Scene at the signing of the United States Constitution, by Howard Chandler Christy. This chart depicts the 33 delegates who signed the Constitution.
|Cours||History of legal and political thought: the concept of empire from its origins to the present day|
- 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?
From 1787 onwards, the American constituents proposed two models of republic, trying to resolve the tension between Vattel and Rousseau, creating an empire while moving away from it, creating a synthesis between the imperial theories justified by Grotius and those like Rousseau, Montesquieu or Adam Smith who criticised the notion of Empire. The United States will attempt a synthesis between Vattel and Rousseau. The American case is interesting for those who are interested in great empires and imperial theories, because the American colonies will attempt a synthesis by insisting on being both republican and imperial. It is a synthesis between those opposed to empires and those who defend imperial ideology.
The synthesis of the Federalists [Hamilton, Jay, Madison][modifier | modifier le wikicode]
On July 4, 1776, American independence came into being. A kind of confederation was established between the different states that are the Thirteen American colonies. From May to September 1787, the Convention of Philadelphia took place, highlighting the tensions between the supporters of a great American empire and those who denounced the dangers of an imperial drift. The adoption of the convention required the agreement of nine out of thirteen states. The American Revolution divided the American constituents between the federalists who were, among others, Hamilton Jay and Madison and the antifederalists who would defend a different conception of the Republic. They asked themselves three questions:
- how do you articulate the idea of Republic and the idea of Empire? can there be a republic that is meant to be an empire too? can there be an imperial republic?
- How to combine the necessary plurality existing in society, including international society, with the unity necessary for the proper functioning of this community? How to make different entities one while respecting differences? Hence the motto pluribus unum.
- which model of republic is desirable for the Thirteen American colonies? a colony of the commercial type? an agrarian type? an expansionist type republic extending towards the west? Is it possible to go beyond the 1763 line negotiated between the English and the Indians. The big question is can the newly created American Republic be enlarged?
The answers to these three questions are very interesting because they demonstrate very well which model of empire will prevail. The seeds of the American empire were already present in the debates of 1787:
- the American constituents build a legal and political system where no one party can prevail over the other. They enshrined the principle of political representation, with each state having the right to a member of the Senate, and the principle of the sovereignty of the people, which gave legitimacy to the American political authorities.
- Federalists defend the establishment of a federal and commercial republic open to the world. We see this in particular in The Federalist XI.
- they accept the idea that such a federative and commercial republic can exist over a large territory. In other words, they accept the entirely new conceptual idea that a republic can be established over a large territory. Rousseau and his contemporaries said that a monarchy or empire can exist on a large territory, but by definition, a republic can only exist on small territories. For the federalists, a republic can and for some must exist on a large territory, opening up a new vision of republican rule that is opposed to the idea of associating republic and small territory.
The federalists would combine a very expansionist vision of the republic with a new definition of the very idea of a constitution. The federalists will propose two meanings for the very term 'constitution'. The concept of constitution can be reduced to two institutional dimensions:
- it regulates the organisation and functioning of the political powers, whether judicial, executive or legislative. This is the very meaning of the constitution that is still practised today.
- the federalists will introduce a more normative meaning designating the fundamental character of this writing. They are going to make the American constitution the fundamental law of the American Republic, establishing a hierarchy in the American legal order between the constitution at the top and the legal order that flows from it. This is an important dimension.
Making the American constitution the keystone of this commercial and federative republic will shift the debates about empire, the debates about defining the American Republic, from the political to the legal sphere. We will see that in the struggles to define the American Republic, the Supreme Court will play a key role in the very name of the powers conferred by the constitution. The American Supreme Court has an important interpretive power. Even today, the Supreme Court still has an important political role in defining American political life.
The federalists impose a commercial, federalist, expansionist republic whose constitutional features are known to all with the separation of powers and the representation of the people. The victory they achieved was not an easy one. To the federalist vision will be opposed the vision of the antifederalists who will defend another conception of the republic, rejecting the policy of power defended by the federalists, they reject the commercial republic, they reject a republic that is a self-perpetuating republic, they reject the dangers that the proposed model conceals within it. They denounce the imperial excesses of the republican model that is being put in place.
Some antifederalists have foreseen the dangers of the model of an imperial republic that is being set up.
« Let us how fare it is practicable consistent with the happiness of the people and their freedom. It is the opinion of the ablest writers on the subject, that no extensive empire can be governed upon republican principles, and that such a government will degenerate to a despotism, unless it be made up of a confederacy of smaller states, each having the full powers of internal regulation. »
We see the denunciation of the antifederalists. You can't have an empire ruled on republican principles.
« Large and consolidated empires may indeed dazzle the eyes of a distant spectator with their splendor, but if examined more nearly are always found to be full of misery. »
In substance, great empires can dazzle and blind, but in fact they are always the source of great human misery.
« This new system is, therefore, a consolidation of all the states into one large mass, however diverse the parts may be of which it is to be composed. »
The great imperial republic that is being established is levelling out the great diversity of cultures of the states that make up the United States of America, which is the American Republic.
This criticism is accompanied by a famous plea. When the antifederalists criticising the imperial tendency of the republic of the federalists, when the defeated see that they are losing the battles, a man goes to the rostrum and makes a famous speech, this man is Patrick Henry.
