The ongoing general crisis of global capitalism has highlighted the work that needs to be done to uncover the role of law in the creation, management, and perpetuation of capitalism’s “constitutive crises”.
This post concerns the bourgeois state. Let me begin with a general point with regard to Marxist analysis, particularly the dialectical unity of theory and praxis.
In the aftermath of the 2016 presidential campaign and the dramatic defeat of an avowedly feminist Hillary Clinton to a demonstrably misogynistic Donald Trump, many have called into question the future of feminism.
In 1859 Marx stated that he intended to examine "the bourgeois economic system in this sequence: capital, landed property, wage-labour; the state, foreign trade, world market". But he was unable to write his analysis of the state.
Couching Trump as a "lawless" autocrat-in-the-making has become a matter of routine, something of a mantra repeated by "liberals" and "conservatives" alike. The trouble with this characterization is not that it is inaccurate, but rather that it is incomplete.
Law here, law there, law everywhere. The first nine months of the Trump administration have thrust questions about the force of law, legal strategy and tactics, and the role of judges in the United States' much-vaunted system of constitutional checks and balances to the fore of public attention.
Although Nicos Poulantzas is rightly regarded as one of the most innovative Marxist theoreticians of the state, most analyses tend to focus on his account of the relative autonomy of the capitalist state in the organization of the hegemonic bloc of the capitalist class.
Antonio Gramsci can be credited with having developed and elaborated in an original way the concept of hegemony to describe not control and domination exerted by coercive force but intellectual and moral leadership resulting in control that is anchored in consent.
The institutional forms of a capitalist state--its courts and prisons, its agencies or ministries, its regulatory apparatus and administrative procedures--are given articulation through law.
As critical international lawyers have long pointed out, the relationship between international law and capitalism tends to assume a fundamentally dialectical character.
For most of its history, the Marxist tradition as we know it has lacked a single unified theory of the state. In large part this state of affairs can be explained by the somewhat contradictory legacy left by Marxism's two main founding figures.
In one of the most easily Google-retrievable texts on the Marxist theory of the state (MTS), a 1999 essay written for an edited volume entitled Marxism and Social Science, Colin Hay, a former student of Bob Jessop, remarks that "Marxist state theorists--unlike, say, their feminist counterparts ... --have rarely been called upon to offer … justification for their theoretical endeavours".