1

On Law, Democracy and Imperialism

Twenty-First Annual Public Lecture

Centre for Law and Society

University of Edinburgh

March 10-11, 2005

James Tully

Table of Contents

Prologue2

1. The Approach3

2. The Problem: Imperialism4

3. The re-emergence of the problem of imperialism5

4. The traditional critics: overlooking informal imperialism9

5. The first critics: overlooking the length and breadth of informal imperialism12

6. The second critics: overlooking the imperial features of the state system,

development, and institutions of global governance14

7. Kantian Imperialism20

8. Neo-Kantian Imperialism28

9. The third critics: self-determination, democratization and imperialism32

9.1 Self-determination33

9.2 International law democratization37

10.The fourth critics: post-colonial theory and imperialism43

11. Conclusion48

Prologue to the Lecture

I would like to begin my acknowledging by intellectual debt to my generous hosts - the ‘EdinburghSchool’ of legal and political theorists. Their work on constitutionalism has been a constant source of inspiration and insight to me over the last decade of trying to understand the topics we are to address today. Much of my own work has been a continuous dialogue with theirs. This lecture would not have been possible without that dialogue, even though they may be inclined to demur slightly from some of the directions I take it today. I have refrained from implicating them too deeply in the lecture by not referring explicitly to their work in the draft, but their influencewill be noticeable to all. I would like to mention in particular Jo Shaw, Neil Walker, Michael Keating, Neil MacCormick, Emilios Christodoulidis, and Stephen Tierney.

Tully: Law, Democracy, and Imperialism

1. The Approach.[1]

In his last lecture, entitled What is Enlightenment?’ the late Michel Foucault suggested that there is a broad tradition of critical and historical reflection on the present that stems from the Enlightenment and continues down to today.The aim of this form of critical reflection is not the development of a theory, the interpretation of an age, the location of the present in a story of world-historical development, such as modernization and globalization, or a specific solution to the problems that our age sets for us. Rather, it is a philosophical attempt to stand back from these other approaches a bit, and try to grasp the general form of the background problematization these other approaches take for granted and to which they are various responses.

A ‘problematization’ in this sense is, first, the hegemonic languages of description and evaluation in which aspects of the present have been rendered problematic and thematized, and, second, the corresponding practices of governance in which these languages are used and which have become problematic to those subject to them,becoming the sites of concrete struggles and so the object of research and response by various schools of thought.The characteristic way this tradition studies the languages and practices of a problematization and the rival solutions advanced to it is by means of a history or genealogy: what Foucault called ‘histories of the present’.

Finally, the aim of these historical and critical studies over the last 200 years, from Marx, through Nietzsche and Weber, and down to Collingwood, Gadamer, Said, Taylor, Foucault and Koskenniemi, is not to provide another solution or theory to the set of problems, but rather, to show the historical contingency and singularity of the languages and practices that constitute the horizons of the background problem itself. They function as horizons either because they are taken as a matter of course (habitual acceptance) or they are seen as universal, necessary and obligatory (normative acceptance). These horizons can then been seen as limits and so brought into the space of questions, rather than functioning as the horizon of questioning -- thus opening up the possibility of going beyond these limits and so thinking differently about the present: that is, thinking to some limited extent at the horizons of the present, rather than within these horizons.[2]

2. The Problem: Imperialism

I would like to engage in this kind of critical and historical reflection on one problematic aspect of our present: namely, the way in which the general character of the world order has been rendered problematic or questionable, the site of struggle on the ground, and the object of critical enquiry in the academy. Is this order best characterized as a Westphalian system of nation states, a Westphalian system of nation states modified by the UN Charter system, a cluster of processes of modernization or globalization, a network of global governance, a clash of civilizations, a struggle between North and South,a struggle between globalization from above and below, an emerging cosmopolitan democracy, and so on? Of course, thisgeneral kind of question has been with us since the 16th century.[3]

However, recently, we have seen the return of one of the oldest answers to this question: namely, that the global order is best understand as an empire or an imperial system of some kind or another. This is not only an academic question. It is a practical question in that millions of people understand themselves to be subjects of an imperial system and are either mobilizing to defend it or to resist it in their various struggles. In the academic literature, there is an explosion of studies of the present as an imperial system of some kind or another, and various rival arguments why one should be for or against imperialism. It is this form of problematization that I wish to explore: that is, the hegemonic languages and corresponding practices of governance that provide the horizons of this mode of disclosure of the present and the various responses that have been proposed pro and contra.

