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Anides
Political Theory
40(6) 688-713
Carl Schmitťs Critique © 2012 SAGE Publications
Reprints and permission: http://www.
(§)SAGE
Seyla Benhabib1
Abstract
Carl Schmitťs critique of liberalism has gained increasing influence in the last
few decades.This article focuses on Schmitťs analysis of international law in
The Nomos of the Earth , in order to uncover the reasons for his appeal as a
critic not only of liberalism but of American hegemonic aspirations as well.
Schmitt saw the international legal order that developed after World War I,
and particularly the "criminalization of aggressive war," as a smokescreen to
hide U.S. aspirations to world dominance. By focusing on Schmitťs critique of
Kanťs concept of the "unjust enemy," the article shows the limits of Schmitťs
views and concludes that Schmitt, as well as left critics of U.S. hegemony,
misconstrue the relation between international law and democratic sover-
eignty as a model of top-down domination. As conflictual as the relationship
between international norms and democratic sovereignty can be at times,
this needs to be interpreted as one of mediation and not domination.
Keywords
international law, non-discriminating concept of war, the unjust enemy,
cosmopolitanism, sovereigntism, Immanuel Kant, Carl Schmitt
Corresponding Author:
Seyla Benhabib, Department of Political Science, Yale University, 1 1 5 Prospect St., Rosenkranz
Hall, Room 225, New Haven, CT 06520-8
Email: seyla.benhabib@yale.edu
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ßenhabib 689
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690 Political Theory 40(6)
Published in 2000, Rasch's article preceded the attacks on the World Trade
Center and the Pentagon of September 1 1th; the Afghan War; the war on Iraq;
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Benhabib 69 1
Abu Ghraib, Guantanamo and much else. While Rasch's judgment that Schmitt
could be named one of the "Heines of the moment," is certainly an instance of
"perverse irony" (Rasch, 1683), nevertheless, he was correct in sniffing the
"odor of the times," which would come to identify cosmopolitanism with
global imperialism and, in particular, with the project of U.S. world hegemony.
Carl Schmitt has since then, and even earlier, become the indispensable refer-
ence point for all those who want to unveil the hypocrisies, inadequacies, and
maybe even bankruptcy, of liberal democratic politics, at home and abroad.7
My goal in this article is to go to the root of Carl Schmitt's critique of
liberal international law as being a ruse to hide hegemonic aspirations by
considering his neglected discussion of Kant's concept of "just war" in The
Nomos of the Earth in the International Law of Jus Publicum Europaeum .8
Contrary to what Rasch asserts, we will see that Schmitt is no innocent
defender of multiculturalism resisting the Western hegemon. He is an author-
itarian state theorist who wishes war to remain the sole prerogative of sover-
eign nation-states and who fights against international law restrictions on
aggressive war by denouncing the League of Nations, the Kellogg-Briand
pact and Woodrow Wilson for "criminalizing war."
After examining the multiple layers at which Schmitt's argument in his
Nomos of the Earth proceeds (II and III), I focus on a close reading of his
critique of Kant's concept of the "unjust enemy" (hostis injustus) in the
Metaphysical Elements of Justice (1799). Schmitt is not wrong in claiming
that Kant's discussion presents a profound moral argument to limit the jus in
bello (right in war) but that it also contains certain slippages and ambiguities
that may justify humanitarian interventions such as to enable the building of
a liberal international order (IV). My approach is both critical-interpretive
and reconstructive, in that I wish to engage Schmitt's reading of Kant to draw
out broader issues pertaining to international law and sovereignty.
In conclusion (V), I turn to contemporary discussions of these issues,
also raging in the U.S. Supreme Court, and argue that Schmitt, as well as
left critics of U.S. hegemony, misconstrue the relation between interna-
tional law and democratic sovereignty as if this were a model of top-down
domination. As conflictual as the relationship between international norms
and democratic sovereignty can be, it needs to be interpreted as one of
mediations and not one of domination.