« You should not seek to strengthen your trade, nor to become a great and powerful people, but to ensure freedom; for freedom should be the essential aim of your government. ...] this new power will trample upon your fallen liberty: let my dear Americans beware of the fatal lethargy that has perverted the Universe; can we afford to resist disciplined armies when our only means of defence is in the hands of Congress? ...] Will we imitate the example of those nations that have exchanged a modest government for a superb one? Are these nations worthy of our imitation? What compensation can they seek for the loss of their freedom? If we accept this consolidated government, it will be for love of the splendour and greatness of a formidable power. One way or another, we shall then have a great and powerful Empire; we shall have a navy, an army and many other things. When the American spirit was in its youth, the language of America was different; freedom, sir, was the supreme goal. »
— Discours de P. Henry dans : The anti-federalist papers and the constitutional debates, publ. Par R Ketchmam, New York 1986, p.200
This defeated of history, and to whom history has proved him right, wrote many premonitory texts showing that this commercial and federative republic was going to become an imperial republic. Vattel will prevail over Rousseau.
The two models of republic[modifier | modifier le wikicode]
In 1787, two visions of the Republic were opposed to the Convention of Philadelphia: a so-called "federalist" model and an "antifederalist" model:
- the vision of the federalist victors is based on the vision of a powerful, commercial, open to the world, federalist, expansionist republic open to an extension towards the West. In terms of domestic law, they are in favour of the separation of powers, political representation, the idea of sovereignty of the people, in favour of the idea of a constitution as the supreme norm and in favour of the institution of a Supreme Court as the guarantor of the legal order.
- Antifederalists are in favour of the separation of powers, in favour of the idea of making the constitution the supreme norm of the legal order, in favour of the sovereignty of the people, but the model from the point of view of the international order, the model they are going to propose is different. It is not a model of a republic based on American power, but rather on modesty, which is a more agrarian republic, based on townships which are small rural communities, it is a republic not based on power and splendour, a republic with no or little access to foreign trade, but rather on internal trade, and it is a model of a republic that wants to be faithful to republican principles being a republic based on small republics with no imperial ambitions.
These are two visions that clash not so much in the internal order as in the international order. The imperial republic is gradually coming into being. Very quickly, the question arises as to whether it is possible to widen the border. In other words, can the young republic become an empire? The vision of an imperial republic prevailed through the westward expansion, which is the westward shift of the border that will be justified in different ways. The question of the tensions between the idea of republic and the idea of empire materialises through the Indian question. The Indian question will crystallise the tensions between the two models of republics that will confront each other.
How was the imperial conception born in the United States and what are the historical points? In 1796, George Washington asserted and explained the idea of an imperial republic and gave his vision of the imperial republic in the Farwell address. He will, as a good heir of the federalists, defend four essential ideas giving an outline to the imperial idea of the federalists:
- it is necessary to conduct a foreign policy, to defend a model of republic which avoids at all costs the division of the country;
- we must refuse to make the United States of America the site of conflicts between France and England. It is the affirmation of a certain neutrality in the face of the conflict between France and England;
- the absolute defence of attacks against the United States of America;
- the need to extend westwards. The American Republic will only be great and splendid if it extends westward. The United States of America has imperial ambitions on its own soil already.
In 1824, the United States of America, through its Secretary of State, defined the Monroe Doctrine:
- not only must we not interfere in the conflicts of European countries, but we must not tolerate more and not the presence of European powers around the United States. It is the delimitation that comes under the idea of the security zone. Monroe would forbid European powers to come too close to the European borders;
- he asserts the need to extend westwards, but in the name of the destiny of the American nation.
In the Monroe Doctrine is an essential idea that will make the application of the imperial republic possible which is the essential idea finding its foundation in the religious vision of the United States of America which is the idea of the exceptional destiny of the American nation. Among the founding American Puritans of the United States of America there is the Protestant and Calvinist notion of being the chosen people. It is the duty of election transferred into their vision of politics. It is the idea that they are destined to be an important nation, but they have a special destiny among the nations of the world. These are the roots of American exceptionalism. The idea of the manifest destiny of the United States of America, which is American exceptionalism, is affirmed. To this model of imperialist republic has been added a quasi-mystical and religious vision through its extension westward at the expense of the Indians and the Native American tribes.
Westward Territorial Expansion and the Status of Amerindian Communities: The Role of the Supreme Court[modifier | modifier le wikicode]
The Indian question[modifier | modifier le wikicode]
The Indian question crystallises the arguments of the "pro" and "anti" empire. The first treaties with the Indians were signed as early as 1761 between the English and the Indians. From 1763 to 1881, 429 treaties were concluded between the United States of America and the Indian nations. Almost all of these treaties guarantee the protection of people and property and the integrity of the Indian tribes in exchange for respect for the American state. It can be seen that these treaties all respect the property rights of the Indian tribes. The problem is not so much the treaties as their implementation.
The supporters of the American empire will push in 1830 in Congress for the passage of the Indian Removal Act authorising no more and no less than the deportation of 270000 Indians between 1828 and 1845. This represented between 20% and 30% of the existing Indian population. The Indian Removal Act will be put in place because it is possible since May 26, 1830 to deport the Amerindian tribes located in the Indian reserve and to move the American border beyond the Mississippi. The Indians are not going to let themselves be made and resist.
The bottom of the problem from a legal point of view is that from 1830, the American authorities can deport the Indian tribes. The question is what is the status of these Native American tribes. Since Vitoria they are men, Grotius and Vattel recall this and have admitted it. Are these tribes nations or states? If they are nations or states, the American government must treat these Amerindian nations as equals. Do Indian tribes have property rights? Are they nations or states? The Indian Removal Act will raise a whole series of questions and it will be the role of the Supreme Court to answer these questions. Supporters of the imperial republic will find the Supreme Court an important opponent.
