[This is the fifth post in a symposium on the Marxist tradition of state theory and its contemporary lineages. Authored by Nate Holdren, who has written for Legal Form on a previous occasion (see here), this post raises a host of questions relating to the need for a historically reinforced state theory, the relation between the capitalist state and the capital relation, and legal responses to climate catastrophe. For the first post in the symposium, authored by Chris O’Kane, see here. For the second, authored by Rob Hunter, see here. For the third, authored by Stephen Maher and Rafael Khachaturian, see here. For the fourth, authored by Coel Kirkby, see here and here. Please note that the present post was submitted and finalized before Kirkby’s post, and does not therefore engage with that contribution to the debate.]
I read with great interest the contributions to Legal Form’s debate on the state. I would like to contribute to the debate by beginning with a preliminary aside on method and academic discipline. The discussion thus far has proceeded in the realm of theory. I suspect that these matters might be enriched by greater attention to history. For example, in the late nineteenth and early twentieth centuries, revolutionary unions the world over had extensive in-house debates about the state and the capital relation. These debates were often operationally specific: How should our organization relate to the labour contract? Should we allow lawyers to join? Should we endorse political parties? Should we advocate voting or abstention or ignore these questions entirely? I am most familiar with the example of the Industrial Workers of the World (often misdescribed as anarchist, when many of the luminaries of the organization were Marxists and the organization quoted Marx in its preamble), and debates had by members at its first three conventions as well as in the pages of its publications. These debates often had an immediately practical life, shaping strikes and responses to government repression.
The Soviet Union attempted to gather organizations like this into the Red International of Labour Unions, often called the Profintern, in the early 1920s. That process quickly broke down, largely due to the mistakes of the Bolsheviks in my view, and many of the organizations in question were subsequently written out of the emerging canon as the Soviet Union rendered a version of Marxism its state religion. By engaging with a wide range of thinkers outside the Bolshevik and post-Bolshevik canon, Chris O’Kane’s essays on Legal Form demonstrate, among other things, how generative it is for Marxists to look beyond that canon. I suspect that looking further still, this time into the vernacular practices of large-scale radical organizations and social movements, would be similarly generative. For various reasons, above all my available time and abilities, I am not at present able to do this, but I wish to flag the point for readers. In what remains, I proceed theoretically.
To lay my cards on the table, I am personally more inclined toward the critical-theoretical perspectives articulated in the pieces by Chris O’Kane and Rob Hunter; I am not inclined toward the democratic socialist perspective articulated in the piece by Stephen Maher and Rafael Khachaturian. That said, I do not think any of this is clear-cut. If this is really a debate, I do not think any of these pieces is yet conclusive. I write this now above all in order to flesh out my own thinking as to why these pieces do not yet settle matters.
If I have read him correctly, Rob Hunter expresses pessimism about whether capitalism can solve climate change, and much of his pessimism derives from his understanding of the nature of law and the capitalist state. I am unconvinced. To be clear, I am fully convinced of what I think are Rob Hunter’s overall views (I have read his Legal Form contributions avidly and learned a great deal from them). As I understand it, Rob views law as of a piece with the capitalist social order, such that there is no real autonomy of the law from the capital relation. Law might have some real relative autonomy within the capital relation, but has no significant autonomy from the capital relation.
Permit me an extended metaphor, which also expresses some of my own views. Consider presidential elections in the United States. It is currently an open question who will win the Democratic Party’s nomination to be the presidential candidate, and it is an open question whether the Democrats or the Republicans will win the 2020 election. There is, in a sense, some real autonomy and open-endedness to the electoral process here: autonomy within the capital relation; autonomy between different particular capitalisms. The specific practices of the capitalist state, and the decisions of its actors, are underdetermined by the capitalist social totality.
And yet whatever happens, a party that is ideologically pro-capitalism will win that election. The result of that win will be a changeover in a small quantity of the personnel who staff the capitalist state in the United States, and in a small quantity of the policies of that state. There is, then, in this second sense, no real autonomy here–no autonomy from the capital relation. The capitalist state and its personnel will practice some version of capitalism.
At the pain of grammatical infelicity, let me use “capitalism” as a verb for a moment: Law capitalisms. Law “does” or enacts (and is “done” and enacted by) capitalism. Law might capitalism in a variety of ways, and those ways may be unknown or substantially contingent in their specificities, but law will continue to capitalism. I read Rob Hunter, and for that matter Chris O’Kane, as saying basically this about law. (This is also my own view, a view influenced by both of their writings.)
