Balkinization: Linking Capitalism and Legal Change: Function versus Form

Linking Capitalism and Legal Change: Function versus Form

Guest Blogger

For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism.

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.

Matthew Dimick is Professor of Law at the University at Buffalo School of Law. You can reach him by e-mail at mdimick@buffalo.edu.

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