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Overrating Under-determination; Underrating Capitalism (A Reply to Karl Klare)


Nate Holdren (@n_hold) is Associate Professor of Law, Politics, & Society at Drake University.

I write in reply to Karl Klare’s “On Socialism and Critical Legal Theory.” This essay is a précis of a longer reply to Klare that I wrote for Legal Form, a blog focused on marxist perspectives on law. I appreciate the LPE and Legal Form editors’ willingness to run related pieces like this. I hope that doing so can spark further discussion between the blogs’ respective milieus.

I was struck by how little Klare had to say that was critical about law or of capitalism. My impression is that the theory of legal underdetermination serves to disaggregate law into a range of legal practices with a variety of political valences. Further, the theory of underdetermination doesn’t seem to shed any light on which of those practices to approve and which to oppose. In short, I don’t know what makes underdetermination a critical theory. At most it seems like a way to criticize past theories that may have seen too little political potential in law, in order to find an opening. But I don’t see what the theory helps to criticize once it has helped to find and make use of that opening.

Klare speaks to the virtues of post- and non-marxist social theory. My impression is that these literatures are long on the kind of disaggregation that the theory of underdetermination permits. Marxist critical theory tends to place more emphasis on aggregating, finding patterns. That kind of thought and past socialists who held to only minimally appear in Klare’s text and do so largely as foils. I would like to suggest that marxist social theory and the identification of patterns that persist over time – such as structural domination – is at least equally valid for left purposes and for understanding the relationship between law and political economy.

From a marxist view, capitalist society is characterized by forms of domination which are unjust and which generate further injustices. The persistence of injustice in capitalism arises from the historically unique condition of market dependency that characterizes capitalist societies.

Market dependency is the condition wherein people cannot get the full set of goods and services they need to flourish without purchasing at least some of them in market transactions. That makes market participation mandatory. Most people get the money to buy what they need to flourish through selling their labor power or being in a relationship with someone who sells their labor power. This means that the buyers of labor power, employers, have tremendous social power over their subordinates.

Employers too are market dependent, however, facing competitive pressures that compel them to do things they might not otherwise want to do, such as limit pay and benefits, only hire as many people as is profitable, and compel longer or more intense work hours in order to maximize their return on wages paid. Over all, capitalist employers generally face an imperative to make more money than they initially invested and to re-invest the results: enterprises must grow or die. There is a great deal more to be said but these are basic facts about capitalist societies. These are predictable patterns that critical theory can shed light on. A critical theory of law can shed light on how these patterns affect and are affected by law.

At most, underdetermination theory seems to help identify the possibility for some slow, moderate revisions within a set of power relationships. The theory has little to say about ending power relationships.

To be blunt, I don’t see what legal underdetermination illuminates about these patterns or how it helps us to notice or criticize any power relationships. At most, underdetermination theory seems to help identify the possibility for some slow, moderate revisions within a set of power relationships. The theory has little to say about ending power relationships.

Consider an example from Klare and Dennis M. Davis’s co-authored chapter “Critical Legal Realism in a Nutshell,” in the Elgar Research Handbook on Critical Legal Theory. Klare and Davis write that “a social or economic institution—say, a market for the purchase and sale of labor power in a capitalist society—can be legally structured in a wide variety of ways based on different, foundational rule sets. These rule sets may have quite different distributive consequences, for example, as between workers and employers.” Through what Klare calls in his LPE blog post “countless, always provisional, local contestations” we might have better markets for labor power. That certainly matters. OSHA is largely missing in action during the COVID-19 pandemic, with terrible human consequences. That said, left politics can aspire to more than just better labor markets, an aspiration the traditions of marxist critical theory has sought to express and enrich.

Let’s change the example. Instead of a labor market for waged workers, consider chattel slavery. As social and economic institutions slave markets and plantations are subject to variety in their foundational rule sets. Those variations can have profound consequences for the enslaved. At the same time, no such variation is acceptable. Even the best version of slavery must be abolished. Now, to be clear, I am convinced that enslavement is worse than waged labor. That said, from a marxist point of view even the best versions of waged labor and market dependency should be abolished.

(I am aware that some marxists believe Marx himself wasn’t motivated by moral commitments and didn’t truck with prescriptions like “should.” One is perhaps never more marxist than when one is disputing other marxists’ reading of Marx. From my reading of Marx I think the view that takes his critique of political economy as amoral is mistaken. If readers can find any textual support for that view, well, so much the worse for Marx — better the Marx of moral outrage. On these matters and on much else I recommend highly Tony Smith’s Beyond Liberal Egalitarianism and E.P. Thompson’s writings on socialist humanism from the late 1950s and early 1960s.)

Critical theory helps express this aspiration for justice, it helps us to articulate the point that some social and economic institutions should be done away with altogether rather than transformed from the inside, and it helps us to conceptualize a social institution is so that when we say ‘abolish this institution’ we know what we mean. The concept of underdetermination has some limited use in underscoring the capacity for unjust social institutions and patterns of power relations to persist through reorganization, but a critical legal perspective needs significantly more theoretical resources than the theory of underdetermination provides.

Legal work at most offers the capacity to revise social patterns – to change the “foundational rule sets” that structure institutions and, by doing so, to produce distributive improvements.

Finally, I am skeptical that legal work offers transformative potential. Marxist critical theory has emphasized robust kinds of social transformation, namely ending fundamental social patterns and unjust power relationships. That does not seem to happen via legal work. Legal work at most offers the capacity to revise social patterns – to change the “foundational rule sets” that structure institutions and, by doing so, to produce distributive improvements. That matters in people’s lives and is in to some extent transformative. Still, the idea that legal work can be transformative expresses a much less expansive notion of social transformation than the marxist traditions of critical theory have tended to articulate, and a much less ambitious political imagination.