[This post responds to Karl Klare, “On Socialism and Critical Legal Theory“, Law and Political Economy Blog (9 November 2020). A condensed version is also available at the Law and Political Economy Blog (30 November 2020).]
I write in reply to Karl Klare’s “On Socialism and Critical Legal Theory”.[1] I could not agree more with Klare that “our political horizons must reach … toward new and qualitatively better ways of living”, including “more caring and solidaristic forms of social coordination that will better enable us to treat other humans as moral agents entitled to respect and self-determination”. This requires not only “ameliorating material inequality, maldistribution, and absolute deprivation”, but also “confronting and undoing the power-relations that generate and entrench them”. With these shared values in mind, I will sketch a different vision of critical theory than the one that Klare has offered. I argue that Klare overstates the importance of the idea of legal underdetermination as well as the degree to which law can help bring about these new ways of life. I begin with a brief account of how I understand capitalism.
Capitalism—in any of its variations—is fundamentally incompatible with the better ways of living Klare calls on us to imagine. Capitalist society predictably generates injustices, because people are market-dependent in capitalist society. That is to say, a large subset of what is needed for human flourishing can only be had by purchasing goods and services with money.[2] That makes the possession of money compulsory. There is a kind of domination in this social condition. For many people, the route to getting money is selling their labour power or being in a relationship with someone who sells their labour power. The buyers of labour power, i.e. employers, have power over its sellers, i.e. employees. (People with income who control access to money for people without income have a loosely similar power.) At least to some extent, those of us who sell our labour power do so as a means to an end. Similarly, employers buy labour power as a means to an end. In addition to domination, then, a significant part of our activities and our relationships in capitalist society are lived out instrumentally, involving some degree of indifference. Capitalists spend some of the money they possess for their personal consumption, but they must reinvest much of that money in order to expand their businesses or else face being put out of business by competitors. As a result of the grow-or-die imperative in capitalist society, employers tend oftentimes to face pressure to engage in activities that most decent person would prefer not to do.
There is more to be said, but these are some general facets of social life under capitalism that a Marxist perspective helps to highlight.[3] These patterns are part of what makes capitalism a specific type of society distinct from other types of society, and helps to identify what different variations on capitalism have in common.[4] Of course, a Marxist perspective does not simply identify patterns; it also makes judgments about them. Marxists tend to insist that capitalist societies generate harms to humans and nature alike, so that the left should ultimately seek to end capitalism.[5]
For the time being, prior to the end of capitalism, the left should, as Klare emphasizes, seek to ameliorate capitalism’s injustices as much as possible. These two efforts—revolution in the medium term, melioration in the short term—should be linked together. Socialist movements around the world have generally attempted to link these efforts into a single project, while debating theoretically and organizationally how to do so. Critical theory, as I understand it, should aspire to enrich attempts to connect melioration and revolution into a single political project. Critical theories of law in particular should help to make clear that law is an important set of institutions and vocabularies for the organization of the kinds of domination that characterize capitalist society.[6] That domination can at best be mitigated by what Klare calls “legal work”. A deeper challenge to capitalist social relations, and capitalism’s eventual abolition, requires collective action outside formal legal institutions. The same goes for revising deep patterns of domination short of ending capitalism, such as current movements against police killing people.
“Legal work” is at best one among many sets of practices that can play a subsidiary—tactical or supportive, but not strategic—role within collective action in the pursuit of justice. In the words of the great Staughton Lynd, for people engaged in struggle, law is at best “a shield, not a sword”.[7] Furthermore, those pursuing justice will often find law’s shield to be one of their more powerful opponents. Critical theories of law should aspire to help people engaged in struggle to set strategy, understand the laws arrayed against them, decide if and when to draw upon the law, and ensure that “legal work” remains in the passenger’s seat, rather than the driver’s seat, of social movements.
