Empire and/in/of capital: Response to the book forum on Judicial Territory

Abstract

In response to the four generous contributions to this forum on Judicial Territory, the bulk of this paper focuses on how to conceptualize the relationship among law, capitalism and empire. I suggest that it is important to avoid both legal and economic reductionism in our theorization of law and capitalism, and that, while law, capital and empire should be treated dialectically, there remains analytical utility to distinguishing between capitalist and imperialist logics. I agree that further engagement with the broader dynamics of global capitalist transformation would enrich my analysis of judicial territory. At the same time, I see the role of US judicial power in disciplining postcolonial states as itself being about the story of globalizing capitalism as much as it is about US empire. I discuss avenues for further research and agree with some of the commentators that more work on comparative judicial territories and sociolegal practices would both deepen and nuance the story of judicial territory. I conclude by briefly considering the future of judicial territory in the face of declining American hegemony, the rise of more explicitly interventionist state economic practices, and recent geopolitical economic upheaval.

It is surprisingly rare, even as an academic, to have the time to engage in sustained intellectual conversation on any topic, let alone to have a handful of brilliant scholars think so carefully about one’s own work. I am deeply grateful to all the contributors to this forum for their generous and critical engagement with my book, first at the 2025 Annual Meeting of the Association of American Geographers in Detroit, and now in the pages of this journal. I am, of course, gratified by the many very kind comments made by each contributor. Here, I will take advantage of the opportunity provided by this forum to wrestle with the most challenging issues and questions raised.

Alami (2025) and Barkan (2025) each push, in different ways, on my conceptual framing of the relationship among law, capitalism and empire. Alami suggests that I oscillate between a ‘strong’ and a ‘soft’ version of the claim that law is ‘constitutive’ of capitalism, with the former implying that law determines capitalist relations, rather than merely being important to them. While he is on board with the softer claim, the strong claim, he argues, is ‘untenable’ in the face of the many extra-legal things that constitute capitalism (especially extra-legal violence) (2025, p. 849). Alami believes I am at times ‘too quick in reconciling’ the two claims (2025, p. 849).

I fundamentally agree with Alami here, and I am relieved that he finds the book as a whole to support the soft rather than the strong version of the claim that law constitutes capitalism. If I did not emphasize this point more in the book, it is, I realize after reading Alami’s critique, because I was more concerned to avoid the far more common tendency towards economic determinism – that is, the suggestion that capitalism determines legal forms and, conversely, that law is little more than a servant of capital. Indeed, as Phillips (2025, p. 841) explains so concisely in her commentary, early work in legal geography was so concerned about this danger that it ‘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’. Thus, amidst a welcome renewal of interest in the relationship between law and capitalism in and beyond geography, I appreciate Alami’s caution against relying too heavily on work that tends towards a kind of legal determinism.

Yet, when Alami (2025, p. 850) says that, ‘if anything . . . the social relations that constitute capitalism as a totality hold analytical precedence over the particular . . . forms of expression of such relations’, I worry that this framing has the potential to go too far in the other direction. My own view is that ‘legal’ relations (including not only legal rules, per se, but also the socio-legal formation of judges, lawyers and legislators, the cultural status attached to legal ‘expertise’, the hierarchical nature of the court system, etc.) are part of the social relations that constitute capitalism. Like socio-natural, gendered or racialized dynamics, they should ideally be viewed as neither temporally nor analytically secondary to, but rather as articulated with the dynamics more commonly seen as core to capitalism.

In this vein, I appreciated Phillips’ summary of my book as suggesting that law is ‘a force that is integral to the reproduction of capitalism, but not straightforwardly determined by it’ (2025, p. 842) (emphases in original). Avoiding economic determinism, in my view, is necessary for enabling us to examine how legal practices within capitalist societies, while strongly influenced by the interests and ideologies of capital, are also shaped by more ‘orthogonal’ logics that are not reducible to and can even stand in tension with the logics of accumulation, class struggle, and so on. Moreover, the particular legal forms in play at any moment can, themselves, shape (without ever determining) the future development of capitalism, enabling certain pathways for change while constraining others (as theorists of regulatory ‘variegation’ have emphasized more broadly (Peck, 2023)). Thus, I find it useful to leave room for analytical distinctions between legal and capitalist logics without necessarily claiming precedence for one over the other.

This brings me to Alami’s other primary critique – that my framing of law as a ‘structuring link’ between capitalism and empire suggests a non-dialectical relationship among all three terms. I appreciate this critique. In retrospect, I believe Alami is right that my explicit discussion of capitalism and imperialism in Chapter 1 oscillates between more and less dialectical formulations. Rather than framing ‘capitalism’ and ‘imperialism’ as co-constitutive but not reducible to one another, it would have been better to say that, while they are always part of a differentiated totality, there is analytical utility to distinguishing between ‘imperial logics’, on the one hand, and ‘capitalist logics’, on the other.

