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The Partisan: Carl Schmitt and Terrorism

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The words terror and terrorism are used widely today and are used to denote an illegitimate act of violence. War, on the other hand is used as a more open concept, the legitimacy of every particular act is at least placed under limited debate. The issue of how our thoughts upon the legitimacy of violence are ordered by the framing of the legal concepts of terror and war is an important contemporary question. One way into this question is by giving an account of Carl Schmitt’s theory of ‘partisan war.’ Introducing Schmitt’s concept of the ‘partisan’ into Anglophone legal theory is the main aim of this paper.

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Notes

  1. Schmitt, C (1963) Theorie des partisanen: zwischenbemerkung zum begriff des politischen, 5th edn. Dunker and Humblot, Berlin; Schmitt, C (2004) The theory of the partisan: a commentary/remark on the concept of the political. Goodson, AC tr. Michigan State University Press, Michigan.

  2. See generally: Abu-Rabi, IM (1996) Intellectual origins of Islamic resurgence in the modern Arab world. SUNY Press, Albany; Esposito, JL (1992) The Islamic Threat: Myth or Reality. Oxford University Press, New York.

  3. There are of course many forms of Islamic political organisations, the majority of which are non-violent. The term ‘al-Qa’ida’ is used here more as a symbolic representation of an organisation or loose connection of actors about which the ‘West’ knows relatively little. One must be careful not to fall into the trap of considering such a representation in terms of organisations such as ‘SPECTRE’ or ‘CHAOS’ being the stuff of James Bond films or television parodies such as ‘Get Smart.’

  4. Take for example the power of the language of the General Assembly in the wake of the bombings in the USA in 2001. In Resolution 56, September 12, 2001, the General Assembly stated that it: 1. Strongly condemns the heinous acts of terrorism which have caused enormous loss of human life, destruction and damage in the cities of New York, host city of the United Nations, Washington, D.C., and Pennsylvania; 2. Expresses its condolences and solidarity with the people and Government of the United States of America in these sad and tragic circumstances; 3. Urgently calls for international cooperation to bring to justice the perpetrators, organisers, and sponsors of the outrages of 11 September 2001. 4. Urgently calls for international cooperation to prevent and eradicate acts of terrorism, and stresses that those responsible for aiding, supporting, or harbouring the perpetrators, organisers and sponsors of such acts will be held accountable. Note also The Declaration on Measures to Eliminate International Terrorism, UN General Assembly Resolution 49/60, December 9, 1994. 1. The States Members of the United Nations solemnly reaffirm their unequivocal condemnation of all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever and by whomever committed, including those which jeopardize the friendly relations among States and peoples and threaten the territorial integrity and security of States; 2. Acts, methods and practices of terrorism constitute a grave violation of the purposes and principles of the United Nations, which may pose a threat to international peace and security, jeopardize friendly relations among States, hinder international cooperation and aim at the destruction of human rights, fundamental freedoms and the democratic bases of society; 3. Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them. The principles of this resolution were affirmed in the International Convention for the Suppression of Terrorist Bombings, New York, January 12, 1998.

  5. Hunter, I. Westphalia calling, unpublished research paper, p. 11.

  6. This notion is taken from Weber. See: Weber, M (1946) Politics as a vocation. In: Weber, M From Max Weber: essays in sociology, Gerth, HH and Wright Mills, C tr. ed. Oxford University Press, New York.

  7. Under such conception the sovereign’s legitimacy of violence develops through the maintenance of a legal order in the interest of preserving internal ‘peace.’ Such a theorisation is present, among others, in the work of Grotius and Hobbes. Note the comment by Grotius in: Grotius, H (1964) On the law of war and peace, Kelsey, FR tr. Oceana Publications, New York, p. 138: ‘By nature all men have a right of resisting in order to ward off injury, as we have said above. But as civil society was instituted in order to maintain public tranquillity, the state forthwith acquires over us and our possessions a greater right, to the extent necessary to accomplish this end. The state, therefore, in the interest of public peace and order, can limit that common right of resistance.’

