Matthew
Dimick
It’s
a wonderful opportunity to discuss Jeremy Kessler’s “Law and Historical
Materialism.” The occasion signals a willingness to reconsider Karl Marx’s
ideas for our understanding of the law. We’ve been in this place before.
Earlier in its career, critical Legal Studies (CLS) had some well-known
flirtations with Marx and Marxisms of various stripes. Nevertheless, CLS came
to represent a critique of Marxism as much as it did of mainstream, liberal
legal thought, along with other intellectual trends of the time. At a time of
rebirth for critical legal scholarship, Kessler’s “Law and Historical
Materialism” comes as a welcome, even overdue, contribution. One wonders what
the outcome will be this time. Will contemporary legal theorists embrace or
reject Marx?
On
one level, I am in total agreement with Kessler. I find Marxism to be the only
adequate account capable of satisfying the three criteria that Kessler
(following Sam Moyn) identifies as the desiderata of any critical legal theory.
Such a theory must address the functional underdetermination of law, the
interpretive underdetermination of law, and why the law, despite our best
efforts to do otherwise, tends to reproduce the social and economic
inequalities of our late capitalist world. This, I believe along with Kessler,
Marxism does.
Kessler’s
article gives us a rich trove of concepts and ideas worthy of serious
discussion and debate. Unfortunately, I must limit myself to one critical
point. One goal of Kessler’s paper is to answer the challenging question of the
relationship between law and capitalism (or mode of production, or whichever
Marxist starting point you prefer). To shape his answer, Kessler turns to G. A.
Cohen’s functionalist interpretation of historical materialism found in his
inimitable Karl Marx’s Theory of History.
In this post, I offer a critique of Cohen’s functionalist account of law and
capitalism and suggest an alternative answer to the problem. I will call
“ideology” this alternative relationship between law and capitalism. Many in
CLS also turned to ideology as a way to link law and, if not capitalism
specifically, then dominating or oppressive social structures more broadly.
However, the model that CLS began with (and also criticized) is also flawed. I
identify the flaws in this model, which I call the representationalist model of
ideology, and articulate what I understand as Marx’s alternative. The post
concludes using a brief example from labor-law scholarship to illustrate Marx’s
theory of ideology and its connection to the legal form (where my agreement
with Kessler is complete).
Cohen’s
interpretation of Marx stands or falls with his commitment to functionalism and
the “autonomous” drive of the development of productive forces. However, given
the importance of his commitment to that claim I am, unsurprisingly, not the
first to critique it. I will therefore spend relatively less space on the
critique of Cohen’s functionalism and give more space for my thoughts on
ideology, which, I hope, is the more original contribution to the question of
what links capitalism and legal change, and one that I hope to explore in
future writing.
Law and
Capitalism, Take 1: The Functionalist Approach
Kessler’s
article is deeply indebted to G. A. Cohen’s well-known “analytical Marxist”
interpretation of Marx’s historical materialism. While once sympathetic to that
formidable work, I have now come to see it as a deeply flawed interpretation of
Marx. Most problematic in Cohen’s interpretation is the functionalist
foregrounding of the so-called productive forces. By contrast, there is little
question in my mind that Marx’s critique of political economy in Capital revolves around the problem of
an “alienation” of human productive capacities. In capitalism, according to
Marx, humans and technology switch places, so to speak. This happens through
the social relation of capital. The productive forces, putatively meant to
serve varied and diverse human needs, instead come to serve the end of capital
accumulation with humans, especially the working class, reduced to the
instruments of that end—chewed up, dehumanized, treated as so much fungible raw
material. By designating the productive forces as the telos of history, Cohen’s version of Marx comes much too close to
the kind of society that Marx abhors. For, if the end of history is the
development of the productive forces, the sacrifice of human lives can always
be defended as a necessary means to that historical inevitability. (If one
needs an example, think of the forced industrialization of Joseph Stalin’s Soviet
Union.)
