The relationship between constituent power and political founding is one of the most intricate problems in contemporary political theory. Simply put, it is the question of the basis on which we can consider a given political and legal order to be legitimate. In its most general form, the paradox is that an existing constitutional order cannot justify its own origins, since the space of legality that it enacts only becomes possible after the fact of an extra-legal founding moment.
This post will consist of some very preliminary thoughts, amounting to the first steps in a larger project. I begin by discussing three questions central to the theme of revolutionary jurisprudence. I then sketch three socialist or revolutionary strategies that have traditionally been adopted in relation to the question of law, and I draw out the implicit concepts of law that unite these strategies. I subsequently attempt to sketch a fourth strategy that is capable of being reconstructed from the work of Giorgio Agamben. Finally, I provide an example of a revolutionary jurisprudential action that follows from this fourth strategy.
A certain homology may be observed between the constitutive role of crisis in capitalism and the place of crisis within the practice of constitutionality. Indeed, the state of crisis is a regular, recurring, and unavoidable aspect of constitutionalism. Mainstream discourses of constitutional crisis tend to imagine that constitutional orders possess social teloi that they pursue smoothly on their own terms. But constitutionalism is not a homeostatic social machine; it is a technology of rule.
In a couple of previous posts on Legal Form, Rob Hunter has reminded us of the importance and aptness of a Marxist approach to the analysis of public law. Hunter's intervention could not be more timely: even after the economic and financial crisis, and despite the comeback of Marxism as a relevant intellectual source at least within certain legal domains (think, for example, of international law), there has not yet been a Marxist revival in constitutional studies.
Harring seems to believe that race is an immutable property that precedes racism. Yet on my reading, much of what he considered class identification and the process of class management, to use Monkkonen's term, was racial. I would reverse the dictum Stuart Hall first developed in Policing the Crisis: in the historical situation of policing a class society 140 years ago, class was the medium through which race was lived.
The class struggle approach insisted that the police, even when breaking strikes, were constrained. A key constraint was the delicate balance of state legitimacy. Too much force, and it would be imperiled among workers. Too little, and the same would be true, but among industrialists.
Sidney L. Harring's Policing a Class Society from 1983 should be considered a classic. A rare avowedly Marxist history of policing in the United States, it offers something many readers crave. Now republished by Haymarket Books, with a stirring new introduction, it raises fundamental critiques of policing in the United States that differ from those driving present-day mobilizations.
Settler colonialism can pose a dilemma for Marxists, especially for those committed to a state that is steered by "the people". Private property may be theft, but when sovereignty is also theft, how can the state be an agent of emancipation?
The language of human rights is under fire on the right and the left. While right-wing authoritarian leaders frame civil rights and anti-discrimination agendas as the exclusive concern of cosmopolitan elites, left-wing critics have argued that the human rights movement has ignored economic inequality and legitimised military interventions that further neoliberal ends.
It is well known that Marx and Engels never produced a comprehensive theory of law, rights, or the state. At least nothing on a par with the critique of mainstream political economy in Capital and elsewhere. That said, issues of law, rights, and the state were not completely neglected in their works.
Christopher Tomlins, Elizabeth J. Boalt Professor of Law at the University of California, Berkeley, has authored a new paper on Marxist histories and historiographies of law, past, present, and future.
This interview with Nicos Poulantzas first appeared posthumously in Rinascita (no. 39), the journal of the Italian Communist Party, on October 12, 1979, a mere nine days after his untimely death. Although no date for the interview is provided, it is likely one of his final statements.
This post focuses on constitutional theory as an appropriate site of concern for Marxist legal inquiry. I sketch some of the contradictions inherent in liberal constitutional theory, and also gesture at the distinctions that can be drawn between Marxist and liberal analysis of constitutionalism.
Gramsci's concept of hegemony can be understood as the ability to infuse the values of the dominant social group into the minds and everyday lives of subaltern groups in order to secure their spontaneous consent.
Human rights are "the doxa of our age". An idea, practice, and vocabulary which impacts every sphere of moral, philosophical, political, legal, and sociological enquiry. As such, we cannot ignore human rights.
In the field of critical international law, few figures who have attempted to transform the discipline's imaginative horizons have proven as influential as Martti Koskenniemi.
The ongoing general crisis of global capitalism has highlighted the work that needs to be done to uncover the role of law in the creation, management, and perpetuation of capitalism’s “constitutive crises”.
This post concerns the bourgeois state. Let me begin with a general point with regard to Marxist analysis, particularly the dialectical unity of theory and praxis.
In the aftermath of the 2016 presidential campaign and the dramatic defeat of an avowedly feminist Hillary Clinton to a demonstrably misogynistic Donald Trump, many have called into question the future of feminism.
In 1859 Marx stated that he intended to examine "the bourgeois economic system in this sequence: capital, landed property, wage-labour; the state, foreign trade, world market". But he was unable to write his analysis of the state.
Couching Trump as a "lawless" autocrat-in-the-making has become a matter of routine, something of a mantra repeated by "liberals" and "conservatives" alike. The trouble with this characterization is not that it is inaccurate, but rather that it is incomplete.
Law here, law there, law everywhere. The first nine months of the Trump administration have thrust questions about the force of law, legal strategy and tactics, and the role of judges in the United States' much-vaunted system of constitutional checks and balances to the fore of public attention.
Although Nicos Poulantzas is rightly regarded as one of the most innovative Marxist theoreticians of the state, most analyses tend to focus on his account of the relative autonomy of the capitalist state in the organization of the hegemonic bloc of the capitalist class.
Antonio Gramsci can be credited with having developed and elaborated in an original way the concept of hegemony to describe not control and domination exerted by coercive force but intellectual and moral leadership resulting in control that is anchored in consent.
The institutional forms of a capitalist state--its courts and prisons, its agencies or ministries, its regulatory apparatus and administrative procedures--are given articulation through law.
As critical international lawyers have long pointed out, the relationship between international law and capitalism tends to assume a fundamentally dialectical character.
For most of its history, the Marxist tradition as we know it has lacked a single unified theory of the state. In large part this state of affairs can be explained by the somewhat contradictory legacy left by Marxism's two main founding figures.
In one of the most easily Google-retrievable texts on the Marxist theory of the state (MTS), a 1999 essay written for an edited volume entitled Marxism and Social Science, Colin Hay, a former student of Bob Jessop, remarks that "Marxist state theorists--unlike, say, their feminist counterparts ... --have rarely been called upon to offer … justification for their theoretical endeavours".