Introduction
In The Nomos of the Earth Carl Schmitt argued that the end of the First World War had a dramatic impact on the organisation of life across Europe, facilitating the collapse of the Ius Europaeum Publicum, which had regulated life since the seventeenth century.Footnote 1 Since then, a growing number of scholars have engaged with questions about the nature of spatial ordering, while also using the concept of nomos in explorations of sovereign power. A discussion about sovereignty and the state of exception – a legal-political concept that is central to contemporary efforts to retain power – contains implicit within a number of assumptions about space and the relationship between legal structures and territory. Typically, this work focuses upon the exception and the mechanisms of control used to regulate life, yet such approaches fail to adequately account for the complexity of political life in the postcolonial world and the myriad often competing visions of ordering that challenge sovereign power.
The concept of nomos is inextricably linked – semantically and politically – to notions of law and the ordering of life. For Giorgio Agamben, the convergence of democracy and totalitarianism through the state of exception and the resulting camp is the ‘nomos of the modern’, as a consequence of the production of ‘bare life’ across society through the proliferation of the logic of the camp.Footnote 2 While the concept was traditionally understood as custom or law, it has become understood in myriad ways driven by the political, social, legal, and normative contexts and conditions of the prescriber. Fundamentally, nomos allows us to speak of a law that ‘frames, locates and organises human, political and social existence’.Footnote 3 It is a concept that is central to order, life, and the norms that regulate existence. It is seen by some as a form of ‘root order’,Footnote 4 yet as I shall endeavour to show, nomos should instead be viewed as the struggle over the localisation (Ortung) and ordering (Ordnung) of space. Nomos is thus comprised of the interaction of sovereign power and community within and across space.
In this article I seek to demonstrate how using the concept of nomos helps us better understand political life in the Middle East through understanding tension between competing visions of political order. Across the following pages I propose an understanding of nomos that complements the structural approach of Giorgio Agamben with a relational approach similar to those proposed by Hannah Arendt, Peter Berger, and Robert Cover. Drawing on examples from the region, namely the construction of the state of Israel and the emergence of geo-sectarian politics, I use the concept to understand how struggle over the localisation and ordering of space helps us to better understand contemporary political life. I argue that amid contestation over the means through which order is achieved, an existential threat to the very nature of the territorially grounded sovereign state arises, which can be manipulated by forces seeking to destabilise political order.
Sovereignty, nomos, and spatial ordering
The ability to define the exception – and suspend the rule – is seen to be the dominant characteristic of contemporary sovereign power, emerging from the work of Carl Schmitt.Footnote 5 Although deeply problematic, Schmitt's work has been taken up by scholars on both left and right – as an influential voice in neoconservative thought and a powerful voice against liberal imperialism – offering insight into International Legal and Political Theory, yet his work has also had a large impact on International Relations, particularly evident in his work on sovereignty and nomos. Schmitt's ideas are predicated upon a reading of the political as one that is based upon the friend/enemy distinction, which creates a particular form of political and social organisation.
Schmitt's later work moved away from an interest in domestic affairs and took on an international focus underpinned by spatial concerns. Perhaps the most influential of this period of work is Der Nomos der Erde (The Nomos of the Earth), in which Schmitt focuses upon the apparent failure of the Ius Publicum Europaeum and the emergence of a new nomos. For Schmitt, nomos stems from the unity of space and law, driven by the complex interaction of Ortung and Ordnung, which create spatial limits through taking an outside.Footnote 6 This approach creates a particular form of legal and political life, wherein conflict is an inherent and daily part of life as the political underpins all interactions.Footnote 7 Ultimately, the earth ‘becomes a battleground, and the polity a vessel for conflict’.Footnote 8
For Schmitt, nomos is essential in rooting law to land, where appropriation is a fundamental act, restoring law's ‘spatial character’. It is, ‘the original spatial order, the source of all further concrete order and further law. It is the reproductive root in the normative order of history.’Footnote 9 In The Nomos of the Earth, ‘land appropriation is the primeval law-founding act’Footnote 10 a concept that takes us back to the beginning of political life, naming ‘the originary and primordial relation of law to the earth and to the soil’.Footnote 11 Schmitt's engagement with the concept of nomos is typically understood as an attempt to understand world order and has prominently featured in academic debates about US hegemony in the post 9/11 context.Footnote 12 Yet as Hannah Arendt suggests – and as we shall explore in due course – this understanding of Law ignores inter-subjectivity and processes of interpretation. Moreover, it removes all traces of normative legal and political characteristics that offer an alternative ordering of life.Footnote 13
Although problematic, Schmitt's work continues to shape a number of intellectual traditions. For Louiza Odysseos and Fabio Petito, Schmitt's account of nomos offers ‘the most compelling history of the development of international law’, along with an ‘alternative historical account of international relations … and demise of modern “international society”, often referred to as the “Westphalian system”’.Footnote 14 For others, Schmitt's work was central to a powerful critique of liberal world-ordering, political geography challenged by the ‘spaceless universalism’ of the Anglo-American imperial agenda and the ‘end’ of interstate politics.Footnote 15 Perhaps more importantly, Schmitt's work allowed for a return to the politics of exception, particularly that put forward by Agamben, and Hardt and Negri, along with a reimagining of figures of ‘the partisan’ and ‘terrorist’ in the post 9/11 world.Footnote 16
It is the return of this exception that is of interest to our project and, in particular, the work of Giorgio Agamben. Building upon both Schmitt and Michel Foucault, particularly the decision to ‘take life or let live’.Footnote 17 Agamben's understanding of sovereign power is concerned with the regulation of life through exception, which ultimately becomes the ‘nomos of the modern’.Footnote 18 Agamben's work seeks to undertake a spatialisation of the exception, driven by a desire to map particular ‘socio-geographical phenomena’ where the exception is seen to operate.Footnote 19 It is within these sites that key aspects of Agamben's work emerge. Here, the ban is located, producing bare life through the exclusion of life from the polis and its inclusion through exclusion, a theme that will recur later in this article.Footnote 20
For Agamben, the ban is the state of exception; it is the process of creating an outside and conversely, an inside. Through this constitutive act, the sphere of the political is bornFootnote 21 along with the ‘paradox of sovereignty’.Footnote 22 This paradox is contingent on the idea that the sovereign is
neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other. The suspension of the norm does not mean its abolition, and the zone of anomie that it establishes is not (or at least claims not to be) unrelated to the juridical order.Footnote 23
Put another way, the state of exception is ‘the preliminary condition for any definition of the relation that binds and at the same time abandons the living being to the law’.Footnote 24 It is this inclusive exclusion that is at the heart of much of Agamben's thought, a spatial threshold, a zone of indistinction through which one can identify the structure of political relations and public spaces. From this, we can observe how political life and meaning is stripped from individuals, creating hominus sacri in the process.
