Historical Materialism and International Law - University of Sussex

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DRAFT PAPER – PLEASE DO NOT QUOTE WITHOUT PERMISSION focuses on the spatial heterogeneity of capitalist expansion 24 , the former highlights its temporal disjuncture.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). 16
DRAFT PAPER – PLEASE DO NOT QUOTE WITHOUT PERMISSION 'bourgeois' or commercial interests and (to some extent) state-led finance? Why were the officier and robe nobility (Parlementaires) class, the European reproduction of officier class (diplomacy, dynastic alliances) and also the colonial reproduction of Ancien Regime institutions hindrances to capitalist accumulation? In effect, they constituted elements of the struggle, in the sense of not freeing labour and not letting productive classes eliminate working conditions and rules for reproduction that slowed down innovation and productivity. Although some of these strategies of legal expansion, or jurisdictional accumulation, were also a 'point where property law, colonial law and IL came together' (Neocleous, 2012), they did not necessarily or even at all constitute an absolute link between expropriation of land and capitalist production, free from traditional or absolutist state territorial interests. In other words, these three forms of law (property, colonial, international) might come together in an act of violence that constitutes accumulation for the dominant class, but it does not necessarily require the regime of property relations and class struggle specific to capitalism as it emerged in England 25 . Therefore, to conclude, the point here has been to emphasise the spatial and temporal heterogeneity of jurisdictional struggles, as a permanent feature of the history of international legal orders. Furthermore, we need concepts of accumulation that can account for the varying combinations of law, violence and socio-economic transformations that frame those struggles. However, we cannot justify, in the name of Marxism or structural violence, the theoretical move of subjugating jurisdiction to primitive accumulation or capitalist expansion. Jurisdiction, i.e. legal agency and its attempts to create, appropriate, resist or reclaim power and legitimacy, remains historically above and beyond the event of capitalism. Without making this claim, we cannot justify any politico-juridical act as anticapitalist or revolutionary; we would have to seriously curtail our ways of thinking critically about law or any kind of legitimate right of resistance in the face of institutional oppression and economic exploitation. Such a conclusion would be empirically false and normatively uninspired. 25 I do not believe this takes away the strength of the argument regarding the temporal permanence of ‘primitive accumulation’ and systematic colonisation as necessary to capitalist expansion and reproduction today – I think this requires a separate discussion, but I believe it is consistent to see primitive accumulation as a recurring process, while acknowledging the influence of regimes of property relations and of jurisdictional struggles as determining the conditions for instances of primitive or other less directly violent forms of accumulation 17
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Historical Materialism and International Law - University of Sussex

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