2 Political–theoretical accounts

Despite competing definitions and normative differences, all European political theoretical accounts characterise sovereignty by its supremacy; sovereignty implies both freedom of action relative to those ‘outside’ and definitive decision-making power over those ‘inside’ the state. The external autonomy and equality of the sovereign state relative to other political bodies is contingent upon the finality of its inner rule, because the unity produced through supreme rule ‘promises to convene and mobilize the energies of a body to render that body capable of autonomous action’ (Brown, Reference Brown, Campbell and Schoolman2008, p. 253). Thus, sovereignty constitutes a boundary or framing device that is both physical – the sovereign is considered responsible for the spatial integrity of the state – and legal – the reach of sovereignty is co-extensive with the reach of its laws, and that structures a global order. Sovereignty is also considered the normative or legislative source or ground of law, yet the sovereign is free from legal restraint inside and outside the state.Footnote ⁸ These two paradoxical qualities – the sovereign is a Janus-faced, lawless law-maker – are the persistent core of Atlantic–European political–theoretical discussions of sovereignty.

It is medieval French theorist Jean Bodin (Reference Bodin and Franklin1576/1992) who is usually credited with first recognising the importance of sovereignty as a political concept. Sovereignty, for Bodin, is defined by freedom from obedience: ‘For he is absolutely sovereign who recognizes nothing, after God, that is greater than himself’ (p. 4). Bodin characterises sovereignty as a set of marques (translated as ‘marks’ but better understood as ‘prerogatives’ or ‘rights’) inhering in a person or persons relative to a given république or communal body (footnote, p. 46). It is the sovereign’s capacity to make law without being bound by it in which all other rights are ‘in some sense comprehended’ (p. 58): ‘the main point of sovereign majesty and absolute power consists in giving the law to subjects in general without their consent’ (p. 23). Whereas Bodin’s sovereign derives his power from God, Thomas Hobbes (Reference Hobbes1651/1994, part II) is generally credited as the first thinker to secularise sovereignty, grounding the limitless rule of the sovereign in a covenant between subjects. According to Hobbes, the state is an artificial being founded upon the agreement of each to all to be absolutely subject to a person or persons (the sovereign) who stand outside of the agreement and is thus an authority unbound by any human-made normative order. Jean-Jacques Rousseau (Reference Rousseau, Rousseau and Gourevitch1762/1997, book I, chapter 7), while also founding the state in mutually agreed-upon subjugation, argues that sovereignty inheres in the body of contracting citizens rather than – as in Hobbes’s account – a representative. It is the social body, an ontological entity distinct from any particular person(s), that constitutes the sovereign.

Dominating contemporary political theoretical scholarship on the nature of sovereignty is the definition put forth by twentieth-century legal scholar Carl Schmitt (Reference Schmitt and Schwab1922/1985, p. 5): ‘Sovereign is he who decides on the exception.’ Schmitt draws from both Bodin and Hobbes in arguing for a conception of sovereignty that he claims reflects both its logical relationship to law and how it has historically been understood. Sovereignty, according to Schmitt, is not defined by the capacity to make law but rather to suspend law in its entirety and to decide when the survival of the state requires this suspension. The possibility of such an ‘exception’ – where the state and the sovereign remain, but the legal order is dissolved – demonstrates the limits of the legal relative to the political (p. 12). Schmitt thus founds law in the decision of one who can guarantee the factual preconditions for normative order (p. 13). Prominent among those contemporary theorists influenced by Schmitt is Giorgio Agamben (Reference Agamben and Heller-Roazan1995/1998), whose Homo Sacer attempts to tie Schmitt’s theological logic of sovereignty to Michel Foucault’s work on biopower, that is, politics as the concern for and maintenance of human life. According to Agamben, sovereign rule is defined not by temporal suspension but reference to a postulated ‘zone of exception’ outside the ‘nomos of the earth’, where violence is indistinguishable from law and subjects cease to be juridically cognisable, instead standing before the sovereign as merely biological entities, unprotected by either legal or ethical norms (pp. 36–37).

