Carl Schmitt and the Sacred Origins of Law

Mika Ojakangas
Each of the elements has thus found its partisan, except earth—
earth has found no supporter.
Aristotle, De Anima

During the formative years of National Socialist Germany, Carl Schmitt

abandoned the decisionism he had been developing since the beginning
of his career and turned toward institutionalism, known also as “con-
crete order thinking” and the philosophy of nomos. Schmitt had outlined
his decisionist theory as a critical response to the normativist approach
in legal positivism represented especially by Hans Kelsen. In Schmitt’s
understanding, normativism identified law (Recht) with legal rules and
norms, dismissing the existential dimension of personal judgment and
decision in the theory of law. Schmitt’s decisionism meant a revival of
this existential dimension: “Law is concretized only in a judgement, not in
a norm.” According to Schmitt, the whole legal order is based on such a
judgment—namely, on the sovereign decision. The event of decision is the
ultimate origin and the absolute foundation of any legal order and politi-
cal entity. In itself, however, the decision has no origin or foundation but
springs out of a “normative nothingness and from a concrete disorder.”
The decision is a “founding rupture” of all law and order.

.  Hereafter, I translate Recht (French droit) as “law” and Gesetz (loi) as “statute.”
.  Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen (Munich: C.
H. Beck, 1914), p. 79.
.  Carl Schmitt, Über die Drei Arten des rechtswissenschaftlichen Denkens, 2nd ed.
(Berlin: Duncker & Humblot, 1993), p. 24.
.  On the “founding rupture” as the metaphysical core of Schmitt’s legal and political

34
Telos 147 (Summer 2009): 34–54.
doi:10.3817/0609147034
www.telospress.com
 Carl Schmitt and the Sacred Origins Of Law   35

Schmitt abandoned this decisionist theory of law when Adolf Hitler

came to power. One reason for this move was the status of the Führer in
the Nazi ideology as Schmitt understood it. The Führer’s decisions do
not emanate from “normative nothingness” but are inseparable from the
essence of the German people. They do not float “freely in the air,” as
Schmitt described the sovereign decision in his self-critical exposition of
decisionism in 1934. Rather, they are expressions of a pre-existing order
of a community. It is this pre-existing order and its normative power that
Schmitt identifies with law in his late work. In Schmitt’s first book after
the turn, published in 1933, this pre-existing order was expressed in terms
of ethnicity and race. In his later works, however, it was increasingly
presented in spatial terms, which means that in the ideological horizon of
“blood and soil,” it was apparently the soil (Boden) that fascinated Schmitt
more. Indeed, in his works since late 1930s, Schmitt time and again
stresses that the true law has an intimate relationship with soil (Boden) and
land (Land). It is always bound to the earth (Erde). To such a law Schmitt
gave the ancient Greek name nomos, which he believed was originally
bound to the earth and, more specifically, to a concrete enclosed location
(Ortung) on the surface of the earth. Yet although a number of books and
articles have been written on this theme in Schmitt’s work, the exact theme
of nomos as the authentic form of law (Recht) has remained relatively
unexplored, especially in the literature available in English. What is the
meaning of Schmitt’s nomos? This is the question of this article.

theory, see Mika Ojakangas, A Philosophy of Concrete Life: Carl Schmitt and the Political
Thought of Late Modernity (Bern: Peter Lang, 2006).
.  Schmitt, Über die Drei Arten, p. 23.
.  Carl Schmitt, State, Movement, People, trans. Simona Draghici (Corvallis, OR:
Plutarch Press, 2001).
.  There are of course exceptions to this rule. See, e.g., Gopal Balakrishnan, The
Enemy: An Intellectual Portrait of Carl Schmitt (London: Verso, 2000), pp. 191–200; G. L.
Ulmen, “The Concept of ‘Nomos’: Introduction to Schmitt’s ‘Appropriation/Distribution/
Production’,” Telos 95 (Spring 1995): 39–52; Wolfgang Palaver, “Carl Schmitt on Nomos
and Space,” Telos 106 (Winter 1996): 105–27; Bruno Bosteels, “The Obscure Subject:
Sovereignty and Geopolitics in Carl Schmitt’s The Nomos of the Earth,” South Atlantic
Quarterly 104 (2005): 295–305; Carlos A. Otero, “From the Nomos to the Meridian,”
South Atlantic Quarterly 104 (2005): 381–88; Mitchell Dean, “Nomos: Word and Myth,”
in Louiza Odysseos and Fabio Petito, eds., The International Political Thought of Carl
Schmitt: Terror Liberal War and the Crisis of Global Order (London: Routledge, 2007),
pp. 242–58; Panu Minkkinen, “Hostility and Hospitality,” No Foundations: Journal of
Extreme Legal Positivism 4 (October 2007): 53–60.
36  Mika Ojakangas

Mother Earth
According to Schmitt, nomos is not something that we create by will (deci-
sionism) or by reason (normativism) but something that grows naturally.
The measures given by nomos are natural measures. This is not to say,
however, that Schmitt’s turn would have been a turn to Scholasticism and,
hence, to traditional Catholicism. The natural measures that Schmitt has
in mind are not measures of a divinely ruled cosmos, in which the human
being participates through the highest part of his reason. Schmitt’s natu-
ral measures are telluric rather than cosmological. They do not descend
from heaven, but ascend from the earth. For Schmitt, this is related to
the nature of man as a terrestrial being (Landwesen). In the beginning of
Land and Sea (1942), Schmitt writes: “Man lives, moves and walks on
the firmly grounded Earth. It is his standpoint and his base [Boden]. He
derives his point of view from it, which is also to say that his impressions
are determined by it and his world outlook is conditioned by it. Earth-
born, developing on it, man derives not only his horizon from it, but also
his poise, his movements, his figure and his height.” Yet man is not a ter-
restrial among terrestrials for Schmitt. In The Nomos of the Earth (1950),
he explains what kind of terrestrial man is: he is a cultivating terrestrial.
It is through cultivation of land that man sows the seeds of the fundamen-
tal measures of his collective existence, the just measures of his order
and orientation—that is to say, his nomos: “Every ontonomous [onto-
nome] and ontologically just judgement derives from the land.” All in all,
Schmitt argues, there is no law without a connection to the earth: “Law is
bound to the earth [erdhaft] and related to the earth.”10 The earth is the ori-
gin of all justice (Gerechtigkeit). It is itself “infinitely just” (allgerecht).11
This means that everything unrelated to the earth, everything uprooted
and deterritorialized, is unjust. The name Schmitt gives to this unjustness
is nihilism. To the extent that nomos signifies, according to Schmitt, the
unity of order (Ordnung) and concrete location (Ortung), nihilism desig-
nates order that is fundamentally and definitively separated from such a

