College Quarterly
Spring 2006 - Volume 9 Number 2
Reviews Empire’s Law: The American Imperial Project and the ‘War to Remake the World’
Amy Bartholomew, ed.
London: Pluto Press and Toronto: Between the Lines. 2006.

Reviewed by Howard A. Doughty

Anthropologists and historians who study the law as it has developed over the course of human history have some very perceptive things to tell us about the evolution of formal legal institutions, their rule-making functions in societies as they change from tribal into slave, feudal, mercantile, industrial and, now, postmodern political economies, and the way in which they relate to other social institutions—religious traditions, family structures, the concepts of human rights and private property, and so on.

If we are fortunate to have learned from them, they are also fortunate to have at hand an enormous quantity of research materials from which to work. These include statutes, court decisions, government records, marriage agreements, commercial contracts and, almost from the beginning, personal and public letters that attest to literate peoples’ interest in legal affairs. Thus, analysts of criminal and civil law alike are able to dig through dusty old documents to learn about Hammurabi’s Code, Plato’s feelings about the trial of Socrates, Cicero’s assessment of Roman prosecutorial speeches in the 1st century BC, the origins of Sharia Law, the impact of England’s “Black Acts,” the number of “Bokkerrijders” hung, garroted, decapitated or “broken on the wheel” in Germany’s eastern Meuse Valley between 1741 and 1748, changes in agricultural law in colonial Uganda, Henry Campbell Black’s 19th century dictionary definition of “mens rea” (it hasn’t changed), or Lord Black of Crossharbour’s opinion of American jurisprudence now that he has become one of its people of interest. They are all there. I know. I’ve looked them up.

Not so easy is the study of international law. For one thing, there is a lot less of it. For another, unlike national courts that deal with everything from child custody cases to torts, intellectual property rights and criminal offenses, there is no sovereign world government that all nations must obey, no authoritative judicial system that all countries must respect, and no global law enforcement agency to apprehend offenders and to enforce legal decisions.

There has been plenty of talk, of course, and even a little action. Great thinkers from St. Augustine of Hippo (who, in the 5th century, treated us to the concept of a “just war” in his book, The City of God) to Hugo Grotius (who, in 1625, published a three-volume treatise on The Law of War and Peace) have outlined, often in some detail, what they think international law should be. Great politicians and diplomats have tried to put their ideas into practice. Out of their combined ideas and applications have come the United Nations and its noble 1948 Universal Declaration of Human Rights, the various Geneva Conventions, innumerable treaties and trade agreements, lots of resolutions in favour of peace and justice, and a few functioning bodies mandated to regulate international transportation, communication, migration, environmental concerns and, perhaps most importantly, trade. Some work rather well. Regulation of International Civil Aviation, the Law of the Sea and, of course, the granting of diplomatic immunity for foreign service employees who transgress the laws in the countries to which they are posted are generally accepted. As well, dispute mechanisms to resolve disagreements of all sorts are in place, and some of them also seem to do well. In the alternative, effective rule-making, rule-adjudication and rule-enforcement are limited to areas in which it is demonstrably in the interest of all countries to co-operate and in which questions of national sovereignty can reasonably be expected to take a back seat.

The principal problem is that, in the absence of an international authority with all the institutional mechanisms that independent states normally have at their disposal, compliance with international rules is largely a matter of choice. So, although the recent decision of the United States Supreme Court that declared US military tribunals dealing with certain alleged “terrorists” to be unconstitutional may yield far-reaching effects, the overall subservience of American governments to the will of the international community depends solely on the fact that the US voluntarily agreed to accept certain parts of international law and made that acceptance part of its own legal system. In some cases this acceptance is withheld. In others it is ignored when convenient. Global regulations apply only by consent and that consent is sometimes precarious. Thus, when the United States refuses to accept the authority of the International Court of Justice and denies the possibility that any of its citizens are subject to its jurisdiction, it faces no penalty more severe than popular disapproval in other countries and an occasional disgruntled letter to the editor of newspapers at home. No American accused of war crimes, for example, is apt to be surrendered to The Hague anytime soon.

International law has evolved primarily since the 1648 Peace of Westphalia ended the Thirty Years War, and more or less officially kick-started the modern world of autonomous, self-governing nation-states. It has become a matter of greater urgency since the end of World War II, the Nuremburg trials and the events and trends that have subsequently shaped what is fashionably called a global society.

