Legal Form presents a series of three posts on the ‘constitutive’ nature of law. These contributions are connected to a roundtable discussion that will take place at the annual meeting of this year’s Law & Society Association in Lisbon, Portugal (13–16 July 2022). The discussion was prompted by a footnote in Nate Holdren’s book, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020). On page 6, footnote 12, Holdren writes: ‘The rule of the commodity is in important respects, and perhaps entirely, legally constituted’. The word ‘constitutive’ raises profound questions among sociolegal scholars about the role of law in society. By confronting Marxist, institutionalist and STS perspectives, the roundtable discussion seeks to put the terms of this debate in question.
Greetings reader. I come bearing quotes to darken your days, if not enlighten your mind— ‘all truth with malice in it’.1 In my writings here at Legal Form and in my book, I have occasionally said that the rule of the commodity is legally constituted. Being as I am blessed with astute friends—and thus cursed with attentive readers—I have been pressed to elaborate on what I mean: ‘constitutive’ in what sense, exactly? I assume I can only disappoint, but one must make the effort; so here goes.
Walter Benjamin writes that ‘the objects which the monastic rules assigned to monks for meditation had the task of making the world and its drives repugnant’, adding that his own writing arose ‘from a similar determination’. While philosophers have interpreted the world in various ways, Benjamin’s point was to hate it. I am in this particular sense a convinced Benjaminian—and reader, you should be too. Of course, that hatred is not aimed at the world in all of its facets and potentials, but at its being a specifically capitalist world—one soaked both past and present in oceans of blood, one that did not have to be this way, and one that does not have to stay this way. Hate the violence and the hemming in of human possibility, and all the more so because the world could have been and still could be otherwise. When I say, then, that law constitutes the rule of the commodity, I mean let us hate the law.
In answering how, exactly, law constitutes the rule of the commodity, I confess that I want to have my cake and eat it too. I want, on the one hand, to say with EP Thompson that law is socially omnipresent and complex and so resists generalization. Thompson wrote in the section on the rule of law in his Whigs and Hunters (a section often unfairly maligned, typically through out-of-context quotation; I urge readers to read the section in its entirety) that law was ‘deeply imbricated within the very basis of productive relations, which would have been inoperable’ without law.2 Christopher Tomlins has found a similar imbrication of law across capitalist society in the United States, in his superb—and still relevant—Law, Labor, and Ideology in the Early American Republic.3 Writing three years later, in his—also unfairly maligned—Poverty of Theory, Thompson said that in his research he
found that law did not keep politely to a ‘level’ but was at every bloody level; it was imbricated within the mode of production and productive relations themselves (as property-rights, definitions of agrarian practice) and it was simultaneously present in the philosophy of Locke; it intruded brusquely within alien categories, reappearing bewigged and gowned in the guise of ideology; it danced a cotillion with religion, moralising over the theatre of Tyburn; it was an arm of politics and politics was one of its arms; it was an academic discipline, subjected to the rigour of its own autonomous logic; it contributed to the definition of the self-identity both of rulers and of ruled.
The presence of law across society ‘at every bloody level’ means that it is not clear that there is a single, general, overarching answer to the question of how law is constitutive, so much as that law acts constitutively in many different ways in specific contexts. Having said that, I rush to add that my sense is that Thompson saw his own remarks as reason to believe law was not reducible to a single overarching judgment, which is simply wrong. While law complexly constitutes society in multiple ways, what it constitutes is hardly so complex and multifaceted as to resist all generalization. Law multifariously constitutes, to borrow from Theodor Adorno, the wrong life, which cannot be lived rightly. Hence, hate the law.
Capitalism is a society characterized by what the philosopher Tony Smith calls the ‘valorization imperative’.4 Capitalists purchase sets of commodities, including means of production and labor power, which when combined in production create new commodities sold for more money than the initial outlay. In the second volume of Capital, Marx abbreviates this as M—C(mp+lp)…P…C’—M’. It is a circuit which upon completion must always be repeated, with the augmented sum of money M’ concluding the circuit becoming a new initial outlay, M, in a never ending repetition of the circuit on an expanding scale. M must become M’, money must ever become more money, ceaselessly.
