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Carl Schmitt and the Genealogy of Criticism of ‘Just War’
Takeshi GONZA (Hokkaido University, Japan)
IPSA World Congress (Fukuoka, July 11, 2006)
Session : Carl Schmitt’s Significance in the 21st Century
2 Criticism of ‘just war’ by Carl Schmitt in the period between WW and WW
3 Revival of ‘just war’ concept and its criticism by Jurgen Habermas from the Kosovo aerial bombing
to the Iraq War
“In the end, all important issues of the order of international law depend upon the concept of just war.” This proposition which Carl Schmitt stated fifty years ago seems to be confirmed by the terrible inundation with the discourse of ‘just war’ before and after the Iraq War three years ago. It is well-known that the American ‘just war’ theory, e. g. the one of M. Walzer or M. Ignatieff, tends to justify the war waged by the US government as “preemptive self-defense” or a “preventive war” in spite of its manifest violation of international law. On the other hand, we cannot say that the genealogy of European ‘just war’ theory beginning with Carl Schmitt is already correctly understood.
However, in order to reexamine the American-centered perspective from another European angle, it would be informative to trace the European, especially German ‘just war’ theory, back to the historical context of its formation because the argument regarding ‘just war’ was developed historically, mainly as a criticism and not a justification of ‘just war’ in Germany, which had trodden a special path of modernization among European countries but had experienced defeat twice, in WW and WW, in contrast to the United States which has been a victorious country at least three times, inclusive of the Cold War.
At the same time, it would be helpful to reconsider the actual problem of judgment about the justifiability of war according to the recent articles of Jurgen Habermas, a German advocate of discourse-ethics, because the last war has shown us the fact of human fallibility, that a human being is capable of committing errors. However, J. S. Mill has already pointed out that we are able to correct or prevent in advance an error which we can make, only through discussion and experience. In the first case, correcting our possible error through discussion means engaging in a dialogue with our opponent and learning from him. This spiritual attitude to ‘learn from the adversary’ was carried out by Habermas, insofar as he has established his own standpoint by constantly assuming the hard polemic against his opponents. As the following argument of Habermas about the justifiability of war is indeed the product of his hidden polemic against Carl Schmitt, we thus need to train ourselves in arguing through intensive dialogue with the opponents of other standpoints, whether Schmittean or Neo-conservative.
In the second case, correcting our possible error through experience means learning from human experiences which are stored in the history of the human race, insofar as the scope of each individual experience is considerably limited, and drawing valuable lessons from world history that is full of human error. In this sense, as far as we are able to ‘learn from history’, all historical cognitions are cognitions of the present. In order not to repeat any human failure in the judgment of an armed attack, it would be by all means indispensable to look back again upon the 20th century as the ‘century of war and revolution’ and to learn from our disastrous experiences of ‘international civil war’ in the last century.
In this study we will first try to trace C. Schmitt’s criticism of ‘just war’ back to its origin in the period between WW and WW. Secondly we will examine the polemical argument of Habermas with the ‘just war’ concept of C. Schmitt and Neo-conservatives as his opponents.
2 Criticism of ‘just war’ by Carl Schmitt in the period between WW and WW (1) In his famous work “Concept of the Political” (1932), Schmitt pushes his criticism of ‘just war’ in the context of the criticism of the Versailles regime. However, to begin with, we have to consider his criticism of the League of Nations from the standpoint of the sovereign state which he already formulated in his earlier works. In “Central Problem of the League of Nations” (1926) Schmitt tries to answer the central question whether the League of Nations is a real confederation (wirklicher Bund), and to argue about two conditions for the real confederation, i.e. minimal guarantee and homogeneity. The first condition of the guarantee means the guarantee of territorial integrity against violent territorial change in Article 10 of the agreement of the League of Nations, i.e. “guarantee of legitimacy of status quo” in his own words. This article of the agreement attempts to consider the founding period of the League of Nations as a normal situation and to establish the “legalization (Verrechtlichung) of international relations”, while it regards the desire for change of the status quo as a trespasser on peace. Schmitt criticizes such legalization without any possibility of change as the “legalization of spoils of the victor” and “a service to imperialism”. The second condition of homogeneity means the homogeneity of domestic political order, which today means the sharing of “democratic legitimacy” in place of monarchical legitimacy. Schmitt argues that the confederation which has such homogeneity has also the right to intervene in the domestic affairs of other countries in order to release the oppressed people from tyrannical government, e.g. the Soviet Union. He concludes that in the light of these two conditions, whether the League of Nations is a true confederation is not yet clear, and that the League has two different countenances like Janus. One clear thing about Schmitt’s work is that here he takes a rather ambivalent attitude against the League of Nations, probably because of its publication in the year when the defeated country Germany was for the first time permitted into the League of Nations.
On the other hand, in the first version of “Concept of the Political” (1927), Schmitt attempted to apply his decisionist concept of sovereignty externally to international relations, after in “Dictatorship” (1921) and “Political Theology” (1922) he defined the concept of sovereignty which he derived from Commentaire [JAB1] : Did his contemporary experience after the collapse of the German imperial regime and his Catholic thinking model of papal supremacy, first internally as the “decision on the state of emergency”. In you mean “the First Reich”?
