The Concept of Empire in International Law (Carl Schmitt)

Revista de Estudios Políticos issue 1, January/March 1941

The concept of empire which we aspire to introduce into the scientific research of international law as a specific entity within that law, corresponds, in the dimension of space, a large spatial scope. Empires are, in this domain, governing and propelling powers whose political idea radiates in a determined space and which exclude, on principle, the intervention of other foreign powers. Empire and big space are not the same thing in the sense that the Empire is the same large space protected against any intervention; neither is it said that a State or people are a piece of the Empire within it, in the same way that nobody, after the acceptance of the Monroe doctrine, would think of saying that Brazil or Argentina are an integral part of the United States of America. But every Empire has a long-range spatial sphere in which its political idea radiates and which should not be exposed to foreign intervention.

Fundamental to our concept is the connection between Empire, big space, and the principle of nonintervention. By virtue of this connection, the concepts of intervention and non-intervention, essential in any international law system based on the coexistence of different peoples, gain theoretical and practical usefulness; concepts that today are inevitably distorted. In the old international law, built on the concept of the State, Talleyrand's ingenious wit that “nonintervention” meant more or less the same thing as intervention, was more a fact of everyday experience than a paradox. But from the moment that these long-range spatial spheres are given a place in international law and that, added to this, there is the prohibition of intervention imposed on powers foreign to them, from the moment that the concept of an empire points to the stars, it is easily conceived that in a logically distributed Earth it must be easy to put limits in the coexistence of different peoples. After this, the principle of non-intervention will be able to work its ordering virtue in a new international law system.

We know perfectly well that the name “Deutsches Reich” (German Empire, or Kingdom) is untranslatable in its concrete peculiarity and sovereignty. Every genuine historically-great political entity has the virtue of producing from its own bosom its own irreplaceable denomination and of imposing its own name. “Reich”, “Imperio”, “Empire” are not one and the same thing, and if one looks at them from the inside, they cannot be compared with each other either. While the term “Imperium” often has the meaning of a universalistic, all-encompassing, all-embracing, supranational figure (though not necessarily, since several empires can coexist), our German “Reich” is essentially determined by the national and by a non-universalistic legal order, based on respect for all peoples. While the term “imperialism” has become, since the end of the 19th century, a purely economic-capitalist method of colonization and expansion, often used as a mere slogan, the word “Reich” has been cleansed of this taint¹. The reminiscences of certain conceptions of the peoples of the decadent “Roman Empire,” as well as the ideals of assimilation and miscegenation of the Western democratic empires, place the concept of the “Imperium” in open contrast to a concept of the “Reich,” as seen from the national point of view, and respectful to all national forms of life. This has even greater influence if one considers that the German “Reich,” situated at the center of Europe, is also located between the universalism of the powers of the liberal democratic West — assimilator of peoples — and the universalism of the Bolshevik East — of a world revolutionary sign — and has to defend on both fronts the inviolability of a non-universalist, national, and respectful order of life for the peoples.

However, when considering international law, it is necessary to take into account not only the intimate peculiarity of the political entities that support and shape the international political order, but also their coexistence and cohabitation. Practical and theoretical reasons make it necessary to always keep in mind the way in which these real entities coexist, cohabit, and position themselves in relation to each other. Any other criteria entails either the denial of international law, insofar as it isolates individual peoples, or its falsification, in the way in which the Geneva Law of the League of Nations has falsified the Law of Nations in favor of a universalist worldwide law. The possibilities and the future of international law depend, therefore, on these entities that really maintain and shape the coexistence of peoples being fully known. Today, as in the 18th and 19th centuries, these sovereign and shaping entities are no longer states, but empires.