Besides
this global criticism, Cohen’s functionalism creates some particular problems
for Kessler’s account. These problems arise in the discussion of the functional
underdetermination of law. The problem of functional underdetermination, as Kessler
explains, is that “[r]ather than transparently reflecting and reliably
reproducing the social … organization of a given society, law at times seem[s]
to be out of joint with its social and economic context, sometimes even working
to destabilize rather than entrench prevailing social and economic hierarchies”
(24). For example, perhaps a capitalist state will pass pro-labor legislation
that cuts into profits and slows down capital accumulation. Or, pre-capitalist
inheritance laws persist despite the fact that these rules frustrate the most
profitable allocation of land. Because such laws do not serve the developmental
imperatives of the productive forces, they appear to be “functionally
underdetermined” by the material conditions of capitalist society.
Kessler
provides several reasons why historical materialism can account for this
functional underdetermination. First, he argues that what historical
materialism requires is that legal relations be determined by society’s
material structure at a certain point in time, not necessarily by the material
structure of the present society. For this reason, “legal relations are
habitually laggard” (25). Moreover, legal relations do not exist in isolation,
but within a complex network of other social relations, and these too will
shape the character of legal change. In addition, legal relations are
conditioned by “non-functional determinations,” which include the geographic,
ecological, and cultural characteristics of a particular society (26). Further,
the primacy of human labor power within the productive forces also explains
historical materialism’s functional underdetermination. Human labor power is “a
complex physical, mental, and communicative process that responds to non-human
nature … with creativity, spontaneity, and even irrationality” (26). Such
creativity, spontaneity, and irrationality are important sources for the
direction and pace of changing social relations, legal relations included.
Finally, as human labor power develops so too does human thought and
communication, which in turn shapes the communicative complexity of social and
legal relations.
I
think these answers, as fair as they are, create some substantial problems for
the functionalist account of historical materialism. On the one hand, they
prove too much. With a list as long and broad as Kessler adduces, one wonders
if we have crossed the line from functional underdetermination to functional
indetermination. The possible occasions and reasons for which legal rules do
not conform to the imperative of productive-force development begin to look a
lot like the CLS indeterminacy that historical materialism is supposed to
avoid. The answer to this concern, presumably, is that “on average” or
“ultimately” legal change does favor the development of the productive forces.
But then much of the proximate legal change will be incidental, unintended, or
secondary to its “ultimate” consequence, in which case we have
underdetermination not in the sense of counterfactual expectations, but in the
sense of an unsatisfactory explanatory deficit. We should expect more of
historical materialism. We want historical materialism to help us understand
the proximate, not just the ultimate, reasons for legal change.
On
the other hand, when we turn to the possible sources of proximate
change—factors that Kessler identifies, such as the complex network of other
social relations or the non-functional determinations of geographic,
ecological, and cultural characteristics—one worries whether we have left
historical materialism altogether. Skeptics of historical materialism will not
recognize most of those factors—especially when we get into issues about race,
gender, or sexuality—as falling within the ambit of historical materialism. I
believe there are genuinely Marxist, or historical materialist, ways of
understanding these issues, but that must be demonstrated before they can avail
the analyst. The problem, then, is that one cannot simply give a
Marxist-flavored label to this huge range of social and cultural practices and thereby,
with the wave of a wand, conscript a great deal of social analysis into
historical materialism’s mission.
These
problems, I want to insist, are a product of Cohen’s functionalist
interpretation of Marx. As one of my dissertation advisors liked to say, functional explanations are
problematic “because they are too easy to make, they are often facile, they are
hard to prove or disprove.” (My advisor was nevertheless a habitual
functionalizer.) In short, functional explanations are poor explanations. They
raise too many questions (e.g., indeterminacy) and leave the actual, proximate
explanation of the effect, causal or otherwise, unaccounted for. Kessler falls
back on Cohen’s defense that functionalist explanations provide the “why”
answers, where the more granular, causal explanations provide the “how”
answers. But I think I’ve already given two reasons why that’s not a
satisfactory answer. For one, I believe this response is really a tacit
admission that Cohen’s functionalist account of social and legal change has
little to offer in the way of explaining and understanding actual, concrete
legal change. More fundamentally, I simply think the idea that legal change
happens because it is functional for the development of productive forces is
wrong, both as a theory and as a depiction of how Marx consistently thought
about these problems.