  8. A similar account of this history is given by Schmitt. See: Schmitt, C (1950) Der nomos der erde im völkerrecht des jus publicum. 3rd edn. Dunker and Humblot, Berlin, pp. 112–117. For an interesting historical account see: Tuck, R. (1999) The rights of war and peace: political thought and the international order from Grotius to Kant. Oxford University Press, Oxford.

  9. Note the comment by Greig, DW (1976) International Law 2nd edn. Butterworths, London, p. 867: ‘.....(T)he modern state system, built as it was on the basis of the theory of state sovereignty, treated the right to wage war as inherent in the concept of sovereignty. As a resort to war was the right of every state, it was variously defined in the widest terms. In the opinion of Vattel, war was the condition in which nations prosecute their rights by force. According to Washington, J., of the US Supreme Court in Bas v Tingy, war was “an external contention by force between.... two nations”’.

  10. United Nations Charter, Chapter 1, Article 1.

  11. Ibid. Chapters 6, 7, and 8.

  12. Ibid. Chapter 1, Article 2; Chapter 2, Articles 3 and 4.

  13. Only then those actors recognised as ‘states’ under international law possess a ‘right’ to war. One popular definition of ‘statehood’ is expressed in the Convention on the Rights and Duties of States (Montevidio Convention) December 26, 1993. Note Article 1: ‘A state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; (d) capacity to enter into relations with other states.’

  14. UN Charter Preamble. On the tension within international law between the notion of state sovereignty and the notion of human rights in relation to war see generally: Beitz, C (1979) Political theory and international relations Princeton University Press, Princeton; Walzer, M (1977) Just and unjust wars. Basic Books, New York; Tesón, FR (1988) Humanitarian intervention: an inquiry into law and morality. Transnational Publishers, New York; Frost, M (1986) Towards a normative theory of international Relations. Cambridge University Press, New York; Mosely, A and Norman, R (eds) (2002) Human rights and military intervention. Ashgate, Aldershot.

  15. See Habermas, J (1997) Kant’s Idea of Perpetual Peace, With the Benefit of Two Hundred Years Hindsight. In: Bohman, J and Lutz-Bachman, M (eds) Bohman, J tr. Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal. MIT Press, Cambridge Mass; and Habermas, J (2001) The Postnational Constellation and the Future of Democracy. In: Habermas, J (ed) The Postnational Constellation: Political Essays Pensky, M tr. Polity Press, Cambridge.

  16. See also: Douzinas, C (2002) Postmodern Just Wars: Kosovo, Afghanistan and the New World Order. In: Strawson, J (ed) Law After Ground Zero. Glashouse Press, London.

  17. See: Derrida, J (1994) Specters of Marx: The State of Debt, the Work of Mourning and the New International, Kamuf, P tr. Routledge, New York; and Derrida, J (2001) On Cosmopolitanism and Forgiveness, Dooley, M and Hughes, M tr. Routledge, London.

  18. The treatment of the London bombings in July 2005 by most media and commentators is a prime example of this framing. While Britain is carrying out a war in Iraq, the bombings of the London underground have been portrayed as having little to do with this war and have been thrown into the empty conceptual basket of ‘terrorism.’ Few commentators have bothered to think of the bombings as acts of ‘partisan war’ directly linked to Britain’s ongoing aggressive war against Iraq.

  19. Schmitt, Theory of the Partisan. At p. 8 Schmitt states: ‘Serious partisan battles have been raging in large (-scale) areas of the world for 30 years now. They began already in 1927, before World War II, in China and other Asian countries that would later take up arms against the Japanese invasion of 1932–1945. During World War II, Russia, Poland, the Balkans, France, Albania, Greece, and other regions became arenas for this kind of war. After it the partisan struggle continued in Indochina, where the Vietnamese communist leader Ho Chi Minh, and the victor of Dien Bien Phu, General Vo Nguyen Giap, were particularly effective against the French colonial army.’