Klare’s capsule summary of critical legal theory, on the other hand, reads less like a critical theory of law than a theoretical defence of the idea that legal work is an activity worth having within a socialist movement’s constellation of activities. On this account, law and legal work are not the object of criticism, but practices undertaken by justice-seeking subjects. I suspect that, for Klare, the subject of legal work is the left-wing lawyer, law professor, legislator, and other, similarly situated people. People of conscience in positions such as these might well aspire to be the best possible shield-holders when social movements need them, to borrow Lynd’s metaphor again. That is a worthy aspiration, and leftists in any job would do well to talk to each other about how to square their work with their principles. However, lawyers are no more politically important than any other occupational category. There is nothing especially politically important about legal work. Leftist legal work is a valid local project, but not something of particular importance to people outside the legal profession and its attendant institutions.[8]
I expect that the metaphor of the shield-holder will not satisfy readers who agree with Klare that legal work can be “transformative”. To be fair, the notion that law is able to offer social movements nothing more than immediately defensive use does leave out important potentials in the law. In my view, however, those potentials are better considered not as transformative but as making variation possible. That is, law can help shape the direction of historical change between different types of capitalism, but it offers little in terms of ending capitalism. Some readers might object that introducing a significantly more just form of capitalism is an important change, one worthy of the term “transformative”. While legal variations within capitalist society can literally be a matter of life and death for many people—something of which I am painfully aware—it remains the case that legal work at most helps to create variations of capitalism. It is best to reserve the word “transformative” for contributions to the project of ending capitalism.
Terminological differences aside, those of us on the left should at the very least be clear when we are talking about creating variations within capitalism and when we are talking about creating a new kind of society. We should also be clear about what we expect from a new form of capitalism. Critical theory should help to generate that clarity. Historically, when capitalism has undergone significant reorganization, some injustices have been mitigated, others have persisted, and new ones have been introduced. A critical theory of law helps to make those persistent injustices apparent, helps to explain why new forms of capitalist social relations call forth new forms of injustice, and helps to articulate the relationship between opposing those particular injustice and opposing capitalism as such.[9]
A key point of emphasis in Klare’s essay is the notion of legal underdetermination: “Legal rules, practices, and outcomes are underdetermined by legal reasoning, and likewise they are undetermined by social structure, ideology, interest, and identity.” Legal underdetermination is a useful concept insofar as it helps to make clear that decisions taken by formal legal actors cannot simply be read off their social, doctrinal, or statutory contexts. The concept also has some limited explanatory power in helping us understand the range of variations of which capitalism is capable. That said, I think Klare overemphasizes the importance of the concept for critical legal theory. The concept has limited use for understanding law’s different roles in organizing, maintaining, and legitimizing domination.
Consider developments in law and class relations in US history from the mid-nineteenth century through the early twentieth century. Across much of the nineteenth century, the clear pattern was that workers lost more often than they won in struggles over employment relationships, the legal status of workers’ collective action, and in protection from and compensation for injuries on the job.[10] In the late nineteenth and early twentieth centuries, courts regularly issued injunctions against workers’ collective action, and moved to lessen the beneficial effects of ameliorative legislation.[11] The law regularly stood aside while employers waged serious repression against workers’ organizing.[12] In the late 1930s and early 1940s, the National Labor Relations Act continued to leave the asymmetry of power between employers and employees relatively unaddressed, so that employers who violated the law faced punishments too low to constrain their behaviour—while employees whose rights were violated could spend years waiting for their claims to be resolved. In turn, the limits of the NLRA helped foster less democratic and progressive unions at the expense of unions to their left.[13] During these decades, the law certainly changed in numerous and often unexpected ways. Workers sometimes managed to avail themselves of the law in an effort to defend themselves. As a legal historian, I find these developments endlessly fascinating. Still, it seems clear that law did little if anything to alter the balance of class power in a fundamental sense. Indeed, it was regularly a key mechanism for defusing workers’ attempts to change that balance.[14]
This history included the actions of a great many legal actors. Each time a formal legal actor took part in these historical processes, there was a chance that things could have gone otherwise, as the theory of legal underdetermination tells us. And yet those underdetermined processes all seemed to end with similar results. Presumably there were processes working to foreclose legal open-endedness again and again. A full explanation of why this is the case would need to be complex and multi-causal, and it would require detailed historical investigation. It would also require critical theoretical concepts beyond the concept of underdetermination.
In addition to its limits in terms of historical explanation, the concept of legal underdetermination seems to me to have limited use for social movements and people taking collective action. My sense, based on my own experiences with workplace organizing and studying labour history, is that negative effects tend to follow when a workplace dispute is addressed through law rather than collective action. Labour lawyer Joe Burns’ excellent book, Reviving the Strike, is edifying on these matters, as is the work of Staughton Lynd.[15] Beyond workplace organizing, we could consider the widespread and often combative collective action in the aftermath of George Floyd’s murder. This opened up some significant political possibilities, through acts whose legality was often questionable. It is hard to imagine similarly rapid transformations occurring through specifically legal work. Of course, resorting to legal work may sometimes be the best of the bad options that are available. Klare rightly points out that the choice of when and why to engage in legal work is one that can only be made in what he calls a “thickly contextualized” way. Underdetermination does not seem to help that process of thinking in practical context. A critical theory of law might help by making clearer what negative effects can result from resorting legal work.