Law and
Capitalism, Take 2: Ideology as Representation versus Expression
What
the functionalist account wants to do is link capitalism to legal change. This
in turn is how Kessler tries to satisfy the third criterion of a critical legal
theory: the law’s persistent role in reproducing social hierarchies. If Cohen’s
functionalism comes up short, however, we need another way to link oppressive
social structures—capitalism or what have you—to legal outcomes. In the rest of
this post, I will focus on one candidate for this linking role: ideology.
CLS
faced a similar challenge in trying to link oppressive social structures with
legal change. Many in CLS also settled on ideology as a way to solve this
problem. But CLS began with a defective model of ideology, which I will call
the representationalist account of ideology. The following briefly articulates
the representationalist account of ideology and its deficiencies. After that, I
will propose an alternative theory of ideology, based on Marx’s critique of
capitalism. I note that CLS authors acknowledged and addressed many of the
shortcomings of the representationalist theory, so I do not want to suggest
that CLS embraced this account naively or finally. The problem, however, is
that in revising the representationalist account, the CLS theory of ideology
lost its ability to do what it set out to do—to explain legal decision-making
in terms of oppressive social structures, such as class or racial domination.
In other words, the CLS account of ideology lost its critical edge. That story
requires a much longer telling, but I hope its outlines will become evident in
the following.
Representationalist. I call this theory
of ideology representationalist because it implicitly assumes a certain idea of
knowledge or the conceptual. (“Representationalism” carries a lot of weight
here. If I were writing in a different forum, I would use finer distinctions.)
Representationalism is the idea that concepts merely serve to passively reflect
reality, like a mirror. The representationalist account trades on this idea
either because there just are no moral (or metaphysical or religious)
properties or facts about the world and therefore nothing to represent. (Moral
or ideological claims are therefore worse than false, because they are not even
candidate claims for being either true or false.) Or because ideology
represents a false picture of, distorts, or obscures social reality, reality
being groups’ struggle for the dominance of their interests. Hence, the
“reality” of legal rules, or interpretations of those legal rules, is that they
serve the interests of “the dominant group.” Given that these interests are
simply given, even pre-social—de gustibus
non disputandum est—this “fact” would be apparent to simple observation but
for the obscuring role of ideology. In either case, it is assumed that the sole
purpose of language or concepts is to represent the reality of the world;
reality is represented wrongly, but it is wrong precisely because it misrepresents. And when the exclusive use
of language and concepts is to represent something, ideology then gets
construed as conflicts over representation, with the implications of truth and
falsity that that model implies—that is, is the representation, or mirror,
accurately reflecting the “reality” of the world, social or otherwise?
This
representationalist framework produces an unbearable psychological burden.
Adjudication, for example, presents an extremely important site for ideological
work because of the indeterminacy of legal rules and legal reasoning. But as
ideology, adjudication in the representationalist perspective can never be
anything other than more-or-less conscious bad faith. Judges write their
decisions in neutral and universal language but are deliberately obscuring what
adjudication is really doing, which,
in the strongest version, is acting on behalf of a dominant class, racial, or
gendered interest. Of course, this strong view has been routinely denounced
from almost all quarters as little more than conspiracy theory. The most
popular way out of this dilemma is to retreat from the idea that ideology has
anything systematic to do with imposing dominant group interests. Ideologies
instead are just worldviews, philosophies more-or-less coherent, sets of
beliefs and principles, and the analyst suspends judgment on whether these
ideologies have any grip on some more fundamental truth or reality. This
response begins a slide into sociology: not only is ideology what any group,
dominant or subaltern, does to wage its war of ideas, but we take an entirely disinterested
view about the “truth value” of these ideologies. Of course, in doing so
ideology critique loses its critical stance, for there is no falsity left to
challenge.
