[Several recent posts on Legal Form have tackled the “base/superstructure” model sketched in Marx’s A Contribution to the Critique of Political Economy, posing questions about its analytical usefulness, correct interpretation, and ongoing relevance. For these earlier posts, authored by Anandha Krishna Raj, Nate Holdren, Matthew Dimick, and Nate Holdren and Rob Hunter, see here, here, here, and here. The present post responds to and builds upon these earlier posts.]
In their recent Legal Form piece, “No Bases, No Superstructures”, Nate Holdren and Rob Hunter argue for the rejection of the base-superstructure metaphor, saying that it “can only be retained by either effacing its distinctive premise or by biting down on the bullet of economism”.  In its place, they propose a model that corrects the exaggerated separation of the base from the superstructure by affirming the strong interrelatedness of the “reproduction of capitalist production” and the “reproduction of the totality of social relations”.  On this view, affirming a distinction between base and superstructure is a mug’s game since “[t]here is no economy per se that is distinct from society”.  Holdren and Hunter thus discard the base-superstructure metaphor—including versions presented by Anandha Krishna Raj  and Matthew Dimick  in previous Legal Form posts—on the grounds that, despite acknowledged textual warrants, it is doubly inaccurate in that it posits the economy as somehow primary over, if not somehow more real than, “social relations”.  This parallels the common–and, in our view, legitimate–critique of economism as an approach that reduces superstructural phenomena to mere epiphenomenal reflections of the base, an approach that, according to our ontological reading described below, prioritizes an anemic concept of existence as static appearance over that of a dynamic possibility.  Furthermore, these inaccuracies are seen by Holdren and Hunter to reduce the analytical and strategic value of the base-superstructure metaphor to the point that alternatives, such as the one they propose, have a de facto advantage.
In this response, we disagree with Holdren and Hunter’s interpretation of Dimick’s ontological reading of Marx’s base-superstructure metaphor. In the end, we doubt that there is much substantive disagreement between us. The only real problem is the host of assumptions that Holdren and Hunter read into Dimick’s ontological interpretation of Marx’s “Preface” to the Contribution. One can hardly blame them for this, in light of the long history of systematic misreadings of the “Preface” from various versions of Marxism, be they Second Internationalist, Stalinist, Althusserian, or others. We recognize that we are demanding a lot from our readers. But we beg the reader’s open-mindedness: we do not seek to rescue, revive, or rehabilitate some pre-existing reading of the base-superstructure metaphor against its current or long-standing critics. Rather, we want to look at this passage in the “Preface” completely anew, to reinterpret it in an entirely new way, precisely from the perspective of those critical to the reigning interpretations of it. Doing so will have its rewards, even for Holdren and Hunter.
Holdren and Hunter present “three broad approaches to thinking critically about law and the state”. The first is the traditional interpretation, where the superstructure is nothing more than the epiphenomenal “reflect[ion]” of the base. The second is the structural, Althusserian “relative autonomy” version. We can find no semblance of the ontological reading in these first two versions. The ontological reading instead fits comfortably with Holdren and Hunter’s preferred, third version. This “third approach apprehends law and state as moments in the totality of capitalist social relations. That is, law and state are, to borrow a phrase from Marx, ‘distinctions within a unity'”. However, a bare version of this third approach is vulnerable to two alternative, but equally fatal, problems: triviality or incoherence. Holdren and Hunter impugn any talk of “privileging” or “priority”, assuming this necessarily leads to a host of well-known historical-materialist bogeymen: reductionism, economism, determinism, teleology, positivism, evolutionism, et cetera. We will demonstrate in what follows that the ontological reading is immune to these objections. But if all we are given is “totality” and “distinctions within a unity”, then all we have is a view of society that, in Adorno’s words, does not go beyond “the trivial idea that everything is interrelated” , or what E. P. Thompson called the “‘barren oscillation’ between determinants in a process of ‘mutual determination'”.  Peppering this language with terms like “complexity” and “contradiction” only masks this triviality, unless one admits some sort of priority.
And yet, despite their explicit statements, Holdren and Hunter implicitly move well beyond the idea of a trivial totality. Against their announced view, their language is redolent with the “privileging” and “priority” of capitalism as a mode of production. Holdren and Hunter tell us that it is “[c]apitalist society”–not bureaucratic society or liberal democratic society or postmodern society or technological society (the list could go on)–that “subordinates human flourishing and freedom to the accumulation of value”. This “contradictory and incomplete unity” is “inverted” because social relations are subordinated to the law of capitalist accumulation, a system of production in which means become ends. What does “the separation of civil society from the state”, “a self-contradictory precept of liberal thought”, “depoliticize” and “naturalize”? Historically specific capitalist relations of production. The “capitalist” modifier is used more than two dozen times; this would be unwarranted unless the economic moment had some privileged place within this complex, contradictory totality. The second problem should by now be evident: this is incoherent. This is a version of totality that vocally disclaims “privileging” its economic moment, but in description and analytical practice does precisely that.
