technical and moral progress “do not walk together” (neither among the rulers nor the ruled). Nor can rationalism bring us comfort, if only, I would add, because De Maistre’s judgment that man “by the fact of being simultaneously moral and corrupt, just in intelligence and perverse in will, must necessarily be governed” (so that reason is not enough) still applies; moreover, technical progress has the drawback of increasing the power of government. As Goethe wrote, “it is dangerous to man that what makes him more powerful, without making him better.

Nor do we see it today in that (attempt/project) of world unity in which still find ourselves, even though it now seems to be drawing to a close. Behind the unity of a world, dominated by the victorious power in the bourgeois/proletarian opposition, it must be acknowledged that the Plettenberg thinker saw the political future well: a new friend-enemy opposition, a constant land/sea dichotomy, a peace through the balance of (and between) large spaces. That is, everything opposite of what mainstream propaganda spreads.

Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.

Order and Norms in the Concept of the Just War

Introduction

The war in Iraq raised again a number of questions about the legitimacy of the use of force, many of them occasioned by propaganda needs, others by sincere doubts. That conflict essentially fulfilled two of the conditions identified by Late Scholasticism for justum bellum: that it took place between justi hostes, although the participation of the Kurdish peshmerga obscured this requirement; and debitus modus given that the Anglo-Americans sought to spare the civilian population and, in general, human lives, and, perhaps surprisingly (given the motivation for the war), Saddam himself avoided using the “means of mass destruction”—that is, specifically, gas—which he almost certainly had, given that it does not require particularly sophisticated technology to manufacture such means.

Doubts remain, however, about justa causa, while only the future can unravel those about recta intentio. The debate is thus marked by a prevalence of (aprioristic) camp choices, the appeal to idola (fori et theatri)—especially in a Left in search of itself after the collapse of 1989—and by clichés, in addition to the usual forcings and mystifications—distributed between the two camps—of propaganda.

Within this framework of unreasonableness, or false reasonableness (which is prejudice added to hypocrisy), it is useful to revisit the conceptions of Christian thinkers, particularly late Scholasticism and the principles of classical international law that owes so much to their thinking, whose main merit is to have limited and humanized war, as European history of the modern age proves, by combining humanitarian ideals and political realism.

I

War and law are not alternatives—both in the sense that where there is war, there is law, and, in the inverse that in law, both abstractly and concretely understood, there is inherently present the idea (and the real possibility) of war, or at least of conflict. The most varied expressions testify to this relationship: from justum bellum, which combines war with justice, to ne cives ad arma ruant, to vim vi repellere licet, the connection between the two spheres has generated a series of brocards, which constitute the (extreme) synthesis of the reflections of so many thinkers, converging in the view that war is not necessarily unlawful (anti-legal) in its subjects, reasons, purposes, modes and (above all) results, and conversely, that law is not irenic in its assumptions and (above all) consequences, because a legal claim can be polemogenetic.

Indeed, war is usually nomogenetic, perhaps even more so than law is polemogenetic. To St. Augustine we owe the assertion—bordering on the paradoxical—that even a gang of evildoers makes war in order to achieve peace, or rather an order: whereby the end of war is peace (City of God, 19.XII and 19.XIII), a judgment, which is approachable to the (most famous) of Clausewitz’s definitions of war—of being the continuation of politics by other means, in which, by qualifying it as a means, and of politics, he excludes that it can be an end in itself.

St. Thomas and the theologian-jurists (epigones of Aquinas) of Late Scholasticism are credited with distinguishing bellum justum (et injustum)—(The distinction is earlier and goes back (at least) to St. Augustine. See, Roberto De Mattei, Guerra Santa guerra giusta, pp. 15ff. However, the theory and concept are those of St. Thomas and the Thomists who elaborated and characterized it), and with identifying three conditions or requirements (four according to others, including Saint Robert Bellarmine) for it to be so, thereby limiting (the consequential damage) to war, to the later theorists of international law to have continued on that path, never quite abandoned, though modified by many to a greater or lesser extent.

The contrary thesis, that war and law are incompatible and mutually exclusive, appears to be the result at once of confusion and aspiration (and, often, is only an instrumentalization). Thus, the alternative correctly posed by de Maistre between decision and conflict: “ou il n’y a pas sentence, il y a combat” (for war and sovereign decision are alternatives, like civil state and state of nature), has been—erroneously—transposed into that, whereby the real capacity to order society, pertinent to sovereign power, is transferred to law.

The aspiration—traceable to utopian dreams of “exit” from politics—consists in thinking that one has found a peaceful, if not consensual, form of conflict regulation—that there is, but it is the Sovereign (the sentence) and not the law. Instrumentalization, finally, is intrinsic to the consensus aroused in arguing theses pleasing to the audience (with the consideration—in terms of popularity and power—that that entails).

Indeed, it is quite simple to note in this regard that, without an apparatus of coercion and repression, the law remains unenforced, and that, being a practical activity, the real problem lies in enforcing it; that is, in arousing sufficient consent and exercising congruous coercion for it to be respected. An essentially political problem. So much so that certain conceptions, born in the utopia of law, end up, sometimes, in the reality of the Courts (of the winners), as happened often in the last century.

But, in addition to the—innovative—use of Tribunals to try the vanquished, there has also been a correlative “revival” of the just war.

II

The concept of just war, upon its entry into medieval thought, required certain conditions (or requirements). For St. Thomas (Summa Th. II, II, q. 40, art. I.) the authority to conduct it (i.e., being justus hostis), which belongs only to the “superiorem non recognoscens,” the justa causa (i.e., legitimate motive, such as redressing a wrong); righteous intention (to promote good or avoid evil). All assumed that since there was no authority capable of enforcing the right of (and between) the parties, war was a means to that end.

For Francisco Suarez, the answer to the quaestio, “Utrum bellum sit intrinsece malum” is that “bellum simpliciter nec est intrinsece malum, nec christianis prohibitum.” But for “honeste” i.e., legitimate war to be promoted, three conditions must be met, two of which coincide with those of Aquinas, and the third of which is the “debitus modus gerendi bellum” (De charitate, disp. 13, De bello). For Saint Robert Bellarmine (conforming in this to the opinion of other theologians) the conditions become four, since he summarizes the “third” conditions of St. Thomas and Suarez (intentio and modus)—(Suarez, Scritti politici, Bologna, 1950, pp. 259ff).

In Scholastic thought, for a war to be just (or at least lawful) all must be observed. However, as Schmitt notes (The Nomos of the Earth, pp. 170ff), in the subsequent evolution of international law, the justus hostis, that is, the subject to whom the legitimate exercise of the jus belli is recognized, takes precedence over the other conditions, particularly the justa causa.

Thus justum bellum became the conflict between two justi hostes: two (legally) equal sovereign states; justa causa (and intentio) were (entirely or nearly) expunged. The considerations of justice (objective: substantive right or wrong) contained in the concept of justa causa were no longer considered, not least because a state that waged war without justa causa was still justus hostis, and in any case it was only the sovereign state that decided whether or not a justa causa belli recurred.

Such systematics presupposed and had a determined and consistent meaning when applied to a system of international relations, centered on states (and the related concept). Not a generic political unit can be taken as the basis of such an order, but only the State species (thought of and) formed in the 16th and 17th centuries, with the peculiar differences and peculiarities that distinguish it from other types, attributable to the same genus (empires, poleis, tribes and so on). Chief among these are “enclosure,” sovereignty (in the modern meaning) and monopoly of legitimate violence.

As for “enclosure” (of an orderly and impenetrable political space)—made possible both by the new organization into sovereign states and by the spread of firearms—it constitutes a character often overlooked, even though it is of fundamental importance, consisting of the distinction between internal and external and the delimitation between these areas, i.e., the border. Interior and exterior, intra or extra moenia, do not merely constitute a spatial division, nor do they merely determine the scope of exercise of the state’s imperium, but are the distinction between two different “orders,” based on different principles and assumptions. Within, the space of state sovereignty, of imperium based on the principle that “the sovereign in the state has toward his subjects only rights and no (coercive) duties,” the sovereign will is, by definition, irresistible and not able to be conditioned by legal limits and controls. (This is Kant’s definition in Die Metaphysik der Sitten, p. II, sec. I).

A corollary of this unlimitedness is that there is no external or different power that can influence, decisively, within (the borders) of the political unit. While externally, international law is based on a society of like and equal states, constituents of the global order, whereby, conversely, no one can dictate law to the other, but relations among them are, in principle, equal in character.

Sovereignty (understood in the classical sense, which it had from Bodin onward, i.e., of irresistible and unenforceable power) was worth excluding any other power (whether temporal or spiritual) within the political unit. The consequence of this was the indifference of the internal order of the state with respect to the vicissitudes of interstate relations; as well as the non-responsibility of individual officials with respect to foreign states, because the only responsible party was the state (the Sovereign) itself, the only one competent to judge its citizens (and officials).

As for the monopoly of entrenched legitimate violence, one with sovereignty, the exclusive international responsibility of the state, a sovereign entity endowed with that monopoly is solely responsible for what happens in the internal space of the political unit.

III

This coherent whole began to be shaken by the French Revolution, with the La Révellière-Lépeaux decree of the Convention, on the export of revolutionary principles; the “indifference” of wartime affairs to the internal order of the states involved began to be shaken. Likewise, beginning with the anti-revolutionary and anti-Napoleonic uprisings, a new political “type” appeared in modern history—the partisan fighter (and movement). A jurist as sensitive to real data as Santi Romano noted how the legal discipline of relations with the “insurgents” tended to derogate from the rules of domestic law, to take on connotations and institutions of the international one (Corso di diritto internazionale—Course in International Law, Padua 1933, p. 73. On the other hand, the question had been posed by Vattel: see, E. di Rienzo “Guerra civile e guerra giusta—Civil War and Just War,” in Political Philosophy (3)2002, pp. 380ff), whose reason he indicated “in the impotence of the State in which the insurrection breaks out to dominate with its order the authors of it,” which are also reflected on the (possible) relations between insurgents and third States. The Sicilian jurist, it may be summarized, traced the re-emergence within the political unity of the state of institutes and norms of international law to the insufficient enclosure and the loss of the monopoly of violence, the cause and reason for which was in essence, a defect of “power;” that is, a “factual” circumstance to which legal changes were (had) to be traced.

