I.
In his wonderful book, Injury Impoverished, Nate Holdren writes: ‘The rule of the commodity is in important respects, and perhaps entirely, legally constituted’.1 In his most recent Legal Form post, he expands on his meaning. There, he emphasizes strongly the limits of the law: ‘Law is not a neutral reservoir from which the working class draws resources for mobilizing itself, but rather in offering such mobilizing resources law simultaneously points the working class toward intra-systemic rather than counter-systemic mobilizations’.2 In maintaining capital’s imperative to valorize itself, the law should therefore earn our disfavour. Holdren says, ‘When I say, then, that law constitutes the rule of the commodity, I mean let us hate the law.’3
Holdren also refers to EP Thompson’s remarks on discovering, when writing his book Whigs and Hunters, ‘that law did not keep politely to a “level” but was at every bloody level’.4 Law is everywhere, and is deeply imbricated in society’s economic ‘base’ just as much as it is a feature of its legal and ideological ‘superstructure’.5 Property, contract, corporations, and other areas of law are important, perhaps essential, to the functioning of the economy. This is the way that I interpret ‘constitutive’ whenever I hear phrases like the ‘legal constitution of the economy’ or society or the commodity, and it is to this sense that I want to direct these remarks.
This notion that the law ‘constitutes’ the economy is associated with the well-known critical legal studies attack on ‘society-centred’ theories of the law. Summarized most forcefully, clearly, and elegantly in Robert Gordon’s ‘Critical Legal Histories’, critical legal scholars rejected the idea that the law is a ‘dependent variable’, functionally responsive to and causally explained by the ‘independent’ (and wholly dichotomous) variable of society’s ‘needs’.6 Depending on the preferred social theory at hand, these needs could be as varied as stability, maintenance of order, economic growth, or, ‘specific to a given stage of social or economic development’, capital accumulation or the preservation of ruling-class interests.7 Critical legal scholars responded with an alternative vision, one where the law ‘constitutes’ society, rather than society causally determining the law. Gordon writes:
[I]n practice, it is just about impossible to describe any ‘basic’ social practices without describing the legal relations among the people involved—legal relations that don’t simply condition how the people relate to each other but to an important extent define the constitutive terms of the relationship, relations such as lord and peasant, master and slave, employer and employee, ratepayer and utility, and taxpayer and municipality.8
The word ‘constitute’ is an interesting and slightly elusive word. Gordon and other critical legal scholars did not want to preserve the functionalist model they were attacking by simply reversing the direction of causality between externalized law, on the one hand, and society, on the other. ‘Constitute’ suggests something much deeper than mere causality. As Gordon’s usage of ‘define’ in the quoted passage suggests, to constitute something gestures at ontological, even metaphysical, implications.
The legal constitution of society is therefore far-reaching. But just how far does it go? When Holdren says, ‘The rule of the commodity is in important respects, and perhaps entirely, legally constituted’, what exactly does ‘entirely’ mean?9 When Gordon says that the law defines the constitutive terms of social relationships—when, in other words, the law provides the conditions of possibility for the existence of those relationships, not just the conditions for their causal interaction—is a non-legal sociality even possible? Here is the central point I want to make in this post. Given the role of law at ‘every bloody level’, it is fine to speak of the legal constitution of society, the economy, the commodity, or whatever. However, the deep nature of the meaning with which this concept is employed creates some dangerous illusions about the ability of law to address fundamental social problems. If the law is so pervasive as to make non-legal social relations an impossibility, then any response to inequality, white supremacy, patriarchy, capitalism, or other forms of oppression necessarily runs through the law. By contrast, if the law is a historically-specific social form, one that achieves its consummate if not exclusive expression within capitalist society, whatever good the law does necessarily also affirms that society. This post will use Adorno’s critique of Kant’s epistemology to show how we can rescue the genuine insight that the law constitutes society from the error of excess to which that insight is prone.
II.
The idea that the law constitutes society has at least a faint precursor in Kant’s discovery that our subjective consciousness constitutes the objects of our knowledge. Despite containing a kernel of truth—that everything external to, or independent of, our consciousness is mediated by that consciousness—the error that Adorno detects in Kant’s discovery is the implication that the subject entirely constitutes the object—without remainder. This section will briefly unpack Kant’s epistemology and explain why it has problematic implications.
