Elaborating the Material Constitution: A Response to Marco Goldoni — Rob Hunter

This post is an entry in a series of posts between Rob Hunter and Marco Goldoni. In the previous installment, available here, Goldoni responded to two posts from Hunter, available here and here. In this post, Hunter continues the debate by responding to Goldoni.

Constitutionalism is a moment in the totality of capitalist social relations. That moment may only be apprehended through a materialist conception of public law. To discern the social specificity of constitutionality, we must look to relations between people, and the ways in which those relations are articulated, reproduced, and mystified. Any adequately critical analysis of constitutionalism must attend to questions of social relations and social forms. An attentiveness to legal forms, rather than a commitment to conventional legal formalism, is what distinguishes the Marxist approach to constitutional theory. [1]

Marco Goldoni offers a valuable introduction to the theoretical resources made available by the Marxist tradition for analyzing constitutions in fully material terms. He warns against formalist conceptions of constitutionality that “trivialise the materiality of the constitutional order”. He rightly reminds us that “the constitutional order is not an externalisation of underlying social processes”. [2] The material constitution is comprised of social relations; it stands in a relation of co-production with other social forms. The relevant tension here is between the material and the ideal. The material constitution is not opposed to an abstract constitution per se; after all, abstractions can find specific expression in quite determinate, material manifestations. The material constitution is instead contrasted with constitutional principles as they are imagined by idealist jurisprudence. According to the latter, the mere “idea of the rule of law sets in motion a spiraling self-application of law” that can mediate between the contingency of social conflict and the principles that a system of legality is said to presuppose. [3]

Unlike the formal constitution, the material constitution extends beyond the four corners of the text of a basic law. It also extends beyond volumes of cases and commentaries, and even beyond the historical foundations of constitutionalism as a field of activity populated by jurists and officials. Inscribed within the material constitution are the records of social antagonism, contestation between political formations, and the production–through struggle and antagonism–of the institutional and practical forms of a polity. These have not always been objects of primary concern in legal theory. The elaboration of an adequately materialist conception of constitutionality–considered as an abstract form with a given specificity at a particular conjuncture–remains, as Goldoni observes, largely unfinished.

However, we also trivialize the materiality of constitutionality if, in rejecting ideal jurisprudence, we bend the stick too far by describing constitutions as mere mechanisms for class domination or capital accumulation. Constitutional law is not simply a vector through which capital exerts social power (although it is certainly the case that law is integral to the reproduction of the capital relation). Nor does constitutionality simply emanate from and reflect production relations. We should not conceive of a constitution as epiphenomenal in relation to a productive base that is both historically and logically anterior. The hierarchical and schematic image of the base/superstructure distinction places undue stress on the alleged primacy of production at the expense of other fields of social activity. Moreover, it runs the risk of fetishizing categories of bourgeois social thought through the reproduction of the distinction between the political and the economic.

An analysis that reduces state forms to mere cudgels in the hands of capital, using public power as an overt instrument of class domination, fails to describe state power as we observe it in action. The contemporary capitalist state is demonstrably not coterminous with the capitalist class or any fraction thereof. What accounts for this divergence? As Pashukanis asked (not altogether successfully, given his dismissal of public law [4]), “[w]hy does the dominance of [the capitalist] class take on the form of official state domination?” [5] The challenge we face is to describe specific constitutional forms without dismissing them as epiphenomenal, but also without engaging in the economic reductionism that Goldoni observes in the arguments of Lassalle or Beard.

It has been asserted that “the base-superstructure metaphor is no more than a statement of materialism”. [6] If this is so, then it is a gestural and incomplete statement that thwarts our apprehension of capitalism as a totality of social relations. The production process and legal forms are mutually constitutive within–and of–the totality of capitalist social relations. As such, production cannot be understood as anterior to the political, the legal, or the cultural. Capitalist production and exchange could not have been established, and cannot be reproduced, except by recourse to legislation and jurisprudence, among other things. (Marc Steinberg’s study of the importance of law and legislation to the formal subsumption of labor processes in nineteenth-century England is an exemplary introduction to this problematic. [7]) Pashukanis famously quipped that “legal fetishism complements commodity fetishism”; however, just as the fetishism of commodities does not entail the unreality of social relations that are mediated through things, the fetishism of legality does not entail the non-existence of social roles presupposed by relations of production and exchange. [8]

A constitution cannot be seen simply as a reflection of material social relations. Such a claim would trade on a tendentious notion of a hierarchy of primary and secondary social structures. It would be strange to assign law a merely secondary character in the structuration of contemporary social reality. The capitalist state is formally a legislative polity. Activities of production and exchange are undertaken by agents assuming legally determined roles. These roles impose obligations and duties; they delimit zones of inclusion and exclusion; and they elaborate ascriptive hierarchies of status, citizenship, personhood, and membership in communities of care, concern, or recognition. The capitalist mode of production is comprised of the totality of relations such as these, and they are integral to its reproduction.