In essence, next to the state is thus configured another “type” of hostis, which, injustus in principle, in fact tends to become justus, from the moment when, in its favor, norms of international law are taken to apply and domestic law is derogated therefrom, thereby implementing an atypical and “minor” form of “recognition.” The circumstance that this practice originates de facto does not detract from its juridicality, since “factual” situations are the basis of a good part of the institutions of international law (and not only). The justus hostis thus tends to lose the typical and formal (i.e., state) connotations that defined it in the “classical” period; and it is the same Santi Romano who, in describing the characteristics of the revolution (and of the revolutionary movement), emphasizes—conversely—its juridicity, because it still constitutes an order:

“A revolution which is really such, and not a mere disorder, an occasional riot or sedition, is always an organized movement, in a manner and to an extent which naturally vary according to the case. In general, it may be said that it is an organization, which, tending to replace that of the state, consists of authorities, powers, and functions more or less corresponding and analogous to those of the latter: it is a state organization in embryo, which, little by little, if the movement is victorious, develops more and more in that sense. However, it results in a real order, albeit imperfect, fluctuating, provisional;” and he continues: “And it does not matter if this order, by its very nature and insofar as it does not decant later into the new state order that may result from it, has a transitory duration and stability. As long as it lives and operates, it is an order that cannot but be taken as such” (Frammenti di un dizionario giuridico, Milano 1983, p. 224).

Precisely because of its precariousness, however, the revolutionary order does not fully enjoy any of the three (noted) characteristics of the state: not enclosure, not sovereignty, not the monopoly of legitimate violence; in essence, the revolutionary situation is well represented by the expression employed by Trotsky to denote the period between the Russian revolutions of February and October 1917: of the dualism of powers. But where there are two (and conflicting) powers, none of those characteristics can be fully accorded to each of them.

Trotsky held that dualism of powers “is a revolutionary and not a constitutional fact” because “the share of power obtained in such a situation by each of the classes in struggle is determined by the relations of force and the vicissitudes of battle. By its very nature this situation cannot be stable… the fractionation of power is but a herald of civil war… civil war gives dualism of power its most visible expression, that is, a territorial expression,” with the establishment of party strongholds and the rest of the territory disputed. For “as always in a civil war, territorial delimitations are extremely unstable.” This situation of dualism ends with the victory of one of the parties (or with the itio in partes of the territory) since “society needs a concentration of power,” and the decision between bourgeois democracy (and bourgeoisie) and the Soviet system (and proletariat) must be resolved in a military way, with the victory of one of the parties. To propose, as Kautski and Max Adler did, to combine democracy with the Soviet system is tantamount to turning civil war into a component of the constitution. It is not possible,” Trotsky concludes, “to imagine a more curious utopia”—History of the Russian Revolution, pp. 227ff. See also Lenin’s article “The Dualism of Power,” in Pravda, No. 28, April 9(22), 1917).

The state monopoly of the jus belli (and the unique being justus hostis) was thereby eroded from “below” by movements to the “nascent” state; and, likewise, justus hostis tended, to blur, if not lose, those formal connotations that had ensured this “requirement” to be the principal among those of just war—for having lost its formal character, the reason that, according to Schmitt, had made it preferred, is also diminished: to unambiguously and convincingly recognize the “just” war by anchoring it to the statehood of the contending parties. While it is true that it is enormously easier to identify “what” is State than who is right in a dispute, it is also true that if one loosens the “grid” of the form, ultimately the justus hostis becomes not the one who has the characters of statehood, but the one who in fact succeeds in waging war (civil or with another state), regardless of (full) possession of those. And so determining the (justus) hostis becomes as problematic as (or almost as) deciding which side is the justa causa.

It is barely worth noting, in this regard, that the attributes identified by a military theorist like Sun-Tzu for conducting war victoriously are as many negative connotations for the thinking of an order-oriented jurist pour cause, and therefore form. Not having form allows, in war, surprise and greatly reduces vulnerability; but not having it in a context of order is to bring the possibility of peaceful coexistence to its lowest terms. If only because it makes it impossible to identify with whom to negotiate peace.

Sun-Tzu advises: “O divine art of subtlety and secrecy! Through you we learn to be invisible, through you inaudible; and hence we can hold the enemy’s fate in our hands;” and he continues, “We can form a single united body, while the enemy must split up into fractions. Hence there will be a whole pitted against separate parts of a whole, which means that we shall be many to the enemy’s few” (The Art of War, VI.9; 14)

On the other hand, the emergence of a new justus hostis, such as revolutionary movements, indirectly increases the role of justa causa, because all (or most) insurgents appeal to a new order, the realization of which constitutes justa causa belli. After all, one of the earliest documents testifying to this, in contemporary times, is precisely the Declaration of Independence of the United States. (Which from the very first words—”When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them…”—makes it clear that the subsequent invocation of justa causa—the rights of the colonies and the oppression of the motherland—is aimed at legitimizing the nascent revolutionary state as justus hostis). Lacking the characteristics of stability, form and duration of states, and unable to claim “legitimacy” on the basis of those, the only legitimizing condition of the insurgents’ bellum justum was precisely justa causa. From having often been successful, the role of this has gradually grown. Thus a “historical” and traditional legitimacy (such as that of pre-existing states) is contrasted with a new “ideal” and project-oriented (i.e., future-oriented) legitimacy justifying the use of war.

Note that this perspective is (partly) different from how the late scholastics considered seditio legitimate. Suarez, like Mariana, distinguishes between “tyrannus quoad dominium et potestatem” (i.e., the usurper) and that of “solum quoad regimen.” Against the former (lacking “title” to rule) even war of aggression is permissible; against the latter, no, because verus est dominus. And against the same it is therefore necessary to act “tota respublica quia… tota respublica superior est rege” (See, Suarez, op. cit., Sectio VIII. On this point, also see, St. Thomas Aquinas, De regimine principum, lib. I, ch. 6, where Aquinas posits the criterium differentiae in the right of the people to the choice of the king. On the distinction between the two types of tyranny, see Juan de Mariana, De Rege et Regis Institutione, Lib. I, ch. 6). However, when “tota respublica” means the secessionist party alone (territorially—mostly—determined) the revolution already consists in the declaration of separation, and not in the grounds that could legitimize it.

What even more distinguishes such justae causae from what the scholastics intended is that for the former, justa causa was motivated with respect to a concrete order, made up of rights recognized and observed, sometimes ab immemorabile, such as “transitus viarum, commune commercium occupatio res alterius,” and so on (See, Suarez, op. cit., Sectio IV. And de Vitoria argues that war cannot be waged against the Indians because they are not Christians nor because of their, sins, De indis, I, 2, 20-21); whereas for modern justae causae, it is a matter of rights founded not on history and custom, but, for the most part, on “reason” or “principles.” Often legitimate, as are their foundational aspirations, but with the drawback, compared to the former, of being uncertain and less verifiable—and, often, less shared or agreeable.

Likewise, justa causa is not equated with the violation of one (or more) norms, according to a normativistic way of thinking. Instead, it is intrinsic to it to be the condition for reacting to the violation of a concrete order, in order to restore it. Suffice it for this purpose to consider that the violation of a norm (or right) is not in itself sufficient to constitute justa causa belli: “Non quamcumque causam esse sufficientem ad bellum, sed gravem, et damnis belli proportionatam” (Suarez, op. cit., Sectio IV). The concept of gravis iniuria excludes that war can be waged over unissued passports or un-arrested illegal immigrants and so on (also because in such cases it is impossible to distinguish between the offended right and the pretext sought). The concept of intentio, which Bellarmine specifies in the goal of peace and order, similarly excludes that one can promote it for a purpose other than the reparation of a wrong, or the realization of a right, and within the limits in which these are satisfied and realized, and it is not permissible to instrumentalize a wrong suffered in order to achieve different ends. In these conceptions it is very clear how the Scholastics think of the concrete order and not of any normative violation or disapplication. Inherent to their thinking is a distinction similar to Carl Schmitt’s distinction for constitutional law: that between the Constitution (as the concrete order of political unity) and constitutional laws (norms)—(See, Verfassungslehre, § 1, Berlin 1970, p. 4 ff. On the distinction, especially § 2.2 p. 13 ff. The distinction is taken up several times by Schmitt in this work, see e.g. § 3.2). The international order stands to the relevant norms (customary or covenantal) in a similar way to the Constitution with respect to constitutional laws.

Thus, it is clear that the main—and differential—character of the thinking of theologians and jurists, such as Vitoria, Suarez, Bellarmine, Ayala, with respect to contemporary “just war” was to be oriented to (and about) concrete order and existence, and to apply principles (and ways of reasoning) that were essentially juridical.

Thus, justa causa was—and often is—determinable where, in adjudicating it, one has regard to those assumptions. If one state inhibits another from navigation (outside its territorial waters), it commits a tort, as a violation of a traditionally recognized right. Thus, if the State, offended party, makes war on it, this is, according to the thinking of Suarez and St. Thomas, the only system for restoring that right, in the absence of an authority to appeal to. Tout se tient. Linking justa causa and justum bellum with law (“historical” and concrete) avoids—or reduces—the worst and (most) instrumental consequences. Thus, for example, it is considered legitimate to wage war for one’s own rights, not for those of others (See, St. Robert Bellarmine, op. cit., p. 260, Suarez op. cit, Sectio IV: “Unde, quod quidam aiunt, supremos reges habere potestatem ad vindicandas iniurias totius orbis, est omnino falsum, et confundit omnem ordinem, et distinctionem iurisdictionum: talis enim potestas, neque a Deo data est, neque ex ratione colligitur.” On this point, see Baget Bozzo’s dissent in Panorama, 11/4/03, p. 50)—a sovereign has not only the right, but, more, the duty to protect his own and his subjects’ juras, but not the duty to invest himself as champion of every legal claim, even if well-founded, and similarly to that rule of procedural law whereby no one can act in his own name for the rights of others (Art. 81 c.p.c.).

