SouleymaneFootnote ¹ hails from Burkina Faso – the state whose name ‘the home of honest people’ (‘la patrie des gens intègres’) was coined by Thomas Sankara, the military-turned-Communist revolutionary, who promised to bring this former French colony onto the path of national emancipation, economic development and women’s empowerment before he was murdered in 1987.

Souleymane arrived in Paris over two decades ago, following on the trails of two of his half-brothers. He is the eldest son of his mother. His father, well into his eighties, sired a couple of dozen children. Souleymane’s father experienced colonial rule, the painfully short glimmers of independence, dictatorships, now a simmering jihadist war that has plagued the northern region of the country since 2015, and the doom of extraverted hope: sons and daughters scattered across Europe, in the quest of a better future.

Souleymane has a relentless dream. He wants to position himself as a trader operating directly between Burkinabe small-scale producers of sesame and other seeds and the organic retail industry in continental Europe. Souleymane’s dream is relentlessly crushed. When his fret is not stolen or packed with stones, the seeds arrive in Europe rotten after months at sea, blocked by the COVID-19 crisis, or simply because the wrong hand was greased with the wrong amount at the freight port. Souleymane is keenly aware that he lacks the social capital and the financial clout that would enable his loads to transit swiftly from his landlocked birth country to Europe; that would position him as intermediary between the women farmers of his native village and global markets.

What I do not know is why there is no other alternative, for him, between success as a trader and the brutal work he has finally accepted to take on as a security guard – like his half-brothers. In the preface to the twenty volumes of his monumental family saga, Les Rougon-Macquart, the French writer Zola explained the project in these words:

As Zola points out in 1871, the romantic epic is also a scientific fresco. The first episode, The Fortune of the Rougons, is also entitled by its scientific title, The Origins (Zola Reference Zola2019 [1871]: 13). For Zola, there is an adequacy, otherwise symptomatic of the naturalist literary current which characterised the nineteenth century as an era of political, social and economic turmoil,

Lawyering Imperial Encounters does not hail as a totalising history. First because it cannot dare to recount in their entirety the collective biographical encounters of symbolic intermediation between the African South and global markets. In her magisterial Ted talk, ‘The danger of a single story’,Footnote ² the Nigerian-American writer Chimamanda Ngozi Adichie recalled the warning of the Palestinian poet Mourid Barghouti that ‘if you want to dispossess a people, the simplest way to do it is to tell their story, and to start with, ‘secondly’”.Footnote ³ Start Souleymane’s story with his physical removal from his birth country, and not with the French colonisation of the Haute-Volta, and you have an entirely different story. Start Souleymane’s story with the necessity of converting to brutal labour in Europe despite his university degrees, and not his relentless dream, and you have an entirely different story.

As Adichie argues, ‘[p]ower is the ability not just to tell the story of another person, but to make it the definitive story of that person’.Footnote ⁴ And perhaps, indeed, there is no other way than fiction to escape the problem with stereotypes. The fact that they are not untrue, but incomplete. Perhaps, thus, the best venture into the past to make sense of the present as a kaleidoscope rather than a single black line is to read Okonkwo’s story – Chinua Achebe’s (Reference Achebe1990 [1958]) Things Fall Apart’s hero – as a sequel, and not just a prequel, to Adichie’s (Reference Adichie2016) Americanah. Perhaps there is no other way to understand how an Igbo warrior could end up committing the tabooest gesture of his people, suicide, than to follow Ifemelu’s return to Igboland, from the US, back to her first love, Obinze, who never ‘made it’ in Europe but who met the right people at the right time in present Nigeria. And in so doing lost a little bit of himself.

Thus, it is also, and foremost, because Lawyering Imperial Encounters tells the story of the protracted hangover of the past in the present. Ask any student and they will all agree that allowing us, in the so-called North, to breathe better, while Africa continues to suffocate, is horrifying. Ask any student, and they will all have stories to tell about colonialism, stories that often hark back to their family genealogies. Certainly, not all of them are imperial cadets. But all of them eat sugar. And we know, thanks to Mintz’ magnificent Sweetness and Power (Mintz Reference Mintz1986), that the palatability of sugar is not just an acquired taste. It is eminently imperial.

