“The Case for Colonialism,” written by Professor Bruce Gilley, became the center of controversy as soon as it was published in the Third World Quarterly (TWQ), a reputable journal of international studies. Gilley notes that numerous Third World countries are poorly governed because they lack resources and knowledge. Since a majority of them were colonized, he advocates reinstating colonial governance, arguing that recolonization will allow rich western countries to be more fully engaged and committed to improving governance without the burden of anticolonial rhetoric and policies. From his perspective, anti-colonialism has done more harm than good by 1) labeling colonialism as primarily harmful, 2) converting it into an illegitimate form of rule, and 3) deeming it incompatible with today’s contemporary society. Instead, both western and non-western countries should embrace the “colonial toolkit,” which consists of colonial-era political and economic dominance of colonized societies as the primary means of ending instability in the international order. 

Scholars from across disciplines, not just postcolonial studies, were swift to respond (including myself), criticizing the article for being historically and empirically inaccurate while 15 members of the editorial board resigned. Controversially, the editor of the journal published the article after it was rejected in the review process. Some observers accused him of angling to get attention, labeling the article “clickbait with footnotes.” Gilley’s call to “build new Western colonies from scratch” is especially problematic for libertarians, who value freedom, individual liberty, and free markets, and have long disparaged nation-building in U.S. foreign policy. Libertarian principles counter Gilley’s recolonization argument in three ways. First, libertarianism highlights the fundamentally exploitative nature of colonial rule, which is a kind of foreign occupation specifically designed to strip away rights and liberties of the colonized. Second, libertarianism showcases the weaknesses in colonialism’s alleged positive economic impact on the markets, and how in reality colonized markets are not free. And third, libertarianism staunchly opposes the repressive nature of colonialism and the avenues it provides for gross violation of human rights.

In this essay, I explain why libertarians should be concerned by Gilley’s argument, and then go on to explain the positive—and unintended—consequences of his article for libertarian thought.

 

Gilley’s Argument for Recolonization

Gilley’s argument has three points, each of which contradicts libertarian principles.

The first point of his recolonization argument is to call for replicating colonialism by reinstating the “colonial agenda.” The colonial agenda differs from the current “good governance” agenda, which emphasizes the ability of postcolonial states to self-govern. Good governance focuses on streamlining administrative development and economic liberalization, and helping postcolonial states reconcile with their colonial past by promoting political pluralism. Gilley’s colonial agenda goes further. In addition to providing political and administrative support, the colonial agenda “borrows” ideas and notions of “governmentality” from the state’s colonial past to close the gap caused by lack of capacity and knowledge that so many postcolonial states continue to suffer from. Unlike the good governance agenda, the colonial agenda’s mission is to improve postcolonial societies and embrace “a civilizing mission” that “resurrects the universalism of the liberal peace and with it a shared standard of what a well-governed country looks like.” 

The second point focuses on the role of western states as the implementers of this modernized colonial agenda. According to Gilley, the wealth of western countries enables them to help poor postcolonial states. For example, rich western states will be more effective at improving the governance of continuously poor postcolonial states that so desperately need foreign assistance in both their private and public sectors. More importantly, western injections in key sectors like business, civil society, and the public sector will ensure that these postcolonial states do not revert back to old, “indigenous” practices that have failed at the basic task of governance. Gilley uses the example of Indonesian customs officers that were replaced with a Swiss firm to illustrate the usefulness of a western state in improving an aspect of the public sector. He also uses the World Bank and U.S. “co-signatory” arrangements in Liberia and Chad in the 1990s as an example of how foreign actors can build and improve government bureaucracy.

