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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Few people have been more keenly aware of the non-linearity of time than 20th-century Marxists: sometimes nothing happens for decades, and then decades happen within weeks. Legal theory does not tend to accelerate so breathtakingly, but something is certainly afoot. Two years ago, Sam Moyn (plausibly) argued that Marxism is not an available theoretical position for someone employed by a US law school. It is, then, a sign of our times that in his recent intervention on LPE and legal theory, Moyn asks “Are we liberals or low-key Marxists?” and that his longer piece, which inspired the post, contains a reasonably detailed engagement with contemporary Marxist legal theory and with the Marxism-related anxieties of Critical Legal Studies (CLS). Nevertheless, surveying the current landscape, he remains convinced that LPE is mired in the winter of legal theory.
Whether we share this judgment will depend, in part, on how we understand legal theory. As I will argue in this short post, LPE work only appears under-theorised if we accept an approach to legal theory that is grounded in the Marxism-related anxieties of CLS, and of other non- and anti-Marxist critical legal theories. This (unarticulated but strong) approach to legal theory identifies particular styles of writing, engagement with certain non-legal literatures ((post)structuralism, linguistics, psychoanalysis), and a high degree of abstraction as markers of “legal theory.” This is not, I will argue, a particularly useful or accurate understanding of legal theorising. Its ongoing purchase within some segments of the legal Left is an unfortunate inheritance of the previous generation of “crits” who unconsciously deprioritised a substantive evaluation of theoretical claims (“does [Marxist] legal theory help us understand something non-trivial about law and political economy”) and instead gravitated toward an aesthetic sensibility (“is [Marxist] legal theory sufficiently rhetorically complex or aesthetically pleasing”). Ultimately, this shift not only marginalised materialist inquiry within law, but it distorted our overall understanding of what legal theory is and what it is for. Jed Britton-Purdy’s recent defense of theoretical pluralism goes some ways to loosening the conceptual strictures of legal theory, and I agree with many of his points. But taking a step back, I will argue that we don’t just need more theory: we need a more substantive, more analytically ambitious and less aestheticised idea of what legal theory is.
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Let’s start with the basics: legal theory is a good thing insofar as it involves making explicit and defending through argument implicit assumptions that underpin our work. This process of making explicit and defending is valuable not only because it facilitates rational inquiry and contestation by others, but also because it allows us to be reflective about our own assumptions and, hopefully, to change course when we realise they are misguided, or, as is often the case, we realise that our working assumptions are not even what we thought they were.
For leftwing critics, this process is valuable for an additional reason: implicit assumptions and disciplinary “common sense” are where bourgeois / patriarchal / white supremacist ideology habitually resides. Even though theorising offers no guarantee against hegemonic ideology, refraining from theorising all but guarantees its perpetuation. During the oral defence of my doctoral thesis, I was asked to define international law for the purposes of the thesis (!). I was mildly annoyed with the scope of this question, but I was truly mortified when I heard myself describing international law “as a system of rules that regulates….” This was not at all what I thought I was doing, and, yet, I had written a formalist PhD with a Marxist superstructure (pun intended) awkwardly erected on top.
I am well aware that what I am describing here is not “Legal Theory” as usually understood in academic contexts. The most common use of the moniker entails a particular genre of writing with its own aesthetics, patterns of argument, literature, and aims. For example, Legal Theory is usually written with a high degree of abstraction, it is primarily in conversation with other Legal Theory, and it is orientated toward understanding something about law as a whole or a legal field in its totality, rather than about a specific piece of legislation, judgement, or social problem. This genre of writing is rarely grounded on, say, empirical methods and often deprioritises the details of legal doctrine in favour of general trends, principles, or ideas. Here, however, I am advocating for a “legal theory” without capitalisation: a way of writing about law that is explicit and explanatory about our assumptions in a way that not only enlightens our readers but also disciplines the author by rendering certain argumentative moves unavailable to her. What this genre of writing does not entail is an exclusive focus on clarifying these assumptions in a highly abstract way and only in reference to “high theory” of the (post)structuralist variety.