Students will all respond with indignation to the one-sided and partial storytelling about the past recounted in their history books. But the past cannot be erased, or rewritten. Nor can it be reduced to a ‘hangover’ (Puri Reference Pue2021). The past matters to the present because it can help track future paths. But for this, we need to ask, like Mitra argues in her superb study of ‘deviant female sexuality’ in colonial India (Mitra Reference Mitra2020: 206): what if ‘the thousands of pages of social scientific description’ that reinforce the position of law and legal professions as the ‘cutting edge’ of colonialism and post-colonial development ‘could not claim the mantle of objectivity from their form alone’?

C.1 The Past Matters, in a Sedimented Way

Law remains the vernacular of Africa’s uneven and unequal relationship with the world economy. It is through law that forms of financial and symbol capital are negotiated as sovereign resources – be it that of a state, an empire or a corporation. Using law as an entry point can help switch from those questions that ask ‘either-or’ to answers that assess ‘both-and’. Looking at the structurally dual role of law, in the longue durée, as both an enabler for the expansion of power – through its symbolic function of codification – and as a check on petty arbitrariness, can help escape the trope of determination.

Field theory can prove particularly effective to avoid the siren call of law’s unyielding promise to respond to an increasing array of problems, from social and political unrest to the climate crisis, and law’s inexorable failure. Espousing the global turn in sociology and history prompts us to depart from the current historiographic obsession with either imperial legacies or the 1980s’ neoliberal turn. But this requires that we look for the state in places we are not used to finding it, law and finance, and for law in the articulation, over time, between political change and capitalist accumulation.

The exceptionality of the trajectory of the Great Lakes region since the 1884–1885 Berlin Congress provides a formidable illustration of the stakes of this research agenda. Not only as the epitome of the imperial entanglement of scholarship. Not simply as a region that has been at the heart of the three Scrambles for Africa, from the nineteenth century, the Cold War partition of the continent to the ongoing rush for Africa’s ‘green’ minerals. But because looking at the intermediaries – be they lawyers, jurisconsultes, merchants, local chiefs, transnational corporations, national and international NGOs, global traders, militaries, diplomats, international financial institutions or simply individual entrepreneurs trying their luck – that are renegotiating the region’s articulation with capitalism underscores that the past matters, in a messy, haphazard way. And attending to the imprints of past relationships on the nexus between politics, GVCs and finance is the only way out: to enable us to breathe better, without suffocating what has become the lung of the global economy.

As I mentioned in the Introduction and Chapter 1, the empirical vignettes I tracked throughout the book between Abidjan, Bujumbura, Ghana, The Hague, Johannesburg, Kinshasa, London, New York, Paris or Washington, D.C. are selective. Each endeavoured to systematically track the connections (humane, professional, normative or institutional) at play in the justification of the borders of encounter between the African continent and the world economy. These borders are physical and symbolic. Each of these vignettes of localities of imperial encounters foremost underscores that the relationship between law, politics and capital accumulation is at once intensely local, as it is determined by local struggles, and intensely global as it refracts the flows and counterflows of conflicts playing out in other localities.

Just like past scrambles, the ongoing rush for Africa’s ‘green’ minerals reads like a complex plot, mixing grand corruption, warlords, missionaries and innocent victims – as a sequel, in other words, of the ‘Great Game’, this time between the US, China and emerging economic powers. Certainly, the present encounter between resource-rich African states and global markets has been deeply impacted by the global economic and political upheavals of the past forty years. Financial deregulation combined with technological and logistical innovations have dramatically transformed the geography of extraction by empowering global traders as producers, traders and financial actors. The onshoring of swashbuckler capitalism is also deeply connected to a codification of capital (Pistor 2019) based on Common Law and the law of the State of New York which is enabled by the globalisation of the Wall Street model of the corporate law firm.