The third and final point of the recolonization argument is to build new colonies run by western countries. Gilley envisions these new colonies as “charter cities,” as articulated by economist Paul Romer. Romer uses Hong Kong as a model for his unusual project and states that charter cities would unburden poor countries by allowing richer countries to govern a chunk of their land. In other words, poor countries would be giving up their decolonized territory and sovereignty for potential (not guaranteed) prosperity. Unlike Gilley, Romer does not call his idea colonialism, a term he labels as “emotional.” But like Gilley, Romer’s idea showcases his lack of knowledge of imperial history. For Gilley, these cities are the new and improved version of colonies, and will be devoid of “oppression, occupation, and exploitation.” Considering that the residents of these charter cities would come from poor countries and the leaders would be selected by rich countries, and not the residents, it remains unclear exactly how this version of colonialism would be better than its former self. After all, Colonialism 2.0 is still colonialism. 

A Libertarian Case against Recolonization

All three of these proposals conflict with libertarian principles of freedom from foreign rule, free markets, and individual liberty. Gilley’s manipulation of the literature, along with his failure to productively engage interdisciplinary approaches to colonial legacies, paints colonialism as a political system that promoted market economies, encouraged pluralistic political orders, and enforced individual rights. Yet colonialism first and foremost was about mercantilism, an economic system that prioritizes the state’s ability to accumulate wealth, not on the people’s access to this accumulated wealth. In principle, mercantilism is also a type of protectionism, and hence, conflicts with free markets. The exploitative colonial economic system also gave rise to a political system that manipulated religious, ethnic, and linguistic tensions, reinforced racial hierarchies and abuse, and in some instances, wiped out entire indigenous populations. Above all, colonialism denied subject peoples’ individual rights, which eventually sparked riots across colonies.

Moreover, western states are past colonizers. Indeed, some would argue that they are still colonizing. Kwame Nkrumah, the first president of Ghana, coined the term “neocolonialism” in the 1960s. He called it the last stage of imperialism as he witnessed the effect of decolonization of African states on the former colonial powers. Neocolonialism captures the paternalistic—and often troubling—relationship that European countries have with their former colonies. Proponents of neocolonialism argue that even though investments for development have increased in postcolonial states, the gap between the rich and the poor has continued to expand because financial power continues to rest with the developed, western countries rather than the developing, postcolonial countries. China’s excursion in African countries is a good example of how neocolonialism is manifested by new players today.      

Gilley’s belief that past colonizers will be more benevolent during their second (third? fourth?) round of colonization is misguided and alarmingly naïve. While libertarians can also point to historical evidence that weakens Gilley’s argument, the more effective counter to recolonization is libertarian philosophy itself. Libertarianism is a collection of political philosophies that upholds liberty in the highest regard and is skeptical of state authority. Libertarians believe the state should be strictly limited in size and scope, and should be instituted in order to secure the basic rights of citizens and defend national territory from foreign attack, but little else. American libertarians in particular use the American Revolution, a colonial rebellion against unjust foreign rule, as a key frame of reference to ground their beliefs about the role of government. Gilley’s call for western governments to recolonize the third world, therefore, is fundamentally inconsistent with libertarianism.

Gilley poses three questions to policymakers: 1) how can the populations that need to be colonized be convinced that colonization is good for them? 2) how can western states be convinced that they should embrace colonialism again? and 3) how can colonialism result in lasting, positive outcomes? Gilley’s answers to these questions are: 1) create an accurate historiography of colonialism that showcases how colonialism was accepted by “politically salient actors,” 2) make colonialism economical by making the colonized pay the colonial states for their governing services— “colonialism for hire” if you will, and 3) ensure that colonial governance embraces both the political and social natures of the colonized.

Yet colonization can never be legitimate because it is fundamentally a system of exploitation where the people are subjected to foreign rule and cannot exercise their fundamental rights to liberty and representative government. Calling for the return of colonialism as a vehicle to foster free markets ignores the fact that free markets can emerge, and have emerged, without colonialism. Also, the notion that colonialism is in the state’s self-interest—the “reversal of fortunes” thesis—is subjective and dubious on empirical grounds. The “rational policy processes of European colonizers” that Gilley reveres are actually avenues by which the colonized can be dehumanized, paving the way for gross human rights violations, which of course no one should support.

