Discipline all the way down: Law and capital in Shaina Potts’ Judicial Territory

Abstract

This commentary engages Shaina Potts’ Judicial Territory as a significant methodological contribution to economic geography – one that draws crucial attention to the (often opaque) relationship between law and capitalism and provides geographers with a set of tools to penetrate it. Highlighting three key elements of Potts’ approach to the study of capitalist sociospatial relations, I explore how her focus on the law makes visible actors, logics and modes of political and economic discipline that have largely remained hidden from view in economic geography. First, Potts frames law as a ‘structuring link’ between capitalism and imperialism, developing a theoretical perspective that sheds light on the legal production of uneven development and social difference. Second, she outlines a method of ‘geographically relational’ legal analysis that offers practical lessons for incorporating law into political-economic investigations. And third, through her analytical focus on episodes of legal struggle and contestation, Potts reveals how diverse sets of forces, actors and motivations come together to produce legal change. Here, Judicial Territory highlights the complexity of legal transformation and its relationship to capitalist globalization without losing sight of a basic motivation behind it: the drive to discipline Third World states and repress non-capitalist forms of economic life.

In Judicial Territory, Shaina Potts contributes to a multidisciplinary body of work on the role that law has played in forging capitalist globalization and American imperialism in the post-World War II era. In a global context of decolonization, and amidst official pronouncements of the United States’ commitment to a post-imperial world, Potts argues that the expansion of US judicial territory (i.e. the spaces over which US courts exercise authority) beyond US borders has emerged as a ‘pillar of post-World War II American empire and the liberal international order so closely connected to it’ (Potts, 2024a: 3). Through an historical account of legal cases that spans from the 1920s to the 2010s and travels across a range of geographies – from post-revolution Cuba to Cold War Washington DC, to contemporary Argentina – Potts traces how this expansion has quietly undermined the national sovereignty of Third World states, supported the interests of American business and transnational capital, and protected private property rights against the threats posed by the developmentalist programmes of postcolonial nations. While Judicial Territory is a pathbreaking book that makes important interventions in a range of active debates over the changing nature of territorial sovereignty, the construction of the postwar economic order, sovereign debt crises and financialization, this commentary engages with it more narrowly as a methodological contribution to the field of economic geography – one that draws crucial attention to the (often opaque) relationship between law and capitalism, and provides geographers with a set of tools to penetrate it.

Over the past 30 years, legal geography has blossomed as a subfield, alerting geographers to the ‘mutual imbrication’ of law, space and society (Blomley, 1994: 28). Yet economic geographers have been relatively slow to engage with this neighbouring body of work and have, for the most part, sidestepped legal questions in their analyses (Orzeck and Hae, 2020; Potts, 2024b; cf. Barkan, 2011, 2013; Christophers, 2014, 2016; Kay, 2016; Potts, 2016, 2020; Teresa, 2016). This is surprising because, as Potts (2024a: 35) writes, law ‘plays a central role in the production of economic geographies’. As Thompson (1978: 288) once argued, law is a pivotal force in moments of socio-economic transformation, when it is ‘forced to change its language and to will into existence forms appropriate to the mode of production’. For Mandel (1975: 477), law was similarly the ‘midwife of the capitalist mode of production’. For Marx, it was a mysterious yet critical factor in the uneven development of capitalism: as he wrote in The Grundrisse, ‘the really difficult point to discuss. . .is how relations of production develop unevenly as legal relations’ (see Hall, 2021: 76). While critical political economists and legal scholars have recently reengaged with these suggestive statements, beginning to flesh out a new critique of the relationship between law and capitalism (see Blalock, 2022), economic geographers have remained largely on the outside of these conversations. With Judicial Territory, Potts carves out several theoretical and methodological opportunities for economic geographers to join them – and uncover new dimensions of economic space-making in the process. Highlighting three key elements of Potts’ approach to the study of capitalist sociospatial relations, the remainder of this commentary explores how her focus on the law makes visible actors, logics and modes of political and economic discipline that have, thus far, remained hidden from view in economic geography.

