Rob Hunter instructed me to write this up after a Twitter conversation. So blame Rob. Blame Christopher Tomlins too. I recently reread Tomlins’ pathbreaking book, Law, Labor, and Ideology in the Early American Republic.  If any Legal Form readers have not read it, or have not read it recently, I encourage you to do so. It is an attempt to be rigorous both theoretically and empirically when historicizing the development of core features of waged labour in the United States, paying particular attention to law’s roles in that development. While a work of Marxist legal history, the book emphatically rejects the notion that law is an instrument used by capitalists. Part of the book’s point is that what “the economy” needs, and what is required for the maintenance of class relations more generally, does not fully explain legal events.
Now, it is true (and Tomlins’ book supports this claim) that law often does meet the needs of prevailing class relations. While those relations are effects of law, effects are not causes. It is not preordained that class relations will receive what they need for their conservation and reproduction. This notion that class relations may end up having unmet needs is implied in at least some conceptions of capitalist crisis, with crisis being a kind of catastrophic breakdown of at least a portion of capitalist society.
As I reread Tomlins’ book and gave thought to these considerations, I found myself thinking something like “I find this to be a convincing account of the relationship between law and economy and between class structure and economy”. I then tripped over that formulation because of the implied distinctions–“law” versus “economy”, and “law” versus “class structure”. I am convinced that law is endowed with significant constitutive power: legal rules structure the way in which money circulates, property is conveyed, contracts are concluded, and so on; these rules play an important role in shaping the decisions that people make. Law also constructs and reconstructs the situations in which workers sell their labour-power, which is, of course, foundational to capitalism.
Law does not just set up the pieces on the chessboard. Rather, law is often the medium through which moves on the board are made. If we think expansively about law, it becomes clear that law is also a medium through which at least some such moves are conceptualized: people cannot buy an acre of land, for instance, without a (legal) definition of an acre. If all legal categories and professionals somehow ceased to exist, economic activity would quickly grind to a halt. In a sense, then, what we ordinarily term “the economy” may be said to be a mode–or a collection of modes–of legality.
At this point, I thought to myself something like “to speak in terms of the relationship between law and economy, or law and class structure, is a useful shorthand, but it leaves out this constitutive role of law”. I tripped over legal instrumentalism and legal anti-instrumentalism anew here. At first the idea that law is constitutive seemed like a sound criticism of instrumentalism: economic relations cannot explain law if they are already law in the first place. On second thought, though, I began to wonder about how to formulate anti-instrumentalism in constitutive terms: if economic relations are already law, then it does not make sense to claim that the law is not determined by these relations. What is it that is not determined by what else? One mode of legality is not determined by another mode of legality…. That is to say, if the distinction between the terms “legal” and “economic” begins to dissolve, it becomes difficult to explain their relationship, either in instrumental or non-instrumental terms. This leaves me with the question of when it makes sense to talk about commodities without also talking about legality, and what we get as a result. Marx tends to talk this way in the first volume of Capital, and it has use as a heuristic device. But are there–and have there ever been–actually existing commodities without law? This seems to me an empirical matter more than a theoretical one.
Perhaps the commodity is not legal all the way down. I am unsure. Even if this is not the case, though, I would add that capitalism is not just a few commodities sprinkled here and there. Rather, capitalism is a mode of production in which commodities play an historically specific and crucially important social role. Capitalist society is characterized by generalized commodity production and exchange, the organization of social relations around the commodity as a particular kind of social object and social practice. This condition is possible only through law. Even if the commodity is not legal all the way down, it seems to me that commodity generalization, subordination of society to the commodity form, is legality all the way down.
This leaves me with questions about how and why law has done what it has done, and how and why it continues to do what it does. Why and how did law (help) make capitalism possible? Why does law continue to help constitute capitalist social relations? I am unsure about the first question, and will not speculate. I will only say that one of these years I look forward to my kids being old enough and my job calming down enough for me to finally take the deep dive I have long wanted to take into Brennerite Marxism and other studies on the origins of capitalism. On the second question, though, I do have a little to say.