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692 Political Theory 40(6)
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Benhabib 693
integrity and a unified jurisdictional authority are two sides of the same coin;
protecting territorial integrity is the obverse side of the power of the state to
assert its jurisdictional authority.
The modern absolutist states of western Europe were governed by the "Jus
Publicum Europaeum" as their international law. However, this model was
unstable from its inception, or in Stephen Krasner's famous phrase, "sover-
eignty is hypocrisy."14 The discovery of the Americas in the fifteenth century,
the imperialist ventures into India and China, the struggle for domination
over the Indian Ocean and the nineteenth-century colonization of Africa
destroyed this form of state sovereignty and international law by chipping
away at its peripheries.15 Not only the West's confrontation with other conti-
nents, but the question whether the non-Christian Ottoman Empire belonged
to the "Jus Publicum Europaeum," showed the limitations of this order.
Though Schmitt himself is not far from idealizing this Westphalian moment
in the evolution of "the law of the earth," his own account documents its
inherent limits and eventual dissolution. The deterritorialization of modern
states goes hand in hand with their transformation from early bourgeois
republics into European empires, be they those of England, France, Spain,
Portugal, Belgium, the Netherlands, or Italy.16
Accompanying these developments have been attempts to formulate a new
law of nations to succeed the "Jus Publicum Europaeum." Foremost among
these were the failed League of Nations' efforts to devise a new legal "spatial
order" between 1919 and 1939 {Nomos, 225; 257-58). For Schmitt, the deci-
sive problem in this period - even more than that of the colonies - is the rela-
tionship of the United States to the League. As he puts it quite bitingly,
In a turn of phrase that could have flown from Jacques Derrida's pen,
Schmitt concludes: "The United States was, thus, formally and decisively not
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694
present in Geneva. But they were, as in all other matters, and hardly ineffec-
tively and very intensely present as well. There thus resulted an odd combina-
tion of official absence and effective presence , which defined the relationship
of America to the Geneva Convention and to Europe" {Nomos, 224-25, my
emphasis; I used my own translation here since the English version has been
somewhat abbreviated).
Schmitt's diagnosis of American exceptionalism - its absent presence -
with respect to the League of Nations, and to international organizations
and international law in general, is quite accurate, and in the period between
the Gulf War of 1 993 and the Iraq War of 2003 has found fresh and recep-
tive audiences. It is this ambivalent relationship of American understand-
ings of sovereignty to a new law of nations that is at the source of the
contemporary concerns of Supreme Court Justices, vis-à-vis international
law.17 Indeed, the United States remains an absent presence , even today,
from the International Criminal Court.
While I find Schmitt's commentary on the historical, geo-political, and
legal gyrations and inconsistencies of the United States as a world power
unobjectionable, we must also be clear that Schmitt critiques American
behavior not to offer a new law of nations but rather to undermine it alto-
gether by showing it to be based on hypocrisies. American hegemony may be
economically and militarily irresistible but it is by no means juridically justi-
fied in his eyes.
Schmitt's personal interest in this matter - and this is the third level men-
tioned above - is to destroy the legitimacy of the emergent world order
between 1919 and 1939, and in particular the criminalization of war through
the doctrine that wars of aggression are legal crimes. With this argument,
Schmitt is not only trying to save the honor of Kaiser Wilhelm II who was
rendered a war criminal by the Allies as a result of the Versailles Treaty of
1919, but he is also trying to save his own honor, since he would refuse to
cooperate with the investigation of the Denazification Commission and would
have his own right to teach ( venia legendi) revoked by the Allies after World
War II.18 If the legal order that emerged in this period under the influence of
the League of Nations and the criminalization of aggressive war was based
upon juridical, moral, and geo-political hypocrisies and contradictions, then
how could the Niiremberg legal order that resulted from the Third Reich's
defeat be anything but a continuation of this bankrupt order? It is in this con-
text that Schmitt's attacks against the "discriminating concept of war," and his
plea to restore the "non-discriminating concept of war" need to be evaluated,
although the preoccupation with these themes derive from his deeply seated
theoretical concerns and do not reflect motives of self-justification alone.