Even in the case of seditio and tyranny, none of those thinkers—to our knowledge—even posed the question of whether it was licit, in general, for a “third” state to wage war against the tyrant, because, to a legal mindset, the answer is obvious and not worth the quaestio. Thus, while it is sometimes lawful for subjects to rebel against (and even kill) the tyrant because he violates their rights, it is not lawful to go around the planet dethroning tyrants (due to violation of rights) of others. Legal wisdom advises against this, by the way, because then the causae belli would multiply exponentially.

But, if in place of thinking geared toward protecting concrete political existences and concrete order, which justa causa presupposes, we turn to abstract declarations of rights, in effect untethered from legal thinking and mentality, the limitations and drawbacks of the doctrine of justa causa are magnified.

This is the case with just war, at least as it may be understood in recent decades. If instead of violations of the rights of the French or Italian state, the casus belli is the “human rights” of Nepalese highlanders or Somali shepherds—who often do not even know what they are, and perhaps do not feel the primary need for them—the justae causae grow in number and vagueness, so that it becomes much more difficult to distinguish between legitimate exercise of right and pretext. And so justa causa is dissolved in a thick fog of claims, offenses and penalties divorced from real needs and subjects of the claims. The justum bellum, thought of as the lawful remedy to repair the disruption of an order, in function of the restoration of the same, thus becomes, conversely, the picklock to unhinge it. For the problem that arises is not that those rights (often) must be guaranteed and respected, but that in order to do so a state (or an international institution) must wage war, and is entitled to do so.

IV

T0here is, moreover, to be recalled, as mentioned above, that in scholastic thought on justum bellum the conditions had to occur all together for it to be such. In the subsequent evolution, for centuries, justus hostis annihilated justa causa. In the phase we are living through, the inflation of justi hostes (on the one hand) and the renewed importance of justa causa (and the expansion of it) is minimizing the space of the classical justus hostis, i.e., the state. Indeed, most conflicts since World War II have not been fought between states, but between states and non-states, or between non-states (tribes, ethnicities, parties, religious groups). (According to Herfried Munkler, “Politica e Guerra,” in Filosofia politica, only 17 percent of wars after 1945 are wars between states in the classical sense). But a Jesuit or a Dominican of the siglo de oro would never have qualified as justum bellum a conflict promoted by a tribe (lacking jus belli), which proceeds to exterminate (or “ethnic cleansing”) the enemy tribe (without therefore modus), in order to appropriate the pastures of that one (without recta intentio), even if for a (perhaps) appreciable motive. Such a multiplication of subjects and grounds for conflict is precisely the opposite of what just war theorists aimed at, with determining their conditions: to limit them both in number and in the damage done.

V

The decadence of the state as justus hostis is accelerated by the phenomenon, widespread in the 20th century, of states and international institutions claiming to have for a just cause the right to intervene (or otherwise meddle) within other states. With this, the three remembered hallmarks (enclosure, sovereignty, and monopoly of violence) are violated either all together or individually.

Needless to say, such a practice does not fit into the patterns of the justum bellum of the Late Scholastics; more than that, it is openly contrary to the system of states and the international order founded on them. For example, the right of intervention, claimed in this case, injures them all: on the contrary, the rule of non-intervention, with its presuppositions, corollaries and multiple specifications (from the “indifference” of the domestic order to international law—and vice versa to the consequences: cuius regio ejus religio, and so on) safeguards them.

To some extent , although on different assumptions and bases, the same aspiration for leagues of states or at any rate international institutions that avert the use of force by replacing it with “legal” (Kantian-inspired), or rather para-judicial, procedures, contributes to blurring the distinction between internal and external, but without much of the benefits envisaged—not least because, on closer inspection, they fail to bring peace except through war, which differs from a “normal” war only because it is (apparently) promoted and conducted by a league of states rather than a single state. The case of Kosovo was the clearest confirmation of this, because the occasion (and motive) for the intervention was not external aggression (as in the war on Iraq over the occupation of Kuwait), but the repression carried out by the Yugoslav state on the ethnic Albanian population residing in its territory. By this it was challenged to exercise the function of “police,” connected with that of identifying the internal enemy (the rebel) and also the criminal. The principle of non-intervention in the internal affairs of the state, which is essential to the distinction between those and external affairs, is thus lost. The consequence of this, however, is not to replace the right to war, but to expropriate the state of the relative right, transferring it to an international institution, which in the case at hand also has the power to exercise “legitimate violence” and guarantee peace, not only between states, but also within states. (Among other things, the intervention of “third” power in a situation of “internal” conflict actually constitutes a legitimization of the revolutionary movement. Kant, in defending the principle of non-intervention, admitted it in this situation: “Here the yielding of assistance to one faction could not be reckoned as interference on the part of a foreign state with the constitution of another, for here anarchy prevails.” To take away the character of state from the one is, however, tantamount to placing it on the same plane as the other. See, Perpetual Peace, Section I.5).

To a similar conception should be traced, mutatis mutandis, other bodies (such as the International Criminal Court under the recent Rome Statute) which, derogating from the rules (admittedly repeatedly violated in the 20th century) of state exclusivity of the exercise of jurisdiction transfer it, in certain cases, to the international institution.

Tribunals—somewhat based on similar conception—constituted to judge vanquished enemies (even if, as in Milosevic’s case, vanquished by international “mandate”) all have the same fundamental limitation: that on the judges’ bench stand the victors, at the defendants’ bar the vanquished. The constancy of such a “trial position” proves how in effect the decision has already taken place, not so much in the sense of certainty of the defendant’s conviction, but in the fact that it is victory or defeat in the war that assigns the place in the trial, and not the judgment; which, moreover, in the face of a warlike resolution of the conflict (the actual decision) is always useless (and sometimes Maramaldesque). If a trial (any) has the—very important—function of preventing ne cives ad arma ruant, to a trial held after the conclusion of the war not even that merit can be ascribed.

On the other hand, as so many times noted, the practice of trying the vanquished has prevailed in the 20th century and is contrary to the jus publicum europaeum, equating the enemy with a criminal (i.e., denying him the quality of justus hostis). It appeared to some that it may (be justified or rather) follow, to some extent, from the Kantian conception of the hostis injustus. (See on the point Carl Schmitt: “In the final analysis, identification of enemy and criminal also must remove the limits Kant places on the just victor, since he does not allow for the disappearance of a state or for the fact that a people might be robbed of their constituent power”—The Nomos of the Earth, p. 171). In some respects, indeed, Kant’s thought is almost prophetic of certain solutions of the last century. When he writes, for example, that against the unjust enemy the victors cannot go “so far as to divide among themselves the territory of that state and make, as it were, a state disappear from the earth, for that would be a real injustice to the people who cannot lose their original right to form a community; instead, a new constitution can be imposed on them, which by its nature represses the tendency toward war”—this is very reminiscent of the Constitution of Japan (a “constitution octroyée,” it is said, by MacArthur) which both in the preamble and in Art. 9 prescribes the renunciation of war. This is not the only “Kantian”-inspired provision of that charter. The Preamble there states the “laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations”).

It must be said, however, that the philosopher of Königsberg appears opposed to bringing the logic inherent in the concept of the unjust enemy to what might be its consequences: neither trials of the vanquished (in §58 of the Methaphisik der Sitten, he writes “it already results from the concept of a peace treaty, that amnesty must be included in it”), nor debellatio with extinction of the vanquished state (see passage quoted above). Practices, however, invalidated in the 20th century (examples of the latter was the partition of Poland or the annexation of the Baltic States in 1939, this one without war).

Moreover, the limitation of the Kantian conception appears to be twofold: on the one hand for the rejection of the state of nature, to be overcome in a new international order: “the state of nature of peoples as of isolated men, is a state from which one must leave in order to enter a legal state” (Methaphisik der Sitten, § 61), which distinguishes him from (virtually all) “natural law” thinkers of the 16th—18th centuries. On the other hand, the normativistic—and abstract—(almost categorical imperative) character of that criterion (and definition) of hostis injustus.

Moreover, defining it as such, by deriving the norm of its acting from the statements of the same, can even legitimize preemptive war to intentions—which, in an image- and media-driven politics, and with several Captains Fracasse (militarily bumbling) governing states on the planet, would run the risk of provoking wars at every turn.

As for the first aspect, the whole thing tends to underestimate the (realistic) employment of means to safeguard peace (possible) in a pluralistic context (the pluriverse of states): alliances, balance of power, military preparedness.

Even if these (traditional) means have the drawback of impermanence, as Kant writes, it is not necessarily the case that they are less effective, because they are less polemical, than the “legal state” (i.e., the union of states), nor especially that the union envisioned does not end up resembling the innkeeper’s sign, recalled by the philosopher, which under the inscription “for perpetual peace” depicted a cemetery. On the other hand, impermanence is inherent in politics, in foreign and international politics no less than in domestic politics—to the point that several jurists (and others) have seen in wars and revolutions the dynamic moment (and element), which tends to bring the legal order back to the actual power relationship (All this would confirm the intuition underlying the innkeeper’s sign: that absolute peace, undisturbed by wars, is only that of death). This is because Kant’s conception starts from moral (and legal) and not political assumptions—and politics has to do with power far more than with morality; with the widespread and deep convictions of men more than with legally enforced norms.