The ontological reading of the base-superstructure metaphor seeks to solve this dilemma between triviality and incoherence while avoiding the sins of determinism, teleology, economism, and so forth. In what follows, we first restate the ontological reading in somewhat more detail, and provide examples of its advantages, including one that illustrates the key political implication of the ontological reading: it avoids what we call naive social constructionism. We then show why Holdren and Hunter’s critique of it fails, mainly because they read into the ontological interpretation the classic foibles of other interpretations of Marx’s base-superstructure metaphor. To this end, we show how the ontological reading fits comfortably with Holdren and Hunter’s preferred New Marx Reading of capitalist social totality. The ontological reading is a “negative” ontology that, along with Adorno, rejects both the invariant ontology of transcendent being and the nominalist’s denial of the existence of abstract objects.
Before detailing our argument, it is important to clarify our use of the term “economy”. When we use the given term, we are using it as a shorthand for the dynamic interaction between the forces and social relations of production, as well as the historically conditioned interests and needs informing such relations. By making our usage of this term explicit, we hope to stem objections that we are idealistically imposing an ahistorical category on all modes of production. This is not to downplay the specificity of the capitalist mode of production, but rather to emphasize that there is a minimal continuity between modes of production in terms of the presence—not the specifics of content— of forces and relations of production. As we discuss below, this general and minimal continuity was recognized by Marx and, more relevant to our argument, is essential in terms of distinguishing capitalism as a specific social form and/or mode of production from all others.
2. Restating the Ontological Model
We restate the ontological model, in more detail than in Dimick’s previous Legal Form post. This will serve two purposes. First, this discussion should make clearer the difference between two ontological categories: dependence and ground.  Second, this distinction, and a more lengthy restatement, will make it more apparent, we hope, that the ontological reading does not trade in the typical vices of previous interpretations of the base-superstructure metaphor, such as reductionism, determinism, or teleology.
2.1 Ontological Dependence
The first observation is that the base is ontologically dependent on the superstructure, just as the superstructure is ontologically dependent on the base. Because the base is dependent on the superstructure, one cannot reply that the ontological interpretation makes the superstructure “secondary”, less real, or otherwise unimportant. The only priority we give to the base is ontological, which, as we will argue, assumes neither too much (determinism, teleology, reduction) nor too little (“the trivial idea that everything is interrelated”).
First, superstructures depend for their existence on bases. A judge, cop, politician, lawyer, Roman vilicus, or feudal bailiff does not spring forth supernaturally out of the minds of human beings. They, like every other person, must eat, cloth, sleep, have shelter, and otherwise reproduce themselves. In order for socially regulative practices to exist and persist, economic practices must be productive enough to allow for them. This is how we interpret Marx and Engels when they write in The German Ideology:
“[W]e must begin by stating the first premise of all human existence and, therefore, of all history, the premise, namely, that men must be in a position to live in order to be able to ‘make history’. But life involves before everything else eating and drinking, a habitation, clothing and many other things. The first historical act is thus the production of the means to satisfy these needs, the production of material life itself. And indeed this is an historical act, a fundamental condition of all history, which today, as thousands of years ago, must daily and hourly be fulfilled merely in order to sustain human life.” 
However, bases also depend ontologically on superstructures. We can think about this in two ways. First, capitalism depends for its existence on the superstructure, the legal superstructure in particular. Capitalism, as a system of production, could not reproduce itself without the norms, rules, and expectations that the law creates and enforces. Surely the law is not the exclusive source of norms, rules, and expectations, although it is both tempting—and dangerous—to assume otherwise. Second, capitalism depends on the superstructure for what it essentially is, as a historically specific social form of production. By “essentially” we are referring to essence–but essence in an immanent, negative sense rather than a transcendental, positive sense. In her analysis of Hegel’s understanding of the relation between essence and appearance, Karen Ng provides an apt description and approximation of our view:
“[O]n the one hand, essence must appear, essence must manifest itself in appearances; on the other hand, appearances themselves are nothing but the manifestations of essence. In determining this essential relation between the inner and the outer in terms of manifestation, Hegel begins to move away from the dualistic framework presumed in the very distinction between essence and appearance.” 
Therefore, essence is within appearances, not beyond them, and is understood in terms of difference and non-identity, rather than identity. To be very brief, capitalism is generalized commodity production, and the production and exchange of commodities is intrinsically legal. Legal relations are not just necessary for the continued existence of capitalism as a mode of production; they are necessary for what it essentially is as a mode of production. Specifically, capitalism could neither exist nor be conceivable without a large set of legal relations, including but not limited to formal political equality and property law. Consider Marx’s language:
“In order that these objects may enter into relations with each other as commodities, their guardians must place themselves in relation to one another as persons whose will resides in those objects, and must behave in such a way that each does not appropriate the commodity of the other, and alienate his own, except through an act to which both parties consent. The guardians must therefore recognize each other as owners of private property.” 