1927 Schmitt pointed out the anthropological assumption of political theory that “all true political theories presuppose men as evil”, and that the theological dogma of the original sin of mankind shows it; he drew from this pessimistic premise the inevitable “distinction between friend and enemy” as his criterion of the political. As far as the most extreme consequence resulting from “the grouping of friend and enemy” is exactly war and the state of emergency determines the essence of all things, the sovereign states as the “political unity” have the real possibility to determine their enemy and to combat with it by their own decision, i.e. the belligerent right (jus belli), where the politically existing nation (Volk) should determine the distinction between friend and enemy by itself. According to the pluralistic worldview that the world is composed of antagonistic nation-states, Schmitt expresses his first criticism of ‘just war’. Following Grotius, “justice is incompatible with the concept of war” and “the constructions demanding just war usually again serve a political purpose”.
In the second version of “Concept of the Political” (1932), Schmitt tried to unite this belligerent concept of the political and his criticism of the League of Nations into the ideological criticism of ‘just war’. Schmitt said, when one state fights its political enemy in the name of humanity, it is the war for which a certain state attempts to monopolize universal concepts such as peace, justice, and civilization against its adversary and to identify itself with them. In this sense, humanity as well as its objectification in the League of Nations is “an ideological instrument particularly useful for imperialistic expansion”. Referring to humanity and monopolizing it means a terrible demand to deprive the enemy of all human qualities, to declare him to be below humanity, and so to drive war to extremely inhuman one. As such example which was declared below humanity Schmitt gives ones of “the Indians of North America” and “a nation who cannot pay their debt”, i.e. the German nation after WW. In this context to expose the political abuse of the nonpolitical word ‘humanity’ ideologically, Commentaire [JAB2] : Consi Schmitt concludes that “whoever says humanity will deceive one”.
When he pronounced such criticism of ‘just war’, Germany was not only charged with the der re-writing as it is difficult to responsibility for the war and the huge reparations that went with it, but was also disarmed by the understand.
Treaty of Versailles, and part of its Rheinland and, in 1923, its Ruhr-area fell under Allied occupation, such that it was no longer a sovereign state nor an actor of international law. For Schmitt, such inhuman treatment of the defeated was caused by the demand of the Allies for ‘just war’. This resentment at the unfair judgment by the victor of the Versailles-Treaty is a fundamental motive which urged Schmitt in his criticism of ‘just war’. Then, his criticism of the Versailles regime as “permanent and unlimited economic exploitation of the loser” side by side with the idealism of self-determination and humanity had enough potential to appeal to the contemporary spirit after the world economic crisis.
(2) In “Conversion into the Concept of Discriminating War” (1938), Schmitt developed the historical criticism of ‘just war’ that “justice is especially necessary for the total war” and “today large-scale just war becomes total war of itself” first by dividing the concept of war into the old and new ones. Since the 18th century, each independent power under the concept of the non-discriminating war could determine the justice or injustice of war by itself and combat each other, while the obligation of neutrality was imposed on the non-belligerent power, so that the former war was restricted by its combination with the concept of neutrality. But under the new concept of the discriminating war, a third country is required to determine justice or injustice of war according to the agreement of the League of Nations or the Antiwar Pact and to renounce the duty of neutrality against an unjust offensive power, because its discriminating attitude against the offender is no violation of duty of neutrality. Thus the previous restriction on war is removed and the war between states changes into “the international civil war”.
Next Schmitt expressed a historical cognition that the latter concept of discriminating war, i.e. one of ‘just war’, entered into the annals of international law in April 1917 through the declaration of war by the USA against Germany. He likewise pointed out the revival of the problem of ‘just war’ from medieval scholastic theology. The experience of the world war against Germany showed that “the propaganda of war requires the mobilization of moral forces which is understandable only from the experience of ‘crusade’”. Under this concept of war, the former unified concept of war is divided into the police action on the just side and the criminal action on the unjust side and changes into the one-sided action of sanction und punishment. At the same time its presupposition of internal unity as a nation (Volk) is divided into the government as a war criminal and the innocent people. The punishment on the government which is supposed to be criminal is justified as “humanitarian intervention”, so that the war between states changes into “the international civil war”. Besides, the attempt to introduce this concept of discriminating war through the League of Nations has to suffer from the contradiction between the universalistic claim and its confederative structure, because the demand to renounce the belligerent right within the League cannot reach the other outside it (i.e.
nonmember country), while the universalistic claim to extend the concept of ‘just war’ also to the other is destined for the total worldwide war against the unjust enemy. The League can then function as the instrument to leave “the judgment of justice or injustice of war” to certain forces and to prepare for the total war.
Thus, Schmitt concluded that the participation in WW by the USA evoked the concept of ‘just war’, which is now at the point of provoking a total war again, from beyond the history. In order to estimate the validity of Schmitt’s historical cognition, we need to remember in which times this work was written. His criticism of ‘just war’ was asserted in 1938, when Germany which had withdrawn from the League demanded that Czechoslovakia concede its area with German inhabitants from the ‘humanitarian’ viewpoint while Britain and France took an appeasement policy against it in the conference at Munich. It then had the same political effect as the appeasement policy to avoid the total confrontation with the Axis in fear of ‘the international civil war’. However, in the face of the revealed expansive intention of Nazi Germany, this policy was abandoned a half year later and humanity again entered into a world war a year later.