Kant’s epistemology was a response to Hume’s ruthless empiricism. For example, when Hume tried to locate causality out in the ‘real’ world, he found nothing empirical about it. What we understand as causality is simply the constant conjunction of events. Any a priori causal ‘laws’ ascribed to nature are in fact merely a posteriori inductions we make after repeated observations that B habitually follows A. Causality is conventional according to Hume. Grasping its implications, Kant understood that Hume’s critique extended far beyond cause-effect relations, with similarly devastating implications for our ability to know anything about the world. Kant’s solution was to describe causality, and the universal constants of time and space, as categories existing in the mind rather than in the world ‘out there’. It is our consciousness that synthesises the objects of experience under a universal and necessary law of nature. ‘Thus, whereas Hume would say that causality is merely subjective, Kant would reply, indeed, it is merely subjective, but this supposedly subjective element is the necessary precondition without which objectivity cannot come into being’.10 It is our consciousness that constitutes our knowledge of empirical observations as objective (in the logico-mathematical sense) and that therefore makes our knowledge claims universal and necessary (a priori), not merely particular and contingent (a posteriori).
However, how and whether Kant successfully solved the problems raised by Hume are not our main concerns. Our main concern is the implication that Kant’s solution has for our understanding of knowledge and its role in society. In Adorno’s estimation, Kant goes too far in his solution, making an ‘idealist’ error, which in Adorno’s philosophy means claiming a subject-object identity. Not only are time, space, and causality ascribed to the understanding—to the mind or subject—but even our own experiences. The implication of Kant’s argument is that ‘the more that is inserted into the subject, the more the subject comes to constitute knowledge as such, then the more that determining factors are withdrawn from the object …’.11 The only thing left to the object is a chaotic mass, barely anything at all. Kant suggests that we have no direct access to empirical objects in the world, to ‘things in themselves’, but that we only experience them through our subjective ‘sense impressions’. In the subject’s creation of knowledge, barely anything is left of the ‘good old things-in-themselves.’ Perhaps they provided Kant with a ‘sufficient consolation,’ muses Adorno. ‘The only trouble,’ he adds, ‘is that this consolation is of the kind we generally feel at funerals.’12 The idea of ‘absolutely unknowable things-in-themselves … adds nothing to my actual knowledge.’13 This leads to the claim that our knowledge of the empirical world is entirely subjectively constituted—without remainder. Hence, subject and object become an identity.
Adorno is strongly critical of any sort of subject-object identity. Deborah Cook writes that ‘[i]n fact, the non-identity of concept and object could be described as the motor of Adorno’s entire philosophical enterprise’.14 ‘[D]ialectics says no more’, writes Adorno, ‘than that objects do not go into concepts without leaving a remainder, that they come to contradict the traditional norm of adequacy’.15 Adorno was similarly critical about identity-thinking in social analysis. Adorno would agree with Gordon’s critique of the positivist-functionalist model of law and society, as well as with Gordon’s claim that the economy and society are conceptually—even legally—constituted. But he would also exercise caution in taking the legally and conceptually constituted nature of society in an errant direction. For example, Adorno says that the division of social or individual needs into ‘natural and constant ones on the one hand, and those created by man [sic] and subject to historical change on the other’ is ‘bound to miscarry’.16 The reason for this inevitable error, says Adorno, is that ‘this distinction is produced entirely by the process of classification and is, as such, abstract. Needs cannot simply be divided in this way, because society itself cannot be divided into needs without remainder’.17 Our attempts at classification, to subsume particulars under universals, does violence to the objects of our analysis by assuming that the universal (subjective) concept can fully and adequately “stand in” for these objects.
Why does Adorno believe such ‘identity thinking’ is problematic? The idea that human thinking can thoroughly subsume objects under our concepts encourages the illusion of human mastery over inner (human) and outer (non-human) nature. The implications of this error can be tragic, as Deborah Cook affirms in her book on Adorno and nature. The natural sciences of Kant’s day informed his philosophy. ‘This knowledge has as its only criterion the fact that it works—and that it does so because it renounces any attempt to make any statement about the nature of things, and about what things really are.’18 Knowledge of the world is reduced to its functional relations, and fact is fully separated from value. This functional or positivist view of knowledge is connected to its subjectivisation in Kant’s epistemology: ‘[T]he sciences can be said to have achieved a real dominance over the world only when they renounced the attempt to gain knowledge of anything apart from what is accessible to human organization and human shaping’.19 Thus, the sciences emerged and were justified by, and have ever after been bound up with, an instrumentalising approach to nature. Capitalism and industrialization were built on the ruthless exploitation of nature (human and non-human). Now, as climate change deepens and worsens, humanity prepares to reap what it has sown. Under a view of knowledge that claims to thoroughly subsume objects under subjective concepts, ‘nature has been thoroughly humanized’, writes Cook, ‘it has been subsumed without remainder under concepts, and transformed into ‘a mere object of human control’.20
III.