The point is that capitalism comes to define itself against other modes of production as the generalization of exchange relations–the exchange of commodities between owners of private property. This is at least one way of interpreting what we mean when we say that the law, in part, constitutes capitalism. We mean something more than an existential, and especially a functional, relation between the law and a mode of production. We mean that the law, in part, differentiates capitalism, gives it its form, essence, and nature, as a distinct kind of social relations of production. 
This statement may strike the reader as too idealist. We mean only this: capitalism’s specificity cannot be grasped in terms of its technical methods of producing use values. It is an historically specific social form of production, and we cannot conceive of a sociality without its normative-legal dimension. In their concrete totality, the material and the normative-legal co-constitute capitalist forms of production. But what differentiates capitalism from other forms of production is its social moment, which is inherently normative-legal. We pose this in such strong form to show how incompatible the ontological reading is with any sort of reductionism or economism or any pretense that it “separates” the law from the economy. We next show why, even if this is the case, production has ontological priority over the law.
Understanding these mutual relations of ontological dependence is important. We cannot stress this point enough. When one says that capitalism is constitutively legal, one cannot possibly think that economy and law occupy “separate” social worlds, or that the superstructure is somehow merely derivative, unimportant, or less real, causally or normatively. Despite that, it is still possible to say that the economic structure is in some sense prior to the legal and political superstructure. The argument is that although ontological dependence runs in both directions, the base grounds the superstructure. The key idea, as Dimick mentions in his previous post, is an asymmetry in these ontological relations of dependence.
This asymmetry is based on the notion that the economic structure constrains the range of possible superstructures, but not vice versa. It should be clarified that constraining by the base does not imply determination, a stricter relation in which x fixes y in a specific manner (e.g., atmospheric pressure and temperature determine whether H2O is a solid, gas, or liquid). Therefore, as a constraint, the base is the condition that restricts the range of possibilities available for enactment within the superstructure. With this in mind, the argument goes something like this: for any given state of forces of production, historically conditioned interests and needs, and social relations of productive practices, not every conceivable system of regulating norms, rules, laws, or political forms is possible. The law constitutes the base existentially or essentially, but it can do so only for a mode of production that is also able to reproduce itself economically. But the converse is not true: the superstructure does not constrain the range of possible bases. Why? Because the only non-economic constraints that superstructures force upon us are ultimately conceptual. And the bounds of our conceptual possibilities, including their logical limits, far exceed the limits that nature, our needs, and productive relations exact.
To state this slightly differently, economic relations and practices are never non-conceptual or non-subjective; they always involve forms of consciousness and normativity. Or, to use an overused phrase, economic relations and practices are “always already” subjective and conceptual. The economy thus never stands “outside” our consciousness practices, our social relations. The point, however, is that not every form of subjectivity can be realized–made objective–in legal and economic practice. This is the claim of the asymmetric priority of the economic over the legal. To be sure, the law is not just conceptual; it requires institutions and actors–courts, prisons, lawyers, officials, and so forth. But this is only to admit that superstructures ontologically depend on a productive basis, that the direct producers must be able to reproduce themselves, along with these material requirements of legal institutions, in order for the social totality to reproduce itself. In legal practice, anything non-conceptual would have to refer to some material, somatic, or productive–in short, economic–element.
To be sure, a society may fail to reproduce itself because the necessary subjective moment is never comprehended or realized. For instance, the attempt to establish capitalism in some developing country may fail because it lacks an adequate system of law and legal enforcement (let alone for reasons of colonialism, imperialism, the rules of global trade, etc.). But this is a failure of capitalism to actualize itself rather than the law placing some objective constraint of possibility on what can be actualized. It is all too evident that adequate institutions have been found elsewhere for capitalism, even if those institutions are scarcely able to solve its crises and contradictions. This is another way of stating the asymmetry between base and superstructure. Therefore, in terms of either existential or essential possibility–not actuality–the range of possible superstructures cannot constrain the range of possible bases. Also, by speaking in terms of “possibility”, we signal that the ontological reading subsumes both determinism and contingency within it. This is an open, not a closed, ontology.
2.3 Some Examples
In his previous post, Dimick gave some examples of this asymmetry. A simple one is a tax-and-transfer policy, undertaken within a capitalist society with private ownership of the means of production and liberal-democratic political institutions. This policy proposes taxation of all income, whether from capital or labour, at 100%, and the redistribution of proceeds to every citizen (however defined) in equal, lump-sum transfers. Such a policy is extraordinarily straightforward and its practical administration dramatically simpler than current tax policy in the United States, for example. It is nothing more than a weightless reshuffling of rights in the Hohfeldian matrix. But it would not survive for any appreciable amount of time in a capitalist economy. When all income from profits is taxed away, the fires of accumulation are extinguished and all capital investment ceases. The policy would have to be abolished and pre-existing capitalist relations resumed, or something beyond capitalism would have to be established. The debacle of this policy has nothing to do with a failure of imagination or the ineptitude of policy execution. We are not interested in the “cause” of this policy, who might propose it, or the conditions under which it could arise. This is instead a question of ontological possibility: such a policy is impossible within the framework of capitalist accumulation.