There are political stakes to how much we emphasize the prefix “under” (or, worse, “in”), and how much we emphasize the root, “determination”. Stressing the prefix underscores relative open-endedness, while stressing the root underscores relative boundedness.[16] Legal underdetermination is analogous to what happens when I order takeout from a restaurant. What I will order off the menu is open-ended. That my order will consist of something on the menu is not. Emphasizing the open-endedness of what can happen through legal work, without paying at least equal attention to the boundedness of what can happen, is not sufficiently critical and does little to aid left politics overall. A more robust critical theory of law would emphasize the narrow range of possibilities on offer within the law, despite the open-endedness of the small set of possibilities that might eventuate. It would also call our attention to the way law serves to narrow (rather than expand) social possibilities, by preventing people from demanding something not on the menu.
The Marxist sociologist Erik Olin Wright used the metaphor of a game to distinguish between different understandings of capitalism and class.[17] Wright said that we can distinguish between deliberating about what move to make at a given moment in a game, about what changes to make in the current rules of a game, and about what game to play at all. Similarly, people can deliberate about how to navigate existing class structures (the province of career counsellors and job market advice columnists), about how to ameliorate specific undesirable aspects of class structures (the worthy project Klare and other left-liberals emphasize), and about how to create a society in which there is no class structure (the project of Marxists, socialists, anarchists, and others).
In any game worth playing, what move a player might make at any moment is underdetermined by the rules of the game. At the same time, the player is still playing that game: no one scores a home run in chess, or gets a pawn promoted to queen in baseball. And while Major League Baseball or the US Chess Federation may add, alter, or remove some rules of competition, the game remains identifiably the same game, however varied. To play any game is to operate within a bounded set of rules, rituals, and procedures, at least partially distinct (even if that distinction is blurry) from other areas of social life. Similarly, to play the game of law is to operate in a bounded set of behaviours—however complex and blurry the line may be between law and the rest of life. While moves in the game of law are underdetermined by the relevant rules, and while the rules change over time, it remains true that the game constrains behaviour. Those constraints have political effects. Rules about what counts as a valid move in the game of law shape what grievances can be acted upon.
Limits on what grievances people can act on through legal work arise in part from the type of game that law is. To carry out legal work is to play a smaller game within a larger game, so to speak, in that law is an institution within capitalist society. Law can be thought of as a kind of meta-game played over and above the rules of the game of capitalism. So considered, law is a set of structured procedures within which people contend. The results of those contests can be to legitimize or delegitimize social relations–to sustain or revise specific rules and practices over how the game of capitalism is played. But players of the game of law cannot tear up the rulebook of capitalism, stop capitalism altogether, or object to core components of capitalism itself. Certain kinds of justice claims cannot be made, and so certain aspects of the power relations that define capitalism cannot be contested, through law.
Consider workplace injuries. One of my brothers is an electrician. He recently told me about a co-worker who had his fingers severed in a work accident. (Typically, in the twenty-first century, just under three million injuries of this kind happen each year in US workplaces. 5000 fatal injuries typically occur.) My brother’s co-worker received fifteen thousand dollars in compensation. From one perspective, that is a success story: the law got him what he deserved according to his rights under workers’ compensation law. My brother did not see it as a success. He told me the story in horror and outrage, editorializing “You can’t even get a new car for fifteen grand! For a guy’s finger?!” Perhaps through a slow, patient process of legal change over time, a construction worker’s finger might be revalued at twenty, thirty, or a hundred grand.
Higher dollar values paid to injured persons would certainly be better than lower values. At the same time, the idea that there is a correct monetary valuation of a human being’s body part (and their pain) is grotesque. While we should seek the highest possible valuations for human life, we should also remember that this practice of valuation is itself grotesque and at the core of what is wrong with capitalism. Commodifying human lives, instrumentalizing human beings for the use of other people—these are unacceptable injustices, and they cannot be litigated or legislated away. There is no move in the game of law through which these social ills may be removed altogether.
