Nomos Beyond the Earth
Josh Entsminger
Abstract
The 21st century citizen is built off a postmodern subject caught in economic,
social, legal, and political systems which are no longer bound to the state but have
become ‘global’ in scope. In this paper, I will argue that the conditions of
citizenship surrounding the postmodern subject have by nature of their global
scope become intrinsically intertwined with the global scope of the terrorist in so
far as the terrorist represents a subjectivity, which may envelope and qualify a
subject, which by nature of its violent possibility brings forth the constitution of
the international legal and political order in terms of global governance.
Specifically, this paper argues that, following lines of thought from Carl Schmitt
and Michel Foucault, the current international order has radically shifted since
World War II in an international legal referent shift from territory to humanity
which delegitimizes war but absolutely legitimated ‘humanitarian intervention’
which in turn transformed the nature of political violence in its production of new
subjectivities to which the international order now refers. The most important of
these subjectivities as they come to define citizenship are (potential) victim and
(potential) terrorist and their diffusion brings into question not only the form of
citizenship but also the nature and constitution of space and life. In order to
evaluate the question of life and subjectivity production the paper will purse the
notion of convergence of extended neoliberal capitalism and anatamo- and biopolitical reasoning into the formation of what may be called the bionomy, being the
form of capture, administration, and management of life and subjectivities and
their appropriation, distribution, and exploitation on a global scale when land
appropriation is illegal. This paper hopes to critically engage with the constitution
of citizenship in an age where the legitimacy of life is a serious question.
Key Words: Citizen, nomos, Schmitt, Foucault, terrorism
*****
“The earth seemed unearthly. We are accustomed to look upon
the shackled form of a conquered monster, but there—there you
could look at a thing monstrous and free. It was unearthly, and
the men were—No, they were not inhuman. Well, you know, that
was the worst of it—this suspicion of their not being inhuman.”
-Marlowe, Heart of Darkness
1. Introduction
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There is no transformation of the world which does not implicate a
transformation of the subjects which produce that world and are produced by it.
Just as well, there is no transformation of subjects which does not implicate a
movement of the relations by which the subjects are made, by which they make
each other, by which they risk their unmaking, and by which they come to produce
the reality by which they lay claim to the world they deem to be so.1 Politics can
perhaps be taken as the contestation of these realities, and in turn of the worlds
which we say are and which we desire and hope to be so, on the terms of certain
strategies and designations of relations for which power is immanent and
modification, making, and capacitation are inherent. Politics, and political
discourse, is a structural exercise and the realities it confers are not the problem
merely of subjects but of subjects in so far as they incur a capacity and relations by
which they are designated and designate themselves as citizens.
The citizen of the 21st century is built off a postmodern subject not only
implicated in systems far beyond what they often confer to be their ‘situation,’ but,
and in direct contrast to a modern subject, has a conscious apprehension, and hence
an almost implicit uncertainty, of the actuality of their situation and their capacity
as such. The designation of a subject as postmodern denotes that the way in which
the subject is constructed and the lines along which it is made functional are an
effect of postmodern uncertainty of viable production (work, voting, defense…)
and violent, or damaging, potential.
In turn, the citizen is always encoded along the lines of its subjectivities,
or the ‘selfhood’ of a subject and the identities it designates as well as the identities
produced by its actions, for instance citizen, terrorist, hipster, by which its
productive capabilities and violent potential can be monitored, managed,
modulated, and if necessary, intervened on. For the citizen can be termed a base
subjectivity for a given subject and designates in turn a specific capacity for
political, economic, and social action produced and modulated by merit of its
‘embeddedness’ and especially its dis-embeddedness and ‘integration’ in such
systems linked both to and beyond the nation-state; however, and more
importantly, the citizen as conferring a specific capacity is also regulated by the
rights and responsibilities given to that citizen, which are in short the terms by
which the citizen may be violated.2 All subjectivities are regimes of codification
conferring modes of engagement and this codification implies an assemblage of
apparatuses concerned with managing the subject by its subjectivities and potential
actions along the spectrum conferred by that subjectivity.