3 Anthropological critiques

Each of these accounts implicitly or explicitly personifies the sovereign, a characterisation (or metaphor) recent anthropological literature challenges as inaccurate or deceptive when describing the phenomenon of sovereignty. Driven by questions as to what political – and Eurocentric – concepts as sovereignty can mean in places where the existence of ‘the political’ is itself non-obvious, these anthropologists argue that sovereignty should be understood as an experience, practice or performance, rather than as a capacity or a status (Geertz, Reference Geertz2004). In the 1970s, legal anthropologists such as Leopold Pospisil (Reference Pospisil1971) and Paul Bohannan, troubled by the opposition of ‘law’ and ‘custom’ as ethnographic terms, sought to develop ‘criteria of recognition’ for developing cross-cultural comparisons of normative orders without imposing European standards for identifying law. Contemporary anthropologists have continued this critique, arguing that the concept of the state is both Eurocentric and useless as a means of accounting for (causally) and describing (ethnographically) experiences and changes in ‘complicated places’, particularly post-colonial regimes. In these contexts, ‘whatever it is that keeps things together and going’ is not the Western European social contract myth, but something specific to a given place and thus the subject of close ethnographic research that looks not at the state ‘as a leviathan machine’ but at ‘the confusion’ surrounding what claim to be state institutions (Geertz, Reference Geertz2004, p. 580). Arguing that sovereignty is simply not operative in most of the world, Clifford Geertz (Reference Geertz2004, p. 583) asks: ‘What is a state if it is not a sovereign?’ The answer: ‘The institutional projection of an ongoing politics, a display, a delineation, a precipitate, a materialization.’Footnote ⁹ Seeing the state – and state law – not as a set of formal rules or institutions but rather as discursive or material practices both destabilises and broadens the methodological approach scholars may take – performances, for example, invite aesthetic and not just logical evaluation – and invites us to see law more generally as a form of cultural practice, a hermeneutical rather than scientific object.

This critique suggests not just new ways to look for sovereignty or other legal concepts, but alternative meanings for these terms in context. Thomas Blom Hansen and Finn Stepputat (Reference Hansen and Stepputat2006) develop one such reconceptualizstion of sovereignty by synthesising political–theoretical literature – in particular, Agamben’s Homo Sacer – and their own and others’ anthropological fieldwork. Like Geertz, Hansen and Stepputat insist that we ‘abandon sovereignty as an ontological ground of power and order’ and seek ‘an ethnographic approach to sovereignty in practice’ which compels us to see sovereignty ‘as a tentative and always emergent form of authority grounded in violence’ (pp. 295–97). This authority must be continually assumed and asserted through performance upon the body of the subject and is ‘most visible in states of war, extreme conditions, fragmentation, and marginality’ (p. 297). Setting themselves against a tradition of political anthropology that, like European political theory, was focused upon law-and/or-king as unitary sources of political authority, they insist that the conditions of colonial and post-colonial rule demand a conception of sovereignty that permits multiple and overlapping sovereigns in a single social field and that refocuses the scholar’s gaze on the modalities of power and violence experienced by the colonial subject in everyday contexts.

Yet in rejecting the assumption that sovereignty and the state are coterminal and conceptually inseparable, Geertz, Hansen and Stepputat may be guilty of throwing the baby out with the bathwater. The relationship between sovereignty and legal ordering, in particular, is neglected by an approach such as that of Hansen and Stepputat that identifies sovereignty with violence. Stephan Feuchtwang (Reference Feuchtwang2004) pushes back at Geertz, arguing that ‘the state’ and ‘sovereignty’ are used as discursive and rhetorical frames that attempt to produce mythical unity and normative justification sufficient to sustain politics amidst the ‘confusion’. To quote Daniel Goldstein (Reference Goldstein2004, p. 588): ‘The nation-state today may not be sovereign in the way that Geertz defines sovereignty … but sovereignty nevertheless has become critical in determining which groups or forces can hold state power.’ One need only look at the neat patchwork of a global political map to recognise the epistemic power of the concept of ‘state sovereignty’. If ‘sovereignty’ and ‘the state’ are not what political theorists think they are, nor the myths surrounding them the dominant means by which political power persists in ‘complicated places’, it is worth asking how these ‘sovereign states’ came to be characterised as such, even falsely. Why do we see state sovereignty in such ‘complicated places’ at all and, perhaps more importantly, how has the use of this organising principle altered political and legal relationships in these ‘complicated places’?

