This post is part of a series on whether LPE needs theoretical foundations, and, if so, what kind of theory it needs. Read the rests of the posts here.
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Sam Moyn’s recent blog post (along with the underlying article) is bracing and extremely welcome. There is a lot to say about it, so I’ll summarize brutally here: I think (1) Sam is right that critical and reformist legal theory presupposes, and hence should be lucid about, an underlying account of what law does—and so, by extension, an account of capitalism and the state. (2) There is nonetheless good reason to doubt that we have, or can reasonably expect to have, a theory that would adequately organize these themes. Instead, several plausible and divergent accounts compete for our assent. (3) Because we need more theory than we have (in the sense of being able to answer deep questions decisively) and have more theories than we can deploy at once (because divergent competing theories abound), we should adopt a practice of theoretical pluralism, if not necessarily on the individual level, then at least on the collective plane.
Sam is absolutely right in asserting that the small group of us involved in creating the LPE blog, the co-authors of the Yale Law Journal piece that offered a semi-programmatic statement of an LPE approach, and the organizers of early LPE convenings did not really engage some key theoretical issues. The neglect is conspicuous and interesting because these issues are in some sense non-optional: an assessment of them is essential to what one means by capitalism, democracy, and law, and how one understands these to be related in political economy. How far do we believe legal and political actors autonomously construct the social and economic worlds? How far do we believe material economic relations drive the train? To put the question in crayon-cartoon miniature, were Lewis Powell’s famous memo in defense of the free market, Robert Bork’s recasting of antitrust doctrine, and the Supreme Court’s embrace of mandatory arbitration clauses all telling moments in a political and intellectual fight that could have gone very differently, or were they surface symptoms of more fundamental and inexorable trends? What you think of this set of questions bears—hard—on what kind of leeway you imagine democratic politics might have to recast economic life in the more egalitarian and freedom-promoting directions we advocate.
It’s worth observing that despite such quietism about what one might call high social theory, there is a lot more institutionally specific work in and around LPE that is richly theoretical. Think, for instance, of Lina Khan’s writing on digital platforms and the economic power of scale, Katharina Pistor’s on how law makes capital, Christine Desan’s and Lev Menand’s on how the state creates money, and Salome Viljoen’s on how informational capitalism organizes economic and social power. In any ordinary sense, this is some of the most theoretically ambitious work going on in law, specifically on the intersection of state and economy. What’s ironic is that because this work engages those themes, one can also see that this work needs a deeper account of state, economy, and law. Sam’s critique applies with the same force to any legal scholarship that makes presuppositions about state and economy; but only with LPE is the critique so plainly an internal one, invited by the very terms of the work being addressed.
Let’s start with that YLJ piece, because Sam takes it as his exemplar, and, again, what he says about it is true: it is basically silent on the whole set of core theoretical issues that I sketched at the start of this essay. The piece is something of a special case because it had a goal that might be described as academic-political. It was meant to offer a focal point, a gathering place, for scholars wanting to work on the themes of LPE: economic power, distribution, the interplay of democracy and capitalism. We were trying to loosen tongues, disinhibit heterodox lines of inquiry, and provide a place where the resulting work could be legible and legitimate. In this respect it extended the work of the LPE blog, and was deliberately ecumenical in similar ways. Each of the authors has done work that speaks at least somewhat to Sam’s call for more foundational inquiry. Yet even among the four of us, I doubt we could have agreed on an underlying account of those issues, nor would we have wanted to make our agreement the condition of entry to the LPE gathering-place.
But this account leaves Sam’s challenge unanswered. If the authors of that piece had a strong view of fundamental theoretical questions but suppressed it as an organizing tactic, then the right way to read us would be esoterically—as a kind of conspiracy, or, in a less sinister but more inane light, as the Platform Drafting Committee of the Democratic Party (Law School Branch). Once again, there would be nothing to get hold of here, intellectually speaking. Is there an understanding of fundamental questions that can make intellectual sense of such an open-ended approach to them?
I think there is, to some extent—not in rejection of Sam’s points, but as a middle-point where we might meet. (I should say again that this is just my view, as one of four co-authors.)
Indulge me in starting with an example from my work—so I can at least avoid mischaracterizing what others have done—before branching into the more principled point. In my writing on the history and political economy of environmental law, I have emphasized that law (especially legislation, but also interpretation) is an instrument of world-making. By setting up the terms of social activity, it shapes our interactions and, just as important, the material world, both natural and made. Connected with democratic politics, law can be an instrument for world-making to be the work of the same people who will live with its results—a form of freedom rather than a form of fate, a way of choosing a future. Our lives are literally at stake in that future.
This sounds very much like the law-as-constitutive-of-society version of CLS that Sam rightly criticizes as exaggerating the autonomy of legal choice, and, especially, the autonomy of the consequences of legal decisions. Indeed, mine sounds like a particularly statist version that optimistically imagines a democratic sovereign effectively and efficiently remaking the world in keeping with some legislative blueprint. So stated, both liberals and Marxists (to take the alternative Sam presents to us) would probably say this is something only a fool would believe. And I think that is true if it is taken unqualified, as a caricature of itself. But it is also a reality that we forget at our peril, if liberal cautions are allowed to grow into neoliberal dogma, or Marxist doubts into materialist despair.
This will still appear to leave the challenge unanswered; but it is a cornerstone of the answer I have, for what it’s worth.
How autonomous is the action of the state or the polity through law? On one level, the only intellectually responsible answer is, How the hell would I know? That is a little too strong—one needn’t despair; but there are too many competing accounts, all of them on offer in forceful versions, none of them complete or evidently superior so as to dominate the others. We can offer the competing formulations of CLS, of liberalism, of Marxism, each to a certain extent self-consistent and fiercely fortified at its boundaries. But when we put them into play, unless we have minds of especially dogmatic power (almost theological power, we might say), the world overruns them.