This new world (dis)order and the problems that it poses have resulted in the creation of the anthology under review. Exactly what is going on is a matter of much disagreement. To some, we are on the cusp of a universal, homogenized, technologically mediated culture that is poised to exterminate local identities as national boundaries become porous and national sovereignty declines according to the demands of the World Trade Organization. Differences are said to be in decline. McDonalds and re-runs of Dallas are ubiquitous. We are being forced into the centre of an increasingly dense monoculture in which exotica become purely recreational, and people of all nations indiscriminately access an uncensored Internet (except, of course, in China—but, give it a little time). Call this the centripetal theory.

Others, taking seriously the notion of the clash of cultures, fret about ethno-religious enthusiasms, and take note of new nationalist movements that seem on the rise almost everywhere. Think Chechnya. Think East Timor. Remember Biafra. Attachments to local identities threaten to tear the world, or at least some regions in the world, apart. Whether in the form of various jihads or the preference of some South American nations to elect government that annoy President Bush by saying unkind things about the hemispheric Free Trade Agreement of the Americas, it seems that some countries are taking a stand (perhaps of the “last ditch” variety) against the fate that Marshall McLuhan predicted was in store for them. Call this the centrifugal theory.

Still others wonder what the fuss is about. Imperialism is about as old as what we call civilization. Tribalism is even older. So, while technology has accelerated the capacity of some human beings to do damage to others of our species, the fundamental grammar of hostility is unchanged. If there is tension between those who would remake the world in their own image and those who would resist in defence of their own “otherness,” so be it. It was ever thus.

As a result, the uncertain place of international law in these allegedly new global relationships, whatever they may turn out to be, is problematic. One thing, however, is not: the destiny of international law and almost everything else that affects the peoples and nations of the world is, at least temporarily, most seriously influenced by the economic, political and military posture and performance of the United States. The “one remaining superpower” may find itself challenged, of course, when over one billion Chinese start exchanging their bicycles for SUVs on an even more massive scale than at present; for the time being, however, it is the American hegemon that must always be taken into account.

Faithful readers of the reviews in The College Quarterly will have noticed that many of the books recently discussed in this section have focused on the United States, and especially on the place of the USA in the framework of globalization. If this is an error, it is not an unconscious one. Our mandate is to deal with issues of college education, of course, but it is also to examine those issues in a larger context. Given the context, corporate control (and its inevitable allies and adversaries) remains the most important element of international and domestic political economy. Currently, the geographic and cultural centre of that political economy is located in the USA. Accordingly, everyone both inside and outside the US must be attentive to its ideas and actions. Everything else from the banal (the performance of professional sports teams and teenagers’ shifting musical tastes) to the aspirantly sublime (the high arts, the rarefied sciences and transparently transcendental spiritual quests) takes second place.

To address the law, and the possibility of bringing lawless political regimes, terrorists, freedom fighters, insurgents, counterinsurgents, rogue militias and multinational corporations into some sort of rule-based system is of interest to anyone with even a faint concern for human rights or, for that matter, a habit of producing or consuming goods and services in a world market that includes the purchase of cheap shirts at Wal-Mart and expensive tanks of gas from the international petroleum cartel.

In Empire’s Law, Amy Bartholomew responds to those interests. She has constructed a remarkable anthology. Her contributors include an extraordinary array of justly celebrated intellectuals and practitioners in the field of international affairs. Her list of contributor include people such as Jürgen Habermas, the most prominent of the “second generation” of the Frankfurt School and arguably the world’s most renowned critical theorist. Present as well are the famous British historian David Coates, international development expert Samir Amin, constitutional authority Andrew Arato, former UN officials Denis Halliday and Hans von Sponeck, jurist Ulrich K. Preuss and a number of other distinguished observers of the international legal system’s successes and failures, all ably supported by some of Bartholomew’s colleagues at Carleton University in Ottawa.

The substantive focus is upon recent American activities on the world stage, and their implications and ramifications for what some regard as the tortuously slow development of international legal norms and institutions. More specifically, the centre of attention is upon Iraq.

Though it might offend the current crop of leaders in the English-speaking democracies—notably Mr. Bush, Mr. Blair, Mr. Howard and Mr. Harper—the authors pull no punches. Whatever its ex post facto justifications, the stated pretext for attacking Iraq—the imminent threat of unleashing weapons of mass destruction—was fraudulent. The overthrow of Saddam Hussein’s regime and the occupation of the country were illegal at the beginning and remain so today. To that, there can be no serious objection.

