human rights as geopolitics carl schmitt and the legal form

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Dates, dates, dates. 1917, 1945, 1989. The wars of the world

seem to have been reduced to a squabble about dates.1 For JürgenHabermas, the year 1945 is pivotal. As he puts it, the Allied victory“permanently discredited an array of myths which, ever since theend of the nineteenth century, had been mobilized against the her-itage of 1789.” The unconditional surrender of Germany in 1945,then, stands for the unconditional surrender of “all forms of political

legitimation that did not—at least verbally, at least in words—sub-scribe to the universalist spirit of political enlightenment” (Habermas2001, 46). The year 1989 is merely an afterthought. If, in 1945, after thecollapse of their fascist and militarist regimes, Germany, Italy, and

Japan were integrated into the new universalist order, then 1989 sim-ply represents the year in which former communist regimes, which inany event paid the all-important lip service to the ideals of 1789, were

effectively and not just verbally integrated into that order. ErnstNolte (1997) likes all three dates because they form the beginning andend dates of a series of consecutive civil wars, a European civil war

between bolshevism and fascism from 1917 to1945, and a global civilwar between liberal capitalism and communism from 1945 to 1989.Thus for Nolte, 1945 is pivotal only in the sense that it represents acrucial transition, an intensiWcation not a culmination that only Wnds

its ultimate resolution at the end of the “short twentieth century.”Nolte, in other words, conXates Nazi Germany and the Soviet Union

by calling the defeated enemy of the twentieth century “totalitarian-ism,” while Habermas persists in seeing communism as an admit-tedly imperfect Enlightenment ally in the Wght against the uniquelyevil, fascist counter-Enlightenment.

Cultural Critique 54—Spring 2003—Copyright 2003 Regents of the University of Minnesota

HUMAN RIGHTS AS GEOPOLITICS

CARL SCHMITT AND THE LEGAL FORM OF AMERICAN SUPREMACY

William Rasch



Carl Schmitt, who may be said to be the inspiration for those, likeNolte, who speak of European and global civil wars, witnessed theevents of 1917 (which in Germany were the events of 1918–19) and1945, but unlike his friend Ernst Jünger, his long life did not quitestretch to the contentious year 1989. Nevertheless, it is clear that, forall their importance, neither totalitarianism nor fascism would have

been his crucial terms. It is also clear that he would have been closerin his assessment to Habermas than to Nolte, for the year 1945 repre-sents the Wnal victory of a particular manifestation of the universalistspirit. In retrospect, 1989 was only a mopping-up operation. MorespeciWcally, for Schmitt the events of 1917, personiWed by Lenin andWilson, signal the eclipse of a centuries-old Eurocentric world thathad more to do with the events of 1492 and the ideas of 1648 (Peaceof Westphalia) or 1713 (Peace of Utrecht) than those of 1789. Giventhe demise of this concrete, spatially articulated, Eurocentric order,the question he asks is simple: what will be the shape of the world tocome? Writing in 1955, at the height of the friend/enemy conXict thatwe called the Cold War, Schmitt imagined three alternatives. First,

one of the two contestants could win a clear-cut victory. “The victorwould then be the sole ruler of the world. He would take, distribute,and use the entire planet, land, sea, and air, according to his plansand ideas.” Second, under the hegemony of one or the other power(and Schmitt thought that this type of hegemony could only be exer-cised by the United States), a managed, global balance of powercould be established. That is, regional blocks would form, ultimately

subject to American supervision. The realization of this alternativewould represent a transWguration of the nineteenth-century Britishform of global hegemony. Third, a truly symmetrical regional balanceof power could be achieved. “It could happen that several regionalpowers or blocks [Großräume] could be formed, which would bringabout a balance of power and thereby a world order” (Schmitt 1995,521).2 As the subjunctively qualiWed “it could happen” (es könnte sein)

reveals, Schmitt recognized the doubtful and quixotic nature of thisoption. Indeed, he did not need the events of 1989 to tell him what healready knew, namely, that a single power, the United States, woulddetermine the shape of things to come.

The only power to emerge from the twentieth-century’s Wrstworld war fresh and at the top of its game was the United States.

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Although it took another seventy years to subdue fully all its rivals, itwas already clear then that this, the twentieth, was to be the Ameri-can century, perhaps the Wrst of many such centuries. Not only wasthe United States a new power, but there was also something dis-tinctly new about its power. As Schmitt recognized in 1932 (Schmitt1988, Positionen und Begriffe, 184–203), America’s legal mode of eco-nomic expansion and control of Europe—and, by extension or ambi-tion, the rest of the globe—was qualitatively different from previousforms of imperialism. Whereas, for example, Spain in the sixteenthcentury and Great Britain in the nineteenth justiWed their imperialconquests by asserting religious and/or cultural superiority, Americasimply denied that its conquests were conquests. By being predomi-nantly economic—and using, as Schmitt says, the creditor/debtordistinction rather than the more traditional Christian/non-Christianor civilized/uncivilized ones (186)—America’s expropriations weredeemed to be peaceful and apolitical. Furthermore, they were legal,or rather they presented themselves as the promotion and extensionof universally binding legality per se. Because law ruled the United

States, the rule of the United States was Wrst and foremost the rule of law. For Schmitt, this widely accepted self-representation was neithermerely “ideological” nor simply propagandistic. It was in truth an in-tellectual achievement, deserving respect, precisely because it was sodif Wcult to oppose. As the American geostrategist Zbigniew Brzezin-ski has more recently concluded: “The American emphasis on politi-cal democracy and economic development . . . combines to convey a

simple ideological message that appeals to many: the quest for indi-vidual success enhances freedom while generating wealth. The result-ing blend of idealism and egoism is a potent combination. Individualself-fulWllment is said to be a God-given right that at the same timecan beneWt others by setting an example and by generating wealth.”He goes on to say: “As the imitation of American ways gradually per-vades the world, it creates a more congenial setting for the exercise of

the indirect and seemingly consensual American hegemony. And asin the case of the domestic American system, that hegemony involvesa complex structure of interlocking institutions and procedures, de-signed to generate consensus and obscure asymmetries in powerand inXuence” (Brzezinski 1997, 26–27). To sum up, Brzezinski notesthat “the very multinational and exceptional character of American

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society has made it easier for America to universalize its hegemonywithout letting it appear to be a strictly national one” (210). It seems,then, that to oppose American global hegemony is to oppose the uni-versally good and common interests of all of humanity. This—theequation of particular economic and political interests with univer-sally binding moral norms—this is the intellectual achievement Schmittcould not help but admire, even as he continuously embarked on hisdisastrous attempts at Wghting his elusive, because nonlocalizable,enemy, which proved to be mere shadowboxing in the end.