Ahistorical. The
representationalist theory of ideology is also ahistorical. Its presentation
begins with foundational elements like “interests” out of which “groups” are
formed based on shared or common interests. And because interests are by their
nature particular, group interests give rise to group conflict. Ideology enters
when groups seek to universalize their interests. That is, when a dominant
group, in Marx’s words, “represent its interest … as the
general interest.” This is the representationalist theory’s explanation for
where ideology comes from: one group presents its own interests as the
interests of everyone, thereby securing its dominance.
These
ingredients are ahistorical because they purport to be general. Descriptions in
terms of interest are good for any society, in any place or time. We can
analyze ancient Egypt, Qin Dynasty China, or medieval European society—their
conflicts and crises, their ideologies and politics, their family structures
and sexual mores—in terms of interests, groups, and conflicts. Of course, the
concrete expressions of these interests, in cultural artifacts or legal
institutions, will vary according to time and place. But it is the method that
is ahistorical, not the results or forms of its application. The jettisoning of
history is essential, for it is history, as we will see, that makes it possible
to overcome the representationalist problem of bad-faith consciousness
identified previously.
The
representationalist model’s ahistoricity and generality then complete the slide
into a sociological account of ideology. Every group, dominating or dominated,
has a distinct set of interests and each group seeks to “universalize” their
own particular interests. But no claim is or can be made about the quality,
goodness, or rightness of any particular ideology. The perspective on ideology
becomes essentially a disinterested, third-person perspective—neutral, even
objective, if you will, despite the analyst’s own, even admitted, subjective
preferences. However, this general standpoint simply undercuts any possible
ideology critique before it gets off the ground. A critical legal analysis cannot be a disinterested one, hence the
familiar insistence by critical theorists on an immanent critique. The representationalist model cannot do this
because it presumes that all groups have interests that they seek to
universalize vis-à-vis competing groups. In short, ideology gets reduced to a
sociological account of contending worldviews, competing ideas in the marketplace
of ideas.
Functionalist. Last, but not least,
the representationalist theory of ideology is functionalist. Most legal
scholars are familiar with functionalism from accounts that explain legal
change in terms of extra-legal social or economic ends or objectives. In a
functionalist explanation of law, the analyst imputes certain effects or
consequences to society or social processes (for example, the development of
productive forces), as the objective to which legal rules tend to conform.
Often, the criticism was (and is) that by presupposing a kind of “homogeneity”
in the social end—economic growth, stability, or whatever—functionalism
sidelines or dismisses the much more indeterminate outcomes of social conflict.
Critics also attacked the model for taking an instrumentalist view of law, one
which obscures other important features of law, including the way law
constitutes society and in other ways gives form and meaning to social life.
But
to be functionalist, functionalist arguments don’t need to play out at the
macro or supra-individual level. In fact, Art Stinchcombe long ago identified intentional explanation as the
“commonest kind of functional explanation in everyday life:” the chicken
crossed the road because it wanted to
get to the other side. More broadly, therefore, a functional explanation is one
in which the consequences of some behavior, legal rule, or institution are
essential parts of the causes of that behavior or institution. The
representationalist account of ideology falls comfortably within this
description. Even for CLS, perhaps the definitive effect of ideology is
legitimation. And, not surprising, legitimation, as more-or-less intended
effect, is one of the essential elements for the cause of ideological behavior.
Thus, as we’ve described it, dominant groups seek to universalize their
interests, to present their interests as the interest of society as a whole.
They do this because they believe such universalizations will win over the
consent of dominated or subaltern groups. Hence, the account is functionalist:
legitimation (consequence) is one of the causes of ideological behavior.
The
representationalist model of ideology places a psychological burden on the
ideological speaker, but also on the listener as well. The account necessarily
takes a dim view of people’s rational capacities to contest a false picture of
reality. This is a problem, one only exacerbated by representationalism’s view
of truth. If the motivation for behaving ideologically is to legitimize the
dominant group’s interests at the expense of everyone else, the premise of the
representationalist model is that ideology works and that it works because
people are primarily dupes.