The Supreme Court will answer "yes" to the question of the Indian tribe's statehood, "yes" to the property rights of Indian nations, and "no" to their deportation. However, the victors' vision prevailed. Three rulings, however, will play a crucial role in the resistance to the imperial republic and the US expansionist vision. Supreme Court Chief Justice John Marshall will become independent of President Andrew Jackson. In three rulings, the Supreme Court will attempt to limit the imperial vision of the republic.
The 1823 Jonson v. McIntosh decision is the first. Marshall was already playing a role. The question is whether an individual can take ownership of land when it is sold by an Indian. The political issue is whether one has the right to buy land from an Indian. The question is what status and what kind of property rights Indians have. The answer to the question is that an individual can buy land from an Indian who has a legitimate right to property. The property rights of Indians are confirmed by the Native American Supreme Court. An American can legitimately purchase property from an Indian who has that property right. When one reads the decision in detail, it is clear that the judges clearly state that Indians are "rightful full occupiers". This case, which deals with a problem of sale of property, touches for the first time on the issue of Indian ownership. It is the beginning of the Supreme Court's action against the imperial vision of the Republic.
The Cherokee Nation v. Georgia judgment is in 1831, one year after the Indian Removal Act. The Cherokees were a nomadic Indian nation that decided to become sedentary because several Cherokee chiefs had gone through the major American universities, in particular because some Cherokee chiefs had married white women and their children had grown up between American and Indian culture. In 1821, the Cherokees wrote a constitution and decided to establish themselves. The situation was all the more dramatic because they tried to assimilate into the American nation. The state of Georgia did not consider the territories in the northwest of its state to be truly independent and did not recognise the Cherokee nation as an independent nation. In 1831, the question that arose was what was the status of the Cherokee nation. Is it American or an independent nation that can have the status of a state or an independent nation? Marshall was not happy with this case because his conviction was made recognizing the Cherokees as an independent state. The question of whether the Cherokee nation is a nation alien to the American nation will be decided in the negative, to the damnation of Marshall who had voted for it and who will be minorized in the Court over which he presides. The Indian nations will not be called independent nations, but "dependent domestic nations". It is not an independent nation in the sense of public international law. Indian nations do not have sovereignty and are not sovereign nations. Marshall will be disappointed with this conclusion being outnumbered five to four.
In 1832, the problem was referred to the Supreme Court in the Worcester v. Georgia decision. Marshall was Chief Justice of the United States Supreme Court from 1801 to 1835, having profoundly influenced American law and the United States of America. He was Secretary of State and a member of the House of Representatives sitting for the State of Virginia. A pastor, Samuel Worcester, went to Georgia and upon his return was arrested by the State of Georgia for not being allowed to travel to a part of the State of Georgia. The question is whether the extension of Georgia's laws to the Indian territories is lawful:
- is the extension of the laws of the State of Georgia on the Indian territories lawful?
- are the laws of Georgia compatible with the US Constitution and the right of Indian tribes to be protected by US laws and treaties?
- what is the status of Indian nations?
Marshall will destroy piece by piece the right of discovery which is the right of terra nula to justify the extent of these boundaries. In criticising Vattel, he will clarify and reformulate the notion of "domestic dependent nation" because he believes that they are and must be an independent nation. He analyses all the treaties that the Cherokees had signed with the English. In the name of the pacta sund servanda principle, he will say that the Indians had been treated as independent nations by the English and that there is no reason for the treaties of the former English colonial power to be taken over. He emphasizes the need for recognition of the status of nations by the Indians, recognition of the right of the Indians to have their own government and recognition of the territory. The Cherokee tribe, and by extension the Native American tribes, are nations in their own right, and the American government, of course, must have a special relationship with these nations, provide protection and recognise them as independent nations. The Cherokee nation is therefore equal to the US federal state.
The Worcester v. Georgia decision is still considered today as the declaration of independence of the Native American nations. The Supreme Court did not carry much political weight. The day after Marshall made his decision overthrowing the Imperial Republic of America, President Jackson had this sentence: « John Marshall has made his decision; now let him enforce it! ». The imperial vision of the American Republic will continue.
The phrase "Empire of Freedom" is a rhetorical expression to intentionally or unintentionally obscure the real model that is being put in place, which is the model of an imperial republic. Jefferson spoke of Empire of Liberty at the Philadelphia Convention. This is not to describe a state of affairs, but the notion of Empire of Liberty is an expression with a rhetorical function to justify the model of an imperial republic that was being put in place in the 18th century.
The ideology of Manifest Destiny[modifier | modifier le wikicode]
The tension between these two models is found and irrigates all American thought. This tension found in the Marshall decisions between the imperial model and the more isolationist and agrarian model can be found throughout the 19th and 20th centuries in the United States. These two visions of the American Republic are found throughout the 19th and 20th centuries. After Marshall, the heirs of Rousseau, Montesquieu and Smith lost the battle. This American Republic in its imperial version was established and imposed with a very strong imperial dimension and was ideologically consecrated in the Manifest Destiny of the United States. The ideology of Manifest Destiny is the main ideology of what will justify the extension and westward expansion of the American Republic.
The ideology of Manifest Destiny that is being put in place and which allows the imperial dimension of the American Republic to emerge is an ideology based on four ideas:
- It is a reiteration of the Monroe doctrine;
- the necessity of marching and expanding towards the West: there is a need to conquer neighbouring spaces and territories because the United States of America has a great destiny ahead of it;
- the democracy of the American settlers is the modern model of democracy and above all must be defended and promoted in the still virgin spaces of what will become the United States of America;
- the United States of America is the promised land of modern times: it is the religious dimension of Protestant Puritanism which thinks of itself and sees itself as the chosen people. When one reads all the great religious texts of the 17th and 18th centuries, the sermons of the great American thinkers, the notion of "chosen people" appears, which has a major role to play in humanity. We find this dimension in some of the texts of Calvin and the Protestant radicals being the very strong idea that the Protestant is the new chosen one who is destined to play a major role in the history of mankind.