Constitutional forms–relations, practices, norms, institutions, texts, and so on–do not obtain, as a matter of logical necessity, under certain conditions of production. They emerge through–and in response to–histories of struggle and contestation, the latter being the precipitates that are conjuncturally condensed into juridico-political forms. [9] In other words, constitutions are political constructs. As such, any adequately materialist analysis of constitutionality must be historicist and attentive to questions that are thoroughly social in character–questions about the role of ideology, articulation, and contestation in the reproduction of legal relations.

To better understand the dialectic between state and capital, it is helpful to return to Marx’s discussion of primitive accumulation. As William Clare Roberts notes, it is in part eight of Capital where we see most clearly that the state, in virtue of its dependence on capital accumulation, is in many respects an agent–but not an instrument–of capital. [10] The modern state, in its dependence on revenues derived from capitalist production, seeks to reproduce the capital relation where it already exists, and to introduce it–almost always violently–where it does not yet predominate. But the state is not merely a tool made by the bourgeoisie to be used for its own class purposes. In its superintendence of capitalist production, the state does not straightforwardly pursue the particular interests of a dominant class fraction (or the private interests of the individuals staffing state bodies). It is certainly the case that states pursue particular aims within the field of class antagonism, but they do not do so as instrumentalities of capital or a dominant fraction thereof.

The non-identity between the interests of states and the interests of capital may be observed in the various forms that are given content through the activity of a diverse array of capitalist states. There is a considerable diversity of such forms: North Atlantic social democracy, postcolonial developmentalism, and neoliberal governmentality are only a few examples. This heterogeneity does not arise simply because state forms are nothing more than local solutions to capital’s collective action problems, smoothing the contradictions of capitalism as they arise in particular conjunctures and circumstances. Rather, it may be traced both to the contingency of political antagonism–among and within social formations–and to aleatorically shifting fields of political possibility and strategic calculation. The diversity of capitalist state forms does not merely reflect a diversity of social problems with which states subservient to local or metropolitan capitals must grapple. Political and legal institutions are fields of contestation and articulation. Although they are almost always amenable to capital accumulation, such institutions are not mere adjuncts to it. [11] Insofar as states cannot be considered such adjuncts, neither can their constitutional forms. This suggests, or so I contend, that constitutions are, in and of themselves, worthy subjects of inquiry in the Marxist tradition.

If we are convinced that constitutions are legitimate explananda within the Marxist tradition, then how should we go about articulating a research agenda within that tradition? One possible avenue of inquiry is centered on the production and reproduction of subjectivity. Goldoni identifies juridical subjectivity as a “key element of the materialist analysis” of constitutions. Such subjects must be understood to consist not only of juridically constructed persons, but also social formations–movements, organizations, firms, and so on. Among the social formations of greatest interest to Marxists are trade unions, parties, associations for mutual aid, and so on. It is impossible to understand the reproduction of the legal form without attending to such phenomena.

It should also be noted that legal consciousness must be understood as denoting both inter-subjective relations of certain kinds, as well as the production and reproduction of juridical subjectivities. It is not the manifestation of legal ideals or principles in the beliefs and affective orientations of particular individuals. (Many non-Marxist students of law are considerably invested in the investigation of subjectivity as well. Critical legal scholarship, for example, has been shaped, to a considerable extent, by the search for ways in which law is constitutive of consciousness. [12])

Subjectivity is certainly a crucial aspect of inquiry into constitutionality qua social relations. However, an analysis of structure and form must also be part of that inquiry. Subjects do not only make legal forms; they are, in turn, made by them. Too great a stress on the role of subjectivity in the production of constitutionality can tend towards a voluntaristic conception of constitutionality, such that constitutions are made by political agents through their discursive and practical activity. Certainly, it has to be the case that such activity is an aspect of constituent power, and constitutions qua institutional crystallizations of social antagonism bear the marks of being made through such activity. But constitutions are not simply made (and re-made); they endure.

Constitutions are distinguished in part by their durability and their endurance through social time. Indeed, the reproduction of constitutional forms is one way in which emancipatory struggles are made extraordinarily difficult in the current moment. The constitutional state, which is articulated both juridically and institutionally, is far more resilient to pressures from below than is an autocracy. It is also more reliably productive of forms of subjectivity that are adequate to the reproduction of the capital relation. Governmentalities of surveillance and discipline are thoroughly imbricated in the institutions and processes of the constitutional state. Nor can law as a discursive phenomenon be adequately grasped without an attentiveness to its forms and structures–otherwise we lose sight of its distinctive dual character, both as a self-referential discourse, and as a discourse that articulates the state as a producer and distributor of violence. These are all questions of form as much as they are questions of agency, ideology, and contestation. [13] Moreover, consideration of such questions quickly throws into doubt the possibility of overcoming or addressing the contradictions of constitutional polities within their own constitutional structures, via amendments, reforms, or electioneering.

