Written in o, Carl Schmitts foreword to The Nomos of the Earth ends with the statement that The earth has been promised to the peace- makers. The idea of a new nomos of the earth belongs only to them. 1 The rest of the book, however, resonates with the fear that the Second World War has merely ushered in a period of interminable warfare. Indeed, Schmitt seems to anticipate the analysis of Michael Hardt and Antonio Negri, that war is becoming a gen- eral phenomenon, global and interminable in the constitution of limitless sovereignty they term Empire. 2 Schmitt, too, in heralding a new nomos, a new global division and order, sees the possibility that the dualism of East and West might be only the last stage before an ultimate, complete unity of the worldthe last round, the nal step, so to speak, in the terrible rings to a new nomos of the earth (q). In this coming arrangement of powers and forces, war is always on or just over the horizon as the territorial securities of land and sea are threatened by their envelopment in an airspace appropriated militarily and politically by an ascendant United States. At the very least, even the possibility of the appropriation of The South Atlantic Quarterly oq:z, Spring zoo. Copyright zoo by Duke University Press. 218 Jon Beasley-Murray airspace heralds a period of new, more deadly and more disconcerting, forms of war. We nd ourselves therefore with a typology of war, and a typology of dis- courses onand justications for war, establishing a historical narrative char- acterized by a series of shifts: most importantly for Schmitt, from land war to sea war and then air war; and the construction, then possible derogation, of the jus publicum Europaeum as a mechanism to regulate war and so also interstate relations. The Nomos of the Earth presents as European civiliza- tions great achievement what Schmitt terms the bracketing of war, its management and rationalization, such that an international legal order arose, based on the liquidation of civil war and on the bracketing of war (in that it transformed war into a duel between European states), which therefore legitimated a realmof relative reason. The equality of sovereigns made them equally legal partners in war and prevented military methods of annihilation (qz). This achievement is nowthreatened, however, by the spatial transformations that give us a new world order, a new nomos of the earth, which brings with it technological changes but also a fundamentally dierent character to armed conict, for instance in the purely destructive character of modern air war (zo). Schmitts sympathies are thus fundamentally with Carl von Clausewitz: war is, or rather should be, the continuation of politics by other means. The corollary to this is Schmitts famous proposition that politics itself should be envisaged as a form of bellicose antagonism between friend and enemy. These propositions, as Hardt and Negri also observe, are to distinguish war and politics even as they relate one to the other: Clausewitzs notion is based, rst of all, on the idea that war and politics are in principle sepa- rate and dierent. 3 Schmitts denition of politics balances, by bracketing o, Clausewitzs conception of war. Yet such an equilibrium is precarious at best, even during the period of European ascendancy and dominance. Schmitts fundamental concern is with the historical and technological con- ditions of possibility for Clausewitzian warfare. The ethical stance that gov- erns Schmitts position is the belief that warfare fought justly, or as a rule- governed exercise, is what enables peace and what legitimates the European state. Schmitt recognizes that the politicization of warfareits transforma- tion into a separate and distinct activityis not a given; he also recognizes, unsentimentally, that the price to be paid for such a politicization or hege- monization is the establishment of an absolute limit, a constitutive outside, beyond which lies the foe, the enemy beyond reason whose only conceiv- Tyrants and Pirates 219 able fate is annihilation. The culmination of inter-European agreements to manage and bracket warfare was the Congo conference of 88q8, whose result was the Congo Acta remarkable nal document of the continu- ing belief in civilization, progress, and free trade (z6). The price paid was an absolute division between European and non-European violence in that, for Otto von Bismarck, the German host of the conference, there would be grave consequences if natives became involved in disputes between the civilized powers (z). Schmitt traces the increasing permeability of this absolute limit between the civilized and noncivilized, and the consequent collapse of the European spatial order: soon Europe was no longer the sacral center of the earth and in this confusion, the old nomos of the earth determined by Europe dissolved (zz6). Sven Lindqvist, from a dierent but complementary per- spective, describes in rather more detail the historical transition from an equilibrium underpinned by a clear division between inter-European war and colonial war, to increasing confusion as the methods and technology of colonial police actions were imported into the European theater. Aerial bombing (itself a continuation of the colonial practice of gunboat diplo- macy, shelling port cities from a safe distance oshore) was instrumental in this shift. Bombing was embedded rst in colonial relations of power: Bombs were a means of civilization. Those of us who were already civi- lized would not be bombed. Thus the bombing inTripoli did not worry most people. 