First, on the level of theory, Judicial Territory offers a nuanced and non-reductionist framework for thinking about the relationship between law and capitalism. If early work in legal geography tended to eschew questions about ‘capitalism’ and economic systems as part of its rejection of structuralist forms of analysis that left little room for contingency (see Blomley and Clark, 1990; Chouinard, 1994), Judicial Territory makes a powerful case that a materialist theoretical framework can reveal how law works to (re)produce enduring relations of power, exploitation and domination, without drifting into the kind of economic reductionism that legal geographers have long feared. Conceptualizing law as a ‘structuring link’ between imperialism and colonialism, Potts (2024a: 36) argues that law is not only partially constitutive of both social formations, but that it has ‘facilitated processes of expansion, dispossession and extraction that connected imperial and capitalist development’. Both capitalism and imperialism produce and thrive on spatial variegation and hierarchized social difference and Potts shows that various forms of law have played a pivotal role in the construction of these forms of difference. During the colonial period, for example, international law helped to establish and entrench racial hierarchies and distinctions between the humanity of the colonizer and the colonized, in ways that shaped the variegated geographies of empire and ‘justified territorial expansion, the exploitation of indigenous labor, and the extraction of resources from non-white peoples on which both imperialism and capitalism depended’ (Potts, 2024a: 36). Within colonies, domestic law shaped the internal differentiation and racialization of populations in ways that aligned with their expansionary economic ambitions. In the United States, for example, Potts (2024a: 37) writes that ‘in the century and a half after the American revolution. . .the intensified American commitment to “free” markets and property rights was inseparable from ideas about racial superiority and the desire for new lands and resources’. While Potts builds on classic theories of the relationship between law and capitalism to construct her framework – including legal institutionalism and Marxist approaches – she also moves beyond them, through this close attention to socially- and politically-inflected processes of differentiation and legitimation, and through an awareness of the shifting class content of law. Resonant with some historical materialist approaches to the study of law – which stress the pivotal role of legal agency in shaping capitalist development (Cutler, 2003) and show how law flexes in concert with evolving social relations to help ‘capitalism negotiate its barriers’ (Brophy, 2017: 184) – this theoretical angle frames law in a way that aligns with the relational and contextual sensibilities of economic geography. For Potts, law is an institution that is produced and embodied in specific social processes and relationships; it is a force that is integral to the reproduction of capitalism, but not straightforwardly determined by it.

With this theoretical framework, Judicial Territory also shows that attention to law can shed new light on two of the core concerns of economic geography: the problematic of uneven and combined development (and the intense spatial variegation that goes along with it), and the constructions of social difference that intersect with and underpin capitalist development. In recent years, critical geographers have deepened their engagements with these topics by drawing on anti-colonial, Black radical, intersectional feminist and Marxist theory to explore the differentiating dynamics of capitalism (see e.g. Alami, 2024; Al-Bulushi, 2022; Collard and Dempsey, 2020; Ebner and Johnson, 2021; Goffe and Luke, 2024; Pulido, 2017; Strauss, 2020; Werner et al., 2017). While law has so far been absent in most of this work, Potts’ theoretical approach brings its hidden role in processes of social and spatial differentiation to the surface. Through its emphasis on law as a tool that has facilitated the uneven incorporation of different regions and populations into the postwar capitalist order, Judicial Territory lays the groundwork for productive engagements with legal questions in geographical studies of racial capitalism, social reproduction and uneven development.

Second, on the level of method, Judicial Territory offers valuable practical lessons for incorporating law into political-economic and geographical analysis. To construct her argument, Potts analyses landmark legal cases that have been particularly important in shaping changes in foreign sovereign immunity and act of state rules. Focussing primarily on case documents and final judicial decisions, as well as briefs submitted by litigants and the executive branch of the US government, Potts develops a mode of reading these documents that she describes as simultaneously historical and spatial, or ‘geographically relational’ (Potts, 2024a: 23). Here, Potts builds on the methodological sensibilities of critical legal scholars, who critique and denaturalize law through historical analysis. But with her relational method, she also expands the optic to capture more than just temporal change, capturing a wider geographical and economic context than critical legal scholars generally do, and explicitly connecting legal transformation to other sociopolitical processes. She shows, for example, how the act of state doctrine was weakened throughout the 1960s and 1970s in the wake of the Cuban revolution, when Fidel Castro’s socialist government began to nationalize American-owned private property located on Cuban soil. While even critical legal scholars have explained the restriction of the act of state doctrine as a natural, apolitical response to deepening economic integration, Potts situates it as part of the wider US response to the Cuban Revolution, showing that most act of state cases from the 1960s onwards involved disputes between US investors and socialist or Third World States, and that many of these disputes arose over expropriations of US private property. The transformation of the act of state doctrine, then, not only led to a major expansion of US judicial territory, but also to the subversion of nationalization projects. By reading legal cases in this geographically relational way, Potts (2024a: 171) highlights how ‘esoteric legal details and the depoliticized language of the rule of law’ mask the ways that law has helped to produce US power, undermine the national sovereignty of Third World and socialist states, impose new forms of market discipline on their domestic economic agendas and delegitimize anti-capitalist economic practices.