3. The re-emergence of the problem of imperialism.

One consequence of the expansion and intensification of the U.S. global strategy of war against terrorism since theterrifying attacks on the World Trade Centre and Pentagon in 2001 is that many scholars and public figures now speak of this global strategy as the new ‘U.S. imperialism’. However, the idea that the U.S. is an imperial power is not as recent as this new debate suggests. The dominant opinion of the SecondThird, Fourth and Non-Aligned Worldleaders during the Cold War was that U.S. foreign policy constituted a kind of imperialism based on military intervention and bribery. The majority of world population and U.S. population who opposed the war in Vietnam saw themselves as opposing U.S. imperialism. Moreover, the idea that the United States is a world empire of some kind has been an important and much-debated theme of U.S. historiography throughout the twentieth century, often beginning with the Spanish-American and American-Philippines Wars at the turn of the 19thc (although the theme goes back much further). The defenders of these wars of expansion spoke of them approvingly as ‘imperialism’ and this pro-imperial theme continued to be widely endorsed through the terms of Theodore Roosevelt and Woodrow Wilson, until Henry Luce, in his influential article of 1941, replaced ‘America’s Empire’ with the softer phrase ‘America’s Century’ – a phrase later adopted by Franklin Roosevelt and Harry Truman. The language of imperialism tended to recede to the margins of academic and public discussion after the war against Vietnam and the Cold War in 1989. It was replaced by the concepts of development and globalization until about 2002.[4]

During the brief post-Cold War period of globalization a number of scholars continued to analyze US global strategy in terms of empire: for example, the revisionist school of US historians from William Appleman Williams to Neil Smith and David Harvey;the long-standing European historical tradition of the continuity of imperialism throughout the 20thc headed by Wolfgang Mommsen; the scholars in the Marxist tradition in the U.S. around the Monthly Review;the conservative ‘isolationist’ historians in the U.S. such as Andrew Bacevich;the Dependency and post-Dependency school in Latin America; the post-colonial movement; the network of independent scholars and activists around Noam Chomsky; the scholars associated with the World Social Forum, such as Boaventura de Sosa Santos;critical international law scholars such as Martti Koskenniemi, Ruth Buchanan, and Richard Falk;Edward Said and the Subaltern Studies school in India;the ‘globalization from below’ networks; scholars associated with the New Internationalist or ‘local self-reliance movement’; the scholars associated with Immanuel Wallerstein’s Journal of World Systems Research; and a considerable number of younger historians of European and American imperial political theory.Then, the success of Empireby Michael Hardt and Antonio Negri in 2000 and the multidisciplinary discussion of its theses in 2001-2003 helped to bring these continuous academic discussions of imperialism back into the mainstream.[5]

Thus, there was a continuous discussion of U.S. imperialism throughout the period from 1990-2002, but the dominant discourse was one of globalization, neo-liberalism, neo-development, global governance, cosmopolitan democracy, post-sovereignty, the Washington Consensus versus the social democratic or ‘Rhineland alternative’, the international or cosmopolitan right to democracy movement in International law, and so on. However, since 2002 the idea that the present world order is best understood as an imperial order of some kind, with the United States as the primary but not exclusive hegemon among an informalleague or coalition of competing and cooperating leading actors (powerful states, transnational corporations, the International Monetary Fund (IMF), the World Bank (WB),international legal regimes, and so on), has come back to centre-stage, drawing the marginal literature on imperialism with it, and elbowing aside the globalization problematic to some extent.

Quentin Skinnerreckons that a conceptand its cognate language or vocabulary have achieved hegemonic statuswhenparticipants on all sides ofa debate employ the concept and the correspondingly language-game to disclose, describe, explain and evaluate a shared practical problem.[6]Imperialism is no exception. Both the defenders and critics use the term ‘imperial’ to describe the phenomenon they seek to commend or condemn, whereas during the Cold War the term ‘imperialism’ was used predominantly (but not exclusively) as a term of abuse: that is, by anti-imperialists.

First, while President Bush has stated publicly that ‘the United States is not an Empire’, this has not stopped his neo-liberal and neo-conservative policy analysts, speech writers and supporters from saying that it is and defending it as the greatest empire of all time (this voluminous pro-empire literature around the second Bush administration has its immediate roots in the policy document by Dick Cheney in 1992 advocating that the US should ‘rule the world’).[7]Second, there is a growing number of moderate liberals in the US, Canada and UKwho– much like the earlier liberal international law and international relations imperialists of the Wilson and Roosevelt era andof the Kennedy and Johnson era[8] -- use it in this commendatory way: Empire Lite, postmodern imperialism, liberal interventionism, humanitarian imperialism, democratic imperialism, American empire, colossus, the burden of the west, the savage yet necessary wars of peace, and a host of cognate terms grace the best-selling book lists and public pronouncements of influential liberal commentators.[9]Third, there is a growing body of literature that accepts the premise that the US exercises global imperial rule but criticizes it from a variety of anti-imperial perspectives.

