《例外的常态化：帝国主权、殖民法律与现代民族国家的生成》

To emphasize that the emergence of all territories belonging to the free nation-state was itself a historical response to military competition and capital accumulation, and that this history coexisted with that of enclaves and loosely configured corridors of control—retained and created by various European political bodies, resistant to easy classification, and even inclined to define and protect frontiers—both of these together reveal a certain chaotic condition of borders, an imperial border–boundary disorder.

This very state of disorder redirects the question toward the distinction between colony and territory, or rather, it deepens the problem into the complexity of imperial sovereignty.

That is, in the long, modified positivist practice of imperial jurisdiction’s irregular extension into non-European spaces—for example, in India, where “permanent land settlements” were established by appealing to religious rules and traditional authorities, thus creating and maintaining zamindari rights and even reinventing the caste system under British rule;or in the case of forced migration projects linked to penal transportation and slave labor—within the colonial context, the suspension and partial application of fundamental legal norms occurred not merely, or even primarily, to invoke the metropolitan law as a normative order, but rather as variants of similar structures and operations elsewhere within the empire.

It was precisely this pattern of legal evolution, including the emergence of these “mutated” exceptional legal zones, that came to form a universal and enduring element of the global legal order—namely, the model offered to imperial bureaucrats, military commanders, and jurists in the colonies for imagining the legal structure and function of empire during the transformation of international law from natural-law foundations to positivist formulations.

The impulse to simplify the chaotic, multi-jurisdictional legal order of the colonial context merged with the pressures of legal conflicts, giving rise to hierarchically stratified legal systems,which in turn generated new forms of imperial sovereignty and new, powerful claims to state sovereignty:

“Only empire possesses full and genuine sovereignty”—or, in more familiar terms, the “independent and autonomous sovereign state.”

Sovereignty, along with the outward manifestations of authority and control, was unevenly distributed across space and time, producing within the empire numerous small zones of legal anomaly (such as, say, a folk song from the western frontier full of tears and laments).

When the empire, confronted with these intricate problems, delegated or demanded that local rulers exercise political privileges, this entailed a suspension of law—yet these regions, as patterned variants of legal ordering, could never be clearly separated from the state of exception itself.

Thus, the earlier historical logic of territorial national sovereignty—arising as a response to military competition and capital accumulation—was displaced by a mode of thought that gradually naturalized the exception as an attribute of sovereignty:the blood of exceptionalism flowed into the dominant political structure.

The conceptual distinction between colony and territory became, on a symbolic level, a kind of capitalist revolution—a functional reconfiguration of the dominant political structure.

In this situation, the suspended metropolitan law, through inter-imperial circulation of discourse, helped—under the globalizing conditions of late eighteenth-century capitalism—to establish a symbolic and horizontal linkage between the treatment of convicts and the legal status of slaves.

Although penal colonies, like other mechanisms of forced labor, posed a lasting threat to order—and no one could guarantee that such “exceptions” would not corrode the “democratic rule of law” at home (the so-called inside being always outside)—the declarations of “martial law,” “labor ordinances,” and “contracts” arose precisely from the daily practices of military officers, landlords, and merchants within colonial governance.

From the perspective of this “outsourced” administration as the everyday construction of sovereignty, what might appear as peculiar or abnormal circumstances—imposed by environmental forces such as national character, ethnicity, or the so-called “lowland theory” of resource constraints—upon closer observation (as Marx would note) turn out to be astonishingly consistent with the overall paradigm of British political culture during the nineteenth century, the quintessential site of the capitalist mode of production.

Colonialism, in this sense, is an iteration of the extraordinary thing—the theological entity—called the State.