Central to Agamben's work is the Aristotelean distinction between life as either bios or zoe, wherein life has political meaning or where such meaning has been eviscerated, excluded from what is viewed as a qualified political life and subjected to sovereign violence. In this position, individuals are simultaneously bound by legal structures yet abandoned by them, residing in a position wherein they are subject to the laws yet not protected by them and can be killed by anyone but not sacrificed.Footnote 25 Here, bare life becomes increasingly political through its inclusion, bound in a more fundamental political relationship with sovereign power.
In doing so, we see the mechanisms of sovereign control in operation:
The sovereign no longer limits himself … to deciding on the exception on the basis of recognizing a given factual situation (danger to public safety): laying bare the inner structure of the ban that characterizes his power, he now de facto produces the situation as a consequence of his decision on the exception.Footnote 26
The situation referred to above brings about ideas of the camp, a zone of indistinction and the space that opens up amid efforts to grant the unlocalisable a ‘permanent and visible localization’.Footnote 27 It is a consequence of the fundamental ambiguity of the nexus between Ortung and Ordnung that characterises Agamben's nomos. Footnote 28
For Agamben, the camp is the ‘hidden matrix of politics’, where all political life is captured and regulated by ‘the governmental machine’ that is formed by sovereignty, government, law, and police.Footnote 29 It is a spatial form, existing beyond the normal juridical and governmental order.Footnote 30 In Agamben's thought this is nomos, the link between localisation and ordering, the immediate form where ‘the political and social order of a people becomes spatially visible’,Footnote 31 fundamentally, the localisation of the unlocalisable.Footnote 32 This idea is a central feature of neoliberal modernity, especially pertinent in the post 9/11 political context, with inherently spatial characteristics.Footnote 33 Accepting this view of the camp brings the formal and informal into discussion of sovereignty and the mechanisms of the state.Footnote 34 The camp is also a site of metaphysical potentiality, wherein all may be cast as hominus sacri by virtue of this potentiality.Footnote 35 As Jenny Edkins and Veronique Pin-Fat suggest: ‘We have all become homines sacri or bare life in the face of a biopolitics that technologizes, administers, and depoliticizes and thereby renders the political and power relations irrelevant.’Footnote 36
To illustrate this point, Agamben uses the idea of the wolfman to demonstrate spatial transgressions, crossing between the human and non-human realms. Drawing upon the figure of the wolfman, the individual who transgresses both law and society, appearing to simultaneously occupy the role of both man and beast. For Agamben this
is not a piece of animal nature without any relation to law and the city. It is, rather, a threshold of indistinction and of passage between animal and man, physis and nomos, exclusion and inclusion: the life of the bandit is the life of the loup garou, the werewolf, who is precisely neither man nor beast, and who dwells paradoxically within both while belonging to neither.Footnote 37
While Schmitt and Agamben both offer persuasive accounts of sovereign power, a number of challenges emerge. One challenge stems from the idea that consideration of legal structures alone cannot account for the regulation of behaviour, highlighted by the tale of Antigone. Indeed, as we shall see, a range of factors are in play that shape agency, legal structures, and the spatial order of the Westphalian system. A second challenge concerns the role of agency and the mechanisms through which change occurs within both political organisation and bare life. Reading Agamben, it is easy to conclude that political life is bleak, with sovereign power extending over those with authority over vital human activities and little scope to resist sovereign power,Footnote 38 yet as Edith Szanto and Patricia Owens persuasively argue, this is far from accurate: although bare life limits scope for the expression of agency, this does not remove it altogether.Footnote 39 Rather, bare life removes the capacity for political expression and representation, which, of course, may impact upon expressions of agency but does not necessarily do so.
Perhaps the most damning challenge to sovereign power in the postcolonial world concerns the remnants of the Westphalian system and its spatial bordering where sovereign power plays out amid competing manifestations of Ortung and Ordnung that play out in time and space. While the nation-state has been reified within International Relations amid the organisation of power and knowledgeFootnote 40 – in some cases serving to further state interestsFootnote 41 – in recent years a growing number of scholars have moved away from the state as the focus of international politics.Footnote 42 From such inquiries, territorial borders are now no longer given, but contested,Footnote 43 raising serious questions about the sovereignty of the Westphalian system itself.Footnote 44 Both Agamben and Schmitt recognise the importance of space within discussions of sovereign power and, for some, Agamben should be read as a spatial theorist given his efforts to localise the unlocalisable.Footnote 45 Echoing this point, Derek Gregory suggests that sites such as Guantánamo Bay must be reconceived, not as ‘paradigmatic spaces of political modernity’, but instead as ‘potential spaces whose realization is an occasion for political struggle’.Footnote 46 Gregory's observation leads to the assumption that the exception also possesses a geopolitical potential.Footnote 47 Exploring such a view prompts greater engagement with the exception, seen as a set of dynamic and fluid power relations.Footnote 48
For Agamben, the sovereign exception is a fundamental localisation while the link between Ortung and Ordnung serves as nomos of the Earth.Footnote 49 This link identifies a zone of indistinction, a space ‘excluded from the law’ where the state of exception ‘is not external to the nomos but rather, even in its clear delimitation, included in the nomos as a moment that is in every sense fundamental’.Footnote 50 Much like Schmitt, Agamben appears to suggest that a previous nomos has broken down to be replaced by a new nomos in the process of taking shape, determined by the power of international forces.Footnote 51 While the idea of the camp as the hidden matrix of contemporary politics is generally accepted amid an array of challenges to the political, the idea of sovereignty constructed in such a way is predicated upon flawed premises. The conceptual groundings provided by Schmitt of clear distinctions between Law/Politics, friend/enemy, inside/outside bear little resemblance to contemporary political life.Footnote 52 Neat demarcations that facilitated such an exception and the creation of bare life have themselves become zones of indistinction amid the erosion of both territory and the distinction between inside and outside. Here, we see how sovereign power is contingent upon the contextual and spatial contingency of the political.