For further examples we can turn to the recent work of Tony Smith, whom Holdren and Hunter cite approvingly. In his Beyond Liberal Egalitarianism, Smith says that “[s]tate polities are radically indeterminate”.  But this is not an “unrestricted indeterminateness. The indeterminateness of content is conjoined with a determinateness of form, imposing a restriction on the form-determined content.”  As Smith goes on to argue, liberal egalitarian proposals can never successfully resolve a series of capitalist contradictions–coercion and domination in the capital/wage labour relationship, overaccumulation crises, financial crises, environmental crises, or uneven and unequal global economic development–because doing so would require overcoming the inherently political nature of capitalism. Politics is bifurcated under capitalism. On the one hand, the inherently political relations of class domination within the economy are depoliticized. On the other, the exclusion of inherently political matters impoverishes the realm of official politics. Thus, “the capitalist state cannot introduce reforms that overcome the bifurcation of the political without dismantling itself“.  For Smith, these are political constraints that limit policy choices under capitalism. We would describe this as a causal account that establishes the limits of the capitalist state’s capacity to overcome capitalism’s crisis, an updated answer–completely adequate in our view–to the age-old question of how the ruling class actually rules. However, there is more because it would also be possible to say–on an ontological level, but with the same reasons and same results–that policies intended to resolve capitalism’s crises, within the framework of capitalist relations of production, are simply incompatible–impossible–under capitalism. There is more than simple causality or ontological dependence at work here; there are also a set of constraints, an ontological priority, radically open and yet at the same time asymmetric.
We offer one final example, which also serves to illustrate the political advantages of the ontological interpretation. What makes this interpretation so essential is that it avoids what we call “naïve” social constructionism. We call this social constructionism “naïve” because historical materialism is still a deep and thoroughgoing social constructionism, just one grounded in its conditions of possibility, which are economic. When one jettisons the notion that the economy constraints the superstructure, all that remains is the “barren oscillation” of “mutual determinism” (Thompson) and “the trivial idea that everything is interrelated” (Adorno). It is quite easy to move from such a view to the one that society just is superstructure. Society becomes nothing but language, ideology, discourse; society may be whatever we “think” (or “imagine”) it to be.
This sort of naïve social constructionism leads straightaway to liberal politics, dressed up in the pseudo-radicalism of post-modernism or post-structuralism. Consider Duncan Kennedy’s critique of Marxism, which follows quite naturally from his social constructionism: he interprets Hohfeld as demonstrating that property is nothing but a bundle of rights “with no ‘core'”; there are “an infinite variety of particular private law regimes”, without any apparent constraints on this variety whatsoever; “[s]ocialism is already present in the capitalist legal system”; “capitalist legal regimes have no overall system logic”; and finally, rather “than a distinction between reform and revolution, there is a mushy continuum between collectivism and anarchism, hierarchy and equality”. 
These arguments are subject to exactly the kind of critique that Smith marshalls against (other) liberal egalitarian philosophies. More directly, there is nothing historical or empirical to justify Kennedy’s conclusion about the lack of bumpy roads on the way to socialism. Efforts to socialize the economy piecemeal have always run up against the capitalist “wall”, whether that resistance comes in the form of political blockage, as in the Swedish trade-union experience with wage-earner funds in the 1970s and 1980s, or the bloody and dictatorial response to Allende’s Popular Unity government in Chile in 1973. In practice, the gradualist strategy of socializing production sector by sector faces dilemmas rooted in production for profit. The reasons for this are the same as identified above. Continued production depends on private investment, but once private investment is called into question, capitalists no longer have any reason to continue to invest. Production comes to a halt.
3. Why the Holdren-Hunter Critique Fails
We can now turn to some of Holdren’s and Hunter’s more pointed criticisms. In light of our exposition of the ontological reading, we do not find that these criticisms have much traction. “Economism” appears to be Holdren and Hunter’s overarching complaint against the base-superstructure metaphor. Holdren and Hunter write that “[e]conomism is precisely what we find objectionable in both Raj and Dimick’s accounts”, and they appear to embrace the conviction that any version of the base-superstructure metaphor will fall victim to this problem. Unfortunately, Holdren and Hunter never offer a clear definition of what they mean by “economism”. This would not, in itself, be a problem, but they gesture simultaneously in several different directions, making it difficult to understand what their exact concerns are.