Political goals like ending the commodification of labour power—a classic goal of Marxists, socialists, and others—do not fit into the law. Legal underdetermination is a largely irrelevant consideration in the pursuit of such goals. Furthermore, if we are not careful, emphasizing the open-ended possibilities that might be secured through legal work can direct the left’s political aspirations away from more robust aims like ending capitalism. In so doing, legal work helps to legitimize capitalist social relations. The underdetermination thesis points to the options on the menu and tells us that we could have any of them. A critical theory of law should help us remember that a great deal of what we want is not on the menu at all.
With Dennis M. Davis, Klare has written elsewhere that “a social or economic institution—say, a market for the purchase and sale of labour power in a capitalist society—can be legally structured in a wide variety of ways based on different, foundational rule sets. These rule sets may have quite different distributive consequences, for example, as between workers and employers.”[18] This is true, but what is its political significance? As a thought exercise, let us change the example. Rather than a job market for people seeking employment, consider a market for the purchase and sale of human beings in a system of chattel slavery. Or a plantation. Or a prison. Or a migrant detention facility. All of those vile institutions are “legally structured in a wide variety of ways based on different, foundational rule sets”. Some of those varieties are decidedly worse than others. Absent other options, it is certainly worth doing legal work to transform the worst slave markets, plantations, prisons, and migrant detention facilities into less bad ones (I hesitate to affix the adjective “better” to those institutions).
At the same time, all versions of those institutions are fundamentally objectionable. No legal variation in the rules that organize them can make them acceptable. Legal efforts to ameliorate such institutions must be wedded to social and political efforts to abolish them. Otherwise, they will simply become means of legitimizing those fundamentally unjust institutions. (The great historian of slavery Eugene Genovese made this point, stating that social reformers have often been motivated in part by the desire “to prevent a fundamental change in class relations”.[19]) It seems to me that waged labour is less objectionable than the institutions I named above. Still, the same basic point goes for waged labour and market dependency.
Class itself is an injustice; we should imagine (and more than simply imagine) a society without class. When people talk about class, they sometimes use the phrase “race, class, and gender”. Instead, people should say something like “racism, class, and sexism”. There is no such thing as a good or just form of racism or sexism. Racism and sexism are patterns of injustice in society that injure people. As long as there is racism and sexism in a society, there will be people who get hurt by racism and sexism. The same goes for class. Class is a pattern of injustice in society and it injures people. As long as we have a class structure in society, people will be injured by that class structure. There is no such thing as a good or just form of class.
The through-lines of domination and commodification run across all possible modes of organizing transactions concerning commodified labour power. A key purpose of critical theory is to help us discern those through-lines and continue to criticize them despite their reorganization, as part of opposing capitalist society as such, rather than only opposing some specific versions of capitalism.
Whom do we sue in order to end market dependency? What bill do we pass to end class? It seems to me that those are the wrong questions—not because it is a mistake to want to end commodification and domination, but because legal work is not a path to these kinds of ends. Those are pursuits that the game of law does not permit. The response from socialists and critical theorists, then, should be, “so much the worse for law”.
As a kind of coda, I wish to register my objections to Klare’s characterization of past socialists. Socialism’s past is probably less important than the fact that we are in the middle of a renaissance of Marxist theorizing, a renaissance with much to offer for a critical theory of law. Still, I bristle at Klare’s remarks about past socialists, and the force of his remarks certainly does not encourage readers to engage with the contemporary renewal of marxism.
Klare’s remarks on past socialists seem to me to be an example of what E. P. Thompson called “the enormous condescension of posterity”—treating past socialists as mistaken, outmoded, and not worth reading.[20] Indeed, these remarks are an odd and unfortunate way to answer the questions with which Klare himself commences his post: “what of value endures in the socialist tradition?”, and “what does socialism have to teach us?”
Klare writes that “[s]ocialism erred in imagining that emancipatory ways of life can be … brought in from the outside”. Marx and socialists of his generation believed in a parliamentary road to socialism. So did many Bolsheviks, until a surprisingly short time before the Russian Revolution. Participants in that revolution held that the state could be seized and then used for other purposes. Socialists of a more syndicalist bent, such as the Marxists of the Industrial Workers of the World, initially believed that socialism would be achieved through a combination of party and union action. Later they came to believe that socialism was to be constructed solely through union organization, in a protracted process of “building the new world in the shell of the old”. None of this involved any “outside”.
