Legal realism and human rights

This essay uses Schmitt's work to cast new light on the relevance of the American legal tradition known as ‘legal realism’ for the history and analysis of human rights. It does so by exploring several of Schmitt's most famous criticisms of international law and human rights, and then suggests how they might correspond with a widespread critical legal tradition in the 1920s and 1930s. This essay describes in detail two fundamental features of this tradition: historicism and realism. It concludes by suggesting that a return to some of these earlier law writers and texts might be a more substantive way to develop a constructive critical position in the fields of human rights and international law than an overreliance on the politically provocative (and problematic) rhetorical flourishes of Carl Schmitt.     

‘Iustitiam non includo’: Carl Schmitt, Hugo Grotius and the Ius Publicum Europaeum

Through a discussion of Hugo Grotius’ conception of just war, this essay shows that within his critique of liberalism, Schmitt clashed with the very intellectual tradition he claimed to represent. Both historically and philosophically Schmitt's concept of the Ius Publicum Europaeum was a mirage. Indeed, his concept of the political was a rejection of the moral and civil philosophy that sees politics as the world of active citizens and commonwealths arguing with each other about fundamental questions of justice and equity.     

‘Human and nothing but human’: How Schmittian is Hannah Arendt's critique of human rights and international law?

Recently legal theorists have pointed out that whereas members of their profession often assume that post-war scholarship had broken with the past completely, political theorists have paid far more attention to questions of influences and continuities in their discipline. This also holds regarding the legacy of Carl Schmitt whose case both as a jurist and political writer is particularly pressing not only for intellectual historians, but also for discussants across a broad range of fields in law and political science. It is in this context that my paper examines Hannah Arendt's immediate critique of the Declaration of Universal Human Rights in 1948. I will juxtapose Schmitt's and Arendt's critiques, arguing that these display more than superficial parallels and yet conflict in their basic contentions. I also hope to show that discussing Arendt's critique in conjunction with Schmitt's allows us to pose some more general questions about the relevance and meaning of intellectual backgrounds and influences.     

Hobbes and Schmitt

Many commentators are unconvinced by Carl Schmitt's interpretation of Hobbes's political theory which, to their minds, remakes Hobbes in Schmitt's own authoritarian image. The argument advanced in this essay comprises three claims about Hobbes and Schmitt and the ways in which they are construed. The first claim is that certain commentators are bewitched by a picture of authority which biases their own claims about Hobbes, perhaps in ways that they may not fully appreciate. The second claim relates to Hobbes's individualism. On Schmitt's account, it was this individualism that opened the barely visible crack in the theoretical justification of the state through which it was worm-eaten by liberalism. This essay argues that Hobbes's individualism is not what Schmitt or his critics take it to be. The individualism that figures in Hobbes's discussions of covenant and conscience, pace Schmitt, is an illusion, albeit one that lies at the very heart of his conception of the state and animates his understanding of the relationship between protection and obedience that sustains it. The essay concludes with some remarks about the wider implications of the argument it advances.     

Post-Enlightenment sources of political authority: Biblical atheism, political theology and the Schmitt-Strauss exchange

This essay reevaluates the Weimar writings of Carl Schmitt and Leo Strauss, specifically, their intellectual efforts to replace the political authority of Kantian liberalism with, respectively, a ‘political theology’ and ‘Biblical atheism’ derived from the thought of early-modern state theorists like Hobbes and Spinoza. Schmitt and Strauss each insisted that post-Kantian Enlightenment rationality was unraveling into a way of thinking that violently rejected ‘form’ of any kind, fixated myopically on material things and lacked any conception of the external constraints that invariably condition the possibilities of philosophy, morality and politics. They considered Kantian reason and liberal politics to pose serious threats to ‘genuine’ expressions of rationality and as dangerous obfuscations of the necessity of political order—of the brute fact that human beings stand in need of ‘being ruled,’ as such.     