Normally, a critique of economism would be concerned with reductionism, the idea that higher-level phenomena can be entirely explained by lower-level phenomena, and that there are no emergent properties at these higher-levels, despite appearances. But this does not seem to be Holdren and Hunter’s main objection.
Rather, at various points, Holdren and Hunter are concerned that the base-and-superstructure metaphor trades in errant “separationism”. They write: “It is not possible to critically apprehend capitalism by fixating on any one aspect of it and assigning primacy to that aspect—or, in Hegel’s terms, ‘giving authority to a partial and abstract principle, in its isolation’.” According to Holdren and Hunter, “[t]here is no clean separation between economy and state (or anything else)”. Their proposed alternative to the base-superstructure metaphor “apprehends law and state as moments in the totality of capitalist social relations. That is, law and state are, to borrow a phrase from Marx, ‘distinctions within a unity’.”
We agree, but reply that while this is a valid critique of some versions of the base-superstructure metaphor, it does not apply to the ontological reading. The ontological reading is entirely consistent with the following propositions (some of them overlapping): (1) totality: the whole is prior to the parts (i.e., what Jonathan Schaffer describes as “priority monism” ); (2) unity-in-difference: the whole is a unity of these distinct parts, not an identity (i.e. not a reductionism): (3) internal relations: the parts are internally related to one another such that no one part can be properly understood in isolation from the others (i.e. while the parts are distinct, they are not “separate”, or externally related). The ontological reading merely adds a fourth claim: (4) ground: within this totality, these parts are layered in order of ontological priority.
We therefore do not find any difference between the ontological reading and Holdren and Hunter’s approach. In fact, they also “privilege” the economy in their totality by frequently referring to “capitalist society” or “capitalist social relations”. In language that sounds like “privileging” to us, they also write that “our social relations are constituted through, and mediated by, the production of value and its accumulation”. If they do not see the capitalist mode of production—the economy—as something more fundamental than other parts of this society, why not call them “liberal democratic” societies or “modern” social relations instead of capitalist ones? It is no answer to say that one cannot have a capitalist society without a capitalist economy “attached” to it, as if the capitalist modifier were wholly innocent. Liberal-democratic societies are societies with liberal-democratic political institutions “attached” to them. Postmodern societies are societies with postmodern cultures “attached” to them. The question is: why do Holdren and Hunter privilege the capitalist moment in a society that is at the same time capitalist, liberal democratic, and postmodern?
In other passages, Holdren and Hunter are animated by the dualism between determinism and contingency. They write that the “metaphor’s privileging of the economic over the political … is hardly compatible with the fact that, as Tony Smith observes, ‘an indefinite number of different and incompatible concrete paths are compatible with capital accumulation'”. But there is nothing about the ontological reading that denies contingency or implies any sort of “unique” determination of superstructure by base. In fact, just the opposite is the case. Because the ontological reading is cast in terms of possibility, contingency is built directly into it. At most, the base constrains the structure—it does not uniquely determine the superstructure, especially not in a causal sense. In those terms, it is better to think about the number (also “indefinite”) of institutions or ideologies that a given base excludes, or makes impossible, rather than what it allegedly determines. What the ontological interpretation claims is illuminated by the Tony Smith quote, which Holdren and Hunter do not mention, and that we cited earlier, namely that the indeterminateness of policy under capitalism is not unrestricted.  We cannot think of a better application of the ontological interpretation than Smith’s painstaking demolition of the claim that a range of liberal policy prescriptions can solve the problems of capitalism. In ontological terms, they are rendered impossible under capitalism. Transcending them would require not only overcoming capitalism, but abolishing the capitalist state, the form of politics under capitalism.
At yet other points, Holdren and Hunter seem to impute to the base-and-superstructure metaphor the positivist question,”What exists?” For example, they write that “[c]apitalist society’s ontology … is not layered into a hierarchy of ‘realness’, with ‘the economy’ at its base”. In this critique, a layered ontology somehow implies that higher-level phenomena are less real—that they don’t really exist—than lower-level phenomena. But this is not what a layered ontology implies at all. Rather, Marx’s ontology asks not what is there, but rather what grounds what–or what the conditions for something’s existence might be? On this point we refer the reader to Lukács , but quote the more pithy statement of Schaffer: “Metaphysics so revived [against the positivist view] does not bother asking whether properties, meanings, and numbers exist. Of course they do! The question is whether or not they are fundamental.”  To speak of the conditions of existence of something is already to reject both nominalist and positivist frameworks.
3.1 On “Inverted” Social Relations
Holdren and Hunter assert that the “terms and concepts of the ‘Preface’, including the base-superstructure metaphor, are incomplete and under-developed metaphors for pursuing an immanent critique of capitalist social relations”. We can only agree, because the base-superstructure metaphor is not a method for analyzing capitalist societies. This statement captures an important part of where Holdren and Hunter go wrong. The ontological interpretation of the base-superstructure metaphor is a method for analyzing any society, with any social form of production, at an appropriate level of abstraction. That last point is important because, while useful for answering some questions about any society, the base-superstructure metaphor is obviously inadequate for a complete analysis of any particular society, capitalist societies above all.