Supporters of the war may be correct to claim that its various subsequent and subsidiary motives are good and proper. Some point to the rational and self-interested economic consideration of securing energy resources. Others identify the desire to spread democracy to a part of the world in which that commendable form of government has been noticeably absent. Some speak of the benefit of ridding the world of a vicious tyrant. Such rationales can be supported from one or another moral point of view, no matter that the consequences are far different than the intent. War boosters may be correct to think that the available justifications adequately explain why the attack occurred, no matter how incompetently the occupation was handled, how blind the invaders were to the inevitability of an insurrection and the outbreak of civil war, or how indifferent the occupying forces have been to the civil population and the practical consequences that seem certain to befall the Iraqi people. “Stuff happens.” What the “hawks” cannot sensibly deny is that the war was and is a gross violation of international law.

Of course—and this is an important element in the book—violations of international law are common and violators are rarely punished. The United States is not now, never was and never will be the only sovereign state to willfully and even boastfully defy international law when it is in its perceived national interest to do so. Few countries, however, have more consistently and more frequently argued their sovereign right to go about their business unfettered by international restrictions and unencumbered by international agreements than the United States. Its top officials have declared its right to undertake unilateral proactive invasions of other states, whereas the UN explicitly holds that no such hostilities may be undertaken except in response to aggression or impending aggression, and then only with the expressed formal approval of the United Nations itself.

The position of the current US president regarding the attack on Iraq is legally untenable. Its Attorney-General has contemptuously dismissed the force and effect of the Geneva Conventions as antique and quaint (though, as mentioned, its own Supreme Court has recently taken a different position). In these matters, current US office-holders are plainly mistaken.

To denounce illegality in the absence of a comprehensive and effective legal system, however, is merely a moral conceit. As long as any nation has the will and the power to thumb its collective nose at the law, no remonstrating will do more than give emotional solace to those who protest the misconduct.

This is where Bartholomew’s book comes in.

The book begins with an analysis of the “American Imperial Project.” American imperialism—now frankly admitted even by defenders of American actions—is a bit of a puzzle. The United States has had an ambiguous attitude toward empire from the outset. Ostensibly born of a struggle against 18th-century British imperialism, the US promptly went about constructing an imperium of its own. From the Louisiana Purchase of 1803 to the promulgation of the “Monroe Doctrine” in 1823, the early republic expanded its territories and increased the military defence of its self-proclaimed sphere of influence.

The invasion of Iraq has no more legal legitimacy than the invasion of the homelands of the Sioux Indians, though it may prove to be rather less effective. Sorting out the underlying nature of the imperial project is a task well done by Canadian political scientist (and co-editor of the laudable British journal, The Socialist Register) Leo Panitch and his co-author, Sam Gindin, Packer Visiting Professor of Social Justice at Toronto’s York University and former Chief Economist and Research Director of the Canadian Autoworkers Union. In their introductory chapter, “Theorizing American Empire,” they provide a sophisticated but accessible roadmap to the difficult matter of understanding what that empire is, why it behaves as it does, and what can be done about it. Theory, in the minds of the impatient or the merely anti-intellectual, can sometimes irritate and is frequently dismissed as having little pragmatic effect. In this case, the opposite is true; absent a clear explanation of the fundamental issues involved, there can be little understanding of the situation and, absent understanding, no thoughtful practical action can follow.

The second section explicitly addresses legal matters and takes as its starting point the role of the United Nations in the events leading up to the “regime change” in Iraq. Here the missteps and occasional collusion of the UN are meticulously set out, not merely in the weeks immediately prior to the long-planned attack when the search for weapons of mass destruction by international inspectors was terminated in the rush to war, but also in the economic sanctions and the “oil-for-food” program that had been in place for a decade before. This is where the Carleton law professors come into their own. Doris E. Buss, for example, deftly dissects approaches to the conundrum of international law in a largely lawless world. She also puts the entire international legal system under scrutiny, and comes up with a surprising result: the desire for a globalized legal system may not be everything that proponents of social justice and the rule of law anticipate. (“Be careful what you wish for!”).

Derived from what may be conveniently labeled feminist and post-colonial perspectives, Buss’s article draws an implicit analogy between the current international scene and the old American west. Into the lawless land swaggered the alpha male warrior intent on bringing order by defeating the hostile native peoples (terrorists) and the outlaw gangs (rogue states). Today, she argues, “the Bush administration … has removed the fig leaf of legal justification from the use of force, and now strides about with its masculine pretensions on display.” For her, the question of international law is all about who gets to be “the legitimate authority figure” and, as in Iraq, what matters is less “about what to do but, rather, who decides.” Her contribution is followed by equally provocative pieces by Trevor Purvis who looks “for life signs in an international rule of law,” and Peter Swan who reconceptualizes the matter of empire by offering a hopeful strategy that starts with some opaque language—“alternative juridifications of the new world order”—but promptly turns to astute ideas about how our entire view of empire and of power in a unipolar world may be misleading.

