The transhistorical dormitive principle at its foundation makes MHMAL the wrong social theory for LPE

Guest Blogger

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

Yochai Benkler

Jeremy Kessler has done the LPE movement a favor by producing such a lucid, clearly defined theory of historical materialism for legal analysis. I reject his theory from the ground up and think it must not be the theoretical path forward for LPE. But the article is a model of clear definitions and explicit statements of the kind we all need if we are to develop a social theory of law in capitalism that we can all use as a common framework.

Let me start where we agree.

First, contra arguments in favor of theoretical pluralism or quietism, Kessler insists that LPE needs a social theory of what capitalism is and how it functions if we are to have any hope of producing a coherent critique of the role of law in it. In this I think he is 100% right. It is impossible to make claims about how something called “law” interacts with something called “political economy” without relying on some model of what “political economy” is. That model can be explicit or implicit; conscious or not; but it necessarily exists in the background of any claim about “law and political economy.” If we do not develop it consciously, and if we are not explicit about its structure and dynamics, then we are simply operating with an unstated implicit model. Unstated and unexamined, such a model will almost certainly be a mixture of the Smithian waters we swim in interspersed with islands of self-conscious heterodox or Marxisant economics.

Second, I agree with Kessler’s diagnosis that much of the writing in current LPE literature assumes a deep voluntarism, most exuberantly in Roberto Unger’s anti-necessitarian social theory that Kessler’s target of critique—Sam Moyn—declares is the soundest anchor in CLS for the future of LPE. As Kessler puts it:

Beneath the constructivism in which LPE’s more programmatic statements engage lurks a profound, and profoundly contestable, metaphysical assumption: that more-or-less conscious human decisions change the world.… The possibility that the economy is the way it is because of forms of human action and interaction – including with the non-human world – that lie beyond the precincts of legal and political institutions, or their informal, social-movement doubles, is also neglected.

Like Kessler, I have argued that inherited material (nature and technology) and social (institutional and ideological) structures impose heavy causal constraints on agency, individual and collective, and that we need sound theoretical, historical, and other empirically based work to understand how structure constrains and channels agency, both social and individual. (See  Power and Productivity, Institutions, Ideology, and Technology in Political Economy; The Ends of Law; Structure and Legitimation in Capitalism; and with Talha Syed Reconstructing Class Analysis).

Finally, I agree with Kessler that we need a historically specific account of capitalism and law, rather than a transhistorical account. The core drumbeat of liberal political theory (Grotius, Hobbes, Locke) and Smithian ideology has been the insistence that the institutions of modern market society are the natural outcome of natural freedom of individuals pursuing their own natural tendency to self-love and to truck, barter, and exchange. It is this transhistorical core on which the claims of liberalism to represent a natural order of liberty depend. And it is this transhistorical core that provides the strongest basis of legitimation of the structure of exploitation and injustice in modernity. Any critical effort has no choice but to contest that dominant naturalization project by explaining how we came to live the way we live as a function of specific historical conditions that unfolded in historical time, for reasons we can explain and back with evidence. Only by doing so can we develop transformative programmatic interventions.

So, if we agree on so much, why my stark opening declaring that I reject Kessler’s proposal for how to pursue these intellectual goals we share? Because I think his actual proposed solution (a) has an unacceptably transhistorical foundation, (b) his historicity introduces too much fuzziness, evading the charge of “vulgar” determinism by reintroducing “underdetermination” by the back door, and (c) his transhistorical foundation leads him to adopt a materialism that puts the transhistorical “productive forces” cart before the historically specific horses: social relations, or institutions.

A faulty transhistorical foundation

Kessler provides admirably clear definitions for his Minimal Historical Materialist Account of Law (MHMAL). These include:

MHMAL 1: Social reality is ultimately determined by the development of the productive forces. The productive forces include natural resources (such as waterways, mineral deposits, flora and fauna), artificial resources (tools fashioned out of natural resources by humans), and, most importantly, human labor power – what human beings can do with their minds and bodies at a given place and time.