 

Unintended Benefits of the Recolonization Argument

Gilley’s article, however, has been beneficial because it has sparked a myriad of much-needed historical, philosophical, and policy debates. In this era of “alternative facts” and fake news, these debates are not only in high demand but have also become a necessity, especially in the United States, where the American people are grappling with the current state of their democracy.

There is a constant push to rewrite history, and many states, such as South Korea, China, India, Russia, and even the United States, are engaged in changing textbooks in an attempt to change their historical narrative. Consider Japan  denying until 2006 the crimes committed by Imperial Japan in the late 1930s in Nanking, China; the Cambodian opposition leader’s claim in 2013 that Khmer Rouge prisons are a Vietnamese fiction; and Pakistan’s negating the atrocities it committed in East Pakistan (now Bangladesh). These are just a few examples of this phenomenon. Gilley’s article is an attempt to rewrite the impact of colonialism, and as critical thinkers, we should be wary of such whitewashing.

Evidence is key for scholarship and policy both: poor empirics lead to weak scholarship and bad policies. The immediate backlash to Gilley’s piece highlights the strong tradition of valuing sound empirical information but also highlights the need to ensure that misinformation does not become the norm. Hence, there is a need to decolonize International Relations and other literatures, an agenda that libertarians can appreciate. Gilley also states that terms like “shared sovereignty,” “conservatorship,” “proxy governance,” “transitional administration,” “neo-trusteeship,” and “cooperative intervention” are all colonialism, and should be called that “because it would embrace rather than evade the historical record.” This point that these terms can serve as euphemisms for colonialism is valid, and it highlights the need for libertarians to take a more prominent position in these discussions. The United States has voluntarily engaged in nation-building exercises too often, and these have resulted in failure, as has been the case in Afghanistan and Iraq. Writing about U.S. Special Forces in Afghanistan in 2002, Michael Ignatieff, the former president of the Liberal Party of Canada, stated, “Nation-building isn’t supposed to be an exercise in colonialism, but the relationship between the locals and the internationals is inherently colonial.” Libertarians have been at the forefront of highlighting the hypocrisy of contemporary nation-building. The same criticisms can and should be applied here.

In a way, Gilley’s article and the debates it restarted are actually an opportunity for libertarians to assert themselves and further their credentials as champions of military restraint and emancipation.

 

Conclusion

Gilley’s research, regardless of how flawed it is, did not just come out of nowhere. Academia and the policy world are still struggling with colonialism and its social, economic, and political impacts. Arguments like Gilley’s that call for reinstating an oppressive system like colonialism should motivate us all to reevaluate our history and policies. And market liberalism has a unique role to play in this conversation. For what it’s worth, Gilley’s article has sparked an important debate centered on nation-building and state-making. And libertarians should be front and center, leading the call for restraint and liberty.  

Throughout human history, few concepts have been debated as passionately as colonialism. Both as a practice and a political principle, colonialism has elicited contrasting perspectives, even before the word came into being in the mid-nineteenth century. As Spanish conquistadors were systematically obliterating the cultures of the South American continent in the name of an ideology inherited from the Reconquest of the Iberian peninsula, the Dominican friar Bartolomé de las Casas delivered in his Short Description of the Destruction of the Indies one of the most damning reports on the consequences of the rule and government of the King of Spain. Two hundred twenty years later, the Abbé Raynal, a leading figure of the Enlightenment, produced a more systematic criticism of European colonial rule in his Philosophical and Political History of the Settlements and Trade of the Europeans in the East and West Indies. Reading any of these writings would easily discourage anyone even remotely tempted by the prospect of resuscitating this mode of governance based on plunder, forced conversion, and cultural destruction. Graphic descriptions of inhuman violence in las Casas, or simply the concluding sentences of Raynal’s text, referring to the “narrow and cruel” spirit of monopoly which has been one of the guiding principles of colonialism, should be more than enough to discourage any form of nostalgia: “When I have laid waste, exhausted, and impoverished one country, I shall always find another.”