Post 9/11, and to an extent post World War II, has seen the transformation
of not only the mode of war but the relations, subjectivities, actions, and order
insinuated by it. In order to understand the conditions of the citizen and their
situation one must understand the conditions of their modification and regulation
which in the 21st century necessitates the notion of the order of the earth, or the
Nomos, and the power-relations, subjectivities, and terms of reference and
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legitimation by which it is constituted which can perhaps best be seen by looking
to the subjectivities of terrorism and victim by merit of their extreme situational
overcoding and their conferred implication of the transformation of the referent of
intervention, war, and order from territory to humanity.
2. The Life of Power
The life of subject, of a body, does not belong to them; rather, life is very
the situation of the body to which the subject belongs. This situation can perhaps
be titled the capacity-milieu of a subject. The capacity denotes the capabilities of a
body and potential that it has in a given environment. In contrast, the milieu
registers the capacities of other bodies and their potentials as producing a system
and defining a specific network of relations per that environment which modulates
the capacity of that body and which that capacity comes to modify. For Foucault,
‘The milieu is a certain number of combined, overall effects
bearing on all who live in it. It is an element in which a circular
link is produced between effects and causes, since an effect from
one point of view will be a cause from another.3’
Capacity and life confer the actionable potential of any given body and the ways
in which it is restricted and managed; as much as a citizen can engage in political
discourse the way they engage and are engaged are encoded into the discourse
itself.
The integration into such systems and the capacity-milieu one becomes an
extension of comes to confer the trajectories, choices and paths, which one can not
only make but deem wise or be forced to take. The trajectories, combined with the
capacity-milieu come to provide the basis for life as register of the capability for a
body to act and the terms by which a body may be fostered or transgressed and
how each may be recognized and codified in turn.
This is subjectivity production, the potential and capability for a body on
the lines of its viable production and violent possibility turned into systemic
codification and thus an inscribed expectation, a virtuality given in what the body
is expected to do yet still differentiated on the basis of its specific codification.
Also registered is the specific subjectivity the subject gives to themselves by the
acts, trajectories, and identities they pursue as a function of their milieu, which in
turn may be denoted as their method. A capacity is always coupled to a milieu
which is always moulding the trajectories which is always actionable on the basis
of methods or strategy to be used. Power is immanent only because it is actuated
not simply be the individual exercising power but the milieu in which such
exercises are capable of being done. Without a milieu there is no power, and there
is always a milieu if the body is open, and it is precisely on the terms of the body
being vulnerable, open, and its action being modifiable that power matters.
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Power modifies actions and capacity but furthermore, everybody is a
liminal site, relay, or mechanism of power as they produce themselves as subjects.4
As they make themselves as subjects they incur a specific capacity which makes
the mas viable for power as it posits them as a potential site of resistance. 5 As of
such, in terms of power there is no body which is not part of or capable of
actuating a multiplicity; a body is always multiple in terms of its relations and
extensions by which the capacity-milieu exists and develops and by which people
operating systems of power are interested in that body.
As much as a body, as a subject, as a citizen can be a mechanism of power
they can also disrupt it and the degree of effect of this disruption in both
trajectories and the capacity so determined is not localized to society, nor to the
state metastasised to the bodies producing the illusion of said society, but are in
fact conferred to a series of processes which take the nation-state and it semiincorporated society as its means and their global integration as its ends.
3. The Power of Life
The 19th century, for Schmitt and Foucault, saw the manifest
transformation of the terms of international order and constitutive power relations.
The transformation of power relations was registered in two respects.
