Federation and empire: About a conceptual distinction of political forms Free

Abstract

This article seeks to demonstrate that the modern nation state is by no means an unrivaled polity type, nor one that even supplies the template for other polity types. Rather the sovereign state, with its distinctively unitarian legal form has developed alongside and in complex interaction with federation and empire—two polity types that for all their differences share a more pluralistic internal logic. Both are unions of states, of very different nature. Federations are based on the consent of states whereas empires are grounded on force and conquest, where the center dominates the dependencies or peripheries. Paradoxically, an empire allows more diversity inside its sphere of domination whereas a federation requires more homogeneity between its member states. This rather theoretical pattern is able, nevertheless, to enlighten some contemporary discussions, especially on the European Union.

1. Introduction

Against the temptation of focusing public law analysis exclusively on the idea of the state, and the modern nation state in particular, I have tried in previous works to draw attention to the neglected figure of the federation—a concept broader than the federal state¹—and from there even to the neglected topic of empire.² My interest in both non-state polity types (federalism and imperialism) dates back to a paper entitled “The Federation, Between the State and the Empire,” written for a conference on state, Europe, and social issues organized in 1994 by the French economist Bruno Théret.³ I had two intuitions: first of all, the federation or federal political order is a political form that cannot be reduced to the form of the nation state and, at the same time, it is also more than an international organization. Second, the federation is in part similar to an empire inasmuch as it involves the aggregation of states, but different insofar as it is a union based on the will and free consent of the states. In the present article I would like to unpack further the division and refine the contrast between federation and empire, or federalism and imperialism, as polities each with a signature legal form and system of authority, and in so doing to distinguish each from the legal form and authoritative structure we associate with the paradigm case of the state polity.

In Théorie de la Fédération I offered only a sketch of this ideal-typical distinction as my primary focus was on the opposition of state and federation. The intuition that guides the present work is that it is worth revisiting the opposition between federation and empire because it enables us to see a larger comparative picture of the three great political forms or polities: the state itself (or city, polis in antiquity), federation, and empire.

My hypothesis is the following: whoever tries to shed light on the federation as a political and legal form can only do so adequately by contrasting it with its symmetrical concept, that of empire. These two notions represent the ideal-types of modern polities comprising unions of states. Therefore, it is important to highlight their common features—their similarities, which, incidentally, are what makes possible a conceptual comparison. If their opposition were complete and absolute, comparing them would be pointless.

The first and most important similarity is simply that both federation and empire are types of unions or associations of states. Did not Raymond Aron, in reflecting on the manner in which the world could be organized in the future, ask how “a Federation and an Empire would differ, if they embraced humanity as a whole”?⁴ His question implied that the two models, federal and imperial, represent the only two conceiv able forms for organizing international community. Another author observed that “an empire is a specific form of international organization, and that imperialism is an integral part of the process of organizing the international community.”⁵ However, merely pointing out that the empire, like the federation, can be understood as a form of international or transnational organization does not yet tell us about the structural cause of this similarity. One must add, this time from the vantage point of the jurist, that, as political units, empire and federation are both composed of other political entities. Thus, the main feature that federation and empire share is structural—a structure one might characterize as ternary. In the same way as the federation is, in my opinion, a distinct entity composed from two (other) units, namely, the federal power and the member states, the empire as a distinct entity is made up of two elements—an imperial center, in modern times called a metropolis, and the periphery (which is increasingly submitted to the center’s domination), composed of colonies or “dependencies.”

The second similarity between federation and empire, which flows from this ternary structure, relates to nationality or citizenship. In both cases, nationality is multiple. The empire is a structure with two hierarchically organized components, the metropolis and the colonies. In an imperial regime, nationality law merely reflects this multiple layering of legal and political identity. Seen in this perspective, the analogy between the ternary structure of the empire and the ternary structure of the federation is rather strong; so much so in fact that in modern (colonial) empires colonies are, mutatis mutandis, the conceptual equivalent of the federated states (member states) of federations. Therefore, as Christoph Schönberger has demonstrated in a groundbreaking work on federal citizenship,⁶ the status of the indigenous national within the empire greatly resembles that of a member state citizen in a federation, which German scholarship at one time also characterized as an indigenous status, or indigenat (Indigenat). Thus, the indigenous person in French colonial law, as an intermediary category, has certain points in common with the indigenat status in German federal public law under the Second Reich. Understanding both requires us to abandon the notion that nationality is something unique and to take into account the notion of pluralist nationality or, more precisely, the superimposition of nationalities—or, even more precisely, the interweaving of nationalities. Obviously, here too there are differences, but the structural analogy remains striking.⁷