THE NOMOS OF THE WORLD

In 1950—after, in other words, the pivotal year 1945—Schmitt pub-lished his elegy to a lost world, Der Nomos der Erde im Völkerrecht des

Jus Publicum Europaeum. The lost world in question was the worldof European public law, the international law that regulated theaffairs of the European sovereign states from, roughly speaking, the

mid–seventeenth century to the end of the nineteenth. It was anunusual time in which Europe, or Christendom, enjoyed a hegemonyover a newly “discovered” and conquered world, a time in which, asSchmitt says, “the Christian nations of Europe” were seen “as thecreators and carriers of an order that was valid for the entire planet”and in which the terms “civilization” and “European civilization”were synonymous (54). But it was also a time in which no single

Christian religion and no single continental power enjoyed ultimatesovereignty over Europe itself. To cite Brzezinski one more time:“The essential reality was that of Europe’s civilizational globalsupremacy and of fragmented European continental power. . . . Thegeopolitically consequential fact was that Europe’s global hegemonydid not derive from hegemony in Europe by any single Europeanpower” (1997, 19). Once, perhaps—during the High Middle Ages, for

instance—European unity could represent itself as hierarchical witha dual sovereignty at the top (emperor and pope), and Europe’s rela-tions with the non-European world, primarily Islam to its south,could be seen as symmetrical, since neither civilization could claimcultural or military supremacy over the other. By the time of theseventeenth-century religious conXicts, however, the situation had




radically changed. Because of the Reformation and because of the riseof politically autonomous sovereign states, traditional Europeanunity was threatened by the most vicious of civil wars, one based onideological differences backed by identical truth claims. Seen fromthe inside, then, with Protestants accusing the pope of being the Anti-christ and Catholics identifying Protestantism with heresy, Europehad become irrevocably differentiated, both politically and spiritu-ally. Its challenge was to reconstruct a more complex and compre-hensive unity amid difference, and to do so it required a more globaldistinction than the one available during the Middle Ages.

During the sixteenth- and seventeenth-century European con-quest of the Americas, that distinction was provided, Schmitt says, bythe so-called Amity Line, which distinguished the newly discoveredworld from the old and thereby created a concretely localizable dis-tinction between a zone of political and juridical exception and a spacethat served as the legal norm. “At this line,” he writes, “Europe endedand the ‘New World’ began. Here European law, ‘European publiclaw,’ at any rate, ceased. . . . On the other side of the line, the ‘over-

seas’ zone began, in which, in the absence of any legal limitation of war, only the right of the stronger counted.” This seemingly lawlesszone, however, served to establish, or maintain, a particular legal order,for Schmitt sees the quality of the political equilibrium on the Euro-pean side of the line to be directly dependent on the disequilibriathat existed beyond it. Indeed, he views these zones of exception as akind of “enormous unburdening [Entlastung] of the inner-European

problematic” (1988, Der Nomos der Erde, 62). How that “unburdening”worked can be glimpsed in the following remarkable passage:

The legal [völkerrechtliche] meaning of the Amity Lines of the sixteenthand seventeenth centuries lay in the fact that spaces of freedom weredemarcated as combat zones for the battle of dividing the new world.As a practical justiWcation, one could claim that through the delimita-tion of a free combat zone the realm on this side of the line, that is, the

realm of European public law as a sphere of peace and order, wasrelieved of its burden and thus not so immediately exposed to the dan-ger posed by the events on the other side of the line as would have oth-erwise been the case. The demarcation of an extra-European combatzone served therefore to limit European war. That is its legal sense andits justiWcation. (66)

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It is ironic, then, that sixteenth-century European observers wereso outraged by Aztec human sacriWces, since, in this view, the entireWestern Hemisphere can be said to have been sacriWced, after a fash-ion, to maintain a European civilized order. From a legal standpoint,the laws or conventions that regulated European international rela-tions were not—or at least not only—derived from divine or naturallaw, but rested on the ability to locate spatially concrete zones of exclusion that are exempt from the very laws and conventions theyenable. As Schmitt points out, the political theorists of the time, fromVitoria in Spain to Pascal in France and Hobbes and Locke in Eng-land, all wrestle with the consequences of the “terrible unsettling of all traditional spiritual and moral principles” that resulted from theconquest’s catastrophic reordering of the world picture (1988, Der

Nomos der Erde, 63). The seemingly paradoxical relationship betweenthe realm “this side” of the line and the excluded zones “beyond”had to be explained.

The language of Entlastung, which points toward the compen-satory release of pressure, tempts one, of course, to read this justiWca-

tion of the European occupation of the New World in a psychologicaland anthropological manner. On this reading, civilization is repre-sented by the higher powers, lack of civilization by uncontrolled ani-mal drives. Natural drives cannot be eliminated, but they can beneatly disentangled and dissociated from the mental and spiritualfaculties. To their European conquerors, early reports of the Indians’sensuality and licentiousness, their lack of the “correct” forms of

social intercourse, and their purported “cannibalism,” seem to con-Wrm their “animal” nature. Therefore Europe sublimates its animality

by establishing the Americas as an extralegal zone in which bestialdeeds can be “acted out” far away from polite company. It is as if a“violence brothel” had been created so that chaste relations could bepreserved at home. Schmitt reads Pascal’s famous line—“Un Méri-dien décide de la vérité”—not as a general expression of relativism or

skepticism, but as a speciWc reXection on

the disturbing fact that Christian princes and peoples agreed to suspendthe distinction between just and unjust in speciWed zones. Pascal’s mer-idian is in reality nothing other than the meridian of the Amity Lines




of his age, which in fact tore open an abyss between the freedom of a state of nature beyond all law and the realm of an ordered state of “civility.” (1988, Der Nomos der Erde, 64)

And indeed, the discovery of America meant the discovery of thestate of nature, a distinctly Hobbesian state in which homo homini

lupus. Hobbes, too, Schmitt reads in light of the line: “Hobbes’s stateof nature is a no man’s land, but in no way on that account a nowhere.It is locatable, and Hobbes locates it among other places in the NewWorld” (64–65). Both the supposed wolf-like character of the nativeinhabitants and the atrocities committed by the Spaniards contributeto the composite vision of a permanent civil war of all against all towhich we—that is, all of Europe—could be returned if we do notcarefully maintain the proper boundaries.