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Benhabib 695
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696 Political Theory 40(6)
nor, again, can any war be either a war of extermination (bellum inter-
necinum) or of subjugation (bellum subjugatorium ), which would be
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Benhabib 697
One can demand "supplies and contributions from a defeated enemy," but
one cannot "plunder its people," nor "subjugate them," nor "rob them of their
civil freedom" {MEJ, 118). So great is Kant's attempt to circumscribe war in
accordance with moral precepts respecting the dignity of the person and the
moral status of peoples, that he even prohibits states from using their subjects
in such a manner as would make them "unfit to be citizens" once hostilities
are concluded {MEJ, 117). This includes using people as spies, assassins,
poisoners, snipers and for spreading false rumors. Wars must be concluded by
treaties and prisoners must be exchanged without ransom.
It is clear that Kant is at pains to limit both the right to go to war (jus ad
bellum) and the right within war (jus in bello) in as much as possible to accord
with the principle of treating human beings as ends and never only as means.
Schmitt also praises "Kant's greatness and humanity" (Nomos, 142; 170), but
is greatly puzzled by the turn Kant's argument then takes in paragraph 60 of
The Metaphysical Elements of Justice, when Kant introduces the concept of an
"unjust enemy" [der ungerechte Feind] (MEJ, U 60, 11 8). Whereas the idea of
a non-punitive war among states is, in Schmitt's terms, "a non-discriminatory
concept of war," with the introduction of the concept of an "unjust enemy,"
Kant's thought threatens to regress back to viewing war as justa causa and to
see the enemy, " the hostis ," as a criminal. But who is the "unjust enemy,"
against whom the right of those who are "threatened by him or who feel threat-
ened by him have no limits?"24 (MEJ, ^ 60, 118; Nomos, 141; 169).
Kant's answer is that this is "an enemy whose publicly expressed will
(whether by word or deed) reveals a maxim by which, if it were made a uni-
versal rule, any condition of peace among nations would be impossible and
instead a state of nature would be perpetuated" (MEJ, U 60, 119, my empha-
sis). As examples of this maxim, Kant only cites violations of public contracts,
but it is clear that he has a much more expanded notion of what this might
involve. And this is the source of Schmitt's anxiety. Schmitt confidently
asserts that it is "certainly not the opponent who has broken the rules of war
and has violated the right to war by perpetuating crimes and atrocities." [I
must add that I am not sure about how Schmitt arrives at this through a reading
of Kant but I will not pursue this point further here.] "If freedom is threatened,
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698 Political Theory 40(6)
then by whom , and who will concretely decide?" asks Schmitt. "All this
remains open
141; 169).
As a jurist, Schmitt is right to be concerned with the distinction between
word and deed and to question whether words alone would suffice to make
one an "unjust enemy." Is ideological propaganda by a state that supposedly
contradicts the established international order sufficient to declare it an
"unjust enemy," for example? Think here of contemporary Iran. Is not Kant's
principle dangerously expansive and vague in that it seems to eliminate dis-
tinctions between wars of words and wars of deeds?
There is a more direct way of introducing some content to Kant's defini-
tion and this would involve reading this principle in the light of Kant's earlier
work on "Perpetual Peace" of 1795. An unjust enemy could be interpreted as
one who would reject the three definitive , as opposed to provisional , princi-
ples of Perpetual Peace. These are: "The Civil Constitution of Every State
should be Republican"; "The Law of Nations shall be founded on a Federation
of Free States"; and "The Law of World Citizenship Shall be Limited to
Conditions of Universal Hospitality" (Kant [1795] 1923, 434-A6; 1994,
99-1 08).25 Any state that refuses to enter into a "lawful condition" with other
states, by explicitly refusing to acknowledge these principles, remains in a
"state of nature," that is, a "state of hostility." That there is textual evidence
for my reading is provided by two further arguments of Kant's.