Finally, the third similarity between Federation and Empire pertains to their political nature. Like the state, both can accommodate different forms of government. At least, this idea holds for modern empires; namely, those of the colonial era,⁸ which we may call colonial (or overseas) empires as distinct from the earlier form of territorial empire. Traditionally, the empire was matched with an autocratic form of government: according to that view, the empire is the emperor, who has power over all citizens under his domination. In this regard, Shmuel Eisenstadt wrote that “‘Empire’ . . . has normally been used to designate a political system encompassing wide, relatively highly centralized territories, in which the centre, as embodied both in the person of an emperor and in the central political institutions, constituted an autonomous entity.”⁹ However, by defining the empire, like the state or the federation, as an abstract political form, I want to make the argument that the imperial form is in fact indifferent to the issue of who holds the central power and in what precise institutional form. The empire is more than the emperor, much in the same way as the state is more than the sovereign. Just as there are authoritarian states or authoritarian federations, there are “liberal empires,” in the sense that the central domain of Empire can have a “liberal” form of government. For instance, the French colonial empire was a republic, while the central governmental form of the British colonial empire was that of a constitutional monarchy.

One must be careful, however, not to be misled by these similarities between the two political forms of federation and empire. For, on a more comprehensive reading, they are substantively quite distinct. This is immediately apparent from Michael Doyle’s classical definition of the imperial form. “Empire is a system of interaction between two political entities, one of which, the dominant metropole, exerts political control over the internal and external policy—the effective sovereignty—of the other, the subordinate periphery.”¹⁰ Or, to put in more general terms: “Empire are relationships of political control imposed by some political societies over the effective sovereignty of other political societies.”¹¹

In an empire there is no real equality between the members of the imperial body, quite the opposite: the relationship is one of domination and subordination between a center and its periphery in which the latter has lost its “effective” sovereignty. In other words, the concept of “empire” denies the principle of sovereign equality of states that is at the heart of the modern system of international law as well as all modern federations. This serves to bring out the profound nature of the opposition between empire and federation which requires three additional clarifications.

First, it should be understood that we are dealing less with federalism and imperialism than with federation and empire. This involves the (by now conventional) distinction, “between ‘empire’ (which refers to the notion of polity) and ‘imperialism’ (which refers to policy).”¹² Imperialism is dynamic whereas empire is static. This dynamism of imperialism is captured both in the definition given by Moritz Julius Bonn—“a policy which aims at creating, organizing and maintaining an empire; that is, a state of vast size composed of various more or less distinct national units and subject to a single centralized will”¹³—and in the more famous formulation of Joseph Schumpeter: “imperialism is the objectless disposition on the part of a state to unlimited forcible expansion.”¹⁴ However, in my view, it is best summarized by Michael Doyle: “Imperialism is the process of establishing and maintaining an empire.”¹⁵

Furthermore, there is a strong tendency to link imperialism to a certain political ideology, a tendency I oppose. For the study of empire as opposed to imperialism I appropriate the distinction introduced by Preston King between federation and federalism. “‘Federalism’ is employed where the interest is primarily ideological [. . .], while ‘federation’ is applied to designate a more descriptive, institutional arrangement.”¹⁶

The third clarification relates to the historical dimension of the inquiry. It would be a mistake to consider the concepts of Empire and Federation to be atemporal and universal. Taking due account of history is crucial. There are ancient empires and modern empires, much in the same way as there are ancient federations and modern ones; the dividing line, to me, seems to be the emergence of the modern state in the fifteenth and sixteenth centuries. Yet, a comparison between the federations of ancient Greek cities and ancient imperialism can be useful in order to grasp the different political rationale that drives each of these institutions.