Rather, Kant’s conception of hostis injustus appears acceptable, if (corrected and) related not to (legal or moral) norms but to the concrete order; that is, taking a step “back” to St. Augustine. In fact, if instead of “maxim” one substitutes order and peace, in the sense that the unjust enemy is the one with whom there is no possibility of (concrete) peace, i.e., international order, the thesis has a real and positive value. In fact, it is necessary to take up precisely the thesis of the Bishop of Hippo, who, of course, did not speak of an unjust enemy, but determined very clearly the human aspiration for (and the connotations of) peace: this is, essentially, “the tranquility of order.” And order is “the arrangement of equal and unequal beings that assigns to each the place that suits them,” as, earlier, he states that peace cannot exist without a leader (City of God, 19.XII and 19.XIII).

In St. Augustine, as in the scholastics, thought is oriented (and determined) by the concrete (and real) order rather than by “normativistic” conceptions. From this assumption, it follows that the unjust enemy is one with whom it is not possible to achieve (and coexist in) an order, however “provisional,” i.e., to conclude peace; it is not the violation of the norm that makes the enemy unjust, but the impossibility of peaceful coexistence, and this is determinable only on the basis of the possibility (of duration) of an ordered and peaceful situation. That is to say, the justus hostis is, from an objective standpoint, the political subject whose features of form are such as to be able to guarantee an order, different from that which pre-existed the war, but nevertheless such an order. This brings us back to Santi Romano’s concept of order and the elements of “statehood” that, in the Sicilian jurist’s thought, make even the revolutionary movement “an embryonic state order.” In fact, if the enemy lacks those elements—so that it cannot be considered insertable in a context of international order and security—with it dealing and making peace is not just or unjust—it is simply useless (if not impossible). An international order presupposes and requires ordered subjects in itself. If there is no internal order in the subject-components, there can be no international (overall) order, either.

An enemy that lacks a connection to territory and population, but has only a leader and followers (i.e., an embryo of an organization), as is the case, apparently, with Al Qaeda and other terrorist groups, is “unjust” because it does not appear determinable who it represents and in what bounded or delimited “space,” as opposed to other movements that have largely resorted to partisan warfare and terrorism (from the IRA to the Zionist movement, from the Algerian FLN to the Viet-Cong); but nevertheless constituted states embedded in the international order and preserved peace within the realm of the possible. This situation can be likened to that of so-called “failed states,” in which “statehood” is only a simulacrum masking a state of endemic civil war between groups (ethnically, religiously or economically based), whereby a legal state form is not matched by effective enclosure, secure sovereignty, or even a monopoly on legitimate violence. Which, however, requires justa causa, as appeared to be the case for Afghanistan (while still obscure for Iraq), given the Taliban’s hosting of al-Qaeda.

VI

This brings us back to the problem of the state. If it is true that the epoch of states, as it seems, is probably in its twilight, we are witnessing the twilight of a historical period that gave long cycles of (possible) peace, having succeeded, to a large extent, in the attempt to put in “form” not only political unity (all of which, however, have a form, even if not as carefully fashioned as that of the state) but even war. War in “form,” the justum bellum of the nascent era of states (and before that, sketched out in the earlier era, with its limitations on feudal and inter-Christian wars), with its justi hostes, justae causae, intentiones and modi gerendi was the most articulate and elaborate system of limiting and humanizing conflicts and building, even for that, states of peace possible. But such an outcome was achieved because war in “form” was the “duel on a large scale” between subjects equally in “form.” If the elements that constitute and characterize them are subtracted from these, it does not appear possible for war, or even peace, to be “shaped.”

A political subject without territory, even in the Trotskyist image of strongholds, without ties to the population and with a “mobile” (and labile) command structure is, to follow Sun Tzu, the ideal combatant, but the worst contractor of peace. In a system of international law that would be better called interstate, since it presupposes states as subjects of the political order of sedentary communities (Hauriou), the “formless” enemy with whom peace cannot be negotiated and preserved is the only possible “unjust” enemy.

It will be said that, on the basis of St. Augustine’s thought, such an enemy is not easy to find (so much so that the saint resorts to the example of Cacus, taken from mythology); but if one relates the concept of an unjust enemy to what is—concretely—a given international order (or rather its fundamental outlines), the incompatibility with this is not merely hypothetical or unreal. It should be noted that St. Augustine makes Cacus’ “wickedness” descend from his total asociality: “So that, had he been willing to make with other men the same peace which he made with himself in his own cave, he would neither have been called bad, nor a monster.” But a completely unsocial man has never been seen, so the saint continues: “It is better, then, to believe that such a man or semi-man never existed, and that this, in common with many other fancies of the poets” (City of God, 19. XII).

On the other hand, Clausewitz in distinguishing between “absolute” war (i.e., the ideal-type of war), with its logic of “ascent to the extreme” (On War, Chpt. I. 5ff) and real war (i.e., concrete, and oriented by political purpose) and the relative “moderation” of the latter with respect to the former, describes, in essence, real war as conducted(and relativized) in the 17th—19th centuries by European states: if instead of those the protagonists are others it becomes likely-as it was, for example, on 9/11-that the act of war is much closer to the ideal type of “absolute war,” without boundaries or rules. That is, without any legal limitations.

Which brings us back to the initial assertion that in war—particularly in those that are real, i.e., actually fought—law is present, both as a rule of conduct (international law of war) and (and most importantly) as an aspiration for an order, for the resolution of conflicting interests that does not destroy the overall “picture” of several coexisting peoples, and, often, linked by a common civilization.

The bellum justum of the scholastics moved precisely from this conception (and aspiration), realistic in its assumptions as ideal in its intentions—to make war limited in its modes, subjects and purposes the—exceptional—means for the implementation of law and the preservation of order in a system of superiorem non recognoscentes states. The objective difficulty of determining right or wrong does not tarnish its achievements, nor especially the assumptions and validity of those realistically oriented conceptions of concrete order, about which there is still reflection and learning to be done, in the context of a political situation so changed since the period in which it was formulated.

Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.

Featured: Turbes (Tubae) silent et gladii recunduntur in vaginis (“The crowds/trumpts are silent and swords put back in the sheaths”), folio 31 verso, from Prudentius’ Psychomachia, Corpus Christi College, Ms. 23, ca. 1000 AD.

Feelings, Zentralgebiet, and the Criterion of the Political

Clausewitz writes, in the first pages of Vom Kriege (On War), that war, under the aspect of its main tendencies, presents itself as a compound trinity:

War is more than a true chameleon that slightly adapts its characteristics to the given case. As a total phenomenon its dominant tendencies always make war a paradoxical trinity–composed of primordial violence, hatred, and enmity, which are to be regarded as a blind natural force; of the play of chance and probability within which the creative spirit is free to roam; and of its element of subordination, as an instrument of policy, which makes it subject to reason alone.

The first of these three aspects mainly concerns the people; the second the commander and his army; the third the government. The passions that are to be kindled in war must already be inherent in the people; the scope which the play of courage and talent will enjoy in the realm of probability and chance depends on the particular character of the commander and the army; but the political aims are the business of government alone (p. 89).

And just before he argues that ” The more powerful and inspiring the motives for war, the more they affect the belligerent nations and the fiercer the tensions that precede the outbreak, the closer will war approach its abstract concept, the more important will be the destruction of the enemy, the more closely will the military aims and the political objects of war coincide, and the more military and less political will war appear to be” (pp. 87-88).

It emerges from these and other passages in Vom Kriege that the “fierce tentions” and the original violence of hatred and enmity is the element of the “trinity” that contributes most to the intensity and determination of the war effort.

According to Carl Schmitt, “The concepts of friend and foe must be taken in their concrete, existential meaning, not as metaphors or symbols; they should not be mixed and weakened by economic, moral and other conceptions, and even less should they be understood in an individualistic-private sense,” because “An enemy exists only when, at least potentially, one fighting collectivity of people confronts a similar collectivity” (Concept of the Political, p. 28).

The enemy is only public as was already written in the Digest. Political opposition is the most intense and extreme; it is not limited on the outside of political unity, although on the inside it is relativized, i.e., it is struggle and not war; if it becomes this, it puts political unity in doubt. War is in itself a political means and can only be such “it would be senseless to wage war for purely religious, purely moral, purely juristic, or purely economic motives” (Concept, p. 36).

However, ” religious, moral, and other antitheses can intensify to political ones and can bring about the decisive friend-or-enemy constellation. If, in fact, this occurs, then the relevant antithesis is no longer purely religious, moral, or economic, but political” (Concept, 36); and he continues: ” Every religious, moral, economic, ethical, or other antithesis transforms into a political one if it is sufficiently strong to group human beings effectively according to friend and enemy” (Concept, p. 37).

In his essay, “The Age of Neutralizations and Depoliticizations” (1929), Schmitt argues (and this also presents interest for the “content” of the political) that Europe has changed its center of reference several times since the 16th century, which has shifted from the theological to the metaphysical, then from this to the moral-humanitarian and then to the economic.

The center of reference determines the meaning of specific concepts from time to time. What is most relevant, “If a domain of thought becomes central, then the problems of other domains are solved in terms of the central domains—they are considered secondary problems, whose solution follows as a matter of course only if the problems of the central domain are solved” (“Neutralizations,” p. 86). This is also the case with the state and the friend-enemy groupings: “Above all the state also derives its reality and power from the respective central domain, because the decisive disputes of friend-enemy groupings are also determined by it. As long as religious-theological matters were the central focus, the maxim cujus regio ejus religio had a political meaning” (“Neutralizations,” p. 87).

Having changed the center of reference, the conception of the state and the content or discriminant of the political changes, which takes on another meaning and criterion and may result in a different friend-foe grouping and thus, “The former central domain became neutralized in that it ceased to be the central domain. On the basis of the new central domain, one hoped to find minimum agreement and common premises allowing for the possibility of security, clarity, prudence, and peace. Europeans thus moved in the direction of neutralization and minimalization” (“Neutralizations,” pp. 89-90).