.  Carl Schmitt, Land and Sea, trans. Simona Draghici (Washington, DC: Plutarch
Press, 1997), p. 1.
.  Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum
Europaeum, trans. G. L. Ulmen (New York: Telos Press, 2003), p. 45.
10.  Ibid., p. 42.
11.  Ibid.
 Carl Schmitt and the Sacred Origins Of Law   37

location.12 Rather than anarchy, such separation entails meaninglessness

and disorientation (Entortung).
Yet although it is through cultivation that the fundamental measures
of human orientation become apparent, Schmitt argues that the cultivating
man does not create these measures. Rather, they are the outgrowth of a
fruitful collaboration between mother earth and man. Through this col-
laboration the earth offers man the just measures of order and orientation.
First, it offers them to man as a reward for working the land: “The fertile
earth contains within herself, within the womb of her fecundity, an inner
measure, because human toil and trouble, human planting and cultivation
of the fruitful earth, is rewarded justly by her with growth and harvest.”13
Second, the earth offers its measures by manifesting them upon itself in
the form of fixed boundaries: “Soil that is cleared and worked by human
hands manifests firm lines, whereby definite divisions become apparent.
Through the demarcation of fields, pastures, and forests, there lines are
engraved and embedded. Through crop rotation and fallowing, they are
even planted and nurtured. In these lines, the standards and rules of cul-
tivation of the earth become discernible.”14 And third, the earth offers its
measures to man by sustaining them above itself as a public sign of order:
“The solid ground of the earth is delineated by fences, enclosures, bound-
aries, walls, houses, and other constructs. Then, the orders and orientation
of human social life become apparent. Then, obviously, families, clans,
tribes, estates, forms of ownership and human proximity, also forms of
power and domination, become visible.”15
Of importance here is that the earth is capable of offering the measures
of order and orientation to man because it has the inner capacity to be
demarcated. It is precisely the demarcation of lines on the soil that marks
the point where the authentic law emerges. Therefore, law can never be
universal. It exists only in a particular place and consists of what is within
its own boundaries: “True and authentic fundamental order [nomos] is
based, at its essential core, on certain spatial limits and delimitations,
on certain measures and a certain partitioning up of the earth.”16 For this

12.  Ibid., p. 66.

13.  Ibid., p. 42.
14.  Ibid.
15.  Ibid.
16.  Schmitt, Land and Sea, pp. 37–38 (translation modified).
38  Mika Ojakangas

reason, Schmitt argues, the sea has no law.17 The sea has no law because
it has no “character” in the original sense of the Greek word, charassein:
to engrave, to scratch, to imprint.18 Although the riches of the sea (fishes,
pearls, and other things) are won by the hard work of human labor, the sea
does not give them off according to an inner measure of sowing and reap-
ing. Moreover, no lasting lines can be engraved onto the surface of the sea:
“Ships that sail across the sea leave no trace.”19 Finally, the sea cannot be
delineated by fences, enclosures, walls, and houses. Therefore, the mea-
sures of order and orientation of human life do not show themselves on
the open sea: “On the waves, there is nothing but waves.” On the sea there
is no law but mere disorientation.20 To be sure, Schmitt admits that the
question concerning man’s proper element is not so simple, because man
is “not a creature wholly conditioned by his medium [Umwelt].”21 In fact,
man can go so far as to “change himself into a new form of his historical
existence, in virtue of which he readjusts and reorganizes himself.”22 This
does not imply, however, that Schmitt would be a relativist in his under-
standing of the elements. “Man is a terrestrial” means that he should also
remain bound to the earth. From Schmitt’s perspective, there is something
perverse in man’s “thrust seawards,”23 not to mention in his thrust airward
and even toward the element of fire, which are the more recent elements
of human activity.24 Only the element of earth can serve as the genuine
foundation for the authentic order of nomos.

Land Appropriation
Yet the cultivation of land is not Schmitt’s final word as regards the
appearance of the just order and orientation. According to him, even the
nomads have their law (nomos), although they do not cultivate land. More-
over, this law is based on the very same primeval act as the law of the

17.  Schmitt, The Nomos of the Earth, p. 43.

18.  Ibid.
19.  Ibid., p. 42.
20.  Ibid., p. 43.
21.  Schmitt, Land and Sea, p. 5.
22.  Ibid.
23.  Ibid., p. 45.
24.  “The invention of the airplane,” Schmitt writes, “marked the conquest of the third
element, after those of land and sea”—and if “one thinks of the technology necessary for
human prowess to manifest itself in the air space,” it seems that the “new element of human
activity is fire.” Ibid., pp. 57–58.
 Carl Schmitt and the Sacred Origins Of Law   39

agricultural societies. This primeval act is the act of land appropriation

(Landnahme).25 Before the land can contain, manifest, and sustain law, it
must be seized. It is seized either by settling unoccupied land or by con-
quering already inhabited lands. The appropriation of land is existentially
the most fundamental event (grundlegende Ereignis) of human history.26
It is the reproductive root of all human order and orientation: “Not only
logically, but also historically, land-appropriation precedes the order that
follows from it. It constitutes the original spatial order, the source of all fur-
ther concrete order and all further law.”27 Schmitt’s philosophy of nomos is
characterized by the “Ur-thinking” that had become very popular among
German right-wing intellectuals between the wars—and it is precisely in
the context of land appropriation that Schmitt employs the prefix Ur most
frequently. Land appropriation is the primeval act (Ur-Akt) that founds all
law as well as the primeval ground (Urgrund) in which all law is rooted. It
is the primeval type (Ur-Typus) of constitutive legal processes as well as
the primeval measure (Ur-Maß) from which all the subsequent measures
derive. It is the primeval element (Ur-Element) and the original source
(Ursprung) nourishing “everything promulgated and enacted thereafter as
degrees and commands.”28
With the shift of emphasis from the cultivation of land to its appropria-
tion, the farmer, as a paradigmatic figure, is also displaced. Farmers are
replaced by such warlords as the Biblical Joshua. Joshua, who “seized the
whole land,”29 is “a classic example.”30 By expelling Ken’ites, Canaan-
ites, and other peoples from their land, Joshua lays the foundation for
order and orientation, and, through destruction and merciless slaughter-
ing, founds nomos.31 In Schmitt’s view, even Heracles can serve as an

