The legal-political problems of the conquest II

The legal-political problems of the conquest II

Données clés

Professeur(s)	Alexis Keller
Cours	History of legal and political thought: the concept of empire from its origins to the present day

Lectures

• The history of the concept of empire
• The foundations of the Roman model
• Rome's Western heritage: the Holy Roman Empire
• The papal conception of the empire and the emperor as dominus mundi
• The legal and political problems of the conquest I
• The legal-political problems of the conquest II
• From empire to federation: the American case
• Can a democracy be an empire?

The man who took up Vitoria's theories and formulated for the first time the foundations of classical international law, which offered the great European empires a true political and legal vision of empire, was Grotius. Grotius is the founder, the first great theorist of modern European empires who is the founder of classical international law.

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Grotius

Hugo Grotius
Portrait by Michiel Jansz. van Mierevelt (1631).

Hugo de Groot, known as Grotius, was born on 10 April 1583 in Delft (United Provinces). A man of universal culture. Between 1594 and 1601 he studied law at Université́ in Leiden and became a lawyer in The Hague in 1598. In this capacity, he carried out a diplomatic mission in France and was appointed, from 1601 to 1607, official historian of Holland. From 1600, he also became an adviser to the great boarder Jean d'Oldenbarnevelt. In 1619, he was entrainé́ in the fall of the latter, was imprisoned and escaped from prison (religious struggles). In 1621, he went into exile in Paris where he frequented the circle of Marin Mersenne. He now lives in exile, in qualité́ as Swedish ambassador from 1634. He died in Rostock after a shipwreck in 1645.

Marine space, freedom of the seas and the question of the territorial sea

The first work that was not discovered until the 19th century in 1868, but written in 1604 and with a chapter published in 1609, was Mare liberum from De Indis. The other work is the 1625 De Jure Belli ac Pacis in which Grotius sets out his doctrine, his theory and simply his vision of the relationship between states. This work is considered to be the "bible" of classical international law, offering the European powers, diplomats and the great European jurists a system and an extremely precise vision of the international order.

Between 1609 and 1625, Grotius changed his point of view. The drafting of the Mare liberum took place at the height of the war between Spain and the United Provinces, which corresponded to the period of the rise of the British Empire. If Grotius publishes the twelfth chapter Mare liberum of De Indis in 1609, but does not publish the rest of the work, this is due to an event that takes place in 1603. In 1603, the Dutch boarded a Portuguese ship in an area of present-day Indonesia that had caused a great deal of controversy among European nations. A court decision attributed the loading of this Portuguese ship to the East India Company and the Portuguese government appealed. Grotius is asked by the East India Company to give an opinion on the law. He is a great, famous and dreaded lawyer. In 1604, he wrote the De Indis or De jure praedae, which means in French Du droit de prise, i.e. under what conditions something can be taken. In the Mare liberum, one of Grotius' objectives is to show that the Dutch have the right to trade and settle in the East, as the Portuguese cannot invoke a just reason to hold back and prevent the Dutch from trading. It is interesting to see how Grotius proceeds. He defends an argument in favour of the Dutch on the basis of Roman, medieval and contemporary case law and Spanish theology, drawing on several arguments from Vitoria.

The first argument used by Grotius is that it is impossible for a country to appropriate the ocean. The sea belongs to no one. He bases his argument on Roman law, which states that the sea was a res communis is a thing common to all. From that point on, he made an extremely interesting distinction that we are still dependent on today, which is a distinction between ownership of the sea and jurisdiction over a part of the sea. This brings to mind the equivalent today of territorial waters. We owe Grotius the brilliant idea that although the sea cannot be owned by anyone, it can nevertheless exercise jurisdiction over a stretch of sea close to it.

The second argument is that the Asian peoples have their own sovereignty. Grotius argues that the Portuguese have no property rights or sovereignty over the islands they have conquered in Southeast Asia. The regions over which the Dutch sail cannot be declared Portuguese property. Grotius adds that the peoples he met have the right of ownership over these lands.

The dividing line according to the bubble Inter cætera (dotted line), according to the Treaty of Tordesillas (in purple), and its extension according to the Treaty of Zaragoza (in green).

The third argument is that, as a good protestant, he challenges the Portuguese for the right of ownership over India to the titles of donation of the sovereign pontiff. He challenges the Bull inter caetera of 1493 which stated that the Portuguese and the Spanish owned the donated territories discovered or to be discovered after the Azores. The legal basis invoking a declaration by the Pope is null and void.

The fourth argument refers to the freedom of trade, which is a natural right and therefore a fundamental right, and that any country which prevents the freedom of trade violates a natural right, violates a fundamental right in the order of jus gentium. Therefore, an impediment to negotiation and trade is a just cause for war.

These four arguments are strong and powerful, and are taken up and detailed in the Mare liberum. Grotius is not the evil thinker of the great modern empires, but the founder of classical international law, but he did, willingly or unwillingly, set out a tailor-made vision, and the great European empires found arguments in Grotian theory and ideology to justify their imperial conception or model of empire. In a way, actions have to find justification in the legal order. That is why even the great empires that had power had to find justification. Grotius provided them with a whole series of legal arguments to justify the European conquest.

In 1609 Grotius published his book Mare liberum. The four arguments are

• impossibility of appropriating the seas;
• the sovereignty of the Indians must be guaranteed;
• he challenges the Portuguese for the right of ownership of these territories under the Bull inter caetera of 1493;
• affirmation of the freedom of conquest which, if this fundamental freedom is violated, then it justifies war.

« Chapter II - The Portuguese have, by way of discovery, no property rights over the regions where the Dutch sail »

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Grotius will defend the property rights of the Indians being at the forefront of the criticism of the right of conquest and the right of discovery. He will take up arguments again in Vitoria.

« And first of all, if they claim that this land belongs to them as a reward for the discovery (inventionis) they have made of it, they are speaking neither according to law nor according to truth. Finding, in fact, does not consist in usurping eyes only, but in apprehending in reality, as an epistle by Gordian shows us (L. SI baratorm, C. De fidejuss. ); hence the grammarians consider the two words find and occupy (invenire and occupare) to have the same meaning; finally, all the Latin we have learned tells us that to invent is the opposite of perdere. »

A criticism of the Portuguese continues :

« it is moreover a principle that discovery does not give a right to things which previously belonged to no one (L. 3, ff. De acq. Rer. Dom.). The Indians, however, when the Portuguese arrived home, although they were idolatrous, partly Mohammedan, and therefore defiled by serious errors, nevertheless had perfect ownership of their property and possessions, property which could not be taken away from them without just cause (Covarruvias, in cap. Peccatum, §.10, n. 2, 4 and 5). »

We are following the logic of Vitoria, with a plea, admittedly, instrumentalised, but a plea in favour of the Indians.

« Finally, the East Indians are neither ferocious nor stupid, but skilful and industrious, so that one cannot even derive from their character a pretext for subjugating them, a pretext which would not leave them, by itself, to be manifestly iniquitous. »

We can see the strong influence of Vitoria.

« Chapter III - The Portuguese have no property rights over India, as a gift from the Supreme Pontiff. »

The Bull inter caetera of 1493 is not an invocable basis to justify possession. Grotius is a Protestant who does not recognise the authority of the Pope in any way.

« But, if he had such power over the world, he could not yet exercise it with reason, content as he must be of his spiritual jurisdiction, which can in no way be conceded by him to secular princes [...] He follows from this, according to Cajetan's opinion, reported in chapter IV below, of Victoria and of the best part of the theologians and canonists, that the donation of the Indies by the Pope is not a title to be opposed to their inhabitants, as if he had been the absolute master to dispose of them, nor can they be taken away from them under the pretext that they do not recognise the authority of the sovereign pontiff: and this is so true, that such a title has never been invoked to deprive the Saracens. »

Chapter IV is entitled "The Portuguese have no property rights in India by reason of war". Therefore, they cannot invoke an action, a state of affairs, in order to justify war, there is no just cause for war. He clarifies his thought:

« Thus, since here the possession and any title to obtain it is lacking, since moreover the goods and wealth of the Indians can be considered neither as being without masters nor (as long as they belong to them) as having been seized by others with justice, it follows that the Indian populations we are talking about are in no way the property of the Portuguese, but are free and enjoy the full exercise of their rights. This is, moreover, something that the Spanish doctors themselves do not doubt. (Victoria, in finde part. 2, 1 relect. De Indis.). »

Grotius asserts the right of the Indians to be owners, denying the Portuguese any legitimacy in the conquest of lands belonging to the Indians.