Inevitably, the long history of colonialism means that its practice has evolved over time, and the version to which Professor Bruce Gilley’s “The Case for colonialism” refers is the more recent one that spans the era from the early nineteenth century to the decolonization of the postwar period. Even if by then the creed of forced religious conversion (and its corollary, physical elimination should resistance be met) had been replaced by that of the “civilizing mission,” it was far from uncontroversial even as it was unfolding. The enthusiasm of pro-imperial propagandists such as John Robert Seeley in Britain or Paul Leroy-Beaulieu in France never overshadowed completely the opposition of the “Critics of Empire,” as Bernard Porter has shown in the late 1960s for the British case, or as the speeches by French politician Georges Clemenceau in the 1880s attest clearly. Indeed, two of the most violent anti-colonial texts were produced at the peak of the “New Imperialism”: J. A. Hobson’s Imperialism: A Study (published in the wake of the South African war, in 1902) and Lenin’s Imperialism: The Highest Stage of Capitalism (1916). These two major contributions ensured the long-term association between radical left-wing thinking and anti-colonialism, which has hidden the many instances when the European Left stood behind the empire – sometimes promoting it heartily (as did Jules Ferry, who sat on the Left of the French Assembly), or intending to reform it rather than suppress it.

The postwar wave of decolonization brought European colonial rule around the world to its knees: not only because the European colonial powers, having indulged in the collective suicide of the Second World War, were unwilling or unable to repress nationalist anti-colonial movements, but also because the very principles that had justified imperial expansion had become invalidated by the mass slaughter inflicted upon mankind by this second global conflict in just three decades. The “civilizing mission” had been badly undermined by the spectacle of the trenches of the Great War; it was fatally smitten by the Second World War. Critics of colonial domination like Albert Memmi or Frantz Fanon, backed by towering intellectual figures such as Jean-Paul Sartre, led to a worldwide moral rejection of colonialism, which has retained the upper ground up to the present day. Apart from a few exceptions (mostly published in the 2000s), the overall direction of travel has been towards widespread condemnation of the wrongdoings of a military and political practice that relied on the forced subordination of populations around the world to the might of half a dozen powers.

There are good intellectual reasons to ensure that no δόξα is embraced uncritically for too long, and re-appraising evidence is one of the tasks that scientists, social or otherwise, do constantly. Colonial rule encompassed such a wide range of practices and situations that it requires a careful consideration of myriad factors, and theoretical dichotomies such as “colonizer/colonized” are not entirely satisfactory when it comes to rendering the inevitable relations of co-existence that the colonial encounter brought about. Likewise, there is no doubt that in many cases, the irruption of modernity was mediated by the arrival of European colonizers. One can only wish for an alternative scenario where paths towards modernity were carved from within indigenous societies in the non-European world, but this remains wishful thinking or, at best, counterfactual history – possibly an exciting intellectual exercise, condemned to remain bound to the realm of abstraction.

Historians have the duty to engage critically with their sources and, if necessary, to revise their hypotheses in the light of the evidence they have gathered. In some cases, that means that the outcome of their research might differ from their expectations, or from accepted “truths.” Yet the exercise becomes much more perilous when it is applied in the realm of political advocacy without precaution. The central thesis of “The Case for Colonialism” is deeply objectionable because it indulges in careless historical anachronism. Beyond the moral implications of Gilley’s suggestions, which are numerous but which I am not discussing here since it is done very effectively by Sahar Khan’s essay, it beggars belief that a “case for recolonization” could be viable in the twenty first century.