It is very important to get the name right. The word and the name are never an accessory, especially when it comes to historical and political entities whose purpose is to serve as a basis for international law. The struggle over the terms “State”, “sovereignty”, “independence” was a symptom of a profound political struggle, and the victor not only wrote history, but also determined the vocabulary and terminology. The name “Empire” proposed here is the one that best defines the true international-legal content of the connection — our starting point — between the vast space, the people and the political idea. It is a name that does not exclude the peculiarity of each of these empires. On the other hand, it is saved from that empty generality which threatens international law, such as that which is wrapped up in these words: “zone of influence”, “bloc”, “spatial complex”, “community”, “commonwealth”, etc., or the new spatial denomination of “zone”; it is a concrete and clear-cut name if one takes into account the reality of the present situation of the world. It also provides us with a common name for the multiple and normative entities without which research and even the possibility of understanding each other would come to an end. At the same time, it avoids another dangerous error on international law, which consists in specifying, in isolation, each of the individual political entities, thus breaking all connections. It corresponds at the same time to the usual language, which uses the word “Reich” in its various combinations – kingdom of good and evil, kingdom of light and kingdom of darkness, plant kingdom, animal kingdom – as an expression either of a cosmos in the sense of a concrete order, or of a historical power ready for war and struggle, capable of confronting opposing kingdoms; but which in all times has also served to give a specific name to the great historical formations: empire of the Persians, of the Macedonians and of the Romans, empires of the Germanic peoples and of their adversaries. We would be departing from the sense and the objective of our work, exposing ourselves to endless disquisitions, if we tried to study all the imaginable possibilities of philosophical-historical, theological interpretations to which the term “Empire” can give a pretext. What matters to us is to provide a counterpart to the old central concept of international law, “the State,” a simple concept, usable in the field of international law, but which, because it is so deeply rooted in the present, is a higher, superior concept.

The old international law developed throughout the 18th and 19th centuries and continued into the 20th century is, in fact, pure law between states. Despite some isolated peculiarities and the few cases in which this principle is relaxed, it recognizes only states as subjects of international law. There is no mention of empires, although any attentive observer can only marvel at how the vital political and economic interests of the English Empire are harmonized with the precepts of this international law. International law textbooks fail to depict the English Empire as anything other than a “union of states.” However, the concept of the English “empire” is of a special kind, and those who look for it as a “union of states” will not be able to find it. By its own unconnected geographical situation it is of a universalist sign. The title of Emperor held by the King of England, which expresses the idea of a world empire, is linked to very distant colonial positions in distant Asia, overseas: India. The title of Emperor of the Indies, created by Benjamin Disraeli, is not only a personal document of the “orientalism” of its inventor, but also responds to the fact that Disraeli himself expressed in these words: “England is really an Asiatic rather than a European power.” Such a world empire does not correspond to an international law, but to a general law of the world and of mankind. But, as we have already said, within the systematic and conceptual framework of the science of international law, no empires have hitherto been admitted, only states. Of course, in historical and political reality, there have always been “great allied powers.” There was a “concert of European powers” and in the Versailles system, “the great allied powers.” The development of legal concepts had always adhered to a general concept of the “state” and the legal equality of all independent, sovereign states².

The science of international law has never been concerned with the actual hierarchy of the subjects of international law. The jurisprudence of the League of Nations has never openly and consistently admitted effective and qualitative diversity, despite the many investigations into these problems, even though the fiction of equality in international law lost all semblance of truth and reality in the League of Nations in the face of the evident hegemony of England and France.

It has long been common knowledge that this outmoded concept of the state as the central concept of international law is neither true nor realistic. A large part of international law scholarship in Western democracies, especially the jurisprudence of the League of Nations, has set out to dethrone the concept of the state by attacking the concept of sovereignty. This was intended to give this overcoming of the concept of the state in international law a pacifist humanitarian turn, with the nimbus of a universalist worldwide law whose time seemed to have come with the defeat of Germany and the founding of the League of Nations. Here, too, the pre-established harmony between international law and the political interests of the British Empire, to which we referred earlier, was honored and may even be said to have reached its climax. As long as Germany was defenseless and weak, it did no more than stand on the defensive against these tendencies, for it was enough, from the point of view of international law, if it succeeded in defending its political independence and preserving its statehood. The triumph of the National Socialist movement enabled Germany — albeit from a different point of view and with other aims than the dethronement of the state in the universalist pacifist sense — to set sail victoriously towards the overcoming of the concept of the state in international law. The powerful dynamism of our foreign policy obliges us to quickly examine the current state of international law and to try to clarify it by introducing into it our concept of Empire, once Minister Lammers³ and Under-Secretary Stuckart have specified the legal-political and constitutional significance of this concept. The ordering principle used by the outdated international law between states is the assumption of the existence of a specific order with certain properties, i.e. of a “state,” in all members of the inter-national legal community. I will not detract from the fact that in Germany it has been the concept of the people which in recent years has overturned the predominance of the concept of the state in international law. But it is not permissible to lose sight of the fact that the old concept of the state contains within itself a minimum of internal organisation, capable of calculation and internal discipline, and that this minimum of organisation constitutes the real basis of all that can be considered as the particular order of the “community of international law.” Above all, as a recognized institution within the inter-state order, war is justified as law and order because it is a war between states; that is to say, it is states as specific orders that wage war against other states as specific orders placed on the same plane. In the same way that the internal order and justice of a duel, when it has been legally recognised, lie in the fact that one and the other party appear face to face as men of honour capable of giving mutual satisfaction (even if their physical strength and their skill in the handling of weapons are often different), war, within this system of international law, is a relationship between one order and another order, in no way a relationship between an order and a disorder. This latter relationship between an order and a disorder is a “civil war.”