This question cannot be answered without examining the process of colonisation embarked upon by countries centred in Western Europe from the fifteenth through the twentieth centuries. An account of the development of state sovereignty in the colonial context must describe how the matrix of domination and legality on local, regional and international levels grew into a global order largely defined by European political and legal norms. Sovereignty in this account must be identified with peculiarities of a European legal order as a culturally specific conceptualisation of law and politics imported to and imposed upon already plural indigenous normative or legal orders. This is not to say the exportation was unidirectional; as we will see in Antony Anghie’s (Reference Anghie2004) account of early European international law, colonial encounters had an enormous influence upon the development of European political concepts. Nor can colonial rule itself be unproblematically identified as state law. It, too, was defined by plurality and disorder or mutual unintelligibility between and amongst both indigenous and colonial jurisdictions; an individual’s colonial legal status usually depended not on location or political membership but on religious, tribal, economic or racial identity. Nevertheless, the sovereign state – a territorially defined, unitary legal order – emerged from these legally heterogeneous social fields as both a global and local principle for organising space, violence and norms. What follows is a brief synthesis of several accounts that attempt to understand how and to what extent sovereign states emerged from particular colonial encounters.

4 Historical case-studies

Legal historian Lauren Benton (Reference Benton2002) takes a self-consciously global approach to this question, building from case-studies of colonial and post-colonial ‘jurisdictional jockeying’ a series of claims about the mechanisms by which ‘sovereign’ state-based legal orders replaced plural, partial and overlapping jurisdictions. Benton argues that states did not grow out of the imposition, extension or centralisation of metropolitan legal orders (that is, ‘home’ laws of the colonising state) but rather, the production of a new space, set of structures or discourse that enabled communication and contest among individuals in a social field with multiple centres of legal power.Footnote ¹⁰ Sovereignty was not purely the product of violence or domination but rather consisted of institutions – backed by violence but not uniquely so – that could serve as the mediating or ultimate authority in cases of inter-jurisdictional dispute.

Benton’s claims are supported by Scott Kugle’s (Reference Kugle2001) account of the authorship of ‘Anglo-Muhammadan’ law in British India, a process largely completed between 1771 and 1832. Rather than the ontological ground of law, sovereignty in this account was produced through the practice of law-making. Portrayed by the British as a codification and translation of customary law, Anglo-Muhammadan law ‘acted as the interface between the East India Company (as an early modern state) and the surrounding society, which [the EIC] could not comprehend but had to control’ (pp. 257–58). This codification reified shari’ah in a form that could be administered by British officials and ensured ‘shari’ah’ legal decisions conformed to those legal relations that seemed natural to British imperialists.Footnote ¹¹ Kugle contends that the British colonial administration’s use of shari’ah law and qazis Footnote ¹² enabled the British to ‘hide’ and legalise their increasing domination without directly challenging the pre-existing legal order. Despite its origins and the contradictions inherent in codifying a legal tradition of continual reinterpretation, Anglo-Muhammadan law eventually dropped its ‘Anglo-’ prefix and came to be seen as the ‘sole pillar of [the Muslim] community’ in the absence of rule by Muslims (p. 302). British administrators had produced a new form of (legal) knowledge that was recognised as sovereign and whose legitimacy was founded in a customary order but had been transformed by British and Muslim legal scholars into something British administrators could understand and control. Production of this new legal order was driven by problems of cultural translation, but in mediating such difference it entrenched the colonisers’ roles as the authors and arbiters of legal norms and conflicts.

Tied to this new sovereign legal space was the production of new legal subjectivities. Individuals had to be the same relative to this new unitary and authoritative law, while the state had to be able to address the individual directly, unmediated by competing or heterogeneous jurisdictions. To claim a universal jurisdiction within a specific colonial territory was to claim that one’s normative order was itself universal, capable of application across the multiple cultures, religions and corresponding legal orders within that territory. Formal equality before the law, furthermore, was a lynchpin of the French and British legal systems. Yet, an assumption of inequality – or at least fundamental difference – between coloniser and colonised was central to the colonisers’ capacity to justify their rule. It was this tension between universalist values and racial or cultural hierarchies, and its exploitation by indigenous individuals who tested culturally and racially marked jurisdictional boundaries, according to Benton, that pushed colonial rule toward territorial rather than personal jurisdiction and state-based regimes. The sovereign state was not the inevitable outcome of these colonial interactions but one means of resolving the tensions inherent in such jurisdictional plurality. Indirect rule was another solution, deployed, for example, by the British in South Africa,Footnote ¹³ for maintaining a ‘rule of law’ commensurate with claims of fundamental difference, as was expulsion or extermination. Yet expulsion, according to Benton, evidences ‘weakness’ of the state, the incapacity to order a distinct state space that could manage taxation, property rights and interpersonal disputes despite cultural difference. What, then, enabled ‘successful’ colonial states to inscribe the racialised, culturally unintelligible indigenous subject into their legal orders?