We will spell this claim out, because there are many implications. For one, it is not obvious that a critique of political economy and capitalist society should find pre-capitalist societies less worthy of attention than capitalist ones. In fact, a critical analysis of capitalism implies exactly the opposite. It is an odd form of historicism that brackets capitalism off from the rest of history. To claim that capitalism is an historically specific mode of production immediately implies a non-identity to capitalism, something non-capitalist, whether that non-capitalism precedes or succeeds capitalism. The claim that capitalism has an origin, that it is not a product of some transhistorical “propensity to truck, barter, and exchange”, rests fundamentally on the ability to understand what capitalism is not, and what preceded it. This is quite unlike mainstream economists of today who, when they deign to consider ancient or feudal societies at all, find in them, unsurprisingly, exchange, wage labour, trade, transaction costs, and the efficient allocation of resources with given technology and preferences. In short, nothing but primitive capitalisms.  The critical and ideological stakes should be apparent. Marx may have inherited the “stages” he refers to in the base-superstructure metaphor from bourgeois political economy. But the same can be said for his theory of value. To both he applied an immanent critique, and in the process fundamentally transformed these categories.
For another, the ontological interpretation is in no way committed to teleology, despite the claim that it is a method for “any society … any social form of production”. Why? Because it does not posit any telos toward which human society necessarily moves towards, whether that telos be the development of the forces of production or the realization of non-alienated human existence. There is no unilinear path that social development will follow, and there is no necessity that human sociality should have even reached a form of production such as capitalism. If we look back at history and see society and relations of production change as forces of production change, this outcome was not preordained and its course has followed only a logic of blind necessity. Even in his earlier writings, Marx always expressed skepticism about “eternal” human laws; we think that skepticism should be read into the “Preface”. There is furthermore no guarantee that any social formation will not terminate in self-destruction or ecological annihilation. The ontological reading only says that whatever legal or institution forms exist are grounded in definite relations of production for human needs.
Holdren and Hunter also argue that, in virtue of the base-superstructure distinction being modelled on the “inverted ontology” of capitalist society, the distinction ought to be rejected. They observe that the “categories and concepts of political economy refer not to natural but thoroughly social phenomena”. This is true: (i) social relations under capital are characterized by Marx as inverted and (ii) it is clear that these social relations are not “natural”, as in they are neither transcendent nor transhistorical. However, neither of these points relates directly to the validity or usefulness of the base-superstructure distinction in general, or the ontological reading in particular. Presumably, since the base-superstructure distinction can be applied to the analysis of prior modes of production (slavery, feudalism, etc.), and each mode has different social relations than those found under capitalism, this distinction will continue to be applicable after capitalism. And this fact, stated at that level of generality, is a transhistorical claim from which we need not recoil: “The labour process, as we have just presented it in its simple and abstract elements, is purposeful activity aimed at the production of use-values. … It is the universal condition for the metabolic interaction [Stoffwechsel] between man and nature, the everlasting nature-imposed condition of human existence, and it is therefore independent of every form of that existence, or rather it is common to all forms of society in which human beings live.”  This passage is sometimes misinterpreted as an aberrant slip in Marx’s otherwise ruthlessly historical thinking. In fact, it is characteristic of Marx’s subtle analysis.
Let us illustrate. As a form of production, capitalism stands in the relation of a particular to a universal, as a specific kind of production of use values. There is a moment of identity: A is B, capitalism is an instantiation of the production of use values. But we also have to recognize the non-identity, the difference. Capitalism is a form of production that systematically subordinates human needs to the accumulation of value and profit; it is a class form of production that dominates and exploits workers. Without the moments of identity and non-identity, capitalism would not be contradictory; within the contradiction of use value and value lie all of capitalism’s contradictions. But there is more, too, because even when the negative totality of capitalism is abolished, that does not dispose of the society-nature dialectic and its “everlasting nature-imposed condition of human existence”. Nature has an ontological priority over society, as Alfred Schmidt acknowledges in his discussion of the above-cited passage from Capital: “There is in fact in Marx something like an ontology, although this is to be conceived in a negative sense.”  The co-dependence of identity and non-identity can be unpacked by starting with a simple example.