MHMAL 2: the relations of production tend to develop in a manner that is favorable to the productive forces’ continued development. If asked “why are the relations of production such-and-such?,” a historical materialist will answer, “because those relations are well-suited to the further development of the productive forces.” (citing GA Cohen)

Following Cohen, Kessler adopts a strong evolutionary conceptualization of the productive forces, again:

In philosopher G.A. Cohen’s terminology, functional explanations answer “why-questions,” such as “why do the relations of production in this society take this particular form?” or “why does this species of lizard have a long tail?” The answer to the first question is “because that form is conducive to the development of the productive forces.” The answer to the second question is “because that length of tail is conducive to the lizard’s reproductive fitness.”

Finally, what are these “productive forces”? What drives them toward more “productivity”? Towards the end of the article Kessler makes this explicit. Leaning again on high Analytic Marxian trees, he writes (emphases added):

The MHMAL assumes that the productive forces tend to develop in a manner that renders them more productive over the long run. This assumption is grounded in a particular account of human nature, an account that posits “a permanent, human impulse to try to improve humanity’s abilities to transform nature to realize human wants,” as well as the mental and physical capacity to act successfully on this impulse. Both the overarching assumption, and the transhistorical account of human nature that grounds it, are common sources of objections to historical materialism. One response to such objections is that other left-leaning social theories (including Unger’s) make at least equally questionable assumptions about the nature of humanity and history.

In other words, at the very foundation of the entire edifice of “historical materialism” lies a profoundly, irreducibly transhistorical account of human nature no different from the transhistorical account of Smithian ideology. Instead of Smith’s “natural tendency to truck, barter, and exchange,” there is “a permanent human impulse to try to improve humanity’s abilities to transform nature to realize human wants.” Again, calling on the authorities of eminent Marxian theorists Cohen and Moishe Postone, and quoting Andreas Malm, this translates into a basic transhistorical human nature driven to seek to increase “labor output as measured against a fixed unit of time.”

Transform all the Marxisant lingo about “human impulse,” “productive forces,” “try to improve humanity’s abilities” and “realize human wants” into the parallels in dominant liberal theory: “natural self-interest,” “factor markets,” “efficiency” and “demand drives supply,” and what you have is basically a version of the early law and economics of Harold Demsetz or George Priest’s evolutionary model for why law develops toward more efficient institutional arrangements.

Historicity as fudge factor rather than explanatory framework and evidentiary base: the vacuity of G.A. Cohen’s Statute of Artificers

No moment in the article more clearly exhibits the similarities between MHMAL and Demsetzian institutional evolutionism than Kessler’s use of GA Cohen’s treatment of the Statute of Artificers of 1563. This is the sole example in the entire article where Kessler engages an actual legal institution at any point in history. I quote the entire passage, so we have a shared basis for critique.

A classic example stems from the breakdown of guild control of manufacture during the transition from feudalism to capitalism. In an effort to protect guild control of textile manufacture in sixteenth-century England, the Statute of Artificers of 1563 prohibited “entry into the clothing industry of men whose parentage was below a certain economic rank.” (quoting Cohen) This statute, however, was “not conducive to the development of early manufacture,” preventing the growing urban population from forming a competitive market in wage labor that would, eventually, enhance the productivity of textile-processing technology. In response to these material conditions, the law “was widely abused, sometimes with the legal authorities turning a blind eye.” In other words, new relations of production – in which members of poorer city families and former serfs from the countryside became wage laborers in the clothing industry – developed despite the law forbidding such relations. “Finally, in 1694, the offending clause was repealed, and ‘this allowed a proletariat of textile workers to exist de jure as well as de facto.” The growth of commodity exchange in wage labor preceded – and impelled – the treatment of more and more human beings as formally equal legal subjects, all with equal right to exchange whatever commodities they possessed (labor power being the sole commodity possessed by most).

