Carl Schmitt and the Origin of Law

Continuing my discussion of the The Nomos of the Earth by Carl Schmitt. Schmitt refers to mythical material on the origin of law, going from Homer to Giambattista Vico’s 18th Century investigations of myth. His account is of the origin of law in the earth.

Earth contains an innate justice in that it rewards the farmer according to productive effort. This is in contrast with the sea which lies outside law. The Greek word equated with law is Nomos. As Schmitt points out, it does not exactly correlate with law, which is why he uses the Greek word in his title. The Greek word equates with custom and in an even more basic way with appropriation. Schmitt argues that the opposition between Nomos as law or custom and phusis as nature comes later than the sense of appropriation, division and taking.

Schmitt compares this with the fundamental definitions of property in social contract theory. He argues that Social Contract theory is essentially about the definition and division of property. The original Ancient Greek sense of property is linked to the home as in the word oikos divide and protect land. which is at the origin of the word economy, which in Ancient Greek times is concerned with management of the home rather than with cash exchange or a market economy, or a national economy of any kind.

The original appropriation/division of property brings in sovereignty, since it is the state which establishes ownersip rights and the division of labour, and furthermore it is the state which carves out land for a people, and it is states whichThe state and sovereignty exist through land and through the possibility of working on the land.

In an appendix Heidegger suggests that we should abandon appropriation, but this is presumably an ironic way of agreeing with what he takes to be the liberal and Marxist approach to appropriation. Both want to replace the violence of appropriation, with a self-governing of the world of economic things without violence, where wealth is produced through socialist planning or liberal spontaneity, with no need for a political order, or at least the minimisation/separation of liberal order . For Schmitt his still always leaves the problem of division, I presume that at the non-ironic level he thinks that distribution is part of appropriation and that both liberal and Marxist approaches are utopian.

Schmitt conjoins sovereignty, law, labour, land, property, division of property, in an ironic struggle with Marxism and Liberalism which both try to eliminate the struggles within politics.

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