However, not even the “neutral” landing place that Europeans arrived at in the 20th century, namely, technics, can realize the aspiration for the elimination of conflict; both because “Technology is always only an instrument and weapon; precisely because it serves all, it is not neutral. No single decision can be derived from the immanence of technology, least of all for neutrality” (“Neutralizations,” p. 91), and also because “So far the hope that a politically dominant elite would develop out of the community of technical inventors has not been fulfilled” (“Neutralizations,” p. 92). Schmitt continues: “The constructions of Saint-Simon and other sociologists who anticipated an “industrial” society are either not purely technical (but rather mixed with humanitarian-moral and economic elements) or simply fantastic. Not even the economic direction of the contemporary economy is in the hands of technicians, and until now nobody has been able to construe a social order led by technicians other than as one lacking any leadership or direction” (“Neutralizations,” p. 92).

The correlation, although not always necessary and inescapable, between center of reference and friend-enemy exculpatory persuades only in part.

This is primarily because it must be coordinated with what Schmitt so often repeated, namely, that it is the concrete situation that determines the enemy. For which there is not only the pair of opposites referring to the center of reference, but there are other oppositions, sometimes more important and so decisive (or at least perceived as such) that determine situations of struggle and hostility.

For example, in the short century and particularly after the conclusion of World War II, the opposition between liberal democracies (with annexes) and communist nations repartitioned almost the entire developed world into two camps one against the other, armed, organized in alliance systems (and related organizations), opposed and ready for mutual destruction. Despite this, it did not prevent these nations states of intense hostility, up to war, within both the “two” camps and between “clients” of them, mostly not induced by the main friend-enemy discriminant.

In fact, there have been wars in the same “camp”: China-Vietnam; Vietnam-Cambodia; China-Russia; (the Ussuri “incidents”) for the communist one; Britain-Argentina (for the Falklands-Malvinas) as well as the Turkish occupation of part of Cyprus with the high tensions between Greece and Turkey.

Moreover, the Arab-Israeli wars did not have at all the content and ideological exculpation of the camps that, to a greater or lesser extent, helped one or the other of the contenders, but the “traditional” character of disputes for the possession of land between different peoples.

Even civil wars are not (always) ideological wars (although this has often been the case in the last two centuries). As Henry de Montherlant wrote in the prologue of his drama, La guerra civile (Civil War), acknowledging this: “I am the civil war… I am not the war of the trenches and battlefields. I am the war of the angry square, the war of prisons and streets, of neighbor against neighbor, of rival against rival, of friend against friend.” That “friend against friend” shows how the playwright saw the dissolution of the friendship relationship as the cause of civil war. Against this, the aggregation resulting from the commonality of laws, traditions, history and language, which in any case produces cohesion, does not (always) count; to this must be added the will to exist together and a common future. The failure of which induces the end of political synthesis, which, as Renan wrote, is an “everyday plebiscite.”

In political reality the constant of domination and its determinants, particularly geo-political, so well enunciated by Thucydides in the famous dialogue between the Melians and the Athenian ambassadors (And it is not as if we were the first to make this law, or to act upon it when made: we found it existing before us, and shall leave it to exist for ever after us; all we do is to make use of it, knowing that you and everybody else, having the same power as we have, would do the same as we do, History of the Peloponnesian War, Book 5.17)—oppositions between peoples accustomed to fighting and asserting their identity over their neighbors (as, often, in the Balkans—and not only); the interests of states, such as De Gaulle’s policy towards the communist world—make the main (and epochal) opposition non-decisive. (As for de Gaulle, Europe, from the Atlantic to the Urals, clearly revealed the aspiration to relativize the hostility between NATO and the Warsaw Pact and thus the exculpation).

The decisiveness of the opposition should be traced to its influence on the existence of the political community, both in an absolute sense (the destruction of the community or the institution that shapes it) and in a relative sense (the radical modification of its mode of existence).

Political conflict is thus determined primarily by the community’s need for existence: if another human group is perceived as an enemy-in the sense of being a (concrete) danger to the existence of the threatened community—the same religious, ideological, economic “differences” take a back seat. “Values” and the correlative “canon,” mostly stated, in modern states, in the Constitutions, take a back seat at the moment when the existence of the community is at stake. This is done on both the internal side (the decision on the state of exception) and the external side (the decision on the enemy), in homage to the maxim, salus rei publicae suprema lex. The enemy is the one who is such for the salus of the state institution (and the community). It is the concrete situation and the danger to the collective existence, and the hostile feeling that follows from it, more than the contrast on the mode of existence of a people that designates the enemy. Thus, it belongs to each community to decide who is such, and whether the epochal opposition is more or less important than the other oppositions, which have the character not only of concreteness but also of particularity. As Freund wrote, “To fall into error about the enemy out of ideological stupor… is to expose oneself to putting, sooner or later, one’s existence in danger” (Essence du Politique, p. 496).

Gentile wrote that “The political sense is the soil (humus) in which the tree of the State sends down its roots” (Genesis and Structure of Society, p. 182). This statement is complementary to Clausewitz’s statement about the tendency/component/constant of war constituted by the blind instinct—and with that, the political feeling —that “corresponds” to the people. Gentile writes that the living (i.e., vital) state needs political feeling: “This structure must have life, such as it can have only if it is a feeling, a political sense, the secret source of every passion that the political activity of the individual brings to light. When this fountain dries up, political action loses all sincerity and warmth; it is emptied of all constructive energy and decays into a mere game for dilettanti” (Genesis, p. 183), and he continues: “The more vigorous this political sense is, the more powerful and effective political action becomes” (Genesis, p. 183).

Without political feeling there is neither war nor viable state—that one thus has the possibility of being waged and, in the case, won; in this it is resolved in the relativization of oppositions and conflicts, particularly that between rulers and ruled in the consent of the latter to the former, in an idem sentire de republica. This appears to be the meaning given to consent by Gentile: “This consent may be spontaneous or it may be procured by coercion. The moral ideal of the State, within which the government exercises its authority, requires that spontaneity be increased to a maximum and coercion reduced to a minimum; but it is impossible that either element should ever stand alone, unaccompanied by its opposite. The nations swing restlessly between the two poles of a minimum of coercion with a maximum of spontaneity, and a maximum of coercion with a minimum of spontaneity: between democracy and absolutism, for it is very hard to attain that mutual—tempering of the opposed principles which is their dialectical synthesis… For neither of the two terms can stand alone; and the necessity of their synthesis is a consequence of the essentially dialectical character of the spiritual act” (Genesis, pp. 123-124; 125).

The problem of the legitimacy of consent and integration, which contemporary jurists often resolve in legality, without considering that this is based on the conviction of the legitimacy of those who exercise power, and not vice versa; so that, wrote Gentile, there is no police that can provide for it, if the social order is not shared: “Peace takes definite and determinate form as the system of social order, the maintenance of which is the primary task of every State; and no one can pretend that the police force is all that is required to meet this essential and fundamental need. The police may be helpful in preserving peace, but only if order reigns in men’s hearts by virtue of the political sense in which the State is rooted and from which alone it gets its vital sap. Police work is a medicine; and just as no medicine can keep alive an organism threatened by an inner failure of vitality, so no police force can restore the health of a State when the vis medicatrix naturae has run out” (Genesis, p. 182).

A phenomenological analysis of the friend-foe relationship must start from the factual observation that conflict is in itself irrepressible both within and outside the political synthesis. A society, so harmonious as to know no internal conflict is the result of utopianism; that is, of that variant of utopian thought aimed at imagining impossible fantasies because they are opposed to the factual datum.

What, on the other hand, is part of historical experience (and is constant) is that political syntheses exist as such as long as they succeed in relativizing internal conflicts, recomposing and deciding them; conflicts relativized by consent to a higher authority, recognized (by the governed) to make the (unappealable) decisions for the order it ensures. Where this does not happen, the result is that those conflicts move from relative to absolute, in which at stake is the existence and, gradually, the form of government, the regime of political synthesis and no longer internal disagreements. It follows that out of all the innumerable conflicts that may exist within the political synthesis, depowering one, certainly present, is a necessary presupposition of the amicable relationship: that between rulers and ruled. For it enables the recomposition of all others.

Authority, order and rules have as their fundamental requirement to settle and decide conflicts, and thus the struggle that inevitably ensues, limiting and degrading it to agonal competition.

Even more, the relativization of internal disagreements is based on the pacifying role of the third party, internal to the political synthesis, that is, in principle, the sovereign power. In principle because the activity of the third party (including internal) may not be carried out by an organ of the state and, the political result (the settlement of the disagreement), nevertheless achieved. But the role of the “third party” may not be limited to internal conflicts and, especially its action, be aimed at stirring up dissension, not recomposing it.

It has often been thought, in the post-atomic era and following the debellatio of Germany and Japan (the case of Italy is different), that the end of war is identified with the military occupation of a country, previously destroyed by the victor, and thus placed in the material impossibility of defending itself; the terrible effects of a nuclear war in the collective imagination have done the rest.

In reality, a war ends when one side no longer has the will to fight. War is a clash of wills, as Clausewitz and Gentile, among others, wrote. It therefore presupposes that both contenders have the will to make it and continue it—if one of them surrenders, the war ceases.

Rightly de Maistre noted that a battle lost is one that we imagine we have lost. Indeed, De Maistre writes that “it is imagination that loses battles,” but, to some extent, this is also true of the wars (St. Petersburg Dialogues, p. 222). In this regard, this conclusion was drawn by Gustave Le Bon who argued that often “The rout is obviously only the result of a purely psycholoiric impression, and by no means an inescapable necessity.” (La Psychologie politique, p. 96).

Absolute war stands to real war as the (perpetual? universal?) peace of debellatio stands to a treaty (or even “dictate”) of real peace. It is essential to bend the enemy’s will to fight and thus the feeling of (communal belonging and) hostility. To this end, all means are good: both the prospect of superior punishment and harm and the opposite of benefits, advantages or clemency. The armistice with which the First World War ended (militarily), with Germany still master of much of Central and Eastern Europe, is one such case.