But Schmitt is far more concerned with a different kind of release(Entlastung), a logical release, if that bizarre combination of termsmay be admitted. We are dealing here not so much with a sublima-tion of drives as with a “dialectic” of inclusion and exclusion. By vir-

tue of their explorations and conquests, Spain, France, England, andthe other imperial powers, though fundamentally at odds with eachother both religiously and politically, could still represent the unity of Christendom and civilization over against a heathen and barbarianexternal world. The non-European, one might say, functioned as the“environment” that guaranteed the overall unity and identity of the internally differentiated “system” that was Europe. Furthermore,

the inclusion within a self-identical Europe of equal sovereign states,self-regulated by public law without the beneWt of a supreme secularor spiritual executive, relied not only on an exclusion of the non-European, but also on the exclusion of European colonial rivalry. Thewarfare between European powers in the New World (between ille-gal British privateers and Spanish galleons, for example) was differ-ent in kind than continental warfare and was to be kept as separate as

possible from the way European power politics was conducted. AndWnally, whereas in the New World Europeans and their descendantsconducted wars of extermination against the indigenous popula-tions, in Europe a golden age of limited and “civilized” warfarelasted until 1914. Simply put, European unity manifested itself in the

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fact that European states felt obliged to conduct their inter-Europeanaffairs differently than they conducted themselves when in contactwith the “un-” or “lesser” civilized world under their control. Con-sequently, Europe could identify itself as “civilized” in its asymmet-rical relationship with the “uncivilized” or “half-civilized” rest of theworld. If, in other words, internally, with the loss of the medieval“organic” and hierarchical unity, there developed a symmetricallyordered, self-organizing, and self-regulating system of sovereignstates, a plurality of sovereigns with no sovereign over them, this wasexpressly because there existed a hierarchical European sovereigntyover large parts of the rest of the world. “The demarcation of a realmof unrestricted warfare,” Schmitt writes, “was the logical conse-quence of the fact that what the colonial powers lacked was a recog-nized principle and, even more importantly, a common institutionthat could neutrally partition possessions among its members” (68).Had there still been a united Europe over which a single secularand/or spiritual sovereign ruled, the discovery and occupation of theNew World could have been “orderly”—that is, directed from the

top, with the supreme sovereign (pope or emperor) granting particu-lar rulers particular rights and privileges of colonization. Such a hier-archy, if effective, could have compelled obedience and brutallyrepressed dissension. The lack of such a clearly deWned hierarchy,however, had as one of its consequences “a rationalization, human-ization, and legalization—in a word—a limitation of war” withinEurope itself. “This limitation was possible ... at least for continental

land warfare of the inner-European international law, because warwas restricted to a military relationship between states” (69). It is thisself-regulated limitation of war that Schmitt considers to be “thehighest form of order of which the human is capable” (159).

Let us be clear on what Schmitt is saying. Order, no matter howstructured, comes with a price. Hierarchical order brings with it adomination/subordination structuring principle. When hierarchies

dissolve, either civil war ensues or a new ordering principle takes theold order’s place. On the verge of disintegration through civil war, onthe verge, as many feared, of a return to the “bad” anarchy of unlim-ited violence in a state of nature, Europe—and Christendom—pro-duced a “good” anarchy of controlled violence. In place of a sovereign,




there reigned many sovereigns, which left the ultimate position of authority open. It is around this void that the new order organizeditself. To Wll the void would be to reestablish the old principle of order, something that the remaining sovereign powers would refuseto accept. So, to return to the dates mentioned above, 1648 estab-lished the plurality of sovereign states, 1713 their relative balance.In a sense, the seemingly inWnite regress of authority that alwaysattaches to hierarchical orderings—positive law based on natural law

based on divine law based on ... what? God? the rational structure of the cosmos?—was halted and replaced by an “invisible hand” long

before that description of origin-less emergence was theorized as such.But this order too was bought at a price. Europe exerts its sover-

eignty over the New World by positing itself as the norm (culturallyand legally) and relegating the regions beyond the line as the excep-tion that establishes the norm. By making the “state of nature,” towhich the regions beyond the line are condemned, a necessary logi-cal component of the order that is the norm, Europe does not merelyexclude the New World from the new legal order, but, as Giorgio

Agamben states, the New World is “included solely through itsexclusion” (1998, 18). Its exclusion from the realm of European publiclaw is the means by which it is taken possession of. Furthermore, itsexclusion is never complete. Though localized in the newly discov-ered realms overseas, the state of nature remains an ever present, if invisible, threat within Europe itself. “Sovereignty,” Agamben notes—and sovereignty here simply means the state of exception that founds

or supports the law—“thus presents itself as an incorporation of thestate of nature in society.... Hobbes, after all, was perfectly aware ...that the state of nature did not necessarily have to be conceived as areal epoch, but rather could be understood as a principle internal tothe State revealed in the moment in which the State is considered ‘as

if it were dissolved’” (35–36). What Europe momentarily “achieved,”and what Schmitt guardedly and with reservation celebrated, is a spa-

tial articulation of the exception. The state “as if it were dissolved”was seen to exist “over there” so that it would not occur “over here.”What Schmitt also recognized, and bemoaned, is the breakdown of that spatial articulation. The world wars of the twentieth centurydemonstrated that what was “over there,” was “over here” as well.

WILLIAM RASCH128



As early as the 1920s Schmitt saw, in Agamben’s words, that “theconstitutive link between the localization and order of the old nomos

was broken and the entire system of the reciprocal limitations andrules of the jus publicum Europaeum brought to ruin.” This breakdowncontinues to this day: “What happened and is still happening beforeour eyes is that the ‘juridically empty’ space of the state of exception. . . has transgressed its spatiotemporal boundaries and now, over-Xowing outside them, is starting to coincide with the normal order, inwhich everything again becomes possible” (38).

Clearly, neither Agamben nor Schmitt, despite the latter’s nostal-gia for the older, Eurocentric order, advocates a return of the hege-monic and genocidal relationship to the non-European world. Butthey do fundamentally differ in their evaluation of the sovereignexception. Schmitt, in his argument with abstract normativity, stead-fastly maintains that, whether it is acknowledged or not, order isalways spatially and concretely grounded. For him, the “state of nature,” from which the law is banished but on which the law is

based, can be managed, controlled, localized, and limited but never

eliminated. Order is localizable and therefore so is the state of excep-tion (Ausnahmezustand) on which it is grounded. Agamben, on theother hand, implicitly believes in the possibility of a political orderthat would not be based on an exclusion. The insistence on localizinga putatively logically necessary exception is, in Agamben’s view,what drives modernity. Indeed, it is what has driven us all straightto hell, because for Agamben the telos, or logical consequence of

such localization, is, quite simply if melodramatically, Auschwitz.“When our age,” he writes, “tried to grant the unlocalizable a perma-nent and visible localization, the result was the concentration camp”(1998, 20). Thus, rather than merely “limiting” or “civilizing” the vio-lence associated with a fatalistically necessary state of exception,Agamben wishes to eliminate it. Accordingly, his vision of the politi-cal is alternately nihilistic and utopian—that is—hopeless except

for the one grand hope. “Until a completely new politics . . . is athand,” he writes, “every new theory and every praxis will remainimprisoned and immobile, and the ‘beautiful day’ of life will be givencitizenship only either through blood and death or in the perfectsenselessness to which the society of the spectacle condemns it” (11).