Next, three authors explore the difficulties of empire “on the ground.” So much attention has been given to body counts, al-Qaeda tapes and high level conferences among US officials and Iraqi politicians that we seldom see what is happening to ordinary people except, of course, when they happen to get caught in a cross-fire, approach a checkpoint too quickly or do their food shopping in close proximity to a car bomb. Nehal Bhuta of Human Rights Watch puts the matter directly. Among the problems faced by Iraqi citizens is the simple contradiction of the American project. Calling it a new form of Bonapartism, Bhuta explains the inherent snag in the US strategy. “Using a military occupation as a vehicle for democratic imposition is,” he argues, “by its very nature contradictory and fraught with a high risk of failure. The success of transformative occupation is precariously dependent on the quality of the subordination that it achieves over the occupied territory, and the military occupier qua sovereign dictator therefore locates itself in a paradox: it has to subordinate before it can legitimate effectively, and the more it tries to subordinate, the harder becomes the legitimation.”

Those who endorse the goals of bringing democratic politics and free market economics to Iraq and, ultimately, to the entire Middle East sometimes use the examples of postwar Germany and Japan to advance their argument. A form of liberalism was imposed on both, and both seem to have embraced them and to have prospered as a result. If there, why not here?

The answer is not simple, but its elements are comprehensible. Germany and Japan were more or less homogenous cultures with functioning industrial economies when they were blasted into liberal democracy. Iraq is not even a natural country. It is the by-product of 19th-century imperialism on the part, mainly, of Britain which saw fit to create a make-believe country by imposing borders of convenience around people who, worse than having nothing in common, were actually long-term enemies. Like the capricious territorial borders that divided cultural groups in Africa and elsewhere, the enterprise was doomed to disruption in the absence of authoritarian rule. Once independence was achieved, Nigeria fell to warring factionalism. Likewise, once Tito passed away, Yugoslavia ripped itself apart. With Saddam Hussein in prison, Shi’ites and Sunnis are again at each others’ throats. Despite Saddam’s generous offer to return and restore stability, the near impossibility of reconciliation, though not entirely absent, suggests that the prospects for peace are small.

The final segment is, in some ways, the most interesting. It deals with opportunities and realistic possibilities. Much of what is taking place in Iraq and elsewhere is the untidy job of cleaning up the mess left by old empires—especially the British and the French, but the Dutch, Belgian, Portuguese and Spanish as well. The inheritance of colonialism has not been helped by corporate neocolonialism. Nation-building has not been assisted by past and future economic disparities between rich and poor internally and internationally. And, of course, no small part of the blame for postcolonial distress can be assigned to indigenous dictators including Idi Amin, Augusto Pinochet and Than Shwe among many others past, present and future. True, such scoundrels would not have been destined to do their mischief had Uganda, Chile and Burma not been subjected to some form of European control that had trafficked in economic exploitation, thinly justified by the ruse of “white man’s burden.” Nonetheless, developing countries have not generally been well-served by their domestic leaders.

In due course, our descendents may see that the claim that the war on Iraq was undertaken for entirely ignoble reasons, and that talk about humanitarianism was as transparently deceitful as Kipling’s ode to the thankless task of civilizing the swarthy races. Time will tell.

Meanwhile, as Bartholomew’s boom comes near its close, Fuyuki Kurasawa, Jayan Nayar and others probe the limits of reality, setting their sites on places where elasticity can be found in the bulwark of domination. Suitably describing the effort to resist empire in the modest terminology of finding “room for manoeuvre,” the book ends on a note of cautious pessimism, at least for the immediate future. Although some lights shine—the apparent success of some “truth and reconciliation” activities show that it is possible to emerge from hideous events with sufficient dignity to begin to build anew—naïve optimism merely feeds future horrors. So, Samir Amin’s closing essay asks for a patient building process of organized public opinion. It isn’t much, but it is better than nothing and it appears that it is all that we have.

The accounts of the war in Iraq currently available in the mass media and evidently accepted by those world leaders who lack the wit or the will to differ from the current US administration are dreadfully unrealistic. The bulk of the reportage is factually untrue, morally insufferable and legally bankrupt. Amy Bartholomew and her collection of esteemed authors give us a healthy dose of reality—a sort of legalistic shock treatment that may bring some of us to our senses. Then, the real struggle for democracy can begin.


Howard A. Doughty teaches in the Faculty of Applied Arts and Health Sciences at Seneca College in King City, Ontario. He can be reached at <howard.doughty@senecac.on.ca>.

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