Adorno detects deep social roots for Kant’s epistemology. Kant does not pluck his theory of knowledge out of thin air. In addition to being a conversation within philosophy, Kant’s epistemology is socially situated. It should not surprise us therefore that views similar to Kant’s would appear in other branches of knowledge and practice—such as the law and legal theory. This section will argue that the view that the law constitutes the economy and/or society is analogous to Kant’s view that the subject constitutes knowledge, with the same problematic tendencies.
I will make this argument by interrogating an example that embraces the legal constitution of society, without remainder, and demonstrate how it motivates a (particularly) instrumentalist idea of the law. The notion that the social world is irreducibly legal is widespread among legal scholars and, I would venture, is once more returning to prominence in the emerging field of ‘Law and Political Economy’. This subfield shares a lot of overlap with the (older) legal realism. This is especially true for a—perhaps the—central claim of both: that the economy is legally constituted.
Robert Hale remains a classic source for this view.21 Rather than the economy being a realm of freedom and choice, Hale argued that it was constituted—all the way down—by law and coercion. Careful scrutiny, Hale said, ‘will demonstrate that the systems advocated by professed upholders of laissez-faire are in reality permeated with coercive restrictions of individual freedom…’22 Hale uses the example of an ‘owner’ (who controls a portion of the means of production) and a ‘worker’ (someone who has nothing to sell but their labour-power), interacting either through a consumer relationship (the worker buying a bag of peanuts from the owner) or an employment relationship (the worker selling their labour-power to the owner). In a manner similar to Marx, Hale observes that the worker doesn’t really have the choice not to work. If the worker refuses to comply with the employer’s terms, the worker either goes without wages or submits to the terms of some other employer. If the worker refuses to work for any employer, they must find food to survive—they own nothing but their labour-power. But any food ‘which actually exists in the community’ is protected by the law of property, and the worker is legally forbidden from consuming it, unless secured by an exchange of money.23 Land, machinery, and raw materials with which the worker could produce their own food or produce goods in exchange for money (which can then be used to purchase food) are likewise protected by the law of property. Hale concludes, ‘[T]he law compels [the worker] to starve if he has no wages, and compels him to go without wages unless he obeys the behests of some employer. It is the law that coerces him into wage-work under penalty of starvation…’24
I find Hale’s account problematic on a number of levels. First, he exploits the ambiguity in the word ‘force’ to lodge a misplaced attack at Thomas Nixon Carver, whose book, Principles of National Economy, he reviews in his essay.25 He interprets Carver as saying that the law of property merely prevents ‘the non-owner from using force against the owner’. Hale says that this conclusion is ‘obviously at variance with the facts’.26 Any interference with the owner’s property is forbidden, whether it involves any force and violence or not. Hale’s response is meant as a refutation of libertarian theory. Hale’s inference is that the law will coerce even when there hasn’t been any violence on the other side, and that the libertarian therefore introduces coercion even where supposedly unwarranted by its own theory. But this badly misstates the libertarian view. The libertarian view says that the law only forbids non-consensual takings of property or other forms of interference. Whether property is stolen with or without violence is morally inconsequential to the libertarian, broadly speaking. Moreover, non-consensual but non-violent takings are at least as coercive under any sense that Hale uses that term, which is decidedly broad. It therefore turns out, in the libertarian view, that the law does indeed only coerce when there has been coercion on the other side. As a result, none of Hale’s arguments do anything at all to reveal a fatal, logical contradiction in the libertarian criterion of consent.
Nevertheless, we may agree with both Marx and Hale that the nature of consent in the exchange society is rather fictive—particularly with respect to the state of the worker that both writers highlight. The libertarian criterion of consent may be logically airtight, but it wants for substantive, moving persuasiveness. Despite the worker’s formal consent, there is a great deal of compulsion in the employment relationship. But even here, Hale’s analysis is more obscuring than edifying. In fact, Hale exploits the ambiguity in the word ‘coercion’ to make his claim stronger than it actually is and, in doing so, encourage the false notion that society is constituted by law ‘without remainder’.