For members of the working class—the sellers of labour-power—the initial exchange is different than it is for the capitalist. For the capitalists, M—C(lp) is the swapping of money for labour-power that will be put to work profitably; while for workers it is C(lp)—M, the swapping of time, subordination, and exertion for a wage. This exchange is the beginning of C(lp)—M—C(ms), that is, labour-power sold for money that is then used to buy means of subsistence, a version of what Marx called simple circulation. Generally, working class subsistence costs enough that there is little remainder, which is why workers must continue to work for wages. Whatever else there is to say about having a job, there is little profit in it.
Should the circuit from M to M’ become interrupted, the exchange M—C(lp) tends to get correspondingly interrupted, which means that simple circulation (C—M—C, through which the working class secures its subsistence) tends to become interrupted as a result. If your boss stops being able to profit, you might not get to keep your job. As such, the imperative that M must become M’ is not only, nor even primarily, a matter of capitalists’ need to get richer. It is also intimately tied to whether or not large numbers of working class people get to subsist at current levels, or at all. Often, they do not. The circuit from M to M’ is periodically interrupted by increased competition, businesses failing, and recurring crises—all of which harm workers far more than capitalists.
In addition, the imperative to turn money into more money means that expenditures which don’t enhance the augmentation of M into M’ are losses that must be reduced. This means downward pressure on wages and working conditions, including safety measures; upward pressures on time worked and work intensity; as well as downward pressure on welfare payments to support people who can neither sell their own labour-power nor live off of buying others’ labour-power, i.e., the unemployed, the sick, the disabled, the elderly, children, and other vulnerable populations. All of these pressures result in injury, illness (including COVID-19 transmission in our appalling immediate present), and poverty with its various harms, including addiction and deprivation. Friedrich Engels referred to these ills as ‘social murder’ in his classic book The Condition of the Working Class in England, which Marx praised heavily in Capital and which remains sadly prescient even today. Marx drew upon and extended Engels’ arguments in his analyses of occupational safety and health, poverty, and environmental pollution in various (and some of the best) parts of the first and third volumes of Capital. Since Marx and Engels’ time, these social patterns have transformed, not ended; the current pandemic (and inadequate government responses) only form the latest iteration. These make capitalist society a perpetual catastrophe for the working class, which Benjamin rightly depicted as the piling of wreckage onto wreckage without respite.
Law’s complex presence in society, then, stands as a multifarious set of contributions to the repetition of the circuit of M…M’ and to the maintenance of the murderous hold that this circuit has on society. The social compulsion to continue repeating that circuit—the valorization imperative—initially came about to a significant degree via actions of law, as Marx argues in his discussions of capitalism’s origins in the section of Capital on so-called primitive accumulation. The valorization imperative’s hold on society has not slackened since, and law has helped to maintain that hold. In maintaining the grip of the valorization imperative on society, law is itself gripped by that imperative. Law must serve the valorization imperative, or at least remain compatible with it, or face the consequences resulting from causing social crisis by interrupting the circuits of M…M’, circuits which simultaneously organise the production of, and access to, subsistence.
One way law maintains the valorization imperative is by facilitating the construction of the instruments for conducting the various transactions involved in the circuit: money, contracts, the employment relationship, rules for competition, and other forms of regulation that promote and stabilise market exchange. In addition, law has provided people with means of recourse for dealing with their problems under capitalist society and, as Critical Legal Studies has taught us, the outcomes of that legal recourse are indeterminate. Of course, CLS has tended to neglect that the outcomes are specifically indeterminate within capitalism: law offers a range of capitalism-compatible solutions to the problems of life under capitalism, and the only solutions legally permitted are capitalism-compatible. Historically, these solutions have often consisted in disciplining the aspirations of the working class through actions like the breaking of strikes, layoffs and plant closures, and the murder of dissidents, as historians like Chad Pearson and Sam Mitrani have demonstrated.5 Other, less frequent but no less consequential solutions have included bringing about revisions to capitalism’s institutional specifics, as with the creation and operations of the Factory Acts in England (as Marx analysed in the tenth and fifteenth chapters in the first volume of Capital), the creation of workers’ compensation laws, and the creation of changing regimes of labour law, as with the example of the National Labor Relations Act in the US in the 1930s.