Areas of contestation and conflict over spatial reach and nature of sovereign power emerge from ambiguous – or contested – sovereignty.Footnote 53 Amid such contestation, regimes struggle to exert influence within and across borders, creating zones that have been conceptualised as enclaves, exclaves, and islands;Footnote 54 it is hardly surprising that a great deal of work has been undertaken on the concept of the border, particularly with regard to its enforcement, location, and securitisation.Footnote 55 Yet with the collapse of demarcations identified earlier requires further exploration of the spatial aspects of order.
As Doreen Massey opines in For Space, spatial concepts can be understood in myriad ways, yet she suggests that three propositions are central: first, space is the product of interrelations, of interactions from the global to the ‘intimately tiny’; second, as a sphere of possibility, heterogeneous, and multiplicity, which is central to space; and third, that space is always under construction.Footnote 56 This understanding allows for different understandings and futures, (re)constructed by changing variables. Such propositions map neatly onto the ideas of this article, with regard to a constant set of interactions within and between states, affecting the regulation of life and the sphere of possibility. Such zones are characterised by indistinction, defined by interactions between territoriality and legality, inside and outside, time and space; from this definition of the outside, the Ordnung emerges.
In particular moments of time and space, sovereign power clashes with a range of contingent factors, allowing for new possibilities to emerge along with new manifestations of Ordnung, potentially with spatial repercussions, contesting the definition and closure of the outside. For Agamben, the state of exception opens a ‘space devoid of law, a zone of anomie in which all legal determinations – and above all the very distinction between public and private – are deactivated’.Footnote 57 Yet Massey's understanding of space brings contestation to the fore as recourse to norms, narratives, and communities of belonging are often evoked, many of which transcend demarcated borders and sovereign power itself. Put another way, contestation opens the possibility of alternative forms of Ordnung.
Such contingency is easily seen when considering spatial and non-spatial aspects of the political in the Middle East, where competing sources of authority from political, tribal, and religious figures – that easily transcend the moribund internal/external dichotomy – challenge the autonomy, legitimacy, and capacity of ruling elites to regulate life, while the power of trans-state movements challenges the territorial characteristics of the nation-state.Footnote 58 This array of challenges has created instability and uncertainty within and between states, once again demonstrating the failings of the Westphalian spatial order, stressing the precariousness of the sovereign order. Within this political order, rulers derive legitimacy through reference to a range of different mechanisms that located state projects within broader ideological, political, or religious narratives, referred to henceforth as informal structures. Yet as we shall see, reference to such projects proves problematic as they also bring division and contestation and are not necessarily couched in spatial borders. By consideration of alternative orderings, we are better placed to understand the construction of the ban and the mechanisms through which sovereign orders are contested.Footnote 59
Reflecting on Ordnung
At this stage of our exploration nomos appears concerned with the regulation of space, the ‘hidden matrix of government’, serving as the precondition for political organisation, yet there is more to the concept that shapes this hidden matrix, particularly in the postcolonial world. Fragmented systems of quasi sovereign power and authority can be found across political life in the postcolonial word, where powerful actors exert influence across space, shaping relationships between states, institutions, and populations in the process. Historically, many different forms and practices of sovereign power existed in the colonial world, operating under the tutelage of the sovereign. The complexity of configurations of sovereign power in such societies has given rise to ‘a complex range of informal sovereignties’, which, as a consequence, challenge the relationship between Ortung and Ordnung.Footnote 60 While regimes can seek to tame these ‘informal sovereignties’, incorporating them into the governmental structures of the state, they have at other times offered serious opposition to the state.Footnote 61
As Caroline Humphey – drawing on Agamben – argues, ‘localized forms of sovereignty’ are found ‘nested’ within ‘higher sovereignties’, which ‘retail a domain within which control over life and death is operational’.Footnote 62 From this, similar claims can be made about nomos and nomoi. While the two may coalesce, this is not a necessary feature of postcolonial politics. Indeed, tensions between nomos and nomoi – and competing interpretations – play an important role in facilitating contestation through the legitimisation of competing claims to power.Footnote 63 With this in mind, we must consider different ways of reflecting on Ordnung that are not necessarily directly related to Ortung and, similar to Massey's argument in For Space, we must focus on relational aspects.Footnote 64
To understand this, let us consider the ideas of Hannah Arendt, whose approach suggests that nomos emerges through a process of contract-making and the ensuing establishment of principles and institutions, through defining the inside by demarcating an outside,Footnote 65 evoking parallels with Agamben's ideas of sovereign power. Arendt's interpretation of nomos holds it to be related to Ortung is bounded, wall-like and constitutive of the polis. From this, all laws ‘first create a space within which they are valid, and this space is the world in which we can move in freedom’,Footnote 66 creating a bounded space for the interaction of legal structures while also facilitating stability and permanence. Yet this does not presuppose that nomos is foundational or that is possesses an ontological priority; rather, nomos is coeval with the foundation of the polis.
With this in mind, nomos was originally ‘identified with boundary line which in ancient times was still actually a space, a kind of no man's land between the private and the public, sheltering and protecting both realms while, at the same time, separating them from each other’.Footnote 67 This line is important, allowing for the limitation of space through the identification of communal membership. While the concept evolved over time, it retained a spatial bordering, from which Arendt derived the idea that while territory is important, it is the interaction of those within a particular territory that meaning is derived. For Arendt, all laws create spaces within which they are valid, creating territorial limits of internal order through law. In doing so, horizontal legal relationships among citizens are created, while vertical legal relationships are created between citizens and the state. From this, nomos is a space of belonging and of validity, a bounded legal space for a political community and for Arendt, those excluded are stateless.
