Law and the capture of territory

As we saw in Chapter 5, Deleuze and Guattari propose a concept of the state as a particular expression of an abstract machine which they call the state-form. The essence of this abstract machine is capture and the establishment of a modern nation-state involves a particular form of capture of both the earth or geographical surface and the people or their productive activity: it requires land as opposed to territory, labour as opposed to free activity. Consider first the capture of human activity in the form of labour, a mechanism perfected by capitalism but already practised in the archaic imperial states. Productive activity may proceed under what Deleuze and Guattari call a regime of ‘free action’ or activity in continuous variation, such as may be found in the territorial assemblages of huntergatherer societies. Productive activity becomes labour once a standard of comparison is imposed, in the form of a definite quantity to be produced or a time to be worked. The transformation of free activity into labour by the imposition of a standard in turn allows the extraction of a surplus. In order for surplus labour to be extracted in the form of profit, labour itself must become a commodity. In effect, Deleuze and Guattari’s argument is that ‘labor (in the strict sense) begins only with what is called surplus labor’. With reference to the work of anthropologists such as Marshall Sahlins, they note that in contrast to colonial perceptions that indigenous peoples were unsuited for work, ‘so-called primitive societies are not

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societies of shortage or subsistence due to an absence of work, but on the contrary are societies of free action and smooth space that have no use for a work-factor’ (Deleuze and Guattari 1987:490–1). It is because the indigenous inhabitants of the New World did not labour in this strict sense of the term that they were considered by colonists not to work, much less to work the land in a way that afforded them rights over it.

In the case of the capture of portions of the earth’s surface which make these portions lands rather than territories, Deleuze and Guattari describe the conditions which enable the extraction of ground-rent as ‘the very model of an apparatus of capture’ (Deleuze and Guattari 1987:441). The imposition of ground-rent involves the establishment of means of comparing the productivity of different portions simultaneously exploited, or means of comparing the productivity of the same portion successively exploited. The measure of productivity provides a general space of comparison, a measure of qualitative differences between portions of the earth’s surface which is absent from the territorial assemblage of huntergatherer society. Thus, land stands to territory as labour stands to free activity: ‘labor and surplus labor are the apparatus of capture of activity just as the comparison of lands and the appropriation of land are the apparatus of capture of territory’ (Deleuze and Guattari 1987:442). In each case, we find the same two key elements: the constitution of a general space of comparison and the establishment of a centre of appropriation.

However, a further condition is necessary to sustain the politicoeconomic capture of the earth and its resources. In order for ground-rent to be extracted, the difference in productivity must be linked to a landowner: ‘Ground rent homogenizes, equalizes different conditions of productivity by linking the excess of the highest conditions of productivity over the lowest to a landowner’ (Deleuze and Guattari 1987:441). The colonial extension of the European state system therefore requires a system of private property in land. In order for surplus labour to be extracted in the form of profit, both land and labour must become commodities. In the colonial case, the precondition of the productive employment of labour was the deterritorialisation of indigenous territories by their conversion into land. The extraction of ground-rent is not only the very model of an apparatus of capture but ‘inseparable from a process of relative deterritorialization’ because ‘instead of people being distributed in an itinerant territory, pieces of land are distributed among people according to a common quantitative criterion’ (Deleuze and Guattari 1987:441). The conversion of portions of the earth inhabited by so-called primitive peoples into an appropriable and exploitable resource therefore requires the establishment of a juridical centre of appropriation. The centre establishes a monopoly over what has now become land and assigns to itself the right to allocate ownership of portions of unclaimed land. This centre is the

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legal sovereign and the monopoly is the assertion of sovereignty over the territories in question.

The fundamental jurisprudential problem of colonisation is therefore the manner in which the territorial domains of the prior inhabitants become transformed into a uniform space of landed property. This points to the fundamental role played by law in the capture of indigenous peoples and their territories: ‘law, regarded by the West as its most respected and cherished instrument of civilisation, was also the West’s most vital and effective instrument of empire…above all…Europe’s conquest of the New World was a legal enterprise’ (Williams 1990:6). Law was particularly important in the case of those settler societies established by the British Crown relatively late in the European diaspora such as Canada, Australia and Aotearoa/New Zealand. These were colonies which, from the outset, were supposed to be governed in accordance with British common law. As a result, the basis of their property law lay in the feudal doctrine of tenure whereby all title to land is ultimately derived from the Crown. The Crown is the ultimate authority with regard to ownership of land in the territory and the centre of appropriation and alienation of land title. By virtue of its right of sovereignty or imperium, the Crown has the power both to create and extinguish private rights and interests in land. In this sense, Crown land amounts to a uniform expanse of potential real property which covers the earth to the extent of the sovereign territory. It follows that, within these common-law jurisdictions, the imposition of sovereignty constitutes an apparatus of capture in the precise sense which Deleuze and Guattari give to this term. The legal imposition of sovereignty effects an instantaneous deterritorialisation of indigenous territories and their reterritorialisation as a uniform space of Crown land centred upon the figure of the sovereign.

The mere fact of a change of sovereignty means nothing to the indigenous inhabitants. The occupation of their territory by settlers proceeds slowly and with varying degrees of legal regulation. The legal institutions of the colony do not immediately impact upon their communities: internal disputes continue to be settled according to traditional customary law. However, once the reality of colonisation begins to take hold, they are inevitably driven to seek recognition of their rights to land and the protection of their traditional way of life. The only peaceful avenues open to them involve the institutions of law and representative government introduced along with Crown sovereignty. In the absence of negotiated settlements or a sympathetic hearing from colonial legislatures, they are compelled to seek the protection of the law. In common-law countries, the doctrine of aboriginal rights and title to land provides one of the few available remedies against the capture of their traditional territories.

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Date: 2015-01-11; view: 647