4 This was z. When, twenty-ve years later, Guernica is repre- sented as the rst great atrocity of modern war, this is because it was an instance of civilization turning its bombs on itself: Bombing natives was considered quite natural. The Italians did it in Libya, the French did it in Morocco, and the British did it throughout the Middle East, in India, and East Africa . . . only Guernica went down in history. Because Guernica lies in Europe. In Guernica, we were the ones who died. Here the lawlessness of the wars outside Europe [seeped] into wars between Europeans. 5 ThoughSchmitt does not share Lindqvists moral condemnationof either colonialismor colonial warfare, theirs is a common problem: with the aban- donment of the European system of international regulation, and the con- comitant rise of the newmethods of war when it is the air that is the subject of appropriation, an airspace that envelops land and sea alike, war is now more horric than ever. The clear division between Europe and its others has dissolved, but rather than expanding liberalism and prosperity to the periphery, this dissolution brings with it the threat that we could all now 220 Jon Beasley-Murray be subject to colonial violence. And though Schmitt identies this devel- opment with American ascendancy, surely there is also the suggestion of a rueful regret at Blitzkrieg in his description of low-ying pilots [that] dive down and then y up and away; [they] execute their destructive function, thenimmediately leave the scene (zo). Inthis transactionof death, what is absent is anexchange or evena relationbetweensubjects who canrecognize each other: both parties, on the ground or in the air, confront an unknow- able foe. It is not your enemy, or my enemy; it is a common enemy. The enemy becomes abstract for both sides: Hardt and Negri point out that in the so-called War on Terror, Empire nowfaces enemies that are not merely elusive but completely abstract. 6 Surely the same is also true for those who nd themselves on the receiving end of Empires actions, victims of bombs dropped from planes whose vapor trails alone can be seen, o,ooo feet up in the Afghan sky. Yet this is not the rst appearance of the common enemy. Even within modernity, and within (or at least not quite without) the European inter- state system, there were always conicts that disrupted the laws of mutu- ality and recognition governing war as duel between sovereigns. The com- mon enemy has its own history, which Schmitt, in what is almost an aside, traces through the gures of the tyrant and the pirate: For the order of the land, the tyrant was the common enemy, just as, for the order of the sea, the pirate was the enemy of the human race (6). Whereas the concept of tyranny refers to a structure of power within given borders, the concept of piracy invokes a refusal to accept borders or territorial limits. Thinking tyranny enables an analytic of the exercise of state power within a given polity; thinking piracy threatens the authority of states at their geographical margins. The Tyrant InThe Nomos of the Earth, at least, Schmitt has less to say about tyranny than about piracy. A full discussion of the concept in Schmitts thought would require more detailed comparison with his theories of dictatorship, but one could summarize by suggesting that the tyrant is the nonexceptional dicta- tor: whereas the dictator overturns the constitution for a limited period, to reestablish and to protect it during a state of exception, the tyrant main- tains his power for an indenite period, normalizing his rule and deter- mined to habituate the people to it. The dictator invokes the exception to uphold the norm; the tyrant attempts to normalize exceptionality. Tyrants and Pirates 221 Arguably, therefore, the current tendency toward interminable war also sees the institution of a form of imperial tyranny. Alternatively, one could examine the extent to which all sovereignty is tyranny, insofar as all state power is no more (but no less) than normalized exceptionality. In Society Must Be Defended, Michel Foucault traces the history of such a discourse on sovereignty: one that suggests that war is already interminable, if unrecog- nized as such. Against the contractual model emphasized by Schmitt, and against the Clausewitzian separation of spheres, Foucault uncovers an ago- nistic model that rejoins the discourses of war and politics. He observes that, with the formation of nation-states, a society completely permeated by warlike relations was gradually replaced by a State endowed withmilitary institutions 7 but stresses that war continues withinconstitutional arrange- ments. War is never fully bracketed o. Hence Foucaults interest in a cer- tain type of discourse about relations between society and war[, one that] made war the permanent basis of all the institutions of power. 8 The bulk of Society Must Be Defended is devoted to an analysis and genealogy of this discourseas a mode of thought that is radically ambivalent, underlying both Marxism and fascism (if not Schmitts fascism), but that is in the end preferable perhaps to the juridical model of sovereignty when it comes to a concrete analysis of power relations. 