As mentioned above, Hunter also suggests that law will lend itself toward climate catastrophe. Law leans away from or actively impedes efforts to stop climate catastrophe. As I said, here I am less convinced. Now, if we were betting on this, I would bet as Hunter’s essay suggests: There is likely more money to be made by wagering that actually existing law and states will not alleviate climate catastrophe. But I do not think this is because of the larger theory of law that Hunter articulates. I do not think that climate catastrophe is predetermined by the “capitalism-ness” of law and the capitalist state. I think climate catastrophe, and the capitalist state’s likely inaction (or insufficient action), will result from relatively contingent processes.
This means in part that I think Hunter is using an argument about the lack of autonomy of law from the capital relation to make a claim about a lack of autonomy of law within the capital relation. To borrow from Umut Özsu, we can think structurally as well as conjuncturally. In my view, Hunter is using structural claims to make conjunctural predictions, predictions that in my view the structural claims do not support.
At the risk of putting too fine a point on it, I will add that while I am fearful and pessimistic regarding the climate catastrophe, I do not think we can rule out the possibilities of catastrophe-mitigation under capitalism. (Writing in Commune, Jasper Bernes has argued in effect that we can rule out these possibilities. I think that he is wrong, but I do recommend to readers that they give his essay a serious reading. ) I should add that by “climate catastrophe” I mean the scenarios sketched by the Intergovernmental Panel on Climate Change (IPCC) and similar bodies. In my view, capitalism might well become “green”, in the very limited sense that it could avoid the specific catastrophes that the IPCC warns about. If it does so, this will be a different catastrophe, since capitalism is, as Walter Benjamin emphasized, always a catastrophe of some kind for much of humanity. Let me put it yet another way: since capitalism is catastrophe, law has no autonomy from catastrophe; but law does have significant relative autonomy within catastrophe. Thus, analysis of the “capitalism-ness” of law cannot answer the question of which catastrophic future law will unfold out of our catastrophic present.
I feel a distressing pessimism regarding the climate catastrophe sketched by the IPCC and similar bodies. Hunter’s essay suggests that efforts to prevent that catastrophe are better served by militant extra-parliamentary movements than the kinds of activities within the state that Maher and Khachaturian recommend. I agree, but, as I noted, not for what I think is the implied reasoning in Hunter’s essay. It is not so much that the capitalist state is incapable of averting the specific catastrophic scenarios the IPCC depicts, which is what I read Hunter’s essay as saying. Rather, it is that the historical record suggests that law’s relative autonomy within the capital relation is better directed by militant social movements than by action within the state. In part, this means that a great deal of extra-parliamentary activity is in important respects not particularly different from, say, lobbying or petitioning or running for office.
That is to say, I think I agree with Hunter and O’Kane that law is autonomous within but not from the capital relation. The same goes, in my view, of social movements much of the time, though not all of the time. Often social movements, extra-parliamentary or otherwise, are autonomous within but not from capitalist social relations.
At this point, I am no longer sure where these terms are in Marx’s work, but in my own training in Marxism I learned the terms “class in itself” and “class for itself”. The former refers to social position: being exploited or an exploiter, occupying the social role of member of the working class or the capitalist class. The latter refers to collective action and consciousness. The collective action and consciousness of the capitalist class does not point beyond capitalism (at least not in any emancipatory way). Often this is also true of the collective action and consciousness of the working class; often the working class is constituted (or constitutes itself) as a kind of interest group within the capitalist system. I want to stress that this is not a matter of militancy: the working class might advocate strenuously, even violently, for a different version of capitalism. The intensity of that activity does not make the goal non-capitalist. (Nor does the fact that there can be very real stakes for working class people between different kinds of capitalism; I am keenly aware of these stakes as a result of personal and familial experience. But the fact that many people would have genuinely better lives under a kinder, gentler capitalism, does not mean that such an arrangement would be non-capitalist.) I would argue that most, perhaps all, of the shifts that have historically occurred between different versions capitalism have been at least in part the result of intense social struggle.
So, to reiterate, the working class “for itself” is often acting autonomously within the capital relation, not acting autonomously from the capital relation. That action has often been a key factor in shaping law’s relative autonomy within the capital relation; the intra-systemic struggles of the working class are often an important part of why law has gone in one direction rather than another. (Marx’s analysis of factory legislation in the first volume of Capital is salient here.) That struggle is often more successful when extra-parliamentary. Hence attempts to avert climate catastrophe will be more effective if they do not attempt the kinds of action within the terrain of the state recommended by Maher and Khachaturian. And yet that action will in all likelihood be action in service of one capitalism over another.