Early socialists, Klare claims, “imagined that new forms of social coordination would … arrive on the grand day when the oppressed would take political power by democratic election or proletarian seizure”. Some early socialists may have held such views. It is hard to know to whom Klare is referring. It is abundantly clear, however, that there were a great many socialists who did not hold these views. Many believed, in the words of the Dutch communist Anton Pannekoek, that revolution “will not be a single battle, but a long war with many ups and downs of victory and defeat“. Klare also claims that, for many socialists, “new forms of social coordination would arise spontaneously from the grass roots”. The grass roots part seems accurate insofar as many early socialists believed—correctly—that ordinary people have the capacity to govern their own lives and to deliberate about how society could and should be organized. That process of deliberation was often conceived as a protracted learning experience, rather than something that happened “spontaneously”. Pannekoek thought the “long war” of revolution could “be prepared only by the small detail work of the present“. That “small detail work” taught ordinary people the capacity to analyze, deliberate, and formulate political positions. Lenin, an occasional antagonist to Pannekoek, argued in “On Strikes” that strikes are educational—as activities through which striking workers teach themselves and each other important lessons that increase their collective capabilities.
I think of these processes as “class formation”, as the term is used in the collection Working-Class Formation.[21] That book remains a valuable resource for thinking about working class people’s culture, collective action, and the relationship of each to law. To use that term, early socialists saw the process of revolution as a protracted process of class formation leading to ongoing processes of social reconstruction. These processes were understood to be no more spontaneous than any other process of learning or institution-building. As such, I think Klare is also mistaken to claim that socialists thought “freedom comes with ready-made, in-built steering principles”. Rather, many socialists believed they were constructing new concepts and practices of human freedom, that such construction would continue to unfold for years to come, and that these activities were themselves a matter of constructing new forms of social coordination.
I expect some readers will take these final paragraphs as an extended aside on minutia pertaining to a past that feels inert or even dead. Such readers misunderstand the relationship between political and historical imagination.[22] While I do not think academic history is politically important in our society, I do think that how social movements understand themselves in relation to the past matters. Rather than treating past socialism as a misguided and fundamentally concluded tradition, as Klare’s essay does, we on the left today are better served by seeing the organizations and writings of past leftists as repositories of ideas and practices with which to think about the ongoing disaster that is perpetually capitalism’s present.
Nate Holdren is a legal historian of capitalism in the United States, and an assistant professor in the department of law, politics, and society at Drake University. He is the author of Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020).
[1] Karl Klare, “On Socialism and Critical Legal Theory“, Law and Political Economy Blog (9 November 2020). I have written a condensed statement of some of my reply to Klare, which the LPE Blog has kindly agreed to publish. I am grateful to the editors of Legal Form and the LPE Blog for agreeing to run two related pieces relatively concurrently. My hope is to spark some discussion about Marxist approaches to law among people in the “Law and Political Economy” movement—and to promote more engagement with it by Marxists. I also wish to thank Matt Dimick, Rob Hunter, Umut Özsu, and Dominique Taylor for their feedback and encouragement on this essay. I especially appreciate this kind of intellectual camaraderie during the forced atomization of these bleak pandemic days. Intellectual community pursued as an end in itself offers a brief glimpse into what life would feel like in a fundamentally different kind of social order.
[2] This paragraph is heavily influenced by the writing of the political theorist Ellen Meiksins Wood. Wood argued that in capitalism markets are “not only a simple mechanism of exchange or distribution but [are] the principal determinant and regulator of social reproduction”. Market dependency generates “specific systemic requirements and compulsions” unique to capitalism. Ellen Meiksins Wood, “The Agrarian Origins of Capitalism“, 50 (July/August 1998) Monthly Review 14, at 16. See also Ellen Meiksins Wood, “From Opportunity to Imperative: The History of the Market“, 46 (July/August 1994) Monthly Review 14, at 25. For a related and powerful account, see John Clegg, “A Theory of Capitalist Slavery“, 33 (2020) Journal of Historical Sociology 74; and also John J. Clegg, “Capitalism and Slavery“, 2 (2015) Critical Historical Studies 281.