  20. Ibid. at p. 4 Schmitt states: ‘The partisan of the Spanish Guerrilla War of 1808 was the first who dared to wage irregular war against the first regular modern army. In autumn 1808, Napoleon had defeated the regular Spanish army; the real Spanish Guerrilla War began only after the defeat of the regular army.’ And at p. 5: ‘A spark flew north from Spain at that time. It did not kindle the same flame that gave the Spanish Guerrilla War its world-historical significance. But it started something whose continuance today in the second half of the 20th century changed the face of the earth and its inhabitants. It produced a theory of war and of enmity that culminates in the theory of the partisan.’

  21. See: Müller, JW (2003) A Dangerous Mind: Carl Schmitt in Post-War European Thought. Yale University Press, New Haven, pp 144–150.

  22. Schmitt, Theory of the Partisan. supra n. 1, p. 6.

  23. Ibid. p. 7.

  24. Ibid. p. 14.

  25. Ibid. p. 9–10.

  26. Ibid. p. 11.

  27. Ibid. p. 13.

  28. Ibid.

  29. Ibid. p. 10.

  30. Ibid.

  31. Ibid. pp. 21, 22, 26.

  32. Ibid. p. 25.

  33. See: Clausewitz, C (1984) On War Howard, M. and Paret, P. tr. ed. Princeton University Press, Princeton.

  34. Schmitt, Theory of the Partisan supra n. 1, p. 5. Compare this to Schmitt’s comment in Schmitt, C (1996) The Concept of the Political Schwab, G. tr. University of Chicago Press, Chicago. In the earlier work Schmitt argues that war for Clausewitz is the ultima ratio of the friend–enemy grouping ; that is, the possibility and fundamental character of the political. At pp. 34–35 he states: ‘The military battle itself is not the “continuation of politics by other means” as the famous term of Clausewitz is generally incorrectly cited. War has its own strategic, tactical, and other rules and points of view, but they all presuppose that the political decision has already been made as to who the enemy is. ...... War is neither the aim nor the purpose nor even the very content of politics. But as an ever present possibility it is the leading presupposition which determines in a characteristic way human action and thinking and thereby creates a specifically political behaviour.’

  35. Schmitt, Theory of the Partisan supra n. 1, pp. 32–33.

  36. Ibid. p. 29.

  37. Ibid.

  38. Ibid.

  39. Ibid. p. 30.

  40. Ibid. pp. 31–32.

  41. Ibid. p. 32.

  42. Ibid. p. 34.

  43. Ibid. p. 35.

  44. Ibid. p. 36.

  45. Ibid.

  46. Ibid.

  47. Ibid.

  48. Ibid. p. 35.

  49. It should be noted that I am leaving out a number of other consequences that Schmitt elaborates with regard to aspects of space and technology. For reasons of length I have also left out Schmitt’s discussion of Mao and Raoul Salan. These figures raise interesting issues in the development of Schmitt’s theory but do not alter his general theory considerably.

  50. Schmitt, Theory of the Partisan, supra n. 1, p. 52.

  51. Ibid. p. 53, Schmitt takes this term from Rolf Schroer.

  52. Ibid.

  53. Ibid.

  54. Ibid.

  55. Ibid. p. 52.

  56. Ibid. – It is difficult to tell if Schmitt’s comment here is more directed at anti-colonial struggles manipulated by the Soviet Union and China or whether it refers to the theory of the partisan more generally.

  57. Ibid. p. 65.

  58. Ibid. p. 61.

  59. Ibid. p. 43.

  60. The German reads: Zwischenbemerkung zum Begriff des Politischen.

  61. Schmitt, Concept of the Political supra n. 1, p. 26.

  62. Ibid. p.19.

  63. Ibid. pp. 71–72.

  64. Ibid. p. 30.

  65. Ibid. p. 46.

  66. One reason for Schmitt’s ‘relativisation’ of the position of the state might have to do with the treatment of the ‘Prussian–German state’ at the conclusion of WWII. In The Theory of the Partisan at p. 28 Schmitt cites the order of the Allied Military Authority which states:

    ‘Article 1. The Prussian state with its government and its entire administrative apparatus is herewith dissolved.’

  67. This term is taken from Gillian Rose. See Rose, G (1981) Hegel Contra Sociology. Althone, London.

  68. Hegel, GWF (1991) Elements of the Philosophy of Right, Wood, AW (ed) Nisbet, HB (tr) Cambridge University Press, Cambridge.