Put another way, ‘All legislation creates first of all a space in which it is valid, and this place is the world in which we can move in freedom. What lies outside this space is lawless and properly speaking without a world’.Footnote 68 Such a view is metaphysical, requiring the necessarily bounded definition of an inside against an outside through which the community is able to close itself off as an inside, although as we shall see, this does not necessarily coalesce with the sovereign state.Footnote 69 Thus, the concept of nomos is predicated upon spatial boundaries, the existence of a clearly bounded territorial area within which such debates can occur. This position is neatly articulated in On Revolution:
Freedom, wherever it has existed as a tangible reality, has always been spatially limited. This is especially clear for the greatest and most elementary of all negative liberties, the freedom of movement; the borders of national territory or the walls of the city-state comprehended and protected a space in which men could move freely. Treaties and international guarantees provide an extension of this territorially bound freedom for citizens outside their own country, but even under these modern conditions the elementary coincidence of freedom and a limited space remains manifest.Footnote 70
The Arab philosopher Ibn Khaldun, writing 700 years before Arendt, makes similar claims about the importance of bounded spatialities:
[1] The world is a garden the fence of which is the dynasty.(*) [2] The dynasty is an authority through which life is given to proper behavior. [3] Proper behavior is a policy directed by the ruler. [4] The ruler is an institution supported by the soldiers. [5] The soldiers are helpers who are maintained by money. [6] Money is sustenance brought together by subjects. [7] The subjects are servants who are protected by justice. [8] Justice is something familiar, and through it the world persists. The world is a garden …Footnote 71
Although different in myriad ways from both Arendt and Schmitt, Khaldun's approach to space and political organisation offers important insight into the idea of nomos and regulation, couched in religious belief which depicts a more complex form of Ortung, requiring a more considered examination of the role of norms, ideas, and faith.
With this acceptance of the predominance of normative values, we begin to move towards a more nuanced, reading of nomos. As we shall see, however, the act of ordering opens up contestation and questions about the authority to impose order and the conditions that give rise to its creation. As Arendt acknowledges, the omission of the normative from contract making is of paramount importance. While not addressed in the above quote, Khaldun populates his conception of nomos with a discussion of religion, which goes some way into resolving some of the tensions in the Arendtian approach, although problems over the role of religion in shaping nomos that does not coalesce with sovereign borders remain underexplored.
Peter Berger's work on the sociology of religion helps shed light on such aspects and the role of religion within society and the power of the community within nomos. For Berger, society is a dialectic phenomenon as a product of humanity yet acting back upon its creator. Each individual plays a part within this broader and continuous dialectic, wherein each individual story is ‘an episode within the history of society, which both precedes and survives’.Footnote 72 With this in mind, Berger argues that the dialectic is comprised of three interrelated aspects: externalisation, objectivisation, and internalisation.Footnote 73 Through understanding how such aspects interact, we can understand how the world is shaped and, as a consequence, how the world shapes agency.
Through this series of interactions, Berger argues that nomos is created. This nomos is viewed as an ‘ordering of experience … imposed upon the discrete experiences and meanings of individuals’,Footnote 74 a social construction:
The socially established nomos may thus be understood, perhaps in its most important aspect, as a shield against terror. Put differently, the most important function of society is nominization. The anthropological presupposition for this is a human craving for meaning that appears to have the force of instinct. Men are congenitally compelled to impose meaningful order upon reality. This order, how- ever, presupposes the social enterprise of ordering world construction. To be separated from society exposes the individual to a multiplicity of dangers which he is unable to cope with himself … The ultimate danger of the individual separation from society is meaninglessness.Footnote 75
Although concerned with society, there is nothing that directly relates Ordnung to Ortung in this reading of nomos.
Importantly, Berger stresses that nomos exists simultaneously as both objective and subjective, providing scope for a range of different interpretations and identities. Thus, nomos provides an arena for individuals or groups to perform their identity in ‘spaces of appearances’, through both word and deed. It creates an opportunity for myriad (often competing) nomoi to emerge, existing within nomos. Sharing Berger's position, in The Human Condition, Arendt argues that the world is given meaning through the interaction of peopleFootnote 76 achieved through the ‘sharing of words and deeds’.Footnote 77 The same applies to the ideas of both nomos and polis. Thus, ‘the organisation of the people as it arises out of acting and speaking together, and its true space lies between people living together for this purpose, no matter where they happen to be … can find its proper location almost anytime and anywhere’.Footnote 78
Supporting this position, F. M. Cornford suggests that religion and culture help to understand the ordering of life. For Cornford, nomos is ‘a dispensation or system of provinces, within which all the activities of a community are parcelled out and coordinated’.Footnote 79 In the Middle East, shared culture and religious belief is found across the region. As Hamid Rabi observes,
cultural heritage (turath) is the means to self-recognition. The national Self is one and indivisible. It is the expression of a fixed continuity, in spite of some diverse manifestations on the individual and collective levels. Self-recognition cannot spring up except from the past. Just as a tree may not be complete without a multiplicity of branches, its ability to survive will obtain only as to the depth to which its roots can reach.Footnote 80
From this, although shared cultural practices transcend state borders and provide alternative visions of Ordnung, they can also be harnessed by regimes, built into the fabric of a number of states for their regulatory capabilities. In Saudi Arabia, for instance, tribal values are reflected in the style of dress and also the channels through which political voices are heard, namely the shura council. The importance of turath is also found within constructions of legitimacy. Typically this has been viewed through an analysis of the performance of institutions, but within the context of rentierism, justice and turath play an important roleFootnote 81 perhaps best seen in the role of tribal norms in Saudi Arabia, which simultaneously legitimise and delegitimise the ruling Al Saud.Footnote 82
The power of cultural practice transcends subjective perceptions and resonates in the creation of the state's formal structures, ultimately shaping the ban and the creation of hominus sacri.Footnote 83 Yet such cultural practices also have the capacity to transcend Ortung, having an impact beyond the territorially grounded polis through the capacity to propose an alternative form of ordering. As Raymond Hinnebusch argues, the Middle East is characterised by porous borders, both physically and ideologically, which poses problems for this construction of the territorially grounded nomos, resulting in ideas of community and order spilling out across the region.Footnote 84
As we shall see, ideas that transcend the territorially defined state can result in the emergence of a nomos that is not coeval to political spatial boundaries, giving individuals the possibility to find meaning – and belonging – in a number of broader communities. In The Human Condition, Arendt talks of how ‘each man is as much an inhabitant of the earth as he is an inhabitant of his country’.Footnote 85 By extension, we can make similar claims about individuals possessing membership of both state and broader collective. Three examples are quickly apparent when considering memberships in the Middle East: ideas of Arab nationalism, the pan-Islamic umma, and membership of sectarian collectives. Yet in such claims a tension emerges between membership of a territorial form of organisation and the broader collective, particularly with regard to the regulation of action.