***
The
representationalist theory of ideology just described is by now easily
dismissed. Most scholars, not least CLS scholars among them, came to reject
this representationalist model of ideology. Tracing these responses and debates
would require a separate paper of its own. Two points should suffice for now.
First, the representationalist model still forms the starting point for both
yesterday’s and today’s discussions. Second, and partly for that reason,
theories of ideology that respond to the representationalist model’s
deficiencies usually leave us with a rather anemic account of ideology, one
essentially reduced to the commonplace sociological version described
previously. In short, somewhere along the way ideological critique lost its
critical edge.
Marx’s
account of ideology is different. The best presentation of Marx’s theory of
ideology is found in chapter 1 of Capital
where we encounter his famous discussion of “The Fetishism of the Commodity and
Its Secret.” Marx has a specific goal in this section, but it is clear he
thinks it has a more general application, one that later Marxists, including
Georg Lukács and the Frankfurt School of Critical Theory, elaborated.
The
immediate problem for Marx in the “Fetishism …” section is to explain why the
political economists of his time came to see value as a property instead of a
relation—as the natural, material property of objects, rather than what it is
(for Marx), the practical expression of a historically-contingent social
relation. Marx also diagnoses from whence this “enigmatic character” of the
commodity arises. The fetishism of commodities “arises from this form itself,”
that is, from “the peculiar social character of the labour which produces
them.” Objects of utility become commodities (i.e., that have value) because
they are produced independently from one another, “privately” so to speak. The
producers do not come into contact with one another until they exchange the
products of their labor. Therefore, “the specific social characteristics of their
private labours appear only within this exchange.”
Put
another way, value does not appear as the social relation that it actually is
but rather as a pre-social property of material objects. And value appears as a
property of objects because it is expressed only in the social act of exchange.
But this is also how social relations appear generally in capitalism. In Marx’s
evocative phrase, social relations in capitalism appear as “material [or
“thingly,” dinglich] relations
between persons and social relations between things.” Thus follows the entire
liberal, social-contract tradition, as well as the kind of “asocial sociality”
that pervades much taken-for-granted, everyday, pre-conscious thinking. It is
Weber’s “disenchanted” world where public life is rationalized and religious
life is privatized. It is the separation of fact and value where the “the
social allocation of resources and labour does not, on the whole, take place by
means of political direction, communal deliberation, hereditary duty, custom,
or religious obligation, but rather through the mechanisms of commodity
exchange” (Meiksins Wood, 81).
Before
discussing this model of ideology’s relevance for law, it can be usefully
contrasted with the representationalist model.
Expressivist. Robert Brandom writes, “To the Enlightenment picture of mind
as mirror, Romanticism opposed an
image of the mind as lamp.” This
metaphor crisply distills the thrust of Marx’s famous “Theses on Feuerbach.” The role of language and
concepts is not solely to represent objects, but to do things. In metaethics theory, expressivism is the view that
moral language does not represent facts, which can have truth values, but
rather expresses attitudes and commitments. Such commitments nevertheless
express the true state of mind of the speaker. More than this, to Hegel we owe
the idea that individual linguistic utterances are not individual, but social.
Like Wittgenstein’s language games, language is necessarily social, caught up
in a social mode of making and expressing commitments to one another. Marx
follows Hegel and analyzes the way that historically-contingent social
relations find expression in moral and legal forms of thought.
This
move allows Marx to avoid the overburdened psychology of the bad-faith
representationalist model. Thus, Marx argues that categories such as value “are
socially valid [gesellschaftlich gültige],
and therefore objective, forms of thought for the production relations of this
historically determined social mode of production.” Social relations “appear as
what they are” in capitalism, which are
“material relations between persons and social relations between things.”
Moreover, in capitalism, as in social life generally, social practices precede
their self-conscious expression. “Reflection on the forms of human life, hence
also scientific analysis of those forms, takes a course directly opposite to
their real development. Reflection begins post
festum.” In that sense, there is nothing false about value or any of the
other forms of thought and institutions of capitalism. Hence, they are also not
deliberately-conscious, bad-faith instruments of domination.