  69. Note that under the structure of the Philosophy of Right the state occurs as an ‘ethical form’ and as the emergence and/or potential realisation of Sittlichkeit. This distinguishes this ‘legal form’ of the state from legal personality and property.

  70. Hegel, GWF (1977) The Phenomenology of Spirit, Miller, AV (tr) Oxford University Press, Oxford.

  71. One such a reading focussing upon violence and struggle is given by Kojève. See Kojève, A (1980) Introduction to the Reading of Hegel Nichols, JH (tr) Cornell University Press, Ithaca. See also the interpretation given by Axel Honneth for a more theoretically stable interpretation: Honneth A (1995) The Struggle for Recognition: The Moral Grammar of Social Conflicts Anderson, J (tr) Polity Press, Cambridge. This interpretation by Kojève, while well known and having importance, is very limited. One should be cautious not to reduce the complexity of Hegel’s theory to this interpretation. Kojève’s reading is not merely sociological or political it is also ‘anthropological’, linking the struggle for recognition with a particular, violent, account of human nature. Such an interpretation resists the radical moment of dialectical transformation present in Hegel’s account. The relevance here is that Schmitt, in my opinion, takes a similarly shallow interpretation of Hegel’s theory of recognition, thus reducing a dynamic dialectic a static anthropological account of human nature. Such an account forecloses on futural ethical possibility and hope.

  72. This is not to disregard the role of Muslim women in recent partisan wars, for example in Chechnya, Palestine, and Iraq.

  73. The power of this conception of recognition tied to the friend–enemy distinction manifested most powerfully with the example of Saddam Hussein. It was not his transformation from friend to enemy that was so amazing, rather, it was the chillingly Orwellian manner in which this change was erased from the minds of those who supported a war against Iraq in the name of ‘human rights’ and ‘weapons of mass destruction.’

  74. See: Rambo III, MacDonald, P. dir. (1988).

  75. Note that there is no space here to go into a more scholarly critique of Schmitt’s work, for example: Schmitt, C (1998) Political Theology: Four Chapters on the Concept of Sovereignty Schwab, G (tr) MIT Press, Cambridge. It should be noted however that Schmitt’s theory of partisan war can be discerned within his work on international law and the framing of the legal concept of war by international law presented in: Schmitt, C (1950) Der Nomos der Erde: im Völkerrecht des Jus Publicum Europaeum, Dunker und Humblot, Berlin. This major work of Schmitt would need to be seen as a transition or linking-point between Schmitt’s earlier conception of the political in The Concept of the Political, and his later conception of non-state or partisan war in The Theory of the Partisan.

  76. Schmitt, Concept of the Political, supra n. 1, p. 27.

  77. Ibid. p. 27.

  78. Ibid. p. 28.

  79. Ibid. p. 33.

  80. Schmitt, Concept of the Political, supra n. 1, p. 34

  81. Ibid. pp. 64–65. Schmitt’s list includes: Bossuet, Maistre, Donoso Cortés and Friedrich Julius Stahl.

  82. Ibid. p. 65.

  83. Ibid. p. 65.

  84. Ibid. p. 61.

  85. Ibid. p. 64 and 70–72.

  86. Hegel, GWF (1969) Science of Logic Miller, A. (tr) Allen and Unwin, London.

  87. Ibid. pp. 82–83. On the importance of this movement see also: Bloch, E (1962) Subject-Object: Erläuterung zu Hegel Surkamp Verlag, Frankfurt am Main; Nancy, J (2002) Hegel: The Restlessness of the Negative. Smith, J and Miller, S (tr) University of Minnesota Press, Minneapolis.

  88. Hegel, Philosophy of Right supra n. 68, § 321–340.

  89. On the question of this reconciliation one would need to consider the difficult relation between Hegel’s concepts of Spirit (Geist), world history and the Absolute. See also Hegel, GWF (1975) Lectures on the Philosophy of World History: Introduction, Reason in History Hoffmeister, J (ed) Nisbet, HB (tr) Cambridge University Press, Cambridge.