25.  According to Schmitt, the nomads also appropriate their lands, although only
provisionally. See Carl Schmitt, “Nomos—Nahme—Name,” appendix in The Nomos of
the Earth, p. 341.
26.  On appropriation as Ereignis, see Schmitt, The Nomos of the Earth, pp. 39, 45,
48, and 83.
27.  Schmitt, The Nomos of the Earth, p. 48.
28.  Ibid., p. 48; see also pp. 47, 45 (translations modified).
29.  Ibid., p. 81.
30.  Carl Schmitt, “Appropriation/Distribution/Production: An Attempt to Determine
from Nomos the Basic Questions of Every Social and Economic Order,” appendix in The
Nomos of the Earth, p. 329.
31.  ”So Joshua came suddenly upon them with all his people of war” and “smote
them, until they left none remaining.” Joshua 11:7–8.
40  Mika Ojakangas

example here: “Heracles is the mythical foundation of order. Given that

he ‘appropriated’ the cattle of the three-headed giant, he created law; the
Nahme—the nomos—transformed power into law. This is the significance
of the often cited Pindar fragment nomos basileus.”32 In other words, the
true land-bound law (nomos) is based on Joshua’s conquest and Heracles’
theft rather than on a peaceful cultivation of land. It is based on a founda-
tionless decision regarding expropriation—not on a fruitful collaboration
between mother earth and man.
Does this mean that, after all, Schmitt smuggles his decisionism into
his philosophy of nomos? Is appropriation a new “founding rupture” of
a spatial order? Even more: Has Schmitt become a decisionist without
the ethical moment, the moment of personal responsibility, inherent in
his early theorizing? Is Schmitt’s nomos nothing but the arbitrary right of
the stronger? Is Schmitt himself a twentieth-century Callicles? For it was
precisely Callicles (Plato’s caricature of a Sophist) who first made use
of a poem by Pindar on the myth of Heracles in order to define what is
naturally just. According to Callicles, the true meaning of Pindar’s poem is
the following: “Heracles drove off Geryon’s cattle, even though he hadn’t
paid for them and Geryon hadn’t given them to him, on the ground that this
is what’s just by nature [dikaiou physei] and that cattle and all the other
possessions of those who are worse and inferior belong to the one who’s
better and superior.”33 Like Schmitt, Callicles argues that there is nothing
wrong with Heracles’ theft and that, on the contrary, it is just by nature to
expropriate whatever one is capable of expropriating. In The Nomos of
the Earth, however, Schmitt accuses Callicles and the Sophists in general
of the destruction of the Greek nomos, which originally was, in Schmitt’s
view, bound and related to the earth.34 This suggests that there must be a
difference between these two positions. But how should we understand the
difference between Callicles and Schmitt?
Unlike Callicles, Schmitt does not oppose natural violence to the exist-
ing nomoi: “Nature [physis] and law [nomos] are for the most part opposed
to each other,” says Callicles in Gorgias.35 Rather, in Schmitt’s view, such

32.  Schmitt, “Nomos—Nahme—Name,” p. 342n19.

33.  Plato Gorgias 484c. Translations of the Plato passages are from John M. Cooper,
ed., Plato: Complete Works (Indianapolis, IN: Hackett Publishing Company, 1997).
34.  In his (misguided) analysis of the etymological roots of the Greek nomos, Schmitt
claims that originally it meant appropriation (Nahme). See Schmitt, “Appropriation,”
p. 326.
35.  Plato Gorgias 337d.
 Carl Schmitt and the Sacred Origins Of Law   41

an opposition reveals that Callicles, like the Sophists in general, equates

nomos with the enacted statutes (Gesetze), not with the act of appropriation
itself. Hence, Schmitt’s criticism concerns Callicles’ mistaken understand-
ing of the notion of nomos, not his overall attitude. Appropriating violence
is nomos, not its antithesis: “In its original sense, nomos is precisely the full
immediacy of a legal power not mediated by laws [Gesetze].”36 Moreover,
we must take into account that, for Schmitt, mere appropriating violence
(“passing acts of brute force”37) is not sufficient to found nomos: “Every
seizure of land is not a nomos, although conversely, nomos, understood
in our sense of the terms, always includes a land-based order and orienta-
tion.”38 Finally, even if an act of appropriating violence founds a nomos,
as it sometimes does, nomos means more than the mere act of appropria-
tion. It is a “total concept,” consisting of “concrete order and the concrete
organization of a community,” as Schmitt wrote in 1934.39 In The Nomos
of the Earth, he defines it further: “Nomos is the immediate form in which
the political and social order of a people becomes spatially visible.”40 In
other words, it is the spatially visible political and social order itself that
constitutes the true nomos of a community.
Given especially this last definition of nomos, it is understandable that
Schmitt rejects Callicles and turns to Aristotle. In the beginning of Politics,
Aristotle indeed writes: “Justice is the order of political community” (dikê
politikês koinônias taxis estin).41 For some reason, however, Schmitt does
not refer to this famous passage, or even to the passage where Aristotle
equates nomos with order (hê gar taxis nomos),42 although he otherwise
relies on Aristotle in his effort to restore the original meaning of nomos.
(According to Schmitt, something of the original link between order and
orientation remains recognizable in Aristotle, since he understood the rule
of nomos as the rule of medium-sized, well-distributed landed property.)43
This raises several questions again: Is Aristotle’s well-known definition
problematic for Schmitt after all? Does it connote what Schmitt calls the

36.  Schmitt, The Nomos of the Earth, p. 73.

37.  Ibid., p. 82.
38.  Ibid., p. 80.
39.  Schmitt, Über die Drei Arten, p. 55.
40.  Schmitt, The Nomos of the Earth, p. 70.
41.  Aristotle Politics 1253a39.
42.  Ibid., 1287a19.
43.  Schmitt, The Nomos of the Earth, p. 68.
42  Mika Ojakangas