Nevertheless,
there is still something false about the categories of bourgeois thought, which
allows ideology critique to retain its critical edge. Concepts and claims
become ideological when they claim to transcend their own historical context,
when they claim, in other words, to have practice-independent validity. For
example, the commodity form is both the “most general” but also the most
“undeveloped form of bourgeois production.” It appears early in human society,
but without “the same predominant and therefore characteristic manner as
nowadays.” In these early iterations, the fetish character is “still relatively
easy to penetrate. But when we come to more concrete forms, even this
appearance of simplicity vanishes.” It is only in capitalist society that
wealth is conceived in a fully objective, naturalistic way, independent of the
historically-specific context of capitalism. The same can be argued for all of
the key institutions of capitalist societies, including the legal form.
Finally,
Marx’s theory of ideology can explain why it is so easy and possible to embrace
the representationalist account of ideology. The representationalist account of
ideology is itself an expression of capitalist society. Again, capitalism is a
world of material relations between persons and social relations between
things. The social relations and practices of capitalism, in other words, present
to our consciousness a representationalist way of looking at the world. The
practice-dependent, historically-contingent social relations of capitalism
disappear, so to speak, so that it becomes the job of concepts to represent
rather than to express. In capitalist society, one is predisposed to reverse
the proper order of explanation. Hence material properties of persons—their
more or less given, behaviorally observable “interests”—come first, and the
nature of their sociality is expressed merely formally and above all in legal
relations and the state. If relations between persons are primarily a pact of
self-interested individuals, reduced to their preferences and the goods they
own, then ideology must be only an instrument to disguise the asymmetric
outcomes of such a pact.
Historical. Marx’s theory of ideology is historical. He does not
begin with a general theory of society or interests. Rather he begins with a
set of historically-specific social relations—the commodity-structure of
capitalism. To be clear, he does not even begin with “exchange,” but with capitalist exchange, where production is
primarily for exchange and profit, inserted into circuits of capital
accumulation, and where labor power is sold on the market for a wage—labor
power is commodified. He does not begin with interests; as already indicated,
beginning with interests inverts, what is for Marx, the proper order of
explanation. It is only with reference to these historically-specific social
relations, and in the case of capitalism the practical-social relations of
exchange and accumulation, that the expression interests can have any practical
sense. I am not saying that preference formation is “endogenous” (although that
may be true, too), but that interests are unintelligible without a set of
social relations that define practical courses of action to achieve those
interests.
Starting
with historically-specific social relations is how Marx avoids the reversion
towards a merely sociological account of ideology. Historically-contingent
social relations are themselves not neutral. They therefore do not serve
everyone’s interests equally. If one derives ideology from
historically-specific social relations, rather than from conflicting groups
interests, then we need not feign a disinterested, third-person perspective on
ideological group conflict. Predominant social relations will produce
predominant—non-neutral—ideologies. This is what immanent critique means: to
take a standpoint within a specific, historical context and explore its practices
and contradictions from within.
Interpretivist. Marx’s theory of
ideology is first and foremost about the generation of ideology, and only
secondarily about its effects. More importantly, ideology’s effects need play
no role in the generation of ideas. Marx’s theory of ideology is not functionalist, which is not to say that ideology
does not have effects that are functional for capitalist rule, only that these
consequences do not explain the form and content of this ideology. Capitalist
ideology may serve the “interests” of capitalists, but that beneficial effect
need not play a necessary role in the generation of such ideology. An ideology
is dominant not because it is successful in duping the dominated, through
obfuscation or deceit, but because it is an expression of historically-specific
social relations that themselves assign certain groups a dominant place, within
which they are able to identify particular courses of action (forms of law,
legislation) which will further their interests. For Marx, form always precedes
function but form itself is never without consequence for its content and,
therefore, effects.