The first is what Foucault termed anatamo-power. Anatamo-power
confers the effect of the body which modulates themselves as given by the politics,
or strategy of power, concerning the techniques, methods, and modes of
intervention oriented around the physicality of the body and its production under a
specific norm and apparatuses of normalization into a functional, and usually
docile, subject.6 This power is concerned with the production of regimes of
normalization which deal with the body directly as well as supplying specific
procedures and techniques on the basis of the subjectivity the subject initiates.7
Anatamo-power deals with the capacity directly and deploys a specific milieu to
develop and mould the trajectory of a given body. Anatamo-power gives
normalized functioning to the capacities of the body.8
The second respect is termed biopower, and it concerns the power to
foster life or disallow it to the point of death, to make live or let die, and in turn is
demonstrative of certain norms which give how the body is invested and how it
may or may not be violated as a body.9 Bio-politics is the strategy of power
concerning this body-as-species in relation with a population concerning calculable
statistics centring on birth and mortality and everything affecting them.10 What was
incurred by such a power was the ‘distributing the living in the domain of value
and utility.’11
The right to foster life or disallow it to the point of death was given from
what Foucault determined to be the old sovereign right of the sword, the power to
take life or let live, in the sense of execution or in sending the citizens to power and
exposing them to death directly.1213
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This new power does not replace the old power but instead
saturates it14; the body under biopolitics is specified on the terms of subjectivity
only on its valorization in terms of viable production and potential violence
conferring what technique by which the population may be intervened on in order
to alter gross statistics.1516 Just as well, these two powers are directed at very
different points of intervention originally but are now developed more and more in
terms of the intervention on specific multiplicities and the capacity to individuate
the multiplicity and relate the multiplicity and its constitutive individuals back to a
population, and the population, multiplicities, and individuals to the notion of
humanity from which they take their legitimate standing.17
The 19th century witnessed the end of what Carl Schmitt termed the
Nomos of the Earth. A concrete international order centred around Europe and
developed on the terms of limiting war, or its ability to develop into wars of
annihilation on the basis of managing war on terms of just enemies instead of just
wars, between European states while simultaneously constituting specific border
lines beyond which the juridical order present in Europe is said to be absent. 18 For
Schmitt, every nomos needs an outside, a place beyond certain lines, in which war
can be had, but even more so, in which land-appropriation can occur. 19
Nomos is thus the appropriation of its referent object, and its subsequent
measure, distribution, and production resulting from the appropriation. This in turn
leads to order and orientation and the dialectical emergence of law from them.20
The conditions of order specify the object which such nomothetic order will derive
its source and each constitutive nomos operates in a different manner on these
processes but always in the same order – appropriation, then distribution, then
production. 21
With the 20th century came the primacy of economics over politics in the
manifest destiny of liberalism.22 Liberalism, in its deployment towards
universalism, however, embodies an internal contradiction and inherent conflict
towards any land based order.23 For liberalism in wanting to universalize itself
through capitalism necessitates an outside to exploit but cannot have an outside if it
wishes to universalize itself in space.24 This is to a great extent what would come to
end the utter spatial reference of the international order.
This began the end of war and the birth of global policing, but as well
with the quick proliferation of the atomic bomb there followed another
transformation of the world.25 With the atomic bomb came the end of defense and
the beginning of security, it was no longer to defend the wall but to secure the open
spaces, the street.26 With a nuclear weapon there is absolute destruction and no
possibility for discriminatory conflicts between combatants and civilians – the
atomic bomb insured anxiety the formation of the potentiality of everyone as a
casualty of war, whereas terrorism provided uncertainty in the actuality/potentiality
of the combatants of a war.2728
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This was the emergence of the age of anxiety, an age of potentiality but
not virtuality, and all subjects were potentially victims of the political will of the
men at the button, but were not virtually without life because of it.
With Nuremberg came one of the most important juridical points, the
criminalization of the opponent for the ‘crime against humanity and as well the
crime of aggressive war.29 With the UN came the non-proliferation treaties and the
global declaration of human rights and the solidification of the problem of
humanity.30
In context of the results of Nuremberg and the UN, and the expansion of
the economy which at this time could be called denationalized and globalizing
came the emergence of nomos beyond the earth in the formalization of the
bionomy, the denationalized and globalized administration and regulation of life in
its subjectivities as relating to the expanding liberal order and its organizing under
institutions of global governance and institution in states and societies per cultural
orientation in reference to the ‘greater’ neoliberal usages of democracy and
capitalism, which are dealt with coterminous. The bionomy takes/captures
humanity.