Economic pressures (the effects of the blockade), the armistice of Austria-Hungary, and the strategic prospects of this, and increased U.S. intervention contributed to depowering the will to fight.

But even in the 20th century, in the age of technical and total warfare, often determined and motivated partisan armies endured and won under conditions of (abysmal) material inferiority, at the cost of vastly greater casualties than hyper-technological enemies. The material imbalance was offset by the intensity of hostile feeling and so of morale. Enemies could not bear the (far inferior) sacrifices, so they preferred to conclude peace or otherwise give up the war. Hostile feeling is, for the weaker, the factor that can enable them to wage and win war, even though it is marked by a very considerable material asymmetry. (This was the conclusion of many liberation wars: from the Vietnamese to the Algerian to the Soviet-Afghan—and many others).

It is precisely asymmetrical warfare in its various forms that has connoted contemporary conflicts since the collapse of communism and the consequent breakup of the bipolar condominium that had characterized the second half of the 20th century.

Similarly, hostility between human groups, which shares the chameleon-like nature of its most intense product, war (characterized by the use of violence), takes intermediate forms (mostly mystified or entirely concealed). Influenced by derivations (in Pareto’s sense) of pacifism; these consist in denying armed interventions the character of war, in the name of irenic intentions and especially because they are undertaken in order to maintain peace. (Often such externalized intentions match the actual purpose, but, at least as often, they do not).

But the panoply of hostility is not limited to wars in disguise.

Other forms of it are those actions tending to the same purpose as war—to bend the will of the adversary—by non-military means (economic blockade, cyber-attacks, financial raids, all the way to peaceful invasions); that is, conducted by subjects not having the status of legitimate belligerents (justi hostes), a means well known even to centuries past. The common connotation of all these types of hostile acts is that, having the same purpose as “classical” war, they lack one (or more) of the requirements identified by Christian theology for there to be a just war (justum bellum): here the recta intentio is missing, there the auctoritas, elsewhere a justa causa belli. Hence (perhaps) they cannot be considered wars in the proper sense; but they almost always cannot be traced back to the concept of just war elaborated by theologians.

It is precisely in such wars not wars that the need to annihilate the enemy’s will to resist (and to fight) assumes perhaps greater prominence than in classical wars; for the adversary knows full well, as de Gaulle wrote, that strength resides in the order of it and that breaking this destroys that.

In the “atypical” forms of warfare that connote the 21st century, this is possible in various ways, and the means must be congruent with the objectives. The loss of the enemy’s political cohesion, however, appears to be decisive. The degrees of action may be different: they range, in escalation, from the replacement of the hostile government, to the abolition of the political regime, to the destruction of the political synthesis targeted by the hostile intervention.

As examples in modern history, one may recall, for the first type, the fall of governments (and then regimes) of real socialism in Eastern Europe; although, in this case, the intervention of the antagonist (the U.S. and NATO) was unimportant and entirely indirect. In fact, the endogenous cause, that is, the unpopularity of the regimes that made the amicable relationship between rulers and ruled problematic, was totally (or almost totally) decisive. However, this confirms that the amicable relationship is decisive; without this, in the long run, any political regime collapses, even without the intervention of other political actors. Another case, of the same type, although achieved in part by military means, is the Cyprus crisis in 1974 and the fall of the Joannides government. Of the second, the end of the regime was the tsarist collapse and the seizure of power by the Bolsheviks. Of the third, the end of Czechoslovakia in 1939 with the absorption into the Reich of Bohemia and Moravia and the birth of the Slovak republic of Mgr. Jozef Tiso. In all these (and other) cases, military means were not used at all; or, if used at all, were not decisive. What was decisive was the attenuation or disappearance of the friendly relationship and hostile feeling.

A common notion is that the means used and the purpose make it closer to revolution than to war: even if the end is not always revolutionary it consists of the subversion and overthrow of the hostile order (and so at least the government). Since contemporary hostile interventions have—like so many wars on the other hand—limited goals, the replacement of the government is often sufficient to achieve them.

Despite the non-use of military means, this makes it far more damaging to the principles of international law than a justum bellum: stirring up subversion (up to revolution) in other states has, in the view of many, constituted an international tort, often vituperated and equally practiced.

Political thought has wondered for millennia about who the enemy is, and the answers to the question have been the most varied and not even mutually exclusive. It has been held that there were enemies by nature (see, Alberico Gentili, Il diritto di Guerra, p. 78), and in Cromwell’s speech quoted by Carl Schmitt (Concept, pp. 67-68): “Why, truly, your great Enemy is the Spaniard. He is a natural enemy. He is naturally so; he is naturally so throughout, by reason of that enmity that is in him against whatsoever is of God. ‘Whatsoever is of God’ which is in you, or which may be in you.” Then he repeats: “The Spaniard is your enemy,” his “enmity is put into him by God.” He is “the natural enemy, the providential enemy,” and he who considers him to be an “accidental enemy” is “not well acquainted with Scripture and the things of God,” who says: “‘I will put enmity between your seed and her seed'” (Gen. III:I5).”); or more often by divergence of interests, or even by customs (Alberico Gentili argues that “If there really were causes dependent on nature, the resulting war would surely be just. But causes of this kind do not exist Men are not enemies among themselves by nature; it is activities and customs which, according to their compatibility or incompatibility, induce them to concord or discord” (Il diritto, p. 80); by religion, the source of so many contrasts. (On the basis of two well-known Digest fragments, the one who is not sovereign (and for non-public causes) is normally ruled out (Dig. L.16.118 and Dig. XXXXVII.15.24). Even more so about who is the right enemy.

As argued by Schmitt (and others), the 20th century saw the recognition of the status of just enemy, even to political subjects other than states (particularly revolutionary movements); thus, a legitimization of just wars, predominantly on the basis of the criterion of justa causa belli.

On the phenomenological level, the whole led not to the reduction but to the increase in the role of hostile feeling: in particular, war activity carried out by relatively (little) institutionalized (on this point, see “Revolution,” in Frammenti di un dizionario giuridico, p. 224), non-state organizations led to an increase in the active role of the population in war, according to Mao Zedong’s conception, and thus in political feeling.

Weak institutionalization has similarly made the role of “technical” and specialized personnel less relevant. The command—and cadres—of partisan movements are only occasionally (and rarely) military technicians and bureaucrats; for the most part they either do not possess war experience or have little. Even at the dawn of the modern partisan, we find Cardinal Ruffo, who was not a military man but a religious and civil administrator. On the other hand, he knew very well how to arouse and make use of the hostile anti-Jacobin feeling of the southern populations. So did most of his followers; something repeated in all (or almost all) modern revolutionary movements. Fra Diavolo the partisan leader was a saddler and then enlisted (some time) in the regular Bourbon army; Empecinado the farmer.

And, in this respect, it is necessary to return to Schmitt’s conception, mentioned earlier, of the role of technics and technocracy, relative to political feeling, whether it be aversion to the enemy or cohesion with the friend.

Technics itself is a tool and a means, not an end.

Rather, the shift from the conception of technics (of the first half of the last century) that Schmitt writes about as “faith in an activist metaphysics, faith in man’s boundless power and dominion over nature, and thus also over human physis, faith in the limitless ‘overcoming of natural obstacles,’ in the infinite possibilities of change and refinement of man’s natural existence in this world,” so that he cannot declare it “simply a soulless, spiritless, mechanistic dead thing,” reinforced the null (or scant) suitability to arouse “political feeling.”

If technics at the time was conceived in a Promethean dimension (and function), it is now perceived as the satisfaction of (mostly private) needs of a society of pantomime consumers, who in any case have abdicated any sense of collective existence, other than that of producing and consuming. Which dovetails very well with Tocqueville’s prophecy of mild despotism (Democracy in America, Vol.2, Book IV, Chapter VI. It may also be recalled, as a supplement to Tocqueville’s judgment what Schmitt writes: “Great masses of industrialized peoples today still cling to a torpid religion of technicity because they, like all masses, seek radical results and believe subconsciously that the absolute depoliticization sought after four centuries can be found here and that universal peace begins here. Yet technology can do nothing more than intensify peace or war; it is equally available to both. In this respect, nothing changes by speaking in the name of and employing the magic formula of peace. Today we see through the fog of names and words with which the psycho-technical machinery of mass suggestion works”—”Neutralizations,” p. 95); while according to the Plettenberg jurist, ” All new and great impulses, every revolution and reformation, every new elite originates from asceticism and voluntary or involuntary poverty (poverty meaning above all the renunciation of the security of the status quo)—(“Neutralizations,” p. 94).

Nonetheless given that any choice, as is also the choice to make use of technology (or technologies), can provoke a friend-foe opposition it is the case to see if this (and/or those) can also constitute an aggregating/ discriminating foundation.

First, it must be remembered that the rejection of certain technical (solutions) is, more often than not, only a reflection of a choice of values; in the contemporary world this is evident for (new) technologies traceable to bioethical orientations (Although today, as in past centuries for the most part, such contrasts have not resulted in conflicts between political symbioses, the contrast in internal political struggle even if minor can always be traced back to the friend-enemy pair). The dependence of these on those makes them irrelevant or, at best, secondary.

Second, the total (or nearly total) rejection of technics, as the resultant/component of another science and civilization, has been repeated over and over again throughout history.