These structural changes heighten the risk induced by a functionalist and economicist understanding of GVCs. To be sure, as Bullough (Reference Bullough2022: 237) argues, financial deregulation and the subsequent globalisation of finance – outside sovereign remit and democratic oversight – were in part a political choice. And there is a sense of doom in realising that allowing the ‘financial curse’ to occur, only to pay lip service, over and over, to solving it is a pattern that is likely to continue.

But the past also matters because it is sedimented in the present. Taming messiness is not part of the solution. Thinking so would precisely mean falling into the trap of law’s siren call. Messiness is a structural component of the relationship between political power, capital accumulation and law. The frescos I drew of the successive Scrambles for Africa in Chapters 2, 3 and 4 demonstrate that each built on the tracks of the previous ones, albeit with at times major transformations. Most often these displacements were symbolic. The pattern of middle power unshackled by the simultaneous onshoring of offshore capitalism in the 1980s and the expansion of US power without formal imperialism – based on the extraterritorial waging of US law, backed up by the power of the US dollar – means that the lack of a global legal ordering is not reflective of the problem of the globalisation of finance. It is an outgrowth of it.

The competition between claims for legal ordering – illustrated by the dramatic judicialisation of global and domestic politics since the 1980s – and the blurriness enabled by the instability of middle power are a core driver in the competition between the US, China and old imperial European cores. Competitive claims for legal ordering are also a core driver in the uneven, unequal and messy justification of the practical and symbolic boundaries between sovereign and private interests, and capitalism’s cores and its so-called peripheries.

The patterns of legal imperialism deployed during the nineteenth-century Scramble for Africa operationalised the paradox that this colonial encounter was weak in its effective reach but strong in the upheavals it engendered. Both the nation states that emerged or consolidated during the period in Europe and the US and the colonial states that were fitfully created on the African continent reflected law’s structural role in operating the symbolic distinction between organised crime and war making/state making, which Tilly argues are both ‘quintessential protection rackets with the advantage of legitimacy’ (Tilly Reference Tilly, Evans, Rueschemeyer and Skocpol1985: 169). In the former US colony, in Britain, in London, in the Congo Free State, Belgium, the Gold Coast or Southern Rhodesia, the nineteenth century was a period of major upheavals in the political, social, geographical and legal parameters of power expansion.

Tilly does underline that the trilogy between coercion (for the monopolisation of violence internally and in relation to external competitors), protection (as the elimination or neutralisation of the competitors of capital accumulating forces within the state) and extraction (as the acquisition of the means of carrying out the first three activities) are processual, not ideal-typical. The middle power exerted by Britain by deploying law’s double-edged protection within and outside its imperial remits, and by competing imperial powers through indirect rule, also meant that these patterns of power expansion were deeply impacted by the nineteenth-century colonial encounter itself, in both the global economy’s cores and its peripheries.

The conflicts over land of the Gold Coast that trickled up to the Privy Council, Belgian King Leopold II’s attempt at justifying the looting of Congo’s humane and mineral wealth through the codification of international law, or the pre-independence trials waged against political opponents in the French and British colonies were interconnected precisely because they reflected flows and counterflows across and between imperial realms. These conflicts contributed to coding sovereignty as a symbolic currency that was ‘shared out, layered [and] overlapping’ (Burbank and Cooper 2010: 17).

These dynamics of trade in symbolic capital produced winners and losers. They at once consolidated the British Crown’s sway over African colonies, and restricted it by empowering financial and merchant power. They at once fostered international law as a device to manage imperial confrontations and insulated its codification remit to the relationship between national sovereign entities. They at once confirmed the contradictions of legal imperialism and consolidated gatekeeping and middling – the struggle over the rent of extraction and the ability to benefit from it locally and internationally – as structural features of the nation states that emerged out of colonisation. Thus, that post-colonies should be deemed more violent even though they are seen to be making a fetish of the rule of law is not a paradox. It is part and parcel of the structural dynamic of legal imperialism tout court.

What consolidated the structural banality of Gécamines’ position, though, rather than its characteristics as an emblematic paradox, as I surmised in the Introduction, as at once vanguard and backwater of capitalism, is the symbolic displacement of the legal imperialism of the nineteenth-century Scramble during the Cold War partition of the African continent. To be sure, both the colonial projection espoused by France and Belgium during the Cold War and the ensnared independence of resource-rich African states contributed to exacerbating the stakes – and the violence – of gatekeeping politics within the nation states that emerged out of formal colonialism.