Very briefly, a concept can only be differentiated in relation to what it is not (e.g. “blue” is in part defined by what is “not blue”), meaning that what the concept is not (i.e. non-identity) is in fact necessary for it being differentiated in the first place (“blue” implicitly contains “not blue”). Likewise, the base relies on what it is not, namely the superstructure, for it to be differentiated in the first place, which implies that the superstructure is crucial to the identity of the base. The apparent spookiness of defining “base” and “superstructure” as what they are + what they are not can be demystified by understanding them as concepts perpetuated by and interacting through human activity, which necessarily involves grasping the concrete. Evald Ilyenkov provides a succinct overview of the relation between human activity, nature, and the conceptual:
“[T]he process by which the material life-activity of social man begins to produce not only a material, but also an ideal product, begins to produce the act of idealisation of reality (the process of transforming the ‘material’ into the ‘ideal’), and then, having arisen, the ‘ideal’ becomes a critical component of the material life-activity of social man, and then begins the opposite process – the process of the materialisation (objectification, reification, ‘incarnation’) of the ideal.” 
Holdren and Hunter are therefore right to point out the incompleteness of the base-superstructure metaphor, but even ontological conditions that persist between different modes of production cannot be ignored. For that reason, the metaphor remains essential, if incomplete, and the incompleteness of the metaphor is essential to its value. That is to say, “completing” the metaphor would entail the collapse of the identity/non-identity relation and a lack of differentiation between base and superstructure.
Finally, Holdren and Hunter’s (entirely accurate) depiction of–and their references to–capitalism as a nightmarish totality of inverted social relations signals their appreciation of the New Marx Reading, and the Frankfurt School from which it draws. In this connection, we should acknowledge Adorno’s powerful critique of ontology. Adorno was a trenchant critic of the metaphysics of being, with Martin Heidegger prominently being among his targets. But it is clear that the form of ontology he critiques is very different from the one to which we adhere. Adorno was opposed to any sort of invariant and transcendent ontology, social or otherwise, and any sort of transhistorical social laws or source of meaning beyond experience. At the same time, he was equally opposed to both nominalism, the denial of the existence of abstract objects, and positivism, which reduces social life to observable facts. Adorno rejected the tertium non datur that demanded a choice between either the metaphysics of an absolute principle or the “obstinate cult of scientific facts”.  He rejected positivism because of its slavish devotion to “facts”, which prevented it from theorizing the social reality that “secretly holds the machinery together”, that “conceptuality which holds sway in reality (Sache) itself”.  This is precisely where we locate our questions of ontological priority. This is an ontology of immanent, concrete existence rather than of transcendent being, one that is always historically relativized because it articulates the conditions of social existence and their ground. We might call this, following Schmidt, a negative ontology.
The fact that capitalism inverts social relations does not mean that the base-superstructure metaphor should be rejected, but rather that social relations in the base and superstructure ought to be changed for the better. Presumably, as Marx makes abundantly clear, there will still be a role for the “social productiveness of labour” and the means of production (e.g. who owns such means) once they have been unharnessed from capitalism.  Obviously, the capitalist inversion of social relations does not imply a reversion to pre-capitalist social relations, but rather the sublation of such social relations to post-capitalist ones. To undertake this sublation, it is not enough, for example, simply to comprehend the existence of commodity fetishism as an ideology. Rather, this fetishism arises from the reproduction of the commodity form and generalized commodity production through social activity, including labour. On the one hand, this implies that sublation fundamentally hinges on enacting changes in the base. On the other, this fact does not diminish the dependence of changes in the base upon activities in the superstructure. Rather, it clarifies that changes in the superstructure alone are not sufficient to sublate the inverted ontology of capitalism. Thus, it seems that if one is committed to challenging capitalism’s inversion of social relations, then one must at least hold an implicit commitment to a version of the base-superstructure metaphor. We hold that the ontological reading provides a version that avoids the pitfalls identified by Holdren and Hunter.
Summing up, the ontological reading justifies its use of the base and superstructure metaphor based on the fact that it provides conceptual tools with explanatory power without making burdensome ontological commitments, such as positing a strict separation between base and superstructure or insisting on either exclusively causal or ontological explanations. Doing so allows the ontological reading to keep the “distinctive premise” of the base-superstructure distinction minus the myopic economism associated with “standard” interpretations of the base/superstructure metaphor rightfully critiqued by Holdren and Hunter. Furthermore, the ontological reading not only has a textual warrant from Marx’s “Preface” to A Contribution to the Critique of Political Economy, but also remains consistent with a broadly dialectical approach (e.g. the relation between identity and non-identity). Finally, while Holdren and Hunter argue that any attempt to maintain a non-reductionist account of base and superstructure will become mired in complexity, we show that ontological reading provides the necessary conceptual tools to make determinations in an otherwise chaotic morass of social relations.
Matthew Dimick is a professor of law at the University of Buffalo. Dom Taylor is currently a librarian at the University of Manitoba Libraries, and will be commencing doctoral studies in law and legal studies at Carleton University in Fall 2020.
 Nate Holdren and Rob Hunter, “No Bases, No Superstructures: Against Legal Economism“, Legal Form (15 January 2020), para. 26.
 Holdren and Hunter, para. 5.
 Holdren and Hunter, para. 5.
 Anandha Krishna Raj, “Law as Superstructure“, Legal Form (3 October 2018).
