A free society requires certain morals that in the last instance are reduced to the conservation of lives: not to the conservation of all lives because it would be necessary to sacrifice individual lives in order to preserve a greater number of other lives. Therefore, the only moral rules are those that carry up the “calculus”: property and the contract.
— Hayek, Friedrich von. “Entrevista”, Mercurio (Santiago de Chile), 19. 4. 1981.
Unfortunately, some will have to die.
— Lourdes Alcorta, Peruvian Congressman, 2012 (opinion in relation to socio-environmental protests)
Peasant woman from Cajamarca-Peru: “Why are you treating us so bad?”
Police: “because you are a fucking dog, for that reason.”
(In the context of the state of exception in Cajamarca, 2012)
The expansion of the extractive industries has, as counterparts, first, the reaction of indigenous communities in the defense of their communal goods (land, water, grazing, etc.), and second, the violent counter-attack of the state through police and military repression, legitimated many times by the state of exception (in Peru the “state of emergency”, a kind of state of exception, has been applied by governments in previous years to control socio-environmental protests). Political economy and legal policy are both relevant to this situation and both are functionally connected.
In respect of political economy, let us bring to mind what David Harvey calls “accumulation by dispossession”, which is just the theoretical update of the “primitive accumulation” described by Karl Marx, that is to say: capitalist expansion requires the violent transformation of common goods into commodities in order to be appropriated and then used by exchange mechanisms. This kind of accumulation was deployed in the past by wars, invasions, colonization, and today by institutionalized mechanisms such as legal expropriations, bio-piracy, etc. “Accumulation by dispossession” is thus necessary in order to implement a new political economy of capitalist labor justified by the rhetoric of “progress”, “development” and “social inclusion” directed at the institutionalization of “accumulation by exploitation”. Hence, indigenous communities are dispossessed directly (by open expropriation on behalf of “national interest”) or indirectly (by pollution and the elimination of the possibility of developing any economic activity other than mining), so the only option for native peoples is to work in the mines as cheap labor to be exploited as in the past or to leave their territory.
From the perspective of world-system theory (Wallerstein), this process entails the “economic development” of certain actors, e.g. states, corporations and local elites, based on the exploitation of periphery countries or, more precisely, on big sectors within poor countries (the South of the South). In this context, there are individuals who are dispensable for capitalist expansion. For example, economic efficiency is explained via the Kaldor-Hicks criterion, according to which it is perfectly possible to sacrifice people’s wealth and even their lives because it benefits abstract “national interest”. In sum, the violent expansion of capital transforms the death of dissidents into a cost that must be assumed. They are converted into dispensable lives (Mignolo, 2009).
In respect of legal policy, we can aptly refer to what Giorgio Agamben calls bare lives. In order to defend the expansion of the political economy of extraction (mining) and to maintain the status quo, the legal system must create spaces in which the sovereign power can exert direct violence on dissidents and those who threaten the exercise of power. These exceptional spaces allow the denial of legal and political subjectivity, so that the dissidents are violently included or excluded: they are disciplined citizens or “bare lives” and thus targets of biopolitical power. In Agamben’s terms, the state of exception is the mechanism for producing bare lives, whether it be the homo sacer of the Romans, the Nazi concentration camps or Guantanamo Bay. Thus, the basis of Western legality, which today is the basis for the legal policy of liberal capitalism, has always determined, explicitly or implicitly, the dividing line between the human, inhuman, or less-human (or underdeveloped, primitive, etc.). In the 15th and 16th centuries, the “Christian” was ruled/protected by the Church and ius gentium; from the 17th century onwards, the “bourgeois citizen” has been mainly ruled/protected by the modern nation-state; from the second half of the 20th century, the citizen/worker/consumer has also been ruled/protected by the global market and human rights (whose genealogy is still based on an implicit hierarchy). Those who are outside of this logic have always easily been dispensable or bare lives.
