[This is the second in a series of posts comprising a symposium on the Marxist tradition of state theory and its contemporary lineages. Authored by Rob Hunter, who has written on public law and constitutional theory for Legal Form on previous occasions (see here, here, here, here, and here), this second post extends the debate about neo-Marxist state theory and its implications for the current conjuncture to climate change. For the first post in the symposium, authored by Chris O’Kane, see here.]
I endorse Chris O’Kane’s call for a renewed state debate.  The stakes of such a debate are high. Ongoing, overlapping, and worsening climate crises do not just threaten the possibility of a transition from capitalism to transformed social relations in which full human freedom would be possible. They also threaten the bare possibility of continued social reproduction in its present form. Writing in substantial agreement with O’Kane regarding the distinctiveness of the Marxian critique of political economy, I offer here some meditations on the challenge that climate change poses for state theory. Any debate about the critique of the capitalist state must acknowledge the centrality of the question of catastrophic climate change and global warming.  Foregrounding this question also highlights the inadequacy of strategies for mass organization and mobilization that do not challenge capital’s constitution through law.
The strain that ecological collapse will pose on any actually existing state will vastly surpass any of the crises faced by polities in the developed core in recent memory. Meanwhile, the unevenness of environmental injustice is such that Bangladesh, Mozambique, and other countries outside the capitalist core are already experiencing the consequences of catastrophic climate change. And everywhere the geographies of pollution and environmental degradation are charted through the violent enforcement of hierarchies of race, marginalization, and exclusion.
Ecological collapse will not only be manifested in intra-state legal and political crises. As O’Kane reminds us, states are embedded in the world market. As such, the social consequences of climate change will also be visible in struggles in and over international law, as well as shifts and discontinuities in the transnational movement of capital. Climate collapse will be uneven in geographic depth but combined in global scope, as will the retrenchment of the capitalist state in the face of such challenges. In some instances, state personnel will assume a redoubled commitment to climate denialism or even climate nihilism. In other instances, reform proposals, most of which will be wholly inadequate to their tasks, will face concerted and intense opposition from alliances of the capitals, parties, and other social formations threatened by them.
Considering the question of climate change exposes gaps and contradictions in our thinking about law and state. These theoretical challenges cannot be avoided, just as strategies for environmental justice and ecological maintenance must be parts of emancipatory political struggle. A new state debate must also be a debate about how to overcome capitalism’s devastation of the planet.
The Mutual Constitution of State and Capital
Capitalist social relations form a complex and contradictory totality. This totality is constantly subject to contingency and contestation. Its reproduction is mediated by struggle: class antagonism is socially constitutive of capital, not an aberration in a faulty system. But even though the reproduction of the capitalist political economy is subject to struggle, the dominant tendency is for our social world to be constituted through and for the valourization of capital. And capital, as an historically specific social form, must accumulate. Capitalism expands, or it collapses. Absent a profound and thoroughgoing transformation of social relations, such a collapse will bring us all down with it. Capital’s conquest of the planet threatens the globe, in geosocial as well as biospherical terms. Unending accumulation comes at the cost of planetary destruction. Any attempts at environmental justice or ecological remediation must seek to overcome the ecocidal desiderata of capitalist production, or else they will fail.
The Marxian insight that state and capital presuppose and constitute each other is often obscured in contemporary discussions about capitalism and the democratic state. One can detect a reinvigorated enthusiasm for state intervention into the capitalist economy in such conversations. Indeed, it has become something of a commonplace to declare that “capitalism” is no longer an unspeakable word. The liberal triumphalism that predominated from 1991 to 2008 was notable for its naturalizing discourses with respect to commodity markets, financialization, and the institutionalization of neoliberal rationality. Depoliticization was the order of the day. Capitalist rationality was hailed as the ideal or even natural form of society. The assumptions and premises of marginalist economics were lauded as scientific discoveries; the origins of that intellectual project in disputes originating in the nineteenth-century imperial core were forgotten and ignored.  The turmoil of 2007–8 has been credited with providing a discursive opening for the re-emergence of critiques of capital. But even now, for many, the term “capitalism” denotes an economy, not an historically specific social form.
On this view, capitalism is a bundle of production techniques, regimes of labour discipline, and the imposition of market relationality upon various social domains. Such a view conceives capital not as a social form with specific histories, but as a mere economic system. Such criticisms of mere capitalism, as it were, too often treat the state as an autonomous or neutral entity. They often recapitulate uncritical conceptions of the state, according to which it is simply the neutral guarantor of social order.  They are premised on two faulty assumptions: first, that the state is an autonomous instrument of social coordination; and second, that capitalist production is an economic engine installed in our society, one that may be removed and replaced—with a greener, hybrid model, of course.