We will return to the issue of a “completely new politics” later.3 Fornow I wish to investigate a second trajectory that the sovereign bantraces, one that Agamben hints at, but does not examine. Agambenfocuses on the localization of the state of exception and its apotheosisin the camp. If the Wrst successful modern localization of the sover-eign exception is represented by the distinction between Europe andthe New World, then its culmination as the internment, labor, con-centration, and death camps of the twentieth century can be seen as atype of reintroduction of the initial distinction within Europe itself—and, of course, within the now “civilized” Western Hemisphere aswell. One thereby replaces the civilized/uncivilized distinction withAryan/non-Aryan, white/black, native/immigrant, or—and thoughAgamben does not mention this possibility, some surely would—woman/fetus. There is, however, a parallel if reverse way of dealingwith exclusion, and the remainder of this study will focus not onlocalization but on the invisibilization of the exception in the abstractmoral and legal norm that informs the liberal rule of law and itsextension as universal human rights. With Europe divested of its

moral and political authority and integrated into a larger, potentiallyglobal order, the new American hegemony challenges us to imaginea total, exceptionless inclusion of sovereign peoples (Rawls 1999) orsovereign individuals (Habermas) with no enabling exclusion.Schmitt postulated that whether one likes it or not, the norm rests onan exception, inclusion on an exclusion. Schmitt would therefore ask:can one think of the entire globe as a differentiated unity without an

outside? The purpose of his much-maligned friend/enemy distinc-tion was neither to glorify war nor to justify the extermination of theheterogeneous, but to show that a total or global “inclusion of theother,” to use Habermas’s threatening phrase (1998), could onlyoccur if the otherness of the other, that which makes him what he is, isexcluded from the world community. One cannot help but draw thefriend/enemy distinction, then, when one recognizes in the hand-

shake of the purported friend the surreptitious continuation of warfare by other means. Thus, the question we need to ask is: onwhat exclusion is the ostensive universal extension of human rights

based? To repeat: it was Schmitt’s contention that America’s greatestachievement involved making this new exclusion invisible. If that isthe case, then our task is to bring that exclusion back to light.

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BARBARIANS

The Spanish conquest of the New World gave rise to two pressingand interconnected questions: what type of humans (if humans theywere) occupied this strange world, and what legal or moral justiWca-tion was there for Spanish dominion over them and their posses-sions? The answer to the Wrst question, and thus implicitly to thesecond, was simple, but needed further speciWcation: they were bar-

barians.4 When the Greeks coined the word, they used it to distin-guish the foreign “other” from themselves. If at Wrst it merely meantthe foreigner as such, by the fourth century B.C. it marked the for-eigner as inherently inferior. By virtue of such an asymmetrical dis-tinction between self and other, the qualities of the self are simplyassumed, unstated, and silently equated with the norm, while thesubstandard properties of the other can be endlessly enumerated. To

be Greek was to be in an ethnically, politically, culturally, and linguis-tically deWned closed community. All else was, and remained, out-side, to be ignored or, if noticed, to be dominated and used. When the

early Christian church took the term as their own to distinguish between believers and nonbelievers, they divested it of its ethnic,linguistic, and geographic substance, for all humans had souls andall humans had the potential of being included in the Kingdom of Christ. That is, the distinction between the self and the other was nolonger Wxed, but Xuid; the other could give up its otherness and

become part of the larger and ever-expanding self—could, in a word,assimilate itself to the dominant group. Universalization, however,has its price. All peoples, not just Greeks, could now belong to an all-encompassing group, and by virtue of that possibility all peoplescould be part of something called “humanity,” but because Christiansare in possession of the one and only Truth and because inclusion isnow based on the choice to accept that one and only Truth, to refuseto join was condemned as moral perversity. One was offered a choice,

but rather than a neutral either/or, the alternatives were labeled“right” and “wrong.” Those who lived in vincible ignorance of Christ—those, in other words, who had heard but rejected the good news of the Gospel—committed a mortal sin and would face eternal damna-tion. While still on earth, such inWdels could also be the targets of a “just war,” a “crusade.” Thus, though all peoples are members of




“humanity,” some—the nonbelievers—are lesser members than oth-ers, possessing fewer rights and deserving opprobrium.

If Anthony Pagden is correct in his assessment of the sixteenth-century Spanish response to the conquest of America, then one cansay that Wrst the Greek, then the Christian meaning of “barbarian”was elaborated and used to justify the Spanish acquisitions. In his The

Fall of Natural Man (1986), Pagden argues that the initial Spanishresponse to the Amerindians, especially those encountered on theCaribbean islands, was to view them, following Aristotle, as “naturalslaves,” incapable of ruling themselves and thus in need of masters.Like Aristotle’s barbarians, the American Indians’ natural functionwas to provide physical labor for those—the Spanish—whose natureit was to lead, thus it was unnatural for the former to roam free intheir blissful ignorance (27–56). After the discovery of the highlycomplex Mexican and Incan civilizations, however, the notion thatthe indigenous populations could not rule themselves was renderedabsurd. Therefore, to explain their inescapable difference—their idol-atry, their “barbaric” customs of cannibalism and human sacriWce,

and their ignorance of the one, true religion—Francisco de Vitoriaand his followers at the University of Salamanca developed thetheory that later Xourished in the Enlightenment and indelibly im-printed itself on nineteenth-century ethnology, namely, that theAmerindians were, in Pagden’s words, “some variety of fully grownchild whose rational faculties are complete but still potential ratherthan actual.” Therefore, “Indians have to be trained to perceive what

other men perceive without effort, to accept what other men regardas axiomatic without prior reXection” (104). Pagden concludes that“Vitoria and his successors were effectively claiming, as the greatseventeenth-century natural law theorists—Puffendorf [sic] in partic-ular—were to do, that any man who is capable of knowing, evenin retrospect, that something is in his own interest may be said tohave consented to it, even where there is no question of his having

exercised any freedom of choice” (105). To be capable of af Wrming thetruth of the Gospel or the right reason of natural law when exposedto it is the same as accepting it—unless one willfully and perverselydissents.