The very idea that it might seem desirable, let alone possible, to resuscitate colonialism from its ashes, as if feudalism could be reinstated in Europe or America could be brought back to its pre-1783 relationship with Britain, simply ignores the realities of historical processes: political practices are intricately linked with the period in which they emerge, and they cannot be reproduced. Many nineteenth-century British, French, or Italian pro-imperial decisionmakers might have sought to re-create the Roman Empire and its pax romana, but in doing so they ended up producing the two World Wars. More recently, millenarian beliefs which gave rise to the Islamic State’s fantasy resurrection of a form of theocratic state of the early years of Islam, have met frontally with the realities of the current international situation. Historical events never repeat themselves exactly, and there is no reason why nineteenth-century European colonialism would be an exception. That leaves aside, of course, the question of principle as to whether it would be desirable for colonialism to be repeated. The author of this piece unreservedly thinks not.

 

In her lead essay for this month, Sahar Khan addresses Professor Bruce Gilley’s controversial recent paper “The Case for Colonialism” in which he argues that “Western colonialism was, as a general rule, both objectively beneficial and subjectively legitimate in most of the places where it was found,” and so it should be “recovered” today “by reclaiming colonial modes of governance; by recolonizing some areas, and by creating new Western colonies from scratch” (Gilley 2017, 1). Khan argues that libertarianism is ideally situated to rebut such pro-colonial arguments as its “principles of freedom from foreign rule, free markets, and individual liberty” directly oppose colonialism. She concludes that the debates that were generated by Gilley’s article provide libertarians with an opportunity to show that they are “champions of military restraint and emancipation,” and that the backlash against his article highlight the value of “sound empirical information” as well as “the need to ensure that misinformation does not become the norm.”

 

Libertarianism and Foreign Rule

There is much to praise in Khan’s paper, and little to criticize. But there is one claim that she makes that can be challenged: the claim that one of the principles of libertarianism is that persons have “freedom from foreign rule.” Rather than being concerned with whether persons are subject to domestic or foreign rule, libertarianism is concerned only that they be subject to the rule of law. Libertarianism is concerned that persons be subject to publicly announced laws that protect the rights of, and bind, all members of the polity equally independently of their social position. If the laws that the members of a polity are subject to meet these conditions then a government that enforces and enacts them could be considered legitimate. Hence, as Michael Hechter observes in his book Alien Rule (New York: Cambridge University Press, 2013) the mark of a legitimate government would be that “its rules are considered rightful by both dominant and subordinate members of society” (Hechter 2013, 16). Since this is so in theory it would be possible for a colonial (i.e., foreign) government that restricts itself to enforcing the rule of law to be legitimate. And if this colonial government favored free trade (rather than mercantilism) and the protection of individual liberty (instead of engaging in the “gross violation of human rights”) then a case could be made for its legitimacy on libertarian grounds—especially if the only alternative was a domestic despot.

 

The Fiction of Colonial Legitimacy

It might appear that this response paper will now move to defend Gilley’s case for western colonialism on the grounds that he is right that it could be both “objectively beneficial and subjectively legitimate.” This appearance might be reinforced by the recognition that the account of government legitimacy offered above is that of Michael Hechter’s, whose book Alien Rule was cited approvingly by Gilley as showing that “alien rule has often been legitimate in world history” (Gilley, 4). But this appearance is misleading—as is Gilley’s use of Hechter’s work to support his position.

As Khan rightly notes “[e]vidence is key for scholarship and policy both: poor empirics lead to weak scholarship and bad policies”. So, does Hechter’s work support Gilley’s claim that “alien rule” has “often been legitimate in world history” as Gilley claims?