9 This is a discourse that seeks to identify or construct a common enemy internal to the polity. It assumes neither the constitution nor its suspension, but rather an ongoing struggle between constituent and constituted power. From the perspective that Foucault outlines, the basis or model for all war is the civil war. War is not best seen as an activity carried out by and between states (or even, for that matter, by and between warlords, chief- tains, or clans), for war preexists the state, and indeed preexists also the other elements (subject, law) that are takenas a priori for the juridical model of sovereignty. War preexists the constitution of society; but also, and pace Hobbes, it lingers on within constituted societies, rather than being ban- ished to the margins by some social contract. By contrast, more conventional theories of war, and more traditional po- litical discourses onwar, tend to see civil war as exceptional, as a particularly troublesome deviation from a standard model. Even the term civil war cap- tures some of this confusion, implying as it does the contradictory copres- ence of civility and violence. In practice, and perhaps especially when faced with partisan uprisings or guerrilla insurgency, states tend to deny the re- ality of civil war, to reimpose a vision of juridical sovereignty. As Schmitt argues, such conicts involving nonstate actors are recongured or reinter- 222 Jon Beasley-Murray preted in terms of the state. Either they are seen as wars of secession or wars of independence, or they are proxy wars, wars betweenstates translated into another key for which conict is explained by reference to outside agita- tors (Communists, foreigners) rather than to elements internal to the social order. The juridical model therefore attempts to reinterpret internal distur- bance in terms of a war between external states or between entities that could become states. Thus the state reimposes a sense of its ownlegitimacy. By contrast, the tradition that Foucault outlines, in which society is ana- lyzed in terms of a fault line between illegitimate power and unresolved grievance, depends on the analytic of tyranny and so common enmity. It is not so much that two states are in a relation of antagonism, as that there is something rotten in the state form itself, such that power comes to seem nothing more than an imposition fromabove. But perhaps even the concept of civil war does not go far enough; perhaps it assumes too much, in pre- supposing that the fundamental division lies within the polity. Surely there are social conicts that are best seen as precivil wars, wars for which the boundaries of civility are not given but are themselves at stake, produced in and throughthe conict itself. Here the actors that will have beeninplay are discovered or revealed only after the cessation of hostilities, because they are created within the conict itself. Unlike Foucault, in short, Schmitt passes over the creativity of war, its ability to provide a new optic or framework for interpretation: in and through conict, tyrants continue to rise and fall. The tyrant, furthermore, calls forth the insurgent, the partisan, the common that faces the tyrant as enemy. Yet howcan we be sure that this commonality does not itself resolve into tyranny? The tyrant inspires new tyrants, new state forms, as much as he calls forth other modes of community. The common too often is reduced to a Stalin, Pol Pot, or Abimael Guzmn as much as it is incarnated in an Augusto Sandino or a Subcomandante Marcos (or whichever other insurgent we might choose to support). The Pirate If the tyrant is the gure of state power at its limit, a state power that allows no movement, that is pure xity and asphyxiation, the pirate, though also a common enemy of the human, is in some sense the tyrants opposite num- ber. The pirate inhabits a space beyond the social, certainly beyond the ter- ritorial claims of terrestrial states. In Schmitts words, he is a daring adven- Tyrants and Pirates 223 turer (q): the pirate thrives on novelty and dierence, while the tyrant insists on habituation to the existent same. Piracy is criminalized as states attempt to impose their order on the unruly, ever-unpredictable sea. It was with the rise of the great sea empires, maritime nations that the pirate was declared to be an enemy of the human race (qq). Piracy has been celebrated, by contrast, by the likes of Marcus Rediker and Peter Linebaugh, whose work The Many-Headed Hydra revels in the accounts of the motley crews of pirates, dissenters, mutineers, and other renegades in the Anglo-American North Atlantic of the seventeenth and eighteenth centuries. 10 They point out that, while the tyrant produces the common by antithesis (in the insurgent) or is a grotesque image of a territo- rialized, habituated common, the pirate incarnates the common, or a form of countercommonality that is also an adventurous experiment in com- munity. For Rediker and Linebaugh, piracy represents an Exodus, a line of ight from wage labor and hierarchy, and the opportunity to construct experimental modes of social organization. Piracy, in short, oers a utopian possibility that the state declares has to be criminalizedandannihilatedpour encourager les autres. Redikers more recent Villains of All Nations claims that eighteenth-century pirates fostered a radical democratic social order and culture that had to be eliminated to ensure the continuing survival and protability of the Atlantic slave trade. 