In the case of pan-Islamism, tensions also emerge between the divine and the ruler over the sources of sovereign authority in the manifestation of a longstanding claim that the separation of religion and politics is denied. For Majid Khadduri,
A distinction … must be made between an authority which is directly derived from and exercised by God, and an authority which is derived from a divine code endowed by God but enforced by His viceregent (or by a secular ruler) which is equally binding upon the latter and the people.Footnote 86
This fundamental tension is central to debate about the relationship between religion and politics, made all the more complex in the Middle East as a consequence of the emergence of religious groups within the context of particular social, political, and economic milieu that shaped the regulation of life while such regulatory bodies often based claims to legitimacy on Islam. In spite of this, the prominence of ijma’ al-fi'l (consensus) within Islam demonstrates the plurality of positions within Islam with regard to politics.Footnote 87
Political communities are traditionally territorially grounded which, historically manifested in the Islamic concepts of dar al-Islam and dar al-harb, terms used to identify membership of communities that are territorially grounded, albeit in a fluid way and not necessarily representative of the international community of sovereign states. Although contested, dar al-Islam is fundamentally understood as ‘the whole territory in which the law of Islam prevails’,Footnote 88 while dar al-harb is the area within which Muslims are ruled by a non-Muslim. Manoucher Parvin and Maurie Sommer suggest that it should be considered as ‘a political-territorial expression of that community in which Islamic religion is practiced and where it is protected by a Muslim ruler’.Footnote 89
As Islamic expansion and consolidation met Western colonialism, political organisation in the form of the territorial state began to shape Islamic pluralism and debate about the relationship between religion, law, and politics became dominated by questions about obligation and sovereignty. With this, fluid, sociological concepts character of Islamic sovereignty became enmeshed within territorially grounded political structures.Footnote 90 The embodiment of Islamic principles within nation states helped solidify the sovereign states system, yet membership of a broader community remained.
Scholars working on the umma have undertaken a great deal of work understanding the construction and mobilisation of transnational Muslim identities in the context of globalisation and tension with the sovereign state.Footnote 91 This body of work seeks to consider the construction of a transnational, pan-Islamic community, spanning sovereign borders, replete with cultural diversity but often exclusionary. Critical reflections on the concept are built upon ideas of Muslims and umma as constitutive of localised traditions with discursive claims to a timeless religious community. Such expressions occur within a relational capacity, discursive and political.Footnote 92 It is through exploring the way in which often competing communities interact and evolve, particularly the tension between concepts that appear dichotomous, that we are better placed to understand how political communities – umma and nation (among others) – are reproduced.
Ordnung, nomos, and contestation
To obtain a more nuanced picture of how life is regulated (and contested) we must consider other forms of ordering – and how they interact with Agamben's vision – namely the normative, cultural, historical, and social values that help to enforce and regulate sovereign power and give meaning to action. Of course, such values are context specific, meaning that we cannot talk about one set of Jewish or Islamic norms, tribal dynamics or national social practices. Instead, nomos is shaped by the range of factors operating amid the acknowledgement of particular communities.
As we noted earlier, ideas of order are fundamental to the organisation of a community, yet as Robert Cover argues, nomos itself is an ordered community: ‘to inhabit a nomos is to know how to live in it’.Footnote 93 Put another way,
A legal tradition is hence part and parcel of a complex normative world. The tradition includes not only a corpus juris, but also a language and a mythos – narratives in which the corpus juris is located by those whose wills act upon it. These myths establish the paradigms for behavior. They build relations between the normative and the material universe, between the constraints of reality and the demands of an ethic. These myths establish a repertoire of moves – a lexicon of normative action – that may be combined into meaningful patterns culled from the meaningful patterns of the past.Footnote 94
Accepting the complexity of such a normative world, comprised of a conflation of narratives, creeds, and principles, one can then consider them brought together in a corpus, which reveals the existence of a transparent, paiedeic nomos. Yet the establishment of nomos is a fleeting instance, where unison brings about its own demise. Such commitments establish a fleeting unitary community that is destroyed as quickly as it is created amid the conflation of myriad debates about creed, identity, and worship, leading to dispute about the nature of the community and political project.
Holding such a position entails the acceptance of the plurality of systems of belief, meaning, and interpretation, resulting in a plethora of different sets of behaviour. The richness of this nomos includes paradigmatic materials, acquiescence, contradiction, and resistance. Thus
Legal precepts and principles are not only demands made upon us by society, the people, the sovereign, or God. They are also signs by which each of us communicates with others. There is a difference between sleeping late on Sunday and refusing the sacraments, between having a snack and desecrating the fast of Yom Kippur, between banking a check and refusing to pay your income tax. In each case an act signifies something new and powerful when we understand that the act is in reference to a norm. It is this characteristic of certain lawbreaking that gives rise to special claims for civil disobedients. But the capacity of law to imbue action with significance is not limited to resistance or disobedience. Law is a resource in signification that enables us to submit, rejoice, struggle, pervert, mock, disgrace, humiliate, or dignify.Footnote 95
Knowing how to live within a particular society requires one to obey the norms created through interaction, which hold the normative universe together through interpretive commitments, some of which are small and private while others are colossal and public, with some spatially grounded and others not. This structural organisation of nomos, contingent upon commitments and promises, emerges with birth itself, as responses to ‘personal otherness’ that are central to the definition of the normative world.Footnote 96
To know how to live, one must learn those structures that are not necessarily codified and thus, nomos must include a form of education, wherein the collective is immersed within the corpus. This direction may be derived from history or religion:
For Simeon the Just spoke in the context of his generation in which the Temple stood, and Rabbi Simeon ben Gameliel spoke in the context of his generation after the destruction of Jerusalem. Rabbi Simeon b. Gamaliel taught that even though the temple no longer existed and we no longer have its worship service and even though the yoke of our exile prevents us from engaging in Torah and good deeds to the extent desirable, nonetheless the [normative] universe continues to exist by virtue of these three other things [justice, truth, and peace] which are similar to the first three. For there is a difference between the [force needed for the] preservation of that which already exists and the [force needed for the] initial realization of that which had not earlier existed at all.Footnote 97
While the Torah shapes the normative life for Jews, the normative universe established by the interaction of Quran, hadith and sunna shapes contemporary life for Muslims, where recourse to justice truth and peace is central. For instance, the following two verses of the QuranFootnote 98 denote this importance: ‘We have revealed to you the scripture with the truth that you may judge between people by what God has taught you’;Footnote 99 moreover, ‘the Word of your Lord has been fulfilled in truth and in justice. None can change His Words’.Footnote 100 Although framed as objective, judgement and subjectivity is couched in the engagement with the verses.