First, since the freedom of all nations would be threatened by those who
deny these principles, other nations can wage war against them but cannot
make them disappear from the earth since this would be "injustice against its
people, which cannot lose its original right to unite itself into a common-
wealth, though it can be made to adopt a new constitution that by its nature
will be unfavorable to the inclination for war" (ME/, 60, 119). A people
"can be made to adopt a new constitution;" in other words, regime change to
make the unjust enemy respect the principles of perpetual peace is permissi-
ble. Schmitt is not wrong then in seeing in Kant's text the beginnings of a
vision of a liberal world order within which the range of regimes that would
be considered legitimate is narrowed to those that would respect the laws of
nations, defined through the principles of perpetual peace. But this answer
raises further difficulties: Are only republics to be tolerated in the new world
order then? How about empires such as the Chinese, for which Kant has some
kind words in other texts? Or non-sedentary and nomadic peoples who may
not want to be subjugated by European powers and whom Kant praises in
other writings? How extensive and intensive are the principles of "perpetual
peace"? Questions remain.26
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Benhabib 699
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700 Political Theory 40(6)
Kant," he writes, "as it was earlier for theologians, to use a philosophical ethic
to deny the concept of a Justus hostis , and by introducing discriminatory war, to
destroy the work of jurists of the jus publicum Europaeum " {Nomos, 143; 171).
These changes will lead to the outlawing of wars of aggression through the
Kellogg-Briand Pact of 1928 and the extension of international law to include
not only "the crime of war" but also the category of "crimes against humanity."
Already in Kant's injunctions against using human beings as spies, snipers and
propagandists, some sense of human dignity that places limits on what can be
done with and to human beings in war is evident.
Although all his criticisms of Kant are consistent with Schmitťs claim that
the political is the "most intense kind of human conflict," and that therefore it
cannot be made subservient to the legal, religious, moral or aesthetic domains,
there is also a dimension of personal bitterness that accompanies many of his
assertions. Schmitt sees the Niiremberg and Tokyo trials as a form of
Siegerjustiz , victor's justice, and illegitimate bootstrapping - "Nullum cri-
men, nulla poena sine lege" (No crime, no punishment without the law) is his
judgment. Or, as he puts it more caustically with regards to the Holocaust:
"Was it a 'crime against humanity'? Is there such a thing as a crime against
love?"29; and further, "Genocide - the murder of peoples - a touching con-
cept; I have experienced an example of it myself: the extermination of the
German-Prussian civil service in 1945." Finally: "There are crimes against
humanity and crimes for humanity. Crimes against humanity are committed
by the Germans. Crimes for humanity are perpetrated on the Germans."
Schmitt is not simply the theorist of agonistic and contentious politics but
the theorist of the rights of states to conduct war for their own preservation
and also the theorist who rejects concepts such as human rights and crimes
against humanity as being moralizing glosses on superpower politics.30
In "Kant's Idea of Perpetual Peace: At Two Hundred Years' Historical
Remove," Jürgen Habermas discusses Schmitt's critique of Kant. "The poli-
tics of a world organization," writes Habermas, "that takes its inspiration from
Kant's idea of perpetual peace and is directed to the creation of a cosmopolitan
order, harkens to the same logic, according to Schmitt: its pan-interventionism
would inevitably lead to pan-criminalization, and hence the perversion of the
goal it is supposed to serve."31 In particular, Habermas disputes Schmitt's
claim that "the politics of human rights leads to wars which under the guise of
police actions take on a moral character; and second, that this moralization
brands opponents as enemies, and the resulting criminalization for the first
time gives inhumanity a completely free hand" (Habermas, KIPP, 188-89).