This great jurist and founder of classical international law, an involuntary theorist of European expansion, will gradually change his point of view in a more Eurocentric and intransigent direction. He will modify his judgement notably under the pressure of the new international order which starts from 1615 - 1618. From 1615 onwards, Grotius will be marked by the Anglo-Dutch war. The Anglo-Dutch war from 1613 to 1617 had a great impact on Grotius. As a Dutchman and close to the East India Company, he hardened his position.

This is a change in a number of key areas. There is a difference between "Mare liberum" of 1609 and "De iure belli ac pacis" of 1925. The defence of Dutch interests partly explains this, but not only. We are in Europe in the middle of the Thirty Years' War and Grotius is horrified by what he sees in a divided Europe, so his intellectual position has also evolved.

We find the classic argument in "De iure belli ac pacis" from the "Mare liberum":

• The discovery of the territories occupied by these non-Christian peoples does not give any particular right;
• Europeans, in principle, must obtain permission to settle there from the local rulers;
• Europeans can obtain exclusive trade treaties giving them exclusive trade rights.

These three main lines of auguries are not fundamentally different from those expressed in the Mare liberum. In Book II and Book III, Grotius increasingly changes his conception of the law of nations. Jus gentium" would later be called "public international law". Its conception would not be without implications for the Indian peoples whom it was supposed to defend and whom it defended in 1609.

His reasoning is based on four points:

• the starting point of his reasoning is the affirmation of the natural sociability of men, he is very Aristotelian from this point of view, because human nature leads him to go towards his fellow men;
• by analogy, the international order is made up of States which are naturally inclined to natural sociability. He believes that if the "framework" conditions are established to regulate the international order, the sociability that one finds between individuals can be found in the relations between States.
• so the law of nations is a law based on conventions. It is a right built by people for States. Since we have to find a method of regulation for States, we have to build the law. Public international law is quite simply the product of human conventions. In other words, it can be created by men for States. It is a right that he calls "voluntary human". Knowledge of the law of nations is no longer a priori knowledge, but what is foundational in jus gentium is jurisprudence or the practice of law. This has consequences.
• the subjects of the law of nations are only the States. Grotius makes states the sole agents of the law of nations.

Grotius offers a vision of classical international law whose aim is to regulate relations between States, but which can be modified by the competent organs of the organs concerned. Making states the agents of the law of nations and the promulgators of that law of nations leads to the central question of what a state is, who is entitled to bear the title of state.

His definition of state excludes any population that is not organised with a government, specific organs, legal order, history or culture. It gives a classic definition of the state, but one that is profoundly European. Grotius offers us the vision of an international order founded by Europeans for Europeans. We can see that Grotius' conception of people's rights can be described in form and substance as Eurocentric, as if the process of state-building were irreversible.

The first example shows that Grotius develops an argument on the right to impose penalties that is not without consequences for indigenous peoples. The question Grotius is trying to answer is the following: States are subjects of jus gentium, but under what conditions can they wage war? In his reflections on the right to impose penalties, he has an extremely important statement to make: the entity, the State, the community that does not respect certain fundamental principles of natural law can be subject to war. The peoples of Europe are targeted, whether voluntarily or not.

« Thus, we have no doubt that wars are just against those who have no pity for their father or mother, such as the Sogdians were, before Alexander made them forget this ferocity (Plutarch, De fortun. Alex.); against those who do not eat human flesh, a practice which Hercules forced the ancient Gauls to abstain from, according to Diodorus' account; against those who practise piracy. "If he does not attack my country, says Seneca, but oppresses his own; if, too far from my fellow citizens, he torments his own, such moral depravity has nevertheless broken everything between us" (lib. VII. De Benef.). "They are of the opinion, says Augustine, that crimes will be decreed to be committed such that, if any state on earth decreed, or would have decreed, such crimes, mankind would order their destruction" (lib. V, De Civ. Dei). On the account, indeed, of such barbarians, who are wild beasts rather than men, one may rightly say what Aristotle said badly about the Persians, who were in no way inferior to the Greeks: that war against them is natural; and what Isocrates said, that the most just war is that which one makes on ferocious beasts, and then that which one makes on men who resemble ferocious beasts (Panathen. Orat.). »

This just cause for war, or those who do not respect customs and habits, a part of the conquered peoples, with cultures radically different from European cultures, can be exterminated like ferocious beasts. This is a far cry from the Grotius who defended the rights of indigenous peoples. It is a Grotius with a very Eurocentric vision and we see that in the right to impose penalties, the consequences for indigenous peoples are significant.

The second example is Grotius' discussion of property rights, where he leaves his 1609 posture with another extremely important approach. He analyzes the right of occupation, and therefore the right of ownership, no longer from the point of view of the moral and intellectual qualities of the Amerindians. He does not ask the question whether they are men or not, but it is taken for granted that they are beings endowed with natural rights. He no longer analyzes the right of occupation from the standpoint of the intellectual qualities of Americans, such as whether they are endowed with reason or whether they respect natural rights, but from the standpoint of the exercise of their rights. For him, the question is whether indigenous peoples have actually exercised their rights, and in particular their property rights. According to Grotius, if you don't exercise it, you lose it.

Grotius will ask whether indigenous peoples have effectively exercised their right to property in these territories. Grotius makes a central link in the history of law and international law, but also in the entire history of the great European empires. For him, how can one measure whether a property right has been exercised? It has been exercised if the territory in question has been cultivated. What is not cultivated is not owned.

« That if in the territory of a people there are some deserted and barren lands, it must also be granted to foreigners who request it; and even it can be validly occupied by them, because one must not regard as possessed, that which is not cultivated. There is no reservation except as to the jurisdiction, which remains entirely in the hands of the ancient people. »

This terrible sentence will have dramatic consequences in the international order. The position of Grotius with regard to the right of ownership which he defended in 1609 was significantly altered. The so-called "cultivation of the land" argument is an argument that is now being taken up by those who were once its victims. In Bolivia and Chile, judgements of the Supreme Court invoke these arguments. Grotius' argument is used to claim ownership of certain lands.

This second example shows that Grotius has nonetheless modified and hardened his view of the people's rights proposition. These two examples show how Grotius works and opens the door for an expansionist interpretation of international law. He admits the idea that indigenous peoples can be independent by having the imperium, if he gives them the possibility to make treaties and alliances, he opens the door to property rights for these peoples.

Grotius is aware that he must propose a new vision of peace and war. In the last part of his book he will propose a new theory of war or a new vision and definition of war, but more precisely of just war. He has reaffirmed, while restricting, the right of indigenous peoples, he has made people's rights a constructed right. He is aware that in his second work of 1624, he "reshuffled the cards" authorizing the use of force in certain cases. He knew that he had to propose a new doctrine of just war.

In what cases is war justified? He knew that he had to accompany his reflection on the law of nations with a reflection on war. The expansionist vision of the law of nations is accompanied by a complete redefinition of the doctrine of just war.

Augustin, St. Augustine History Museum, Florida.

It is an ancient doctrine that dates back to Saint Augustine in the 4th century. The great strength and major contribution of Grotius is to reformulate war in legal terms and codify it. Fundamentally, his approach, perhaps because he sensed certain consequences, aims to restrict and frame the war, to limit its scope. He asserts two central arguments around which he will structure his theory of just war:

• War is above all a relationship between states, no longer a relationship between individuals. This argument has two consequences: on the one hand, the choice to wage war no longer belongs to individuals, but to the state [1]; on the other hand, it rejects the criterion of right intention [2], the idea that entering into war is a good cause. For Grotius, however, states have no intention.
• distinction between jus ad bellum and jus in bello. Grotius wanted to frame the use of force, to limit and rethink the war from the just war that is waged through this division. He will end up affirming that a just war is a war that respects the criteria of jus ad bellum and the criteria of jus in bello.

As far as jus ad bellum is concerned, a war can be just if it meets six conditions:

1. It must be fought for a just cause.# It should be noted that Grotius will reject the very idea of preventive war. Grotius will not go so far as to say what successors will say that when one anticipates an aggression it is possible to attack preventively. The reason is simple because he believes that the perception of anticipation is subjective;
2. if it is decided by a competent authority;
3. if it is publicly declared;
4. if it constitutes the ultima ratio;
5. if war is a proportional response to aggression;
6. if it has a chance of success.

