“Surplus Humanity” and the Margins of Legality - Chapman University

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12 Chapman Law Review [Vol. 14:1
coercion made capital accumulation possible. 82 Coercion
triggered the genesis of capitalism—availability of ―free‖ labor
with no other means of livelihood except their labor to be sold in
a nascent ―free‖ labor market, and the availability of capital to be
deployed in the incipient manufacturing industries. Historically,
the process turned on ―ex-novo separation between producers and
means of production.‖ 83 The key issue here involves the
―conditions, circumstances and contexts in which this separation
is enforced.‖ 84 Contrary to the mythologies of classical economics,
this is a realm outside the market governed by pure economic
laws—a zone where this separation is effectuated through direct
extra-economic forces residing in the coercive power of the state
and the law. 85 Two domains of extra-economic power were
critical to this process: coercive laws that forced subsistence
producers into the ―free‖ wage labor market, and colonial plunder
that made capital available for investment.
Colonialism, facilitated by an elaborate reordering of
international law, filled the coffers of the fledgling mercantile
class of Europe and generated the financial resources to engage
the ―freed‖ labor in production governed by profit maximization. 86
Besides direct plunder of resources in the colonies, agricultural
lands in the Americas and plantation colonies in the Caribbean
82 As Polanyi reminded us, ―[t]he road to the free market was opened and kept open
by an enormous increase in continuous, centrally organized and controlled
interventionism.‖ KARL POLANYI, THE GREAT TRANSFORMATION: THE POLITICAL AND
ECONOMIC ORIGINS OF OUR TIME 146 (2001). Jessop adds:
[N]either capitalism as a whole nor the capital-labor relationship on which its
contradictory and conflictual dynamic depends can be reproduced purely
through market relations. Both require supplementary modes of reproduction,
regulation and governance[,] including those provided in part through the
operations of the state.
BOB JESSOP, THE FUTURE OF THE CAPITALIST STATE 11 (2002).
83 Massimo De Angelis, Separating the Doing and the Deed: Capital and the
Continuous Character of Enclosures, 12 HIST. MATERIALISM 57, 63 (2004).
84 Id. at 66.
85 Polanyi focuses on the role of state power in the commodification of land and
labor, what he terms ―fictitious commodities.‖ POLANYI, supra note 82, at 71. He points
out that capitalism ―was submerged in general social relations; markets were merely an
accessory feature of an institutional setting controlled and regulated more than ever by
social authority.‖ Id. at 70.
86 For example, silver from the ―New World‖ roughly tripled Europe‘s supply.
FERNAND BRAUDEL, II CIVILIZATION AND CAPITALISM, 15TH–18TH CENTURY: THE WHEELS
OF COMMERCE 198 (Sian Reynolds trans., Univ. of Cal. Press 1992) (1979). For the
relationship between colonialism and international law, see Antony Anghie, Francisco de
Vitoria and the Colonial Origins of International Law, in LAWS OF THE POSTCOLONIAL 89,
89–91 (Eve Darian-Smith & Peter Fitzpatrick eds., 1999); Antony Anghie, Finding the
Peripheries: Sovereignty and Colonialism in the Nineteenth-Century International Law, 40
HARV. INT‘L L.J. 1, 2–5 (1999); ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND THE
MAKING OF INTERNATIONAL LAW 116–17 (2004); MARTTI KOSKENNIEMI, THE GENTLE
CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870–1960, at 98–178
(2002).