Legal History, Political Marxism, and “Jurisdictional Accumulation” — Christopher Tomlins

[This post reviews Maïa Pal’s recently published Jurisdictional Accumulation: An Early Modern History of Law, Empires, and Capital (Cambridge: Cambridge University Press, 2021).]

Over the past twenty years Marxist scholarship has achieved a significant presence in the field of international law. Maïa Pal’s Jurisdictional Accumulation is a noteworthy addition to the body of specifically legal-historical research available in this area. It is also quite distinctive in its own right, whether in its early modern focus, in the specific problem—extraterritoriality—it seeks to disinter, or in the nature of the Marxism that it embraces. Where, for example, China Miéville’s pioneering Between Equal Rights: A Marxist Theory of International Law embraced the commodity-form theory of law outlined by Evgeny Pashukanis in his General Theory of Law and Marxism, Pal situates her work in the “Political Marxism” of the anglophone tradition associated with Robert Brenner and Ellen Meiksins Wood. She finds commodity-form theories of law too structuralist for nuanced expression of the multiple modes of office and authority that comprise the raw material for her study. In her terms, the commodity-form approach is too “consequentialist” or a priori, too quick to identify the legal form, ahistorically, with commodity exchange, and too insensitive both to legal agency and to widespread differentiation in the transpositions of law that characterize the different European empires (Castilian, French, English/British, and Dutch) that are her subject.  

What, then, is “jurisdictional accumulation”? Jurisdictional accumulation is the accumulation of the capacity to produce effects through the exercise of office. Specifically, Pal identifies three distinct modalities of jurisdictional accumulation within and over early modern empires undertaken by diplomatic and colonial agents: extension, transplantation, and transportation. Extension comprises the incorporation of contiguous lands and people under one authority. The original meaning of empire being unity of jurisdiction within a given territory (e.g. Act 24 Hen. VIII c. 12, “This realme of England is an Impire”), extension describes the process of achieving unity of rule over contiguous territories and people, and over competing sources of authority, as in the early modern/modern extension of unified rule throughout the British Isles. Transplantation of authority describes the reproduction of an imperial sovereign’s authority in non-contiguous territories, usually through conquest, and the creation of an assemblage of jurisdictional institutions that organically reorders the territory and inhabitants in question in juridical subjection to that newly created order of sovereign authority. The most thoroughgoing example of accumulation via transplantation is the Castilian empire in the Americas, but transplantation also describes the dispatch of ambassadors who become microcosmic representations of their sovereign’s authority in alien territories. Transportation of authority, in contrast, is a delegation or outsourcing of sovereign authority to others—settlers, chartered companies, mercantile interests, consuls—who use that authority both on the sovereign’s behalf and their own to gain ascendancy over land and resources. The French, Dutch, and English empires in North America are all examples of transports of authority. On the microcosmic scale of representatives in alien territories, consuls commissioned to represent mercantile interests in foreign ports and to adjudicate their disputes also stand as examples of transports of authority.

Pal’s objective in theorizing jurisdictional accumulation is to refashion the history of extraterritoriality in international law by vastly expanding its scope beyond the “little islands of alien sovereignty” (1) represented by the history of ambassadorial establishments (in particular embassy chapels) in northern European cities to encompass the entire sweep of international legal transpositions, using early modern empires as her point of focus. [1] Jurisdictional accumulation obviously references other forms of accumulation, notably capital accumulation. Indeed, the accumulation of jurisdictional “claims, rights, titles, and functions” on the one hand, and of revenues, property, and wealth, on the other, cannot be dissociated (3). But Pal’s concept intentionally underscores legality as of itself a potent source and conveyance of authority rather than as the homologous “form” for commodity exchange. “Jurisdictional accumulation captures a new narrative on the ‘social property relations’ of early modern empires and capital, notably through the social origins and legal means of settlement, negotiation, and trade of various sub-sovereign and diplomatic actors” (3). One can see here the importance of Political Marxism’s emphasis on the specificities of agency.

Laying “the analytical foundations” of her study (159) occupies Pal for well over half of the book. Only then does she present her own empirical research on “actors and practices identified as jurisdictional accumulation” (159). This research—one chapter on ambassadors and the social origins of diplomatic establishments, a second on Mediterranean consuls as agents and intermediaries in relations among sovereigns, merchants, trading companies, and regional institutions such as the Chambre de commerce de Marseille—certainly provides substance for Pal’s claims, but its relative brevity compared with the remainder of the book underscores that in this book Pal’s main research strength lies in her command of an extensive secondary literature from which she extracts substance to support her innovative argumentation and analysis.

Late in the book, Pal takes a moment to affirm its central argument: “Early modern empires were characterized by various practices of jurisdictional accumulation (transplants, transports, and extensions of authority) largely determined by the specificities of their own jurisdictional divisions (social property relations) and by the different strategies and sub-sovereign agents (diplomats, magistrates, merchants, lawyers) their ruling elites chose or negotiated with to maintain or elevate themselves among the divisions” (239). The book is to be welcomed as an able and convincing elaboration of this thesis. But alongside original inquiry into early modern history, Jurisdictional Accumulation evinces a commitment to the development of a historical sociology of early modern empires. That is, Pal’s goal is just as much the exposition of method as it is the presentation of original research. Legal historians may find that this may be its most lasting contribution to their work.

Christopher Tomlins is Elizabeth Josselyn Boalt Professor of Law at the University of California, Berkeley. His most recent book is In the Matter of Nat Turner: A Speculative History (Princeton University Press, 2020). 

[1] This and all other references to Pal’s book are in parentheses in the text.