Subjectivity and agency are crucial to the investigation of political constructs such as constitutions, and they must be relied on for critiques of the political more generally. Goldoni’s emphasis on the role of subjectivation in a materialist critique of constitutionalism also serves as a salutary reminder that constitutional theory (critical or otherwise) has rarely attended to political subjectivity, or to the centrality of individual- and group-level experience in the movement of the political. Nevertheless, an adequate theorization of the material constitution must also attend to its relations to other social forms. The materialist study of constitutions and public law must be conducted under the aspect of the totality of capitalist social relations. Subjectivation does not occur outside of, or in non-relation to, the value-form or the legal form. The personification of capitalist subjects is mediated–or, in many cases, simply imposed–by juridical roles that are themselves local, individual manifestations of the legal form (qua complex of legal relations). A social totality cannot be apprehended as the concatenation of the subjectivations that occur within it. The unity in separation of the social relations comprising such a totality is a separate phenomenon worthy of consideration in its own right–as are the interactions between such social relations. Marxist constitutional theory begins–although it certainly cannot end–with the analysis of social forms. [14]

[1] For an elaboration of this point see my “Marxism and Public Law”, Legal Form, available at https://legalform.blog/2017/10/23/marxism-and-public-law-rob-hunter/. Note that some Marxist state theorists argue for conceiving of the state as a “form of the capital relation”, which itself must always be recognized “as an historical materialist and not just a logical category”: John Holloway and Sol Picciotto, “Capital, Crisis and the State”, in Simon Clark (ed), The State Debate (London: Macmillan, 1991) 109, at 122. See generally John Holloway and Sol Picciotto, State and Capital: A Marxist Debate (London: Edward Arnold, 1978).

[2] Marco Goldoni, “Introduction to the Material Constitution: Traditions and Constitutive Elements”, Legal Form, available at https://legalform.blog/2018/02/09/introduction-to-the-material-constitution-traditions-and-constitutive-elements-marco-goldoni/. See also Michael A. Wilkinson and Marco Goldoni, “The Material Constitution”, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2875774.

[3] Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge: The MIT Press, 1996), 39.

[4] Igor Shoikhedbrod, “Estranged Bedfellows: Why Pashukanis Still Charms Legal Formalists”, Legal Form, available at https://legalform.blog/2018/06/15/estranged-bedfellows-why-pashukanis-still-charms-legal-formalists-igor-shoikhedbrod/.

[5] Evgeny B. Pashukanis, Law and Marxism: A General Theory (London: Pluto Press, 1989), 139.

[6] China Miéville, Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill, 2005), 89.

[7] Marc W. Steinberg, “Marx, Formal Subsumption and the Law”, 39 (2010) Theory & Society 173.

[8] Pashukanis, Law and Marxism, 117.

[9] Nicos Poulantzas, State, Power, Socialism (London: Verso, 2014 [1978]), 186–87.

[10] William Clare Roberts, Marx’s Inferno: The Political Theory of Capital (Princeton: Princeton University Press, 2017), 218–19.

[11] “[L]aw and rights can, for example, be both constitutive of and place some modest limitations upon aspects of the extant system of social relations. … [t]he state can be relatively autonomous, and also be a committee for managing the affairs of the bourgeoisie.” Paul O’Connell, “Engels, Law, and Dialectics”, Legal Form, available at https://legalform.blog/2017/12/12/engels-law-and-dialectics-paul-oconnell/.

[12] The locus classicus is Robert W. Gordon, “Critical Legal Histories”, 36 (1984) Stanford Law Review 57–125. See also Duncan Kennedy, The Rise & Fall of Classical Legal Thought, With a New Preface by the Author, “Thirty Years Later” (Washington: Beard Books, 2006), ch. 1.

[13] Pashukanis notes that, in capitalist society, law can never be merely ideological; it is also an actual, concrete social form: “law as a form, does not exist in the heads and theories of learned jurists. It has a parallel, real history which unfolds not as a set of ideas, but as a specific set of relations which men [sic] enter into not by conscious choice, but because the relations of production compel them to do so.” Pashukanis, Law and Marxism, 68.

[14] “Form analysis is essential to give us an understanding of the limits and dynamic of class struggle under capitalism, but if we are to understand the actual development of that struggle (of which the state is but a form), this must be complemented by conceptually informed historical research.” Holloway and Picciotto, “Capital, Crisis and the State”, 122–23.

Rob Hunter holds a PhD in politics from Princeton University. He has previously written for The Guardian and Jacobin.