In the above example, one witnesses the explanatory dependency of legal relations on the relations of production and, ultimately, on the productive forces.

What, exactly, about this description would Demsetz or Posner have rejected!? Guilds tried to impose medieval control over their trade, but this was inefficient (“not conducive to the development of early manufacture.”) The laws of the market proved stronger than the laws of the state; wage labor developed in violation of the law, until finally, in 1694, Parliament was forced to recognize that the laws of the market were more powerful than the laws of men. Law evolves toward the efficiency-enhancing institutional arrangement. Even Douglass North by the 1990s had abandoned this degree of deterministic belief in the evolutionary power of efficiency-seeking to bend law to its will.

In the second half of this post, I will explain just why the Statute of Artificers was anything but an obsolete holdover from feudal social relations. Rather, it was an early Polanyian second movement institutional package dealing with the conjunction of two cycles of capitalist crisis: a long-term regime transition in both manufacturing (broadcloth to New Draperies) and agriculture (post-Dissolution of Monasteries second wave of Tudor enclosures driving intensified urbanization) and a short term business cycle contraction caused by successful capitalist lobbying (sound money policy driven by the Merchant Adventurers triggering a long recession) that misfired from the perspective of the lobbyists.

First, though, let’s finish looking at how Kessler brings historicity in to save his account from the taint of determinism: “Historicity and Humanity as Complicating Factors.” Note, “complicating factors,” not “alternative explanatory models” or “bases of evidence.” They merely shape the details of how a particular social transformation (itself inevitably driven by transhistorical productive forces) will unfold in a given society.

historical materialism does not claim that every aspect of a given social relation is explained exhaustively by the degree to which it facilitates the development of the productive forces. Two formally distinct legal relations may be equally facilitative – or equally obstructive – of a particular stage of capitalist development. The formal differences between the two legal relations may be explained by quirks in local geography, ecology, language, and so on, as well as by the pressures placed on each legal relation by the gradual, uneven, and interactive development of the surrounding social relations in the society in question. . . .

All that historical materialism is committed to is the proposition that there are some such shared characteristics the existence of which is explicable by the functional role they played in facilitating some prior development in the productive forces and relations of production.

In other words, the decisive forces differentiating among societies are not actual historical conflicts, mobilizations, political and economic struggles, but “quirks in local geography, ecology, language and so on” together with “gradual, uneven, and interactive development of the surrounding social relations in society.” This formulation extirpates agency, rather than integrating it into a conception of structure. Differences that save the model from determinism are at the end of the day surface level differences, while the model’s survival is supported by abjuring the ambition to explain fully: “historical materialism does not claim that every aspect of a given social relation is explained exhaustively by the degree to which it facilitates the development of the productive forces.”

As bad if not worse is the reliance on “humanity” as the ultimate fudge factor. “The MHMAL, by contrast, holds that human beings in all their physical and mental complexity are present within the base,” Kessler tells us. “[H]uman labor power, mental and physical, conscious and unconscious, is the most important of all the productive forces.” “To speak of human labor power as a productive force is thus to find ‘right at the heart of the most material area of societies’ infrastructure . . . a mental element.’ (quoting Godelier).

The role of this mental element as the core of the fuzziness that allows Kessler’s to evade the accusation of determinism appears later in the article (emphases added):

As discussed in Part I, the MHMAL understands human labor power as a complex physical, mental, and communicative process that responds to non-human nature – and inter-human cooperation and competition – with creativity, spontaneity, and even irrationality. Such creativity, spontaneity, and irrationality are responsible for history itself, and are primary drivers of the pace and character of the development of the social relations. Without the impetus of human labor power, the belated and interactive development of legal relations would simply not take place. Humanity drives historicity and historicity drives functional underdetermination.