One answer is economic relationships.Footnote ¹⁴ In India, the British first extended their jurisdiction ‘directly, [and] not through the auspices of the Mughal administration’ via the 1773 Regulating Act which directly imposed the law of a new Supreme Court of Judicature upon Company employees and allowed – but did not require – indigenous employee plaintiffs of the Company ‘to use the court to claim jurisdiction’ (Benton, Reference Benton2002, pp. 136–37). Where not done immediately or directly, tensions between labourers and settler employers created pressures on colonial administrators to exert unitary legal control. Their economic existence defined by the colonial legal order, native labourers came to be seen as subjects of the colonial legal system, itself often driven by economic interests. In British South Africa, for example, the Khoi were initially granted legal independence under indirect rule but, increasingly employed by White farmers, were ‘by the middle of the eighteenth century … being prosecuted for crimes committed on European settlers’ farms’ (Benton, Reference Benton1999, p. 579).

We should be careful, however, not to treat ‘the economic’ as a realm or concept separable from the political. Timothy Mitchell (Reference Mitchell2002) has argued that the production of state and society as distinct realms of human activity and knowledge was in fact mutually implicated with colonial rule. ‘Sovereignty’ emerged from the British colonial encounter in Egypt not as an aspect of state law, but rather, a status associated with property ownership. The ’izbas (estates) that proliferated across colonial Egypt in the second half of the nineteenth century, Mitchell argues, constituted ‘mini-sovereignties’: ‘The proprietor of the estates that spread across the Nile valley was a sovereign, an “absolute master” … The walls of the ’izba encircled a realm of exception, within which power operated without rights’ (p. 71). Mitchell’s account is thus a topological inversion of Schmitt’s thesis (though Mitchell himself does not cite Schmitt): in colonial Egypt property law defined ‘zones of exceptionality’ where ownership kept out external legal interference and thus enabled internal lawlessness. These internal spaces of unlimited power, like honeycombs in a beehive, structured relationships between people, land, and things across the new Egyptian state space. ‘Reinforcing the discipline created by the walls and gates of the ’izba was the power generated by the wider arrangements of which it was a part’; one could not leave the ’izba system even if one escaped a particular mini-sovereignty (p. 71). In colonial Egypt, the development of state law relied upon violence exercised within these ‘economic’ regimes.

Mitchell’s use of the term ‘discipline’ suggests another – counter-intuitive – mechanism by which the colonial sovereign state came to be produced. Foucault (Reference Foucault and Hurley1976/1990, pp. 85–89, 135–36) argued influentially for historians and political theorists attempting to understand modern power to reject as an epistemological and historical frame the personified sovereign in favour of processes of discipline and normalisation. Sally Merry’s (Reference Merry2000) account of the colonisation of Hawaii suggests that the sovereignty of indigenous legal orders was tied to the production of disciplined subjects and thus that sovereignty and normalisation are in at least some cases mutually implicated. In the developing interstate order of the nineteenth century, the independence of non-European legal regimes relative to imperial powers depended upon their recognition by other ‘sovereigns’ as states at all, a determination made according to Eurocentric criteria of cultural practice. Hawaiian law underwent two major revisions during the nineteenth century, the first directed by American missionaries, the second by American lawyers. The first created a Christian–Hawaiian legal hybrid mediated by the centrality of God to both the pre-existing and missionary-brought orders. However, ‘the missionaries brought with these codes a very different set of ideas about discipline and coercion’ (p. 83). Thus, some of the most drastic changes concerned sexual norms and forms of punishment; without prisons and legally entrenched sexual mores Hawaii was characterised as lawless. The recognition of the Hawaiian kingdom as a sovereign juridical order deserving of autonomy was thus contingent upon the practice of those forms of discipline emerging concurrently in Europe and the US and increasingly identified with ‘civilisation’. Hawaiians might be racially inferior, but could be recognised as potentially politically autonomous if they could govern themselves like Europeans; discipline mediated racialised difference within the inter-state order. This desire by Hawaiian leaders, made explicit in diplomatic exchanges, to be recognised as ‘civilised’ by the US, Britain and France (and thus to be allowed – among other things – jurisdictional authority over foreigners) also drove the second major revision of Hawaiian law (pp. 85). Yet this form of Hawaiian self-governance retrenched the hierarchy it was meant to transcend: ‘[T]he adoption of a disciplinary system was simultaneously the route to independence and the mechanism by which the Hawaiian people were reinterpreted as incapable of self-governance by the missionaries and their allies’ (pp. 83–84). With each legal revision this ‘sovereignty paradox’ was reinforced, as the embrace of foreign forms of rule as ‘civilised’ reinstantiated a racialised hierarchy of Hawaiians and haoles (foreigners), both discursively and in institutional forms such as the increasing use of American lawyers to staff legal offices (p. 89).