It emphatically does not. In discussing alien rule—which he defines as being that by an authority “in a given collectivity, who are themselves not members of that collectivity” (Hechter, 2)—Hechter holds that “a government is legitimate to the extent that its rules are considered rightful by both dominant and subordinate members of society” (Hechter 2013, 16). After (rightly) noting that “this is an exceedingly demanding condition to meet” (Hechter 2013, 16) Hecther nonetheless observes that “when aliens are confronted by incentives to rule fairly and efficiently, they can gain legitimacy” (Hechter 2013, 24). To illustrate this possibility Hechter provides the examples of the rule by the podesteria in the thirteenth-century Republic of Genoa (Hechter 32 – 35), the rule of the principally British Chinese Maritime Customs Service that occurred under the purview of successive Chinese governments from 1854 to 1950 (Hechter 2013, 35 – 38), and the British rule of Hong Kong at the time of its handover to China (Hechter 2013, 44). These were, Hechter claims, all examples of legitimate alien rule.

But that Hechter provides only three examples of arguably legitimate alien rule that occurred anywhere in the world for a period of time ranging from the thirteenth century to the late twentieth century hardly supports Gilley’s claim that his work shows that “alien rule has often been legitimate in world history” (emphasis added). Indeed—and contra Gilley’s citing of his work to support colonialism—Hechter takes pains to emphasize that he “does not attempt to make the case that alien rule is superior to native rule” (Hechter 2013, 140). He expressly notes that “[a]lien rule typically is disastrous” (Hechter 2013, 141) and that “in the case of classical colonialism” incentives to rule well “are usually weak, if not altogether absent” (Hechter 2013, 44). The correct conclusion to draw from Hechter’s work is thus that that colonial rule is almost always illegitimate, not that it is “often” legitimate.

 

Gilley Moves Further into Error

But Hechter’s is not the only work that Gilley misuses to support his claims. Khan has already documented Gilley’s misuse of the work of Berny Sèbe, as well as that of Alexander De Juan and Jan Henryk Pierskalla. Gilley also misrepresents the position of Patrice Lumumba, the mid-century Congolese politician, to support his view that colonial rule was regarded as legitimate by those subject to it. Gilley cites Lumumba’s autobiographical praise of Belgian rule for “restoring our human dignity and turning us into free, happy, vigorous, and civilized men,” noting that Lumumba “became an anti-colonial agitator only very late” (Gilley 2017, 4). Gilley gives the impression that Lumumba’s status as an “anti-colonial agitator” was rather minor (perhaps the Congolese equivalent of a “community organizer”) and that Lumumba adhered to his colonial sympathies for many years, abandoning them “only very late.” But these impressions are misleading. The autobiography from which Gilley quotes was written between 1956 and 1957. It was posthumously published in 1962, and there is considerable doubt as to whether it represents Lumumba’s true views. In 1960 Lumumba publicly condemned Belgian colonial rule, describing it as “humiliating slavery” in a famous speech on the occasion of Congo’s independence. He went on to condemn in no uncertain terms the “ironies, insults, blows that we endured morning, noon, and evening, because we are Negroes,” the seizure of lands from Congolese “in the name of allegedly legal laws which in fact recognized only that might is right,” and the fact “that the law was not the same for a white and for a black, accommodating for the first, cruel and inhuman for the other.” For Gilley to refer to Lumumba as a defender of Belgian colonialism is thus utterly bizarre. And rather than being merely an “agitator” Lumumba was the first President of the independent Democratic Republic of the Congo—in which capacity he condemned Belgian colonial abuses.

 

Conclusion

While Khan is mistaken to hold that in theory one of the principles of libertarianism is that persons should be free from foreign rule, even the evidence that Gilley himself cites shows that she is correct to note that in practice colonial rule is “fundamentally exploitative” of the colonized. Moreover, as Gilley’s misuse of the work of Hechter, Sèbe, De Juan and Pierskalla, and Lumumba shows, Khan is also correct to remind us that we should be constantly vigilant for attempts to re-write history in ways that do not comport with the facts. And while this vigilance should obviously include checking the accuracy of claims, it should also lead us to ensure that even mistaken and misleading views (such as Gilley’s views on colonialism) are not excised from the historical record. Such views should be rebutted—not retracted.

