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

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16 Chapman Law Review [Vol. 14:1
agricultural labor in California, saturated by the instrumental
use of race, class, and nationality in immigration and landownership
laws that consolidated agro-capital, is also a story of
accumulation by dispossession. 105 Finally, trade regimes that
entail ―neoliberal rescaling of governance to escape national-scale
environmental constraints,‖ 106 and new appropriation of the
commons for private profit whereby ―the global commons are
being enclosed,‖ 107 are instances of accumulation by dispossession.
One specific result of accumulation by dispossession that is
central to the production of slums is the emergence of a reserve
army of labor. While dispossession destroys traditional
entitlements and subsistence economies and estranges direct
producers from their means of labor, all those dislocated are not
absorbed in the new production process. 108 This unabsorbed
labor may be ―free,‖ but it is suspended between the shrinking
subsistence economy and the volatile formal markets. This
unabsorbed labor is the so-called surplus humanity and includes:
105 Agricultural employers ―used one group after another, in a vast, repetitive cycle of
recruitment, employment, exploitation, and expulsion.‖ RICHARD A. WALKER, THE
CONQUEST OF BREAD: 150 YEARS OF AGRIBUSINESS IN CALIFORNIA 66–74 (2004). Since
the Civil War, California‘s agricultural labor was recycled and displaced with the bulk
furnished serially by European immigrants, the Chinese, the Japanese, Filipinos,
Mexicans, and undocumented workers. Id. The cycle of labor rotation prevented workers
from securing better wages and more rights. The extra-economic measures to orchestrate
this cycle included the Chinese Exclusion Acts of 1882, 1892, and 1902, the 1917
Immigration Act, the bracero program, and the 1965 Immigration Reform Act. One
should include here other extra-economic developments like breakdown of the late Q‘ing
era regime in China, the U.S. colonization of the Philippines, and the Mexican Revolution.
Id.
106 James McCarthy, Privatizing Conditions of Production: Trade Agreements as
Neoliberal Environmental Governance, 35 GEOFORUM 327, 330–32 (2004). McCarthy sees
this as a reinforcement of the neoliberal ―regulatory takings‖ thesis ―that completely
unencumbered, asocial private property is the norm and that the state must pay its
citizens for any exercise of its governance powers.‖ Id. Legal regimes of agreements, such
as NAFTA, inscribe private rights to surplus value by reinforcing public responsibility for
externalities generated by private appropriation. Id. One specific instance is global legal
regimes that force governments to reimburse capital interests for any costs that
environmental protection legislation may entail. Id. In this schema, environmental
protection is construed as a barrier to trade and penalized or struck down. Id.
107 Hartsock, supra note 101, at 176. At play here is the enforcement of everexpanding
intellectual property rights, depletion of global environmental commons,
privatization of public assets and services, and rollback of regulatory frameworks
governing the commons. HARVEY, THE NEW IMPERIALISM, supra note 79, at 146–48.
108 It is the foundation of Keynesian critique of classical economics that capitalism
does not produce any automatic tendency toward full employment. See JOHN MAYNARD
KEYNES, THE GENERAL THEORY OF EMPLOYMENT INTEREST AND MONEY (1936); Thomas I.
Palley, From Keynesianism to Neoliberalism: Shifting Paradigms in Economics, in
NEOLIBERALISM: A CRITICAL READER 20, 20–23 (Alfredo Saad-Filho & Deborah Johnston
eds., 2005) [hereinafter Palley, From Keynesianism to Neoliberalism]; SKIDELSKY, supra
note 14.