Merry’s account of the Hawaiian ‘sovereignty paradox’ nicely illustrates Antony Anghie’s (Reference Anghie2004) intellectual historical and theoretical claims about the underlying logic of sovereignty as a core concept of international law. Anghie is concerned with state sovereignty not as a form of internal authority but as an outward-facing status in an international legal order. Arguing from the highly influential sixteenth-century treatises of Spanish Scholastic philosopher Francisco de Vitoria, Anghie claims that sovereignty as the foundational concept of international order did not precede the colonial encounter, but was invented as a response to it. Despite the diversity and overlap of legal orders amongst the colonising powers, they could at least recognise each other as political associations, with certain rights of rule relative to individuals within their territorial boundaries. Iberian explorers and those who read about their encounters recognised that Amerindians had their own authorities and some degree of structured society, but these ‘new’ peoples were not Christian and therefore outside of Christian norms governing the relationship between legal orders, nor were Amerindian legal practices or politics necessarily intelligible as such. In the face of such profound difference, what legal norms could govern relations between Amerindians and Europeans? Vitoria’s answer, according to Anghie, was the ius gentium (law of peoples); unlike under Christian or positive law, a people could be recognised as sovereign under the ius gentium even if their internal norms were considered unacceptable either theologically or according to colonisers’ positive law.Footnote ¹⁵ Contra Brown’s assertion that ‘sovereignty … cannot be conferred’ (Reference Brown, Campbell and Schoolman2008, p. 254), Anghie makes a historical case for seeing sovereignty as a status awarded by European scholars and kings, and thus its meaning reflective of the power relations between coloniser and colonised in which it has its origins.

Reliance upon the work of legal scholars sharing a cosmopolitan culture, however, leads Anghie to treat Europe monolithically, largely ignoring problems of difference and recognition amongst the colonising powers. Conversely, Patricia Seed (Reference Seed1995, p. 191) argues that in attempting to establish ownership over newly discovered land during the fifteenth, sixteenth and seventeenth centuries, ‘the citizens, subjects, and leaders of each European power enacted domestically familiar means of political authority’ that were often misunderstood or ignored by other powers. Seed argues not just that the marques of sovereignty identified by Bodin are, like any set of legal concepts or practices, culturally contingent within as well as outside of Europe, but that the development of international criteria of recognition both extended and reinforced each power’s own internal legal culture. In Seed’s as in Anghie’s account, however, the claim of sovereignty is a means by which the legal or culturally particular can be asserted as universal. In postulating the ius gentium as a universal or set of norms derived from natural law, Anghie (Reference Anghie2004, p. 21) argues, Vitoria merely ‘idealized … the particular cultural practices of the Spanish’. Thus we see in sovereignty’s external face a gesture we recognise from the accounts of internal sovereignty discussed above: the principle of sovereignty asserts universalistic standing but premises such standing on culturally specific practices. Sovereignty solved difference by containing it (relative to international law) or transcending it (relative to internally plural legal orders) and thus enabled interactions that could not be ordered by reference to any one of the legal norms recognised by individuals across the encounter. Meanwhile, however, the artificial unity presupposed and produced by sovereignty made reference to a global normative order that reflected European material and epistemological dominance within these colonial encounters.

This account of discursive capacities particular to sovereignty might also suggest that other legal concepts may perform similar mediating functions, postulating as universal, abstract or neutral that which is particular, culturally specific or interested. Law itself, arguably, performs this function; it is spoken of as blind and is rhetorically opposed to the political while it necessarily embodies a series of contingent, culturally informed choices as to what is normal or right.Footnote ¹⁶ Disciplinary approaches that, like history or anthropology, presume human practice is necessarily particular, contingent and embedded in a larger matrix of forces and discourses, undermine this ‘self-understanding’ of legal practice and expand the field of enquiry relative to which scholars may understand and challenge the latent presumptions of legal concepts.