At the same time, within the cases she examines, Potts pays close attention to the redefinition and manipulation of key legal dichotomies, including distinctions between foreign and domestic, public and private and political and economic. In exploring how the redefinition of these distinctions helps to both reconfigure territorial sovereignty and ‘institutionalize a neoliberal understanding of the economy’ (Potts, 2024a: 4), the book demonstrates that attention to legal minutiae and technicalities can provide a window into the ‘larger’ power relations and disciplinary forces that underpin global capitalism. From this perspective, law offers an especially productive lens through which to examine political-economic change, because it can serve as a bridge between analyses that privilege ‘big structures and large processes’ (Tilly, 1984) and those that focus on human agency and negotiations. And while the key sources in Judicial Territory are case documents and judicial decisions, its analysis – which also touches on the mundane practices and daily work of judges, litigants and lawyers, as well as developments in legal theory – makes clear that there are many other pathways into this kind of political-economic study of law, including intellectual and social history (see Perelman, 2000; Slobodian, 2018; Thompson, 1975; Wheatley, 2023), ethnographic engagements with lawyers and lawmakers (see Latour, 2009; Riles, 2000) and sociological studies of the production and global circulation of legal theory and expertise (see Dezalay and Garth, 2002, 2021). With her focus on transformations in how US courts and their jurists regarded and understood foreign sovereign immunity and act of state rules, Potts’ account points particularly to the study of legal ideas and legal ‘epistemic cultures’ as fruitful avenues for future work.

Finally, Judicial Territory places an analytical emphasis on moments of struggle and contestation, revealing how diverse sets of actors, ideologies and motivations come together to produce legal change. In part, this focus on struggle comes out of analysing a common law system: as Potts (2024a: 12) stresses, ‘all common law develops through litigation, which is to say through disagreement and conflict’. But it also highlights that the expansion of US judicial territory has been largely reactive, born from an ambition to repress ‘anything that smelled vaguely of Communism or simply of non- or “more-than” capitalist developmental efforts’ (Potts, 2024a: 24). The cases that extended US judicial power (particularly during the Cold War) involved explicit debates over territory and sovereignty, the boundaries of the public and the private and the proper relationship between the political and economic realms at a time ‘when life on the planet literally hung in the balance over the issue of how government and economy were related’ (Buck-Morss, 1995: 436). They were, therefore, connected to a tangle of actors and ideological questions whose scope expanded far beyond the realm of transnational commercial law. Here, Potts highlights the complexity of legal transformation and its relationship to capitalist globalization but never loses sight of the fundamentally disciplinary motivations behind it: to force Third World and socialist states to align their agendas with the demands of the US-dominated postwar economic order and to contain political threats to US capital.

In recent years, critical scholars have argued that these disciplinary and repressive functions sit at the heart of many forms of law in the neoliberal era (see Blalock, 2014; Britton-Purdy et al., 2020; Brown, 2015; Grewal and Purdy, 2014). Across sites and scales – from domestic systems of criminal punishment and incarceration to international legal institutions – law has increasingly been used as a tool for achieving a market-based social and economic order and constraining alternative possibilities (see Gill and Cutler, 2014; Gilmore, 2007; Roberts, 2017; Slobodian, 2018; Wacquant, 2009). Whether that constraint is realized through the criminalization and punishment of individual non-conformity with the demands of market society, through the placement of legal limits on collective action, or through the restriction of foreign governments’ economic autonomy, the results are similar: social and political conduct are modified in ways that align with the interests of capital; behaviours that fail to conform to these demands are punished; and market rule is backed by legal forces that make other ways of organizing economic life difficult, if not impossible. Digging down into the opaque world of legal minutiae and technicalities, Judicial Territory provides a window into these reactive, disciplinary dynamics in one pivotal arena of law. Armed with its methodological lessons, economic geographers might begin to map how they operate in many more.