Acceso usuarios
Giuseppe Foglio
The paper aims to reconstruct the main steps of Carl Schmitt’s thought and life that since the 1940s led the German scholar to shift from constitutional law toward the international law. What happened in the 1930s to determine such a reversal? The central thesis of my contribution is that the focus, even though not the definitive landing of such a theoretical twist is Schmitt’s reflection on institutionalism (On the Three Types of Juristic Thought). Mobilized by the rise of the National Socialism, Schmitt more than abandoning his theory of sovereignty, seems to be looking for a concrete historical matter on which to base the political order arising from the decision on the state of exception. Already in the works of the 1920s, it was clear that Schmitt intended to give legal dignity to the exception, rather than to consider the law as mere fait accompli. For Schmitt, the main task of a jurist is to harmonize politics and law, fatally exposing himself to the “danger of the Political”.
In this way, his Dezisionismus aims not only to stand up to the advance of revolutionary socialism. With a two-time strategy, which reflects that of the bourgeois and proletarian revolutions, it seeks to establish a concrete order combining state political unity and people’s identity. Nazi Germany in the 1930s will offer the perfect tragic scene to it. At that point, Schmitt, confusing fear, personal narcissism, and the historical mission of law, will elaborate his theory of the konkrete Ordnung in constitutional law and his theory of Grossraum in international law, placing himself and the legal science as an ambiguous katéchon to Hitler’s insane will to power.
Since then, his exilic condition pushed Schmitt to complete his theoretical path toward international law. Enriched by pluralism and institutionalism, Schmitt’s idea of sovereignty finally found substance in that of nomos of the earth. Inspired by the archaic etymology of nomos as “division and distribution of land”, Schmitt interprets it as the original right of territorial occupations, from which European political order developed, based on the law of war (jus gentium). At the same time, the nomos itself is a force that brakes the sovereign power, preventing it to upset European and global balance. Modern Europe, based on jus publicum europaeum represents the political model to which, prophetically, Schmitt is looking, in order to advocate a future European role as braking force of the globalization, able to shape a multipolar world order.