From 1840 onwards, the wars and the expansion towards the West led to the war against Spain and Mexico, which occupied all of Texas and parts of New Mexico. The wars against the Spanish and Mexicans from 1840 onwards followed one another and were fought in the name of an idea of cultural and racial superiority of the United States. To be rigorous in terminology, there was not yet in 1840 - 1845 an "American empire" as such. There was a westward expansion, the establishment of a model republic that claimed to be imperial, but it is wrong to speak of an American empire. The ideology of Manifest Destiny is accompanied by two central ideas throughout the 19th century that constitute the American identity on two pillars, which are the idea of the pioneer and the idea of the frontier. It is the triumph of the autonomous individual and the autonomous citizen. From 1840 - 1845, Americans felt they had become the modern civilization.
O'Sullivan was an obscure literary critic, but he found a name for the ideology that marked the American imperial model which is the ideology of Manifest Destiny. The title "Annexation" shows that what was at stake at that time was the attachment of Texas to the United States of America. The settlers had occupied northern Texas and gradually harassed by Mexican troops who saw very badly the American, Protestant and white settlers occupying the lands of northern Texas. These Americans occupying North Texas asked for the protection of the American government and to be attached to the United States of America. The question that arises is a political one: should this territory be annexed and if "yes", why? These arguments constitute and form the basis of this ideology of Manifest Destiny.
« Texas is now ours. »
In the first lines of this second paragraph, a completely Republican language is used in which any East Coast American can recognise himself. Speaking of the Texas convention which included the Texan meeting, O'Sullivan said:
« She comes within the dear and sacred designation of Our Country; no longer a ‘pays,’ she is a part of ‘ la patrie;’ and that which is at once a sentiment and a virtue, Patriotism, already begins to thrill for her too within the national heart. »
"Patrie" is the republican term for "nation" because it is the republican equivalent of "nation". These are words that belong to the republican language.
« Let their reception into "the family" be frank, kindly, and cheerful, as befits such an occasion, as comports not less with our own self-respect than patriotic duty towards them. »
Texas is "ours", he asks for Texas to be attached to the United States of America. Will appear what will become the ideology of American thought.
« […] limiting our greatness and checking the fulfillment of our manifest destiny to overspread the continent allotted by Providence for the free development of our yearly multiplying millions. »
There is the idea that providence has given the United States a "manifest destiny" over the world to flood the world with its light.
« […] has not been more general even among the party before opposed to Annexation, and has not rallied the national spirit and national pride unanimously upon that policy. »
It is interesting to see the arguments in this text to justify the annexation. The United States has a destiny to conquer the world and go west.
« Themselves already of mixed and confused blood, and free from the "prejudices" which among us so insuperably forbid the social amalgamation which can alone elevate the Negro race out of a virtually servile degradation even though legally free, the regions occupied by those populations must strongly attract the black race in that direction; and as soon as the destined hour of emancipation shall arrive, will relieve the question of one of its worst difficulties, if not absolutely the greatest. »
He speaks of the fact that the United States will be able to bring modern civilisation to the "black race" in particular. The whole end of this paragraph aims at affirming the superiority of the "American race" and by the same token to justify the adventure and the conquest of Texas.
« Texas has been absorbed into the Union in the inevitable fulfilment of the general law which is rolling our population westward, the connexion of which with that ratio of growth in population which is destined within a hundred years to swell our numbers to the enormous population of two hundred and fifty millions (if not more), is too evident to leave us in doubt of the manifest design of Providence in regard to the occupation of this continent. »
Texas is part of the United States in the name of the general rule that the United States will go west anyway. O'Sullivan has a vision that the march westward will bring civilization, but more importantly will allow the American population to grow to 250 million and more.
« California will, probably, next fall away from the loose adhesion which, in such a country as Mexico, holds a remote province in a slight equivocal kind of dependence on the metropolis. Imbecile and distracted, Mexico never can exert any real government authority over such a country. The impotence of the one and the distance of the other, must make the relation one of virtual independence. »
The argument is that « Mexico never can exert any real government authority over such a country ». Mexico City is so far away from Texas and California that they cannot exercise their authority so far away at the risk of falling into tyranny, it can only "retain a military dominion". It is the argument of distance that is the inability of the Kingdom of Mexico to control such a distant territory.
« And they will have a right to independence - to self-government - to the possession of the homes conquered from the wilderness by their own labors and dangers, sufferings and sacrifices - a better and a truer right than the artificial title of sovereignty in Mexico, a thousand miles distant, inheriting from Spain a title good only against those who have none better. Their right to independence will be the natural right of self-government belonging to any community strong enough to maintain it - distinct in position, origin and character, and free from any mutual obligations of membership of a common political body, binding it to others by the duty of loyalty and compact of public faith. This will be their title to independence; and by this title, there can be no doubt that the population now fast streaming down upon California will both assert and maintain that independence.