I do not wish to cast Vitoria in an unjustly negative light; as everycommentator has remarked, the dispassionate objectivity, honesty,

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clarity, and scholastic rigor of his thinking is as refreshing to beholdnow as it must have been in the sixteenth century. His clear and logi-cal defense of the rights of the American Indians effectively deniedmost—some say all—of the various Spanish claims over the NewWorld, and his restrained but unmistakable condemnation of theexcessive force employed by the conquistadors were used by LasCasas and others as ammunition in their Wght against slavery andthe harsh treatment of the native inhabitants. It has even been sug-gested that Vitoria, not Grotius, Pufendorf, or Selden, is the true orig-inator of the modern notion of international law.5 Yet, it is the statedinherent potential in all humans, even barbarians, to know the truththat gave European Christians their irresistible and irreversible legalwedge. If, like every human, the peoples of the New World possessedthe light of reason, then if only they could hear the good news, theywould recognize the truth and accept their own salvation. Therefore,among the reasons for a possible “just war” against the indigenouspeoples of the Americas, Vitoria lists “natural partnership and com-munication,” “spreading of the Christian religion,” and the “defence

of the innocent against tyranny.” In the Wrst and third of these “justtitles” we can recognize versions, on the one hand, of the modern, lib-eral freedoms of travel and trade—though, as even one of Vitoria’sstudents noted, it is absurd to view the conquistadors as tourists6—and, on the other, the modern, liberal propensity for “humanitarian”interventions. It is the middle item, the freedom to preach Christian-ity, however, that gives one the moral authority to exercise the other

two, for only by being in possession of the truth can one recognizethe difference between innocence and tyranny, or turn travel to theland of the other into conversion to more of the same.7

“To preach and announce the Gospel in the lands of the barbar-ians,” Vitoria admonishes us, is not just a right; it is also a Christianduty. “Brotherly correction is as much part of natural law as brotherlylove; and since all those peoples are not merely in a state of sin, but

presently in a state beyond salvation, it is the business of Christiansto correct and direct them. Indeed, they are clearly obliged to do so”(1991, 284). Though it is wrong to convert the barbarians forcibly—here, as almost everywhere, Vitoria follows Aquinas—it is right and

just to force them to listen, whether they accept the truth or not.Accordingly, if the barbarians obstruct or prevent the Spaniards in




any way from exercising their Christian duty to spread the truth, thenthe Spaniards may “take up arms and declare war on them, insofaras this provides the safety and opportunity needed to preach theGospel.” They may even “lawfully conquer the territories of thesepeople, deposing their old masters and setting up new ones and car-rying out all the things which are lawfully permitted in other justwars by the law of war, so long as they always observe reasonablelimits and do not go further than necessary” (285–86). It was Vitoria’ssad and sincere belief that Spaniards had not observed “reasonablelimits” and had, in fact, “gone beyond the permissible bounds of jus-tice and religion,” but their excesses neither cancelled their rightsto use force when necessary nor vitiated the legal and moral princi-ples involved (286). Christians had the right and the duty to travelwherever they pleased, take the gold and other goods that theyfound to be unused and unclaimed, and preach their way of life, byforce if necessary, in order to bring the barbarians of the New Worldout of their self-imposed immaturity and into civic adulthood as fullmembers of the Christian community.

Vitoria is careful to specify that the barbarians of the Americashad nearly all of the same rights as the Spaniards, for instance, theright to travel to Spain and receive the full protection of Spanish law.But, for all of Vitoria’s concern with reciprocity—granting the Indiansthe same rights of travel and trade—he cannot grant them equalrights when it comes to religion. Here, as Schmitt is quick to pointout, one Wnds Vitoria’s, and Christendom’s, central and inescapable

asymmetry. The ultimate justiWcation for the Spanish conquests liesin Christ’s command to the apostles to “teach all nations, baptizingthem in the name of the Father, and of the Son, and of the Holy Ghost:Teaching them to observe all things whatsoever I have commandedyou ... even unto the end of the world” (Matthew 28:19–20). In moresecular terms, the Church’s evangelical mission becomes Spain’s“civilizing” mission, a mission for which, perhaps because of his lin-

gering Catholicism and his adamant Eurocentrism, Schmitt cannothelp but have some sympathy. It is worth listening to what Schmitthas to say here at some length:

However, that the result [of his investigations] still leads in the Wnalanalysis to a justiWcation of the Spanish conquest lies in the fact thatVitoria’s objectivity and neutrality do indeed have their limits and in no

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way extend so far as to ignore or deny the distinction between believingChristians and non-Christians. On the contrary: the practical result isgrounded completely in Vitoria’s Christian conviction, which Wnds itsreal justiWcation in the Christian mission. That non-Christians could

demand the same right of free propagation of and intervention for theiridolatry as the Christian Spaniards for their Christian mission—thatreally does not occur to this Spanish monk. Here, then, is the limit bothof his absolute neutrality and his general reciprocity and reversibility of concepts. Vitoria is perhaps an Erasmist, but he is not representative of absolute humanity in the style of the eighteenth or nineteenth centuries;he is no Voltarian and no Rousseauist, no free thinker and no social-ist.... For Vitoria, Christian Europe is still the center of the world, his-

torically and concretely located in Jerusalem and Rome. (1988, DerNomos der Erde, 83, 84)

Yes, this passage attests to the antiliberal prejudices of an unre-generate Eurocentric conservative with a pronounced affect for thecounterrevolutionary and Catholic South of Europe. It seems to res-onate with the apologetic mid-twentieth-century Spanish receptionof Vitoria that wishes to justify the Spanish civilizing mission in the

Americas.8 But the contrast between Christianity and humanism isnot just prejudice; it is also instructive, because with it, Schmitt triesto grasp something both disturbing and elusive about the modernworld—namely, the apparent fact that the liberal and humanitarianattempt to construct a world of universal friendship produces, as if

by internal necessity, ever new enemies.For Schmitt, the Christianity of Vitoria, of Salamanca, Spain,

1539, represents a concrete, spatially imaginable order, centered (still)in Rome and, ultimately, Jerusalem. This, with its divine revelations,its Greek philosophy, and its Roman language and institutions, is thepolis. This is civilization, and outside its walls lie the barbarians. Thehumanism that Schmitt opposes is, in his words, a philosophy of absolute humanity. By virtue of its universality and abstract norma-tivity, it has no localizable polis, no clear distinction between what is

inside and what is outside. Does humanity embrace all humans? Arethere no gates to the city and thus no barbarians outside? If not,against whom or what does it wage its wars? We can understandSchmitt’s concerns in the following way: Christianity distinguishes

between believers and nonbelievers. Since nonbelievers can become believers, they must be of the same category of being. To be human,




then, is the horizon within which the distinction between believersand nonbelievers is made. That is, humanity per se is not part of thedistinction, but is that which makes the distinction possible. How-ever, once the term used to describe the horizon of a distinctionalso becomes that distinction’s positive pole, it needs its negativeopposite. If humanity is both the horizon and the positive pole of thedistinction that that horizon enables, then the negative pole can only

be something that lies beyond that horizon, can only be somethingcompletely antithetical to horizon and positive pole alike—can only,in other words, be inhuman. As Schmitt says:

Only with the concept of the human in the sense of absolute humanitydoes there appear as the other side of this concept a speciWcally newenemy, the inhuman. In the history of the nineteenth century, setting off the inhuman from the human is followed by an even deeper split, theone between the superhuman and the subhuman. In the same way thatthe human creates the inhuman, so in the history of humanity thesuperhuman brings about with a dialectical necessity the subhuman asits enemy twin.9

This “two-sided aspect of the ideal of humanity” (Schmitt 1988, Der

Nomos der Erde, 72) is a theme Schmitt had already developed in hisThe Concept of the Political (1976) and his critiques of liberal pluralism(e.g., 1988, Positionen und Begriffe, 151–65). His complaint there is thatliberal pluralism is in fact not in the least pluralist but reveals itself to be an overriding monism, the monism of humanity. Thus, despitethe claims that pluralism allows for the individual’s freedom from

illegitimate constraint, Schmitt presses the point home that politicalopposition to liberalism is itself deemed illegitimate. Indeed, liberalpluralism, in Schmitt’s eyes, reduces the political to the social andeconomic and thereby nulliWes all truly political opposition by simplyexcommunicating its opponents from the High Church of Human-ity. After all, only an unregenerate barbarian could fail to recognizethe irrefutable beneWts of the liberal order.

