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 17th 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 15th 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 15th 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 16th 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 15th century wave suffered the fate of Detroit in the latter 20th
century or New Bedford in the late 19th.
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 16th 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 18th 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.