5 Historicising Schmitt

Thus far I have discussed historical accounts that understand sovereignty as the ultimate or unifying rule in a particular place, recognised as such in an international order of equally sovereign states. Yet contemporary accounts of sovereignty are dominated by a Schmittian conception according to which sovereignty is manifest in and founded upon the suspension or limit of law. Is there any reciprocal insight to be gained by projecting this definition of sovereignty – seemingly at odds with our theoretical approach thus far – onto the colonial encounter? Conversely, does the historical record offer any insight into this paradoxical relationship between exception and norm? Several of the historians and anthropologists of colonisation cited by Hansen and Stepputat have argued that the colonial constitutes an Agambenian ‘zone of exception’ relative to a European order; indigenous inhabitants are made ‘bare life’, allowing the violent excesses of colonial rule to be reconciled with Enlightenment claims.Footnote ¹⁷ These scholars use Agamben’s theory of sovereignty to structure and interpret their historical observations and, conversely, historicise Agamben’s metaphysical account through particular colonial narratives that become evidence for Agamben’s analysis. Julie Evans’s (Reference Evans, Godfrey and Dunstall2005) account of events in South Australia in 1840 is one example of this interpretive strategy. Following the murder of shipwrecked Europeans, apparently by some unknown number of Milmenrura, colonial authorities in London responded by calling for the trial of suspects for murder as citizens of the Province of South Australia. The local Governor and Attorney General, however, arguing that the Milmenrura were incapable of respecting the rule of law and that the settler colony had never had de facto legal jurisdiction over the area where the murders took place, summarily executed all those members of the tribe it could find. Evans argues that these competing responses evidences the paradoxical duality of the state of exception and the origins of sovereignty realised historically rather than (as in Schmitt’s or Agamben’s account) ‘in time immemorial’; only through the exercise of absolute violence can the border region inhabited by the Milmenrura be brought into the colonial rule of law ‘though the constitution of the law that at once presupposes and authorizes its suppression’ (p. 69).

Like Schmitt and Agamben, Evans sees the boundaries set by sovereignty in spatial and temporal terms; the sovereign decides what is outside and when the rule of law applies. Yet a reconsideration of the rhetoric and events reconstructed by Evans argues towards seeing state sovereignty as operative with respect to racial boundaries rather than geographic or temporal. The conceptual deployment of sovereignty as a justificatory strategy and associated legal norms becomes a way of inscribing the Other, of creating boundaries that produce homogeneity of rule or dominance in the absence of homogeneity of both legal recognition and moral standing. Schmitt (Reference Schmitt and Schwab1932/1996) defines the central conceptual dichotomy of the political as the distinction between friend and enemy. The decision as to whom is which, like that on the exception, is ‘outside whatever norms bind the polity’ and thus a sovereign decision; moreover, because ‘the autonomous capacity to make these decisions is the sign of political sovereignty, then sovereignty in turn articulates the autonomy of the political’ (Brown, Reference Brown, Campbell and Schoolman2008, p. 255). Consideration of the colonial state, however, undermines the purity and universality of this dichotomy between friend and enemy and thus the supposed conceptual purity of the political that Schmitt sees as logically tied to the ontological priority of this distinction. Colonial rule creates a disjunction between the Rousseauian sovereign body and those subject to it. The indigenous subject is not an enemy, but nor is he fully a friend and thus capable of participation in political self-determination or the full litany of rights claims available to the metropolitan citizen.

The breakdown of this friend–enemy distinction relative to indigenous people in the colonial interaction is evidenced by the discourse surrounding the extermination of the Milmenrura as narrated by Evans: criminal law, martial law, and the laws of war are simultaneously invoked to justify hanging the supposed perpetrators. While officials in the metropole saw the matter as straightforwardly one of criminal investigation and punishment, Attorney General Smillie argued ‘that the “unprovoked massacre” of innocent shipwreck victims reflected the “character of the tribe” and therefore had to be dealt with “on very different grounds from the solitary or occasional offence of an individual against the Municipal Law”. This, rather, was “the crime of the nation” … [that] “therefore was to be regarded, not as that of individual British Subjects, but of a whole hostile tribe, that is of a nation at enmity with Her Majesty’s Subjects … [T]his view is strictly in accordance with the law of nations”’ (Evans, Reference Evans, Godfrey and Dunstall2005, p. 65 [italics in original]). Evans sees borders between jurisdictional orders as ‘states of exception’ where the imposition of violence could ‘inaugurate’ the subjugation of indigenous peoples and their inclusion into the colonial order. Yet such violence presupposes both the capacity and the right to punish, not simply to defend oneself. While framing the response as one ‘in accordance with the law of nations’ and thus an act of war, in rhetoric as well as in outcome, this act of colonial violence presumes indigenous subjection to metropolitan norms while applying those norms not to the individual, but to ‘the tribe’ as such.