In international inter-state law, only neutrals can be the impartial witnesses who always take part in these duels between states. The whole of the old inter-state international law had its real guarantee not in an idea of justice with any content, nor in an objective distributive principle, nor in an international legal consciousness, which during the Great War and at Versailles was clearly lacking, but in the balance between the different states (always, of course, in accordance with the foreign policy interests of the British Empire)⁴. This principle corresponds to the idea that the forces of the numerous large and small states are constantly being balanced and that a coalition of the weak automatically arises against the strongest, which is then prevailing and therefore the most dangerous for international law.

This wavering balance, different in each case, in perpetual consolidation and therefore unstable, can occasionally be a guarantee of international law, depending on the state of affairs, especially when there are sufficient neutral powers. The neutrals are thus not only impartial witnesses to the war duel, but also the real guarantors and guardians of international law. In such a system of international law there is both real international law and real neutrality. It is no accident that the League of Nations is based in Geneva, and there are good reasons for the Permanent Court of International Justice to be located in The Hague⁵. But neither Switzerland nor the Netherlands are strong neutral powers capable of defending international law on their own in case of danger. When there is no strong neutral power, as it was the case during the Great War of 1914-1918, there is no international law either, as we have learned.

Ancient international law also rested on the tacit, but essential and for many centuries real, assumption that this balance, the guarantee of international law, revolved around a weak central Europe. It only succeeded in working when it was possible to play medium-sized and small states off against each other. As Clausewitz clearly shows, the German and Italian states of the 18th and 19th centuries serve as small and medium-sized weights that are placed on either side of the scales to balance the great powers against each other. A strong political power in Central Europe was bound to upset an international law constructed in this way. The jurists of this type of international law could well claim, and in some cases even believe, that the world war waged from 1914 to 1918 against a strong Germany was a war for the sake of international law itself, and that the apparent annihilation of Germany's political power in 1918 was “the triumph of international law over ‘brute’ force.” It is very important, not only from the point of view of political history, but also from the point of view of scientific legal research — and this is not an extralegal thing — to reflect on this state of affairs in order to understand exactly what today is the turning point in the process of international law. For today, faced with a strong and new German Empire, this arsenal of concepts directed against a strong German Empire is once again being fiercely mobilized in the Western democracies and in all the countries influenced by it. International law journals which consider themselves rigorously scientific do not hesitate to serve this policy and collaborate in the moral and legal preparation of a “just war” against the German Empire. The work by S. W. Garner, titled “The Nazi proscription of German Professors of International law”, published in the January 1939 issue of the American Journal of International Law, is a truly astonishing document in this regard. In recent years, German international law scholarship has endeavored, as we have already said, to convert international law from a purely inter-state order into a true law of nations. Among the publications that have followed this line, Norbert Gürke's first systematic essay on the concept of the people, entitled ‘Volk und Volkerrecht’ (Tübingen, 1935), deserves to be singled out for its positive scientific value. But it is not possible, of course, nor does Gürke intend to do so, to simply change the old international order into an order between peoples. This would merely add new substance and breathe new life into the old inter-state order through the concept of the people. In place of an abstract and intimately neutral concept of the state, a substantive concept of the people would be introduced, while retaining the systematic structure of the outmoded international legal order. A simple transfusion of blood into the old veins would be tantamount to using or refilling the old law between states in search of a law between nations. However great the merit and success of this effort may be, I believe that we should not lose sight of these two extremes.

