Historical Materialism and International Law - University of Sussex

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focuses on the spatial heterogeneity of capitalist expansion 24 , the former highlights its temporal
disjuncture.
Is Neocleous' generic use of 'primitive accumulation' a solution to the limits of the Pashukanis-
Mieville legal form analysis? It has the advantage of focusing on process and jurisdiction, rather than
assuming a category (i.e. the legal form of private property and the individual citizen as owner of a
commodity in exchange, which is then used for an analogy to the state as owner/holder of
sovereignty). However, Neocleous still seems to universalise and homogenise the relationship
between legal structure and agency, or between dominant and oppressive forms of legal power on the
one hand, and struggles for independence or resistance to that power on the other. This is because the
notion of primitive accumulation, based on violence and systematic colonisation, does not allow for the
various activities and representations (or technologies of jurisdiction) that struggle against the
recurring pattern of primitive accumulation. This struggle cannot but invoke or rely on conceptions of
right, justice or legitimacy and thereby constitute jurisdictional activism (e.g. today, these could
englobe struggles for self-determination and basic social and economic rights, occupations and Occupy
movement as creating alternative jurisdictional spaces). Basing the Marxist critique of IL around
primitive accumulation does not leave enough space for the ambiguity and uncertainty of jurisdiction
as a strategy of accumulation, whether it be used by mercantilist, dynastic, capitalist and also today,
anti-capitalist actors.
In terms of the early modern to modern history of IL, existing concepts of accumulation fail to
account for the specificity and agency of jurisdiction. They do not allow for legal processes that have
political and economic consequences and which are driven by actors juggling with absolutist and
mercantilist interests. During the long process of transition and political expansion from the 16th to
the late 18th centuries, these processes played a crucial role, one that has not been sufficiently
acknowledged. If geopolitical accumulation has been used to refer to Spanish and French legal
strategies of expansion, I argue that this concept misses the constitutive role of jurisdictional struggles
for state formation, and thus the enduring role of jurisdictional conditions of accumulation for social
and political processes.
Thus, the hidden history of IL calls for the concept of jurisdictional accumulation to account for
contested and heterogeneous processes of expansion and colonisation. This provides a theoretical
starting point to understand legal agency from a critical historical and sociological perspective, while
going beyond and avoiding the limits of deterministic and structuralist categories of ‘legal form’ and
‘bourgeois state’.
For example, why did peasants and lords in 17th-18th century France, and even 19th century
workers continue using legal strategies (guild, corporation statutes and customs) as means to resist
24 For Lacher, this consists in “the changing spatialization strategies of states, classes and firms, which structure
historical epochs” (2006: 119).
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