Over the past several years, a number of legal scholars have engaged the question of whether and how to reignite the critical impulse in legal theory. This inquiry has been less about a nostalgic revival of Critical Legal Studies, and more about how to meaningfully address a contemporary moment defined by an unrelenting proliferation of crises. Given this aim, one natural question concerns the relationship between critical theory and other adjacent left-wing positions in legal thought.
For decades, older debates between CLS, Marxists, and mainstream law and economics scholars languished on the margins, and LPE has helped awaken a sensibility of discontent that is more than welcome—it is indispensable. However, despite the LPE movement’s influence, it is widely recognized that there is as of yet no LPE school; there is no method or theory that might denote LPE as such, which remains a loose family of inclinations and dispositions. In part to assist in the work of theorizing the Law and Political Economy Movement, and to inquire how or whether LPE already harbors a nascent form of critical theory, Jed Purdy and I gathered a group of scholars for a conference at Duke this past fall. The fruits of that meeting, cast in LPE’s doppelganger register of “Legal Theory and Capitalism,” are now published in this double issue of Law & Contemporary Problems.
The symposium presents a sophisticated conversation between proponents of Marxism, LPE, and critical legal theory. Among the many pieces of architecture that unite these three families, a chief idea about which everyone agrees is that there is little interest in theory for theory’s sake. A belief common to many in contemporary legal academia—but one without representation in this collection of essays—is that theory is useless. In this view, theory operates by means of external critique, aiming to transform real life through the application of alien standards shipped in from some outside perspective. As such, “grand theory” flies high in the clouds of abstraction, always overgeneralized and necessarily disconnected from the concrete materiality of lived experience. In its typical pragmatist orientation, this response suggests that the task of the skeptical anti-theorist is to solve real problems, strengthen democracy, and increase equality—and knowing how to do it isn’t really all that hard. What’s hard is the doing. As Sam Moyn and I have argued, this predilection for anti-theory seems to lead scholars to believe that that the turn to contingency and everyday particularism automatically brings with it great potential for social emancipation.
For others who take a position more accommodating to theory, theory is sometimes defined as an empirical means for explaining social change. Amy Kapczynski’s “Beyond the Market: What Does it Mean to Theorize Capitalism?” is illustrative, arguing that it is insufficient to talk casually about law’s “constitutive” power in the economy. Knowing how to solve our deeper problems might be more complicated than we had first imagined, and a critical theory of capitalism—like the one offered by the philosopher Nancy Fraser—is essential to the work. Indeed, on this view, the theorization of the relation between law and political economy may be a prerequisite for political organizing. This is no return to “grand theory,” whatever that term is supposed to mean. What is needed here, for scholars in this vein, is a social theory that explains law’s complex role in capitalism.
A second position wholeheartedly agrees, but goes further in advancing the critique of capitalist society by seeking a more direct engagement with the ways in which legal thought structures our social explanations. As Odette Lienau and Aziz Rana emphasize in “Legal Method and Political Time,” critical legal theory is necessary in the charge to halt and reverse spiraling inequalities and existential threats to democracy. Unless we have a structural understanding of what politics to use or how to organize and for what purpose, investment in political organization risks leaving background practices and ideologies undisturbed. And if these practices and the ideologies that structure them continue to govern the foreground in which we fight and organize and litigate, we run the risk of running in circles. As the critical theorist Rahel Jaeggi has explained to similar effect, “To put it simply, with a ‘good eye’ we might be able to see that people are suffering, but we need a theory to decipher this suffering as something caused by exploitation or alienation…Only analysis can uncover the normative foundation of a community and the violation of this foundation; the good eye of the critic alone is not enough.”
What we are looking at here is more than the obvious fact that the problems we deem worthy of focus are never self-evident, and that problems rarely if ever simply come from the natural world but rather have to do with ways in which we have come to conceptualize that world. Perhaps more troubling, it is also that certain kinds of problems solicit our attention because they seem fit for a malleable and contestable foreground, while others sink into a sedimented, naturalized, and unassailable background. The task of critical legal theory is to mark the differences, collapse the distinctions, and ultimately, illuminate pathways for structural transformation.
The immediate focus of this symposium is, as the title suggests, the relation between legal theory and capitalism, and the contributors offer varying perspectives on the two positions I’ve canvassed here: (1) the turn to theory as a means for explaining capitalism as an economic, social, political, and historical phenomenon, and (2) the turn to theory as a means for the legal critique of capitalist ideology and structural transformation. The results demonstrate, we hope, the exciting beginnings of a trend toward further work on legal theory and political economy, and what that work might deliver.
** ** **
Foreword part I, part II, by Jedediah Britton-Purdy and Justin Deystone
Structure and Legitimation in Capitalism: Law, Power, and Justice in Market Society, by Yochai Benkler
Law, Labor, and Identity, by Chantal Thomas
Class Relations and the Law: A Model and Agenda for Research, by Brishen Rogers
Diverse Legalities: Towards a Legal Theory for a Postcapitalist Political Economy, by Amy J. Cohen and Stephen Healy
Towards a Reconstructive Politics, by K. Sabeel Rahman
Legal Method and Political Time, by Odette Lienau and Aziz Rana
Marx, Marxism, and the Critique of Law, by Umut Özsu
Does Law Constitute Society? by Jeremy Kessler
Beyond the Market: What Does It Mean to Theorize Capitalism? by Amy Kapczynski
Indeterminacy and the Political Economy: CLS, Legal Politics, and Defetishizing the LPE Debate, by Akbar Rasulov
Law as a Form of Life: On Capitalism and Critical Theory, by Justin Deystone
Capitalism & Jurisprudence by Paulo Barrozo