State and economy are not so easily dissociated. The state ensures the continuity of the reproduction of the capital-labour relation through which our class-riven society is constituted. As the Marxian critique makes plain, the state can only abandon the project of guaranteeing the reproduction of the capital-labour relation at the risk of dissolving itself.  To be clear: far from never being taken on, such risk—”the common ruin of the contending classes” —is frequently assumed in the course of struggles over the reproduction of capital as a social form. It is the risk we all run in the face of the incipient breakdown of the reproduction of the biosphere itself. The state’s contradictory dynamics and tendencies are such that rupture, breakdown, or garden-variety dysfunction are ever-present possibilities, even necessities, in maintaining the continuity and cohesion of capitalism.
The relation between state and capital should not be seen in terms of a parasitic growth battened upon a productive host; it is instead a co-productive relation. The state’s own persistence may depend upon revenues originating in the expropriation of surplus value, but the state and capitalist production did not emerge independent of one another. Indeed, the latter’s emergence was predicated on legislation, judicial decision-making, and the production of bourgeois subjectivities, such that the conditions for surplus value extraction and capital accumulation could be stabilized and generalized. Law, legislation, and legal rationality are not just residues of such processes; they continue to shape and be shaped by the accumulation of capital.
Constitutionality is one of the most important aspects of this shaping. It forms a membrane of mediation and interpenetration between juridical relations and social struggle. It is not exhausted by the formal content of law, but it does play an important role in distinguishing formal (hence permissible) political antagonism, on the one hand, from struggles over the reproduction of capital (deemed impermissible, “violent”, and not really “political”), on the other hand. Constitutional orders are not descriptively exhausted by the text of constitutional provisions, cases, or other juristic materials. They encompass institutions, norms, particular kinds of social relations, and specific subjectivities. The maintenance of the continuity of constitutional order, as encountered in major capitalist states, is an astoundingly successful project of guaranteeing the reproduction of capitalist social relations. Its achievement is to disperse democratic pressures from below and conserve the richly textured institutional terrain in which relations of domination and hierarchy may be cultivated and maintained. As such, the constitutional structure of the liberal-democratic state is wholly inadequate to the task of mitigating the effects of climate change and securing the reproduction of minimally humane social relations, to say nothing of enabling or permitting emancipatory projects.
The Contradictions of State and Climate
The Marxian critique of political economy illuminates the mutual imbrication of the state and capital. It illustrates the seemingly insuperable contradictions of pursuing environmental protection and remediation from within the capitalist state (regardless of the degree to which it might be considered democratic). It may seem as though the state is the only adequate means of achieving the level of social coordination necessary to respond to rising sea levels, to crop failures caused by drought, soil exhaustion, and the increased vulnerability of monocultures, and to the baleful consequences of an accelerating rise in atmospheric carbon dioxide. But those same state capacities nevertheless presuppose specific regimes of accumulation. Capitalist states’ sensitivities to climate change are, simply as a matter of their form-determination, quite weak. Ecological crises have the habit of disrespecting national boundaries and their costs are not easily expressible in terms of surplus value. They will primarily be legible as “political”, as worthy of state attention, to the extent that they precipitate the disruption of accumulation or capital flows, rather than to the extent that they amplify the ongoing and continual violence that capitalist social relations unleash upon marginalized and excluded surplus populations. And yet it is also the case that climate crises will undoubtedly severely constrain state action, in much the same way that state action is hindered by crises of capitalism.
If state and capital are conjoined in this deadly dialectic, is collective eco-emancipatory struggle simply not a possibility? If the daily continuity of our social world is bound up in the reproduction of capitalist social relations, does the Marxian critique counsel despair rather than concerted action?
The parameters and stakes of this dilemma have been illustrated vividly in two recent essays by Jasper Bernes and Thea Riofrancos on the prospects for and potentials of a Green New Deal (GND) in the United States.  Is the GND, as Bernes contends, not only a damp squib (in that it is a policy proposal without a mass movement, untethered to a social base) but an environmental threat in and of itself, since it is predicated not on the reduction but the intensification of capitalist production and extraction? Or is it the case that, as Riofrancos counters, the work—discursive, technical, and political—of advocacy for the GND is an insufficient but nonetheless necessary first step in the articulation of the very mass movement that Bernes identifies as necessary? How can we transform the capitalist democratic state? Not simply seize it, but challenge it, contest it, make demands of it such that, by winning victories, we can discern new political horizons and build new collective capacities? Can we do that quickly enough that those who come after us may have a chance at living decently on a devastated planet? Or is anything short of the sublation of capitalist sociality—state and economy, the law of value, and the logics of extraction, accumulation, and domination—grossly insufficient?
