“POSITIONS AND CONCEPTS”:
A DEBATE WITH CARL SCHMITT
Ernst Rudolf Huber
Originally appeared as Ernst Rudolf Huber, “‘Positionen und Begriffe’: Eine Auseinandersetzung mit Carl Schmitt,” Zeitschrift für die gesamten Staatswissenschaften 101 (1941): 42–44.
Not possession of power, but the exercise of power decides whether the order it has created is a morally justified and just order. Whether the evolving order of a sphere of influence [Großraumordnung] whose economic, strategic, and geopolitical prerequisites have been described by Schmitt will lead to a new international law will depend on whether it will be an imperialism in the sense of mere expansion of power or whether the leading peoples in the midst of such large spheres of influence live up to the responsibility placed upon them by the possession of power even over the coordinated peoples. The just exercise of power will be the criterion of the contrast between the old imperialism and a true international legal order of spheres of influence.
From yet another of Schmitt's “positions,” a decisive objection arises against the legal quality of previous imperialism and at the same time an additional criterion for the contrast between imperialism and the future order of spheres of influence. Modern imperialism … is based on the extension of invisible domination over seemingly independent areas. Protective treaties and mutual assistance pacts, economic and financial bonds, concealed rights of control and intervention are the methods typical of the structure of modern empires. With good reason, the concept “indirect domination” has been used for these methods of modern imperialism. …
The answer to this question is closely connected with the problem of the legal quality of the order of a sphere of influence. For true law is possible only as a public, visible order; indirect domination can be a very effective phenomenon of facticity, but it is no basis for law, as law cannot exist without publicity and open responsibility. … A direct, open and responsible order of a sphere of influence must go beyond prohibitions on and rights to intervention and lay claim to “sphere sovereignty” [Raumhoheit]; and Schmitt came to this conclusion in his latest essay, “Reich and Sphere” [Reich und Raum]. The question remains whether there is a real difference between territorial sovereignty and sphere sovereignty, and whether the sphere of influence equipped with sphere sovereignty still differs from a large state or superstate. These questions are not posed here with the intent of polemicizing against a new and fruitful concept of political and legal theory; they have the positive aim of indicating a problem facing German international law theorists because of revolutionary political developments.