Whether they will then attach themselves to our Union or not, is not to be predicted with any certainty. Unless the projected railroad across the continent to the Pacific be carried into effect, perhaps they may not; though even in that case, the day is not distant when the empires of the Atlantic and Pacific would again flow together into one, as soon as their inland border should approach each other. »
It is implied that we are going to give them the opportunity to live and that we are going to bring them the democracy that is the « And they will have a right to independence - to self-government - » allowing these persons to exercise the « right to independence will be the natural right of self-government belonging to any community strong enough to maintain it— distinct in position, origin and character, and free from any mutual obligations of membership of a common political body, binding it to others by the duty of loyalty and compact of public faith ». There is the idea that the annexation of Texas will somehow bring the major and founding principles of the American republic to this part of the world.
This text takes up a certain number of attitudes, variables and parameters that make up the American identity that we still find today. In 1840, O' Sullivan wrote : « Whether they will then attach themselves to our Union or not, is not to be predicted with any certainty. Unless the projected railroad across the continent to the Pacific be carried into effect, perhaps they may not; though even in that case, the day is not distant when the empires of the Atlantic and Pacific would again flow together into one, as soon as their inland border should approach each other ». There is the condition that the Pacific and Atlantic coasts must be united. O'Sullivan uses the word "empireS" in the plural. Certainly, on the Atlantic side, the American imperial republic has its capital and its states, but there was at that time in the Pacific region, from Colorado to northern Arizona and a little bit of California, the Comanche empire, which occupied an immense and structured area.
« soon to be followed by Annexation, and destined to swell the still accumulating momentum of our progress. And whosoever may hold the balance, though they should cast into the opposite scale all the bayonets and cannon, not only of France and England, but of Europe entire, how would it kick the beam against the simple, solid weight of the two hundred and fifty, or three hundred millions—and American millions—destined to gather beneath the flutter of the stripes and stars, in the fast hastening year of the Lord 1845!. »
God's will must be done. This is truly an almost religious text. It uses republican language, but also almost religious language.
On the ground, this republic with an imperial dimension was going to begin from the end of the 19th century to apply the idea of the Manifest Destiny by becoming a colonial power from 1895 and 1898, notably with the entry into the war against Spain, the occupation of Hawaii and the Philippines, and they were going to install protectorates in Puerto Rico and Cuba. At the end of the 19th century, the model of an imperial republic began to go beyond the simple continent and the simple country.
This trend towards expansionism was going to be debated from the end of the 19th century because American identity was going to be debated. American expansion coupled with the massive immigration of certain American communities, including the Irish, forced the United States to ask itself the identity question of who it was and what its destiny as a republic was. Fundamentally, at the beginning of the 20th century, the United States was obsessed with its model of a republic and there was a real tension between the "isolationists" and those who favoured American "expansionism" who were the heirs of manifest destiny. This tension is still present today. The expansionists base their vision of the republic on the ideology of manifest destiny, but also on an extremely important work. In 1890, Admiral Mahan published The Influence of Sea Power upon History, which of course defended the idea that in order to become a complete empire to the end of the imperial dimension, the United States must have one fundamental thing, which is a navy and a fleet that can dominate the oceans. The debate from 1895 onwards gained momentum because it aimed to defend the establishment of an extremely powerful navy, which would be the case from 1908 - 1910.
The model of an imperial republic in the 20th century was contested by the isolationists and defended by the supporters of American exceptionalism. From the beginning of the 20th century, the United States became the dominant power in Central America and the Caribbean, but at the same time it was wary of European empires, which it denounced. The First World War is an illustration of this paradox, in which the expansionist vision of the American Republic was imposed because the United States became the main supplier to France, Great Britain and Italy and at the same time it was going to defend a certain neutrality. The tension in American foreign policy between isolationists and those who think that the United States has a mission, whether it is to spread free trade in the economic order or democracy in the political order, is always present.
The Americans are trying to challenge European empires. There is always the paradox between fighting European empires while defending an imperial vision of the republic economically and politically. This vision was enshrined as early as 1945 and President Roosevelt's rejection of isolationism marked the entry of the United States into the role of superpower.
American Empire?[modifier | modifier le wikicode]
Today can we speak of an American Empire? Institutionally, formally, there is no American Empire. An empire is a domination exercised over territories and populations with various legal statuses, which is not the case with the United States. An empire like Rome is made up of different entities that occupied different parts of Europe and left their identities to the different protagonists. The "American Empire" is an expression that originated in the years 1950 - 1955. The United States is not formally an empire. The expression has a very specific political function being used by enemies of the United States of America who try to equate American power with the former European empires by saying that the United States of America behaves like the European colonial powers. With the fall of the Soviet Union in 1989, the term "Empire" was re-instrumentalised to refer to the United States as the largest and most powerful country in the international order. The hegemonic role of the United States is the result of its dominance in the economy. Today, the United States has many military bases and alliances, but does not intend to conquer new territories. The term "imperial republic" is more accurate in both the legal and political order.
At a time when the United States is moving westwards, what is happening with the European empires? The imperial model in Europe asserted itself very strongly from the 1840s onwards, particularly in France with the conquest of Algeria and then the conquest of India and Africa by the English, Germans and Dutch. If the 19th century saw a resurgence of European empires, the model of French, English and Dutch empire from the end of the 19th century and the beginning of the 20th century gradually declined. First of all, there is the First World War, which is a referent launching the beginning of the decline of European empires and European imperial ideology. 1917 is the proclamation of the right of peoples to self-determination and in a way Wilson's Fourteen Points delegitimizes European imperial ideology. In Europe, Grotius and Vattel had won in terms of thought and philosophy, but this model will decline. It does not fade away, but it takes on another form. As early as the 1900s, the great French, English and Dutch empires changed. Some countries will obtain greater independence. Every European empire is going through a moment of change. The empire model is changing.