We should also stress the importance of darurah (necessity) as a means of justifying transgression, taking action away from the righteous path. Within the Quran, whomever ‘is driven by necessity, neither craving nor transgressing, it is no sin for him. For Allah is Forgiving, Compassionate.’Footnote 101 Building on this, the Surah of Al Mai'dah expands on how acts against the Quran can be forgiven:
Forbidden to you for food are carrion, blood, swine-flesh, and that which has been dedicated to any other than Allah; that which was strangled; that which was beaten to death by a blunt instrument; that which fell a long fall; that which was gored by horns; that of which predators have eaten – saving that which you make lawful by slaughtering before they die; and that which has been sacrificed to idols. … That is corruption. … Whomever is forced by hunger, not by will, to sin, for him Allah is Forgiving, Compassionate.Footnote 102
Thus transgression is permitted through recourse to darurah, albeit leading to plurality and subjectivity, through interpretation of necessity. From such an acknowledgement, we can also see how a range of opposition groups emerge across the Middle East – from the very systems they oppose – whose transgressions challenge the legitimacy and authority of regimes on the basis of non-compliance with religious edicts. While a number of rulers have created links with the ulemma as a mechanism through which to cultivate legitimacy and darurah for particular actions, such as the seizure of the Grand Mosque. Yet such recourse creates plurality, wherein religion serves as a ‘double-edged sword’, simultaneously legitimising and delegitimising action.Footnote 103
Moving beyond focus on regimes, zones of indistinction that emerge from the prominent role of religion within sovereign spaces also provide opportunities for voices from the subaltern to challenge patriarchal and hegemonic narratives that have previously justified their exclusion. While Asef Bayat suggests that this coincides with the retreat of religion from the public sphere, in what he terms ‘post-Islam’, the idea remains that a space of possibility emerges for those previously excluded.Footnote 104
A fundamental part of Cover's discussion in Narrative and Nomos explores the idea that the law serves to create singularity among a multiplicity of normative views.Footnote 105 Given the capacity for individuals to derive a plurality of views from nomos, a key part of the discussion of sovereignty must also concern efforts to shape, regulate, or destroy nomos, for it is only through recourse to hegemonic narratives and the monopolisation of identity, culture, religion, and history that a sovereign can fully lay claim to the establishment of biopolitical life. Attempts to regulate nomos include the establishment of institutions designed to control but being run in accordance with legal structures must allow people to express their sentiments.
The civil community embraces everyone living within its area. Its members share no common awareness of their relationship to God, and such an awareness cannot be an element in the legal system established by the civil community. No appeal can be made to the Word of Spirit of God in the running of its affairs. The civil community as such is spiritually blind and ignorant. It has neither faith nor love nor hope. It has no creed and no gospel. Prayer is not part of its life, and its members are not brothers and sisters.Footnote 106
The shared vision at the heart of nomos simultaneously drives and divides the community, as the vision's creation immediately creates division among those who debate the very meaning of the community and membership, rendering the unification as illusory. Thus, the very creation of unity results in contestation and, ultimately, disintegration, from which nomos continues to serve as an arena for the interaction of normative structures that regulate life. It is the consistent process of tension and reconciliation. Control of the narratives and myths that themselves constitute informal structures and feed into nomos is contested yet remain free from regulation. Such narratives and myths reveal ideals of community, belonging and order, while also releasing concepts of resistance and rebellion. While formal legal structures are designed as a means of imposing order and power across political organisation (and metaphysical nomos) they are not always able to regulate nomos. Moreover, informal structures also exist as a source of meaning, providing context and justification for political action that may challenge formal structures and potentially erode the power of the ban.
While our understanding of sovereignty is predominantly concerned with the regulation of life through the use of political structures to create zoe, failure to understand nomos means that meaning that gives context to action is lost. Within nomos, narratives and informal structures set the paradigms for behaviour, through the establishment of a ‘repertoire of norms’, whilr also aiding the closure of a community. From this repertoire, paradigms emerge through interaction among the community and thus, may not be established by regimes. Although traditionally taken as coeval with the establishment of the sovereign state, there is nothing that precludes the establishment of nomos beyond territorial borders, into new spaces and geographies. As Massey argues, space is essentially a site of possibility – akin to many of the ideas discussed previously – which provides the capacity for nomos to spill beyond Ortung, with repercussions for the ordering of neighbouring states and sovereign power.
Complicating this issue is the subjective interpretation of structures, shaped by nomos. Although the meaning of legal structures may be agreed upon – in this case, the meaning and consequences are understood – the norms that underpinned such structures may be rejected. For example, an individual residing in a state may understand the meaning of a particular law, but their normative position may result in a rejection of the law. Thus, structures that facilitate the regulation of life must also be placed within the context of a relationship between vision and norm; put another way, to understand political life we must consider the relationship between the law, how it is perceived, and the normative environment shaping action. The remainder of the article considers how such ideas have shaped political and geographical life across the Middle East, beginning with a discussion of spatial aspects in Israel before considering the construction of sectarian communities as a political tool within the context of the rivalry between Saudi Arabia and Iran.
Transformation and contesting sovereign power
The establishment of the State of Israel in 1948 provides opportunity to reflect on how nomos can aid our understanding of political life. In the aftermath of its formation, a plethora of competing views and creeds emerged from the myriad understandings of Zionism that contested – and thus shaped – the very nature of the new state, opening a space between Ordnung and Ortung, stemming from competing visions of nomos. After its formation, territory took on an existential importance for the nascent state, integral for the very idea of the state of Israel.Footnote 107 A series of conflicts between Arab and Israeli armies transformed the landscape of the former mandatory Palestine, including the seizure of large swaths of territory in 1948, known among Arab audiences as the nakba. Although important strategically, land possessed a far greater symbolic political and theological importance, as groups with competing interpretations of Judaism – and visions of political manifestations – struggled to shape the characteristics and definitions of the nascent state.