The bionomy is the point of organization of life [as labor, as capital, as
commodity, as legitimacy] for a transnational economic, political, and social
system of constituent relations which provided the ordering principle between
ideo-economically divided countries and functioned in the appropriation of life
when land appropriation was criminalized and it transformed into the constitutive
lines of international order in the determination, valorization, and codification of
the subjectivities, the subjects to which they refer, and the norms and normals by
which the subjects are managed, regulated, and potentially intervened on along the
lines of a convergent relation among anatamo- and biopolitical reasoning,
strategies, and techniques of power.31 In political alignments, the life of said
country entered into new global subjectivities which in turn determined the
biopolitical apparatuses methods of approaching the strengthening of the
bionomy.32 The subjectivity delineations were defined according to their relation to
the expanding market system and were treated accordingly in the identification of
the subjects, given in series, and the methods of dealing with them according to
their often economically determinate value, the citizen is here as much a national
phenomenon as an integral function of global governance in terms of humanity.33
To control humanity is to control the ways in which one may distinctly
claim inhumanity, and this distinction is the penultimate display of the suspension
of life as a legitimate distinction given to the body and its life is instead turned into
a valorized object whose very existence becomes a danger to the order constituting
it as such. The bionomy demarcates humanity, and in so doing constitutes a
concrete order of the world on the basis of the configuration of the capacity of each
citizen by the milieu in which they are born into and in which they life is
constituted by the necessities of their situation.34 At the most intimate level with the
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citizen, the bionomy deals specifically with the management and modification of
the capacity-milieu of each citizen on the grounds of their constitutive codification
by the norms of the systems to which the bionomy is made function. Every society
is to a degree bionomic but is not totalized.
Biopower is no longer constituted simply on national lines; rather each
nation and society is now captured and incorporated into a more global enterprise
of valorization and codification, for bio and antamo-politics as conditions of power
relations concern not only management and regulation but also the term of
intervention and what the intervention requires, which is deployed around regimes
of normalization. This regime is produced by the norm constituted on the basis of
humanity and the distinction of inhumanity outside of the terms of the abnormal
criminal or enemy.
The terrorist is not the abnormal; the terrorist is not truly codifiable into
the norm beyond its absolute placement of the limits of the abnormal in terms of
enemy and criminal. Instead the terrorist is an over-coding of all other
subjectivities in its situation as an enemy of humanity. ‘Terrorists are outside the
law.’35 Just as well, the denotation of the victim confers an over-coding of other
distinctions and gives the imperative for intervention on the grounds of the
subjectivities valorization of the bodies to which this life is given. Terrorist and
victim reveal the constitutive nature of the international order as posited not only
as an abstract order of law and subjectivity but also of the concrete localizations of
certain regulation of violent means in terms of who to kill and who to save, as well
as the terrorist and victim by their territorial positioning also give tell to the
conditions and concrete relations producing them.36 Both terrorist and victim are
ciphers for the order deploying it and for the international order legitimating or
deeming illegitimate its usage or any interventions done on its behalf. Naming is
the true constitutive act of appropriation in the bionomy.
3. Conclusion
In return to the initial concern, the life of a citizen does not belong to the citizen
alone, but rather is a function of the capacity-milieu which is developed, invested,
modified, administrated, and intervened on by merit of the citizen, subject, body’s
subjectivity and its subsequent valorization and codification on the terms set by the
bionomic norm and its investiture of that subject, notably on the lines of terrorism
and victim.37 In order to understand the situation of the citizen one must look to
their capacity and the people operating the systems by which that capacity is
modified. For as citizens, there must be a conscious apprehension of the powerrelations constituting them and which mediate the ways in which they may
constitute themselves; otherwise, the citizen is nothing more than flotsam on the
edge of a maelstrom picking up speed.
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Notes
1 Christian Matheis, On Discourse and Relations: Ambiguities of Relation and the Implication for
Methodology and Disciplinarity (Unpublished, December 2011), 23.
2 Ibid
3 Michel Foucault, Security, Territory, Population (New York: Picador, 2007), 21
4 Michel Foucault, The History of Sexuality: Volume I. (New York: Random House, 1990), 95
5 Ibid
6 Ibid, 139
7 This is to treat an adult different from a child on the basis of the childs production into an adult, or of
the criminal being punished.
8 Ibid
9 Ibid
10 Ibid
11
Ibid, 144
12 Death, here, is precisely what biopolitics concerns but not as a specific non-value of life. Rather,
death is the point at which power cannot effectuate; a dead body, apart from the symbolic power of
death, or other physical tasks, is uninteresting to power-relations. Death is precisely what makes power
relevant in terms of the investment and fostering of life.