I do not know how to resolve this dilemma. But dilemma it is, and not simply a riddle with an unlooked-for solution to be cleverly discerned. A mass movement cannot be conjured outside of the totality of capitalist social relations, but those same relations currently constitute massive barriers to collective ecological struggle. And although the state form at present is itself a dire environmental threat, we cannot hope to see meaningful collective environmental stewardship without the types of coordination, regulation, and administration that have until now appeared only in capitalist states. This is not to say that ongoing environmental organising, resistance, education, and research are fruitless because they obtain within social relations as we currently know them; nor is it to say that we must resign ourselves to working within or through state institutions as we currently know them. We can only face, rather than ignore, the contradictions that attend the struggle to secure an adequate (descriptions like “just” or “flourishing” feel too far out of reach at the moment) pattern of ecosocial reproduction.
Unfortunately, the specificity of law in capitalist democratic states is poor soil in which to sow the seeds of ecosocial transformation. Absent concerted and sustained struggle, the state tends to be a cultivator, not of the legal transformation of society but of the legal constitution of capital. Law is likely to continually divert, absorb, or constrain mass struggles around environmental degradation and climatic disarray. Law shapes us as juridical individuals, plays a crucial role in the articulation of collective subjects, and, to a considerable extent, determines the scope of choices available to us. Of course, law is neither uniquely nor completely socially constitutive. It is not a mirror of social ontology. To speak, then, of law’s constitutive role is simply to acknowledge the specificity of our own social relations.  We are embedded in particular contexts not of our own making, contexts that are substantially articulated through legal relations (property rights, commodity exchange, etc.) as well as juridical discourses. As such, law, as it is currently constituted, must be a site of struggle not just for emancipatory social transformation but indeed for the bare minimum of social transformation necessary to navigate environmental collapse.
It is true that legislation can be enacted to protect endangered species, require environmental impact assessments, or curb pollution, just as it can be enacted to protect private property. But the relation between legality and property—between bourgeois right and bourgeois domination, if one prefers—has been articulated through centuries of conflict and struggle, so that it is integral to the reproduction of capitalist social relations. The relation between legality and ecology is as yet far more fragile and tenuous, and dependent upon sustained struggle for any deeper and more durable articulation. Successful legal struggles against oppression and domination have almost always been predicated on mass political activity. Environmental struggle can hardly be different in this regard. The use of law as a means for combating and mitigating the effects of climate change must be part of a much wider array of strategies. Courts thrive on procedural formality; they recognize the standing and interests of juridical persons–owners and personifications of capital above all–rather than the conditions for the reproduction of life as such. Law recognizes and values certain forms of knowledge, values, and interests more easily than it does others. Until recently, for example, it has tended not to recognize or value specific crop cultivators, or the local traditions of knowledge that accompany them; the tendency of the international regime of intellectual property law has been to further their destruction in favour of crop monocultures and extractivist profit-making. 
Ultimately, no matter the shape taken by legal (or legislative) attempts to mitigate, triage, or resist the effects of climate crises, long-term struggles for a minimally desirable society amid environmental decay will reveal the capitalist state’s deficiencies for completing the “complex, historic, world-making tasks”  of coping with and responding to environmental disaster. But we cannot escape history. The nightmare that weighs on the brains of the living  is not one from which we can wake up. Our subjectivities and desires have not been moulded outside of capitalism, and our relations with one another are unavoidably mediated by state and law. Ecosocial struggles to survive catastrophic climate change must occur in tandem with political struggles to contest the power and overcome the form of the state.
The constitutional obduracy of capitalist states renders them inappropriate vehicles, at best, for ecosocial transformation. Moreover, the mutual presupposition of the capitalist state and the capitalist economy (so that it is inappropriate to speak of the one and not the other) means that new forms of resource management, labour relations, and production coordination cannot simply be legislated into existence. The role of law in the constitution of capitalist society cannot be ignored in collective struggle for the transformation of social relations. This holds true for all anti-capitalist struggles, including those aimed at ensuring minimally decent lives for human beings inhabiting an overheated and biodiversity-depleted planet. It may seem as though we can neither escape the legal dimensions of capitalism nor transform them while engaging and contesting them. But struggles to do both will necessarily feature in the coming collective responses to catastrophic climate change. Critical theorists of law and the state cannot predict the shape or course of those struggles, but they should expect to see them and be prepared to understand them.
 Chris O’Kane, “Towards a New State Theory Debate”, Legal Form, 24 May 2019; available at https://legalform.blog/2019/05/24/towards-a-new-state-theory-debate-chris-okane/.