The first point concerns the elements of international legal organisation contained in the old concept of the State as an entity determined from the organizational point of view. The “State,” in the sense of the international legal order, presupposes, in any case, a minimum of organisation, discipline and functioning that can be calculated. I do not wish to enter here into the controversy stirred up by Reinhard Höhn, who resolutely and consistently defines the state as an “apparatus,” while the other side operates with different representations. For example, the state as a form or as a figure. Gottfried Neess' formulation that the state is essentially an organization and the people an organism will suffice here. But apparatus and organization are by no means, as Höhn well knows, “nonspiritual” things. The modern coexistence of diverse peoples and especially that of large or threatened peoples demands a rigid organization in the proper sense of the word, it requires a minimum of internal consistency and calculability. All this calls for high spiritual and moral qualities and not every people is up to this minimum of organization and discipline. The struggle that the science of international law wages against the concept of the state would miss the mark if it did not do due justice to the authentic act of organization, which, although in reality it was sometimes problematic, was not so in principle, inasmuch as it was consubstantial with the ancient concept of the state. A people incapable of organization cannot be the subject of international law. Thus it was demonstrated, for example, in the spring of 1936 that Abyssinia was not a state. Not all peoples are in a position to pass the test of capacity which the creation of a good modern state apparatus implies, and very few are capable of coping by themselves with a modern war from the industrial, technical and organizational point of view. A new arrangement of the terrestrial globe and the capacity to be the subject of international law of the first order requires an enormous amount, not only of “natural” qualities, which are given by themselves, but also of conscious discipline and extreme organization and the faculty, attainable only by an immense effort of human intelligence, to create with its own energies the apparatus of a modern community, to hold the reins with sure hands.

The second point refers to the elements of international-legal organization of the ancient concept of the state, which are contained in it as a spatial order. For any international-legal notion, of support or subject of the international-legal order to be valid, it requires, in addition to a personal end (the state or nation to which it belongs), a possibility of territorial delimitation. Even the most extreme English pluralists admit this aspect of the concept of the State. G. D. H. Cole, whose opinion in this respect is perhaps more authentic than that of the Jew Laski, the one most often quoted when English pluralism is discussed, says, for example, that the State as a “political body” is “an essentially geographical grouping”⁶. Instead of entering into lengthy disquisitions, I prefer to draw attention to a sign of great importance. The modern technical triumph over space by means of aircraft and radio has not led in international law, as was originally expected and could be expected judging by other analogies of great importance, to airspace being considered in international law in the same way as the free sea, but to date, on the contrary, the principle of the territorial sovereignty of the State over its atmospheric space has been the basis for all contractual or non-contractual regulations of international aviation and radio. From a technical point of view, it is a strange and even grotesque case if one considers how many sovereignties a modern aeroplane is subject to, which in a few hours flies over many small states, or if one considers the result of so many sovereignties of states over the electric waves which, in the blink of an eye, circle the globe through space uninterruptedly. This is the basis for overcoming the old central concept of the state in the scientific field of international law on the basis of the present situation.

There is no lack of important attempts in this direction. In Germany, due attention has not been paid to the fact that a theory based in England has taken advantage of modern technical development to a large extent in order to open the way for a universalist worldwide law, supported by the League of Nations or other organizations, after the state has been superseded, thus making the supersession of the state in a universalist sense plausible. These considerations have helped J. M. Spaight to assert in many of his writings⁷ the idea that modern technical developments, especially in aviation weapons, will have to overcome the war between states and that aviation will be sufficient to keep the whole Earth in order and in peace, so that wars between states will automatically end and there will only be room for civil wars or the war of sanctions. Such constructions, which are sometimes so impressive, show that the problem of a new spatial order cannot be postponed in the science of international law. But in the concept of the people as such, there is no new element of spatial organisation that goes beyond the 19th century idea of the nation state and is clear enough to convincingly shake the old international order from its foundations in legal-scientific terms.

The measures and rules of our concept of space have in fact changed fundamentally. This is also decisive for the development of international law. The European international law of the 19th century, with its weak central Europe and the great Western powers in the background, seems to us today to be a small world overshadowed by giants. This horizon no longer fits into an international law conceived in a modern way. Today we think in terms of planetary proportions and large spaces. We know that a new distribution of space, which Director General Wohlthat and General Ritter von Epp⁸ have already told us about, will inevitably come about. In such a state of affairs, between the purely conservative acquiescence to the old inter-state idea and the drift towards a universalistic worldwide law, which ignores the state and the people, advocated by the Western democracies, it is up to the German science of international law to come up with the concept of a concrete spatial order of great breadth; a concept which avoids both dangers and at the same time does justice to the spatial proportions of the present picture of the Earth, as well as to the new concepts of State and People. Only the international legal concept of empire can, in our eyes, fulfill such a task, as a concept permeated by a certain conception of the world and, in the spatial order, by the principles of a vast spatial sphere which excludes the intervention of foreign powers and of which a people is the guarantor and guardian, and which proves itself equal to the task.