On political theology: A controversy between Hans Kelsen and Carl Schmitt

This article pays special attention to the large number of references to political theology by Hans Kelsen and Carl Schmitt, particularly in the interwar period, and seeks to interpret these references in a new way. While Schmitt's analogies between God and state are to be expected considering his strong Catholic roots, such comparisons are much more surprising for a positivist like Hans Kelsen, who always tried to relieve state and law from transcendental elements. The article concludes that, far from being marginal in the doctrinal dispute between Schmitt and Kelsen, references to political theology express and summarize their major controversy about the relation between state and law, as well as about the sources of the state's unity. The heart of the disputatio between the two jurists concerned the ability of the political power to emancipate itself from the juridical order. The ‘legal miracle’—in this context meaning the occasional autonomization of the state from law—was for Schmitt the manifestation of sovereign power. However, for Kelsen it represented the negation of the state's essence, whose actions must be determined only by the legal order.     

Criticism of Henry II's expedition to Ireland in William of Canterbury's miracles of St Thomas Becket

The long collection of miracles of St Thomas Becket written by William, a monk of Christ Church, Canterbury, between 1172 and c.1179 is, like many other examples of the genre, a rich source for attitudes towards sanctity, relics, and pilgrimage. A far more unusual feature of William's text is the author's criticism of the recent English presence in Ireland. William's comments on this score amount to a loaded stretching of the normal parameters of his textual medium, resulting in an evaluative engagement with current affairs of the sort that we would more normally associate with reflective forms of history-writing. William's criticism focused in particular upon the expedition to Ireland undertaken by King Henry II (October 1171–April 1172), inverting the very rhetoric that Henry had used to justify his Irish adventure. William was not himself Irish, as has sometimes been supposed, nor was he registering his institution's frustrations about its exclusion from the new ecclesiastical order in Ireland, as might be implied by the traditional but questionable ‘Canterbury plot’ interpretation of the much-debated papal bull Laudabiliter. Instead, William was skilfully engaging with current debates about the rectitude of Henry II's Irish expedition, and more broadly contesting emerging prejudices about England's ‘uncultivated’ neighbours, in order to effect a subtle critique of the king's involvement in Becket's murder.     

Carl Schmitt, Reinhart Koselleck and the foundations of history and politics

This article explores the intellectual relations between Carl Schmitt and the German historian Reinhart Koselleck with a focus on the inspiration that Koselleck found in Schmitt's work in the early 1950s. The article goes beyond earlier contributions in the field by illuminating how the most important discursive features that Koselleck drew from Schmitt were utilized toward a very independent intellectual project. This project concerned an attempt to revise modern political thought by means of outlining a new concept of history. Koselleck's concept of history was to depart from all utopian notions of history as a singular, unified and goal-directed process. Instead, it aimed to outline certain fundamental existential structures of the human condition and to take account of the social relations existing among human beings in order to understand (historically) and contain (politically) the potential conflict in human societies. Hence Koselleck believed that his new concept of history would lead to a more responsible foundation of political order and decision making. Following an analysis of how Koselleck developed his project in a dialogue with the work of Schmitt and a number of other scholars, first of all Friedrich Meinecke and Martin Heidegger, the article presents a brief perspective on how his new concept of history was received in the 1950s and on how it came to provide his work with a certain analytical, thematic and argumentative unity.     

‘Taken captive by the mystery of the Great River’: towards an historical geography of British geography and Atlantic slavery

By examining the case of James MacQueen (1778–1870), this paper initiates a research agenda that contributes to what David N. Livingstone has argued remains the most pressing task for historians of geography: to write ‘the historical geography of geography’. Born in Scotland in 1778, MacQueen was one of the many ‘arm-chair’ geographers whose efforts at synthesising contemporary and historical sources were a significant feature of the encounter between Europe and the rest of the world. Indeed, although he never visited Africa, his speculations about the course and termination of the River Niger turned out to be broadly correct. What makes MacQueen a particularly significant figure was the original source of his theory: enslaved Africans in a Caribbean plantation-colony. In this light, a remark that MacQueen's imagination was ‘taken captive by the mystery of the Great River’ carries a dark double-meaning, because ‘captive’ knowledge was the very source of MacQueen's interest in African geography. Beginning with MacQueen's time in Grenada, the paper explores a series of personal relations, textual traces and West African ethno-histories to reveal how his geographical knowledge and expertise were bound up with Atlantic slavery. This shows not only how the colonial economy, centred on the Caribbean, underwrote the production of geographical knowledge about Africa, but also how British geographical discourse and practice might be probed for traces of Atlantic slavery and enslaved African lives. More generally, the case of James MacQueen illuminates a broader field of relationships between Atlantic slavery, West African exploration, and the development of modern British geography in the late eighteenth and first half of the nineteenth centuries. Examining these relationships is key to writing a ‘historical geography of British geography and Atlantic slavery’ and contributes to postcolonial histories of the discipline by revealing the tangled relationships that bound geography and slavery, knowledge and subjugation, that which ‘captivates’ and those held ‘captive’.     