The European Empires[modifier | modifier le wikicode]
There is great continuity in the English model from the 17th century onwards, but from 1920 onwards. We realise that Smith is right and that the English empire is "over-extended". At the same time, the English developed and established and allowed a local elite to take power. This local elite gradually competed with the English elite on the spot. The local elites gradually became nationalists demanding their emancipation. In the United States and in England, an anthropology was set up with the discovery and valorisation of indigenous cultures. From 1910 onwards, in the English academic and intellectual world, there is a very important development of publications describing and valuing the indigenous cultures dominated by the English Empire. There is an awareness of indigenous cultures, a valorisation of their culture and a work of undermining the English imperial ideology. The British Empire gradually declined, especially after the Second World War.
The French model is also evolving. France lost its Second Empire in 1763 with the Treaty of Paris, in which England annexed a large part of the French territories. The question of a French empire resurfaced from 1820 onwards with the question of Algeria. From 1820 onwards, France regains an empire through parts of Africa and Asia. The evolution of the French empire is less marked than in Great Britain, which evolved differently. The first is that the promotion of local elites in the French Empire from 1830 and 1840 was different from the British elites in terms of civilising and francizing it by assimilating it into French culture. In the textbooks available to schools in the countries conquered by France, there is a use of French history as a vehicle of assimilation before giving them independence or administration in their state or regime. The French Empire never adopted the principle of 'self-government'. It was very difficult in the French Empire to have or obtain any form of independence or at least autonomy because France viewed its empire in an almost patrimonial way. The English have a much more utilitarian vision of their empire.
The independence of Indonesia, since the Dutch still occupy Indonesia in 1930, the Dutch quickly accepted that political parties could come into being. They gave some autonomy to the local elites. There was a desire to maintain economic control over the Dutch colonies. In other words, the Dutch kept and inserted all their colonies in a system of laws that in a way guaranteed the monopoly and the economic link between the capital and the colonies.
Basically, from 1920 onwards, a decline in European empires was set in motion with the rise of the American imperial republic, but above all, from 1920 onwards, an international order was established based on a division between two categories of states. The great European empires declined and gradually declined from the beginning of the 20th century, the American imperial republic emerged little by little. This reality had to be organised between two types of state, namely between "civilised states" and "uncivilised states". Between the end of the 19th century and the beginning of the 20th century, Grotius and Vattel won in a way, the European empires were in decline, the American empire emerged, but the ideology of Vattel and Grotius prevailed because all international treaties from 1885 onwards no longer divided states between "empire" and "nation", but between "civilised states" and "uncivilised states".
D’une certaine manière c‘est un ordre international binaire qui se construire peu à peu. Les grands empires, les grandes idéologies impériales ne se sont pas imposées là où on pensait qu’elles s’imposeraient, mais elles se sont imposées dans le droit international en divisant entre « États civilisés » et « États non civilisés ». Il y a une égalité formelle, mais une inégalité de fait entre les États. Jusqu’en 1970 – 1975, les grands traités seront divisés entre un droit pour États civilisés et un droit pour les États non civilisés. L’idéologie impériale qui décline est remplacée par une vision binaire du monde qui va se cristalliser dans la doctrine de la théorie d’intervention d’humanitaire. Le modèle d’empire à idéologie impériale d’inspiration grotienne n’a pas complètement disparu, mais elle s’est transformée dans le droit international et continue à marquer la vision de l’ordre international. Le concept d’empire ne disparait pas, mais se transforme se matérialisant en droit international que l’on retrouve dans la théorie d’intervention humanitaire.
The question that has haunted us is the question of the concept of empire, but above all whether a republic can be an empire and whether a democracy can be an empire.
« Understand that our city enjoys the most beautiful reputation in the world, because it does not allow itself to be dominated by misfortune and that it has spent more than any other city in war, in men and in effort; ...] Hatred does not last long, but the glory of the present, with the glory of the future, remains forever in the memory. »
Yes, a democracy can be an empire. Pericles launches into this tirade saying that the principle of being a republic and an empire are not contradictory.
Empire is an ancient fact in history. The Roman example still haunts Americans today. Washington is endowed with capital and senators. American popular culture is saturated with Roman references that are much more imperial than republican, and the similarities between the two empires are not insignificant:
- the encampment of the Roman legions all over the world is strangely reminiscent of the American bases all over the world;
- the strength of both the Roman and American systems rests and relies on a significant logistical and military capacity;
- Washington, like Rome in the past, functions with pressure groups, lobbies, a form of clientelism;
- the American way of life, like the Greco-Roman culture at the time, had a considerable power of attraction or repulsion.
Comparison is not right. The two empires are still based on significantly different values. The idea of empire has not disappeared. Since Rome, the imperial question has haunted the political universe of Westerners, but not only as it does in the case of China. For some, empire is the absolute good, for others it is the evil that corrupts men. Human reality means that empires or imperialism have always been the driving force of history. The current political system has hesitated between the imperial adventure and the restoration of balance. To study the history of empires is to study a past that is not entirely past and which has partly shaped our world, its memory and its present difficulties, and which has not finished haunting our political imagination.
The theory of the intervention of mankind[modifier | modifier le wikicode]
With the right of human intervention, we find the tension between a desire to help and a desire of civilised states to impose a legal and political order. Rougier wrote La théorie de l'intervention d'humanité (The Theory of Human Intervention) in 1910 when Europe occupied and conquered a large part of Asia, Africa and the world. The United States also drove the Spaniards out of Cuba and established themselves in several parts of the world. Rougier sums up the tension between the supporters of empires and those who criticised the imperial ideology before President Wilson's right of self-determination in 1917. This text condenses all the contradictions and paradoxes of those who want to do the good of their country in the name of an ideology of human intervention that raises the question of the legal, political and even philosophical foundations of the responsibility to protect, known as the right of humanitarian intervention. Rougier will attempt to explain the right of humanitarian intervention and find justifications for it. This text is important legally because the arguments found in the text can be found in international treaties up until 1974 with the division between civilised states, semi-civilised states and barbaric states.