  90. Hegel, Philosophy of Right, supra n. 68, p. 22–23.

  91. See: Kant, I (1991) Idea for a Universal History With a Cosmopolitan Purpose. In: Kant, I. Kant Political Writings Reiss, H (ed) Nisbet, HB (tr) 2nd edn. Cambridge University Press, Cambridge; Kant, I (1991) Toward Perpetual Peace: A Philosophical Sketch. In: Kant, I. Kant Political Writings Reiss, H (ed) Nisbet, HB (tr) 2nd edn, Cambridge University Press, Cambridge.

  92. Hegel, Philosophy of Right supra n. 68, § 324, Addition. My italics.

  93. Ibid. § 324.

  94. Hegel, Phenomenology of Spirit, supra n. 70, § 175, 184

  95. On differing accounts of how this occurs see: Williams, RR (1997) Hegel’s Ethics of Recognition. University of California Press, Berkeley; Theunissen, M (1991) The Repressed Inter-Subjectivity in Hegel’s Philosophy of Right, Watkins, W (tr). In: Cornell, D, Rosenfeld, M and Carlson, DG (eds) Watkins, E (tr) Hegel and Legal Theory. Routledge, New York; Rose, G (1981) Hegel Contra Sociology. Athlone, London; Pippin, RB (2000) What is the Question for which Hegel’s Theory of Recognition is the Answer? European Journal of Philosophy, 8 (2): 155–172.

  96. One might argue that terrorist acts openly target civilians, while state wars distinguish between ‘civilian’ and ‘military’ targets. This distinction was effectively done away with during the aerial bombardments of the Second World War and has operated as empty rhetoric ever since.

  97. This is not to say that I am affirming a theory of ‘class war’ rather, what is at issue is a complex set of international political, ethical, economic and religious ‘social antagonisms.’

  98. One example of how the Islamic terrorist is portrayed as being outside of tradition categories of the political and emerging as a new phenomenon is given by Selya Benhabib. See: Benhabib, S (2002) Unholy Wars. In: Constellations, vol 9, no. 1. At p. 41 Benhabib states: ‘The new unit of totalitarianism is the terrorist cell, not the party or the movement; the goal of this new form of war is not just the destruction of the enemy but the extinction of a way of life. The emergence of non-state agents capable of waging destruction at a level hitherto thought to be only the province of states and the emergence of a supranational ideological vision with an undefinable moral and political content, which can hardly be satisfied by ordinary political tactics and negotiations, are the unprecedented aspects of our current condition. The new jihad is not only apocalyptic; it is nihilistic. Osama bin Laden’s statement that his men love death as much as the Americans love life is an expression of superb nihilism. The eroticization of death, as evidenced on the one hand by the frequently heard vulgarisms about houris, the dark-eyed virgins who are to meet the warriors in the afterlife, but on the other hand and more importantly, by the destruction of one’s own body in an act of supreme violence which dismembers and pulverizes it, is remarkable........ These networks of young militants who trot the globe from Bosnia to Afghanistan, from Paris to Indonesia and back to Baghdad, Hamburg or New York, are like Islamic soldiers of fortune, not in search of riches, but in search of an elusive and decisive encounter with death. ‘For a response to the ‘left-liberal’ inability to conceptualise and come to terms with the political questions involved in ‘terror’ and the ‘war on terror’ see Žižek, S (2004) Iraq: The Borrowed Kettle. Verso, London.

  99. Of importance are figures such as Jamal al-Din al-Afghani, Sayyid Abu’l-A’la Mawdudi, Sayyid Qutb, Hasan al-Banna.

  100. This is not to say that any of these thinkers were ‘communist’ or were influenced by Marx. That would be incorrect. Rather, their thinking developed in a colonial and post-colonial context and in many ways was directed to emphasising the social and socialist elements of Islam.

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Correspondence to Tarik Kochi.

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Thanks to Wayne Hudson, Shaun McVeigh and Valerie Kerruish. Thanks also to Anton Schütz for his comments.

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Kochi, T. The Partisan: Carl Schmitt and Terrorism. Law Critique 17, 267–295 (2006). https://doi.org/10.1007/s10978-006-9002-2

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