The productive force of labor power contributes to functional underdetermination in a second way as well. As labor power develops, so too does human thought and communication. This development of mentation and communication through the labor process is the seedbed of all the mental and communicative complexity that characterizes the social relations, including legal relations. When a legal relation changes in response to developments within the relations of production, which themselves respond to developments within the productive forces, the transformation of the legal relation will be functionally explicable in terms of those developments. But the requisite functional explanation will have to consider whether, and to what extent, specifically ideational and linguistic developments within the processes of production contributed to the transformation of the legal relation. Such an inquiry is an inescapably hermeneutic one.

These formulations leave us with a determinate ultimate causal model—social relations today are as they are because productive forces pushed them toward what was conducive to the development of the productive forces—that is very much like Moliere’s physicians’ explaining that opium puts patients to sleep because of the dormitive principle it contains. Actual history, for its part, is left to the inescapably hermeneutic process of human creativity, spontaneity, and irrationality, not to the actual unfolding of social relations in real historical time when one set of outcomes sets the terms for continued action and struggle to bring about the institutional structures of social relations at a subsequent time.  This in turn leaves us bereft of instructions on how this or that programmatic intervention may, or may not, transform social relations in a way that we can roughly predict, investigate for evidence, and ultimately assess for normative desirability and democratic decision-making.

What the institutional political economy of the actual, historical Statute of Artificers of 1563 teaches us about the kind of institutional political economy LPE needs

The Statute of Artificers was not a holdover from feudalism and guild regulation inevitably crushed under the wheels of the productive forces. It was part of a package of institutional reforms dealing with typical capitalist crisis cycles: in this case, the conjunction of (a) (i) the first wave of transition to capitalist agriculture and its persistent drive of rural underemployment, migration toward urban centers, and rural dislocation and conflict combined with (ii) a century-long cycle of English broadcloth expansion reaching shrinking profits and overproduction as competitors using new techniques and sources of raw materials squeeze the source of rents that sustained the prior wave, leading to urban labor conflicts; and (b) a decade-long slump triggered by a monetary and exchange rate crisis engineered by the dominant cartel in England’s second broadcloths century, the Company of Merchant Adventurers. England would not recover until five years after the Act passed, when waves of Flemish religious and political refugees arrived to start a new textile cycle, as well as to introduce critical agronomic and institutional innovations to create a national seed market that would underly the English agricultural revolution from the 17^th century on. The so-called provision regarding prohibition of “entry into the clothing industry of men whose parentage was below a certain economic rank” was in fact an accommodation between the conflicting pressures from the urban cloth manufacturers at the end of their profitability cycle and the expanding rural capitalist producers, each seeking to secure a larger reserve army of labor to drive down their labor costs.

Not a shred of feudal remnants in sight; nor of “productive forces” ineluctably forcing their demise. Rather, a Polanyian second movement institutional effort by a central government possessing weak state capacity to stabilize the normal social dislocation attendant to capitalist dynamics.

The long-term crisis marked the end of two centuries, beginning in the decade after the Black Death, during which England shifted from a commodity exporter of raw wool on the peripheries of the Afro-Eurasian network centered in Cairo and Tabriz, into the leading woolen cloth manufacturing center in the emerging world network centered in Antwerp, Lisbon-Seville-Genoa, and Venice-?os?an?iniye (present Istanbul). It lost that position in the 1550s and would not recover it until the British industrial revolution two centuries later, in a global network centered in London. The first English broadcloth manufacturing wave was marked by both new country clothiers and Italians, mostly Genoese, taking advantage of post-Plague newly liberated peasants (liberated by escape and rebellion) by organizing a decentralized small market town and rural production system and using dramatic technological innovations, in fulling and shipping, to deal with the collapse of labor force in the Black Death. The capitalist mentalité of the English merchants had developed over two centuries of first Flemish, then Italian mercantile presence that dominated the wool trade and transferred institutions, technology, and ideology to their English emerging comprador capitalist periphery. By the middle of the 15^th century, London-based English merchants used a combination of their increasing representation in Parliament, which they grew by buying land in the post-Plague depopulated countryside to attain the status of gentry, anti-alien riots, and coordinated lobbying in Antwerp to enter and compete with the Italians internationally and make London the sole interconnection point between the domestic network of small town and village manufacturing centers and the international markets. By the 1450s, the English London merchants had succeeded in pushing out the Italians. The Genoese and other Italians reacted by investing in breeding merino sheep in Andalusia (they controlled about 90% of wool exports from southeastern Castilian ports) as a workaround to the English monopoly on fine wool and blocking English traders from Mediterranean markets, while Flemish manufacturers (also financed and supplied by Italians) started to develop new kinds of cloth that could incorporate cheaper Spanish wool. The English traders were nonetheless able to milk the market power they had built in the first half of the 15^th century for sixty years, from the 1480s to the late 1540s.