In particular, Toynbee considers it one of the types of behavior held by human communities not part of Western civilization (of Christianity) in the face of its planetary expansion. Regarding rejection (as opposed to assimilation/acceptance) he considered “champions” (among other rejectors) Japan before the Meiji Revolution and Abyssinia; of acceptance (modernization) he considered the most typical historical figures Peter the Great, Mehmet Ali and the Japanese statesmen of the Meiji era (Mankind and Mother Earth, p. vii): “Eminent examples of Westernizing statesmen in the first century after the beginning of the Industrial Revolution in Britain are Ranjit Singh (ruled 1 799-1839) the founder of the Sikh successor-state, in the Punjab, of the Abdali Afghan Empire; Muhammad Ali, the Ottoman Padishah’s viceroy in Egypt from 1805 to 1848; the Ottoman Padishah Mahmud II (ruled 1808-39); King Mongkut of Thailand (ruled 1851-68); and the band of Japanese statesmen that, in the Emperor’s name, liquidated the Tokugawa regime and took the government of Japan into its own hands in 1868. These Westernizing statesmen have had a greater effect on the history of the Oikoumene than any of their Western contemporaries. They have kept the West’s dominance within limits, and they have done this by propagating, in non-Western countries, the modern West’s way of life” (Mankind and Mother Earth, p. 567). And for rejections: “In 1632 the Abyssinians (present-day Ethiopians) expelled the Portuguese and also Jesuits of all European nationalities, and insulated themselves from the rest of the Oikoumene, without any foreign help. Almost simultaneously the Japanese did the same. Hideyoshi had ordered the expulsion of Christian missionaries as early as 1587. An edict banning the practice of Christianity in Japan…” (Mankind and Mother Earth, p. 532).

But the rejection of technics and technology was the consequence/ result of the rejection of Western civilization as a whole, in its values as well as in social organization (including law), as well as technology, and thus, in part, coincides with the first type of choice.

Even if an opposition to technics is theoretically conceivable, it does not appear in practice, as a real determinant of conflict, nor can it constitute, except in an ancillary role (although sometimes the ancillary function plays a minor, still relevant, role), a decisive and legitimizing factor of power. Every conflictual and nonconflictual situation of enmity or friendship; dissent or consensus of values or interests is left to the human will, while the choice of technics (and the validity of it) is not preference of will, but of appropriateness and expediency.

The contemporary situation, following the collapse of communism (and the institutions-alliances that determined its field) has brought to an end the bourgeois-proletariat opposition that connoted (at least) the “short century.” The recent electoral assertions of movements and candidates that cannot be traced back to the old Zentralgebiet, in Europe first and foremost, and, as appears from Trump’s election, in the U.S. as well, bring out a new friend-foe opposition, ideologically less defined but, at least potentially, virulent. It seems clear that this opposition, as I happened to write recently, is that between nation (national identity) and globalization (see, Nazione e globalizzazione in Nova Historica, 15/56, 2016, pp. 39ff); (or “direct” internationalism). Compared with the old Zentralgebiet, especially the one generating the bourgeoisie-proletariat opposition, it has in common the character of being divisive internally no less than externally—it generates populist parties that oppose the domestic and international elites, represented by the old decaying parties, whose survival strategy is often consistent with the emergence of the new opposition (which makes the old one secondary and unimportant): they tend toward entrenchment, to bloc together (the old right and the old left), to prevent the new amicus-hostis “couple” from seizing power.

Although, it is often the case to speak of parallel divergences rather than entrenchment. But parallel divergences are one of the sources of alliances between different parties on so much (or everything) but united by the enemy.

Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.

Featured: The Battle of Gorossló (Allegory of the Turkish War), by Hans von Aachen; painted ca. 1603-1604.

Wars More Democratic than Just

It is common nowadays to believe that just war is that waged to export the “values” (and institutions) of liberal democracy, among which is placed (and stands out) the ideology of human rights. Alongside this is the thesis—often connected—that to prevent “unjust wars” and punish their perpetrators requires international tribunals. Thus reversing, or rather applying in the wrong context, De Maistre’s judgment that “where there is no judgment, there is confrontation.”

We say the context is wrong because De Maistre’s judgment is the synthesis of a discourse on sovereignty, the example of which is precisely the Tribunal: “In the Tribunals one sees the absolute necessity of sovereignty; because man must be governed just as he must be judged, and for the same reason; that is, because where there is no judgment there is confrontation” (Du Pape, II, 1, trad. it. di A. Pasquali, Milano 1995, p. 155). But, in De Maistre, the whole presupposes sovereignty and state, and a Tribunal—the office of the latter.

Instead, in postmodern thought, the (international) court is the alternative/substitute of the state. That is, it is the opposite of Hegel’s judgment that “there is no Praetor among States” (Grundlinien der philosophie des rechts, § 313). Here, conversely, it is assumed that there can be, and is able to uphold (i.e., enforce) its judgments, as, within the state, police and other state departments and offices do, availing themselves of the (state) monopoly of the legitimate use of force. However, that the problem is actually this, and not that of jus dicere, is forgotten, and so are the various historical experiences that prove it.

But is this kind of warfare really just? And does it conform to real criteria of justice? A historical examination can contribute to the answer.

At the dawn of the jus publicum europaeum, Christian theology, which outlined its principles, identified the requirements of just war in the (legitimate) authority of those who waged (and declared) it—the just (war) motive, the right intention, and the correct manner of waging it. Just cause was understood in the “classical” legal sense, that is, as the protection of concrete rights violated. The necessity (and legitimacy) of war then stemmed from the absence of an authority that could settle disputes by redressing rights violations by effective command and enforcement by the disputants. In this legal construction, there is no room for abstract “rights,” only (very) concrete ones. Suarez, in listing examples of “just cause” for war, makes almost an enumeration of the “actions” recognized in Roman law for the restoration of injured rights: taking impediment of transit of other people’s provinces (claims), (confessoria servitutis), as well as injuries to the right to customary economic relations. These are rights based on history and custom; that is, on a concrete order, to the maintenance and preservation of which the remedy of war contributes.

The subsequent evolution, induced to make just war rather than a means of restoring law, that of preserving the power, (security, balance) of states, and, consequently of the international community, is founded on the pluralism of political units. Not that the protection of law (which in itself is a power) no longer constituted just cause, but alongside or rather above it, the reason of defense of power was added (and prevailed). An example is offered by Montesquieu “The life of states is similar to that of men: the latter have the right to kill in self-defense, those have the right to wage war for their own preservation;” and he continues “Between citizens, the right of self-defense does not imply the necessity of attack. Instead of attacking, they have only to resort to the Courts.”

Therefore, they can only exercise this right of self-defense in subjective cases, in which they would be lost if they waited for the help of the law. But among societies, the right of self-defense sometimes implies the necessity of attacking, when a people realize that a longer peace would give another state the opportunity to destroy it, and that attack is at that particular time the only means of preventing such destruction. To conclude: “The right of war is therefore derived from necessity and a strict adherence to right. If those who direct the conscience or the advice of princes do not abide by these standards, all is lost; and, if we are to be founded on arbitrary principles of glory, welfare, utility, streams of blood will flood the earth” (Ésprit des lois, X, 2 trad. it., 1965, pp. 247-248).

That to derive the right of war from necessity means nothing more, since necessitas non habet legem, that there is no need for a right to be restored. On the contrary, that in case of necessity it is legitimate to violate the right.

The situation changed with the French Revolution. Until that time, it was normal for wars to be a means of settling disputes (of power or law) between states that recognized and respected each other. The consequence of this was the intangibility of domestic law and of the states themselves. Wars ended with the “handover” of a few provinces or (more often) colonies that left the order essentially unchanged.

This system began to be shaken by the French Revolution: with the La Révellière-Lépeaux decree of the Convention on the Export of Revolutionary Principles, the “indifference” of the events of war, to the internal order of the states involved, began to be shaken. Likewise, respect for the existence of states, which, in the revolutionary and Napoleonic periods took the form of the creation of entirely new states (the sister-republics and then the states of the Napoleonic system), politically homogeneous with the victor; something that positively undermines the “constituent” and original right to form a community. Kant wrote that against the unjust enemy, the victors cannot go “so far as to divide among themselves the territory of that state and make, as it were, a state disappear from the earth; for that would be a real injustice to the people who cannot lose their original right to form a community” (I. Kant, Methaphisik der Sitten § 61). And what it says for the disappearance of states also applies to the creation of new ones by the victor. What is equally interesting is that with the formula of “guerre aux chateaux, paix aux chaumiéres” began and legitimized the exportation of abstractly formulated principles, foreign to the communities that had to forcibly import them and often generating a “new” form of warfare—the partisan (modern) one, in which the “importing” community, through the guerrilla movement, progressively assumes the character of the enemy (and belligerent subject), as a people in arms. The most radical formulations of which are that of Mao-Tse-Dong, and the related practice is that of the anticolonial wars of the 20th century.

The conclusion of World War II confirmed this in an entirely different context. Early on, in the Atlantic Charter, it was written that the governments of the United States and the United Kingdom declared at that time that they “respect the right that all peoples have to choose the form of government under which they ask to live, and desire that sovereign rights and the free exercise of government be restored to those from whom it has been forcibly taken away,” as confirmed at Yalta, “for every liberated state in Europe, to every former European satellite state of the Axis.” That is, even if someone had not expressed the intention.

The implementation practice of this declaration was, as is well known, that each of the liberated people gave themselves the form of constitution corresponding to the color of the uniforms of the liberators (occupiers).

Constituent power, as later explicitly stated for sovereignty, was (to say the least) limited by it. And one has to wonder, at this point, whether to limit powers that are in themselves unlimited (such as, precisely, constituent power and sovereignty) is not to deny them at the very root, as implied in the doctrine of the modern state from Sieyès to Victor Emmanuel Orlando.