In what follows I examine this critical literature in order to try to bring into focus the background language and practices that they share with their pro-imperial adversaries and thus function as the taken-for-granted horizon of their foreground disagreements. Each set of critics foregrounds and criticizes a range of phenomena they take to be imperial. They then present an alternative based on languages and practices of governance that they take to be non-imperial. But, in each case, I suggest that the allegedly non-imperial languages and practices on which their criticism and alternatives are based are neither ‘outside’ of contemporary imperialism nor the means of liberating us from imperialism. Rather, in each case, both the languages and the practices they presume to be external to imperialism are internal to, or part of, contemporary imperialism. Another way of putting this point is that the range of phenomena that each set of critics foregrounds as ‘imperial’ is not the entire imperial ensemble but only an aspect of it. So, what they present as an alternative is, rather, another aspect of imperialism that they did not foreground in the course of their criticism but left unexamined. So, what we see by the end of the investigation is that many seemingly non-imperial practices and their corresponding languages, such as democracy and international law, are internally related to imperialism. This is not the conclusion I wished to reach and I hope you will show me that I am wrong.

4. The traditional critics: Overlooking informal Imperialism.

Before I turn to this critical literature I would like to mention one prominent response to this imperial problematic as a whole. This response is especially pronounced among traditional state-centred legal and political theorists. They argue, or more commonly assume, that there is not an imperial order today and carry on a traditional form of legal and political theory that takes for its horizon the independent nation state, the international system of independent nation state, or the modification of this ‘Westphalian’ framework by the United Nations Charter and new forms of global governance. This well-established framework gains strength from the widely-held assumption in the late-twentieth century that a necessary criterion of imperialism is the possession of colonies. Since the world went through a period of decolonization, independent state building and democratization in the mid twentieth-century, and thus entered into a post-colonial period after the 1970s (or after 1989 in the case of the land-based Soviet empire), then the present post-colonial period of 1970-2005 must be, by definition, a post-imperial period.

The presumption that imperialism ends with decolonization is reinforced by the fact that international law recognizes formally equal and independent states, and this form of recognition seems to exclude the possibility of imperialism. The global governance literature further entrenches the presumption by presenting global governance as a transformation of a pre-existing system of independent states, and thus two steps away from imperialism. Moreover, the system of independent states is often projected back to 1648 by characterizing it as a Westphalian system of states, thereby overlooking the last 400 years of European empires and colonies.

However, the assumption that imperialism always entails colonies is false. One of the major forms of imperial rule in the West has been non-colonial: that is, the tradition of informal imperial rule over another people or peoples by means of military threats and military intervention, the imposition of global markets dominated by other states, and a host of other informal techniques of legal, political, educational, and cultural rule, without the imposition of formal colonial rule. Indeed, the best and most-analyzed example of informal imperialism is the imperial rule of European powers, especially Britain, over Africa and Latin America in the late nineteenth century, at the height of the second long phase of European colonial imperialism.[10]

More importantly, when the U.S. turned to overseas economic expansion in 1898-1903 (into Latin America, South America and China), the policy debate was between those who favoured colonial imperialism (as in the Philippines, Puerto Rico, and the Virgin Islands) and those who favoured non-colonial, informal imperialism by means of military bases (as in Guantanomo Bay in 1901), economic power and military intervention whenever necessary to protect and extend US economic interests. Charles A. Conant summed up the options and put the case for informal imperialism in 1898:[11]

Whether the United States shall actually acquire territorial possessions, shall set up captain generalships and garrisons, [or] whether they shall adopt the middle ground of protecting sovereignties nominally independent, or whether they shall content themselves with naval stations and diplomatic representations as the basis for asserting their rights to the free commerce of the East, is a matter of detail…. The writer is not an advocate of “imperialism” from sentiment, but does not fear the name if it means only that the United States shall assert their right to free markets in all the old countries which are being opened up to the surplus resources of capitalistic countries and thereby given the benefits of modern civilization.

As the horrors of the U.S. war against the Philippine nationalists who had supported them in their war against colonial Spain unfolded, the defenders of non-colonial imperialism won the debate.[12] They justified it in the terms Conant presented, the ‘Open Door’ policy of Secretary of State John Hay, and a series of ‘corollaries’ to the Monroe Doctrine of 1823 that gave the U.S. the right to intervene to open the doors of Latin American countries to ‘free trade’dominated by U.S. firms, against those who tried to protect their own economies from foreign control.This doctrine and language of informal imperialism, freedom as the opening of doors to free trade dominated by U.S. corporations, and so to the spread of‘modern civilization’, was repeated by Theodore Roosevelt in the first decade of the twentieth century, Woodrow Wilson in the second, and Franklin Roosevelt in the 1940s. As Andrew Bacevich and Neil Smith have shown in detail, expanding the earlier scholarship of Charles Beard and William A. Williams, this free trade ‘imperialism without colonies’ has been the acknowledged form of global rule exercised by the United States for over a century and it is defended in these terms again today, yet unknown to current legal and political theorists, who continue to write as if imperialism is a thing of the distant past.[13]