In the LPE community, issues of race, class, sexuality, and environment are sometimes referred to collectively as “social and ecological reproduction.” In this post and others to follow, I want to think about the place of the social and the ecological in “law and political economy.”
As others have written on this blog, one of LPE’s central commitments is the idea that economic and political governance are both constituted through legal rules, reasoning, and institutions. A second commitment is that in a democratically constituted society, economic governance ought not to be treated like a fully autonomous machine, but rather as bound to some extent by political norms. These ideas, of course, are not new (even to legal scholarship, which tends to be a late adopter of new ideas). But they have new force today. As the late Erik Olin Wright observed in a paper on “strategic logics of anti-capitalism,” in the early decades following World War II (the “Golden Age of Capitalism”), federal government policy worked to ameliorate the most damaging effects of capitalism in at least three ways: reducing the exposure of households to catastrophic risk through social insurance; heavily subsidizing public goods such as libraries, education, transportation, parks, and basic science research and development; and creating a regulatory regime to address some of the most devastating “negative externalities” caused by corporate capital, including environmental degradation, predatory market behavior, and workplace exploitation. The reversal of all of these policies, here in the United States and elsewhere in the world, goes under the name “neoliberalism.” And “law and political economy” is critical legal scholarship reinvented for the age of neoliberalism.
What, though, does LPE want? Would rolling back neoliberalism lead us to pack away our laptops and go home? Take, for example, some infamous features of the “Golden Age:” the omission of agricultural and domestic workers from the Fair Labor Standards Act, the endorsement of “redlining” by the Home Owners Loan Corporation, the embrace of gendered labor markets, and the failure of the federal government to provide free child care (let alone abortion and contraception). Stirring as FDR’s “four freedoms” speech continues to be, I wouldn’t want to live in 1941. We need to do more than un-install the neoliberalism app; we need to change out the operating system, and that operating system runs on caste.
What might the term “social and ecological reproduction” do for an LPE research agenda? On the negative side, it might suggest a core-periphery relationship between LPE and what political theorists call “the social.” “Social reproduction” might imply that there is a pre-existing social world, that it “reproduces” in some unspecified way, and that the whole process is ancillary to the topic of Political Economy. This causes my feminist spidey-sense to tingle. While Politics and Economics are being public (and productive), are the ladies off in a private corner doing their reproductive thing? That can’t be right.
On the positive side, “social and ecological reproduction” suggests a historical materialist approach. Friedrich Engels reminds us, “According to the materialist conception, the determining factor in history is, in the ﬁnal instance, the production and reproduction of immediate life.” This includes “[o]n the one side, the production of the means of existence, of articles of food and clothing, dwellings, and of the tools necessary for that production; on the other side, the production of human beings themselves, the propagation of the species.” If we allow into “materialism” not just technology but also culture and ideology – ideas that do things – then social reproduction includes ideas about bodies, relationships, and populations that are or are not productive.
And law, of course, is both a technology for doing things and a language for saying things.
Taking social reproduction seriously from a historical materialist perspective might turn LPE’s attention to key moments of legal production, some of which predate the founding of the United States. Consider, for instance, the papal bull “Inter Caetera,” issued by Pope Alexander VI on May 4, 1493. The bull stated that any land not inhabited by Christians was available to be “discovered,” claimed, and exploited by Christian rulers and declared that “the Catholic faith and the Christian religion be exalted and be everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself.” This “Doctrine of Discovery,” embraced by Chief Justice John Marshall in Johnson v. M’Intosh, became the basis of all European territorial claims in the Americas, and set Indigenous peoples in the Americas outside the “Family of Nations,” the source of today’s international law.
Fast forward to 1662, when the House of Burgesses of the Virginia colony passed a statute embracing the doctrine of partus sequitur ventrem. This doctrine, which by the seventeenth century was the law in all of the English colonies, provided that, in contrast to the English common law under which children took on the status of their father, the offspring of a child born of an enslaved parent followed the condition of the mother. In material terms, the doctrine established what Alyss Weinbaum calls “reproductive extraction” as central to American racial capitalism, placing the fertile enslaved woman’s body at the zero point of production as well as reproduction. In ideological terms, as Hortense Spillers has written the doctrine disrupted kinship and “ungendered” enslaved men and women alike.
The operating system on which neoliberalism runs – American political economy – was built on these jurisgenerative moments, and it continues to reproduce relations of caste through property, race, kinship in the space marked “the social.” The lives that matter and don’t, the populations that are and are not “native,” the poor who are and are not deserving: if LPE is to not just roll back neoliberalism but to reconstitute democratic and economic governance with the goal of human flourishing, reckoning with the Social is required.