One important consequence of the expanding broadcloth export sector was that larger portions of land were converted from arable to pasture—the famous (or infamous) Tudor Enclosures. By the 1510s the phenomenon interacted with growing population, as recurrences of the Second Plague Pandemic became less common, to introduce significant social dislocation and unrest. Cardinal Wolsey began the recurring process of responding to rural rebellions against the enclosures with committees on enclosures, Thomas More decried the sheep who devour men and whole villages, and migration from rural to urban centers in search of work increased. Henry VIII’s Dissolution of the Monasteries in 1536-1541 triggered a second wave of enclosures, converting more of England’s agriculture to a capitalist mode when he expropriated monastic lands and sold nearly a third of England’s lands within a decade, with many of the new buyers being urban merchants who bought land to gain gentry status and parliamentary representation, and in turn brought their market-oriented mentalité to their farming operations. At the same time, some yeomen and husbandmen began, through a process of engrossment, to increase the size of their holdings (buying use privileges from other tenants, not from the holders of the knight’s fee), pushing more of their neighbors to more complete market dependence for subsistence. In combination, the population growth collided with the shrinkage of land available for working on peasant smallholding model, driving more of the rural population into market dependence for more of their subsistence needs. The social dislocation this wave of enclosures and engrossment caused peaked with Ket’s Rebellion in 1549, but the process of outmigration from the countryside continued. London’s population grew from 70,000 in 1550 to 120,000 in 1580, and in 1600 was already 200,000. This process would receive a significant boost two hundred years later in the Parliamentary Enclosures, but even by the middle of the 16^th century the dynamic was powerful enough to cause severe and repeated dislocation whenever shorter-term cycles increased unemployment or underemployment.

The short-term crisis was the consequence of a sound money policy engineered in 1551 by the Governor of the Company of Merchant Adventurers, Thomas Gresham, who persuaded the Crown to use the Merchant Adventurers as a flywheel of sorts to revalue the silver content of the pound and maintain it at a stable level. In exchange for this service, the Merchant Adventurers gained unequaled power over the Crown’s monetary policy and fiscal stability and used it to squeeze out the last of their remaining meaningful competitors—the Hanse merchants who connected London to the Baltic trade. Instead of gaining the Baltic market to themselves, as they had hoped, the Adventurers were blocked by the Hanse and became strictly limited to Antwerp, where they were stuck not only with a glut of broadcloths but also with a newly unfavorable exchange rate that made their relative silver-cost higher than they had in the period of Henry VIII’s Great Debasement. They had squeezed out all competition, and in the process squeezed the life out of the industry they dominated. Into this vast cost differential, the Flemish and Italian woolen industries, using merino Spanish wool that by now had reached equal quality with English wool entered, and from there English broadcloths could no longer dislodge them. Only when a wave of these very same Flemish political and religious refugees brought these new techniques and fabrics with them to England a few years later was England, or rather new regions in England, able to grow again, while the old broadcloth manufacturing regions of the 15^th century wave suffered the fate of Detroit in the latter 20^th century or New Bedford in the late 19^th.

