The Opposite of Apartheid: Further Notes on Mandela and the Law

In his interpretation of Plato's Laws, Cicero defined "law" (lex) as the written expression of the "right reason" that is common not only to all humans but also to all gods and therefore binds the entire universe into a single commonwealth (civitas).¹ For Cicero, the purpose of law is to render immanent the transcendent unity—which is not the same thing as a "higher law"²—that only philosophic thought (nous for Plato, recta ratio for Cicero) can properly comprehend. As distinct from Plato's nomos, however, Cicero's lex would be unburdened by any reference to the concrete distribution and partition of space. Lex, Cicero would write, has a meaning much closer to "choice" or "selection."³ As part of his attempt to create a new form of wisdom (which Cicero calls "jurisprudentia") that surpasses that of Greek philosophy,⁴ Cicero's translation implied a jurisdiction for reason that could not be limited in spatial terms and was instead universal in scope. Because "right reason" for Cicero was shared by humans and gods alike and because it binds the universe into a single civitas, the law that expresses this right reason must also be by definition spatially unlimited, indeed imperial. A particularized lex, a law that was not in some way universal but was valid only for a spatially limited concrete distribution of lots and land, would be a contradiction in terms; it would not be law at all.

Writing in 1957, Carl Schmitt argued that Cicero's translation of nomos into lex was "one of the heaviest burdens that the conceptual and linguistic culture of the Occident has had to bear."⁵ For Schmitt, who at that moment had already dedicated over a decade of work to the development of a far right-wing critique of Anglo-American imperialism, law is not lex but nomos and more exactly a specifically pre-Socratic iteration of nomos. In direct opposition to Cicero and to all of his heirs (both witting and unwitting), Schmitt would propose that a law is a law only and precisely to the extent that it inscribes itself on the ground—dividing and distinguishing, including and excluding, carving out relations between inside and outside, producing boundaries that, quite contrary to the postexilic interpretation of nomos that has been perpetrated upon the West by the Jewish philosopher Philo, are prior to any distinction between law and grace and are therefore also constitutively sacred in character.⁶

On these terms, what would be the antithesis of a single worldwide commonwealth or civilization united under the empire of law? Just this: a humanity united only and exclusively by the untouchable barriers that divide and separate it from itself. First conceived during the 1920s and 1930s but only fully fleshed out in the late 1940s and 1950s, Schmitt's theory of the nomos answered a classic Kantian question—for what may we hope?⁷—but in rigorously non-Kantian terms, with no reference to providence, with polemical fury against the "particular universalism" of Anglo-American imperialism, and with an eye toward the crises of his present. The years in which Schmitt developed the concept of nomos, after all, were decades in which "peace" was pursued by two very different means. On the one hand, these years witnessed a series of discourses, institutions, and practices whose mission was not only rational and universalistic, tending toward a world civilization united by law and commerce, but also, in more ways than one, imperial. Within this tradition, which predates Immanuel Kant and stretches back to the Abbé de St.-Pierre and Jean-Jacques Rousseau but also forward to Ludwig von Mises and Friedrich Hayek, one could include the United Nations Universal Declaration of Human Rights (1948) as well as the General Agreement on Tariffs and Trade (1948) and the International Monetary Fund (1945). On the other hand, coexisting with this first at times uneasily and at other times quite easily, there is a second tradition of thinking about peace, where "peace" is achieved by the formal separation of populations who could be geographically partitioned on the...