2 Transnat'l Legal Theory 1 (2011)

handle is hein.journals/trnsletho2 and id is 1 raw text is: (2011) 2(1) Transnational Legal Theory 1-24

Law and the Production of Superfluity
Susan Marks*
Abstract
This article considers the concept of superfluity and its pertinence to the study of law. W hile not a
familiar theoretical category, superfluity directs attention to a range of important contemporary
problems. The focus here is on the systematic production of superfluous people. Reference is made
to writing by Hannah Arendt, for whom the production of superfluous people was central both to
totalitarianism and, more generally, to capitalist imperialism. Reference is also made to recent
writing by Zygmunt Bauman and Loic WA acquant, who have addressed 'human waste' and 'advanced
marginality' in the context of neoliberal restructuring. The article raises the question of how legal
processes and structures, and especially those associated with international or transnational law,
may contribute to the production of superfluity, as described by these authors. It appears that we
know relatively little on this subject, and that more work is needed. At the end of the article, the
possibility is evoked of an alternative, reclaimed or 'real' superfluity, understood as the 'in-the-
wayness' of those struggling to transform the conditions in which human superfluity is produced
and reproduced.
Shakespeare's play Coriolanus opens with a scene of a riot. The ordinary people of Rome
are hungry, and have gathered together, ready for a fight. Even dogs must eat, they shout.
The gods did not send corn for rich men alone. One man steps forward from the crowd
to address his fellows:
We are accounted poor citizens, the patricians good. What authority surfeits on would relieve
us. If they would yield us but the superfluity, while it were wholesome, we might guess they
relieved us humanely; but they think we are too dear: the leanness that afflicts us, the object of
our misery, is an inventory to particularise their abundance; our sufferance is a gain to them.'
According to this man, then, there is plenty of corn to go around. If those assembled go
without, this is not because of any shortage. It is because the patricians are hoarding corn.
Professor of International Law, London School of Economics, UK. I draw here on a paper prepared for a
workshop in the series 'Kelsen, Schmitt, Arendt and the Possibilities of (International) Law' held at Tilburg
in September 2010. 1 am grateful to the organisers and participants. Warm thanks too to Craig Scott for his
generous and immensely helpful comments.
1, i, 15-23. WJ Craig (ed), Shakespeare: Complete Works (Oxford University Press, 1905) 701.

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