13 Ibid,135
14 Ibid, 139 ‘…anatomical and biological, individualizing and specifying, directed towards the
performances of the body, with attention to the process of life—characterized a power who highest
function was perhaps no longer to kill, but to invest life through and through.’
15 These powers give tell of the productive function of power, or the positive function of power in
relation with the negative function of power conferred as repression, violence, torture, and rights to kill.
16 Ibid
17 A population is itself a multiplicity, and the most important multiplicity which asserts the normal
and the norms by which anatamo- and bio-politics function is on the terms of population to state, but
more so, of multiplicity, individual, or population to humanity.
18 Carl Schmitt, The Nomos of the Earth. (New York: Telos Press Publishing, 2003), 33
19 Ibid, 30
20 Ibid, 326
21 Ibid, 351To understand the shift of the nomos, one must look to the etymological formation of
nomos as given by Carl Schmitt Nomos is a nomen actionis, an action and process, for the verb
nemein. Nemein’s primary meaning is ‘to take,’ ‘to appropriate.’ Its second meaning is teilen, to divide
or distribute. Which means nomos is also the action and process of division and distribution.
‘Abstractly speaking, nomos is law and property, or the part of share of the goods. The third meaning is
weiden meaning to pasture, to produce, to manage, or to exploit. It is usually associated with the
productive work that normally occurs with ownership.
22 Ibid, 258
23 Economics itself takes its power from the meaning of nomos/nomothetic derivative in nomy; where
the oikos, the household, becomes the object and material of administration and management in being
the eco-nomy or the oeco-nomy.
24 Slavoj Zizek, The Violence of Liberal Democracy (Assemblage, 1993), 92
25 This situation of expanding liberal capitalism in its confrontation with communism was configured
in relation to the proliferation of atomic weapons.
26 The atomic bomb consolidated power into a bipolar relation between ideo-economic constituents of
the “communistic” USSR backed system and the “liberal capitalist” United States backed system, there
was a constituted divide of space but not of land in its relation to life but in life’s ideological
construction of the value of space and the spaces delimitation from land
27 The atomic bomb transformed the world into a singular battlefield, a singular politicized space.
Atomic weapons negate the function of enmity in war
28 Terrorism permeates a population not only in its effects of anxiety and fear but of the fact that as a
terrorism is rhetorically given as capable of being anywhere the notion of biopolitics also gives the
notion that such positive interventions of power may in turn be protecting terrorists.
29 Danilo Zolo. Victors' justice: from Nuremberg to Baghdad. (London: Verso, 2009), 46
30 The core referent of the juridical apparatus in terms of war and terror was life itself, it was humanity.
War was now no longer a legitimate tool of national politics, but as a tool of multilateral political
intervention, it was legitimate.
31 It functioned under political absence and economic presence, where economic configuration marked
political alignment
32 Marked especially by demarcation of the criminal and the capitalist as it were for the liberal order,
33 As such the order of the 20th century was not simply a spatial demarcation of east and west but a
more diffuse formation of subject-species delineations in an expanding global bionomy in a world of
atomic bombs, criminalized war, and the law of humanity
34 The lines of appropriation post world war II do not take their basis in the form of taking of land, but
instead the taking and naming of life under the lines of humanity.
35 Carl Schmitt, Theory of the Partisan. (New York: Telos, 2007), xix
36 Yet the existence of the terrorist subjectivity in its diffusion and the legitimacy of intervention and
the ability to recognize or not recognize the legitimacy of sovereign authority on basis of terrorist ties
or crimes against humanity marks a move from more than a nomos of humanity which exists on the
earth, but a nomos beyond the earth where life as a subjectivity itself is no longer legitimate by land but
by the abstracted power of waning sovereign states whose existence in space is slowly being eroded by
the globalization of the bionomy and denationalization of the economy which both ensue from
processes of the state and within the state and have become exteriorized as larger processes.
37 To deal with and understand the limits of actionable capacity one must understand the points at
which the citizen’s life is an overcoding function, being as victim or terrorist and how each are
inscribed and made into potentialities given to each subject by merit of conditional anticipation of acts
and situations to which the subjectivities refer and derive from.
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Josh Entsminger is a Student at Virginia Polytechnic and State University.