Parliament and the Crown tried to deal with the severe social dislocation with a series of ameliorative and structural measures. After Ket’s Rebellion, a 1550 Act permitted rural families to build small cottages on the commons. But both the Rebellion and the Act were merely symptoms of structural crisis in the English countryside caused by population growth and engrossment, reinforced in the 1550s by the stagnation of the woolen textile export markets and resurgence of enclosures.

First, the large farms collected through engrossment depended on wage labor, but their labor demand was highly seasonal, peaking at harvest time. To contain wage pressure during peak season, early capitalist farmers needed an oversupply of rural labor ready to surge during peak season.

Second, a second wave of pastureland enclosures started up in earnest in the 1550s, as the process granting lands expropriated in the Dissolution of the Monasteries to private, often urban commercial hands concluded, enclosing substantially larger areas than did the enclosures of the first wave in the late 15th and early 16^th century. This reduced the usability of smallholdings in the open fields system, as well as putting pressure on the commons and wastes as sources of subsistence.

Third, the decline of broadcloth exports after 1551 removed an important source of off-season income for rural households. In combination, these created significant underemployment in rural households. At the same time, rising food prices, particularly grain, saw a sustained decline in real wages in both towns and rural areas. In 1552 in York, building craftworkers went on strike, and though their leaders were jailed they won wage increases. Similar labor protests led to wage increases in London and Coventry in 1551 and 1553, respectively. Rural workers responded to pressures and opportunities by moving to towns or searching the countryside for farmers willing to pay higher wages to secure the labor they needed. The influenza pandemic of 1557-1558 intensified these pressures, causing a small, but appreciable, population decline.

In 1559 Parliament began to consider a set of measures that resulted in a 1563 legislative package: labor and employment legislation, the first Elizabethan poor law, and a nativist or racialized criminal law. The latter took the form of extending statutes passed under Henry VIII that made it a felony to be a “wandering Egyptian,” applying them to Englishmen who dressed up as “gypsies” to engage in crime. This was, in effect, an act against vagabonds, criminalizing the condition of being itinerate and not in formal employment, a model that would play an important role in forcing formerly enslaved workers into sharecropping in the post-Reconstruction South three centuries later. More consequential were the Statute of Artificers of 1563 and the first Elizabethan poor law.

The Statute of Artificers required all persons between ages 12 and 60 who did not have an annual income of forty shillings to go into service on a one-year contract and required servants (employees) and masters (employers) not to break the one-year employment contract except for cause confirmed by two justices of the peace. It also prohibited servants from leaving their town or parish without license from their master or a justice of the peace, and punished failure to accept offered employment, or leaving without a license, with imprisonment. Rather than imposing a single national wage level, as the Statute of Laborers of 1351 and similar 1514-1515 statutes had done, the 1563 statute delegated to local justices of the peace to meet annually and determine wages for various occupations in the coming year.

To mediate the interests of the emerging class of capitalist farmers and those of urban craft manufacturers and merchants, the statute limited apprenticeships in towns to the children of relatively well-off rural households. The members of Parliament representing rural areas sought to limit apprenticeships to the children of households with at least £3 a year in income, to preserve a larger reserve army of labor in the countryside. The urban manufacturers and merchants wanted to preserve the steady flow of workers from the countryside to the towns, to contain wage pressures. The compromise was that urban merchants, mercers (textile merchants), drapers, goldsmiths (i.e. bankers), ironmongers, embroiderers, and clothiers (the capitalist organizers of broadcloth production in provincial towns and rural villages) but not other, unlisted urban manufacturers, could take on children of households with £2 a year as apprentices, and London and Norwich manufacturers and merchants were exempt from this constraint altogether. The upshot of the statute was that Parliament met wage pressure and rural underemployment with a set of measures designed to compel the population of working classes to accept paid employment when it was available, at publicly determined wage levels revised annually according to local conditions. Its specific design reflected the competing demands, and lobbying, of a major already-powerful capitalist sectors: urban trade and textile manufacture, on the one hand, and an emerging agricultural capitalist sector, farming reliant on wage labor in large commodity farming oriented farms, on the other hand.