After the seizure of the Old City of Jerusalem after the 1967 war one of the first acts of the Israeli Defence Forces was to destroy the ‘Moroccan Quarter’ of the city – that which sat in front of the Western Wall – to facilitate easier access.Footnote 108 In the following years, architecture and urban planning would take on an existential importance in transforming Jerusalem.Footnote 109 Similar events would transform the landscape of the West Bank, as land was divided into Areas A, B, and C, before numerous settlements were established, laying claim to Palestinian land. In the years after the failure of the second intifada, the Old City would undergo increased militarisation and the installation of a range of security measure to regulate life. An additional signifier was the routine use of Stars of David, flown from the rooftops, windows, and washing lines of houses across the Old City. Transforming land was part of a broader project of both Ordnung and Ortung, imposing meaning upon space in accordance with meaning derived from the Torah, albeit interpreted in competing ways.
State actors do not possess a monopoly on such transformative acts. Take for example, the actions of a number of settler groups – such as Gush Eminim and the Hilltop Youth – who in following the teaching of Rabbis Ginsburgh and Kook, rejected the legitimacy of the state. For Rabbi Ginsburgh,
the ultimate goal of our yearning is the complete redemption, the arrival of Mashiach and the construction of the Temple. There is no doubt that a Jewish state is an essential and central component of the grand picture of the redemption of the Jewish People. Yet, it is clear that the state that was established … [in](1948), as it stands today, is still a far cry from that dreamlike vision that has warmed our hearts for almost two thousand years. It is not difficult to understand why many Torah and mitzvah observant Jews are reluctant to identify themselves with the state and its symbols.Footnote 110
In following such proclamations, settler groups began to play a prominent political role, seizing land and transforming it in accordance with a particular rabbinical vision, opening up competing visions of Ordnung and Ortung, contesting sovereign power.
The transformation and regulation of space is essential in working towards the vision of Eretz Israel. Housing played a prominent role in transforming the landscape of the West Bank through settlement of civilian communities on Palestinian land. Although International Law prohibited civilian presence in occupied territories, members of Religious Zionist groups sought to settle civilians across the West Bank to facilitate the transformation from ‘enemy territory’ to Jewish homeland.
In discussions with Prime Minister Levi Eshkol, the settler group was given permission by the prime minister to ascend, as he famously pronounced ‘well kids, if you want to – ascend’. A different recollection of the quote has it as ‘Children, you may return home.’Footnote 111 Upon receiving permission, a convoy of cars and lorries set off for the hills of the West Bank to establish new settlements and transform Palestine towards Eretz Israel.Footnote 112 Settler groups were keen to proselytise their goals, regularly publishing documents detailing their activities.Footnote 113 Zvi Slonim, the Secretary of Gush Emunim spoke of life in settlements characterised by ‘“basement” conditions yet “penthouse” morale … the settlement gradually constructed itself as a separate entity … Supporters who came here saw the making of a new form of pioneer life [… and] were sparked with the seed that fruited with more and more Elon Moreh [settlements] in Judea and Samaria.’Footnote 114
For political reasons, the Israeli state later decided to disengage from Gaza and to raze a number of unofficial settlements, while simultaneously continuing to build new homes across the West Bank. The response to disengagement was traumatic for many of the settlers. In remembering these events, one settler
burst into tears, telling those present that over the past 80 years of his life, he cannot remember a time where thousands of Jewish families were being expelled from their homes in such a manner, when 25 Jewish towns were set to be utterly destroyed, when the destruction of dozens of synagogues and houses of Torah study was to take place, as well as the desecration of Jewish graves.Footnote 115
The severity of this response reveals a lot about the varying interpretations of the Israeli state building project but also Jewish obligations under the Torah.
The transformation of territory across Israeli and Palestine was an integral part of both political and theological projects, yet the conflation of political laws with theological commandments from the Torah reveals the capacity for tensions to emerge from nomos and contesting sovereign power. After the establishment of the state of Israel – perhaps the fleeting instance discussed earlier – divisions emerged within the corpus, creating schisms that would have serious political ramifications in the decades to come, both politically and spatially.
Sectarian games
As we have seen, nomos is not necessarily territorially grounded and, as such, can exist across the spatial borders that characterise contemporary international politics. In recent years, amid often-violent contestation, new geographies emerge, driven by the cultivation of nomoi based on shared identities but contingent upon the political calculations of dominant actors. In the Middle East, regional rivalries seek to capitalise on the possibility of such nomoi, perhaps best seen in the rivalry between Saudi Arabia and Iran that plays out across space, driven by competing visions of political and religious order, as regional forces interact with the ‘intimately tiny’ intricacies of local politics.Footnote 116
In the immediate aftermath of revolutionary activity in Iran, Saudi Arabia sought to erode the nascent Islamic Republic's legitimacy by framing events through a sectarian lens, widening competition between Sunni and Shi'a. The Kingdom's vast petro-dollars provided funding to clerics across the world in return for proselytising the Wahhabist vision of the umma, expanding the Saudi influence and opening up new spaces of competition between Riyadh and Tehran.Footnote 117 In the years that followed, competing visions of Islam and communities of faith emerged, driven by sectarian loyalty, (geo)political aspirations, and relationships with political projects.Footnote 118
Amid this rivalry, sectarian networks have been mobilised in an attempt to shape regional dynamics and for both Riyadh and Tehran to exert influence beyond their sovereign borders. Both states have sought to cultivate networks through recourse to membership of a collective nomos, framing and securitising events as part of a broader ‘religious’ struggle.Footnote 119 Yet to do this requires the presence of a shared nomos, which provides fertile ground for discourses to find meaning. Consequently, membership of nomos – in this case, a community with shared sectarian identity – provides opportunities for actors to regulate life through recourse to communal membership, transcending territorial borders but not necessarily eroding them, leading to a process of (re)negotiation between local contingency and the role of states within regional politics.