Undoubtedly, the last two decades since the end of the Cold War and the
fall of the Berlin Wall in 1989 have been some of the most confusing and
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Benhabib 70 1
Varieties of Sovereigntism
One of the most important developments in international law in the post-
World War II period is, in addition to the criminalization of wars of aggres-
sion, the normative limitations placed on state sovereignty through the
spread of human rights norms. I will refer to the many treaties that have been
concluded since the Universal Declaration of Human Rights of 1948 as "cos-
mopolitan human rights treaties."34 These treaties confirm the status of
humans as rights-bearing beings not in virtue of their national citizenship but
in virtue of their human personality, although such rights can be meaning-
fully exercised only in the context of specific polities. It is quite correct to
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702 Political Theory 40(6)
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ßenhabib 703
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704 Political Theory 40(6)
as well as by opening new channels of mobilization for civil society actors who
then become part of transnational networks of rights activism and hegemonic
resistance.44 Human rights norms require interpretation and vernacularization;
they cannot just be imposed by legal elites and judges upon recalcitrant peoples;
rather, they must become elements in the public culture of democratic peoples
through their own processes of interpretation, articulation and iteration.
Such contextualization, in addition to being subject to various legal tradi-
tions in different countries, attains democratic legitimacy insofar as it is car-
ried out through the interaction of legal and political institutions within free
public spaces in civil society. When such rights principles are appropriated by
people as their own, they lose their parochialism as well as the suspicion of
western paternalism often associated with them. I call such processes of
appropriation "democratic iterations."45
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Benhabib 705
Human rights norms assume flesh and blood through democratic itera-
tions, as well through institutional incorporation via states' treaty obligations
into civil society, and also through the interplay of adjudication and legisla-
tion. The democratic sovereigntists' fears that cosmopolitan human rights
norms must override democratic legislation is unfounded, because the very
interpretation and implementation of human rights norms are radically
dependent upon the democratic will formation of the demos, which is, of
course, not to say that there can be no conflict either of interpretation or
implementation.
Conclusion
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706 Political Theory 40(6)
Acknowledgments
I thank William Scheuerman, John McCormick, Andreas Kalyvas, Thomas McCarthy,
Adam Tooze, Stefan Eich and the reviewers and editors of Political Theory for com-
ments on an earlier draft of this article.
Funding
A Guggenheim Fellowship and a stay at New York University Law School's Straus
Institute for the Advanced Study of Law and Justice in spring 2012 made its comple-
tion possible.
Notes
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Benhabib 707
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708 Political Theory 40(6)
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Benhabib 709
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710 Political Theory 40(6)
22. Immanuel Kant, "Die Metaphysik der Sitten in zwei Teilen," In Immanuel Kants
Werke , ed. A. Buchenau, E. Cassirer, and B. Kellermann (Berlin: Verlag Bruno
Cassirer, [1797] 1922); English translation, The Metaphysics of Morals, trans,
and edit. Mary Gregor, Cambridge Texts in the History of Political Thought
(Cambridge, UK: Cambridge University Press, 1996). This edition is referred to
in the text as Kant, ME J, followed by paragraph and then page number.
23. That Kant is surprisingly close to Hobbes in some of his formulations regarding
the "state of nature" has been emphasized by Richard Tuck in The Rights of War
and Peace . Political Thought and the International Order from Grotius to Kant
(New York: Oxford University Press, 2001), 207-9.
24. Cf. Hauke Brunkhorsťs discussion of Kant and Schmitt, "The Right to War:
Hegemonial Geopolitics or Civic Constitutionalism," Constellations 11, no. 4
(2004): 5 12-25; cf. also Wolfram Malte Fuss, "The Foe: The Radical Evil, Politi-
cal Theology in Immanuel Kant and Carl Schmitt," Philosophical Forum (2010):
181-204.
25. I have consulted several English translations of Kant's "Perpetual Peace" essay,
amending the text when necessary. See Immanuel Kant, "Zum Ewigen Frieden.