However much scientific work remains to be done in order to establish our concept of empire in all its details, it is certain that its key position for a new international law is as uncontroversial as its distinctiveness, in relation to the old state order of the 19th century, and the goal of a universalist world empire is easy to understand and identify. When, in the autumn of 1937, I presented my report on “The Turn Towards the Discriminatory Concept of War”⁹ to the Law Research Section of the German Academy of Law at its fourth Assembly, the general political situation was quite different from the present one. The concept of empire could not then have become the cornerstone of the new international law, as it is now. Following that report, the question arose as to what new thing I would bring in place of the old, since I did not want to remain with the old, nor did I want to submit to the concepts of the Western democracies. Today I can give the answer. In a new international law, the ordering concept is our concept of empire, which takes as its point of departure in the spatial order a very large national sphere supported by a people. We see in it the essence of a new way of thinking about international law which starts from the concept of the people and leaves the ordering elements contained in the concept of the state intact, while at the same time honoring the current notion of space and the disposition of political forces; it measures with a “planetary” measure, i.e. with the spatial measure of the Earth, without annihilating peoples and states and without setting sail for a universalist and imperialist world law like the imperialist international law of the Western democracies, once the old concept of the state has been superseded.

The idea of a German Empire supporting and shaping a new international law would previously have been a utopian dream, and the idea of an international law built on such an empire no more than a mere desire. Today, the weak and powerless Central Europe has given way to a strong and unassailable Europe, capable of radiating its great political idea throughout Central and Eastern Europe, namely, the respect due to every people as a vital reality, determined by its way of being and its origin — blood and soil — and capable of rejecting the interventions of non-national powers foreign to its sphere of influence. The Führer's action has given the idea of our Empire political reality, historical truth and a splendid future in international law.

1. It would go beyond the framework of our exposition if we were to elucidate here on the concept of imperialism and confront it with its copious literature, a topic we reserve for another occasion. But I do not want to fail to allude to the extremely clear exposition of Werner Sombart in his book Das Wirtschaftsleben im Zeitalter des Hochkapitalismus. Der Moderne Kapitalismus, volume III, r, München und Leipzig, 1937, p. 66 ff.; and to the work of Carl Brinkmann Imperialismus als Wirtschaftspolitik, Festgabe zu L. Brentanos 80. Geburtstag, 1925, and to what H. Triepel says in his book Die Hegemony (1939), pp. 185 f., on imperialism and hegemony

2. Carls Bilfinger: “Zum Problem der Staatengleichheit im Völkerrecht”. Zeitschr. f. ausl. öff. Recht und Volkerreckt, vol. IV (1934), p. 481 ff., and “Les bases fondementales de la communauté des Etats”, in the Recueil des cours de l'Académie de Droit International, 1939, p. 95 ff. (Egalité et communauté des Etats).

3. Hans Heinrich Lammers: “Staatsführung im dritten Reich”, in the lecture series of the Austrian Academy of Administration. Berlin, 1938, p. 16: “The term ‘Third Empire’ of the Germans, which unites in itself the idea of the state and the idea of the people, is, in my opinion, of the greatest legal-political importance and the first exact designation of the German state”. In the same vein, the Völkischer Beobachter of 2, 3 and 4 September 1938. Wilhelm Stuckart first spoke of the Empire as a national form and order of life in the lecture entitled “Party and State”, delivered before the Assembly of German jurists in 1936, pp. 271-73.

4. Fritz Berber: Principien der britischen Aussenpolitik (Principles of British foreign policy. Published by the German Institute for Foreign Policy Research. Berlin, 1939, p. 20 ff.).

5. Christoph Steding: “Das Reich und die Krankheit der euröpaisch Kultur”, Hamburg, 1939. Also, by Carl Schmitt: “Neutralität und Neutralisierung”, in the German Journal of the Science of Law, vol. IV, 2nd volume, 1939.

6. “Conflicting Social Obligations”, in Proceedings of the Aristotelian Society, new series CV (1915), p. 151.

7. Air power and cities. London, 1930 (Continuation of Air power and War Rights, 1924).

8. Wohlthat: ‘Grossraum und Meistbegünstigung’, in the D. Volhswirt of 23 December 1938. Ritter von Epp: Speech of 23 February 1939; see Hakenkreusbanner, No. 56, p. 2.

9. Published in the vol. 5 of the Section of International Law (Publications of the German Academy of Law, edited by Minister Dr. Hans Frank) Dunker und Humbolt, Munich, 1938.