“normative power of the given,” an idea that he rejects?44 And if it does,

we may still wonder why Schmitt rejects the idea. Isn’t his notion of nomos
(the immediate form in which the political and social order of a people
becomes spatially visible) precisely a notion that affirms the normative
power of the given? At least, the land is a given. What, then, is Schmitt’s
position, the position from which it is simultaneously possible to reject the
normative power of the given and to write: “We cling to the hope that we
will find the normative order of the earth”?45

The Visible
Schmitt is nowhere very clear as to how to distinguish the improper and
the proper land-based order. Yet, we already have some clues. Unlike deci-
sionism, which focuses on conscious personal decision, “concrete order
thinking” emphasizes the concrete institutional order of a community.
From this perspective, nomos is not a proper nomos until it has become a
concrete institutional order. But how does the order become institutional-
ized? At first, we may assume it is institutionalized by those very “fences,
enclosures, boundaries, and walls” in which the orders and orientations
of human life become visible.46 Schmitt holds that there is no nomos
without such enclosures: “Every nomos consists of what is within its own
bounds.”47 But it is highly probable that the same rule that applies to the
notion of appropriation applies to Schmitt’s notion of enclosure as well:
although every nomos implies an enclosure, every enclosure is not neces-
sarily a nomos. Something more is needed, and if we examine Schmitt’s
argumentation carefully, we will find two additional notions that can be
considered significant.
The first notion is visibility (Sichtbarkeit). At the beginning of the
article, we saw that when the solid ground of the earth was delineated by
fences, walls, houses, and other human artefacts, the orders and orienta-
tions of social life became apparent (offenkundig) and the forms of power
and domination visible (sichtbar). It was also established that Schmitt
defined nomos as the immediate form in which the political and social

44.  Ibid., p. 73.

45.  Ibid., p. 49.
46.  Ibid., p. 42.
47.  Ibid., p. 75. Schmitt quotes here approvingly the words of Jost Trier, a distin-
guished German philologist and Altgermanist. Like Schmitt, Trier joined the NSDAP in
1933.
 Carl Schmitt and the Sacred Origins Of Law   43

order of a people becomes spatially visible. In fact, visibility is one of the

very basic characteristics of nomos, stressed time and again by Schmitt:
“The nomos . . . becomes visible [sichtbar] in the appropriation of land
and in the founding of a city or a colony.”48 Moreover, if we take into
account the central role of visibility in Schmitt’s political theory before his
turn to institutionalism, as well as the fact that the theme is by no means
exclusive to decisionism, we may presume that visibility also figures as
a technical term in his late work. In Roman Catholicism and Political
Form (1921), Schmitt had argued that the rationality and authority of the
Roman Church resides in its capacity to give Christianity form as a visible
(sichtbar) institution.49 In Constitutional Theory (1928), he transposed this
thesis onto state theory and asserted that visibility is the precondition for
the legitimacy of the power of the state, if not for the very existence of
the state, linking the notion of visibility with that of representation, as he
had done already in the Roman Catholicism: “There is . . . no state without
representation.”50
There are, however, reasons to doubt that visibility would function
as a technical term in Schmitt’s late work. On the one hand, Schmitt uses
the notion in a non-technical sense of something simply becoming appar-
ent.51 On the other hand, and more importantly, at this stage he no longer
links visibility with the notion of representation. The whole notion is con-
spicuously absent from Schmitt’s writings after his turn to “concrete order
thinking.” He rejects it as early as in State, Movement, People (1933), that
is to say, in the very first work that testifies to this turn. There, Schmitt
argues that the representative model of the Roman Church cannot be
applied in the National Socialist state, since representation presupposes an
unsurpassable gap between the leader and his following: “Essential in this
image is that the shepherd [Pope] remains absolutely transcendent to the
flock [Christians].”52 In the National Socialist state, such an unsurpassable
gap is an impossibility. The National Socialist Führer neither transcends
the German people nor represents them. The National Socialist leader is

48.  Ibid., p. 70.

49.  Carl Schmitt, Roman Catholicism and Political Form, trans. G. L. Ulmen (West-
port, CT: Greenwood Press, 1996), p. 32.
50.  Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer (Durham, NC: Duke
UP, 2008), p. 241.
51.  See, e.g., Schmitt, The Nomos of the Earth, p. 66.
52.  Schmitt, State, Movement, People, p. 47.
44  Mika Ojakangas

a concept of the “immediately present and of a real presence.”53 In the

leader, the nomos of the German people becomes immediately knowable
without representation.54 Hence, the question concerning the proper and
the improper land-bound order still remains unanswered. If a spatial
enclosure and the visibility of “forms of power and domination” are not
enough to guarantee that we have an authentic nomos at hand, something
must presumably be added into the picture. What is it that constitutes a
land-bound order as a just order?

The Sacred
For Schmitt, the most essential constituent of the just order relates to the
justness of its origin (Herkunft).55 It is the original appropriation that must
be recognized as just. Without such recognition, nomos “would be noth-
ing more than the arbitrary right of the stronger.”56 What, then, makes
Joshua’s conquest or Heracles’ theft a founding event of genuine nomos?
On what grounds may appropriation be recognized as legitimate? For the
medieval jurists and theologians, for example, the source of the legiti-
macy of appropriation was usually agreement.57 This was also the opinion
of many early modern theorists of natural law: “There is no precept of
natural law to be discovered by which men are enjoined to make an appro-
priation of things, as that each man shall be allotted his particular portion,
divided from the shares of others.”58 It is naturally just to use things, they

