While it is not difficult to see how this particular property-sovereignty continuum functioned as a rallying cry for many American settlers, there remained the question of how outsiders might be convinced of the legitimacy the American cause. In as-sessing how this parochial case for independence could be promoted in universal terms under the aegis of the ‘law of nations’, a profoundly important individual is Thomas Jefferson, the author of the American Declaration of Independence. While Jefferson’s sophisticated knowledge of the law of nations is well-documented, most studies have focused on his handling of discrete legal issues in his official service as a statesman within the early American republic.200 What has yet to be confronted is how his political theory of the American cause shaped the modern popular will-international law relationship whereby ‘facts on the ground’ produce a default pre-sumption that a sovereign political community is legitimate. In undertaking such a confrontation, it becomes clear that Jefferson’s theory collapses the distinction be-tween right and might as a justification for sovereign authority, the key feature of today’s ‘effective control doctrine.’
In offering this interpretation of Jefferson, a few inter-related points are of great significance. First of all, he is often remembered as deeply contradictory figure due to the fact that he owned one of America’s largest slave plantations and wrote elo-quently of the natural liberty of all men.201 However, taken as a matter of context, such a position was eminently consistent with the particular property-sovereignty
200 Much of this attention has been motivated by the fact that Jefferson served as the US Secretary of State under the in the Administration of George Washington, the first US President. For studies of Jefferson in this capacity, see e.g. Sears 1919; Wiltse 1935; Dumbould 1976.
201 For studies on connection between Jefferson and slavery in this regard, see e.g. Cohen 1969;
Schwabach 1997; Helo and Onuf 2003.
continuum discussed above. Through this lens, it makes a great deal of sense that, despite many apparent paradoxes, the right to property is nevertheless identifiable as the irreducible core of legal, political, and ethical thought in the Jeffersonian cannon.202
Secondly, when justifying this ultimate position, his masterful synthesis of a vast array of texts into incredibly concise prose exemplified the phenomenon of ‘juridi-cal thinking’ whereby the lawyer’s task is to genealogi‘juridi-cally connect disparate points as an articulation of timeless principle.203 However, Jefferson’s abilities in this capacity should not be overly attributed to individual genius independent of context. As discussed above, the lack compounded, long-term social practices in the American settler colonial context provided this population a vast array of inter-pretative discretion in rejecting, adapting, or inventing traditions when expounding the parameters of legal and political justification. Thus, Jefferson was arguably the single greatest practitioner of ‘juridical thinking’ against the backdrop of material conditions that actively cultivated this skill. Given that these material conditions where inexorably shaped by capitalist social-relations, it is unsurprising that the right to property occupied the core of Jefferson’s normative ontology.
Through grounding this right to property, Jefferson can be understood as position-ing the externally-focused case for American independence by first locatposition-ing Amer-ican uniqueness in its global context. According to Andrew Fitzmaurice’s reading, this took the form of delineating two different situations where diametrically-op-posed approaches to lawful order could each be social destructive in the own dis-tinct ways. On the one hand, there were situations where the deficiency of law lead to anarchic ‘savagery’ whereby no orderly social foundations were secure.204 On
202 Katz 1976.
203 On Jefferson’s writing technique as one of ‘intertextual mastery’ that is deeply in line with this art of synthesizing meaning as it flows through time as concisely as possible, see Ossipow and Greber 2017, 543-545.
204 Fitzmaurice 2014, 203.
the other hand, there were situations of excessive law whereby tyranny persisted in that all freedom was subject to unaccountable authority.205 While the former de-picted non-European societies and later dede-picted Europe’s absolutist regimes (and even its commercial societies), the American colonies occupied a virtuous middle-ground.206 In Jefferson’s ideal of America, the excesses of both chaos and despot-ism were avoided through the consignment of law to the delineated spheres of prop-erty acquisition, maintenance, and alienation, as a well as a limited government that protected these rights.207
However, situating American uniqueness still left open the question of why outsid-ers should recognize American independence. When answering to this question in light of Jefferson’s overarching contributions, we can acquire much insight from mapping the international legal implications of his famous 1774 pamphlet ‘A Sum-mary View of the Rights of British America.’ Through this text, Jefferson combines a depiction of the legal basis for American independence with an account of how British improprieties in relation to American property-based interests forced an om-inous clarification of the nature of American sovereignty. Here he claimed that American lands were ‘allodial’ (held free and clear of any feudal encumbrances) in a manner characteristic of the pre-Norman Conquest Anglo-Saxons who were the ancestors of the current American settler community.208 Since ‘America was not conquered by William the Norman, nor its lands surrendered to any of his succes-sors’, the allodial character of its lands held firm.209 Thus, it was only through mis-representing the truths of property law that the colonists had ever believed that the
205 Ibid.
206 Ibid.
207 Ibid.
208 Jefferson 1999 [1774], 77.
209 Ibid. 78.
British Crown held any valid interests in their lands.210 Under the ubiquitous rubric of common law authority, Jefferson seamlessly connected the discourse of an An-glo-Saxon ‘Ancient Constitution’ that resisted absolutism with the discourse of ‘al-lodial title’ that enabled colonialism capitalism
This grounding of rights can be connected back to the text’s previous claim that British interference in the colonies’ trade-based property interests, and their at-tendant consequences, were unjustifiable legal breach as opposed to an acceptable exercise of Britain’s imperial political discretion.211 In a recital of grievances, Jef-ferson condemned British depredations against ‘…the exercise of free trade with all parts of the world, possessed by the American colonists, as of natural right, and which no law of their own had taken away or abridged.’212 For Jefferson, such ac-tions were sufficient to raise the point that the settlement of America and its for-mation of a unique society made it just as much a nation as Britain which was formed through the analogous pattern of Anglo-Saxon settlement centuries be-fore.213 That said, while the metropole-settler ties were an acknowledged source of mutual benefit, as a fundamental reality, the Americans exercised control over their society to a greater extent than the British ever could, and if this was not respected, these ties could be severed as a matter of right.214
‘Summary’ was thus a masterwork of ‘juridical thinking’ whereby America’s unique property-sovereignty continuum was invoked to support the general pre-sumption that objective ‘facts on the ground’ warranted sovereign independence,
210 ‘Our ancestors…who emigrated hither were farmers, not lawyers. The fictitious principle that all lands belong to the king, they were early persuaded to believe real; and accordingly took grants of their own lands from the crown.’ Ibid.
211 Ibid. 66.
212 Ibid. 67.
213 Ibid. 64-65.
214 Ibid. 65-66.
even for an entity whose emphasis on popular will led it to reject dynastic sover-eignty. Popular will here was inseparable from a trans-temporal narrative of prop-erty rights where upholding distinct social relations in the present legitimized a my-thologized narrative of past that could be mobilized to make claims upon the future.
Through this tapestry of meaning, the veneration of a pure, apolitical conception of property politically justified the autonomy of a popular will-based sovereign entity.
If this entity suffered an unjustifiable interference with its foundationally important property rights/interests, an appropriate remedy was to dissolve all bonds with those responsible for the interference and this warranted the entire world’s recognition.
Thus, as a matter of universally applicable logic, the British could not deny this dynamic without denying their own legitimacy as a nation. In this way, Jefferson passionately depicted the uniqueness of the American experiment, but did so in by situating its case for independence as deserving outside support, even from those unable or unwilling to understand its plight on a substantive level. This hinged on the implication that if sovereignty was lacking in the America colonies, it was ques-tionable whether sovereignty could be truly present anywhere.