Non-Western peoples historically named and renamed as Indians, peasants or indigenous are examples of the convergence of dispensable and bare lives (Mignolo, 2009). The expansion of colonialism entailed the necessity of denying two legal, political and economic foundations of indigenous peoples: their character as sovereign nations and their communal organization (Gilbert, 2006). That denial was justified by the Lockean argument that indigenous peoples had a primitive legal and economic organization, so indigenous land was not communal land (a proper legal system), but simply terra nullius, an empty land that could be appropriated, and the Indians were dispensable in this process.
In addition, if the Indians were opposed to the colonizers’ exploitation of their land, this was a reason to trigger a “just war” against them (in Vitoria, Gentili and the fathers of natural rights) and transform them, through an act of exception, into bare lives to be used or eliminated. Today this process maintains the same colonial matrix: the expansion of extractivist capitalism is violently deployed in assuming that today’s indigenous peoples must be “included” into “development” or disappear, without respecting their different cosmovision and social organization. But they are also bare lives when the “state of exception” or other draconian legal mechanisms are imposed to implement extractive projects bathed in the blood of dissidents. In Peru, a painful example of this situation was the murder of 15 people by police and the repression by the military during the socio-environmental protests less than a year into Ollanta Humala’s term in government.
The mining project “Conga” in Cajamarca (Peru), is another example of this process. This mega project will affect the ecosystem on which indigenous and peasant communities depend. However, they have never been consulted in accordance with Convention No. 169 of the International Labour Organization, nor has the state sought to obtain their consent in accordance with the UN Declaration of the Rights of Indigenous Peoples of 2007. These illegalities, however, don’t count when the stakes involve the implementation of extractive projects on behalf of “economic growth”. The economy, the legality, the cosmovision of others are issues that become totally dispensable. And if there is resistance, the state of exception is available to impose the “rule of law”. The legality of some destroys the legality of others.
For these reasons, the inextricable link between capitalist political economy and the violent foundations of the legal policy of liberal capitalism must be named the political economy of indigenous dispossession. This process of accumulation is intrinsic to the logic of the liberal state that reproduces internal colonialism against what is called “the fourth world” or the areas inhabited by indigenous populations. Therefore, the so-called intercultural dialogue that is celebrated as the solution to the conflict in Cajamarca and other socio-environmental conflicts, won’t be effective if, beforehand, there is not complete respect for the different ways of being and understanding of indigenous peoples, which in turn, constitute the basis of their diverse legal, political and economic organization.
Roger Merino holds a Bachelor’s in Law and Political Science, Master’s in Civil and Commercial Law, MSc International Policy, MSc Comparative Law, Economics and Finance and is currently a PhD candidate at the University of Bath, UK.
Agamben, G., 2005. State of exception. Chicago: University of Chicago Press.
Agamben, G., 2008. Beyond Human Rights. Social Engineering, 15, pp. 90–95.
Agamben, G., 1998. Homo Sacer: Sovereign Power and Bare Life, Trans. Daniel Heller-Roazen. Stanford University Press.
Gilbert, J., 2006. Peoples’ land rights under International Law: from victims to actors. Ardsley: Transnational Publishers.
Harvey, D., 2003. The New Imperialism, New York: Oxford University Press.
Hinkelammert, F., 2004. “The Hidden Logic of Modernity: Locke and the Inversion of Human Rights.” Worlds & Knowledges Otherwise (Fall), pp. 1–27.
Merino, R., Critical Human Rights and Liberal Legality: Struggling for ‘The Right to Have Communal Rights’ (June 27, 2012). Available at SSRN: http://ssrn.com/abstract=2094671
Mignolo, W., 2009. Who Speaks for the “Human” in Human Rights? Human Rights in Latin American and Iberian Cultures. Hispanic Issues, 5(1), pp. 7–24.
Mignolo, W., 2009. Dispensable and Bare Lives: Coloniality and the Hidden Political/Economic Agenda of Modernity. Human architecture: Journal of the Sociology of Self-knowledge, VII, 2, Spring, pp. 69–88.
Wallerstein, I., 2004. World System Analysis: An introduction. Duke University Press.