Moreover, as Alami rightly points out, ‘law’ cannot be understood apart from the capitalist/imperialist socio-economic contexts in which it is produced. Here, I will just add that my attempt to grapple with the entanglement of law-capital-empire in the book was driven in part by the fact that, with some important exceptions (Bhandar, 2018; Park, 2016), much of the work on law and capitalism remains quite separate from the work on law and empire. What I wanted to highlight was that legal practices often unite and help enact the two intertwined but, to my mind, not identical projects of capitalism and imperialism in important ways. So, while neither capitalism nor imperialism should be seen as separate ‘things’ that are linked by a third ‘thing’ (law), I do find it useful to consider when and how legal practices and the logics that shape them support, link or stand in tension with broader capitalist and imperialist logics and projects. Along these lines, I would be especially pleased if the book contributes, as Phillips suggests it could, to deepening conversations on law and racial capitalism and to connecting ‘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’ (2025, p. 842).

More specifically, I see legal practices as central to the (co)production of capitalist/imperialist geographies. This brings me to Barkan’s most sustained critique of the book – that my empirical analysis of capitalism and imperialism is insufficiently dialectical and that ‘the spatial relations of imperialism seem to take precedence in the book over the geographic transformations of capitalist social relations’ (2025, p. 837). I found this critique highly generative. In the end, I would say ‘yes and no’.

Barkan is absolutely right that many significant pieces of the standard story of global capitalist transformation are not engaged in the book. While the neoliberal transition is prominent, I do not, for instance, substantively address the major contradictions and crises of the Fordist era, nor the emergence of a new international division of labour in the neoliberal period, nor the underlying causes of financialization, nor tensions among different fractions of capital shaping each of these dynamics, all of which are significant for understanding both changing post-colonial economic practices and the changing strategies of (US) multinationals in the second half of the 20th century. Engaging more directly with these dynamics would surely help flesh out the story of US judicial territory, as well as contribute to our understanding of the role of law in the co-constitution of capitalism and political power. Here, Sheppard’s (2025, p. 832) contribution to this forum offers a useful starting point, as he offers his own periodization of the story I tell as one moving from the moment of ‘European colonial capitalist conjuncture’ giving way to a US-centric imperial order (1919–1944); to state-led development in North and South (1944–1976); to the era of neoliberal capitalist globalization in the late 20th c.; to the moment of full blown financialization in the 21st century. I also agree with Barkan that further engagement with Arrighi’s (2010) arguments about hegemonic succession and the articulation of particular geopolitical and institutional formations with shifting forms of capital accumulation would be enormously fruitful.

Barkan’s commentary also helped me articulate something I had groped for but not quite put my finger on previously. I believe his reading of the book as addressing imperial more than capitalist spatial histories may be due as much to my focus on moments of judicial expansion, as it is to my focus on cases involving foreign governments. In other words, I only address moments of explicit territorial contestation and enlargement, in which the US judiciary, as one arm of an imperial US state, comes into explicit conflict with post-colonial governments. The resulting extensions of US judicial authority bring many foreign state economic practices within the disciplining umbrella of US law. As I show in the book, this has the general effect of limiting certain ‘interventionist’ economic activities like nationalizations, fiscal restructuring, and so on. Yet, there is far more to say about the substance of the law operating within US judicial territory and about the types of differentiated but interconnected capitalist socio-spatial dynamics it helps produce. Focusing on these dynamics would have been a very different project and would surely have required more engagement with the types of capitalist spatial transformations I believe Barkan is getting at. In other words, I have tried to map the outer bounds of a certain type of US economico-legal space here, but this is really only the first step in understanding how that space operates internally.

At the same time, I would push back on the idea that my book focuses on the geography of imperialism rather than capitalism. Barkan suggests that my focus is primarily on the imperial relationship between the United States and the Third World and on political rather than on economic drivers of judicial transformation. As one point in support, he notes (as Sheppard does) that most of my case studies come from the Western Hemisphere. Indeed, this fact is closely related to the longer-standing historical geography of US empire. Yet, I did not set out to focus on these cases; rather, my methodological approach of focusing on the cases that courts and legal scholars see as most important for enabling the restriction of foreign sovereign immunity rules in general led me to these cases rather than others. This fact, in itself, is significant for thinking about how US law, empire and capitalism have been intertwined. More broadly, mid-20th century Third Worldist struggles over the structure of the international economic order were central to the transformation of global capitalism in the decades after World War II. For one thing, as Sheppard (2025, p. 833) points out, beating back the challenge of alternate economic approaches left the ‘US itself free to engineer its own shift (with the UK) to neoliberal Globalization after the 1970s crisis of Fordism’. I see the legal cases I analyze as shaping not only the unequal distribution of power and resources, but also how state-market relations are juridically defined and institutionalized, helping to enact a certain neoliberal view of ‘the economy’ in ways largely overlooked in the extant literature on the major capitalist transformations of the 20th century.