Concerning jus in bello, a war is just if certain conditions are met:

• it is necessary for States to respect discrimination between combatants and non-combatants. We owe Grotius this fundamental distinction in international humanitarian law.
• Grotius had spoken of extermination as ferocious beasts, but he proposed the principle of proportionality in the response, i.e. the proportionality of the means employed. You cannot raze a city to the ground if you want to get the culprits. In other words, one cannot do everything militarily in war.

We are in the middle of the Thirty Years' War, which was an absolute horror in Europe. From 1618 to 1648, it was a war that occupied the Holy Roman Empire and ravaged the heart of Europe, seeing policies of ethnic cleansing being put in place, with the use of the weapon of rape as a means of waging war. It was a reign of absolute horror.

Grotius inaugurates a vast reflection on the idea of just war from the point of view of jus ad bellum and gossip from the point of view of jus in bello. Grotius had the intuition to recognise that a war can be just on both sides, being fully aware that justice is a subjective notion and that war can be considered just on both sides. This will lead him to postulate a jus in bello defending the idea that one cannot do everything in war because if one accepts the idea that each side believes that its cause is just, war cannot annihilate the enemy. War must make it possible to maintain a certain number of rights on both sides. Grotius is aware that if one destroys the adversary completely, one can no longer make peace with him. Somehow you can't do everything when you make war because the defeated also have rights, because their perception may have been right too. Because a war can be perceived as just by both sides, the conditions must be created so that peace is possible, and in war not everything is allowed and not everything is possible.

In the prolegomena, Grotius affirms the sociability of man in paragraphs 6 and 7. In Chapter III of Book I: "Just as the common subject of sight is the body, and if its proper subject is the eye, so the common subject of sovereignty is the state, which we have defined above as a perfect association". The State is the subject of the law of nations and international public law. The law of nations has the state as its object.

In Chapter III, Grotius takes up some of the arguments of the Mare liberum. He will also repeat a distinction from Vitoria, which he will clarify: "It is therefore from the occupation, which, since those primitive times, has been the only natural and original way to acquire, that we have to speak. With regard to that which does not properly belong to anyone, there are two things that can be occupied: sovereignty and property, as distinct from sovereignty". He distinguishes between juridicio and imperium. This allows Grotius to say that some people have property and not sovereignty and not vice versa.

« We have said above that in places already occupied from the point of view of sovereignty, the right to acquire movable things by occupation can be prevented by civil law. This right exists, in fact, by virtue of a permission under natural law, and not by virtue of a mandatory provision prescribing that it should always be so. For human society does not require it. If someone says that it seems that this permission is a rule of the law of nations, I would reply that, even if it were or would have been commonly accepted on some point in the universe, this practice would not, however, have the force of a convention between all nations, but would constitute a civil right observed by several nations considered in particular, and which each could abrogate. There are many other things which the jurists consulted say are the law of nations, when they deal with the division of things and the acquisition of property. »

In Chapter III of Book II, paragraph 12, he reaffirms the arguments of the Mare liberum : « What is certain is that whoever would have seized the sea by occupation could not prevent peaceful and innocent navigation, since such a passage cannot be prohibited, even by land, although it is usually less necessary and more dangerous. »

« it should also be known that kings, and those who have equal power with kings, have the right to inflict penalties not only for insults committed against them or their subjects, but also for those which do not particularly affect them, and which excessively violate the right of nature or of people towards anyone. For the freedom to exercise power by punishments in the interests of human society, which in the beginning, as we have said, belonged to individuals, has remained, after the establishment of States and jurisdictions, to sovereign powers, not properly because they command others, but because they obey no one. »

In other words, war is possible and it is just against those who violate certain natural laws that we today call certain fundamental laws. A sovereign state can go to war because other states violate natural rights. This is aimed at indigenous communities that have a way of life that violates natural laws as Grotius understood them. The assertion of this proposal will pave the way for European conquest because it will justify the intervention of European powers against populations that violate people's rights and violate natural law.

Grotius offers a vision of war, peace, but above all people's rights. It is a vision that justifies Europe's imperial and expansionist adventure, but something was missing from Grotius' theory, namely the assertion that property is a natural right. Grotius said that a violation of a natural right was a just cause for war, but he did not "list" natural rights. He had not asserted the inalienable and indefeasible nature of the right of ownership. One man who would reaffirm the importance of the right to property with the possibility of waging war if this right was not respected and propose a vision of the history of mankind and a historical vision of states that could justify European conquests was John Locke.

La redéfinition du droit des gens : la thèse de Grotius et les apports de Locke et de Vattel

John Locke

Article détaillé : John Locke and the Civil Government Debate.

John Locke

Two of Locke's proposals reinforce Grotius' imperial vision:

• affirmation that the right to property is a natural right, but above all that it is the duty of States to protect this right. Locke will bring Grotius' theory to its term making the right of ownership a fundamental natural right obliging States to affirm that it is the duty of States to defend the right of ownership. Locke will strengthen Grotius' argument by, for example, making the British Crown the guarantor of British and British property in the empire. The right of the people according to Locke is understood as a movement to preserve the possessions and properties of the colonists and the state.
• Locke's theory only makes sense if it is understood in its historicist sense of states. In other words, he will take up and reinforce Grotius' arguments on property, but he will propose a vision of history that allows us to justify the colonization enterprise. He will propose a vision of history in stages. Locke will propose a vision of "civilisations" that is evolutionary and progressive in the development of the great "cultures". He will conceive the history of states as a progressive history. He will find an example of the state of nature that justifies this conception.

« 49. In the beginning everyone was like an America, and even more so in the state I have just assumed, than this newly discovered part of the earth is today. For then there was no idea what money was all about. And it should be noted that as soon as something was found that had taken the place of today's money with others, people began to extend and enlarge their possessions.

50. 50. But since gold and silver, which are naturally so little useful to man's life, compared to food, clothing, and other similar necessities, have received a certain price and value, with the consent of men, though, after all, labour contributes much in this respect; it is clear, by a necessary consequence, that the same consent has permitted unequal and so-called proportionate possessions. For in governments where laws regulate everything, when a means has been proposed and approved of to possess justly, and without anyone being able to complain that it is wronged, more things than can be consumed for one's own sustenance, and that means is gold and silver, it is clear that the same consent has permitted unequal and so-called proportionate possessions, which can remain eternally in a man's hands, without what he has, beyond what he needs, being in danger of rotting and decaying, mutual and unanimous consent makes just the steps of a person who, with money, enlarges, extends, increases his possessions, as much as he likes.

51. I think, therefore, that it is now easy to see how labour, in the beginning of the world, gave a right of ownership over the common things of nature; and how the use which the necessities of life obliged to make of them regulated and limited this right: so that then there could be no dispute over possessions. Law and convenience always went hand in hand. For a man who has a right to everything he can use his work for, has little desire to work more than he needs for his maintenance. Thus, there could be no subject of dispute concerning the claims and property of others, nor could there be any occasion for invading and usurping the right and property of others. Everyone first saw just about how much land he needed; and it would have been as useless as it would have been dishonest to appropriate and hoard more than was needed. »

America is a case in point. This precise vision of America will allow Locke to give examples.

« 41. There can be no clearer demonstration on this subject than that presented to us by the various peoples of America. Americans are very rich in land, but very poor in the amenities of life. Nature has provided them, as liberally as it has provided any other people, with the matter of great abundance, that is to say, it has provided them with a fertile soil capable of producing abundantly all that may be necessary for food, for clothing, and for pleasure: but for want of work and care, they do not take away a hundredth of the amenities which we take from our lands; and a King in America, who has very ample and very fertile districts, is worse fed, worse housed, and worse clothed, than is a day labourer in England and elsewhere.