The third leg of the social stabilization program passed in this package was the first Elizabethan Poor Law. Its core innovation was to make the parish, historically a religious community, into the unit of social welfare taxation and provisioning. This basic structure would remain in place with variations for the next three centuries. It depended on voluntary donations to support the parish poor from the wealthier members of the parish; it required residents to stay where they were, and not move to other parishes; and it distinguished between those too old or otherwise unable to work, the deserving poor, from the robust or able-bodied poor. When the first act expired in 1571, Parliament passed a new act, converting what were earlier voluntary contributions by Parish ratepayers into compulsory contributions, and enhancing punishment as vagabonds to “sturdy” beggars—that is, to those who could work but refused to accept employment on the terms offered, complementing the legal requirement to accept employment in the Statue of Artificers. In 1576, Parliament further required parishes to purchase raw materials and create houses of correction to put the able-bodied poor to work. After the devastating, Europe-wide poor harvests and famines of the 1590s, Parliament further extended relief, and ultimately consolidated all these statutes in a code in 1601.

In various forms these three legs of the 1563 stool: criminalization of vagrancy—that is, the refusal by non-smallholders to accept waged employment—paternalistic labor regulation designed to be administered locally and sensitive to local economic and political pressures, and localized poor relief, survived until the end of the 18^th century, when the Smithian government of William Pitt the Younger led far more liberalizing reforms, which they and their successors enforced by building far greater capacity for violent repression of labor resistance. Nothing important changed in 1694, Cohen’s confident assertion to the contrary notwithstanding. This system was far from a modern social democracy, but under the combined effect of continuous agricultural productivity growth and this primitive localized wage setting and poor relief system England (not Scotland or Ireland) experienced its last excess mortality famine in 1620, a century and a half before France and two centuries before most of the rest of Western Europe escaped recurrences of such famines. Indeed, from 1650-1750 England saw a compression in real income distribution and rising rural standards of living until a now more powerful capitalist agricultural interest succeeded in pushing through the Parliamentary Enclosures and expropriated the use privileges that most rural households could still then tap to satisfy about half their household needs.

This explanation of the Statute of Artificers of 1563 is free of transhistorical hocus pocus. It depends on a historically specific dynamic that reflects the combined effect of the three core institutional components of capitalism: market dependence for subsistence, market dependence for production, and the early patterns of the influence of the profit-reaping classes as the Crown became increasingly market dependent for its fiscal sources. Once these three institutional components develop in some places because of historical dynamics specific to the societies in which they arose, they interact to structure social relations in a manner that creates an imperative to pursue profit by building power through technological, institutional, and ideological innovation, and expansion to new regions and social dimensions of life.

What drives social relations from there on is not a transhistorical tendency to increase productivity, but an institutionally imposed imperative to seek profit by whatever means necessary, both productive and extractive, through building power. An imperative that is unique, in global history, to capitalism, and one that emerged in specific places and then spread, driven by these dynamics, to encompass ever more of its peripheries in the drive to control natural resources, labor, and product markets.

This form of institutional political economy avoids excessive voluntarism not by positing a transhistorical tendency of productive forces, but by showing how this cluster of institutional components gives capitalism its historically unique structural dynamics. In capitalism, choice at the individual level can be real, but patterns of relations at the population level are constrained by institutionally imposed structural dynamics. John Doe may be a moral and caring employer, while Jane Roe is a greedy exploiter. Whether widespread practice in a given society evolves toward Doe’s or Roe’s style of employer-employee relationship depends on which one of them can make larger profits and therefore draw financing for their enterprise and imitators among other profit-seeking enterprises. The pursuit of profit on pain of losing your access to the means of production is the imperative in this dynamic. And in the pursuit of profit, gains from the power to exploit go to the bottom line no less than gains from the pursuit of new technologies for increasing productivity.   If Doe’s way of doing things becomes more prevalent because more profitable, the class of employers forced to adopt his moral ways to make a profit will develop an ideology to justify it (e.g., “doing well by doing good”; “good jobs strategy”), and vice versa (e.g., “maximizing shareholder value”).