A primary reason for my emphasis on imperial geographies, moreover, is that in investigating the transnational extension of US law, I came to see legal space as critical for understanding how, on the one hand, past and present imperial formations compare to one another, and, on the other hand, how the geography of post-World War II US empire has simultaneously reshaped the territorial sovereignty of all nation-states. More specifically, I argue that the territorial (economic) sovereignty of most states was redefined and restricted precisely at the moment when the collapse of the European colonial empires made the nation-state form and the principle of formal sovereign autonomy the global norm. My view is that the entwined reconfigurations of US imperial space and the economic spaces of other states should be more fully integrated into our understanding of the uneven and combined development of global capitalism since World War II – and that rethinking state territoriality in these ways may in fact complicate some of the arguments made by Arrighi (and many others) about the relationship between state territorial expansion and capitalist accumulation. I look forward to thinking through these points more fully in future conversations.

One thing the book tries to do is show that, as Sheppard (2025, p. 833) puts so well, the so-called universal ‘rule of law’ is ‘effectively a provincialized geographical imaginary’ shaped by US and most importantly New York law and courts. As he rightly suggests, looking beyond this particular slice of transnational legal space would surely nuance our understanding of (US) judicial territory – and would perhaps even show that the tendency of law to uphold (US) empire and capitalist interests is less totalizing than my account suggests. Sheppard raises several important questions not substantively addressed in my book, including about how New York courts differ from and interact with other US jurisdictions, how transnational US commercial law influences and is influenced by international rules and institutions, and how the sociolegal formations of jurists and politicians across such jurisdictions shape these differences. Regarding the latter, other important methodological approaches from, as Phillips points out, intellectual and social history, to ethnography, to the sociological study of legal knowledge are needed.

To my mind, one of the most fundamental questions for further research, which Sheppard also flags, is how transnational US judicial territory relates to the transnational legal spaces of other countries, including both other former imperial powers and post-colonial states. Perhaps most pressing, (as I note in passing in the book’s conclusion), is asking how US judicial territory increasingly both interacts and competes with the transnational legal spaces of emerging financial powers like Singapore or Malaysia and, of course, China. I would be thrilled if the book were to spark such comparative investigations and my hope is that the concept of judicial or, more broadly, legal territory may be useful for other scholars undertaking such work.

Of course, as multiple contributors note, among the most pressing questions for any conversation about US judicial power today is the future of US judicial territory in the face of ongoing geopolitical and economic upheaval. In the book’s conclusion, I briefly pose the question of whether US judicial territory can outlast US empire. I suggest that, as long as New York’s global financial status remains, US judicial territory may well outlast US empire, at least for a while. Barkan (2025, p. 839) flips this around, wondering whether my concluding question might be better framed as ‘what if US legal politics or even judicial territory writ large is just a form of capitalist legal instrumentality with little commitment to place and political order?’ This question deserves a lot more attention than I can give it here. Of course, financiers and multinationals surely do not have much attachment to place. From their perspective, reliance on US judicial territory is not about allegiance, but simply about benefitting from US economic power. Yet, this is less true of the judges, jurists and politicians who are actively concerned with bolstering the status of ‘their’ jurisdictions, and who are often strongly invested in the politics of place. Moreover, even transnational capital always remains (as I imagine Barkan would agree) dependent on state spaces – and thus entangled with the strategic interests of particular places, like it or not.

This has, if anything, become even more pronounced in the 21st century, with the proliferation of more explicitly interventionist state economic policies and the rise of ‘economic nationalism’ in North and South alike (Alami and Dixon, 2024; Alami et al., 2023; Whiteside et al., 2023) and with the resurgence or, more accurately, increasing visibility of geopolitics in the global political economy (Potts, 2023; Yeung, 2023). More specifically, as Alami (2024) points out in this forum and elsewhere, it may not be the systematizing operations of judicial territory that matter most in this moment, but the growing reliance on, for instance, the discretionary legal powers of the executive branch. Moreover, while I emphasize the harmful de-politicization of geopolitical struggles with Third World states and suggest that we should re-politicize key questions about how we organize state-market relations, Alami rightly notes that we are currently seeing a dangerous re-politicization of just such questions. Indeed, recent extensions of executive power over the transnational economic activities of foreign states and companies resonate in some ways with late 19th and early 20th century forms of US empire, in which the State Department oversaw imperial US commercial interests beyond the formal national and colonial borders of the United States. After 80 years of the gradual extension of US judicial reach, one important question now is to ascertain to what extent the resurgence of an ad hoc executive modality of transnational economic governance is replacing, versus operating alongside of, transnational judicial territory. And this doesn’t even get to the question of whether the current Trump Administration’s erratic economic policies and concerted attacks on the US legal system may change the dynamics of judicial territory far more quickly than I had initially expected.

By way of conclusion, let me say again how grateful I am for the time and care with which the contributors to this forum have handled my work. I imagine I am not the only person who has found that there is something strange about releasing into the world a book that feels at once so massive (in the amount of time and sweat and thought involved) and so tiny (in addressing its little sliver of an immensely complex topic). Having others take that work seriously is not only gratifying in itself, but also helps make that book feel like the middle of an ongoing conversation rather than the end of a long and often solitary endeavour. I look forward very much to continuing that conversation in the future.