I would like to thank my response authors Berny Sèbe and James Stacey Taylor for engaging so thoughtfully with my lead essay. While we are all against colonialism and argue against its reestablishment, each of the responses has raised interesting questions on the theory and practice of colonialism, two of which I would like to further examine here.

Sèbe elegantly lays out the intellectual faults in colonial ideology and argues that replicating colonialism—specifically the version prevailing between the early nineteenth century and World War II—would not be possible, mainly because “Historical events never repeat themselves exactly, and there is no reason why nineteenth-century European colonialism would be an exception.” This is true enough, but one of Gilley’s arguments was that colonialism is already taking place in the form of “euphemisms that avoid the ‘C’ word,” such as shared sovereignty, conservatorship, proxy governance, transitional administration, neo-trusteeship, and cooperative intervention (p.8). Stephen Krasner explains shared sovereignty as an arrangement between external entities and internal authorities that are designed to efficiently govern a shared territory. Similarly, transitional administrations are defined as temporary political arrangements in which an international organization, like the United Nations, assumes the responsibility of principal governance for a short period. Transitional administrations have been employed in East Timor, Bosnia-Herzegovina, Eastern Slavonia, Somalia, Kosovo, Iraq, and South Sudan. In 2004, James D. Fearon and David D. Laitin described neotrusteeship as “postmodern imperialism” because “these efforts involve a remarkable degree of control over domestic political authority and basic economic functions by foreign countries.” They used Bosnia, Kosovo, East Timor, Sierra Leone, and Afghanistan as examples and stated that such an arrangement could emerge in Iraq—as it has.

The question before us is twofold: Has Gilley misunderstood the fundamental basis of these arrangements? Though he has clearly misused literature, as documented in both response essays and elsewhere, Gilley does make a valid point here. Just because the term “colonialism” is not used to explain these new political arrangements and emergent orders, it does not mean that they are not colonial in nature. A broader concern then is: can sovereignty be shared without the exploitive system of colonialism emerging?

In his excellent response, James Stacey Taylor argues that colonialism can never be legitimate in practice, but can in theory. As such, he has challenged me on my understanding of libertarianism’s relationship with foreign rule. While I argue that one libertarian principle is “freedom from foreign rule,” Taylor argues that it is in fact more about being subjected to the rule of law. According to Taylor, “Libertarianism is concerned that persons be subject to publicly announced laws that protect the rights of, and bind, all members of the polity equally independently of their social position.” A government, therefore, is legitimate when all members, dominant and subordinate, accept the laws passed by it. So even if a government is established by a foreign entity, as long as the laws are accepted by all members of society, it is legitimate.

I agree with Taylor in part. Rule of law and equality under that law are important libertarian principles. But similarly important is that the people have a say in the nature and content of the laws that govern them. In systems of colonial and foreign rule, there is a divide between the governing class and the governed. And the governing class gets farther and farther away—geographically, culturally, linguistically, etc.—from the governed and therefore is far more likely to be abusive, discriminatory, or inconsistent with the preferences of the locality. Hence, even if the law is applied equally, libertarianism calls for it to be locally administered, subject to change according to the preferences of the population, and legitimated by the consent of the governed. Colonial and foreign rule tends not to meet those requirements. My question for Taylor is: how can foreign rule ever be legitimate theoretically? A broader concern is about the nature of foreign rule: can foreign rule ever be non-colonial?

Finally, even though Bruce Gilley’s controversial article has been retracted, when I first critiqued it, my goal was not for it to be retracted. As Taylor stated, “Such views should be rebutted—not retracted.” While it troubles me that retraction was due to death threats to the editor rather than faulty research and misinformation, it indicates how we all, scholars and non-scholars alike, remain sensitive to colonialism and its long-term consequences.  

