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Politics Foreign Affairs Culture Fellows Program

Dominium and Libertas Done Wrong by Imperium

When the state power and the global market combine forces, it is private citizens who suffer the consequences.
Federal,Reserve,Building,In,Washington,Dc,,United,States
(Orhan Cam/Shutterstock)

Among vast perturbations in the political-military-economic-financial world, it is not easy to detect the deep forces at play. But great events, moving rapidly, invariably pose grand questions, surging to the fore even as they struggle to gain full coherence and shape. Events and spectacle command the headlines; political philosophy comes in too, but on little cat feet. The ultimate stakes of the great controversy are usually not fully discernible at the outset. After the big breaks, such as 1618, or 1789, or 1914, the ideological conflicts rage for a generation. They define the era.

In previous essays, I have detailed the dreadful consequences likely to ensue from the Total Economic War Against Russia (TEWAR). Here, I want to explore its civilizational significance. My thesis: As a consequence of the TEWAR, the relations between Imperium and Dominium (roughly, the power-state and the market) have undergone a profound shift. The TEWAR means the collapse of some old and important distinctions governing the worlds of power and property. It also poses a growing threat to Libertas.

Imperium and Dominium are Roman legal concepts that later became incorporated into western jurisprudence. Imperium meant power over another person’s actions. Dominium meant power over one’s own things. In the late 17th century, the German scholar Samuel Pufendorf gave a profound exposition of their meaning in his Law of Nature and Nations. Pufendorf, at once the most forgotten and the most valuable thinker in the Western canon of international law, artfully discerned the nature and limits of these respective spheres of life.

Later thinkers also found the distinction useful. The notorious jurist Carl Schmitt meant by Imperium the domain of the power state, bounded in its own territory. Dominium meant the realm of private property relations outside state control, existing in a state of separateness, not subordination, to the power state. For Schmitt, as the scholar Quinn Slobodian has written, “the division between Dominium and Imperium was more fundamental than the purely political distinction of foreign and domestic. The most important border did not halve the world like an orange between East and West, or North and South, but preserved overlapping wholes in suspension, like an orange’s pith and peel. ‘Over, under and beside the state-political borders of what appeared to be a purely political international law between states,’ he wrote, ‘spread a free. i.e., non-state, sphere of economy permeating everything: a global economy.’”

One dimension of this curious relationship between Imperium and Dominium was geopolitical in character. It pit the insular and maritime powers, exemplified by Great Britain and the United States, against the continental powers, exemplified by Germany and Russia. Imperium rode the ElephantDominium rode the Whale.

Neoliberal thinkers like Friedrich Hayek, as Slobodian shows, fastened on this distinction and made it their enterprise to extend the economic realm of Dominium as far as possible, resisting encroachments by the national state but dreaming of international association. They hearkened back partly to the Hapsburg’s multinational order in central Europe, partly to the world order maintained by Great Britain in the 19th century, associated with both the gold standard and the free movement of goods, capital, and people.

The distinction between Imperium and Dominium appears in different nomenclature in every textbook on international political economy. Though in tension with one another, they need each other. The market needs the state to enforce its contracts and set bounds to its manic and inequitable ways. The state needs the market to generate wealth. Each shows itself to best effect when they meet as countervailing forces, each guarding against the worst excesses of the other. When they gang up, watch out.

One of the most distinctive features of Western civilization, as Samuel Huntington observed, was its recognition of plural institutions, each governing a separate space, but not subordinate to one another, as was the common pattern in other civilizations. This was worked out in medieval and early modern Europe in relation to the status of the Roman church in civil and political life, then in other dimensions. The distinction between Imperium and Dominium is a perfect illustration of what Huntington had in mind.

Yet another illustration of this defining characteristic of Western civilization is the Republic of Letters, the supranational exchange of brilliant insights that, in the 18th century, made many Europeans and Americans feel one step away from true Enlightenment. The courts tried to control it; they couldn’t control it. It bounded across borders. The plurality of the European system made some places, like Dutch publishing houses, entirely beyond the reach of offended monarchs. After Pufendorf, we’ll call that Libertas, which is power over one’s own actions. It “encompasses the absence of subjection in a human being’s command of his physical and moral personality — his life, actions, body, honor, and reputation.”

The Republic of Letters was only the highest exemplification of the spirit of Libertas—Pufendorf himself was like a long serving prime minister in that imaginary republic—but for each of the spheres of liberty the idea was to place a protective shield around people and their customary activities. Citizens and subjects were forbidden from doing certain things, but the state was also forbidden from doing certain things. Each was to guard its sphere like a sentinel: Don’t tread on me.

The status of property in the law of war reflected the overarching distinction between Imperium and Dominium. In war a state could seize certain things, but not all things. Dominium had its privileges, nay its rights. A perfect illustration of the older way of thinking may be found in Alexander Hamilton’s discussion of the question. The biggest danger in going to war, he worried in 1795, was that “certain wild opinions” would get fermented by war, producing grotesque violations of natural right. In that event, “those wise, just, and temperate maxims, which will forever constitute the true security and felicity of a state, would be overruled.” A “war upon credit, eventually upon property” would ensue. “The confiscation of debts due to the enemy,” Hamilton warned, “might have been the first step of this destructive process. From one violation of justice to another, the passage is easy. Invasions of right, still more fatal to credit, might have followed.”

Hamilton, in short, had two great propositions. First, the violation of sacred covenants entailed by confiscations is a grotesque violation of justice. And second, invasions of justice are fatal to credit and reputation. Hamilton, a man of principle, would have been shocked by the seizures of property lately accomplished by the West’s central banks. He would have fallen out of his chair if told that this wild idea had been hatched not by the democratic rabble but by the honored custodians of the American financial establishment (of which Hamilton is properly considered the distant father). His rage would heighten when he learned that people with the wrong birthplace could have their assets seized, just like that. We should not imagine, however, that Hamilton would have taken this lying down. He would have picked himself up, dusted himself off, and in two weeks emerged with a 50,000-word manifesto of denunciation that cited a hundred learned authorities.

In the miserable present, the worst part of it is that Imperium, aided and abetted by Dominium itself, has also placed Libertas in grave peril. They are wed in unholy alliance in pursuit of an enforced orthodoxy. The Republic of Letters is battered, submerged, by their suffocating insistence on only one way to understand history, only one way to understand the pandemic, only one way to understand the unfolding global conflict, only one way to understand race, class, gender. Every opinion contrary to the established consensus is held to be either misinformation or disinformation, as if covens of Putin-worshippers existed throughout the land, endlessly making stuff up.

An honest difference of opinion is not a recognized epistemological category of the new censors. In the glory days, whose passing is to be lamented, the capacity to be a ditto-head was not among the prized features of an enlightened citizenry. As Gandhi said, Western civilization would be a good idea if the Westerners had the wit to follow its rules, not break them.

This formidable alliance between Imperium and Dominium, from a civilizational point of view, is a first-class bummer, and shows once again that the capitalists aren’t really that bright. Libertas has every reason to wail at the pincer movement seemingly contemplated by the plutocrats and the praetorians. But Libertas should not abandon its historic friend. It can only hope that Dominium will wake up and relearn the point that it should fear Imperium’s unbounded powers. Once released, those tend not to stay caged.

David C. Hendrickson is president of the John Quincy Adams Society and professor emeritus of political science at Colorado College. His website is davidhendrickson.org. Twitter: @dhendrickson50.

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