11 In line with Schmitts understand- ing of maritime space, Rediker emphasizes the ways in which piracy our- ished in the oceanic context: The pirates image was closely related to the space he occupiedthe sea, a distant place full of dangers, a site of frequent disaster. . . . The disciplinary network that underlay the social order thus had a weak presence at sea. 12 It is clear how Rediker and Linebaugh have been inuenced by Deleuze and Guattari and autonomist interest in the nomad, or the subject of refusal, whose relation to space is one of mobility rather than territoriality, the line rather than the xed point. Historically, however, the question of piracy is still more interesting than either Schmitt or Rediker and Linebaugh will allow. What soon becomes apparent is the slippage between piracy and state action throughout the period of Atlantic colonization. Just as the Pinzns, Columbuss collabora- tors and cosponsors in his qz voyage, had an element of piracy in their background, so in the age of the Elizabethan freebooters, gures such as Sir Walter Raleigh and Sir Francis Drake operated on both sides of the margin separating state policy from reckless adventurism. Hardt and Negri briey refer to the equivocal nature of the relationship between Queen Eliza- 224 Jon Beasley-Murray beth and the pirates of the Atlantic in the sixteenth century and imply that the golden age of piracy (analyzed by Rediker) can be considered the revolt of mercenary forces fostered by imperial powers. 13 Throughout the seven- teenth and early eighteenth centuries, however, it was a thin and uncertain line that separated the freebooting encouraged by provincial governors and the social evil or common enemy soon to be articulated by the imperial cen- ter. Moreover, as the myriad popular and mass-culture representations of piracy fromCaptain Hook to Johnny Depp reveal, the struggles of this com- monenemy have long resonatedat the very heart evenof animperial culture industry such as Hollywood. Piracy, in short, cannot be simply demarcated as a constituent exterior to the civilized state. More generally, are not the states appropriation and reutilization of het- erodox modes of conict, fromthe pirate raid to special forces, the points at which the state itself becomes piratical? The pirate is not the colonial other; the pirate inhabits andcrosses the permeable membrane that divides enemy from foe, civilization from its other. In other words, the concept of the pirate is, like the partisan, still indierent, still ambivalent. And the ambiva- lence of piracy is all the sharper if we consider the similarities between the modern pirate and postmodern terrorist: even Rediker admits that in truth, pirates were terrorists of a sort, andthis identicationis hardly much attenuated by his insistence that theirs was a terror of the weak against the strong. 14 Charles Glass, indeed, noting the contemporary rise of pirate activity inthe Malacca Straits andelsewhere, suggests that piracy andterror- ism may soon converge: The business [of piracy] has become too lucrative to leave to amateurs, and the targets are too tempting to assume terrorists will ignore them. 15 He concludes with the following warning: Afghani- stan, Iraq, Colombia, the city ghettos of the Western world and the frontier badlands of Russia are more restive than ever. So are the Oceans. 16 Following Schmitts promptings (if not his own leanings), it would seem worth considering further tyranny and piracy as archetypes of the common enemy that now prevails within the postmodern, imperial order. The com- mon undoes careful distinctions between war and politics. The common undoes hegemony and its separation of civil society from subaltern out- side. But to announce posthegemony is not to renounce analysis. There is no single common; nor, it seems to me, are there any easy ways to pre- dict the fate of commonality: it may lead equally to a mirror tyranny or to the suicide bomber as to the precarious utopian communities imagined of either insurgents or those who sail beneath the Jolly Roger. But perhaps Tyrants and Pirates 225 only commonality can provide modes of habitation and conviviality in an era of interminable warfare. Notes Carl Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Euro- paeum, trans. G. L. Ulmen (NewYork: Telos, zoo), . Further citations of this edition appear in the text. z Michael Hardt and Antonio Negri, Multitude: War and Democracy in the Age of Empire (New York: Penguin, zooq), . Ibid., 6. q Sven Lindqvist, A History of Bombing, trans. Linda Haverty Rugg (London: Granta, zoo), 8z. Ibid., 6o, q. 6 Hardt and Negri, Multitude, o. ; Michel Foucault, Society Must Be Defended: Lectures at the Collge de France, , trans. David Macey (London: Penguin, zoo), z6;. 8 Ibid. Ibid., z6q. o Peter Linebaugh and Marcus Rediker, The Many-Headed Hydra: The Hidden History of the Revolutionary Atlantic (London: Verso, zooo). Marcus Rediker, Villains of All Nations: Atlantic Pirates in the Golden Age (Boston: Beacon, zooq), 8z. z Ibid., q, 6. Hardt and Negri, Multitude, q8. q Rediker, Villains of All Nations, 6. Charles Glass, The New Piracy, London Review of Books, December 8, zoo, . 6 Ibid., ;.