2. Unity and diversity: Plurality in federation and empire

Having set out these differences between federation and empire, one might speculate at which point they may begin to converge. Recently, we have had the opportunity to explore this question in the context of an analysis of a special episode in French history: the civil war during the World War II between the Vichy Regime of Petain and France Libre of General de Gaulle.¹⁷ The battle extended to the colonial empire and it was in the overseas territories of the African colonies that the fate of de Gaulle was decided. After their initial defeat in Dakar, the Free French Forces achieved success in Chad and Cameroon, thus beginning the conquest of the territories of the colonies. Yet the claim of France Libre to represent the rightful government of France remained conditional until the liberation of the metropolitan territory from June 1944. It was the conquest of the continental territory that put France Libre in a position to pass the new republican statute laws. The defining characteristic of the empire is, thus, the hierarchized duality between the centre and its peripheral dominions. This hierarchy favors the metropolitan center. Liberating France, therefore, meant first liberating its metropolitan territory, or “motherland.” This crucial episode from French history confirms that what is definitive of empire is the fact of domination of the central territory over the periphery, rather than any particular normative expression of that domination.

At this point, we might take stock of the continuities between empire and federation, some of which have already been detailed above: empire and federation are both unions of states, they both have a ternary structure, and, as political forms, they both include different forms of government. In principle, there is such a thing as a liberal empire. To these similarities we should add another one which concerns the question of diversity or plurality. As political forms, federation and empire are defined by their high tolerance of diversity.

This, indeed, is a particularly striking feature of empire. One of the great lessons of the Roman Empire is its undeniable capacity to control a huge range of heterogeneous populations. As the historian Clifford Ando writes, “the great challenge for the Roman government was to maintain the order within the groups of populations which were always and everywhere, legally, ethnically and linguistically, heterogeneous.”¹⁸ Denis Baranger echoes this intuition in his analysis of the history of the British Empire. Even if the empire, like the state in its internal relations, is always struggling to keep the peace in its dominions, it does not seek or want uniformity between them. Rather, “as it is not destined to become another self (to become standardized or homogeneous), a subject that is integrated in the Empire can remain hostile, so long as it stays obedient. For England, Ireland remained the model of this inside enemy that would not let itself be incorporated and which never ceased to assert its own peculiarity.”¹⁹

Arguably, the empire, unlike the nation state, desires and even fosters diversity and pluralism. It is a fact of history that empires that have tried to impose uniformity, like the French colonial empire, failed miserably. The importance of diversity also explains why some scholars try to apply the concept of empire to the European Union.

Federalism, too, is linked with diversity and pluralism. Everybody knows the famous motto of the American Republic “E pluribus unum.” Yet it is probably less known that Albert Dicey wrote about federalism in his pioneering handbook of constitutional law, noting that there were two preconditions for building a federation: one, objective, and the other, subjective. Taking the subjective condition first, it relates to the feelings of the peoples of each state: “The existence of a very peculiar state of sentiment among the inhabitants of the countries which it is proposed to unite. They must desire union, and must not desire unity. If there be no desire to unite, there is clearly no basis for federalism.”²⁰ And Dicey concludes: “The aim of federalism is to give effect as far as possible to both of these sentiments.”²¹

But the ideal of combining unity and diversity which federation and empire share should not lead us into error. Here, too, there is an essential difference between these two political forms which can be brought out on the basis of Dicey’s first, objective precondition of federalism, which relates to the common features of the nations that have decided to share the same political future: “There must exist, in the first place, a body of countries such as the Cantons of Switzerland, the Colonies of America, or the Provinces of Canada, so closely connected by locality, history, by race, or the like, as to be capable of bearing, in the eyes of their inhabitants, an impress of common nationality.”²² So federalism poses a challenge that is hard to meet. It stands to reason that too strong an “impress,” to borrow Dicey’s term, inclines the federation in the direction of a nation state which has been defined as the very “identification between nation and polity.”²³ However, it also stands to reason that a complete absence of homogeneity between the parts of a federation would spell the end of this kind of federalism. In this respect, it appears that there is an essential difference between a federation and an empire, the latter allowing for a much more differentiated union of states.