Take a closer look at Hale’s conclusion that it is the law that compels the worker to starve if they have no wages, that compels them to go without wages unless they obey the employer, and that coerces them into wage work under penalty of starvation. Is this true? Consider the possibility that the worker, defying the tyranny of the employer class, accepts the fate of death by starvation because they refuse, according to the strict dictates of their own conscience, to take the food or property of another non-consensually. Or, think of the swelling ranks of the homeless who neither work nor take property non-consensually and depend wholly on the generosity of others. At no point does the law intervene in such cases to compel the person to work for an employer (of course, the law may coerce in other ways and for other reasons). Contrast these scenarios to that of the serf or slave. If the serf or slave refuses to work, more than starvation is at stake. They are also subject to the legally sanctioned discipline, up to and including physical violence, of the sovereign or their master. Thus, the serf or slave is legally coerced to work in a way that the ‘free’ wage labourer is not.
This is not to say that the workers under capitalism are neither coerced nor face the force of law at every turn. It is rather to point out the ambiguity in the way that Hale uses the word ‘coercion’. Does coercion refer to the violence applied by legal officials or does it also refer to the compulsions of one’s one bodily needs? Workers under capitalism labour under the ‘dull compulsion’ of the market—the threat of starvation. Serfs and slaves labour in addition under the direct, legally-sanctioned compulsion to work. The distinction is important precisely because it shows that the compulsion facing the worker is not legally constituted without remainder. The coerced form of work under capitalism is premised more on the ‘natural’ compulsion of biological (and social) need and want than it is on the ‘artificial’ compulsions to work found in antiquity or feudalism. Hale makes no distinction between these sources of coercion, leading to the erroneous conclusion that ‘the law’ is the final and ultimate source of compulsion—that the law constitutes the economy, without remainder.
Because of this erroneous conclusion, Marx and Hale draw dramatically different implications from the compulsive nature of work, despite their similarities on that premise. Following in the German tradition of Kant and Hegel, freedom is at the centre of Marx’s politics. According to Barbara Fried, Hale’s politics is also centred around freedom.27 However, Hale holds a positive conception of freedom that, despite some superficial similarity with Marx, sacrifices much for modest returns. Hale rejects the classically liberal concept of negative freedom, ‘freedom from’ external constraint or interference. Instead, he embraces a positive freedom, a ‘freedom to’ based on the claim to fairly distributed resource shares.28 In taking an either-or approach to negative and positive freedom, positive freedom comes at an enormous price. In fact, freedom is ultimately devalued in favour of an equality of material resources. Unlike Marx, Hale is indifferent to the fact of coercion in economic and political life. For example, Hale writes, ‘let it be kept in mind that to call an act coercive is not by any means to condemn it. It is because the word ‘coercion’ frequently seems to carry with it the stigma of impropriety, that the coercive character of many innocent acts is so frequently denied’.29 Coercion is just an everyday fact, emptied of any normative content. Thoroughly positivised in this way, coercion is now safe to be instrumentalised by the law to achieve any desirable social end—no matter the individuals or other needs that are subordinated to those ends.
These misgivings about Hale’s conception of ‘positive freedom’ do not imply that we should embrace the simplistic, libertarian conception of negative freedom. That said, as an expansion of the state’s police power and its technocratic rule, the administrative state is condemnable on an everyday notion of freedom. But as the form that the regulation of social relations takes under capitalism, as a necessary expression of everyone’s market dependency in the exchange society, law affirms the domination of capital. This is the reason that the law, as Holdren says, ‘points the working class toward intra-systemic rather than counter-systemic mobilizations’.30
Certainly, the law plays an essential role in constituting capitalist society. But to believe that the law is a universal and necessary feature of any society—to raise it, in other words, to metaphysical proportions—leads to the same presumptions of mastery and domination as any other sort of identity thinking. Surely the law has ever been a tool for managing, controlling, and dominating society, proletarians, subalterns, and others. But particularly since the legal realist revolution, the law has been simply taken for granted as the indispensable tool of technocratic rule and social management, even when exercised in the (putative) interest of the common good.31 This is not the positivist theory of law that the critical legal scholars rejected, where the law is merely the functional response to society. But it is a species of functionalism nonetheless. Law is a ‘fact’, emptied of normative content, and should be an instrument used to achieve social ends of various kinds, ends to which the law is itself external and indifferent. If law is not merely a functional response to society, law remains an instrument—the instrument par excellence—for social control and regulation.