This shift allows us to see that CLS did not necessarily have “too much” theory, as Moyn claims. Sometimes, it was surprisingly under-theorised. When it came to political economy, in particular, CLS and its inheritors had no discernible theory of their own. Rather, it often borrowed its working assumptions from legal realism. This led CLS either to argue that the economy was a legal/institutional construct all the way down (proving in the process that it had no problem with reductionism, provided that it was of the anti-materialist variety) or, more plausibly, to talk about social antagonism but without much explanation of its precise structure, origins, and patterns of change besides a left commonsense belief that such antagonisms existed. Rather, what is often perceived as CLS (over)theorisation can be better understood as an attachment to certain avant-garde aesthetics and a commitment to paradox-uncovering as its opening and closing move.
Echoes of this aesthetisation of theory, an understanding of theory as something complex and beautiful (or more precisely: beautiful because complex), are present in Moyn’s underlying piece too, despite his own frustration with the aesthetic turn of CLS. For example, Moyn uses the label “vulgar Marxism” in a way that seems to be self-explanatory about what sort of claims it entails, who made these claims, and why this is a path one should not follow. As in other examples of anti-Marxist critical work, this posture is not accompanied by what it is specifically that “vulgar Marxists” got so catastrophically wrong. If anything, it should give us pause, as Moyn admits, that the same people who rejected “vulgar Marxism” ended up rejecting the project of social explanation as a whole. Those advocating for a non-Marxist, or perhaps more accurately, an anti-Marxist critical theory for LPE need to contend with the fact that we are barely one generation removed from a major shift in critical legal theory: CLS started by arguing that “vulgar Marxism” did not explain law in all its rich specificity, and ended up suggesting that trying to explain anything at all besides vague references to contingency was a sign of lacking nuance and, even worse, of being un-cool.
Contrary, then, to what Moyn takes for granted, many LPE scholars have been explicit and analytically generous in presenting their understanding of law and political economy, even if more remains to be done. To invoke just one example, the following excerpt provides a much richer and theoretically robust understanding of (US) political economy and law than many “classical” CLS works:
Labor law’s understanding of class was also turned inside out. While postwar labor law gave industrial workers some protections against commodification, in the process rendering them susceptible to collective discipline, contemporary labor law helped create a new working class and yet left workers subject to employers’ whims. Through this transformation, the notion that workers are not just objects of state protection, but also part of a collective agent with lawmaking authority in the workplace has been simply lost. So has a sense that workers deserve protection simply by virtue of their position in the division of labor. The shift from the postwar to the present was a shift from one regime of accumulation to another, one set of class relations to another, driven by the conflict between investors’ quest for high returns and workers’ and citizens’ needs for basic material security.
Rogers here offers the building blocks of a coherent and ambitious legal theory: he thinks about the transition from Keynesianism to neoliberalism as a shift of both (legal) ideas and of something that exceeds them (regimes of accumulation); he proposes that class relations are central to law and capitalism but that they are anything but static or eternal and, therefore, conjunctural and structural analysis need to go hand-in-hand; he argues that even the most robust and progressive forms of labour law have to contend with managerial power under capitalism. One might have misgivings with this orientation – as Moyn does – but not recognising this as an example of highly refined legal theory requires a very restricted notion of what counts as legal theory, one grounded in aesthetic choices that few would be willing to defend today.
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The defense I have presented does not, I should stress, entail that LPE scholars should ignore the Legal Theory genre as it is conventionally understood. Theoretical pieces that sketch out with a certain degree of abstraction the divergences and convergences between different LPEers would be most welcome. It is important to acknowledge that regardless of one’s specific field, Marxism would impose a different sort of discipline in comparison to left-institutionalism or that leaning on post-Keynesianism would require different points of emphasis than reworking deconstruction in the service of law and political economy. Such pieces would be important, not least for pedagogical reasons. However, it may well be the case that this time Legal Theory will be constructed inductively, by systematising the valuable work being carried out in the realm of legal theory without capitalisation, rather than the other way around.
