In mythical language , the earth became known as the mother of law. This signifies a threefold root of law and justice.
First, the fertile earth contains within herself, within the womb of her fecundity, an inner measure, because human toil and trouble, human planting and cultivation of the fruitful earth is rewarded justly by her with growth and harvest. Every farmer knows the inner measure of this justice.
Second, soil that is cleared and worked by human hands manifests firm lines, whereby definite divisions become apparent. Through the demarcation of fields, pastures, and forests, these lines are engraved and embedded. Through crop rotation and fallowing, they are even planted and nurtured. In these lines, the standards and rules of human cultivation become discernible.
Third and last, the solid ground of the earth is delineated by fences, enclosures, boundaries, walls, houses, and other constructs. Then, the orders and orientations of human social life become apparent. Then, obviously, families, clans, tribes, estates, forms of ownership and human proximity, also forms of power and domination, become visible.
In this way, the earth is bound to law in three ways. She contains law within herself, as a reward of labor; she manifests law upon herself, as fixed boundaries; and she sustains law above herself, as a public sign of order. Law is bound to the earth and related to the earth. This is what the poet means when he speaks of the infinitely just earth: justissima tellus.
The sea knows no such apparent unity of space and law, of order and orientation. Certainly, the riches of the sea — fishes, pearls, and other things — likewise are won by the hard work of human labor, but not, like the fruits of the soil, according to an inner measure of sowing and reaping. On the sea, fields cannot be planted and firm lines cannot be engraved. Ships that sail across the sea leave no trace. “On the waves, there is nothing but the waves.” The sea has no character, in the original sense of the word, which comes from the Greek charassein, meaning to scratch, to engrave, to imprint. The sea is free. According to recent international law, the sea is not considered to be state territory, and should be open to all for three very different spheres of human activity: fishing, peaceful navigation, and the conduct of war. At least, that is what is written in international law textbooks. One easily can imagine what becomes of this equal right to, and free use of the sea in practice, when a conflict arises over the use of space, when, for instance, the right to free fishing or the right of a neutral party to peaceful navigation clashes with the right of a mighty sea power to unlimited warfare. One and the same surface — the sea, which is open to all three endeavors — is supposed to serve both as the theater of peaceful labor and as the arena if actions consistent with a modern sea war. Thus, the peaceful fisherman has the right to fish precisely where the belligerent sea power is allowed to lay its mines, and the neutral party is allowed to sail freely in the area where the warring parties have the right to annihilate each other with mines, submarines, and aircraft.
Yet, this scenario touches on questions of a complex modern situation. Originally, before the birth of great sea powers, the axiom “freedom of the sea” meant something very simple, that the sea was a zone free for booty. Here, the pirate could ply his wicked trade with a clear conscience. If he was lucky, he found in some rich booty a reward for the hazardous wager of having sailed the open sea. The word pirate comes from the Greek peiran, meaning to test, to try, to risk. None of Homer’s heroes would have been ashamed to have been the son such a daring adventurer, who tries his luck as a pirate. On the open sea, there were no limits, no boundaries, no consecrated sites, no sacred orientations, no law, and no property. Many peoples kept to the mountains, far from the coasts, and never lost the old, pious fear of the sea. In his fourth eclogue, Virgil prophesied that in the felicitous age to come there would be no more seafaring. Indeed, in one of the sacred books of our Christian faith, the Apocalypse of Saint John, we read that the new earth, purged of its sins, will have no more oceans: η θάλασσα ουκ εστιν έτη [Revelation 21:1]. Many jurists of terrestrial peoples also knew this fear of the sea. One still can detect this in some 16th century Spanish and Portuguese authors. Alciatus, a renowned Italian jurist and humanist of this period, said that piracy was a crime with extenuating circumstances. Pirata minus delinquit, quia in mari delinquit [Piracy is a lesser crime, although it was a crime on the sea]. On the sea, there was no law.
Only when the great sea empires, maritime nations, or to use a Greek expression, thalassocracies, arose was security and order established on the sea. The disturbers of the order thereby sank to the level of common criminals. The pirate was declared to be an enemy of the human race (hostis geneneres humani). This meant that he was ostracized and expelled, stripped of his rights, and made an outlaw by the rulers of the sea empires. Such extensions of law to the free sea were world-historical events of revolutionary significance. We will call them “sea-appropriations.” The Assyrians, the Cretans, the Greeks, the Carthaginians, the Romans in the Mediterranean, the Hanseatics in the Baltic, and the British in the oceans of the world all “appropriated the sea” in this manner. As one English author said: “The sea must be kept,” the sea must be taken. However, sea-appropriations became possible only at a later stage in the development of human means of power and human consciousness of space.