In other words, voluntarism at the individual enterprise level is possible, for a while, but the historically specific structure of the society and time in which the enterprise operates contains the spread of that individual choice as the population-level social practice. Voluntarism in institutional design, which is part of what Kessler seeks to refute and I agree, is, however, not denied by a transhistorical dynamic, but by the constraints the structure places on the capacity to control enough of the process within a jurisdictional framework that can impose a transformative program.

The recognition that institutional voluntarism and pure legal constructionism of capitalism are historically and theoretically erroneous does not impose on us institutional despair, as both transhistorical Smithian law and economics and, I fear, transhistorical MHMAL do. Rather they command an imperative to continuous, repeated struggle over the institutional terrain of the capitalism we inherit from prior generations. There are no once-and-for-all victories; but nor are there once-and-for-all defeats. The struggle for transformative egalitarian institutions can have real effects that transform both the immediate lives of people in capitalist societies for a generation or two, and set the conditions of struggles of future generations that will inevitably follow, driven by the capitalist imperatives to evade, undermine, and reverse past egalitarian institutional victories and to intensify, extend, and spread institutional victories that build the power of the profit reaping classes. That is more than enough reason to continue to theorize, develop transformative programmatic interventions, and fight for them.

Providing a concrete historical account of how we got to anywhere we are and specifying the concrete historical causal mechanisms as clearly and completely as we can is the only way to design a transformative programmatic agenda or having any chance of assessing whether it will achieve anything we care about in the real world other than to make us feel good about another “win.” Transformative social change is hard in a globally interconnected trade and manufacturing network. It has been hard for over a thousand years. Structure is real. But it comes from historical sources, not transhistorical dynamics. And these historical dynamics are susceptible to causal claims supported by evidence—texts, artifacts, customs and business records, artistic representations, memoirs. We can agree or disagree that this or that piece of evidence is consistent with this or that interpretation of what happened and how. We can and must use terms that are clear as to causal relations and the bases in evidence, so we can refute ourselves and change our minds; so that we can engage intellectual opponents with the best available evidence. If we fall back instead on human imperfection and creativity and the inevitability of hermeneutics and perspective, we might as well leave the field of programmatic contestation and go work on elections. It’s all power all the way down anyway if our model eschews the causal clarity necessary to explain fully and with evidence why this time, this proposal, at this historical moment given the material and social context we inherited, will be different.

We need a factually and causally accountable theory and method of investigation. There is nothing wrong with trying to do it in a Marxian framework, but if so, one needs to start from Robert Brenner’s thoroughly historical-institutional political Marxism, not Cohen’s philosophical Analytical Marxism or Godelier’s anthropology. For myself, I prefer to go to twentieth century transposers and refiners of various discrete aspects of Marx’s work—Veblen, Schumpeter, Polanyi, and Minsky, synthesized with the Black Radical tradition and the work of Socialist feminists (Power and Productivity; Structure and Legitimation; and with Talha Syed Reconstructing Class Analysis).  But whatever we do, we must resist the siren songs of “complexity,” overdetermination or underdetermination, and the inevitability of perspective and interpretation. And we certainly must reject any theory that depends on a transhistorical foundation.

Yochai Benkler is Jack N. and Lillian R. Berkman Professor of Entrepreneurial Studies, Harvard Law School. You can reach him by e-mail at yochai_benkler@harvard.edu.