Recourse to nomos and the closing off of a community has become increasingly common phenomena, particularly amid the contestation of political projects. In Iraq, Syria, Bahrain, Yemen, and Lebanon, sectarian communities have been constructed and manipulated amid political and geopolitical struggles through the cultivation of sect-based nomoi. The widespread presence of sectarian difference across states in the region creates the possibility of competing orderings in pursuit of political and geopolitical power through closing off communities against an (external) other.Footnote 120
In Lebanon, sectarian difference is embedded in a power-sharing political system, which facilitated the end of a 15-year long civil war. Religious divisions cut across socioeconomic currents, leaving a complex political situation that has often been a site of external interference.Footnote 121 From such divisions – and reflecting the strategic importance of Lebanon in the Middle EastFootnote 122 – Saudi Arabia and Iran have sought to capitalise on domestic instability and exert influence over co-sectarian kin at the expense of other groups – and their sponsors – across the state. While this has been driven by efforts to create cohesion among communities, it also involves the framing of the other as a threat, best seen in the cultivation of the narrative of the ‘Shi'a Crescent’, the insidious suggestion that Shi'a groups across the Middle East are fifth columnists doing the bidding of Iran.Footnote 123
Communal difference manifests in power-sharing agreement underpinning the Lebanese political system but also in the construction of urban life, notably in Beirut. The southern suburbs, beyond the Camille Chamoun sports city are predominantly Shi'a areas, controlled by Hizballah and while Lebanese police patrol the area, they are subservient to the Party of God.Footnote 124 Road names reveal a great deal about the area, demonstrating the importance of the group's leader Hassan Nasrallah, but also Ayatollah Ruhollah Khomeini and other prominent Shi'a figures. Symbols that adorn the streets demonstrate this loyalty to the Shi'a – and by extension, Iranian cause – from the posters and banners, to the graffiti sprayed across the walls; it is a space of Shi'a influence where ideas and beliefs have travelled. Shi'a values, of martyrdom and sacrifice are prominent features of such symbolism, revealing a rich normative environment that regulates life.Footnote 125
Iran's longstanding relationship with Hizballah since its formation in 1982 – facilitated by the provision of financial and ideological support – ensures that they have a great deal of cultural capital, but it is the existence of a shared normative environment that is the real strength of the relationship.Footnote 126 In the aftermath of the 2006 war between Israel and Hizballah that led to the destruction of Dahiyeh – Hizballah ‘heartland’ – Iran provided $120 million for postwar reconstruction of southern Beirut; in contrast, Saudi Arabia – seeking to get cultural capital through provision of financial support to Hizballah, albeit deeply problematic to many in Riyadh – provided $1.2 billion.Footnote 127 In spite of this, it is images of Khomeini that look down on anyone walking around Dahiya, suggesting that nomos is a resource far more powerful than money with the capacity to shape spatial areas in a way that financial resources are unable.
Across the region, similar stories are told, of the cultivation and manipulation of sectarian difference for political ends. In Bahrain, a sectarian master-narrative framing Shi'a as insidious Iranian agents doing the nefarious bidding of Iran decimated the popular protests that took place across 2011, playing on longstanding fears of Iranian influence – notably the failed (Iranian supported) 1981 coup d'etatFootnote 128 – albeit disregarding the complexity of competing marja'iyya in Qom and Najaf.Footnote 129 In propagating such a narrative, regime officials sought to ensure the support of their Sunni citizens amid a fear of perfidious Iranian interference in Bahraini politics. Similar claims are routinely made in Iraq, Yemen, and even Saudi Arabia.Footnote 130 Yet national identities remain important, revealing the importance of localised contingent factors in the face of seemingly much stronger religious currents but revealing a fundamental tension between sovereign power, Ordnung, and Ortung.
Conclusions
Fundamental to political projects are efforts to regulate life. This is, as Agemben suggests, the ultimate expression of sovereignty: the ability to strip political meaning from life and reduce it to bare life. Agamben's use of the camp adds a spatial dimension to sovereign power and the exception, both localised and metaphorical. Amid conditions of neoliberal modernity, this spatialised exception is referred to as the hidden matrix of modernity, Agamben's nomos upon which the international system of states is built. Yet this view of nomos only goes so far in helping us to understand the contemporary nature of political life and sovereign power. Possessing both a spatial dimension – Ordnung – and ordering principles – Ortung – nomos becomes a site of contestation amid the presence of structures that contest the regulation of space, yet our understanding of Ortung requires further exploration. Much like Antigone, in contemporary political life sovereign power is challenged by ordering that can challenge the localised, spatialised exception. Political systems play a prominent role in regulating life, facilitating recourse to a state of exception that appears to have permanence yet is contingent upon the relationship between Ordnung and Ortung.
As noted, the ban is central to the exception, yet such moves are in many cases contingent on the power of informal structures that may facilitate and contest the ordering of political life. Legal structures, institutions, and the zone of indistinction do not exist in a vacuum; rather, they are shaped by conditions and cultural relations that are prominent features of political dynamics. How one interprets such interactions shapes their behaviour and the performance of their identity. Civil society and political space may be regulated and restricted by political elites; the ordering and localisation of space serves as a source of possibility.
Although initially grounded within a particular territory, the nature of contemporary political organisation sees the development of an array of different forms of membership and belonging that defines an inside against an outside, closing off a community against the other. Such communities possess their own systems of ordering, which may run against the formal mechanisms of state governance structures, opening up a space of potentiality. The power of religious norms and cultural values often transcends state borders, posing a challenge to the sovereignty of a state but also creating new spaces of political life. Here, sovereign power can be contested and circumvented from within and beyond as our case studies show.
With such issues in mind, we must bring the normative back into discussion of nomos, which helps to understand the processes that simultaneously regulate life and close a community off against an outside. By bringing the normative back into political life we can explore the contingency and complexity of Ortung, revealing not only how political order is established, but also how geopolitical aims can be achieved. Fundamentally, however, by focusing on nomos – and the normative environment – we are able to glean a better understanding of how life is ordered, regulated and, moreover, the way in which sovereign power operates and is contested from within and beyond.
Author ORCIDs
Simon Mabon, 0000-0003-0689-9849
Acknowledgements
I am grateful to all of my colleagues in the Middle East group in PPR for their continued support. I would also like to thank the staff at the Review of International Studies and the reviewers for their encouragement and insight.