42. To make all this even clearer and more palpable, let us go into a little detail, and consider the ordinary provisions of life, what happens to them before they can be of any use to us. Certainly, we will find that they receive their greatest utility and value from human industry. Bread, wine, cloth, canvas, are things of ordinary use, and of which there is a great abundance. In fact, acorns, water, leaves, skins and skins can be used as food, drink and clothing, but work provides us with beautiful things that are more convenient and useful. For bread, which is far more pleasant than the acorn; wine than water; cloth and silk, which are more useful than leaves, skins and moss, are products of the work and industry of men. Of these provisions, some of which are given to us for our food and clothing by nature alone, and others are prepared for us by our industry and by our labours, let us examine how much one surpasses the other in value and usefulness: and then we shall be persuaded that those which are due to labour are far more useful and more estimable; and that the material provided by a fund is nothing in comparison with what is taken from it by diligent cultivation. Therefore, among ourselves, a land which is abandoned, where nothing is sown or planted, which has been given into the hands of nature, is called, and rightly so, a desert, and what can be obtained from it amounts to very little. »

This statement is full of meaning. In the beginning everything was like in America, there are inequalities between communities. Communities that are not or only slightly developed are not states, cannot be called states and therefore are not subject to people's rights. America has remained a state by nature with no popular sovereignty or political and territorial authority.

Locke concludes by saying that because they are not nations or states, these communities are not subject to the law of nations. The indigenous peoples who have remained at the nature state have rights, but they are reduced to its work. We see with Grotius that what is not cultivated is not owned. With Locke, we see an unequal vision between community and State. Some states can bear the title of state and others are only communities that cannot claim sovereignty.

Locke will truly complete his demonstration. "The Amerindian peoples possess the fruits they harvest [...] but not the land where they reside". This is because they do not have the status of a state or a nation.

Emmerich de Vattel

A third man was to complete the Grotian moment, providing the European powers and empires with arguments that Grotius and Locke had not finalised or completed. It was Emmerich de Vattel, who in 1758 published a work entitled The Law of Nature and People. This work was to become a work on international public law until 1890. Vattel will propose a law of empires. The vision of classical international law was not a challenge. Authors will criticize against or against the emerging imperial ideology.

The theory of Grotius and Locke, the emerging imperial model, the expansionist theory of the law of nations has not gone unquestioned. The foundation of international society is no longer really questioned as such, but the debate is shifting between two essential ideas, which are the idea of universal brotherhood that irrigated the 18th century, the 19th century and the 20th century, but also the idea of national interest. Grotius' ideology favours the doctrine of national interest rather than that of fraternity, and the critics more towards the idea of universal brotherhood.

At the beginning of the 18th century, travel literature took hold in the form of naturalists and anthropologists exploring the newly conquered territories. A whole movement of the Enlightenment aimed to understand and classify the indigenous populations that were being discovered. These movements of an anthropological nature were led by thinkers such as Diderot, Rousseau and Montesquieu, who would be the first to offer an extremely virulent critique of the European conception of the Empire. The Enlightenment movement, which began to question the role, importance and necessity of great empires, was to give rise to numerous writings.

When one reads the literature of the critics, in no way does it seek to reverse the order of things. Everyone is aware that the settlers are settled and for a long time. It is a critique of practices and representations, but none of the great critics, jurists, philosophers and theologians who criticised the European imperial adventure will advocate a return to the old order of things. The settlers cannot return home, abandoning the fruits of their land. The great critics of the imperial ideology of the 19th century did not at all see a movement of "decolonisation". The critics of Rousseau, Montesquieu or Smith eroded the foundations of the great European empires.

Cover of the book The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns.

Grotius offered a vision of people's rights to justify the European adventure. In the context of the first major criticisms of European imperial ideology, Vattel published a work entitled The Law of Nations or Principles of Natural Law in 1758. This is the great treatise that underwent an immense number of editions and translations, a work that remained authoritative until the beginning of the 19th century. This work was to be the authoritative and undisputed work until the beginning of the 19th century. It is assumed that Vattel published this work because he knew the critics of Montesquieu and Rousseau in particular, and he felt the need to clarify concepts. Vattel is in the Grotian heritage partly in order to respond. In a desire to clarify and sit down and to finish what Grotius had started, Vattel offers a kind of textbook of public international law.

One realises that Vattel's Europe is that of the balance of power. It seeks to introduce into its international and legal system a law of the people that will allow the imperial adventure to prosper, but it places itself in a context of balance of power. It is a question of thinking of Europe in terms of balance. On the other hand, it places its work on the level of state and inter-state obligations, it is not interested in what is a matter for the state. He is going to nationalise people's rights in a certain way. If the law of nations is the law of states made by them and for them the question is what is a state. His definition of the state is a vision that is strangely reminiscent of the European vision of the state limited to a territory with political authority and with institutions whose political character bears a striking resemblance to a European state: "the law of the people and the law of sovereigns, liberated and independent states are legal persons whose rights and duties we must establish in a treaty". The law of nations is an inter-state law and the vision it has of the state is a classical one, with the consequence that if you do not have the status of a state, you cannot be subject to the law of nations. A community that would not have the status of a state vis-à-vis a European state, hypothetically, would not have the same obligations and rights in the legal order. The issue at stake is to know the definition of the state and how to make communities of states. We can see how politics according to Vattel is deployed in a society of states in a logic of interest and by rules and institutions recognised and accepted by all.

To assimilate the concept of State to the concept of Nation, to propose a vision that strangely reminds us of the European States is not without consequences for the conquered peoples excluding de facto from the international order any population that is not constituted in the "Vattelian" sense of the term. It will show that mankind is placing itself in a reaffirmation of the vision of Grotius and Locke:

1. Wattel will respond to Locke and Grotius' vision concerning the diffusion of imperium and dominium : "it is true, however, that empire & domain, or property are not inseparable from their nature, even for a fouverain state. Just as a nation can own the domain of an area of land or sea, without having the fernernity of it; it can arrive at the point where it has the empire of a place, whose property or useful domain belongs to another people". It is the resumption of the division that we owe to the Roman public law dividing imperium and dominium because it allows combinations. Vattel puts himself in Grotius' vision.
2. Vattel will assimilate "wild peoples" to idle peoples. He admits, like Grotius, that a nation cannot legitimately appropriate any country, but he also argues early on from a worse Grotian perspective that what is not cultivated, is not possessed. "Natural obligation to cultivate the land - The cultivation of the land is not only recommended to the Government for its extreme usefulness; it is also an obligation, imposed on man by Nature. The whole earth is destined to feed its inhabitants: But it cannot suffice if they do not cultivate it. Each Nation is therefore obliged by Natural Law to cultivate the country which is its due in share, & it has the right to extend itself, or to have recourse to the assistance of others, only in so far as the land it inhabits cannot provide it with what is necessary. These Peoples, such as the ancient Germans, & some modern Tartars, who, living in fertile countries, disdain the cultivation of the land, & prefer to live on plunder, miss themselves, insult all their neighbours, & deserve to be exterminated, like ferocious & harmful beasts. There are others who, to escape from work, want to live only from their hunting and their herds. This could be done without contradiction, in the first age of the World, when the land was more than sufficient by itself for the few of its inhabitants. But today, when the human race has multiplied so much, it could not survive if all peoples wanted to live in this way. Those who still retain this kind of idle life, usurp more land than they would need with honest work, & they cannot complain if other Nations, more laborious & too constricted, come to occupy part of it. Thus, while the Conquest of the police Empires of Peru and Mexico was a blatant usurpation, the establishment of several Colonies in the Continent of North America could, if contained within just limits, have been nothing but very legitimate. The peoples of these vast lands would travel through them rather than live in them". He maintains that the practice of agriculture is a natural law, but it is a requirement of civilization. The criticism is almost "civilisational". There is Locke, Grotius, a step-by-step development of states and civilisations, a criticism of a way of life that is not European, treated and labelled as "idle", and the claim that in the name of all this, these lands and peoples labelled as "idle" can be taken away from them. The European conquest is legitimised for all the criticisms that have been made. The only limitations Vattel recognises on the occupation of land are the "just boundaries" without defining them.
3. Wattel explicitly formulates the argument that lands can be hunting grounds for indigenous peoples: "the law of the People will therefore only recognise the Property and Sovereignty of a Nation, only those empty countries which it has actually and effectively occupied, in which it has formed an Establishment, or from which it derives a current use. In fact, when navigators have encountered desert countries in which those of other nations have erected monuments to mark their possession, they are no more troubled by this vain ceremony than by the disposition of the Popes who divided a large part of the world between the crowns of Castile and Portugal. It is not enough to be in a deserted country and give some testimony of occupying the land to claim ownership of it. In order to be able to claim ownership of the land, one must not only cultivate the land, but also show traces of life, of the city and occupy a territorial space.
4. Wattel proposes an ethical vision of people's rights. While acknowledging the duties of moral conscience, to which he often pays tribute in his treatise, Vattel comes to the conclusion that Grotius had sketched out, he will assert that to be a right, the right of people is no less and will always remain morally imperfect. Grotius had paved the way by saying that a war can be perceived as just by both sides. Vattel makes it extremely clear that the ethical dimension of people's rights does not exist. According to Vattel, it is futile to try to reflect on the dimension of justice in people's rights. "The effect of all this is to bring about, at least externally & among men, a perfect equality of rights between Nations, in the administration of their affairs & in the pursuit of their claims, without regard to the intrinsic justice of their Conduct, which it is not for others to judge definitively; in such a way that what is permitted to one is also permitted to the other, & that they are to be considered, in the Human Society, as having an equal right. Each claims to have justice on its own side in the disputes which may arise, & it is not for one or the other of the interested parties, nor for the other Nations to judge the question. He who is wrong is fishing against his own Conscience; but as he may be entitled, he cannot be accused of violating the laws of the Society. It is therefore necessary, on many occasions, that the Nations should suffer certain things, though unjust & reprehensible in themselves, because they could not oppose them by force, without violating the liberty of someone & without destroying the foundations of their natural Society. & then that they are obliged to cultivate this Society, it is presumed by right, that all Nations have consented to the Principle we have just established. The Rules which result from this form what Mr. WOLF calls the Law of Voluntary People; & nothing prevents us from using the same term, although we thought it necessary to depart from this clever man, in the manner of establishing the foundation of this Law". There is something unfair about the law of nations. One must not reason between the term what is just and what is not, but between what is legal and what is not. There can be an unjust right. Vattel is in line with the perspective of the great jurists who will want to dissociate law from morality. This enables Vattel to defend a vision of law that is favourable to European extension, because it is emptied of its ethical and just vision.