53.  Ibid., p. 48.

54.  It is true that in State, Movement, People Schmitt does not use the word nomos,
although the idea of law emanating from a pre-existing order (the order of “race”) is clearly
present. The term began to dominate his legal theorization in the following years, start-
ing with the publication of Über die Drei Arten (1934). According to Wolfgang Palaver,
Schmitt mentions nomos for the first time in a lecture delivered October 3, 1933. He
concluded the lecture with the remark that Hitler’s will is the German people’s nomos.
Palaver, “Carl Schmitt on Nomos and Space,” p. 106n5. In fact, Schmitt had used the
notion of nomos already in Constitutional Theory but without defining it. There he refers
to J. Goldschmidt’s word “nomocracy,” which he employs in his critique of the legislative
power. In Schmitt’s opinion, what is lacking in such a word is precisely nomos. Schmitt,
Constitutional Theory, p. 184.
55.  Schmitt, The Nomos of the Earth, p. 82.
56.  Ibid. p. 73.
57.  See, e.g., Thomas Aquinas, Summa Theologiæ (London: Blackfriars, 1968), 2a
2ae, q. 66. a. 2.
58.  Samuel Pufendorf, Of the Law of Nature and Nations (Oxford: Lichfield, 1703),
bk. 4, ch. 4, §4. See also Hugo Grotius, The Freedom of the Seas (New York: Oxford UP,
1916), ch. 5.
 Carl Schmitt and the Sacred Origins Of Law   45

argued, but appropriation and ownership rest on the foundation of mutual

agreement. John Locke famously repudiated this view, asserting that
appropriation is indeed a matter of natural justice: although God had given
the earth to the children of men in common, He allotted man also to work
and hence, to fence the area he has cultivated as his own.59 Yet Schmitt
does not endorse either of these views. The medieval theory of agreement
is too liberal for his taste. Moreover, although there is some resemblance
between Schmitt’s reflections on the cultivation of land as a constituent of
nomos and Locke’s idea of work as the source of ownership (and hence,
of civilized society), the legitimacy of appropriation in Schmitt’s theory
does not lie in “human toil and trouble.” Where, then, does it lie? Schmitt
writes: “A land-appropriation is constituted only if the appropriator is able
to give the land a name.”60
What name? “What then is the name of the law?” Schmitt himself
asks. “Is it Jean-Jacques or Napoleon?”61 Is it Amerigo Vespucci, the car-
tographer after whom the New World was named America? These are not
the names that Schmitt has in mind, and here we encounter the second and
the most important element of justification: the name has to be sacred.
For an appropriation to gain true legitimacy, it has to be recognized as a
sacred event: “We are concerned,” Schmitt writes, “with the formative,
even festive processes of many land-appropriations that are able to make
Nahme a sacred act.”62 This, I dare to say, is Schmitt’s final word in his
philosophy of nomos. Nomos is not a wall, but it can be described as a wall,
“because, like a wall, it, too, is based on sacred locations.”63 Sacredness is
the true criterion for the existence of a genuine nomos: “Something walled
or enclosed, or a sacred place”—all of them “are contained in the word
nomos.”64 This is also the critical point, at which the opposition between

59.  See John Locke, Two Treatises of Government (Cambridge: Cambridge UP,
1960), bk. 2, ch. 5.
60.  Schmitt, “Nomos—Nahme—Name,” p. 348.
61.  Ibid., p. 349.
62.  Ibid., p. 348.
63.  Schmitt, The Nomos of the Earth, p. 70.
64.  Ibid., p. 78. Hence, contrary to Arturo Leyte’s claim (“A Note on The Nomos of
the Earth,” South Atlantic Quarterly 104 [2005]: 292), according to which Schmitt “does
not realize that surrounding nomos, as well as polis but not the modern state, is a sense
of the sacred,” I argue that Schmitt realizes very well that nomos is surrounded by such a
sense: the sense of the sacred is the very reason why he wants to restore the ancient mean-
ing of nomos. In this respect, I agree with Carlos A. Otero: “The nomos can be thought of
only as sacred.” Otero, “From the Nomos to the Meridian,” p. 383.
46  Mika Ojakangas

land-based orientation (Ortung) and sea-based disorientation (Entortung)

becomes visible. Even though it is possible to appropriate the sea, on the
maritime expanse there are no “consecrated sites, no sacred locations,”65
which is to say, no sacred tout court.
Thus, a land-based order becomes legitimate only if land appropria-
tion, the drawing of boundaries, is conceived as a sacred act, an event that
creates the sacred space. This is the reason why Joshua represents a classic
example for Schmitt. Joshua conquered the lands of Canaan, demarcated
them with the boundary lines, and allocated them to the twelve tribes,
but the resulting order became a genuine nomos only because the appro-
priation was based on God’s promise. Schmitt quotes from Bible: “Joshua
took the whole land, according to all that the Lord said onto Moses.”66
It is God’s promise that makes Joshua a classic example—and the word
“classic” is not employed by Schmitt without a moral tone.67 Indeed,
according to Schmitt, a political and social order that does not have divin-
ity on its side is necessarily “hollow and already dead.”68 This is the basic
reason why he quotes the Heraclitus fragment (DK 44) in The Nomos of
the Earth: “All human laws are nourished by a single divine law.”69 It is
such nourishment that endows men with order and orientation, not only
in antiquity but on the eve of modernity as well: “The last great, heroic
act of the European peoples—the land-appropriation of a new world
and of an unknown continent—was not accomplished by the heroes of
the conquista as a mission of the jus commercii, but in the name of their
Christian redeemer and his holy mother Mary.”70 Appropriation creates an
order endowed with legitimacy, insofar as it takes place or is ex post facto

65.  Schmitt, The Nomos of the Earth, p. 43.

66.  Ibid., p. 81.
67.  Nowadays, Schmitt’s profound anti-Semitism has become evident. See, e.g.,
Raphael Gross, Carl Schmitt and the Jews (Madison: Univ. of Wisconsin Press, 2007).
Why, then, does Schmitt choose Joshua as a classic example of appropriation? The reason
is that for Schmitt Joshua represents Judaism that is still bound to the land. It is the Diaspora
Judaism that he despises—both ancient and modern. According to Schmitt, Philo of Alex-
andria was the first Hebrew Sophist because he identified nomos with the post-exilic notion
of law detached from land and appropriation. See Schmitt, “Nomos—Nahme—Name,”
pp. 343–44.
68.  Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes (Westport,
CT: Greenwood Press, 1996), p. 61.
69.  See Schmitt, The Nomos of the Earth, pp. 70–71.
70.  Schmitt, “Nomos—Nahme—Name,” p. 349.
 Carl Schmitt and the Sacred Origins Of Law   47