As for International Criminal Tribunals, institutions popularized in the last century for the purpose of judging the vanquished enemy (by the victors), these were completely unknown, because they were rejected by the jus publicum europaeum, in which the principle that par in parem non habet jurisdictionem was in force. Hence, between sovereign states, one could not judge the other (and the whole was true, both for the “apex” bodies and for the others). What is more, Kant considered connatural, in every peace treaty, the “amnesty clause” (reciprocal) between the contracting parties. What is most striking about this practice (established for centuries) is its realism that adapted it far better than contemporary pan-jurisdictionalism to the concrete order of communities endowed with equal rights and dignity. Firstly, because it raises the problem of justice (and law) in concreto: the activity of the judge is not a pure position of norms, but the application of norms to a concrete fact; even just and agreed upon norms, if applied selectively, or by an unbiased judge, or resulting in unenforceable judgments, do not possess the characteristics commonly attributed to justice, nor do they have the real utility of justice.

Now, common connotations of these Tribunals are (always) that the accused coincides with the vanquished; (very often) that the judges are the victors; that for practical purposes (i.e., to conform the new order to the factual (and power) situation created as a result of the war, the decisions of the Tribunals have no bearing. The prevailing function is liturgical: to clothe with the solemn robes of justice what was decided by war, morally disqualifying the vanquished enemy. They are in essence the auto-da-fés of globalization. But that the need to be resolved has already been resolved by war, the outcome of which is really “conformative” of order, and that the Tribunal’s judgment adds or detracts nothing to this is self-evident. Unlike that of a “domestic” judge whose decision is essential to the rights (and life) of the adjudicator.

Common notion of these two “innovations” is mostly believed to be the “democratic” character that the state and modern warfare have acquired in the last two centuries. Hence democracy, deemed a valuable asset by those peoples who have struggled to acquire it, would be a gift—just as important—to those who never dreamed of it. But, most likely, they did not do so because they did not judge it so valuable as to be worth a war or a revolution. Moreover, and even more, “export” wars and international tribunals are linked to an aspiration (illusion) for peace. It is considered better to have democratic governments in power in other countries because they are judged to be less prone to war; and Tribunals would be the means of preserving peace by punishing those who violate it. But as to the former, history shows that democracies are no less warmongers than other forms of state; indeed, in fact, they are, as to the intensity of war, more so. Already in describing the characters of the Athenian one, Pericles, in the speech reported by Thucydides (Peloponnesian War, II, 35-47), treads, as it were, on its warlike exploits (and virtues). Even more, in modern times, democracy has (mostly) been combined with levée en masse and the intensification of hostility.

But if still for democracy, there is hope that the “modern” aspect of it will prevail (according to Benjamin Constant’s well-known distinction) i.e., the liberal element, tolerance, esprit de commerce that in any case conditions the esprit de conquête, for the remedy of the Courts no reasonable hope is in sight. Because in that case it is, in essence, a matter of substituting politics (and the political) for law. An old recipe, which can only work if the court takes on political connotations, i.e., ceases to be a (pure) judicial body and becomes—organizationally and functionally—a political unit or official organ thereof; that is, capable of making use of force (thus with an appropriate organization), and thus be “power” in the Weberian sense; that is, capable of enforcing—concretely—its commands. Those who believe this believe they have invented politics without (the means of) force. A Prince (all coup and no) Lion. A subject who has not yet appeared in history, and who, being contrary to a realistic conception of man, it does not seem possible will ever appear there. Not least because if the Court makes use of the force of states, it is this, and not the judgment, that will determine the real relationship between international justice and the executing state (or states)—since the execution of judgments is the decisive fact, it will be the ability or willingness to do so that will determine the possibility of what really matters; that the decision be observed and move from normative imagination to concrete order, conforming it.

Moreover, the rationalism underlying the doctrine of the modern state has constructed as its “User’s Manual” the Reason of State. “Reason of State” was based on—and was one of the consequences of—both secularization, configured (also) as separation/limitation between temporal and spiritual power, and the autonomy of the political, its extraneousness-indifference to other spheres of human experience. Also determined by the latter was the specific purpose of the policy: the protection, security and well-being of the community of reference, with religious or moral objectives being excluded—or taking a back seat. If a pope in the Middle Ages could proclaim a crusade, the same could not be done by an absolute monarch of the modern age, whose specific function is the one mentioned above, and not to promote the diffusion of a faith or a morality. Different, but only in part, for the right (or rights): in that case the protection of those, if corresponding to an interest of the state is the task of the state. However, according to the doctrine of jus publicum europaeum, by right in such cases is meant the right pertaining to the state and its subjects; on the other hand, it is excluded that it is justa causa belli to protect rights that do not belong to one’s own state or subjects. Which in “wars for democracy” is sacrificed to an overbearing altruism, and whose probable (and visible) effect is to multiply (the justae causae) of conflicts.

(E.g. see, Suarez, De Charitate-De Bello, section IV: “Unde, quod quidam aiunt, supremos reges habere potestatem ad vindicandas iniurias totius orbis, est omnino falsum, et confundit omnem ordinem, et distinctionem iurisdictionum: talis enim potestas, neque a Deo data est, neque ex ratione colligitur;” also see, Bellarmino, Scritti politici, Bologna 1950, p. 260).

Just what the rationality of those jurist-theologians of the Counter-Reformation sought to avoid.

In this sense, this conception was in accordance with the theory of Reason of State, which is not a legal conception (although it has great legal implications) in the sense that it is not based on the concept of law, but rather on the concept of interest: it is the task of the state to protect the (general public) interest of the political community (salus rei publicae suprema lex). What is in accordance with that is lawful and should be done. By contrast, in the case of “democratic wars,” the supreme lex of the state’s interest ends up, precisely in situations of exception, in the background; and in the foreground is placed instead an abstract justice, promoting rights of which it is not clear whether and how much the “protected” aspire to enjoy (and how much they want to sacrifice for those). The purpose of politics and the state is no longer primarily that of the common good of the state and the community, but the affirmation-protection of (abstract) rights or a political regime.

True, state interest and defense of liberal democracies can coincide, as in Roosevelt’s aid to Britain during World War II, even before the U.S. entered the war; but the fact that the ideological motive is externalized and that of power concealed, confirms, and constitutes a sui generis application, of the Paretian theory of residues and derivations, as of the oblivion of the lesson of Thucydides (the well-known ambassadorship of the Athenians to the people of Melos) that the first determinant of political action is (the defense, preservation, and enhancement of ) power.

(The President’s well-known phrase that the U.S. would be the “arsenal of democracies” did not express the fact that the U.S. interest was to help Britain and contain Germany and Japan, even though the political regimes of the three powers were not that).

The proof was seen, repeatedly, during the Cold War, in which very often the U.S. left alone and even supported and had for allies political regimes that in matters of democracy had credentials no better than those of Soviet regimes, i.e., real enemies.

Politically correct choice as much as ideologically contradictory.

In fact, the very examples given above demonstrate the essentiality of the correct perception of the enemy. If the enemy is perceived as such because it has a different order, with a different political regime or other values of reference, since politics (and the international order) is a pluriverse of different human communities, each people, which in itself is recognized as having the right to give itself the order it prefers, becomes, by virtue only of the magnitude of the differences, an enemy. It becomes such because its mode of political and social existence is not homogeneous with that of the “dominant” power (or powers).

It is an enemy not because of the actions done (to the limit that it can do) but only because it exists in a certain way. In this case, “wars for democracy” easily become the means of promoting political homogenization, which in turn may lead not so much to (political) globalization but to the construction of a new political entity, imperial and non-state, with rules, forms, and types of behavior that we do not yet know, but of which something is glimpsed. One glimpses in particular the (partial) loss of the impenetrability of the state, whereby its borders marked the boundary between internal and external, between domestic and international order.

On the other hand, such a criterion in choosing the enemy leads to contradicting the first rule of political action, which is to reduce the number of possible enemies. Expressed in history in so many ways, both as a rule for domestic and international politics—from the political practice of the Roman Senate, whose constant maxim was to divide peoples (Montesquieu, Considérations sur les causes de la grandeur des Romains e de leur décadence, ch. VI), who were potentially enemies (divide and rule), to the “never war on two fronts” precept of German strategy in the last century, twice violated, with the results we know. If the real enemy (i.e., one who is such by actions and contrasts of power and interests) is joined by the one (or ones) who are such by ideal differences, the rule is surely violated.

Thus the “democratic wars” appear as the negation of certain ideas peculiar to the modern state and politics, as delineated from the Renaissance onward, thanks to the peculiar form of political unity of the post-Medieval era and that is the state, but anticipated and nevertheless practiced for millennia.

It is precisely the state that is the first victim of such a shift in perspective. Its salient features: the distinction between internal and external, temporal and spiritual, impenetrability, the monopoly of the political (and of legitimate violence) are to a greater or lesser extent, contradicted by the spread of “wars for democracy.” Consequence of which is the imposition of a political regime, with its institutions and values of reference, of a claim to the permeability of borders, and thus to a limited sovereignty in its own territory in which different (command) powers come to compete. All incompatible with the jus publicum europaeum. Which was constituted on the attempt (successful for centuries) to bring different peoples together. Which was succeeded by the current one of doing so with (relatively and artificially) homogeneous peoples, at the price of increased “supranational” power.

True, democracy is based on a certain rate of homogeneity in the people, but this is a prerequisite, not a consequence of the choice of political regime; and, in any case, here we are dealing with external relations between states, not internal relations between the different components of a community. That is, unless the whole thing is the premise of the establishment of a new imperial political form, in which inter-state relations are replaced by relations within the Empire. In which case the internal/external (and other) logic would have a different meaning, all to be written.

(The last attempt to form a political unity between Muslims and Christians, Turks and Slavs, Protestants and Orthodox was the Union Treaty designed by Gorbachev and was terminated as everyone knows. On this subject we refer to our paper, “Dal comunismo al federalismo,” in L’Opinione (June 1991).

However, given that imperial political forms were (mostly) characterized by the distribution of jus belli among different subjects of political unity, it is all to be seen whether a future of union among (institutionally) homogeneous people is more peaceful than the coexistence among different people on which the jus publicum europaeum was based.

Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.

Featured: Allegory of Law and Violence (Allegory of King Charles I of England), by Jan Brueghel the Younger; painted ca. 1666-1669.