Rougier is a very great legal theorist and tries to theorise the idea that in some cases human intervention is justified. The whole question is going to become by whom, on what legal basis and how to apply this right of intervention. It reveals the contradictions of the concept of empire supported by legal theorists and philosophies, but which is also still defended under different aspects? The right of intervention is undoubtedly a remnant, a distant extension of the idea that the international order must be dominated by certain actors, rightly or wrongly. This international order dominated by certain actors has its roots in the approach that Rome had adopted in order to control and conquer part of what was to become Europe. Rougier is trying to theorise the right of intervention by humanity.
This text points out certain fundamental principles of law, in particular the principle of the equality of States. The question given to Rougier is whether there are situations in which humanity is flouted requiring the intervention of States. This implies defining what is going to define the intervention of humanity, which will undoubtedly involve calling into question the principle of equality between States, but also creating the conditions for the intervention itself. Three questions structure this text :
- who defines what humanity is?
- who has the right to intervene?
- how can we intervene?
Rougier has to present what he means by States and give a definition not of the State, but of States that reveals how his era sees the international world. Very classically, like Grotius, he divides the world into three categories of states:
- civilized states;
- the semi-civilised states;
- the barbaric states.
« Civilised nations, whose political order is based on respect for the law and the guarantee of citizens' freedoms, are moved by the spectacle of tyranny and arbitrariness that less policed governments bring to the world. The further down the civilizational ladder one goes, the more one obscures the fundamental notion among the custodians of sovereign power that authority is merely a means available to governments to fulfil a function, a function of ensuring the progress of a people by means of order and law. »
Rougier begins by confirming that the world is divided into three categories of States and that public international law must be designed for these categories of States. In the semi-civilised States there is Japan and China. The categorisation of States is carried out by Rougier from the beginning of his article.
« As for states that pride themselves on the title of civilised, they are not immune from failure. Their civilization is subject to eclipses. Under the influence of political or religious passions, governments too often forget to fulfil their mission of order and justice towards certain citizens if they themselves do not expect their lives, freedom or property to be respected. To cite examples would almost be to retrace the political history of Europe, be they examples of revolutions such as the Terror in France, examples of insurrection such as the crushing of the Hungarians by Austria in 1848, examples of religious persecution such as the legal proscription measures enacted against the Israelites by the Russian Federation or Romania. »
Rougier is dependent on the European vision of the 1840s and 1850s, which offers a historical justification for its approach. This article does not only have as its background the desire to find and theorise the intervention of humanity. Rougier's approach is based on historical experiences that Europe has lived and that he has lived through. First of all, there is the question of the East, which is the massacre of Lebanese Christians by the Ottoman Empire and by certain Druze communities in what was called Mount Lebanon. Rougier writes being very much marked by the question of the East. He also deals with the Cuban question, Bulgaria and Crete. We see the role of the gate of the Ottoman Empire whose brutal intervention marked the Europeans. We are in a context where there have been massacres of essentially Christian communities. It is a context in which there have been a number of extremely important massacres that have left their mark on people's minds. Rougier has found a way to protect and defend a principle that makes it possible to avoid and prevent these massacres and to intervene.
« What practical results did these attempts to apply the theory we are dealing with lead to? »
Having denounced these massacres in the world did not change much, so we have to find a theory of human intervention to the question of who can decide on the intervention, what is the legal basis and who has the competence to apply it. Rougier presents the arguments of the non-interventionists and then announces and explains that it is necessary to be able to construct a theory that responds to what he calls the principle of humanity and the principle of authority.
On the contrary, the intervention of humanity is by disinterested hypothesis and does not suppose any direct and personal prejudice on the part of the intervener. Based on respect for the laws of humanity, the action is open to all those who believe themselves qualified to speak on behalf of humanity in the manner of an actio popularis.}}}
Rougier's entire approach is aimed at saying that the international legal order does not provide any legal basis for humane intervention , it must defend the laws of humanity  and there must be a competent authority agreed upon by all who can decide on an intervention . The two key words are "humanity" and "authority". One may ask what are the laws of humanity, what idea is the basis of the law of humanity.
Since the seventeenth century in law, there has been a tradition of natural law based on a number of axioms, the most important of which is that we are born as human beings with a number of natural rights that will later become what are known as fundamental rights. Somewhere attached to the human person are rights that are above the positive laws that are the laws of society. In philosophy of law, there are a number of traditions, including the naturalist tradition and the positivist tradition. The naturalistic tradition is the tradition which believes that above rights, above national legal orders, there is somewhere a natural legal order which defends the idea that to our person is attached what will become fundamental rights. Somewhere there is a part of each of us that we cannot touch. Somewhere there is something in our human person that is untouchable, something that is almost sacred and which finds its basis in the theory of natural law. Naturalists believe that there is a sacred dimension to our person that is above the laws and the different legal orders that belong to us in our own right. It is the proponents of fundamental law who are the heirs of the tradition of natural rights.
Rougier is a naturalist who believes that there are a certain number of "fundamental" rights attached to our person that cannot and must not be violated. The laws of humanity are the laws that encompass the sacred dimension of the human being. If we touch on certain aspects of the human being, we violate the natural law that constitutes our legal orders.