First contact: colonial European preconceptions of tropical Queensland rainforest and its people

Northerly expansion of European settlement after Queensland became a colony in 1859 carried with it an inherited interpretation of rainforest ‘scrub’ or ‘jungle’ as nuisance vegetation to be removed because it harboured ‘miasmatic’ disease vapours and covered good agricultural soil. Similar rejection of rainforest dwellers as uncivilized ‘myalls’ reflected a wider ‘dispersal’ policy against all indigenous occupants of land claimed under British colonial entitlement. In terms of performance theory, this paper illustrates the influence of common conceptions held during initial European contact with an environment so different and so remote that for decades it was avoided. Eventually, land pacification with gun and axe brought this last Aboriginal refuge with its diminutive people into the framework of an exploitative economy.     

1. CARL SCHMITT BETWEEN HISTORY AND MYTH

Carl Schmitt's work defines the history and theory of political myth. But analyzing it represents a challenge to historians and theorists alike. For many historians, Schmitt should be analyzed in his own context, whereas theorists study his writings without enough consideration of the specific context in which he conceived his texts. In this essay, I argue that Schmitt not only contributed to the fascist glorification of the mythical and its novel enactment as the driving force of fascism, but he also represents one of the most intriguing and influential interpreters of the political theory of myth, challenging in turn theories of democracy and the role of reason and secularism in historiography.     

Popular culture in seventeenth-century England

Carl Schmitt emphatically rejected intermediate formations between peace and war. Analysing Schmitt's oscillation between the domestic and the international, the article suggests that the notion of ‘intermediate state’ provides a vital route to the core of Schmitt's political theory. The concept emerges in Schmitt's analysis of the Rhineland crisis, recurs in his vehement critique of Weimar pluralism, and, finally, reappears in his theory of modern war from the Third Reich to the Cold War. ‘Intermediate state’ has both qualitative and temporal aspects; it connotes not only categorical confusion and impurity but also instability and limited duration. Despite his criticism, Schmitt himself utilised the ambiguity, polysemy, and normative ambivalence of the intermediate state in his argumentation, finally giving it an open theological reinterpretation in his later work. Schmitt's theory of political conflict, consequently, is problematically bound to the vague intermediate state of perpetual conflict that he sought to avoid, and to the metaphorical aspects of the notion of battle that he explicitly rejected.     

Thomas Fitzherbert's reason of state

Thomas Fitzherbert's two-part Treatise concerning Policy and Religion (1606, 1610) was a rebuttal of unidentified Machiavellians, statists or politikes and their politics and policies. The work was apparently still well-regarded in the following century. Fitzherbert's objections to ‘statism’ were principally religious, and he himself thought the providentialist case against it unanswerable. But for those who did not share his convictions, he attempted to undermine Machiavellism on its own ground. Like both ‘Machiavellians’ and their opponents, he argued by inference from historical examples, but with a particularly copious knowledge of historians ancient, medieval and modern to draw on. Equally, however, he deployed the principles of speculative (principally Aristotelian) ‘political science,’ as well as theology and jurisprudence, to demonstrate that the kind of knowledge that Machiavellians required to guarantee the success of their ‘reason of state’ policies was simply unobtainable. A particularly striking strategy (perhaps modelled on that of his mentor and friend Robert Persons) was Fitzherbert's attempt to demonstrate, on the Machiavellians’ own premises, that they advocated policies which were very likely to fail, and would be visited with divine punishments sooner as well as later, whereas policies that were compatible with faith and morals were also much more likely to succeed, even judged in purely human and ‘statist’ terms.     

Montesquieu's anti-Machiavellian Machiavellianism

Charles-Louis de Secondat, baron de La Brède et de Montesquieu, mentions Niccolò Machiavelli by name in his extant works just a handful of times. That, however, he read him carefully and thoroughly time and again there can be no doubt, and it is also clear that he couches his argument both in his Considerations on the Causes of the Greatness of the Romans and their Decline and in his Spirit of Laws as an appropriation and critique of the work of the predecessor whom he termed ‘this great man’. In this paper I explore the manner in which the Frenchman redeployed the arguments advanced by the Florentine for the purpose of refuting the latter's conclusions.     