It is easier to understand why the conception of the law of nations aroused great interest as soon as it was published in 1758. In many respects, Vattel was to legitimise the European imperial adventure and the imperial model that had been established since Grotius. The first Grotian moment that ends with Vattel will not remain undisputed. A series of people and philosophers will challenge the writings of Locke, Grotius and Vattel: Montesquieu, Rousseau and Adam Smith are the political, moral and economic critics.

In the doctrine of Vattel is in germ what goes to the 19th century and to the 20th century which is the notion of civilization. There is the idea that there is a right for civilised nations. On the other hand, there is the idea of a right that governs relations between European states and relations between European states and uncivilised nations. Grotius, Vattel and all their followers are people who have a vision of a two-tier international order. Among all internationalists in the 18th century, there is a great ambiguity between universal brotherhood and national interest. This ambiguity can be found among all the internationalists of the 18th century who condemned the proselytism of empires and Christian proselytism. On the other hand, they advocated the emancipation of civilisation and education. There is in all the authors of the great European empires this tension between the necessary limit to the colonial adventure and the need for Europe to civilise the world.

« Browse through the history of our companies, of our establishments in Africa or Asia; you will see our trade monopolies, our betrayals, our bloodthirsty contempt for men of another colour or another creed; the insolence of our usurpations; the extravagant proselytism or intrigues of our priests, destroying that sense of respect and benevolence which the superiority of our lights and the advantages of our trade had first obtained.

But the moment is probably approaching when, ceasing to show them only corrupters and tyrants, we will become for them useful instruments, or generous liberators.

Sugar cultivation, establishing itself in the immense continent of Africa, will destroy the shameful brigandage that has corrupted and depopulated it for two centuries.

Already, in Great Britain, some friends of humanity have set an example; and if its Machiavellian government, forced to respect public reason, has not dared to oppose it, what is to be hoped of the same spirit, when, after the reform of a servile and venal constitution, it will become worthy of a humane and generous nation? Will France not hasten to imitate these undertakings, which philanthropy and the interests of Europe, of course, have also dictated? Groceries have been brought to the French islands, to French Guiana, to some English possessions, and soon we will see the fall of this monopoly that the Dutch have supported with so much treachery, vexation and crime. These nations of Europe will finally learn that exclusive companies are just a tax put on them, to give their governments a new instrument of tyranny.

Then the Europeans, confining themselves to free trade, too enlightened about their own rights to play on those of other peoples, will respect that independence, which they have so boldly violated until now. Their settlements, instead of being filled with protégés of the governments who, in favour of a place or a privilege, run around amassing treasures through brigandage and perfidy, in order to return to Europe to buy honours and titles, will be filled with industrious men, who will go to seek in these happy climes the ease that fled them in their homeland. Freedom will keep them there; ambition will cease to [208] call them back; and these counters of brigands will become colonies of citizens who will spread, in Africa and Asia, the principles and the example of freedom, the enlightenment and the reason of Europe. To these monks, who brought nothing but shameful superstitions to these peoples, and who revolted them by threatening them with a new domination, there will follow men who will be busy spreading among these nations the truths useful to their happiness, and enlightening them on their interests as well as their rights. Zeal for the truth is also a passion, and it will carry its efforts to distant lands, when it no longer sees around it gross prejudices to fight, shameful errors to dispel.

These vast countries will offer him, here, many peoples, who seem to be waiting, in order to become civilised, only to receive from us the means to do so, and to find brothers in the Europeans, to become their friends and disciples; there, nations enslaved under sacred despots or stupid conquerors, and who, for so many centuries, have been calling for liberators ; elsewhere, almost savage tribes, whom the harshness of their climate distances them from the sweetness of a perfected civilization, while this same harshness also repels those who would like to show them its advantages; or conquering hordes, who know no law but force, no trade but brigandage. The progress of these last two classes of peoples will be slower, accompanied by more storms; perhaps even reduced to a lesser number, as they are repelled by the civilised nations, they will end up disappearing imperceptibly, or getting lost in their bosom. »

— CONDORCET, Sketch of a historical picture of the progress of the human spirit.

Like Vattel, the image of the expansion of light remains a dynamic idea for Condorcet.

The critique of imperial ideology: Montesquieu, Rousseau and Smith

Montesquieu

Article détaillé : Montesquieu and the definition of the Free State.

The imperial ideology that was established from 1492 onwards was challenged by three men. Montesquieu offered an almost legal political critique, Rousseau wrote with terrible violence against European empires, and Smith, for whom an empire is economic nonsense.

Charles-Louis de Secondat, baron of La Brède and Montesquieu spent his schooling at the college of Juilly and, after studying law, became an adviser to the parliament of Bordeaux in 1714. In 1715, he married Jeanne de Lartigue, a Protestant woman from a wealthy family of recent nobility. In 1716, Montesquieu inherited the office of President of the Parliament of Bordeaux and the Barony of Montesquieu. In 1726, he sold his position as magistrate. In 1728, he was appointed to the French Academy.

In the years that followed, he travelled throughout Europe, to Austria, Hungary, Italy, Germany, Holland and England, where he stayed for more than a year. In Paris, Montesquieu frequented members of the Entresol club, such as the Marquis d'Argenson, Bolingbroke and the abbé́ of Saint-Pierre. There they passed on information to each other on matters of international politics, trade and finance. In 1748, after 20 years of work, he published De l'esprit des lois. He was criticised, attacked and in particular condemned by the Sorbonne. The work was put on the Church Index, but was nevertheless a resounding success. Montesquieu died on 10 February 1755.

In Considerations on the Causes of the Greatness of the Romans and their Decadence published in 1734 and On the Spirit of the Laws published in 1748 are the criticisms. In these two works, Montesquieu acknowledges his debt to Grotius and Pufendorf : « I am grateful to Mr. Grotius and Mr. Pufendorf for having executed what a large part of this work required of me, with such a height of genius that I could not have achieved ». However, Montesquieu is much more critical of these two authors in reality.

Montesquieu in 1728 (anonymous painting).

Montesquieu notes that nations are naturally prone to war. There is a certain pragmatism in Montesquieu because nations are very easily inclined to go to war. From this point of view, he is quite close to Thomas Hobbes since the will to power is transmitted to states when men start living together. To channel the will to power of states, it is possible to imagine Montesquieu advocating an international order based on strong, powerful states that go to war against each other when they need to. In fact, this is not the case. For Montesquieu, an order based on the balance of power is not desirable because it does not guarantee peace between states or empires. Somehow, balance guarantees nothing. The notion of balance only brings together forms that annihilate or cancel each other out, but in no way does the balance of power guarantee peace between states.