 Matthew Dimick, “Base and Superstructure as Ontology“, Legal Form (17 August 2019).
 Holdren and Hunter, para. 6.
 For a discussion of different relevant interpretations of existence and its relation to ground, see György Lukács, History and Class Consciousness, trans. Rodney Livingstone (Pontypool: Merlin Press, 1971 ), 127. For a discussion of the concept of actuality in the context of a dialectical approach, see Karen Ng, “From Actuality to Concept in Hegel’s Logic“, in Dean Moyar (ed), The Oxford Handbook of Hegel (New York: Oxford University Press, 2017) 269, at 271–72.
 T. W. Adorno, “Society“, 148 (1969/1970) Salmagundi 144–53.
 E. P. Thompson, “Caudwell“, 14 (1977) Socialist Register 228, at 246–47; quoted in Ellen Meiksins Wood, Democracy Against Capitalism: Renewing Historical Materialism (London: Verso, 2016 ), 67.
 For some useful introductions to the categories of ontological dependence and grounding, see Tuomas E. Tahko and E. Jonathan Lowe, “Ontological Dependence“, in Edward N. Zalta (ed), The Stanford Encyclopedia of Philosophy (2016); and Tuomas E. Tahko, An Introduction to Metametaphysics (Cambridge: Cambridge University Press, 2015), 93–119.
 Karl Marx and Friedrich Engels, “The German Ideology“, in Collected Works of Karl Marx and Frederick Engels, vol. 5 (London: Lawrence & Wishart, 1976) 19, at 41.
 Ng, “Hegel’s Logic”, 273.
 Karl Marx, Capital, vol. I, trans. Ben Fowkes (Harmondsworth: Penguin, 1990 ), 178. Interestingly, Marx continues, “[t]his juridical relation, whose form is the contract, whether as part of a developed legal system or not, is a relation between two wills which mirrors the economic relation. The content of this juridical relation (or relation of two wills) is itself determined by the economic relation.” Evidently, this is another piece of evidence in favour of Marx’s continued devotion to the base/superstructure model.
 The constitutive nature of law has indeed been the source of historical materialism’s alleged “problem of legality”. Duncan Kennedy, A Critique of Adjudication [fin de siècle] (Cambridge: Harvard University Press 1997), 286–87. And one is free, following Cohen (G. A. Cohen, Karl Marx’s Theory of History: A Defence (Princeton: Princeton University Press, 1978)), Táíwò (Olúfẹ́mi Táíwò, Legal Naturalism: A Marxist Theory of Law (Ithaca: Cornell University Press, 1996)), or Furner (James Furner, Marx on Capitalism: The Interaction-Recognition-Antinomy Thesis (Leiden: Brill, 2019), 169–76), to devise any number of “dualisms” for expunging legal language from social relations. But we suspect that Hunter and Holdren probably see the problem of legality as a non-problem. And part of the virtue of the ontological reading is that while it gives an answer to the “problem of legality”, that answer does not depend on resorting to a dualist strategy.
 Tony Smith, Beyond Liberal Egalitarianism: Marx and Normative Social Theory in the Twenty-First Century (Leiden: Brill, 2017), 190.
 Smith, Beyond Liberal Egalitarianism, 150 (original emphasis).
 Smith, Beyond Liberal Egalitarianism, 150 (original emphasis).
 Kennedy, Critique of Adjudication, 287.
 Jonathan Schaffer, “The Internal Relatedness of All Things“, 119 (2010) Mind 341, at 342.
 Smith, Beyond Liberal Egalitarianism, 190
 Lukács, History and Class Consciousness, 127.
 Jonathan Schaffer, “On What Grounds What“, in David J. Chalmers et al. (eds), Metametaphysics: New Essays on the Foundations of Ontology (Oxford: Oxford University Press, 2009), 347 (original emphasis).
 For an exasperating example, see Peter Temin, The Roman Market Economy (Princeton: Princeton University Press, 2013).
 Karl Marx, Grundrisse: Foundations of the Critique of Political Economy, trans. Martin Nicolaus (Harmondsworth: Penguin, 1973 ), 101.
 Marx, Capital, 290.
 Alfred Schmidt, On the Concept of Nature in Marx, trans. Ben Fowkes (London: Verso, 2014 ), 86.
 Evald Ilyenkov, “Dialectics of the Ideal” , in Alex Levant and Vesa Oittinen (eds), Dialectics of the Ideal: Evald Ilyenkov and Creative Marxism (Leiden: Brill, 2014), 36.
 Theodor W. Adorno, An Introduction to Dialectics, ed. Christoph Ziermann (Cambridge: Polity Press, 2017 ), 113.
 Theodor W. Adorno, “Sociology and Empirical Research”, trans. Glyn Adey and David Frisby, in The Positivist Dispute in German Sociology (London: Heinemann, 1976 ) 68, at 80.
 Marx, Capital, 799.