sanctified in a name that cannot be put into question.71 Such a name can
only be a sacred name and, more particularly, a name that can be localized
in a concrete space.72
This also explains why Schmitt refuses to call modern territorial
states within fixed boundaries genuine land-bound orders. Even though
the modern state realizes the principle cujus regio, ejus religio (“whose
region, his religion”), thus localizing religion in space, metamorphoses in
the sphere of the Christian religion unraveled all the unifying effects of
this localization. With the rise of Protestantism, religion was transformed
into a matter of conscience of a private individual, which paved the way
for the withdrawal of the religious from politics. Hence, although religion
becomes localized in the modern state, it is simultaneously delocalized
since it is privatized, individualized, and depoliticized. This is also the
reason why Schmitt argues that there is an unbridgeable gap between the
heroes of the conquista and the modern state. The heroes of the conquista
belonged to a spiritual world of a medieval community—and the distance
that separates that world from the world of the state is enormous: only
the medieval community recognized divinity in public life, discernible for
instance in the divine right of kings as well as the divine right of estates
to resist an unlawful ruler.73 In the modern state, there is no place for such
divine rights. With this displacement, the “original and natural unity of
politics and religion” is necessarily destroyed.74 In the modern state, the
immemorial alliance of religion and power has come to an end. It is for this

71.  In Joshua’s case the legitimization was clearly ex post facto, given the fact that
the passage of Genesis where God promises the land to Abraham’s descendants was written
centuries after Joshua’s conquest. On the other hand, nowadays it is generally held that
Israelites established their presence in Canaan by a piecemeal process rather than by a
conquest. Thus, Joshua’s very conquest (this “classic example”) is a mere myth represent-
ing a late reconstruction of Israel’s early history, intended to illustrate certain post-exilic
political and theological aspirations. See, e.g., John Strange, “The Book of Joshua: Origin
and Dating,” Scandinavian Journal of the Old Testament 16 (2002): 49–50.
72.  Undoubtedly, for Schmitt, the most favorite name for a sacred space was Rome:
“Raum and Rom are the same word.” Carl Schmitt, Ex Captivitate Salus (Cologne: Greven
Verlag, 1950), p. 90. All in all, space is not a geographical notion for Schmitt but rather
a mythopolitical one. In the foreword to The Nomos of the Earth, p. 38, Schmitt refers
to Johann Jacob Bachofen—whose studies in mythology had became very popular in
Germany during the interwar period—and writes: “The ties to mythological sources of
jurisprudential thinking are much deeper than those of geography.”
73.  Schmitt, The Leviathan, p. 46.
74.  Ibid., p. 10.
48  Mika Ojakangas

reason that Schmitt calls the modern state a machine, or the “first modern
mechanism in a grand style.”75 Its truth and justice do not reside anywhere
except for “its technical perfection.”76 Hence, although the modern state is
an enclosed territorial order, it is not an order that could endow men with
orientation, because its public personifications and laws lack divine legiti-
macy. In the modern state, to use Sophocles’ words, “laws of the land”
(nomous chthonos) are no longer woven together “with oath-bound justice
of the gods.”77 Without such weaving, there is no law. This, I believe, is
Schmitt’s final word on nomos, in that it alone explains why Schmitt con-
siders our contemporary situation “completely deteriorated [zersetzt].”78

Volksnomostheologie
In his article “Nomos—Nahme—Name,” Schmitt complains about the
reception of The Nomos of the Earth by a German specialist in interna-
tional law. According to Schmitt, this specialist radically misunderstood
his reference to the Marian image of the conquista. He scorned it as a
“Christian trimming.”79 But Schmitt does not explain how this image
should be understood. If my analysis is correct, Maria should be under-
stood as a historical example of a sacred name. Maria is not a trimming,
nor is she mentioned because she is a Christian figure. Maria is a name that
sanctifies appropriation and the order that follows it. Every genuine order
of nomos presupposes sanctification, and all genuine sanctification con-
cerns the question of origins. And, precisely due to its sacredness, nomos
is capable of endowing men with orientation. The sacred opens up a space,
a meaningful world, because it localizes and hence fixes a perspective that
is beyond subjective vacillations.80 The sacred fixation (sakrale Ortung),
thus, makes an order normative. Yet, for Schmitt, no fixation is absolute
or universal. Nomos is not only spatially localized but also historically

75.  Ibid., p. 42.

76.  Ibid., p. 45. In The Leviathan, p. 15n12, Schmitt argues that one of the worst con-
sequences of such “technologizing of the state” is that it makes “superfluous all distinctions
among Jews, heathens, and Christians,” culminating in the “realms of total neutrality.”
77.  Sophocles Antigone 365–70.
78.  Schmitt, The Nomos of the Earth, p. 71.
79.  Schmitt, ”Nomos—Nahme—Name,” p. 349.
80.  “Raum is not a closed circle nor a domain but a world.” Carl Schmitt, “Raum
und Rom: Zur Phonetik des Wortes Raum,” in Staat, Großraum, Nomos: Arbeiten aus den
Jahren 1916–1969 (Berlin: Duncker & Humblot, 1995), p. 492.
 Carl Schmitt and the Sacred Origins Of Law   49

evolving and developing, to the extent that every nomos grows naturally
but also dies naturally. At some point, every nomos withers away, when
it loses its vitality based on its ties to a divine source. In Schmitt’s view,
the withering based on the loosening of ties with the divine means a crisis
of order and orientation. In his view, however, it does not mean nothing-
ness. A new nomos can also emerge from the depth of the crisis through
fierce battles (Ringen) of the old and new forces. Precisely in such battles,
understood as great historical events, “right measures and meaningful pro-
portions” (nomos) eventually originate.81
That said, it is obvious that this article is a contribution to the (in)famous
“theological twist” in Schmitt studies. However, my intention is not to
argue that Schmitt was a traditional Catholic, nor that his Catholicism was
a form of Christianity that rejects its roots in Judaism in favor of pagan
foundations. Rather, following Raphael Gross,82 I argue that there is a close
link between Schmitt’s notion of nomos and the German Volksnomos-
theologie developed by such ultra-nationalist (and eminently antisemitic)
Lutheran theologians as Wilhelm Stapel, Emanuel Hirsch, Friedrich
Gogarten, and Paul Althaus. Hirsch was a distinguished Lutheran church
historian, who during the Nazi regime not only joined the party but entered
the auxiliary of the SS as a supporting member. He had reviewed approv-
ingly three books by Schmitt in 1923 and 1924, yet indicated that Schmitt
had taken the wrong road by ignoring the notion of Gemeinschaft as the
point of intersection between theology and constitutional history.83 In his
own theology of Volksnomos, Hirsch argued that every community stands
on a threefold foundation of God-given horos, nomos, and logos, mean-
ing uncrossable boundary (horos), conditions of order, life, and thought
(nomos), and a “self-expressive” living spirit (logos). Moreover, he—like
his Lutheran colleagues—saw God’s hand in the elevation of Hitler to
power, and believed that the revolution introduced by National Socialism
represented a proper reintroduction of horos, nomos, and logos to Ger-
man life. The Nazis, Hirsch argued, are conscious of divine boundaries not