Ein philosophischer Entwurf," in Immanuel Kants Werke , ed. A. Buchenau,
E. Cassirer, and B. Kellermann (Berlin: Verlag Bruno Cassirer, [1795] 1923);
English translation: H. B. Nisbet, trans., "Perpetual Peace: A Philosophical
Sketch," in Kant: Political Writings , ed. Hans Reiss, Cambridge Texts in the
History of Political Thought, 2nd and enlarged ed. (Cambridge, UK: Cambridge
University Press, 1994). The first date and page number refer to the German text
and the second to the English editions.
26. Here Kanťs doctrine of relations among states leads to his theory of cosmopoli-
tan right, which Kant made the Third Definitive Article of "Perpetual Peace":
"Cosmopolitan Right shall be limited to Conditions of Universal Hospitality"
(Kant 1795 [1923], 443; 1994, 105). There is considerable debate as to how
expansively we should interpret Kanťs cosmopolitanism: did Kant expect the
whole world eventually to converge around the principles of a "republican
constitution"? How was this to be distinguished from a "world state" which he
sharply criticized as a form of "soulless despotism" etc.? Tuck is among those
who tend towards e a minimalist understanding of Kanťs doctrine of cosmopoli-
tan right. Cf. Tuck, The Rights of War and Peace , 220ff. Cf. S. Benhabib, "Intro-
duction: Cosmopolitanism without Illusions," in Dignity in Adversity: Human
Rights in Troubled Times , 1-20.
27. Cf. the collection, Perpetual Peace: Essays on Kant's Cosmopolitan Ideal , ed.
James Bohman and Matthias Lutz-Bachmann (Cambridge, MA: MIT Press, 1997).
28. For an illuminating and detailed account that also surveys some of the reasons
for the revival of interest in this aspect of Kanťs thought, see Martin Frank,
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Benhabib 711
"Kant und der ungerechte Feind," Deutsche Zeitschrift für Philosophie 59, no. 2
(2011): 199-219.
29. Carl Schmitt, Glossarium: Aufzeichnungen der Jahre 1947-1951 (Berlin:
Duncker & Humblot, 1991). The first quote is from 113, dated March 12, 1948;
the second from 265, dated August 21, 1949; and the last is from 282, dated
December 6, 1949.
30. Interpretations of Schmitt have given rise to a "battle of readings" in contempo-
rary thought. Paul Kahn writes of his approach: "My approach, then, is to engage
Schmitt's texts in an effort to uncover the phenomenon of the political. This work
is neither an exegesis of his text, nor an intellectual history. I assume no famil-
iarity with Schmitt's text and none with his historical situation" (Kahn, Political
Theology , 29). I disagree. This kind "naïve" reading, without prejudice, can lead
to distortions and does not help us understand Schmitt's "fighting words" and con-
tradicts Schmitt's own methodology of concept formation. Schmitt writes: "Words
like state, republic, society, class, and also: sovereignty, constitutional state, abso-
lutism, dictatorship, planning, neutral or total state, etc., are unintelligible if one
does not know who in concreto is supposed to be encountered, fought, negated,
and refuted with such words . . .," TCP , 30ff. Cf. also Löwith, "The Occasional
Decisionism of Carl Schmitt," 280-81, fn. 76. Chantal Mouffe's rather decontex-
tualized treatment of Carl Schmitt has had the purpose of "excising" some of the
most troubling dimensions of his thought, and presenting him as a theorist of "ago-
nistic" politics. Cf. Chantal Mouffe, ed., The Challenge of Carl Schmitt (London:
Verso, 1999); C. Mouffe, "Carl Schmitt and the Paradox of Liberal Democracy,"
Canadian Journal of Law and Jurisprudence 10, no. 1 (1997): 21-33.