Another way to speak about this instrumentalist conception of law, law as a means toward achieving certain ends, is in terms of values. This is a substantive rather than a formal conception of law. Those values can be industrial democracy in the case of labour law or sustainability in the case of environmental law. The problem is that given the particularistic nature of each of these values or ends, how or by whom are they made commensurate? Values are like goods, which, as in the market place, are necessarily ranked and traded off against one another. In a market society, it is not difficult to anticipate how these values will fare. Time and again, we see these laudable goals—the protection of workers or the environment—succumb to other competing ends. We think that by calling these rights substantive, they have a force and durability that surpasses the limited, formal conception of rights of classical liberalism. Instead, we are left with a set of goods or values that, like goods exchanged in the market, are ultimately limited, partial, and traded off against other competing values and ends. Often these ends are those of the exchange society itself: profit, money, growth, calculability. I do not have the space to fully develop the argument, but I suggest this outcome cannot be otherwise in an exchange society.32
IV.
There is no dispute that the law constitutes society, its economy, polity, and so forth, at a deep level. The law is not merely a functional response to more ‘fundamental’ social imperatives, whether those imperatives be social order or the interests of the ruling class. But in giving the law such ontological depth, we should avoid ontologising the law as a necessary universal of society. The subjective understanding constitutes our knowledge, by synthesizing the objects of experience according to universal laws of nature. But it does not do so without remainder. Likewise, the law does not constitute society without remainder—as if economy and society were always and everywhere wholly legal. In forgetting this, the constitutive approach to law and society abdicates its critical function to point beyond a society of domination, coercion, and law.
Matthew Dimick is Professor of Law at the University at Buffalo.
1 Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge: Cambridge University Press, 2020), 6 n 12.
2 Holdren, ‘Hatefully Constitutive’, Legal Form, 4 July 2022.
3 Holdren, ‘Hatefully Constitutive’.
4 Holdren, ‘Hatefully Constitutive’.
5 For one interpretation of the ‘base-superstructure’ metaphor, see Matthew Dimick and Dom Taylor, ‘More Depth, Less Flatness: Marx’s Negative Ontology of Social Totality’, Legal Form (18 April 2020).
6 Robert W. Gordon, ‘Critical Legal Histories’, Stanford Law Review 36 (1984), 57.
7 Gordon, ‘Critical Legal Histories’, 61.
8 Gordon, ‘Critical Legal Histories’, 103.
9 Holder, ‘Hatefully Constitutive’.
10 Theodor W. Adorno, Kant’s Critique of Pure Reason (Cambridge: Polity Press, 2001), 91.
11 Adorno, Kant’s Critique, 115
12 Adorno, Kant’s Critique, 129.
13 Adorno, Kant’s Critique, 129.
14 Deborah Cook, Adorno on Nature (London: Routledge, 2011), 13.
15 Theodor W. Adorno, Negative Dialectics, trans EB Ashton (New York: Continuum, 1973), 5, quoted in Cook, Adorno on Nature, 13.
16 Theodor W. Adorno, ‘“Static” and “Dynamic” as Sociological Categories’, trans H. Kaal, Diogenes 9, no 28 (1961), 32.
17 Id.
18 Adorno, Kant’s Critique, 134.
19 Adorno, Kant’s Critique, 135.
20 Cook, Adorno on Nature, 23.
21 Robert L. Hale, ‘Coercion and Distribution in a Supposedly Non-Coercive State’, Political Science Quarterly 38 (1923), 470.
22 Hale, ‘Coercion and Distribution’, 470.
23 Hale, ‘Coercion and Distribution’, 472.
24 Hale, ‘Coercion and Distribution’, 473.
25 Thomas Nixon Carver, Principles of National Economy (Boston: Ginn and Company, 1921).
26 Hale, ‘Coercion and Distribution’, 471.
27 Barbara Fried, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement (Cambridge, Massachusetts: Harvard University Press, 2009).
28 Fried, The Progressive Assault, 40–47.
29 Hale, ‘Coercion and Distribution’, 471.
30 Holdren, ‘Hatefully Constitutive’.
31 For a well-known exposition of the legal realist ‘functional approach’ to law, see Felix S. Cohen, ‘Transcendental Nonsense and the Functional Approach’, Columbia Law Review 35, no 6 (1935), 809.
32 For this reason, Kant thought one could not build a system of morality on particularistic ends. Instead, only a system of non-instrumental, obligatory duties could count as an adequate system of morality. But even a system of rights, enforced by law, which putatively serves no goal other than individual human dignity is not up to the task. The market itself, to which the birth of legal rights is joined, appears to serve no end. But in capitalism, markets, and hence the system of rights which protect and maintain them, also have a particularistic end: the valorization and accumulation of capital.
Legal Form 