[3] Readers who are less familiar with Marx and Marxism should be aware that we are in something of a renaissance of Marxist theory. Aside from the works cited elsewhere in this essay, I recommend to readers the forthcoming Elgar Research Handbook on Law and Marxism, edited by Umut Özsu and Paul O’Connell; Michael Heinrich, An Introduction to the Three Volumes of Karl Marx’s Capital, trans. Alexander Locascio (New York: Monthly Review Press, 2012); Rob Hunter, “Critical Legal Studies and Marx’s Critique: A Reappraisal”, Yale Journal of Law and the Humanities (forthcoming); and multiple works by Chris O’Kane. See Chris O’Kane, “‘Society Maintains Itself Despite All the Catastrophes That May Eventuate’: Critical Theory, Negative Totality, and Crisis“, 25 (2018) Constellations 287; Chris O’Kane, “On the Development of the Critique of Political Economy as a Critical Social Theory of Economic Objectivity“, 26 (2018) Historical Materialism 175; and Chris O’Kane, “Capital, the State, and Economic Policy: Bringing Open Marxist Critical Political Economy Back into Contemporary Heterodox Economics“, 52 (2020) Review of Radical Political Economics 684. Hopefully these theoretical renewals may give rise to more works of empirical scholarship on law by Marxists as well. For reflections on the prospects for Marxist legal history, see Christopher Tomlins, “Marxist Legal History“, in Markus D. Dubber and Christopher Tomlins (eds), The Oxford Handbook of Legal History (Oxford: Oxford University Press, 2018) 515. For recent examples of such work, I strongly encourage readers to view the video of the “Historicizing Law and Capitalism: New Directions” panel at the 2020 Historical Materialism online conference, featuring Ntina Tzouvala, Rose Parfitt, Grietje Baars, Tarik Kochi, Rob Knox, and Maïa Pal. The panel included presentations on several important new works of Marxist historical scholarship on law and discussion of future directions that such work could take in the future.
[4] Since Klare remarks that he does not believe in “laws of historical motion”, and since the charge of determinism has been used too often as a cheap dismissal of Marx and Marxism, I want to stress that none of the above appeals to historical laws or determinism in any meaningful sense. I also add that capitalism’s origin was a contingent process. Its end—which could, but might not, take place—will also be a contingent process.
[5] In his recent book Beyond Liberal Egalitarianism, the philosopher Tony Smith provides an overview of why capitalist societies, despite institutional variations, predictably generate injustice and harm. Tony Smith, Beyond Liberal Egalitarianism: Marx and Normative Social Theory in the Twenty-First Century (Chicago: Haymarket, 2018). See also Simon Clarke, “Overaccumulation, Class Struggle and the Regulation Approach“, 12 (1988) Capital & Class 59 (for the view that all versions of capitalism involve class domination); and also Nancy Fraser and Rahel Jaeggi, Capitalism: A Conversation in Critical Theory (Cambridge: Polity, 2018) (for the view that all forms of capitalism contain tendencies toward a variety of social crises).
[6] My thoughts on the role of law in the organization of capitalist society are heavily influenced by Christopher Tomlins, Law, Labor and Ideology in the Early American Republic (Cambridge: Cambridge University Press, 1993). In a recent essay, Eric Tucker and I argue for this book’s continued relevance as part of an overview of the prospect for a renewal in marxist legal inquiry. See Nate Holdren and Eric Tucker, “Marxist Theories of Law Past and Present: A Meditation Occasioned by the 25th Anniversary of Law, Labor, and Ideology“, 45 (2020) Law & Social Inquiry 1142. See also “Historicizing Law and Capitalism: New Directions”.
[7] Staughton Lynd and Daniel Gross, Labor Law for the Rank and Filer: Building Solidarity While Staying Clear of the Law, 2nd edn (Oakland, CA: PM Press, 2011), 15.
[8] I can imagine some readers saying “Ah, but you see, developments in legal scholarship have taught us that there is no sharp demarcation between law and society and in fact law is constitutive of society. No less formidable a Marxist than E. P. Thompson argued that ‘law did not keep politely to a “level” but was at every bloody level’.” (E. P. Thompson, The Poverty of Theory and Other Essays (London: Merlin Press, 1978), 130 (original emphasis).) So you see, you cannot get outside of law. Any activity you undertake is legal work; the end of market dependency too is legal work, in a way. Your sword-and-shield metaphor cannot be sustained.” To such a reader I would respond that, if law is omnipresent in society, then we cannot maintain a coherent category of law (or legal work) as distinct from anything else. The thesis that law is omnipresent indicates that all social phenomena are marked by legality, which, in turn, suggests that there are multiple modes of legality. My remarks above could all, then, be transposed into remarks about which mode of legality to prefer, meaning the notion of law as socially constitutive or omnipresent does not recommend any specific kind of “law” or “legal work”. Strikes, occupations, riots—if these, too, have legalities, then the left should emphasize those modes of legality over modes like litigating or legislating.