81.  Carl Schmitt, “The New Nomos of the Earth,” appendix in The Nomos of the
Earth, p. 355. Schmitt repeats here the concluding words of Land and Sea, p. 59.
82.  See Gross, Carl Schmitt, pp. 51–59.
83.  See John Stroup, “Political Theology and Secularization Theory in Germany,
1918–1939: Emanuel Hirsch as a Phenomenon of his Time,” Harvard Theology Review
80, no. 3 (1987): 338–39.
50  Mika Ojakangas

created by artificial reason but born in a “holy storm” that had come over
the Germans.84
As far as I know, however, Schmitt does not mention Hirsch in his
studies on the notion of nomos. Yet, he mentions his and Hirsch’s mutual
friend Stapel in The Nomos of the Earth: “I have great respect for the efforts
of Wilhelm Stapel and Hans Bogner, who have given nomos the meaning
Lebensgesetz.”85 Indeed, in his book Der Christliche Staatsmann (1932),
for instance, Stapel (a publicist, an editor of Deutsches Volksum, and also a
supporter of the Nazi regime) had defined Lebensgesetz-nomos as follows:
“Every Volk is hold together by a law of life, which corresponding to its
nature defines its inner and outer form, its cult, its ethos, its constitution,
and its law: by its Nomos.”86 But it was Bogner (Stapel’s friend and a
Hellenist, also mentioned by Schmitt) who had first identified nomos with
Lebensgesetz, that is, with the notion that had become very popular among
the right-wing nationalist intellectuals emphasizing the völkisch roots of
law during the 1920s.87 (Hence, Bogner’s innovation was not that he trans-
lated nomos as Lebensgesetz but that he identified the already existing idea
of the völkisch Lebensgesetz with the Greek nomos.) For the Greeks, Bog-
ner argues, nomos was that divine power that constituted and maintained
the order of life of the polis. It expressed the unity of Greek spirit and race,
determining their politics and war, their mores, language, and religion, at
least before it became “deteriorated” (zersetzt) by the Sophists!88 Bogner’s
definition of nomos, especially as it was presented in his book Die ver-
wirklichte Demokratie: Die Lehren der Antike (1930), thus paved the way
for the use of the notion in the ultra-nationalist Lutheran theology, which
previously had become known as the theology of the “orders of creation”

84.  See Robert P. Ericksen, Theologians under Hitler: Gerhard Kittel, Paul Althaus
and Emanuel Hirsch (New Haven, CT: Yale UP, 1985), esp. pp. 151–53.
85.  Schmitt, The Nomos of the Earth, p. 70n10. As far as I know, Bogner and Sta-
pel (the editor of Bogner’s books) never published anything together: Stapel just adapted
Bogner’s definition of nomos in his own writings.
86.  Wilhelm Stapel, Der Christliche Staatsmann: Eine Theologie des Nationalis-
mus (Hamburg: Hanseatische Verlagsanstalt, 1932), p. 174. Quoted in Wolfgang Tilgner,
Volksnomostheologie und Schöpfungsglaube (Göttingen: Vandenhoek & Ruprecht, 1966),
p. 115.
87.  In Nazi Germany, Lebensgesetz became increasingly popular notion and it was
understood primarily in racial terms.
88.  Hans Bogner, Die verwirklichte Demokratie: Die Lehren der Antike (Hamburg:
Hanseatische Verlagsanstalt, 1930). See also Tilgner, Volksnomostheologie, p. 114; Gross,
Carl Schmitt, p. 55.
 Carl Schmitt and the Sacred Origins Of Law   51

(Shöpfungsordnungen) and which now wanted to give the idea of the Volk
as a God-given entity a more “refined” intellectual foundation.89 It also
became the intellectual foundation for Schmitt’s philosophy of nomos
conceived as a divinely sanctified law of growth.
To be sure, Schmitt also criticized Stapel and Bogner, but it is merely
the term Lebensgesetz that is problematic for him, not the basic meaning
they give to nomos. The reason why Schmitt rejects the notion of Lebens-
gesetz has to do with a linguistic degeneration of the terms Leben and
Gesetz, not with the idea it implies (law’s inseparability from life): Leben
has become a biological term, excluding other (especially spiritual) aspects
of life, whereas Gesetz expresses only the positivistic artifice of what is
enacted, not what grows naturally.90 But it is also true that Schmitt’s nomos
cannot be reduced to the Volksnomostheologie. Although the advocates of
the Volksnomostheologie similarly emphasized crisis, conflict, and battle
at the foundation of the development of nomos, unlike Schmitt they did
not pay attention to the “original” event of land appropriation. We cannot
find any interest in the thinking of “elemental orders” in their writings
either. Still, Schmitt’s mythopolitics of nomos would be quite incompre-
hensible without taking into account its engagement with the Lutheran
Volksnomostheologie, the theology that found the “primeval powers”
(Ursprungsmächte) of human existence in blood, soil, and the fate of the
nation.91

Concluding Remarks on the Concept of Nomos

If we rely on Martin Ostwald’s studies of the Greek law,92 there is little
evidence that the Sophistic distinction between physis and nomos would