In important respects I think O’Kane and Hunter’s pieces, on the one hand, and Maher and Khachaturian’s piece, on the other, are not so much debating as they are staking out different emphases, positions, or degrees of abstraction that are hard to commensurate. There is a risk of talking past each other. Why should one opt for this or that position? How to square the pieces, or to at least state their disagreements in such a way that they can be debated productively? To use Özsu’s terms again, I read Maher and Khachaturian as stressing conjunctural possibilities, and I do not think these possibilities can be ruled out by structural appeals.
O’Kane writes that social democracy is “undeniably preferable to the political projects of Trump and Orbán, Macron and May”. He is, of course, correct. I want to suggest that this an example of intra-systemic interests of the kind I discussed above. A working-class mobilization against Trump and for Sanders, say, would be an example of the class “for itself”–and specifically “for itself” as an interest group under capitalism.
In my view, part of the critical force of O’Kane’s piece is in calling on our social democratic and democratic socialist comrades to admit that their projects are for a better capitalism, rather than against capitalism as such. I suspect this will not go down well. Social struggle is hard, involving real sacrifice and heartbreak, and the gains that sometimes come our way make real differences in people’s lives. It is quite hard to square that with “Ah, well, fine, another version of capitalism! Sure, a better version, but ultimately not so different from what was in place before people fought like hell.” It is hard to imagine large mobilizations around, say, One Million Strong For A Little Less Domination. That a truth is hard to swallow, however, does not make it false.
Walter Benjamin’s “Theses on the Philosophy of History” is a crucial touchstone for me regarding this critical sensibility. Under capitalism, Benjamin writes, progress is an ongoing catastrophe, a storm destroying human lives. He states: “The themes which monastic discipline assigned to friars for meditation were designed to turn them away from the world and its affairs. The thoughts which we are developing here originate from similar considerations.”  The critical posture, then, is not to emphasize what could be achieved, let alone what has been achieved, but instead to emphasize what is to be abolished. It is perhaps easier to imagine mobilizations here: One Million Strong Against Markets, say. People United In Class Hatred.
The point regarding the state is that from a critical perspective, as I understand it, the task is to emphasize what is to be destroyed, and to indicate the ongoing catastrophic character of the capitalist social totality of which both state and economy are elements. It may well be that we will need to attempt to live under that continuing catastrophe for quite some time. And as O’Kane points out, it is undeniable that some catastrophes are worse than others. That said, if we begin to forget that the state is the organization of catastrophe, then we begin to forget the critical perspective.
A second touchstone for me on this point is Max Horkheimer’s “Postscript”.  Here Horkheimer stresses that a critical perspective emphasizes the social totality. A given development may be locally positive–a Green New Deal would be. But if it remains an artefact of–or is reproductive of–the capitalist social totality (and a Green New Deal would be), then it is not a real break from what Horkheimer called the “wretchedness” of capitalist society.
As ever, I am unsure how to conclude, not least because my thoughts are inconclusive (the worse for the reader, I suppose, but part of why Legal Form’s rolling symposium on the state is generative for me). I will close by stating that I suspect that the expression of preferences between different modes of wretchedness, fighting hard to have some catastrophes rather than even worse ones, will define the political conjunctures of the present and near future. I suspect that these fights will be better served by extra-parliamentary militancy. Such militancy will, in turn, generate some defectors from the adherents of liberalism (and will generate some renewed forms of liberalism that deny their liberal character–I would put much of progressivism, social democracy, and democratic socialism under this heading). Some of them will likely work within the state, and at any moment how to best interact across the differences between those efforts and extra-parliamentary efforts will require complex real-time thought. In general, I suspect that the working class will be better served by avoiding the terrain of the state. And all of these efforts will remain largely adjacent to the project of ending the capitalist social totality and replacing it with a mode of society beyond wretchedness. Theorizing, let alone practicing, that latter project remains substantially unfinished, or even unstarted. In my view this would be a positive direction for further discussion, and might facilitate greater understanding of how the working class might begin to develop or to lay the groundwork for actual autonomy from the capital relation and its eventual dissolution. As I said in my initial preliminary aside regarding the Profintern, I suspect that this project would be enriched by further engagement with not only individual thinkers but social movements and organizations rendered non-canonical within what became “classical Marxism”.
 Jasper Bernes, “Between the Devil and the Green New Deal”, 3 (2019) Commune, available at https://communemag.com/between-the-devil-and-the-green-new-deal/.
 Walter Benjamin, “Theses on the Philosophy of History” , in Walter Benjamin, Illuminations, ed. Hannah Arendt and trans. Harry Zohn (New York: Schocken, 1968), 253, at 258.
 Max Horkheimer, “Postscript” , in Max Horkheimer, Critical Theory: Selected Essays, trans. Matthew O’Connell et al. (New York: Continuum, 1972), 244.
Nate Holdren is Assistant Professor of Law, Politics, and Society at Drake University.