From 1734 onwards, he began to denounce the very idea of conquest. Conquest only destroys, only transforms for the worse and not for the better the populations that suffer it. In Considerations on the Causes of the Greatness of the Romans and their Decadence, his criticism of empires includes criticism of a famous empire, the Roman Empire. He takes the Roman model to denounce the imperial adventure. No one is fooled when he publishes this work. The Roman model is a bad model that destroys and does not build and all European empires are condemned to end up like Rome. In chapters, he shows how the Roman army has gangrenous the spirit of Rome. The Roman Empire carried within itself the seeds of its own destruction because it needed a strong army to hold the empire, but this endowed it with a Praetorian spirit. In 1734, Montesquieu delivered the intuition that all empires carry within themselves the seeds of their own destruction. Montesquieu had a subjective view of freedom, which is the opinion one has of one's own freedom.

Cover page of the new revised and corrected edition of 1749 of De l'esprit des lois published by Chatelain.

Montesquieu gradually distanced himself from Grotius and Vattel, publishing in 1748 "De l'esprit des lois" in which he developed three major arguments to denounce the European imperial enterprise. These are a series of arguments:

1. the arguments of commerce: in book XX, Montesquieu inaugurates a vast reflection aimed at criticising empires from the point of view of the idea that empires do not favour and do not allow commerce in the sense of exchange both individually and between states. Trade, empires, whether English, French or Dutch, sterilise trade, i.e. exchanges between individuals, whether economic or non-economic, with the principle that trade is a factor of peace. Trade softens morals. If we want peace, according to Montesquieu, we must promote trade because trade softens morals between individuals and between States. In the name of the idea that trade softens morals, that trade is a guarantor of peace, he maintains that empires do not allow trade and therefore do not allow peace between states to take hold. Trade promotes peace and empires do not promote trade, empires do not promote peace and above all achieve freedom of trade. This is an extremely strong denunciation of the European imperial enterprise.
2. The legal line: Montesquieu will no longer question the economic merits of empires, but criticize the temptation of empires that standardize legal orders. Montesquieu is a staunch supporter of what he calls "the diversity of laws and customs". He believes that each nation has its own general spirit. Montesquieu is a proponent of the diversity of laws, customs and morals that must be respected. He is a proponent of legal pluralism. However, he notes that the great empires have historically imposed their laws on their "minority", unifying the norms and customs of the territories they have occupied. He takes the example of France or England with the Common Law Order. Empires destroy something extraordinarily important for states and the international order, which is diversity, pluralism of values, legal orders and world views. In France, there was no standardisation of law in the 18th century and Montesquieu was a proponent of respect for local customs. The importance of respect for customary law led him to criticise the temptations to unify the great empires.
3. Montesquieu would strongly reject the conception of history defended by Locke. There is no trace in Montesquieu's work of a theory of the development of societies in stages. In this sense, the custom that he values so highly cannot be the symbol or symptom of a "non or uncivilised" society. There is no such thing as societal development by stages. All of Montesquieu's historical work, this very strong vision of history, is nevertheless not built on a sequential vision of history.

With Montesquieu ends the first great critique based on the beginning and the plural vision of law which is the first great critique of empires. Vattel saw the very strong danger of Montesquieu's attack. What Vattel did not see is the moral criticism that may be the strongest of all imperial criticisms, which is Rousseau. Rousseau provides perhaps the most radical criticism of all empires.

Jean-Jacques Rousseau

Article détaillé : Jean-Jacques Rousseau et le nouveau pacte social.

Pastel by Maurice Quentin de La Tour, Jean-Jacques Rousseau, in 1753 (then 41 years old).

Jean-Jacques Rousseau, who comes from a Geneva watchmaking family, was raised by his uncle from the age of nine. He was first an apprentice clerk, then placed with a master engraver. Rousseau left Geneva at the age of 16 for Annecy, Turin, Neuchâtel and Chambéry and taught music. In Paris, in 1742, he met Diderot and wrote articles for the Encyclopaedia. In 1750, he took part in a competition organised by the Academy of Dijon. His Discourse on Science and the Arts won first prize. In 1755, his Discourse on the Origin and Foundations of Inequality among Men made him famous and, like his first speech, provoked a lively polemic. Both the Social Contract and the Emile were condemned to be burned. These works are banned in France, the Netherlands, Geneva and Bern. In 1766, he was invited to England by Hume. He returned to Paris in 1770. Since and until his death, Rousseau lived in the obsession of a plot against him. He then began his autobiographical work. In 1778, Rousseau died suddenly near Paris.

The Discourse on the Origin and Foundations of Inequality among Men is published in 1755, asking the real questions about property and private property in general. In 1762 is published Du contrat social ou principe du droit politique. Rousseau criticized empires in various works, also in Confessions or de l'Émile. Rousseau will also formulate a completely new conception of classical international law. His reflections on peace and war were perhaps the most radical criticism of the great European empires.

Rousseau was an eclectic man who truly covered such vast fields as music, economics, philosophy and law. His work Du contrat social is perhaps the major legal work of the 18th century. Rousseau offers a moral critique of empires, of Grotius and his followers. He reformulates the whole modern conception of the law of nations. His conception of the law of nations is based on completely different presuppositions from Grotius and Vattel. Rousseau's thinking and criticism of empires is based on three functions:

• his criticism of empires must be based on an anthropology different from Locke, Grotius or Vattel, who did not conceive of natural man as a being of unlimited passions, but as an isolated, happy and peaceful being. For Rousseau, there is no war between men, but there are only wars between states. Hobbes saw international relations as the extension of relations between men.
• if there are wars only between states, then relations between states must be reconstructed, in other words, the law of people must be reconstructed between nations.
• people's rights can only arise from mutual conventions between nations, but above all they must be based on the central idea that human beings are peaceful by nature. Let us not construct a law of war and peace on the assumption that peace is impossible, on the assumption that war is eternal. He proposes to codify a law of people that prevents situations of war because it is based on principles of respect and tolerance between nations.

These three introductory remarks help to explain the very meaning of the criticism of empires, which involves the affirmation of the principle of equality. Rousseau's entire work is a great plea for equality between men and equality between peoples. He transposes the vision of equality between men to equality between peoples. In other words, for Rousseau, it makes no sense to talk about equality between men if we don't also talk about equality between peoples. Quite logically, he will radically criticize empires because they do not respect the principle of fundamental equality between men and condemn any form of conquest and imperial domination that he considers morally and ethically questionable.

« Let's take a look at the immense continent of Africa, where no mortal is bold enough to penetrate, or happy enough to have attempted it with impunity. Thus from what we have not been able to penetrate the continent of Africa, from what we do not know what is happening there, we are led to conclude that the peoples are laden with vices: it is if we had found the means to bring our own to it that we would have to draw this conclusion. [...]. America does not offer us shows less for the human species. Especially since the Europeans are there. »

— Rousseau, "Réponse à M. Bordes à propos du Discours sur lés sciences et les arts", Œuvre complètes, op. cit., volume 3, pp. 90-91.

Rousseau resumed his peaceful discourse of men, taking up his idea of equality between peoples, he launched into a very radical critique of empires. Along with Diderot, Rousseau was perhaps the one who most criticized the imperial idea in the 18th century. Vattel had understood that in Rousseau there was a great citric of the imperial idea. Rousseau's criticism of modern civilization must be kept in mind in denouncing the perverse and morally questionable dimension, but he accompanied his criticism of empires with a criticism of modern civilization. For him, trade does not bring peace as Montesquieu thought, it does not soften morals bringing only false peace. "Trade only brings a false peace which only brings war of all against all. These are the passions of modern men who are obsessed with trade. Criticism of Rousseau's empires is one thing, and it runs parallel to the criticism of the civilisations of empires based on trade, false peace, jealousy, suspicion, but also competition. With Rousseau, there is an economic lucidity perceiving the dangers of great empires and their ability to engage in trade that destroys the soul.