These observations raise two questions of pivotal importance for an understanding of federalism: what kind of homogeneity is required to build a federation? And to what extent must the discrete parts of a federation be homogenous? There are, in fact, different elements to this homogeneity. The primary requirement is political homogeneity. A federation has better chances of survival where the member states have the same political form of government. Montesquieu noted that, for a federation of republics—a “république federative”—to survive, each member would itself have to be a republic.²⁴ It therefore poses a great danger to the survival of the entire federation, should the government of one of its members become autocratic. This threat to the political unity of the federation explains why most federations acknowledge a right of a federal intervention in case of regime change within a member state.

But political homogeneity also means economic homogeneity. It is well known, for instance, that the differences in economic policy in USA in the nineteenth century between the North and the South were major sources of tension. In the European case, since the collapse of the communist system under the Warsaw Pact, the major obstacles that stood in the way of unity have receded. Yet tensions remain. Nowadays, the main threat to European Union would seem to be the “pursuit of economic homo genization (towards a liberal direction)” which risks producing “some kind of ethnic or nationalist backlash.”²⁵ Seen in this perspective, the greatest heterogeneity may spring from enlargement of the EU in the 1990s and a renewed discrepancy between the countries of Western and Eastern Europe.

Homogeneity might also have a cultural component, although this is controversial. That idea is perhaps most prominently associated with Alexis de Tocqueville. In a fascinating paragraph on federalism, where he addresses the question of why the federal system is not within the reach of all nations, he compares the success of the American federal experience with Mexican failure. He stresses that constitutional engineering cannot in and of itself explain the success or failure of a particular federation.²⁶ According to Tocqueville, the citizens of the United States are a true people because they share not only the same religious and political ideas but also the same philosophical and moral compass—a point which John Jay also famously made in the Federalist Papers.²⁷ Yet Tocqueville did not appreciate that another kind of federation could exist; a more heterogeneous federation in which the power of the center is constrained by ethnic differences.²⁸ As Murray Forsyth points out, modern federal systems are “organized to accommodate ethnic groups by giving them political status within the system.”²⁹ The example of Canada illustrates this protection of ethnic groups through the safeguarding of their language, extending to the right to use their native language, and to various prohibitions on using the majority language (even if we have to acknowledge the dangers that inhere in this kind of policy).³⁰

In a nutshell, federations are arguably more demanding than empires when it comes to the requirement of homogeneity. Here again, federations stand between the empire, which tolerates and accepts the diversity of peoples that it unifies by force, and the state, which, in its modern national incarnation, has difficulties in dealing with diversity.

3. Conclusions

I conclude with three observations on the differences between these two ideal-types of federation and empire.

First, in legal terms, the difference between a federation and an empire can be demonstrated by their different genesis. It is not merely the opposition between free will and force, nor indeed the opposition between a federative compact and a unilateral act, that is relevant. The institutional repercussions of these founding acts must also be taken into account. In a federation, the federative compact maintains the political existence of the member states, whereas in an empire, they no longer exist as political bodies. The founders of modern international law understood this very well. Thus, Pufendorf noted two hypotheses: the creation of a new polity by aggregation—the federation—or by fusion—the empire.³¹

Second, another difference relates to citizenship. The characteristic of the imperial form, in contrast to the federal form, is to treat people subject to imperial power un equally. There are the “real” citizens, those dwelling in the metropolis itself and those citizens of the metropolis that set out to found colonies, and then there are the others—natives of the colonies, who are first and foremost subjects, even if they may become members of the empire.

Third, this ideal-typical opposition between the federation and the empire may also be elaborated by describing their institutional structure, that is, the relationships between the parts and the whole. Unlike the federation, the empire is a political entity dominated by a center, a motherland (métropolis) that constitutes the “hard core which is irradiated by what was first characterised as an excess of State; and this po larising centre is constantly necessary to the operation and growth of empires.”³² This difference is shown, inter alia, in their respective methods of enlargement—voluntary admission for a federation, conquest for an empire. In other words, an empire can only be conceived as a hierarchized duality between the center and its peripheries, whereas the federation must be conceived of as a duality of equals between the federation and the member states.³³

What, in sum, this ideal typical scheme has sought to demonstrate is that the modern nation state is by no means an unrivaled polity type, nor one that even supplies the template for other polity types. Rather the sovereign state, with its distinctively unitarian legal form, has developed alongside and in complex interaction with federation and empire—two polity types that for all their differences share a more pluralistic internal logic.

Footnotes