Wednesday, July 6, 2011

Law and Foreign Affairs History: A SHAFR Roundtable, part 2

My presentation at the SHAFR roundtable “Bringing the Law Back In: New Approaches to the History of the U.S. in the World” described my general approach to the study of law in late nineteenth century U.S. foreign relations and illustrated it with three quick case studies taken from my new book Spaces of Law in American Foreign Relations: Extradition and Extraterritoriality in the Borderlands and Beyond, 1877-1898 (University of Georgia Press).  The first case was the U.S. military transboundary incursions along the U.S.-Mexican border in the 1870s, when the U.S. claimed to the unilateral right to cross the border at will under the infamous “Ord Order” of 1877; The second was an examination of the attempt to formulate a coherent theoretical approach and law and policy response to dynamite bombing and anarchist terrorism in the 1880s and 1890s; and the third was the question of extraterritorial asylum which grew of the American response to Latin American revolt and revolution in the 1880s and 1890s.

I will briefly summarize the main points I made at the roundtable regarding conceptualizing law in this period of late nineteenth century relations and leave the examples for my book.  I am most interested in how law operated both spatiality and hierarchically in U.S. foreign relations, and how it was engaged with broader foreign policy ambitions rooted in empire.  

I argue that the unilateral governance of transnational concerns was a key theme and policy approach in U.S. to foreign relations as well as a key continuity carried into the post-1898 period of formal overseas empire.  It has persisted, in quite striking ways, into contemporary U.S. imperial foreign relations (in the form of Obama’s use of extraterritorial assassination, for example).   Extraterritorial jurisdictional assertions outside of the often studied consular court system were a crucial policy tool in the late nineteenth century despite the “presumption against it” in this era.

Another important and overlooked aspect of this era was the emphasis placed on sovereign exception by policymakers.  Agamben has made this term a commonplace (even fashionable) one in examining contemporary foreign relations.  I argue it was a crucial policy approach of empire that was also manifest in pre-imperial foreign relations.  Indeed, it is possible to place “exception” rather than “exceptionalism” as a key and persistent frame in U.S. foreign relations.  This approach emphasizes how law and state power were operationalized in governance through the exception rather than motivated by cultural or ideological forces through exceptionalism.  I don’t disagree that understanding the complexities of exceptionalism is important, I simply think it is time we also broaden and deepen our terms of analysis in understanding how power functioned.

My work reflects the emerging agreement that the active and interventionist state of the imperial age can be readily located in the late nineteenth century, a period when previously the state had been presented as indistinct, weak, or reactive.  This robust state was especially clear at the intersection of law and policy in the responses to extraterritorial crime and other jurisdictional issues.

Lastly, we must come back to the question of empire.  The legal regimes relating to the structuring of imperial models of sovereignty and assertions of jurisdiction had a long developmental arc and utility, if not life in political terms, that needs to be considered more historically.   I am especially interested in the period when the United States pushed assertively toward global power and when it honed the legal spatialities of such great later utility.  Imperial style jurisdictional assertions were clear in the period before the turn to formal empire.  The many legal spaces of empire are now deservedly studied, but the innate construction of both U.S. power and of polity in line with empire as a way of life is something that still needs to be explored in much greater detail.  I am hopeful that the roundtable will encourage such exploration.