[9] For my own efforts, in the form of a history of workers’ compensation laws in the United States, readers can consult Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge: Cambridge University Press, 2020). I strongly recommend Marx’s account of the English Factory Acts. In chapters ten and fifteen of volume one of Capital, Marx provided an account of occupational health and safety law in nineteenth-century England. This discussion stands as a counterpoint to Klare’s mistaken claim that Marx was a legal formalist. Marx saw the Factory Acts, designed to reduce workplace dangers, as the contingent product of a process of social conflict—social conflict that was, itself, contingent. Once in place, these acts were relatively ineffective at reigning in employer behaviour at first, only becoming effective over time due to historical processes, again contingent ones, including both significant social conflict and activity by state personnel that arguably could be considered an example of Klare’s transformative legal work. The result, in Marx’s view, was an eventual melioration of some of the ways workplaces harmed workers, leading—in what could arguably be considered an example of the constitutive power of law—to greater mechanization of production and a faster pace of work. In turn, these new work arrangements led to new forms of injury and death for workers, as Marx discussed in the third volume of Capital. Finally, capitalism does indeed vary, and the differences between its variations are important; but capitalism nevertheless remains unjust and violent. Karl Marx, Marx’s Economic Manuscript of 1864–1865, ed. Fred Moseley (Leiden: Brill, 2016), 156–179.
[10] Tomlins, Law, Labor and Ideology.
[11] William Forbath, Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991). Klare’s famous article on the NLRA is also an account of judicial limitation of apparently beneficial legislation. See Karl E. Klare, “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941“, 62 (1978) Minnesota Law Review 265.
[12] Chad Pearson, Reform or Repression: Organizing America’s Anti-Union Movement (Philadelphia: University of Pennsylvania Press, 2016).
[13] Charles W. Romney, Rights Delayed: The American State and the Defeat of Progressive Unions, 1935–1950 (Oxford: Oxford University Press, 2016). See also Christopher Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (New York: Cambridge University Press, 1985). For a slightly different account of the NLRA see Klare, “Judicial Deradicalization of the Wagner Act”.
[14] For an important statement of how socialists should orient toward it, see Matt Dimick, “Counterfeit Liberty“, 3 (Spring 2019) Catalyst.
[15] Joe Burns, Reviving the Strike: How Working People Can Regain Power and Transform America (New York: Ig Publishing, 2011).
[16] For an influential response to CLS on indeterminacy, see Lawrence B. Solum, “On the Indeterminacy Crisis: Critiquing Critical Dogma“, 54 (1987) University of Chicago Law Review 462. See also Christopher Tomlins, “After Critical Legal History: Scope, Scale, Structure“, 8 (2012) Annual Review of Law and Social Science 31; and Christopher Tomlins, “What is Left of the Law and Society Paradigm after Critique? Revisiting Gordon’s ‘Critical Legal Histories‘”, 37 (2012) Law and Social Inquiry 155.
[17] See Erik Olin Wright, Understanding Class (London: Verso, 2015), x–xi, 118–125.
[18] Dennis M. Davis and Karl Klare, “Critical Legal Realism in a Nutshell“, in Emilios Christodoulidis, Ruth Dukes, and Marco Goldoni (eds), Elgar Research Handbook on Critical Legal Theory (Cheltenham: Elgar, 2019), 27.
[19] Eugene Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Vintage, 1976), 49.
[20] E. P. Thompson, The Making of the English Working Class (London: Gollancz, 1968 [1963]), 12.
[21] Ira Katznelson and Aristide Zolberg (eds), Working-Class Formation: Nineteenth-Century Patterns in Western Europe and the United States (Princeton: Princeton University Press, 1987).
[22] On historical and political imagination, readers would do well to consult Simon Clarke, “Towards a Socialist History: Socialist Humanism and the Critique of Economism“, 8 (1979) History Workshop Journal 137.
Legal Form 