Some of these institutional revisions have resulted from class conflict—conflict which has sometimes drawn on images, ideas, and expectations found in the law. Thompson celebrated these positive contributions of law to workers’ struggles—and everyone should, on humanitarian grounds (the question in the title of the old miners’ union ballad ‘Which Side Are You On?’ only ever has one acceptable answer, to the perpetual chagrin of neo-liberal so-called progressives). Thompson argued that law ‘afforded an arena for class struggle, within which alternative notions of law were fought out’. As a result of conflict in that arena, he said, ‘the law itself had been changed’ and made to restrain the powerful rather than only aiding the powerful in imposing upon their social inferiors. Thompson’s point was right but limited, failing to fully appreciate the degree to which struggles of this sort are struggles over the specifics of how capitalist social relations will be organised—not struggles to end capitalism, and failing to reflect sufficiently on how the former and latter relate.
Law is not a neutral reservoir from which the working class draws resources for mobilising itself. The law does, to a limited extent, offer such mobilising resources to the working class, for the sake of fighting out conflicts specifically within capitalism. In doing so, law simultaneously points the working class toward intra-systemic rather than counter-systemic mobilisations.6 These are struggles over how to live with the valorization imperative, rather than how to end that imperative, and one of their results—however complex, contradictory, underdetermined, what have you—can at least some of the time mean acculturating people to life under that imperative. Of course, for the foreseeable future, such conflicts are likely to be as good as it gets; and in these pandemic days (‘truly, I live in dark times!’), a widespread outbreak of such conflicts would be cause for great celebration. In the long term, however, either the working class ends capitalism, or social murder continues: a socialist future, or the relentless barbarism of our present, are the only two possibilities. Anyone who says otherwise is selling something.
The ongoing eventuation of the horrible possibility of the present continuing is constituted by law in a variety of ways, through its operations at every bloody level of society, operations best examined in close detail in the ways historians and social scientists excel at. Obviously, at times the workers’ movement and activists will find themselves in situations where they must act in and through formal legal institutions, and must draw upon the images and aspirations fostered by law. Being in that kind of situation is at best a necessary evil, in the sense of occupying a strategically undesirable position: in those situations, workers and activists are effectively in a defensive crouch. Bringing to fruition the morally urgent possibility of a communist revolution can only occur by leaving a defensive crouch in order to take actions including but not limited to the seizure of what is currently capitalists’ property and the refusal to obey the forces of so-called public order, actions which law will only ever oppose. To actively and in practice oppose the law is very high-stakes for the people who do so. The consequences of doing so are part of how law has kept the whole death machine going, so far.
I hope this clarifies what I mean by law as (hatefully) constitutive of the rule of the commodity, and what the stakes of the point are in my usage. As I said, I expect this disappoints. Sorry comrades. Some day being a communist will no longer mean being so familiar with the dialectic of hope and disappointment. Until then.
Nate Holdren is a legal historian of American capitalism. He holds a PhD in History from the University of Minnesota and is the author of Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020). He is proud to be an occasional contributor to Legal Form, the LPE Blog, and Organizing Work. He is employed as an Associate Professor in the Program in Law, Politics, and Society at Drake University.
1 I thank Liam McHugh-Russell and Matt Dimick for the initial conversations which led to my writing this essay, Dom Taylor and Rob Hunter for encouragement and commenting on an earlier draft, and Legal Form for continuing to provide a unique space for intellectual camaraderie.
2 EP Thomspon, Whigs and Hunters: The Origins of the Black Act (Harmondsworth: Penguin, 1975), 261.
3 Christopher L. Tomlins, Law, Labor, and Ideology in the Early American Republic (New York, NY: Cambridge University Press, 1993).
4 Tony Smith, Beyond Liberal Egalitarianism: Marx and Normative Social Theory in the Twenty-First Century (Leiden: Brill, 2017).
5 Chad Pearson, Reform or Repression: Organizing America’s Anti-Union Movement. (Philadelphia: University of Pennsylvania Press, 2016); Sam Mitrani, The Rise of the Chicago Police Department: Class and Conflict, 1850–1894 (Urbana, Illinois: University of Illinois Press, 2013); and Mitrani, ‘Stop Kidding Yourself: The Police Were Created to Control Working Class and Poor People’, Labor and Working-Class History Association, 29 December 2014.
6 Nate Holdren, ‘The Reproduction of Moral Economies in Capitalism: Reading Thompson Structurally’, in Research Handbook on Law and Marxism, ed Paul O’Connell and Umut Özsu (Cheltenham: Edward Elgar, 2021), 242–60.