Though he favorably opposes sixteenth-century Christianity to theeighteenth-century Enlightenment, Schmitt has no interest in reestab-lishing the hegemony of the Roman Church. Rather, he is in search of conceptual weapons with which to Wght the contemporary enemy.But it is a failed search just as it is a failed contrast; for in Christianity,Schmitt Wnds not the other of humanism, but humanism’s roots. In

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truth, what Schmitt calls humanism is but an intensiWcation of theaspirations of the Roman Church. Unlike the Judaism from which itsprang, Christianity is not a tribal or national religion, but a religionof universal pretensions.10 The distinction between believer andnonbeliever is not a distinction between tribe and tribe or nationand nation; it is not a distinction between neighbor and foreigner oreven one between Wnite and localizable friends and enemies. Rather,ideally, in the Christian world, the negative pole of the distinction isto be fully and Wnally consumed without remainder. The differences

between families, tribes, nations, friends, and enemies are meantto disappear. In the Wnal analysis there is no room for opposition,neither within the City of God nor against it, and the polis—call itRome, call it Jerusalem—will encompass the entire world. That is pre-cisely the purpose of its civilizing power. What Schmitt calls human-ism is but a more complete universalization of the same dynamic.11

Christianity and humanism are both civilizing missions. In neithercase can there be barbarians left outside the gates because eventuallythere will be no outside of the gates and, thus, no more gates. To

live in the city, the barbarians must thoroughly give up their barbar-ian ways—their customs, their religion, their language. In the dis-course that equates the polis with humanity, to remain a barbarian isnot to remain outside the city, but to be included in the city as a moraland legal outlaw and thus to come under the city’s moral and legal

jurisdiction.That liberal America’s civilizing mission is an extension of Chris-

tian Europe’s was clearly seen and approved of by James Brown Scottwho during his life (1866–1943) had been professor of internationallaw and foreign relations at Georgetown; both director and secretaryof the Carnegie Endowment for International Peace; president of three American and European societies of international law; editorand interpreter of Vitoria, Suarez, and Grotius; active propagandistfor the Allied cause during and after World War I; and loyal servant

to President Woodrow Wilson. Scott recognized the link betweenthe conquest of the New World and the splintering of the old. The“discovery of America,” he wrote in a volume devoted to Vitoria andSuarez, “gave birth to a modern law of nations, Spanish in origin, layin form, but Catholic in fact and capable of continued developmentunder the control of that Christian morality of which all peoples, and




therefore all nations, are beneWciaries” (Spanish Conception of Interna-

tional Law, 1934, 2). This birth of a new law out of the spirit of Chris-tianity coincides with that religion’s fragmentation, “broken by theReformation,” as Scott puts it, and “replaced by an international com-munity, today [1934] universal and embracing all peoples of all conti-nents; the law applicable to members of the Christian communitywas found to be applicable to non-Christians; and the law of nations,once conWned to Christendom, has become international. Withoutceasing to be Christian in fact, the law of nations became laicized inform” (Spanish Origin of International Law, 1934, 1–2). In this way,Christianity survives its own secularization and the Greco-ChristianWest rises from its ashes, rechristened simply as the entire world.The “international community,” Scott writes, “is coextensive withhumanity—no longer merely with Christianity;” it has become “therepresentative of the common humanity rather than of the commonreligion binding the States.” Therefore, the international community“possesses the inherent right to impose its will ... and to punish itsviolation, not because of a treaty, or a pact or a covenant, but because

of an international need” (283). If in the sixteenth century it was theChristian Church that determined the content of this internationalneed, in the twentieth century and beyond it must be the secularized“church” of “common humanity” that performs this all-importantservice. “Vitoria’s idea,” Scott reminds us, “was to treat the Indiansas brothers and as equals, to help them in their worldly affairs, toinstruct them in spiritual matters and lead them to the altar by the

persuasion of Christian life on the part of the missionary” (Spanish

Conception of International Law, 1934, 2). Thus, with the secularizationof the Christian mission comes also the secularization of the Christianmissionary, who still shows his brotherly love by exerting brotherlycorrection.

HUMAN RIGHTS AND THE INHUMAN OTHER

In the past, we/they, neighbor/foreigner, friend/enemy polaritieswere inside/outside distinctions that produced a plurality of worlds,separated by physical and cultural borders. When these worlds col-lided, it was not always a pretty picture, but it was often possible to

WILLIAM RASCH138



maintain the integrity of the we/they distinction, even to regulate it by distinguishing between domestic and foreign affairs. If “they” dif-fered, “we” did not always feel ourselves obliged to make “them”into miniature versions of “us,” to Christianize them, to civilize them,to make of them good liberals. Things have changed. With a single-power global hegemony that is guided by a universalist ideology, all

relations have become, or threaten to become, domestic. The inner/outer distinction has been transformed into a morally and legallydetermined acceptable/unacceptable one, and the power exists (or isthought to exist), both spiritually and physically, to eliminate theunacceptable once and for all and make believers of everyone. Thenew imperative states: the other shall be included. Delivered asa promise, it can only be received, by some, as an ominous threat.