Evans argues that the colonial state’s historical origins in the state of exception implies violence is latent in its later form and practices, but does not offer evidence for continued (or intermittent) reference to these frontiers in maintaining legal order. For Schmitt, however, it is necessary that the sovereign embody an endless capacity for the reiteration of this violence. Nasser Hussain (Reference Hussain2003), examining the history of habeas corpus in British India, argues that the sovereign exception is necessary to sustain, and not just found, the fundamental ideological contradiction of ‘liberal empire’. Discussing the decision exonerating British soldiers who fired on Indian protesters at Amritsar in 1919, Hussain (p. 131) emphasises the need for reiteration of this gesture of founding violence: ‘Thus, at each point we get a sense that martial law in the colony is a return to a prior condition, before law and before state legitimacy. It is what is needed to construct the state all over again.’ As were the ‘criminal tribes’ of South Australia, indigenous persons in India are considered incapable of conforming to law; indigenous violence, then, constitutes not simply criminality – the violation of particular laws – but a challenge to the very authority of colonial rule that must in turn be reasserted not through the framework of punishment, but by overwhelming force.

Yet imperial authority was justified according to colonial administrators and metropolitan supporters by its lawfulness. Central to the British moral case for empire was a belief that they were bringing to ‘oriental despots’ or lawless primitives the Good that is legal order and all associated rights – which, of course, such peoples were incapable of developing on their own (Hussain, Reference Hussain2003, p. 32). This contradiction – the justification of colonisation’s continued rule depended upon the impossibility of accomplishing that which it aimed to do, namely, civilise the colonised – is resolved with the concept of sovereignty, which mediates the conflicting justificatory rhetorics of rule-of-law and racial difference. Hussain (pp. 91–92) makes this clear with respect to the writ of habeas corpus, identified with the reach of British sovereignty:

In British imperial contexts, Hussain argues, the sovereign decision is invoked not to make temporal or geographic distinctions, but rather to create a permanent ‘state of exception’ defined by racial difference. It is in the colonial context where this paradoxical relationship between sovereignty and law identified by Schmitt does perhaps its most significant conceptual work toward framing and normatively defending political violence. However, it is the desire to mediate not political, but cultural or racial animosities and anxieties that drive this suspension. If sovereignty is manifest in the disjuncture between the legal and the political, Hussain and Evans call our attention to instances when this gap was deployed as a means of sustaining racialised otherness while producing unity.

6 Conclusion

It is thus striking how persistently state sovereignty – either as a justificatory framework, a scholarly concept or a form of legal and political organisation – emerges as a means of understanding or acting relative to perceived tensions or contradictions between cultural or racial difference and the rule of law. I have thus far elided the fairly significant differences between the indigenous Hawaiian kingdom attempting to stave off foreign interference, India under the centralised colonial state of the Raj, and the Amerindian empires encountered and destroyed by Spanish conquistadores – to cite only three of the case-studies referred to here. I have also invoked a number of competing theoretical definitions, that of international law, as identified with internal legal supremacy, and a more radical understanding of sovereignty-as-exception. Yet the diversity of this paper’s subject matter and theoretical frames only serves to underline the surprising consistency of the conclusions reached by the historians upon whose narratives I have relied. From Anghie and Merry: to be sovereign (in an outward sense), a legal order had to be recognised as conforming culturally to European norms. From Merry and Mitchell: the production of territorial legal sovereignty frequently relied upon disciplinary practices as a means of transforming racialised subjects into legal ones. From Hussain: the suspension of law is invoked not just temporally or in response to external danger, but to maintain rule of law over those considered racially incapable of submitting rationally to legal norms. Whether considered a characteristic of a legal order or as a capacity to suspend that same order, in each of these cases sovereignty as a legal concept, and not simply as a way of describing particular forms of violence, was grounded in anxieties about culturally or biologically constituted difference and a felt need to impose order across those differences.