« In the three or four hundred years that the inhabitants of Europe have been flooding the other parts of the world with new collections of travels and relationships, I am convinced that we know of men only Europeans [...] From this comes this beautiful moral adage, so rejected by the philosophical peat, that men are all the same, that having everywhere the same passions and the same vices, it is quite useless to try to characterise the different peoples; which is about as well reasoned as if it were said that Peter cannot be distinguished from James, because they both have a nose, a mouth and eyes. »

— Rousseau, Discourse on the origin and foundations of inequality among men [1755]

For Rousseau, we are conquering the world because not only have we read about our civilisation from ulpiseor, but we believe we know people we don't know. In fact, we are destroying cultures that are radically different from ours and that are no less valid than ours. There is a very strong culturalist dimension. We have to accept the difference, the fact that there are radically different cultures, that the great empires seek to destroy, dominate or at best to level. We find Montesquieu's criticism of the tendency to standardise cultures. Empires are an evil, empires are not the future of modern civilization because they prevent us from knowing who the others are, from being interested in the others.

Rousseau is the understanding of a man who tried to defend particularities with universal values. He tried to combine the universalism of certain values with the universalism of others. For him, this implies two things, almost proposing a method:

• you have to discover the specificity of each people and the possible differences with respect to us. Rousseau will initially plead for a repertoire of differences. It is not a question of converting, imposing or converting others through our prejudices, but we must out of curiosity, in a disinterested way be open to other peoples, wanting to look at them for what they are by trying to put aside our prejudices.
• once differences are noted and accepted, it is possible to defend universal values together. It is the establishment of a universal ethic through exchange and respect. In his essay on the origin of languages, Rousseau had this to say: "When one wants to study man, one must look close to oneself; but in order to study man, one must learn to carry one's sight to the distance; one must first observe the differences in order to discover the similarities".

You have to be both an interested author and a disinterested author at the same time. Rousseau's criticism will be very strongly influenced by the era when empires were as good as cracking. In 1735, Montesquieu wrote Reflections on the Universal Monarchy in Europe, which aimed to show that the instability of the state was born with the spirit of conquest: the "universal monarchy" represented the supreme stage of absolutism before its decline.

« It is a question that can be asked if, in the present state of Europe, it can happen that a People, like the Romans, has a constant superiority over the others. »

It raises the question of the supremacy of one State over another.

« The Law of the People has changed, and, by today's Laws, war is made in such a way that it ruins by preference those who go for greater advantages. »

There is a whole criticism of war that could be summed up as the fact that war exhausts people, it is only a way of exhausting people.

« Europe now does all the trade and navigation in the universe »

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Montesquieu is aware that Europe dominates the world. He realises that in commercial, economic, political and military terms, that Europe dominates the world.

« The Monarchies have the disadvantage that they are governed sometimes by the views of the Public Good, sometimes by particular views, and that they follow in turn the interests of the Favourites, the Ministers and the Kings. Conquests today take longer than in the past, and have become proportionately more difficult »

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It is a critic of the imperial adventure that is on the rise.

« In Asia, we have always seen great empires; in Europe, they have never been able to survive »

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For Montesquieu, "every empire will perish, Rome has perished". He notes that Europe is too big now with too great a distance between Europe and the periphery. It is an empire occupying a very large territorial space.

« As the French had subjugated the barbarian nations established before them, Charlemagne founded a great Empire; but this in itself divided Europe into an infinite number of sovereignties. [...] now, for the reasons we have said, a great Empire, where the rince did not have absolute authority, necessarily had to be divided, either because the Governors of the Provinces did not obey, or because to make them obey more obedient it was necessary to divide the Empire into several Kingdoms. »

Every empire is condemned to be divided. This is always a political criticism.

The great topo of the 18th century was to denounce the Spanish Empire.

« However, the money soon doubled in Europe; it seemed that the price of everything that could be bought was about double. The Spaniards searched the mines, dug up the mountains, invented machines to pull out the minerals, break up the ore and separate it; and as they did not enjoy the life of the Indians, they made them work hard, silver soon doubled again in Europe, which each year only had the same quantity of a metal that had become half as precious. »

« Europe is now only a Nation made up of many, France and England need the opulence of Poland and Moscovia, just as one of their Provinces needs the others: and the State which believes it increases its power by the ruin of the one who touches it, usually weakens with it. »

Somewhere empires, the use of conquest leads to the destruction of countries that succumb.

« The true power of a Prince does not lie in the ease with which he can conquer, but in the difficulty there is in attacking him, and if I dare say so, in the immutability of his condition: but the enlargement of the Monarchies only shows them new sides from which they can be taken. »

This is an almost moral criticism. Lenin said "you will sell us the rope to hang yourself on credit". Empires possess within them the seeds of their own destruction. Strong states are small empires, a large state is a sign of disintegration.

« If the great conquests are so difficult, so vain, so dangerous, what can be said of this disease of our century which causes a disorderly number of troops to be maintained everywhere? It has its repetitions and it necessarily becomes contagious, because as soon as one State increases what it calls its forces, the others suddenly increase theirs, so that nothing is gained and ruin begins [...] We are poor with the wealth and trade of the whole Universe, and soon, by dint of having soldiers, we will have only soldiers, and we are like Tartars. »

Abbé Raynal

The one who is going to launch into the economic criticism of empires is a Scottish founder of political economy, a very interesting man, this man is Adam Smith. Raynal makes a moral, economic and somewhat political criticism in his book Histoire philosophique et politique des établissements & du commerce des Européens dans les deux Indes published between 1770 and 1820. It is a very important text in the criticism of great empires.

« But are they happy, you may ask? And I will ask you, who is the man who is so stubborn about the advantages of our societies, so alien to our sorrows, who is not sometimes turned by thought in the middle of the forests, and who has not at least envied the happiness, innocence and rest of patriarchal life? Well! this is the life of the Hottentot Do you love freedom? It is free. Do you like health? He knows no other illness than old age. Do you love virtue? He has inclinations which he satisfies without remorse, but he has no vices. [...] »

Abbé Raynal.

We see the myth of the good savage who was used to criticize the great empires as in Rousseau's case. The term "good savage" is negatively perceived today, but not in Rousseau's time.

« What obligation will the savage have to you when you have brought him arts without which he is satisfied, industries which would only multiply his needs and his work, laws which he cannot promise himself more security than you have? »

It is a critique according to the Rousseauist vision of the world.

« Flee, you wretched Hottentots, flee! Go into your forests. The ferocious beasts that inhabit them are less fearsome than the monsters under whose rule you will fall. The tiger may tear you apart, but it will only take your life. The other will take away your innocence and freedom. Or if you feel brave, take your axes, stretch your bows, rain your poisoned arrows down on these strangers. May there be none left to bring their citizens the news of their disaster! »

In general consideration of the establishment of colonies, one sees the criticism and argument of the ease of conquering empires.

« History only tells us of conquerors who, in defiance of the blood & happiness of their subjects, are busy extending their domination: but it does not present us with the example of any Sovereign who would be wise to restrict it. But does not the one however have the right to know that the other has been disastrous? And doesn't it make any difference to the extent of the Empires or to the popularity of the country? A large empire & a large population can be two great evils. Few men, but happy; little space, but well governed. The strength of small states is to expand; the strength of large states is to dismember. »

« Does our true happiness require the enjoyment of the things we seek so far? Are we destined to retain such fake tastes? Was man born to wander continuously between the sky & waters? Is he a bird of passage, or does he resemble other animals, whose greatest excursion is very limited? Can what is taken out of the foodstuffs compensate advantageously for the loss of citizens who are going away from their homeland to be destroyed, or by the diseases that attack them in the crossing, or by the climate on their arrival? At such great distances, what can be the energy of the metropolis on the subjects, & the obedience of the subjects to these laws? Shouldn't the distance of witnesses and judges from our actions lead to corruption of morals and, with time, the decline of the wisest institutions, when the virtues and justice, the fundamental bases, no longer exist? […] »

We are in Rousseau's critique of luxury, of civilised man. Material goods are not a sign of evolution.

« As authority weakens as the subjects move away from the centre of domination, is one obeyed a thousand leagues away from the place from which orders start? If I am told that this is possible through the action of the agents of government, I shall reply with the words of one of those indiscreet officials, who revealed what was going on deep in the souls of all the others: God is high up, the emperor is far away, and I am the master here. The empire being divided into two classes of men, that of masters and that of slaves, how can such opposing interests be reconciled? »

This is the argument of the distance between the centre and the periphery. This is the core of Rousseau's moral criticism, which says that empires, in essence, are composed of two categories of individuals, namely masters and slaves. There is a profoundly unequal dimension in empires. The slave man loses his quality as a man and empires only divide individuals in two.