89.  On the Volksnomostheologie, the theology of the “order of creation,” and their
historical background, see Tilgner, Volksnomostheologie. One of the basic ideas of the
theology of the “orders of creation” was that God manifests himself first in nature and
history and only secondarily in the gospel. Especially such natural-historical entities as
Volk and race are expressions of God’s will, and, therefore, to act against such holy entities
is sin—including universalistic aspirations and the mixing of races. See also Hans Tiefel,
“The German Lutheran Church and the Rise of National Socialism,” Church History 41
(1972): 326–36.
90.  Schmitt, The Nomos of the Earth, p. 70n10.
91.  See Tiefel, “The German Lutheran Church,” p. 332, quoting Gogarten.
92.  Martin Ostwald, “Ancient Greek Ideas of Law,” in Philip P. Wiener, ed., Dic-
tionary of the History of Ideas, vol. 2 (New York: Charles Scribner’s Sons, 1973–74),
pp. 674–84; Martin Ostwald, Nomos and the Beginnings of the Athenian Democracy
(Oxford: Clarendon Press, 1969).
52  Mika Ojakangas

have had a great impact on the process that resulted in the conception of
nomos as a written statute. All in all, nomos played no major role in the
Greek language of law before the fifth century, although it otherwise was
a common word, usually designating a way of life. Before Solon, the two
most common terms for law were themis and dike. They were both much
more Schmittian than nomos ever was. They both designated more than
merely a set of legal rules by which right and wrong were determined;
rather, they formed a part of a social order that viewed them as having
existed from time immemorial and believed that they would continue to
exist without change, since the permanence of the order is guaranteed by
the gods.93 Hence, it was not the land-bound nomos, as Schmitt argues,94
but themis and dike that were replaced by thesmos, the term designating
law in the Solonian legislation. According to Schmitt, moreover, Solon’s
thesmoi were later called nomoi.95 This is true, but what Schmitt does not
notice is that thesmos as nomos no longer had the same meaning that it
had had in the Solonian legislation. Originally, thesmos had connotations
that could be associated with themis and dike: although Solon’s thesmoi
were written, writing was rather an accidental than an essential attribute
for them. Furthermore, although thesmos was not part of a universal order,
was never personified, and was always thought of as having had a begin-
ning in human time, it also meant institutional order. When nomos became
the technical term for law, all these connotations were displaced.
According to Ostwald, the last confirmed use of thesmos as a techni-
cal term for law in Athens is the prescription of a reenactment of Draco’s
law against tyranny in 511, reported by Aristotle.96 During the following
decades, nomos became the technical term for law, designating now a
written statute and nothing more. In other words, the deployment of nomos

93.  According to Ostwald, themis (deriving from a stem meaning “place” and “estab-
lish”) is the wider concept of the two and defines those aspects of the social structure that
give order and regularity to the whole, whereas dike (whose etymology links it to a stem
meaning “show” and “point in a given direction”) usually describes the place assigned to
individuals within human society. Ostwald, “Ancient Greek Ideas of Law,” p. 675. Schmitt’s
Ortung, a key word in his philosophy of nomos, contains both of these significations.
94.  Schmitt, The Nomos of the Earth, p. 75.
95.  Ibid.
96.  “There are the ordinances [thesmia] and ancestral principles of Athens: if any
person rise in insurrection in order to govern tyrannically, or if any person assists in estab-
lishing the tyranny, he himself and his family shall be disfranchised.” Aristotle, Athenian
Constitution, in Aristotle in Twenty-Three Volumes, vol. 20 (London: Heinemann, 1971),
16.10.
 Carl Schmitt and the Sacred Origins Of Law   53

occurs simultaneously with the dissolution of the conception that law sig-
nifies the institutional order of polis. Therefore, although Schmitt notices
the change in the meaning of law during the classical period, this change
does not take place within the concept of nomos, as he claims. The change
took place when the Greeks replaced themis, first, by thesmos and, later
on, by nomos. Moreover, in Schmitt’s view, the change in the meaning
of nomos occurred as a consequence of the dissolution of polis,97 but it
is equally possible to argue that it was a precondition for the emergence
of the classical polis, at least if that is how we understand the democratic
Athens. The emergence of nomos as equivalent to law, designating written
statute, coincides, on this view, with the emergence of Athenian democ-
racy. It was democracy that saw it necessary to distinguish law from the
divinely legitimized order of things. In that respect, even the Solonian
thesmos appeared as non-democratic, since it was given from above and
excluded the notion of popular consent as its basis of legitimacy.
Hence, if we accept Ostwald’s analyses concerning the situation in
which nomos became the substitute for thesmos, we will recognize that a
much more important single factor than the Sophistic distinction between
nomos and physis or the dissolution of the polis was the appearance of a
democratic constitution. The positivist interpretation of law was the result
of a deliberate policy of democratic Athens.98 In Schmitt’s estimation, such
an interpretation, prevalent again today, testifies to a state of complete
deterioration, but, at the same time, we must remember that it also testi-
fies to the situation in which democracy has become the insurmountable
horizon. In such a situation, law cannot emanate from any other source
than from the will of the people, as Schmitt himself wrote in Constitu-
tional Theory. If we follow Schmitt, however, the will of the people has
to be understood in terms of what he calls secularization: the will of the
people in democracy is the exact equivalent to the will of God in theis-
tic theology. But today the will of the people is no longer a secularized
theological notion; it has ceased to be a substitute for God’s will. There is
nothing divine in people’s will, not even an imitation of the divine. To use
Schmitt’s words, it is the “sum of private opinions of each individual.”99

97.  Schmitt, The Nomos of the Earth, p. 75.

98.  The first attested use of nomos in the sense of statute is in Aeschylus’s Supplices
(387–91), first performed in 464 BC. See Ostwald, “Ancient Greek Ideas of Law,” p. 682.
99.  Carl Schmitt, “The Liberal Rule of Law,” in Arthur J. Jacobson and Bernhard
Schlink, eds., Weimar: A Jurisprudence in Crisis (Berkeley: Univ. of California Press,
2000), p. 294.
54  Mika Ojakangas

This means that law has become thoroughly profane as well, a mere tool
“devoid of all sacredness of content,” as Max Weber once said of modern
law.100 Schmitt experienced a “feeling of emptiness” before such law,101
and this was surely one of the reasons why he sought to “restore to the
word nomos its energy and majesty.”102 In today’s culture, where the feel-
ing of emptiness is cured by other and perhaps less majestic forces, such a
pursuit is but an anathema.

100.  Max Weber, Economy and Society: An Outline of Interpretive Sociology, trans.
Ephraim Fischoff et al. (Berkeley: Univ. of California Press, 1978), 2:895.
101.  Schmitt, “The Liberal Rule of Law,” p. 295.
102.  Schmitt, The Nomos of the Earth, p. 67.