31. Jürgen Habermas, "Kant's Idea of Perpetual Peace: At Two Hundred Years'
Historical Remove," in The Inclusion of the Other: Studies in Political Theory ,
trans. Ciaran Cronin and Pablo de Greiff (Cambridge, MA: MIT Press, 2001),
165-203; here 188. Referred to in the text as Habermas, KIPP, followed by page
numbers. For a reading of the Habermas-Schmitt connection that reveals some
"affinities," see Reinhard Mehring, "Der 'Nomos' nach 1945 bei Carl Schmitt
and Jürgen Habermas," http://www.forhistiur.de/zitat/0603mehring.tm (March
31,2006).
32. Perry Anderson, "Arms and Rights: Rawls, Habermas and Bobbio in an Age of
War," New Left Review 3 1 (January-February 2005): 5-40.
33. This is a theme that is prevalent in much of Hannah Arendt's work; cf. The Ori-
gins of Totalitarianism (New York: Harcourt, Brace and Jovanovich, 1979); first
published as The Burden of Our Time (London: Seeker & Warburg, 1951). On
judgment, propaganda and understanding, see "Understanding and Politics (The
Difficulties of Understanding)," in Arendt. Essays in Understanding 1930-1945 ,
ed. Jerome Kohn (New York: Harcourt, Brace and Co., 1994), 307-28, here 313.
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7 1 2 Political Theory 40(6)
36. Thomas Nagel, "The Problem of Global Justice," Philosophy and Public Affairs
33 (2005): 1 13-47; Quentin Skinner, Liberty before Liberalism (Cambridge, UK:
Cambridge University Press, 2008 [1998]); Michael Walzer, Spheres of Justice:
A Defense of Pluralism and Equality (New York: Basic Books, 1983); Michael
J. Sandel, Democracy s Discontent: America in Search of a Public Philosophy
(Cambridge, MA: Belknap Press of Harvard University Press, 1996).
37. Nagel, "The Problem of Global Justice," 114. See Habermas's comments on
Nagel 's article: "The Constitutionalization of International Law and the Legiti-
macy Problems of a Constitution for a World Society," Constellations 15, no.
4 (December 2008): 444-55; on human rights, see 445 and 447. I have dealt
with this issue more extensively in Benhabib, "Claiming Rights across Borders:
International Human Rights and Democratic Sovereignty," American Political
Science Review 103, no. 4 (November 2009): 691-704.
38. Habermas, "The Constitutionalization of International Law," ibid. 448-49.
39. See most recently, Jeremy Waldron, "Partly Laws Common to All Mankind":
Foreign Law in American Courts (New Haven, CT: Yale University Press, 2012).
40. See Robert Cover, "Foreword: Nomos and Narrative," The Supreme Court 1982
Term, Harvard Law Review 97, no. 4 (1983/84): 4-68. Some of this material is
taken from Benhabib, "Claiming Rights across Borders."
41 . Cover, "Foreword: Nomos and Narrative," 1 8.
42. This, of course, is the crucial insight of H. L. A. Hart's work, cf. The Concept of
Law , Clarendon Law Series (Oxford: Oxford University Press, 1997), 79-100.
43. Jacques Derrida, "The Force of Law: The 'Mystical Foundation of Authority,"'
Cardozo Law Review 11, no. 919 (1989-1990): 920-1046 (bilingual text, trans.
Mary Quaintance).
44. Margaret E. Kick and Kathryn Sikkink, Activists beyond Border (Ithaca, NY:
Cornell University Press, 1998); Thomas Risse, Steven Rapp, and Kathryn Sik-
kink, The Power of Human Rights: International Norms and Domestic Change
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Benhabib 713
Seyla Benhabib is the Eugene Meyer Professor of Political Science and Philosophy
at Yale University. She has previously written on critical theory, Jürgen Habermas,
feminism, migration, citizenship and the political philosophy of Hannah Arendt. Her
most recent publication is Dignity in Adversity: Human Rights in Troubled Times
(Polity, 2011). A Guggenheim Fellowship recipient, she is currently at work on a
project on transformations of sovereignty and international law.
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