But the geographical scattering of offshore capitalism – within the archipelagos of Britain’s informal empire – and its legal codification, through devices like the international business company – also enabled the redeployment of Britain’s middle power, through the dual position of London as both jurisdictional and financial apex. This dual position too reflected and produced flows and counterflows. The competing jurisdictional claims for legal ordering fostered by the expansion of inter/national justice institutions in the 1980s simultaneously allow sovereignty to remain layered, shared out and overlapping or bifurcated. And it is precisely in these tracks that the expansion of the US hegemon can be delineated. The Cold War sidelining of The Hague justice institutions enabled the redeployment of the concession model of extraction, backed up by the formidable sway of the alliance of Wall Street resources – finance, corporate law firms and legal tools (contracts and arbitration clauses) – aimed at insulating foreign corporate rights in property in resource-rich African states from national oversight.

Law remains the vernacular of Africa’s relationship with the world economy, but it is a vernacular that is at once vernacularised, in the sense that it reflects the social fault lines that are marshalled and transformed through law, and selective. To reiterate, capitalism, as Pistor argues, ‘is more than just the exchange of goods in a market economy; it is a market economy in which some assets are placed on legal steroids’ (Pistor Reference Pistor2019: 11). The codification of capital based on Common Law and the law of the state of New York enables a redefinition of legal hierarchies as sovereign and social, through the globalisation of the Wall Street model of the corporate law firm. But these selective hierarchies remain entrenched in the hidden hierarchies produced by the sedimentation of past imperial encounters.

This selective codification is not imperilled by the position of Ivory Coast, the Congo or Burundi as ‘new frontiers, places where mobile, globally competitive capital […] finds minimally regulated zones in which to vest its operations’ (Comaroff and Comaroff 2012: 13). Rather, the hyperviolence of the ongoing rush is enabled by the competition between legal ordering claims.

C.2 Tracking Borders of Encounter: A Research Manifesto

This is precisely why the two policy moves generally broadcasted to tame the violence of climate change and that of the rush for ‘green’ minerals – either industry innovation, like getting rid of the cobalt component of Li-ion batteries, or governance, the idea that governance in resource-rich states needs to be reformed, and that extractive value chains need to be made more transparent and accountable – are at best inadequate, at worst disastrous. This is not only because law means different things according to contexts, and foremost according to the political and economic power marshalled through it. To boot, sustainability, as a legal concept, will not easily mean the same for a risk entrepreneur, like FG Hemisphere, and a disenfranchised community. But it is precisely the blurriness of the concept that makes its social and political deployment – what I call lawyering – all the more effective due to the conceptual and practical spaces left open between borderless capitalism and bordered states, with sovereignty, whether layered, shared out, overlapped or bifurcated, enabling both the mobility of capital and the dumping of transnational corporations’ accountability across jurisdictions.

It is foremost, therefore, because waging law to tame the violence of the market will irrepressibly morph into lawfare if the sedimentation of past imperial encounters is not taken into consideration. This is perhaps most acutely and violently illustrated by the transition of Burundi as a boon for rare earths. In Burundi, the contradictory, yet concurrent, legacies of colonialism – that of the Cold War Scramble, the post-1990s re-enchantment of civil society as bulwark against state violence and the developmental state as interface with global markets – have positioned lawyers in a structurally schizophrenic position. They are positioned alternately as gatekeepers of the rent of exported commodities, or vulnerable to another type of extraversion, aid dependency.

It is this structural bifurcation of sovereignty – rather than the malleability of layered sovereignty in other settings – that makes Burundi a Petri dish of the hyperviolence generated by the hyperlegality of late capitalism.

But the structuration of concurrent professional markets of international justice – clustered around the repeat players operating the ICJ, investment arbitration mechanisms or the ICC – demonstrates that the competition for access and status within these markets, too, is about gatekeeping politics. Looking at justice as a market for the valuation of symbolic goods, beyond the distinction between national and international justice institutions, demonstrates that the institutionalisation of justice is at once embedded in dynamics of boundary making to define the remits of sovereignty – between the international, the national, the public sphere and private interests – and in concurrent politics of middle power.