In his The Conquest of America, Tzvetan Todorov approaches ourrelationship to the “other” by way of three interlocking distinctions,namely, self/other, same/different, and equal/unequal. A simplesuperposition of all three distinctions makes of the other someonewho is different and therefore unequal. The problem we have been

discussing, however, comes to light when we make of the othersomeone who is equal because he is essentially the same. This formof the universalist ideology is assimilationist. It denies the other byembracing him. Of the famous sixteenth-century defender of the Indi-ans, Bartolomé de Las Casas, Todorov writes,

[his] declaration of the equality of men is made in the name of a spe-

ciWc religion, Christianity. . . . Hence, there is a potential danger of seeingnot only the Indians’ human nature asserted but also their Christian“nature.” “The natural laws and rules and rights of men,” Las Casassaid; but who decides what is natural with regard to laws and rights? Isit not speciWcally the Christian religion? Since Christianity is universal-ist, it implies an essential non-difference on the part of all men. We seethe danger of the identiWcation in this text of Saint John Chrysostrom,quoted and defended at Valladolid: “Just as there is no natural differ-

ence in the creation of man, so there is no difference in the call to salva-tion of all men, barbarous or wise, since God’s grace can correct theminds of barbarians, so that they have a reasonable understanding.”12

Once again we see that the term “human” is not descriptive, but eval-uative. To be truly human, one needs to be corrected. Regarding therelationship of difference and equality, Todorov concludes, “If it is




incontestable that the prejudice of superiority is an obstacle in theroad to knowledge, we must also admit that the prejudice of equalityis a still greater one, for it consists in identifying the other purely andsimply with one’s own ‘ego ideal’ (or with oneself )” (1984, 165). SuchidentiWcation is not only the essence of Christianity, but also of thedoctrine of human rights preached by enthusiasts like Habermas andRawls. And such identiWcation means that the other is stripped of his otherness and made to conform to the universal ideal of what itmeans to be human.

And yet, despite—indeed, because of—the all-encompassingembrace, the detested other is never allowed to leave the stage alto-gether. Even as we seem on the verge of actualizing Kant’s dream,as Habermas puts it, of “a cosmopolitan order” that unites all peoplesand abolishes war under the auspices of “the states of the First World”who “can afford to harmonize their national interests to a certainextent with the norms that deWne the halfhearted cosmopolitan aspi-rations of the UN” (1998, 165, 184), it is still fascinating to see howthe barbarians make their functionally necessary presence felt. John

Rawls, in his The Law of Peoples (1999), conveniently divides theworld into well-ordered peoples and those who are not well ordered.Among the former are the “reasonable liberal peoples” and the “de-cent hierarchical peoples” (4). Opposed to them are the “outlawstates” and other “burdened” peoples who are not worthy of respect.Liberal peoples, who, by virtue of their history, possess superior insti-tutions, culture, and moral character (23–25), have not only the right

to deny non-well-ordered peoples respect, but the duty to extendwhat Vitoria called “brotherly correction” and Habermas “gentlecompulsion” (Habermas 1997, 133).13 That is, Rawls believes thatthe “refusal to tolerate” those states deemed to be outlaw states “isa consequence of liberalism and decency.” Why? Because outlawstates violate human rights. What are human rights? “What I callhuman rights,” Rawls states, “are ... a proper subset of the rights

possessed by citizens in a liberal constitutional democratic regime,or of the rights of the members of a decent hierarchical society”(Rawls 1999, 81). Because of their violation of these liberal rights,nonliberal, nondecent societies do not even have the right “to protesttheir condemnation by the world society” (38), and decent peopleshave the right, if necessary, to wage just wars against them. Thus,

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liberal societies are not merely contingently established and histori-cally conditioned forms of organization; they become the universalstandard against which other societies are judged. Those found want-ing are banished, as outlaws, from the civilized world. Ironically, oneof the signs of their outlaw status is their insistence on autonomy,on sovereignty. As Rawls states, “Human rights are a class of rightsthat play a special role in a reasonable Law of Peoples: they restrictthe justifying reasons for war and its conduct, and they specify limitsto a regime’s internal autonomy. In this way they reXect the two basicand historically profound changes in how the powers of sovereigntyhave been conceived since World War II” (79). Yet, what Rawls seesas a postwar development in the notion of sovereignty—that is, itsrestriction—could not, in fact, have occurred had it not been for theunrestricted sovereign powers of the victors of that war, especially, of course, the supreme power of the United States. The limitation of (others’) sovereignty is an imposed limitation, imposed by a sover-eign state that has never relinquished its own sovereign power. Whatfor Vitoria was the sovereignty of Christendom and for Scott the

sovereignty of humanity becomes for Rawls the simple but uncon-tested sovereignty of liberalism itself.14

So goes the contemporary reWnement of the achievement that soimpressed Schmitt in 1932. “Time and again,” wrote Schmitt backthen, sensing what was to come,

the great superiority, the amazing political achievement of the U.S.reveals itself in the fact that it uses general, Xexible concepts.... Withregard to these decisive political concepts, it depends on who interprets,deWnes, and uses them; who concretely decides what peace is, what dis-armament, what intervention, what public order and security are. Oneof the most important manifestations of humanity’s legal and spirituallife is the fact that whoever has true power is able to determine the con-tent of concepts and words. Caesar dominus et supra grammaticam.Caesar is also lord over grammar. (1988, Positionen und Begriffe, 202)

For Schmitt, to assume that one can derive morally correct polit-ical institutions from abstract, universal norms is to put the cart be-fore the horse. The truly important question remains: who decides?15

What political power representing which political order deWnesterms like human rights and public reason, deWnes, in fact, what itmeans to be properly human? What political power distinguishes




between the decent and the indecent, between those who police theworld and those who are outlawed from it? Indeed, what politicalpower decides what is and what is not political? Habermas’s con-tention that normative legality neutralizes the moral and the politicaland that therefore Schmitt “suppresses” the “decisive point,” namely,“the legal preconditions of an impartial judicial authority and aneutral system of criminal punishment” (1998, 200), is enough tomake even an incurable skeptic a bit nostalgic for the old FrankfurtSchool distinction between af Wrmative and critical theory. One couldobserve, for instance, that the “universality” of human rights has avery particular base. As Habermas says:

Asiatic societies cannot participate in capitalistic modernization with-out taking advantage of the achievements of an individualistic legalorder. One cannot desire the one and reject the other. From the perspec-tive of Asian countries, the question is not whether human rights, aspart of an individualistic legal order, are compatible with the transmis-sion of one’s own culture. Rather, the question is whether the traditionalforms of political and societal integration can be reasserted against—or

must instead be adapted to—the hard-to-resist imperatives of an eco-nomic modernization that has won approval on the whole. (2001, 124)

Thus, despite his emphasis on procedure and the universality of his so-called discourse principle, the choice that confronts Asiaticsocieties or any other people is a choice between cultural identity andeconomic survival, between, in other words, cultural and physicalextermination. As Schmitt said, the old Christian and civilizing dis-

tinction between believers and nonbelievers (Gläubigern and Nicht-

Gläubigern) has become the modern, economic distinction between“creditors and debtors” (Gläubigern and Schuldnern).