Consider a close analogy. An account of historical causation is basically an application of the social-theory premises that Sam tags LPE for missing. And in the writing of history, knowing in a sense how the question comes out, we still aren’t able to come to anything like agreement on the relative autonomy of the law and the state, or adjudicate decisively among the various liberal and Marxist (and other) accounts of these. This is true even of relatively recent history, when our information is very rich indeed. How should we somehow achieve this missing clarity prospectively, when we by definition can’t know how it comes out, and our assessment of relevant present facts is necessarily deeply shaped by political and cultural investments? (Granted, this is also true of much of what historians narrate, but that is only to identify a shared problem between the two kinds of inquiry.)
One possible implication of deep theoretical difficulty would be a sort of social-theoretic nihilism. This has many faces, including an aestheticized liberal version in Isaiah Berlin’s evocations of the world’s complexity and plurality and an ostensibly radical (but often basically liberal) version in the all-is-contingency version of legal history that Sam powerfully criticizes. From these perspectives, setting a theoretical compass of the kind Sam might propose, or even pointing out its absence at any length, would count as self-important bloviating.
But I think it is possible to take seriously the unavailability of a Unified Field Social Theory without falling into nihilism. This is by taking seriously the pluralism, not just of values (as anti-theory liberals rightly tend to do) but also of theoretical formulations, such as the alternatives Sam canvasses.
What do such theoretical formulations do? They pattern, and usually overstate (if only by omission) true and important generalities about collective life.
For instance: people have rational capacities and are able to cooperate for mutual interest (a true fact systematized into economic theory and certain forms of political theory, long out of fashion). People have conflicting interests and are bound by relations of exploitation (a true fact systematized in variants of Marxism and other ways of patterning social explanation, such as the versions of critical race theory and feminist legal theory that Sam addresses in his underlying article). These form a pair, and there are other pairings. For instance: People are capable of collective world-making and the idea of collective world-making is an apologetic gloss on a world that is mostly determined in unequal ways. Some pairings are slightly less grounded in what we might call philosophical anthropology, more in assessments of the ways practices and ideology are braided in history. For instance: freedom and democracy were formed in a nexus with imperialism and a racial global order, and egalitarian democracy contains principles of universal emancipation.
Now I realize this sounds like structuralism a la early Duncan Kennedy. The remedy, I think, is too avoid making a fetish of the pairings, which are just ways of articulating persistent tensions as we try to reckon which of these truths is saliently at work in the phenomenon in front of us. There isn’t one “fundamental contradiction,” nor an invariant structure of contradictions, but a range of ways in which we try to identify, account for, and get to grips with the ways freedom and constraint, insight and false consciousness, are entangled in any conjuncture and at every scale. To speak of “contradiction” is just a way of naming some of the seams and joints where the tension runs.
I am tempted to say there’s a quasi-epistemic reason for this incompleteness of theory: that in order to get our minds around the world systematically, we simply must leave out certain inconsistent phenomena, or all that seems solid in thought instead melts on us. Or maybe the reason is just that we are blown backward into the future, always contending with partly unprecedented problems because of the ways we are always remaking the world.
In any event, the choice of theoretical emphasis is always contextual. Because the context is both what is happening and what other people are saying, the context often invites correction: in writing against a certain generation of Law and Economics (now mostly past, as economists have become empiricists, with Raj Chetty replacing various neoclassical theorists as the field’s public face), or against doctrinal formalism that upholds bosses’ power and plutocrats’ political influence, one might sound like what Sam calls a low-key Marxist. That is because the point in this work is to highlight the themes of power, distribution, and ideological colonization that a relatively hermetic economic or doctrinal discourse suppresses. At other times one might sound like a liberal social democrat interested in the ways a polity can articulate itself more democratically and a state can act more effectively through law. Speaking as just one person, I don’t feel any real and concrete contradiction between these abstractly opposed accounts—not because I think the world doesn’t significantly constrain their descriptive and hence their practical adequacy, but because I don’t think we know where the constraints are until we run up against them. (By the way, I think this puts me very close to Roberto Unger’s position, which is also where Sam suggests we should end up.)
At any moment I might be convinced that there are more specific tensions I should be addressing, but I don’t think our real engagements present us with a practical and mutually exclusive choice between those these theoretical dispositions at large. I think it is possible to be a democratic constructivist in the morning, a materialist skeptic of legal doctrine in the afternoon, and, perhaps, a more internal student of doctrine in the evening, without becoming any of these and, more important, without contradicting oneself in a pernicious way. But it takes judgment, should always be open to challenge, and of course won’t always work.
That doesn’t mean we should all be pluralists at the individual level. Part of what an academic setting does—and a larger discursive world, too—is to invite people to embody the different perspectives to challenge and test one another. Some take strong and self-consistent positions and test others against them. Some, like me, are more conciliatory, interested in finding how positions overlap or can be braided together, trying to exercise ongoing judgment among them.
Some, like Sam, are temperamental gadflies. Take his work on how legal-liberal theories of equality and the governance of warfare have done hidden and pernicious work in ideological legitimation, making terrible realities seem softer and more acceptable in the gentle tones of reasonableness and legality. How would we know whether this is in fact how these discourse are working? I don’t know. But it is certainly what the legal liberals around Sam need to hear. The same is true with LPE: What he is saying to us is exactly what we need to hear, even if the response doesn’t come in quite the same terms as the challenge.