In a chapter on law and the state in his excellent introduction to Marx, Michael Heinrich argues that in capitalist society the general interest defended by law and the state is a specifically capitalist general interest.  Like Tomlins, Heinrich rejects instrumentalism. What economic relations need for their production and reproduction is not really a question of law; it is a question for these economic relations themselves. The law’s problems are its own; the problems law defines are within its purview. I want to suggest that law’s mandate is the general social order. Under certain conditions, maintaining social order calls for the containment or reining in of economic relations. However, what the preservation of social order does not mean is transgressing the subordination of social relations to capitalist economic imperatives. This means that law must continue to condition economic relations if it is to play a role in maintaining social order. To use law as a verb, humanity has in effect “lawed” its way into capitalism, but cannot “law” its way out.
What I am fumbling for in these remarks is an account of capitalism as a totality. Capitalism is self-reinforcing. Capitalist social relations reproduce themselves. When capitalism stops reproducing itself, massive social breakdown and loss of life tends to occur. This is not to say that we cannot envision a non-catastrophic exit from capitalism, but rather that there are many potentially catastrophic exits, all of which facilitates the ongoing catastrophe that is capitalism.
That capitalism is a social totality helps, I think, to explain why law constitutes capitalism rather than constituting something else. Once law facilitates the constitution of capitalist social relations, social order becomes a specifically capitalist social order. Under those conditions, the breakdown of capitalism would become the breakdown of society pure and simple. Law is a set of rules and institutions directed towards the maintenance of social order, and its fundamental aim is to prevent social breakdown. Of course, what counts as “breakdown” is, like the concept of social order itself, a political matter, and varies significantly over time and space. That is a kind of in-house debate among those concerned with law, however informed the debate may otherwise be by external social context. None of this is to say that law will in fact succeed in maintaining a given social order. My point is simply that law is undergirded by a commitment to the maintenance of social order. The costs of such maintenance are borne disproportionately by the working class, and the benefits are allocated upward. When capitalists do happen to lose a particular battle, this is generally the case because their losses also serve the interests of social order, indirectly if not directly. Of course, this is not to say that the law is always “correct” or that every legal decision is in fact in the interests of maintaining social order.
I think this may mean that I have come around to an instrumentalist account of law after all. However, one key difference between legal instrumentalism and what I have in mind here, I think, is that in the kind of account I have tried to sketch, it is not that powerful people are served by law but that legal professionals serve a specifically capitalist social order.
One final thought: As I meandered, stumbling over these thoughts, it occurred to me that there are at least two different political forms of the claim that law is constitutive. I suspect that each is related to a specific orientation toward the question of social totality.
Form One: Since “the economy” is legally constructed, it is possible for law to construct it differently. Here social totality is weightless, or at least light enough that law might shrug it off. This is awfully convenient for progressive lawyers and the people who train them, and who, to be fair, really can effect a certain degree of modest social change.
Form Two (my preference): “[C]apital comes dripping from head to foot, from every pore, with blood and dirt”, its history “written in the annals of mankind in letters of blood and fire”, and we place the blame squarely on law.  This form in effect stresses law’s crimes. The hope is that the history of blood, dirt, and fire might end–“so why don’t we start making a history worth being proud of and start fighting the real fucking enemy?”–but that end will not come through law any more than it will come through corporate social responsibility and small business loans, because the weight of social totality, of social centripetal force, bears down. As Walter Benjamin once wrote, “Marx says that revolutions are the locomotive of history. But perhaps it is quite otherwise, perhaps revolutions are an attempt by passengers on this train–namely, the human race–to activate the emergency brake.”  In this sense, law is not so much the brake as it is part of the track or the engine that is hurtling us toward a cliff.
 See Christopher L. Tomlins, Law, Labor, and Ideology in the Early American Republic (Cambridge: Cambridge University Press, 1993).
 Michael Heinrich, An Introduction to the Three Volumes of Karl Marx’s Capital, trans. Alexander Locascio (New York: Monthly Review Press, 2012 ), ch. 11. This chapter is also available at http://recomposition.info/state-and-capital/.
 Karl Marx, Capital: A Critique of Political Economy, vol. 1, trans. Ben Fowkes (London: Penguin, 1990 ), 875, 926; also available (in different translation) at https://www.marxists.org/archive/marx/works/1867-c1/ch26.htm and https://www.marxists.org/archive/marx/works/1867-c1/ch31.htm.
 Walter Benjamin, “Paralipomena to ‘On the Concept of History'” , in Selected Writings, ed. Howard Eiland and Michael W. Jennings, trans. Edmund Jephcott et al., vol. 4 (Cambridge, MA: Harvard University Press, 2003) 401, at 402.
Nate Holdren is Assistant Professor of Law, Politics, and Society at Drake University.