Furthermore,
the persuasiveness of capitalist ideology is fundamentally different from the
representationalist account. In the representationalist version, ideology’s
success flows from the ability of the dominant—who, in bad faith, know their
legal and moral pronouncements are a sham—to persuade the gullible to accept
their representation of social and political life. Once the ruse has been
revealed as a sham, the effectivity of ideology should collapse and everyone
should be prepared to mount the barricades. By contrast, the persuasiveness of
ideology in the expressivist account arises from the inverted practices of
social life itself. Marx says that the “belated scientific discovery” of
value’s “secret” “destroys the semblance of the merely accidental determination
of the magnitude of the value of the products of labour,” “but by no means
banishes the semblance of objectivity possessed by the social characteristics
of labour.” One may see any of the forms of bourgeois thought as ideology, but
that does not change the social relations which present to everyone’s
consciousness a world of material relations between persons and social relations
between things. Ideology is therefore persuasive because its basis resides in
the social practices in which we all engage and, again, as an expression of
those practices, they are not obviously “wrong.”
Law,
Ideology, and Legal Form
All
of this must add up to something about the consequences of ideology for the
law, which can only be sketched in outline in this post. Marx’s model of
ideology can be applied to adjudication. In this view, judges are engaged, for
the most part, in a good faith attempt to make sense of the social practices
they make judgments about, but these social practices must always have some
particular, historically-specific form. Moreover, they include the social
practice of adjudication itself, which we can describe as the legal form,
following both Kessler and Pashukanis. Judges need not be engaged in a
bad-faith attempt to present the particular interests of any one group as
universal. They need not be in “denial” about gaps they fill in the legal
materials with political ideologies. Of course, it is always possible for a
judge to decide in bad-faith or in denial. It is just that such behavior is not
a constituent (or even important) part of the expressivist theory of ideology.
Certainly, Marx’s notion of ideology bears no greater responsibility for
explaining bad faith than any other theory of adjudication.
Second,
the social and legal practices about which judges are making judgments are
pervasive. Judges are caught up within them, insofar as judicial actors are
constitutive participants of the legal form. We therefore should not take the
sociological route and see adjudication in terms of (small-l) liberalism and
conservativism (commonly understood) as expressing “fundamental” ideological
differences. Rather liberalism and conservativism are both expressions of the
same social relations of capitalism. What Marx’s theory of ideology is directed
to is the theory of (big-L) Liberalism, of which liberalism and conservatism
are particular expressions. (Big-L) Liberalism is not a free-floating
intellectual philosophy but the ideological expression of the social practices
and forms of capitalism.
Finally,
we need not, as the representationalist model does, give up on ideology
critique. Because Liberalism and the legal form are practical-ideological
expressions of capitalism, they give expression to social relations that, on
the whole, serve some interests over others. The best way to concretize this is
to return to an examination of the legal form. Kessler’s discussion of the
legal form is one of the most interesting and insightful parts of his paper.
The vast majority of even critical legal scholarship focuses on legal
substance—seeing the legal form as entirely empty: Whom does a decision
benefit? Whose interests does a judgment serve? By contrast, Kessler shifts
attention to the dialectic between legal form and substance. As I hope to have
shown, analyzing the nature of legal rules in terms of “interest evaluation” is
representationalist. What is more interesting and also more critical, in both
senses of that word, is to think about how the legal form expresses an
intrinsically capitalist legality or morality, even when “our side” seems to
prevail. Given that these substantive judgements are always made within the
(historically-specific social practice of) the legal form, the form of the
judgment is not with its own determination, that is to say, its own
implications for substance.