‘Iustitiam non includo’: Carl Schmitt,Hugo Grotius and the Ius Publicum Europaeum

Through a discussion of Hugo Grotius’ conception of just war, this essay shows that within his critique of liberalism, Schmitt clashed with the very intellectual tradition he claimed to represent. Both historically and philosophically Schmitt's concept of the Ius Publicum Europaeum was a mirage. Indeed, his concept of the political was a rejection of the moral and civil philosophy that sees politics as the world of active citizens and commonwealths arguing with each other about fundamental questions of justice and equity.     

‘Eternity's commissioner’: Thomas Carlyle,the Great Irish Famine and the geopolitics of travel

In 1846 and again in 1849 the Scottish born historian and social critic, Thomas Carlyle, travelled Ireland accompanied by the Irish nationalist Charles Gavan Duffy. Significantly, these dates profile the beginning and the deadly culmination of the Great Irish Famine. It is somewhat surprising, therefore, that Carlyle's published memoirs of his travels and his various pamphlets on Ireland have merited little scholarly attention. As well as addressing this oversight this paper attempts to place Carlyle's travel writing within the ideological contours of the Great Famine and, to this end, I outline a specific example of what I call the ‘geopolitics of travel’. Principally this paper offers an empirical and theoretical analysis of how powerful political rationalities are produced at the ‘contact zone’ of two cultures. I consider Carlyle's shift from being a critic of laissez-faire to being a defender of property and argue that this parallels his propensity to qualify what amounts to human value through environmental and racial readings of the Famine. Finally, I briefly suggest that such calculations take us into the domain of ‘governmentality’ and capitalist political economy, perhaps the two most powerful forces directing the course of the Irish Famine.     

Contextualist dilemmas: Methodology of the history of political theory in two stages

This article traces the development of contextualist methodology in the study of the history of political thought/political theory after WWII. It argues that the so-called ‘Cambridge School’, often regarded as the core of historicist contextualism, arose during the 1950s and 1960s in response to dilemmas that were largely internal to (the history of) political philosophy as it was practiced in Britain in an academic culture dominated by analytic philosophy. This first stage of contextualist theorizing, usually associated with Laslett, Skinner and Pocock, was highly influential, but it also contributed to the formation of a new set of problems. These were connected to the diversification and internationalization of the historicist contextualist study of political thought after the 1960s. The ‘second stage’ of contextualist theorizing was shaped by post-analytic and post-modernist impulses among others. Because of the variety of philosophical and conceptual commitments on notions central to the field such as ‘political thinking’, ‘politics’, or ‘power’, it is unlikely that the present historicist contextualist approaches would come to share a unified methodology or theory of historical interpretation.     

The uses and abuses of ‘secular religion’: Jules Monnerot's path from communism to fascism

From starting his intellectual career as a surrealist, communist and co-founder of the Collège de Sociologie in 1937, Jules Monnerot (1911–95) ended it as a candidate for the Front National in 1989. In this article I offer an explanation for the unexpected trajectory of this thinker whose work is little known in the English-speaking world. Without overlooking the idea that the infamous College encouraged such tendencies, I argue that the notion of ‘secular religion’, as Monnerot developed it in his Sociology of Communism (1949), goes some way to explain his gradual radicalization from Cold Warrior to fascist, a path that otherwise seems unlikely for a French intellectual after World War II. In order to emphasize the unusualness of Monnerot's case, I contrast it with that of his erstwhile collaborator, Georges Bataille. I show that accusations of fascism often levelled against Bataille should be more accurately directed at Monnerot, indeed that the fascism inherent within the College of Sociology was brought out not by Bataille but by Monnerot. Monnerot's case is unsettling first because his definition of ‘secular religion’ contributed to his pro-fascist stance; and second, because it forces us to rethink what is meant by ‘philosophy after Auschwitz.’ This term usually brings to mind scholars such as T.W. Adorno, Emil Fackenheim or Emmanuel Levinas. Monnerot provides a rare example of a thinker whose fascism only developed after the Holocaust, a shocking response that demands the attention of all those interested in the relationship between religion and politics.