Volume 2, Issue 2, 2022
Racial Capitalism and Law
The theory of racial capitalism offers insights into the relationship between class and race, providing both a structural and a historical account of the ways in which the two are linked in the global economy. Law plays an important role in this. This article sketches what we believe are two key structural features of racial capitalism: profit-making and race-making for the purpose of accumulating wealth and power. We understand profit-making as the extraction of surplus value or profits through processes of exploitation, expropriation, and expulsion, which are grounded in a politics of race-making. We understand race-making as including racial stratification, racial segregation, and the creation of sacrifice zones, which reflect the strategies and outcomes of profit-making. The structural features of racial capitalism thus are mutually constitutive: profit-making processes create and reinforce the making of racial meaning, while race-making, underwritten by white supremacy, structures and facilitates the economic processes of profit-making. Together, they constitute a global system dependent on the unbridled extraction of wealth from both humans and nature.
This essay examines how the operation of background rules and institutions provided by law leads to the expulsion of individuals under racial capitalism based upon gender. Aligning itself with anti-capitalist work by critical theorists of social reproduction and intersectionality, it contributes to perspectives on racial capitalism that regard gender, in the way it creates subjects and differentiates between workers, as a co-constituting force with race under racial capitalism. Women and transgender persons, because of gender, are precariously situated on the edge of exile from the economic order. It makes this argument by weaving feminist insights – particularly those articulated in scholarship on social reproduction and intersectionality – with perspectives on racial capitalism.
Invested in Whiteness: Zimbabwe, the von Pezold Arbitration, and the Question of Race in International Law
Using the 2015 arbitral award in von Pezold v. Zimbabwe as its starting point, this piece reflects on the relationship between racial capitalism and international law. Stressing the particularities both of this specific case and of the field of investment arbitration, I nevertheless argue that the tribunal’s finding that Zimbabwe’s land redistribution program had been racially discriminatory against white commercial farmers is symptomatic of broader argumentative structures in international law. In particular, I suggest that it was three argumentative moves that led to this perverse outcome: a temporal fencing of racism, a spatial containment of racism and, finally, a strict conceptualization of racism as prejudice pertaining to “skin color.” The combination of these three moves allowed the arbitrators to artificially separate the question of race/ism from questions of property and wealth distribution, capitalist accumulation, and exploitation. Far from being aberrational, these three moves are commonplace in (neo)liberal domestic and international legal systems and contribute to the invisibilization of racial capitalism as a structure of dispossession, exploitation, and abandonment.
Racial capitalism provides a baseline analysis of how capitalist systems function inextricably from race. We contribute to the development of the concept of racial capitalism by arguing that as property is the lingua franca of capitalism, racialized, gendered property is the institution that undergirds racial capitalism. Even if we could eliminate the racial and gender bias of the capitalist system, the very disposition of the institution of property itself is so inherently racialized and gendered through the human interactions by which it is co-constituted that the resultant property-based capitalism is also raced and gendered. Those observations are the backdrop for a more probing set of arguments about the role of gender and race in shaping the property narrative, which we explore in a series of examples that reveal the inherently racialized and gendered nature of property in the extant capitalist system. Our engagement opens space in this era of racial and gender reckoning to call upon property to become a site of advancing new or contested social values of justice or equality for communities that exist at the margins of society.
Over the past decades of neoliberal globalization, microcredit has been a widely supported project that claims to address global poverty, inequality, and uneven development through debt-based solutions involving small interest-bearing loans that can be used to fund small-scale business entrepreneurship. Microcredit’s promise, though never fulfilled, reflects an approach to development within a broader shift toward financial capitalism, privatization through individualized debt creation, and shrinkage of the social state. Moreover, microcredit (more broadly, microfinance) seeks legitimation in narratives of inclusion, participation, and gender empowerment. In fact, social capital belonging to the targeted populations of microcredit programs in the “global South” is itself often tapped in the service of value extraction. This article forwards a view of microcredit as operating within a logic of racial capitalism. The approach seeks to ground critiques of microcredit’s core neoliberal elements within a longer history and broader appreciation of racialized and colonial structures of finance.