This exposes the structural community of situation, beyond historical eras, institutions and geographical contexts, between the Rolin Jacquemyns and the Asante lawyers’ dynasties, the meritocratic aristocracy of the international bar of the ICJ, that of the investment arbitration ‘mafia’ or that of the ‘Africa’ Bar in Paris. This community of situation is as much about middling as it is about the revival of middle power. Each of these lawyers’ professional status hinges on their intermediation capital – middling – based on the uneven and unequal capacity to promote the value of certain forms of capital (social, political, financial). The explosion of supranational institutions that paralleled the advent of the ‘real’ post-colonial order was fostered, precisely, by their capacity to promote competing forms of capital as sovereign resources. Conversely, it is that very competition that sustains both middle power as a structural dynamic in the justification of politics of difference and its instability.

The conclusion, therefore, harks back to that of Benton and Ford’s Rage for Order (Reference Benton and Ford2016). The boom of adjudication in the past forty years as a locus to administer politics of difference in the name of a ‘global’ rule of law is based on stumbling blocks that are less the beginning of the end of a previous era and more ‘events that foreclosed certain possibilities of global legal ordering and made other outcomes more likely’ (Benton and Ford Reference Benton and Ford2016: 185–186).

Congo’s example underscores that China’s investments in Africa are threading on the trail of global traders. The twist is that despite the fact that they cannot benefit from the sociopolitical and cultural threads of an imperial past on the continent, Chinese mining corporations can evade the cost of relying on fixers, like Gertler, thanks to the 2007 ‘deal of the century’ with Congo which enabled the expansion of state-owned Chinese corporations while essentially positioning the Chinese state as Congo’s prime market outlet and creditor.

The competition between China and the US also reflects the imprint of past imperial encounters. The US debt has exploded since the start of the twenty-first century, sitting at nearly US$ 30.6 trillion in the second quarter of 2022. China, which owns an estimated US$ 972 billion in US Treasuries is the US number two investor among foreign governments. China has a vested interest in buying Treasuries to help depress the value of its currency, the yuan. A cheaper yuan makes the country’s exports less expensive for foreign buyers.Footnote ⁵

China’s stakes as world hegemon follow on the tracks of sedimented patterns of imperialism. Chinese expansion in Africa, and particularly in the Congo, relies on the selective legal codification enabled by the US dollar. China’s moves to evade the regulatory sway of the US FCPA illustrates that the game of catch-up between deregulation and re-regulation is therefore as much about access as it is about competing legal ordering claims.

But Chinese legal ordering claims also remain vested in old imperial tracks. The position of Hong Kong is a case in point. ‘While most other global spaces of Chinese law are still in the making, such as the new legal hubs along the [Belt and Road Initiative] map and frontier markets for Chinese investments in Africa or Southeast Asia, Hong Kong has already played a dominant role for the export of Chinese capital and legal institutions in the past two decades’ (Liu and Au Reference Liu and Au2020: 311). Zooming in onto professional flows across corporate law firms, Liu and Au (Reference Liu and Au2020) and Liu et al. (Reference Liu, Blocq, Honari and Au2022) track Hong Kong’s economic transformation since the 1990s, following Hong Kong’s handover to China in 1997 and the 2008 global financial crisis. The unique position of Hong Kong as at once a Common Law jurisdiction and part of continental China is reflected in the exceptional internationalisation of its legal market.

While elite law firms, namely the Magic Circle and Wall Street firms, continue to dominate this market, their power has been increasingly shaken since the turn of the 2010s by lateral moves towards Chinese firms’ offices in the city. In other words, while Hong Kong was until the 2008 financial crisis foremost a gateway for the expansion of US and UK corporations into continental China, it is now increasingly a key financial gateway for the expansion of Chinese business interests abroad. The emperor, thus, may be wearing new clothes. But they are woven in an old fabric: the engine of the Wall Street model of the corporate law firm.