As
an example, consider James Gray Pope’s excellent essay on burying the bodies in labor law, “How
American Workers Lost the Right to Strike, and Other Tales.” Pope’s essay
follows a reputable line of critical scholarship in labor law, beginning with
formidable contributions such as Karl Klare’s “Judicial
Deradicalization of the Wagner Act …,” and James Atleson’s Value and
Assumptions in American
Labor Law. Both Klare and Atleson see the adjudicatory undermining of
pro-worker labor law as a kind of corruption of original legislative intent by
judicial bias or the importation of alien and extrinsic “values and
assumptions” into labor-law adjudication. Pope’s article lies within this
genealogy but poses a different and fascinating problematic. For Pope, the
problem is less the importation of crass political interests and more an
unstated commitment to a certain vision of the constitution. This difference is
important because, whereas for Atleson the charge is that the federal judiciary
elevates the common-law rights of employers over the statutory rights of
workers, Pope admits that if it is not common-law rights but constitutional
rights we are talking about, then statutory interpretation ought to give way to the Constitution. Nevertheless, Pope still
accuses the Supreme Court of “hid[ing] the constitutional” ball by not being
forthright that these contestable labor-law decisions use pre-1937, Lochner-era constitutional reasoning.
However,
a third, expressivist interpretation of labor law’s anti-worker trajectory is
possible. Can we confidently say that the “switch in time” ever adequately or
definitively defined the appropriate boundaries of the Constitution or the
federal government’s legislative authority in any once-and-for-all sense—as if West Coast Hotel Co. v. Parrish or NLRB v. Jones & Laughlin Steel Corp.
finally and comprehensively established the terminus for due process
protections for individuals’ property rights? That seems a hard conclusion to
accept. If so, then the cases in which Pope accuses the Court of “hiding the
ball” can be interpreted instead as the actual
working out of that boundary—a more “legitimate” enterprise. This
conjecture, combined with a host of larger challenges, undermines the
representationalist interpretation of Supreme Court labor-law adjudication. For
example, was the NLRA “radical”? Unlikely, as its preambulatory “Findings and
Policies” are expressed in the Keynesian tones of economic stabilization. Have
more purposive or balancing approaches to interpretation, inspired by legal
realism, been good for fashioning a pro-worker labor law, as we are told they
should be? That also does not appear to be the case.
If
that diagnosis is right, then we have to take the unanimous Supreme Court at
its word when it says: “Organization rights are granted to
workers by the same authority, the National Government, that preserves property
rights. Accommodation between the two must be obtained with as little
destruction of one as is consistent with the maintenance of the other.” One could
say, in other words, that the Supreme Court is working within the bounds of the
legal form. The legal form is the form of law in capitalist society. It is the
form of law as right. It is no longer, “you shalt not steal” but “you have a
right not to have someone steal from you.” As such, the legal form is the way
bourgeois society protects the abstract freedom and autonomy of its members. As
the Court says, adjudication is then the line-drawing exercise required to
accommodate different legal subjects’ rights. We may not like the particular
lines the Supreme Court chooses to draw in labor-law cases. But the question
is, must the line be drawn somewhere? If individual rights, inclusive or not of
property rights, are to maintain any coherence, the answer must be affirmative.
If one party has no right, there is no need for adjudication. Hence, no need
for law, if you will. For labor law to be law, therefore, it must at some point
acknowledge—and protect—employers’ property rights. Or, to put it another way,
if we don’t like the constraints that employers’ property rights place on
workers’ rights, we will have to abolish private property and much else
besides, including capitalism and the NLRA, which is simply the peculiarly
capitalist form of protecting labor within a capitalist economy.
Conclusion
My
genuine hope is that Kessler’s ambitious and wide-ranging article opens up
space for more serious discussion about what Marx can contribute to our
understanding of law, legal change, and legal theory. In this post, I have
aimed to expose the explanatory deficit left to us by functional thinking about
law and capitalism, even as it is presented in G.A. Cohen’s
historical-materialist version. If we want Marxist theory to give us insights
into how capitalism influences and constitutes actual legal
decision-making—which it must, if we want Marx to be a serious contender for a
critical legal theory—we will need something different from functionalist
sociology. This post has therefore also sought to sketch the bare outlines of
such an alternative, which I believe can be rooted in Marx’s theory of
ideology. I have shown how his theory of ideology differs from the more
familiar and workaday representationalist theory of ideology, why Marx’s model
avoids so many of representationalism’s problems, and why the
representationalist model is so pervasive. I hope to return to these subjects
soon and articulate a clearer case for how Marx’s notion of ideology can help
us understand legal change and legal decision-making.