« Theory of human law and power-function. - Against the negative doctrine of human intervention there is a group of theories that recognise the right of states to use their authority in the service of justice and to prevent or repress certain abuses in neighbouring states. These theories are based on views that often differ according to the religious, philosophical or social tendencies of their authors. Sometimes they are reduced to mere assertions, but, despite these differences in form, they are all based on three essential ideas which can be synthesised into a single doctrine which we shall call the theory of human rights and power-function. This theory affirms the existence of a general rule of law that is binding on those who govern as well as those who are governed, superior to national and international law, which are merely particular expressions of it »
There are rules of law that are superior to national and international law. These rules of law are natural rights linked to the naturalistic vision of their authors. All supporters of natural law, those who belong to the tradition of natural law, try to maintain the relationship between law and justice, in other words try not to dissociate law and morals or law and justice. They start from the idea that law and morals cannot be totally dissociated. For a positivist jurist, it is perfectly possible to have an unjust right. Law and morals are two different things that some people want to put together and others want to discard. If one wants to put law and morals together, opponents ask whose morals and whose justice? This is why great legal philosophers have decided to separate the two. Rougier is part of this naturalist tradition which believes that law and justice cannot be dissociated, and those who have to define what is just or unjust are the civilised states.
« But the concept of natural law, which is much more moral than legal, did not allow sufficient precision to be achieved in determining the acts permitted or prohibited by this supreme rule. »
Rougier is a naturalist, he believes that the laws of humanity derived from natural law must be defended because law and justice cannot be totally dissociated.
« Which powers are competent to intervene with a government that violates the laws of humanity. »
Who can decide what is just and what is unjust, who can decide the violation of the laws of humanity. Rougier speaks of individual and collective intervention, which he prefers because it is more legitimate.
« By definition, the intervention of humanity is disinterested »
. It is for the good of humanity and justice that civilised states intervene. It will also call into question the principle of equality between States.
« Equality is not, as has been said, a fundamental right of States, it is the consequence of a de facto situation [...] For States as for individuals, the safeguarding of collective interests requires that there be leaders and leaders. Those who can put greater science, greater legal and social development, greater economic, financial or military power at the service of the community will have to be vested with legitimate authority over inferior states which can only follow a received impulse. »
There are cases in which we have to intervene, and at the same time we all have to accept that there are civilised states, semi-civilised states and barbaric states that in fact create inequality between states. This means that States have the economic and military power and a duty to intervene to protect the laws of humanity.
« The most flagrant international inequality is that between civilised and barbaric states A Negro kingdom can bring together all the constituent elements of political organisation: population, territory and government, and deserve the title of state on a par with the Russian Empire; but it is impossible without fiction to consider these two nations as equal in law, nor to accept that their sovereignties are equally respectable. »
There are states that can intervene in the name of justice defined by themselves, and other states must welcome civilization and civilized states. These arguments will be found in international law books in part of the 20th century.
« This tendency of the society of States to recognise for the benefit of some of its members a kind of legislative power seems to indicate precisely a slow and progressive legal consecration of their de facto pre-eminence. »
The "de facto" situation becomes a "de jure" situation. Rousseau had said "force does not make law", and Rougier replied "force may not be, but it is the fact that makes law".
« We would readily see this as recognition of legitimate authority over other States, a complex authority which includes vestiges of legislation, administration and jurisdiction. It is up to the powers that say the law to supervise its execution, to look after the general interests of the international community, to ensure that each government fulfils its duties towards its nationals. In Europe, it is exclusively up to the European concert to practise humane intervention with regard to other States. »
This text defends that there are a certain number of civilised States, bearers and defenders of the laws of humanity, which can intervene in world affairs in the name of natural rights and justice.
When he says: « The conclusion that emerges from this study is that it is virtually impossible to separate human motives for intervention from political motives and to ensure the absolute disinterestedness of intervening states ». The disinterestedness of States is in fact an illusion and it must be recognised: « We will not say, as Phillimore (1) did, that respect for human rights will never be more than an accessory motive for intervention; history has shown for the honour of humanity that it could be a principal motive, as it was during the French intervention in Syria. But it will never be a sole motive. As soon as the intervening powers are judges of the appropriateness of their action, they will judge this appropriateness from the subjective point of view of their interests of the moment ». What Rougier tells us is a fundamental axiom, some states more powerful than others have organised the legal order and international politics to be able to intervene for better or for worse.
This theory of human intervention is probably a way of giving a foundation to these interventions, but above all this text shows that the partisans of Grotius and Vattel have read their classics and the Grotian moment is still the one on which the international order is based. This text shows all the ambiguity, all the imperial dimension of what is now called the "right of humanitarian intervention". We must be aware that the right to humanitarian intervention and the right to protect are fundamental principles of international law, but we must be lucid about the sometimes somewhat imperial dimension of such principles.
Annexes[modifier | modifier le wikicode]
- "Annexation": The July–August 1845 editorial in which the phrase "Manifest Destiny" first appeared
- Hoffmann Stanley. Aron (Raymond) - République impériale, Les États-Unis dans le monde 1945-1972., Revue française de science politique, 1973, vol. 23, n° 5, pp. 1097-1100.
- 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
References[modifier | modifier le wikicode]
- Alexis Keller - Wikipedia
- Alexis Keller - Faculté de droit - UNIGE
- Alexis Keller | International Center for Transitional Justice
- THRONTVEIT, T. (2011). The Fable of the Fourteen Points: Woodrow Wilson and National Self-Determination. Diplomatic History, 35(3), 445–481. https://doi.org/10.1111/j.1467-7709.2011.00959.x