 

In her reply (“Colonialism by Any Other Name”) to my response to her original essay in this issue (“Libertarians Shouldn’t Accept the Case for Colonialism”) Sahar Khan takes issue with my claim that a government will be legitimate when all of its members accept the laws passed by it—a claim that would allow (in theory) a colonial government to be legitimate. Khan agrees with me that “Rule of law and equality under that law are important libertarian principles.” But she also holds that “the people [must] have a say in the nature and content of the laws that govern them” for such laws to be legitimate. Noting that in systems of foreign rule there is a divide between the governing class and those they govern, Khan observes that in such systems the governing class “is far more likely to be abusive, discriminatory, or inconsistent with the preferences of the locality.” Hence, she concludes, “libertarianism calls for… [the law] to be locally administered, subject to change according to the preferences of the population, and legitimated by the consent of the governed,” noting that “colonial and foreign rule tends not to meet those requirements.”

 

I agree with most of Khan’s analysis of the requirements that a law must meet for it to be legitimate, in the sense of the law imposing a moral obligation to obey upon those subject to it. I also agree with her astute observation that in practice the further the governing class gets from those they govern the less likely it will be that the laws that it passes will fulfill these requirements. But I disagree with her claim that for a law to be legitimate the people that it governs must have participated (or had the opportunity to participate) in its formation.

 

In what follows I will focus exclusively on laws that require persons to perform, or refrain from performing, certain acts, and will not address those laws—such as those that outline what procedures must be followed for a will to be legally valid—that enable persons to perform particular legally recognized acts.

 

That persons subject to a law need not participate (or have had the opportunity to participate) in its formation for them to be obligated by it follows straightforwardly from the view that a law can obligate someone if she agrees to be obligated by it, for a person could agree to be obligated by a law even if she has no say in its formation. A person could thus be obligated to obey laws imposed by a government that had colonized her country even if she was excluded from the processes that led to them, provided she agreed to obey the laws it imposes upon her. Khan might, however, observe that this response to her question avoids the thrust the question: That while my defense of the possibility of persons being obligated by the laws imposed upon persons subject to colonial rule was theoretical in nature this response is too theoretical, for it is unlikely that anyone subject to colonial rule agreed to be obligated by it.

 

This is a reasonable response. (And one that Khan could press further, to note that if this is the only way of grounding the obligation to obey the law then almost no one would be obliged to obey the laws that they are subject to.) But a person could be obligated to obey laws that she did not expressly consent to if they enjoin her to perform (or refrain from performing) actions that she had an independent moral reason to perform (or refrain from performing) in the absence of the law. In this case the obligation to obey the law would stem not from the fact that it was the law, but from the prior moral obligation to perform (or refrain from performing) the act in question. If colonial laws were restricted like this then persons would be obligated to obey them independently of whether or not they had had the opportunity to contribute to the process that led to them.

 

As with my initial focus on express consent Khan could respond by noting that, again, this approach to establishing the obligation to obey colonial laws would legitimate very few of them. However, the final way in which a law might obligate those who are subject to it is more expansive: That a person will be obligated to obey a law if she has expressly agreed to be obligated by the laws that are passed by a particular legislative body. This approach to establishing political obligation differs from the first consent-based approach insofar as the persons who are to be bound on this account could do so prior to knowing the content of the laws that will be passed; they simply trust the judgement of the legislators and agree to be bound by their decisions. In theory, then, persons living under a colonial regime could be obligated to obey its laws even if they had not expressly consented to the particular laws in force, if they had no prior moral obligation to perform (or refrain from performing) the acts that the laws required them to perform (or refrain from performing), and if they had no say in the content of the laws or the processes by which they were enacted.

 

This is, of course, only a theoretical defense of the legitimacy of colonial laws. No colonial government ever governed with the consent of all the persons subject to them, and so no colonial government was ever legitimate. On this, I think, Khan and I can agree.

 

In closing, however, I would like to pose two questions to Khan, which echo her own closing questions. Could it ever be legitimate for the government of a country to sub-contract some of the role of government to independent contractors—including foreign contractors? Could an international market in government services ever be morally legitimate? And, if so, would the provision of those services count as colonialism?