Adam Smith

Adam Smith.

Adam Smith was born in Kirkaldy, Scotland. A gifted pupil, he entered Glasgow University at the age of 14 where he followed the teachings of the Scottish philosophy master Hutcheson (1654-1746). At the age of 17, on a scholarship, he joined Oxford University. In 1751, Smith obtained the chair of logic at the University of Glasgow, then at the age of 30, he was also appointed to the chair of moral philosophy. Smith's work seduced the Chancellor of the Exchequer, Charles Townsend, who appointed him tutor to the young Duke of Buccleugh. Smith will accompany this young man on a four-year training trip across Europe. Smith was then introduced by Hume to the French encyclopaedists. He returned to Scotland in 1766. For ten years, he will elaborate his major work Research on the Nature and Causes of the Wealth of Nations (1776). In 1778, Smith became commissioner of customs in Edinburgh, which assured him a comfortable retirement. At the end of his life he became rector of the University of Glasgow. Smith died in 1790 in relative indifference.

It is no coincidence that Adam Smith wrote and thought out his criticism of the empires in Scotland, which since 1707 had been united with England, but above all Scotland experienced an extremely high level of intellectual prosperity between 1720 and 1760. Scotland experienced a cultural and intellectual development of the highest order, as with Hume. Eighteenth century Scotland is a haven of cultural development with a wealth of ideas, a vast literature of journals playing an important role in the intellectual development of moral, economic and political theories. This Scotland is based on a union with England, but also on a number of principles and values such as the civil liberty of the public mind. The Scots are distant followers of Machiavelli with a reflection on the citizen, on his place and moral role in society.

First page of the Wealth of Nations, in its 1776 edition.

In 1759 Smith published The Theory of Moral Sentiments, in 1776 he published Research on the Nature and Causes of the Wealth of Nations. In Theory of Moral Sentiments, he published a revolutionary theory on how to think about the social and political world. Montesquieu and Rousseau built their vision of politics and law on the notion of contract. Adam Smith will think society, including inter-state society, in a non-contractual way.

In The Theory of Moral Sentiments, Adam Smith asks the question of what makes human beings, and states by extension, live and manage to live together, and how to make them live together. Rousseau had answered by contract, Montesquieu in some respects also, Grotius and Vattel have a contractualist thinking. Smith will think up a new thesis. He states the thesis of the universality of the feeling of sympathy between men. For him, men have an empathy for others, which is simply a matter of channelling, of using to organise. He wonders how to organise this sympathy, which is a feeling that makes it possible to reconcile love of oneself with the interest of society. As men feel sympathy towards others, it is a question of organising it or letting it organise itself. So that the wealth of each person benefits the wealth of all, we must let people's natural sympathy work by itself because the needs of all will be met. Smith, through his idea of the market, proposes an economic vision of the world which is a completely fundamental change in the way of thinking about relations between people and between States. The answer he proposes is that of the "invisible hand" which plays a central role and which in a certain way organises the market.

What is interesting is that Smith is going to criticise empires on the basis of a radically different conception of the world. It is a world view structured in a vast market that is organised by the invisible hand. He is not the inventor of the word 'economy', but the inventor of the term 'economy-politics'. Economics is another way of thinking about politics. The inventor of the concept of the market will base his criticism of empires on this new world view. In doing so, by proposing an economic vision of the relations between states and between individuals, Smith will proceed to a dissociation, a very important conceptual transformation between the notion of territory and that of space. The notion of territory is no longer important to him because the market is not limited to territory, but reasons in terms of space. The law of people and a law whose subjects are the States. The economic conception of the world based on the idea of the market shatters the notion of territory, which is replaced by the notion of space. The extent of the market is not defined by borders or boundaries for Smith, but is produced from within through a very vast communication system that can extend to the whole world.

As a result, Smith can indulge in an economic critique of empires. Smith will denounce the English imperial adventure. As he defends an open, global, deterritorialized vision of the market, he will defend the principle of free trade. He will go on to criticize radically the very notion of monopoly. We now understand his criticism of empires. It is based on three points. This new vision of the world is that of the foundation of empires and colonies:

• colonies are a manifestation of power that have no political and economic interest;
• if the empire had an interest, it would be to expand the market, to tear down borders, to create a vast market. For this to work, it would have to be based on free trade. Empires just set up a monopoly market.
• The benefits that a nation can derive from expanding its market must benefit everyone. Empires are not only based on monopoly, but more importantly, they benefit only a very small minority. Empires are also social nonsense in that they divide society between the haves and have-nots.

Its denunciation of the "colonial illusion" is marked by the idea of wealth sharing. Smith would be in favour of a kind of single, globalised market that would allow trade on an equal and fair basis. Empires will take from Smith what they want to take and not take what they don't want to take.

« Europe's policy has therefore little to boast about, either in the primitive establishment of America's colonies or in their later prosperity, in terms of the internal government it has given them »

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It is implied that Europe is not the source of the economic prosperity of these countries. He will also engage in criticism of Spain, which is totally reprehensible.

« Extravagance and injustice are, it seems, the principles which conceived and directed the first project for the establishment of these colonies; the extravagance which made people chase gold and silver mines, and the injustice which made them covet the possession of a country whose innocent and simple inhabitants, far from having done no harm to the Europeans, had welcomed them with every possible sign of kindness and hospitality when they first appeared in this part of the world. »

{{citation bloc|The various governments of Europe can claim no more credit for having created some of the most important of these institutions than for having conceived their design.

The conquest of Mexico was not a project conceived by the Council of Spain, but by a governor of Cuba; and this project was carried out by the bold and enterprising genius of the adventurer who was entrusted with it, in spite of all that the same governor, who soon repented of entrusting it to such a man, could do to carry it through.}

There is a criticism of Europe, but of Spain itself. The economic criticism is gradually taking hold.

« When these establishments were formed and when they became large enough to attract the attention of the mother country, the first regulations she made in their regard were always aimed at securing a monopoly of their trade, tightening their market, expanding hers at their expense and, consequently, discouraging and slowing down the course of their prosperity, far from exciting and accelerating it. The various ways in which this monopoly has been exercised is one of the most essential differences between the political systems followed by the different nations of Europe with regard to their colonies. All that can be said of the best of these systems, that of England, is that it is only slightly less petty and less oppressive than any of those of the other nations. »

Empires bring ruin to the colonies. England does a little better than the others, but it is still too much of a leader.

« Monopoly makes all the original sources of income, labour wages, land rents, and fund profits, much less abundant than they would otherwise be »

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Monopoly is an economic aberration which somehow favours concentration in the hands of a few to the detriment of the interest of all.

« Thus, the only advantage that monopoly gives to one order of men is detrimental in many different ways to the general interest of the country.

Going to found a vast empire with the sole aim of creating a people of buyers and shoppers seems, at first glance, a project that could only suit a nation of shopkeepers. It is, however, a project that would be extremely unsuitable for a nation made up entirely of shopkeepers, but which would suit a nation whose government is under the influence of shopkeepers. It takes statesmen of this species, and of this species only, to be able to imagine that they will find any advantage in using the blood and treasures of their fellow citizens to found and sustain such an empire. »

One can see how contemptuously Smith treated his contemporaries by calling them "shopkeepers". In Smith, we see a common trait with all the critics of Grotius and his contemporaries.

« Under the present system of management, Great Britain thus derives nothing but losses from the domination it arrogates over its colonies.

To propose that Great Britain should voluntarily renounce all authority over its colonies and let them elect their own magistrates, enact their own laws, and make peace and war as they see fit would be to propose a measure that no nation in the world has ever accepted, and never will accept. »

This argument can be found in all critics of imperial ideology. The argument is that empires are bad from a legal and economic point of view, but we cannot go back to the old order of things. It is an absolute delusion to believe that a nation renounces its colonies and its imperial adventure. England will learn this at its expense with the rebellion of the American colonies, wanting their independence and creating what will become the greatest empire of the 19th and 20th centuries, the United States of America.

Annexes

• Hasquin Hervé. Montesquieu. Réflexions sur la monarchie universelle en Europe. , Revue belge de philologie et d'histoire, 2001, vol. 79, n° 4, p. 1484.
• Sen, A. (2010). Adam Smith and the contemporary world. Erasmus Journal for Philosophy and Economics, 3(1), 50. https://doi.org/10.23941/ejpe.v3i1.39