But while af Wrmative theorists like Habermas and Rawls are busy constructing the ideological scaffolding that supports the struc-ture of the status quo, what role is there for the “critical” theorist toplay? Despite the sanguine hopes of Hardt and Negri (2000) that

“Empire” will all but spontaneously combust as a result of the irre-pressible ur-desire of the multitude, can we seriously place our faithin some utopian grand alternative anymore, or in some revolutionaryor therapeutic result based on the truth of critique that would allowus all, in the end, to sing in the sunshine and laugh everyday? Do, infact, such utopian fantasies not lead to the moralizing hubris of a

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Rawls or a Habermas?16 In short, it is one thing to recognize theconcealed, particular interests that govern the discourse and politicsof human rights and quite another to think seriously about howthings could be different, to imagine an international system thatrespected both the equality and the difference of states and/or peo-ples. Is it possible—and this is Todorov’s question—to value Vitoria’sprinciple of the “free circulation of men, ideas, and goods” and stillalso “cherish another principle, that of self-determination and nonin-terference” (Todorov 1984, 177)? The entire “Vitorian” tradition, fromScott to Habermas and Rawls, thinks not. Habermas, for instance,emphatically endorses the fact that “the erosion of the principle of nonintervention in recent decades has been due primarily to the pol-itics of human rights” (1998, 147), a “normative” achievement thatis not so incidentally correlated with a positive, economic fact: “Inview of the subversive forces and imperatives of the world marketand of the increasing density of worldwide networks of commu-nication and commerce, the external sovereignty of states, howeverit may be grounded, is by now in any case an anachronism” (150).

And opposition to this development is not merely anachronistic; it isillegitimate, not to be tolerated. So, for those who sincerely believein American institutional, cultural, and moral superiority, the timescould not be rosier. After all, when push comes to shove, “we”decide—not only about which societies are decent and which onesare not, but also about which acts of violence are “terrorist” andwhich compose the “gentle compulsion” of a “just war.”

What, however, are those “barbarians” who disagree with thenew world order supposed to do? With Agamben, they could waitfor a “completely new politics” to come, but the contours of sucha politics are unknown and will remain unknown until the time of its arrival. And that time, much like the second coming of Christ,seems inWnitely deferrable. While they wait for the Benjaminian“divine violence” to sweep away the residual effects of the demonic

rule of law (Benjamin 1996, 248–52), the barbarians might be temptedto entertain Schmitt’s rather forlorn fantasy of an egalitarian balanceof power. Yet if the old, inner-European balance of power rested onan asymmetrical exclusion of the non-European world, it must beasked: what new exclusion will be necessary for a new balance, andis that new exclusion tolerable? At the moment, there is no answer to




this question, only a precondition to an answer. If one wishes to en-tertain Todorov’s challenge of thinking both equality and difference,universal commerce of people and ideas as well as self-determinationand nonintervention, then the concept of humanity must once again

become the invisible and unsurpassable horizon of discourse, not itspositive pole. The word “human,” to evoke one Wnal distinction,must once again become descriptive of a “fact” and not a “value.”Otherwise, whatever else it may be, the search for “human” rightswill always also be the negative image of the relentless search for the“inhuman” other.

Notes

1. A German version of this essay Wrst appeared in Zeitschrift für Genozid-

forschung 4, no. 1 (2002) and was reprinted in Baecker, Krieg, and Simon, Terror im

System (2002), 130–58.2. Translations from the works of Schmitt are my own, unless otherwise

noted.3. For a more comprehensive critique, see Rasch 2002.4. See the discussion in Pagden 1986, 15–26.5. See, for instance, Scott, The Spanish Origin of International Law (1934), 9a.

Pagden, however, Wnds such assertions “anachronistic.” See Pagden in Vitoria1991, xvi.

6. See Pagden in Vitoria 1991, xxvii.7. On this, see Todorov 1984, 149–50.8. See Pagden’s comments in Pagden 1986, 7–8.9. Schmitt, Der Nomos der Erde (1988), 72–73. For a further elaboration of

this idea, see Koselleck 1985; see also Rasch, “ConXict as a Vocation” (2000),12–13.

10. See the interesting observations in Todorov 1984, 105–7, 162–65.11. For the outline of a genealogy that starts with St. Paul and moves

through Spinoza, Lessing, and the early Hegel, see Rasch, “Weltcommunikationund Weltschweigen” (2000).

12. Todorov 1984, 162. Valladolid is the site of a debate in 1550 betweenSepúlveda and Las Casas; see ibid., 151–67. The Las Casas quote is taken from Las

Casas 1975, 42.13. The German phrase reads “sanfte Nötigung” (Habermas 1996, 217) and

has elsewhere (Habermas 1998, 186) been diplomatically softened in the transla-tion to “gentle pressure.”

14. Though the term “liberalism” is contested and variously used, in con-temporary debates the dominant trend is to justify its legitimacy and extension interms of universally valid moral and/or legal principles. On the history and

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nature of liberalism and on his impatience with human rights discourse, seeGeuss 2001, 69–109, 138–46. Of interest to us here is the following: “For a numberof reasons and in a number of ways liberalism is conceptually and theoreticallymuch more elusive than the state.... Liberalism is more like Christianity than like

the state, that is, it is a complex of doctrines, ideals, suggestions for implementingthose ideals, beliefs, and informal patterns of habitual action and thought. Liber-alism, though, is both much more doctrinally amorphous and indeterminate thanChristianity was, and has a much more indirect relation to any social reality.Christianity had its church buildings, rituals, symbola, public professions of faith,seminaries, catechisms, and, at least at some points in its history, inquisitorial tri- bunals, prisons, etc. The prisons of liberalism are prisons of the mind, and theyoperate by trapping the unwary in a shifting, labyrinthine hall of mirrors rather

than by immobilization behind palpable brick and steel” (69). On liberalism’s blind spot regarding its relationship to its “fundamentalist” or “terrorist” other,see also Bolz 2002. And for a salient and detailed critique of Rawls, see Mouffe2000, 17–35.

15. This, it would seem, is also the question implied in the following pas-sage by Geuss: “A ‘human right’ is an inherently vacuous conception, and tospeak of ‘human rights’ is a kind of puffery or white magic. . . . ‘Group X has a nat-ural right to Y’ in contemporary political discourse, then, usually means that theydo not have a (legal) right to Y but we think they ought to. To be sure, such thingsas the Universal Declaration of Human Rights are intended to establish a mecha-nism which would in fact bring it about that there were reliable consequences of suppressing free speech, preventing self-determination, incarcerating withoutcause, and so forth. However, it is important to realize that even if (and it is acyclopean ‘if’) it were to be or come to be the case that such Declarations had morethan rhetorical effect, they would constitute not so much a vindication of the doc-trine of human rights as a transformation of individual components of someone’smoral beliefs into a system of positive rights. We would merely have begun to

invent and impose on the nations of the world a new layer of positive (interna-tional) law” (2001, 144).

16. One of the many problems in Hardt and Negri’s account is a residualhumanitarian liberalism, similar to that of Rawls and Habermas, as can be seen,for example, in their at best ambivalent evaluation of Woodrow Wilson (2000,175–76).

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