What sovereignty accomplishes both as legal order and as that which transgresses or suspends it, then, is an inclusion of the Other; sovereignty – either claimed relative to colonial subjects or recognised as an aspect of indigenous legal regimes – brings this Other into a normative order while maintaining difference. It is sovereignty, as opposed to substantive law, that is invoked to inscribe individuals within the authority or legitimate violence of the ‘state’ (or international legal order) without admitting their equal or homogenous legal standing. The synthesis attempted here suggests that the capacity of sovereignty to both mark and constitute a boundary between those within and those outside a particular polity becomes most pronounced and most necessary in cases where the cultural and racial boundaries of the state and of the global legal order are in question; contra Schmitt, the purest of political gestures has historically served to mediate between (the) legal order and supposedly non-political categories of race and culture.

I should emphasise that these are provisional conclusions, dependent upon theoretical accounts and historical narratives that could each be challenged on their own merits. The formulation of this claim regarding sovereignty and difference is not totally novel; it draws argumentative force not from new research or metaphysical insight, but from a willingness to put in conversation scholars engaged in very different projects about the same idea – or at least about the same word. Ultimately, then, a central claim of this essay is a methodological one: we cannot understand sovereignty – or any other complex legal concept – as a means of describing the world without looking to its history, both theoretical and rhetorical. The rise of socio-legal studies has made it commonplace that to understand what law does in society we must look to both its effects in a broader social field and to the ways in which individuals operate ‘in the shadow of the law’.Footnote ¹⁸ What the two approaches emphasised here offer, however, is slightly different: to the extent that they are empiricists, historians are able to understand contextually the roots from which supposedly neutral or abstract legal concepts grew and, moreover, how they came to be naturalised or taken for granted. As narrativists, historians are acutely attuned to the ways in which legal concepts, themselves the structural building blocks of the narratives constructed and deployed by legal actors in individual cases, encode or suggest narratives exogenous to the law – stories about race, gender or other categories supposedly ‘invisible’ to the relevant ‘law on the books’.Footnote ¹⁹ Complementing these accounts of what lurks behind – and thus within – legal usage is an anthropological approach that understands law as a form of discursive and material practice rather than a system of rules, and is therefore able to see how the historical meanings of legal terms are made manifest and deployed.Footnote ²⁰ A humanistic approach to law offers, then, the same critical potential as has the socio-legal scholarship of the last three decades: in thinking of law as action or discourse, this approach destabilises legal concepts and forces us as scholars to attend to precisely those power relations and differences law supposedly – but never fully – ‘transcends’, insisting that discursive gestures that invoke or alter these relations are not coincident to any particular usage, but embedded in the legal concept itself.

To defend both these substantive and methodological claims, I ask the reader to recall Boumediene et al. v. Bush and the question of US sovereignty over Guantánamo Bay with which this essay began. The Court’s reasoning as to whether the writ of habeas corpus was constitutionally suspended did not invoke theories of oriental despotism or the precariousness of colonial rule, as did the decisions suspending habeas corpus in the cases examined by Hussain. Yet Hussain’s arguments, in particular, suggest that it is significant that sovereignty and its relation both to space and the rule of law should become especially problematic in the context of Guantánamo Bay. This is not because Guantánamo itself is, arguably, a colonial setting, rather, what remains latent in the political decisions that led to the detentions at Guantánamo, and sometimes becomes explicit in the juridical debates surrounding their legality, is the racial or cultural identity imputed to the detainees. ‘Islamofascist terrorists’, like the Milmenrura, must be made subject to an ordering that is both domestic and global, but they are also considered fundamentally lawless, a lawlessness that is reflexively used to justify – as it was in India in 1919 and South Australia in 1840 – the removal of ‘normal’ legal protections. This remains the case even as President Obama has moved to close the prison camp at Guantánamo; in a speech laying out his proposal to move detainees into the US and provide some form of trial for the majority, President Obama insisted both that it is irrational to distinguish former Guantánamo inmates from other ‘dangerous and violent criminals’ in considering whether such inmates can safely be housed in the US, and that a certain number of these inmates needed to be held in ‘prolonged detention’ – a legal limbo to which such other criminals are not subject.Footnote ²¹ That it is race or religion rather than legally cognisable differences – the nature of their crimes, for example – which defines this exceptionality is suggested by considering the legal response to the White, American-born individuals who conspired to bomb the Oklahoma City Federal Building in 1995: both were tried in US Federal Courts and one put to death, all within the norms and with the protections surrounding ‘ordinary’ criminal trials. Of course, that racism drives some component of the US ‘War on Terror’Footnote ²² is by no means a new claim. What this essay has hopefully demonstrated, however, is that the link between such sovereign exceptions and racialised cultural difference is neither incidental nor new; rather than a temporary political abuse, this particular use of sovereignty has a long history against which we should continue to be on our guard.