 I cannot hope to offer, within the confines of this post, a full summary of the burgeoning literature on the intersection of ecology and the critique of political economy. For an excellent introduction to contemporary attempts to produce critical political theories of climate change, see Alyssa Battistoni, “States of Emergency”, The Nation, 16–23 June 2018, available at https://www.thenation.com/article/political-theory-for-an-age-of-climate-change/ (reviewing Geoff Mann and Joel Wainwright, Climate Leviathan: A Political Theory of Our Planetary Future [London: Verso, 2018]). For theoretical background on ecology and the critique of political economy, see Kohei Saito, Karl Marx’s Ecosocialism: Capital, Nature, and the Unfinished Critique of Political Economy (New York: Monthly Review Press, 2017); Jason W. Moore, Capitalism in the Web of Life: Ecology and the Accumulation of Capital (London: Verso, 2015); and Michelle Yates, “Environmentalism and the Domination of Nature”, in Beverly Best, Werner Bonefeld, and Chris O’Kane (eds.), The SAGE Handbook of Frankfurt School Critical Theory (Los Angeles: SAGE, 2018), 1629. There is now a profusion of radical writing, from a variety of perspectives and tendencies, on global warming, climate crises, and human ecology. See, e.g., Andreas Malm, Fossil Capital: The Rise of Steam Power and the Roots of Global Warming (London: Verso, 2016); John Bellamy Foster, Marx’s Ecology: Materialism and Nature (Monthly Review Press, 2000); Mike Davis, Late Victorian Holocausts: El Niño Famines and the Making of the Third World (London: Verso, 2002); Paul Burkett, Marx and Nature: A Red and Green Perspective (New York: St. Martin’s, 1999); Michael Löwy, Ecosocialism: A Radical Alternative to Capitalist Catastrophe (Chicago: Haymarket, 2015); and Daniel Tanuro, Green Capitalism: Why It Can’t Work (London: Merlin, 2013). On debates regarding the Green New Deal in the United States (discussed later in this post), see Robert Pollin, “De-Growth vs. a Green New Deal”, 112 (2018) New Left Review 5, available at https://newleftreview.org/issues/II112/articles/robert-pollin-de-growth-vs-a-green-new-deal; Max Ajl, “Beyond the Green New Deal,” Brooklyn Rail, 1 November 2018, available at https://brooklynrail.org/2018/11/field-notes/Beyond-the-Green-New-Deal; Jasper Bernes, “Between the Devil and the Green New Deal,” 2 (2019) Commune, available at https://communemag.com/between-the-devil-and-the-green-new-deal/; and Thea Riofrancos, “Plan, Mood, Battlefield—Reflections on the Green New Deal”, Viewpoint, 16 May 2019, available at https://www.viewpointmag.com/2019/05/16/plan-mood-battlefield-reflections-on-the-green-new-deal/.
 Simon Clarke, Marx, Marginalism, and Modern Sociology: From Adam Smith to Max Weber, 2nd ed. (Houndmills: Macmillan, 1991); available at https://libcom.org/library/marx-marginalism-modern-sociology-simon-clarke.
 O’Kane ably articulates this point. As Stuart Hall put it, we must not adhere to a “neutral and benevolent interpretation of the role of the state as incarnator of the national interest above the class struggle”. Stuart Hall, “The Great Moving Right Show”, (January 1979) Marxism Today 14, at 18; available at http://banmarchive.org.uk/collections/mt/pdf/79_01_hall.pdf.
 Tony Smith, Beyond Liberal Egalitarianism: Marx and Normative Social Theory in the Twenty-First Century (Leiden: Brill, 2017), 190.
 Karl Marx and Friedrich Engels, “Manifesto of the Communist Party” , in Marx & Engels Selected Works, vol. 1 (Moscow: Progress Publishers, 1969), 98; available at https://www.marxists.org/archive/marx/works/1848/communist-manifesto/ch01.htm.
 Bernes, “Between the Devil and the Green New Deal”; Riofrancos, “Plan, Mood, Battlefield”.
 Liam McHugh-Russell, “Getting the Constitutive Power of Law Wrong”, Legal Form, 31 March 2018; available at https://legalform.blog/2018/03/31/getting-the-constitutive-power-of-law-wrong-liam-mchugh-russell/.
 For an introduction to the legal dimensions of struggle over intellectual property in biodiversity and agricultural knowledge and practices, see Peter Drahos, Intellectual Property, Indigenous People and their Knowledge (Cambridge: Cambridge University Press, 2014).
 Riofrancos, “Plan, Mood, Battlefield”.
 Karl Marx, “The Eighteenth Brumaire of Louis Bonaparte” , in Karl Marx, Later Political Writings, ed. Terrell Carver (Cambridge: Cambridge University Press, 1996) 31, at 31–40; available at https://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch01.htm.
Rob Hunter holds a PhD in politics from Princeton University. He has previously written for The Guardian and Jacobin.