By contrast, the great primeval acts of law established terrestrial orientations: appropriating land, founding cities, and establishing colonies. In Isidore of Seville’s medieval definition in Etymologia, included in the first part of the famous Decretum Gratiani (around 1150), the essence of international law is stated concretely: “Jus gentium est sedium occupatio, aedificatio, munitio, bella, captivitates, servitutes, postliminia, foedera pacis, induciae, legatorum non violandorum religio, connubia inter alienigenas prohibita.” Literally, that means: “International law is land-appropriation, building cities and fortifications, wars, captivity, bondage, return from captivity, alliances and peace treaties, armistice, inviolability of envoys, and prohibition of marriage with foreigners.” Land-appropriation takes first place. The sea is not mentioned. In the Corpus Juris Justiniani (e.g. “Dig. ve verborum significatione 118”), one finds similar definitions in which war, the diversity of peoples, empires, boundaries, and above all, trade and commerce (commercium) are discussed in terms of the essence of international law. It would be worthwhile to compare and to consider historically the individual components of such definitions. At any rate, it would be more meaningful than the abstract definition of terms found in modern textbooks, which are geared to so-called norms. For the most concrete determination of what one calls international law, any medieval enumeration and listing of contents is illuminating even today, because appropriating land and founding cities always is associated with an initial measurement and distribution of usable soil, originally divided among the appropriating tribe or people, and all institutions of the walled city or of a new colony are determined by this primary criterion. Every ontonomous [Greek: ontonome] and ontological [German: seinsgerechte] judgment derives from the land. For this reason, we will begin with land-appropriation as the primeval act in founding law.
A land-appropriation grounds law in two directions: internally and externally. Internally, i.e., within the land-appropriating group, the first order of all ownership and property relations is created by the initial division and distribution of the land. Whether public or private, collective or individual, or both, ownership derives from this initial land-division; whether or not cadastral surveys are undertaken and land registers are established are later questions, and they concern distinctions presupposed by and derived from the common act of land-appropriation. In historical reality, every imaginable possibility and combination of legal and property titles abound. But even when the initial land-division establishes purely individualistic private ownership or common clan ownership, this form of property remains dependent on the common land-appropriation and derives legally from the common primeval act. To this extent, every land-appropriation internally creates a kind of supreme ownership of the community as a whole, even if the subsequent distribution of property does not remain purely communal, and recognizes completely “free” private ownership of the individual.
Externally, the land-appropriating group is confronted with other land-appropriating or land-owning groups and powers. In this case, land-appropriation represents a legal title in international law in two different ways. Either a parcel of land is extracted from a space that until then had been considered to be free, i.e., having no owner or master recognized by the foreign law of the land-appropriating group, or a parcel of land is extracted from a formerly recognized owner and master, and thereby becomes the property of the new owner and master. It is not difficult to comprehend that acquisition of formerly free territory, lacking in any owner or master, presents a different and simpler legal problem than does acquisition of territory with recognized ownership.
In every case, land-appropriation, both internally and externally, is the primary legal title that underlies all subsequent law. Territorial law and territorial succession, militia and the national guard presuppose land-appropriation. Land-appropriation also precedes the distinction between private and public law; in general, it creates the conditions for this distinction. To this extent, from a legal perspective, one might say that land-appropriation has a categorical character. Kant expounds on this notion with great clarity in his Philosophy of Law. He speaks of territorial sovereignty or, more preferably, of supreme proprietorship of the soil, which he considers to be “the main condition for the possibility of ownership and all further law, public and private.” Of course, he construes this completely ahistorically, as a purely logical “idea of the civil constitution.” Also, it seems to me that neither of his terms — supreme proprietorship and territorial sovereignty — is entirely useful for our discussion, since they are determined too much by the distinction (which too effect only later) between public and private law. Today, most jurists understand “supreme proprietorship” only as property (dominium), and then only in the sense of private law, whereas “territorial sovereignty” is understood as public power and domination (imperium), and only in the sense of public law. But there are two aspects to this distinction. First, we must not think of land-appropriation as a purely intellectual construct, but must consider it to be a legal fact, to be a great historical event, even if, historically, land-appropriation proceeded rather tumultuously, and, at times, the right to land arose from overflowing migrations of peoples and campaigns of conquest and, at other times, from successful defense of a country against foreigners. Second, we must remember that, both externally and internally, this fundamental process of land-appropriation preceded the distinction between public and private law, public authority and private property, imperium and dominium. Land-appropriation thus is the archetype of a constitutive legal process externally (vis-a-vis other peoples) and internally (for the ordering of land and property within a country). It creates the most radical legal title, in the full and comprehensive sense of the term radical title.
This terrestrial fundament, in which all law is rooted, in which space and law, order and orientation meet, was recognized by the great legal philosophers. The first law, said Giambattista Vico, was received by men from heroes in the form of the first agrarian laws. For Vico, the division and demarcation of the soil (la divisione dei campi) is, along with religion, marriage, and asylum, one of the four primeval elements of all human law and all human history. To avoid giving the impression that we are dealing merely with mythological legal antiquities, I will cite two more recent, modern (17th and 18th Century) legal philosophers: John Locke and Immanuel Kant. According to Locke, the essence of political power, first and foremost, is jurisdiction over the land. He understands “jurisdiction” in medieval terms, as sovereignty and dominion in general. For him, the occupation of a country is subjugation by whoever has jurisdiction over the soil. Domination is, first of all, rule only over the land and, only as a consequence of this, rule over the people who live on it. Even in this purely theoretical, legal-philosophical formulation the aftermath of the Norman conquest by William the Conquerer (1066) is still recognizable. The Englishman Locke, often described as a modern rationalist, in reality still is rooted deeply in the tradition of the medieval, feudal land law that resulted from the fundamental legal process of Norman land-appropriation. However, as is evident in Kant’s doctrine of “supreme proprietorship of the land,” in philosophical fundamentals his legal theory also begins with the premise that all property and every legal order has land as its precondition, and is derived from the original acquisition of the earth’s soil. Kant says” “First acquisition of a thing can only be acquisition of land.” This “law of mine and thine that distributes the land to each man,” as he puts it, is not positive law in the sense of later state codifications, or of a system of legality in subsequent state constitutions; it is, and remains, the real core of a wholly concrete, historical and political event: a land-appropriation.
Thus, in some form, the constitutive process of a land-appropriation is found at the beginning of the history of every settled people, every commonwealth, every empire. This is true as well for the beginning of every historical epoch. Not only logically, but also historically, land-appropriation precedes the order that follows from it. It constitutes the original spatial order, the source of all further concrete order and all further law. It is the reproductive root in the normative order of history. All further property relations — communal or individual, public or private property, and all forms of possession and use in society and in international law — are derived from this radical title. All subsequent law and everything promulgated and enacted thereafter as decrees and commands are nourished, to use Heraclitus’ word, by this source.
The traditional history of international law is also a history of land-appropriations. At certain times, sea-appropriations also became part of this history, and then the nomos of the earth rests on a particular relation between firm land and free sea. Today, as a result of a new spatial phenomenon — the possibility of a domination of air space — firm land and free sea alike are being altered drastically, both in and of themselves and in relation to each other. Not only are the dimensions of territorial sovereignty changing, not only is the efficacy and velocity of the means of human power, transport, and information changing, but so, too, is the content of this effectivity. This always has a spatial dimension and always remains an important concept of international law for land-appropriations and land-occupations, as well as for embargoes and blockades. Consequently, as a result of these developments, the relation between protection and obedience, and with it the structure of political and social power and their relation to other powers, is changing. We are on the threshold of a new stage of human spatial consciousness and global order.
All pre-global orders were essentially terrestrial, even if they encompassed sea powers and thalassocracies. The original terrestrial world was altered in the Age of Discovery, when the earth first was encompassed and measured by the global consciousness of European peoples. This resulted in the first nomos of the earth. It was based on a particular relation between the spatial order of firm land and the spatial order of free sea, and for 400 years it supported a Eurocentric international law: the jus publicum Europaeum. In the 16th century, it was England that dared to take the step from a terrestrial to a maritime existence. A further step was taken with the industrial revolution, in the course of which the earth was newly conceived and newly measured. It was essential that the industrial revolution occurred in the country that first had taken the step to a maritime existence. This is the point at which we can approach the mystery of the new nomos of the earth. Until now, only one author, Hegel, has come close to this arcanum [secret]. His words will serve to conclude this corollary: “The principle of family life is dependence on the soil, on firm land, on terra firma. Similarly, the natural element for industry, animating its outward movement, is the sea.”
This quotation is pregnant with meaning for further prognoses. For the moment, however, we must consider an elementary distinction, because it is not inconsequential whether the industrialized and mechanized world that men have created with the help of technology has a terrestrial or a maritime foundation. But today, it is conceivable that the air will envelop the sea and perhaps even the earth, and that men will transform their planet into a combination of produce warehouse and aircraft carrier. Then, new amity lines will be drawn, beyond which atomic and hydrogen bombs will fall. Nevertheless, we cling to the hope that we will find the normative order of the earth, and that the peacemakers will inherit the earth.