This post is part of a symposium on Katharina Pistor’s The Law of Capitalism and How to Transform It. Read the rest of the posts here.
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In her new book, Katharina Pistor puts forward a general theory and critique of “capitalist law”—that is, the law that enables the appropriation of collectively produced resources for private gain. In doing so, she defends a more ambitious version of the thesis—already central to her influential The Code of Capital—that law is constitutive of capitalism. Indeed, for Pistor, capitalism’s durability cannot be explained by appeal to a narrow understanding of material economic power. Instead, law must be understood as “productive force in its own right.”
This strong version of the constitutive thesis has repeatedly attracted criticism, particularly from Marxist scholars, either for wrongly attributing causal power to legal structures altogether, or for lapsing into a form of “juridical idealism,” where law wields a “demiurgical, worldmaking power.” The debate over the relationship between law and capitalism is, of course, considerably richer and more nuanced than this dipole suggests. Between the idea that law itself has no independent causal role and Pistor’s particularly strong account of law as a productive force, some understand relations of production as historically specific and socially constituted, including through juridical and political relations, while other CLS-inspired accounts emphasize law’s plasticity and relative autonomy.
These competing conceptions differ not only in the analytical clarity they offer about the relationship between law and capitalism, but also in what they do: what theories of social change they make available, where they locate possibilities for political agency, and what kinds of political energies they might unleash. Of course, analysis always conditions action, in the sense that it makes certain strategies appear plausible and others not. But for a critical theory oriented towards social transformation, being “right” cannot be separated from what a theory does: how it mobilises and directs social forces and energies.
Even if a deterministic account were somehow ontologically “right,” a theory that renders historical development effectively automatic would offer little to an emancipatory politics. For instance, my concern with G.A. Cohen’s analytical Marxism and Jeremy Kessler’s historical materialist analysis is not primarily that I find their understanding of productive forces unconvincing, but that their tendency to sideline class and political struggle risks producing a fatalism that drains political imaginaries and narrows the terrain of political action. Perhaps this type of historical materialism is right. But if it is right in a way that leaves very little space for purposive political action, why should an emancipatory political project organize its understanding of history and society around that truth?
In what follows, I want to take a similar perspective on Pistor’s specific conception of “law as a productive force.” What does thinking about law in this way actually do? What possibilities for agency does it open up, what political forces might it activate, and what strategies of social transformation does it lead us toward? On the one hand, it gives rise to an arguably narrow and legalistic theory of change that falls short of the empowering promise it encloses. On the other hand, read in a more materialist light, Pistor’s reconstructive orientation reflects an intuition that is essential to emancipatory politics—that freedom itself requires institutional actualization of social interdependence.
A Materialist Reading
Pistor’s normative and reconstructive ambition centers on the aspiration to infuse private law with substantive principles of justice, based on the capabilities approach. Yet it is precisely at the point of reconstruction that the limits of her underlying constitutive thesis become visible. If law is a “productive force in its own right,” then changing the normative principles encoded in private law appears capable of changing the social relations that law helps to produce. This move is problematic in three related respects: it sits uneasily with Pistor’s own analysis of the capacity of private actors to capture and strategically mobilize legal institutions; it is too voluntarist in moving from the redesign of formal legal categories and doctrine to their effects on social relations; and, paradoxically, it is too narrow and legalistic in channelling the transformative promise of the constitutive thesis into a project of doctrinal reconstruction.
The fact that social relations of production have a juridical character does not imply they are by default malleable, as Pistor also recognizes. Pistor attributes their stickiness and resistance to transformation primarily to the resources and strategic mobilization of private actors, as well as to the complexity of global legal ordering. This explanation echoes the account developed in The Code of Capital, where lawyers appear as “masters of the code,” deploying their legal expertise in the service of private power. Yet this explanation is only partially satisfactory. Although it explains how legal coding is captured by private power, it does not explain the structural conditions that make such capture possible, recurrent, and predictable.
The persistence of capitalist social relations of hierarchy and domination must also be explained by attending to the ways in which historically sedimented relations of power become inscribed within the institutional architecture of the state. As a result of path dependence and congealed relations of production emerging from past and present class struggles, the state has inbuilt biases, which privilege certain actors and interests over others. In Bob Jessop’s strategic-relational approach to the state, these structural biases are not absolutely constraining and whether, how, and how much they are actualized depends on the changing balance of forces. Nevertheless, any actors operating on the strategic terrain constituted by the state are themselves partly constituted by the inbuilt biases of state power.
This means that placing hope in lawyers as agents of social change is to a significant extent misplaced insofar as it fails to account for how their agency is itself constituted and constrained by structures in which historically sedimented relations of production and power are already inscribed. The point extends beyond lawyers. This reading places the constitutive thesis within a path-dependent but recursive account of institutional change: the possibilities for transforming institutions are themselves shaped by the structural biases inherited from past struggles.
This perspective on the limits of agency and legal reform casts a shadow over Pistor’s project of developing a just private-law code in two related ways. First, any effort to infuse private law with principles of substantive justice would remain subject to the same structural biases and strategic selectivities that shape existing legal regimes. In other words, just as Pistor shows with respect to contemporary private law, a more substantively just version of it would still operate under conditions of indeterminacy, combined with historically entrenched distributions of entitlements and resources. As a result, even moderate reforms could be diluted or neutralized by strategically positioned private actors. This concern arises even before accounting for the disciplining force of competition, which creates systemic incentives for private actors to circumvent, undercut, or erode more demanding legal standards, and thus operates as a built-in constraint on progressive legal reform.
Second, if one takes seriously the existence of inbuilt structural biases and the consequently limited—though still real—scope for agency, meaningful private-law reform cannot take the form of doctrinal redesign separated from transformations in the broader balance of social and political forces. This relationship, however, should not be understood one-directionally or sequentially. Legal transformation requires bottom-up energies, civic mobilization, and organized political forces capable of contesting the systemic biases that privilege existing configurations of private power; but legal transformation can itself alter the terrain on which those forces operate, redistributing resources and capacities and opening possibilities for further transformation. This is what the scholarship on non-reformist reforms captures well. Pistor is right that “the transformation of the existing system will not happen in a single leap.” The challenge is to ensure that reforms serve not as endpoints, but as stepping stones toward dismantling the structural biases in favor of capital and constructing a democratic political economy.
The economy as a space of collective self-legislation
Read through these materialist qualifications, however, Pistor’s account preserves a crucial space for political action by posing a question that belongs at the core of emancipatory politics. To recognize the function of private law in operationalising contemporary capitalism and to ask how it might be reconstructed is to ask how the institutions organizing our economic interdependence could become forms through which freedom is socially realized. The intuition is a broadly Hegelian one, carried into contemporary critical theory through the idea of social freedom: freedom is not anterior to social interdependence but rather becomes actual where subjects can recognize themselves in, and exercise collective authorship over, the institutional forms through which that interdependence is organized.
In this light, Pistor’s analysis and reconstructive programme frame the allocation of productive and investment resources as not merely politically contingent—as a legal realist might—but also as a domain over which collective self-legislation can be claimed. In other words, it is to see the private as a domain in which those subject to relations of economic interdependence could—and must—also become authors of the institutional forms through which those relations are organized. Understood in these terms, and with the materialist caveats introduced above, the constitutive thesis has implications considerably more radical than Pistor’s just private-law code. It points towards challenging the separation of economic ordering from democratic self-government itself in ways that “ought to make socialism and democracy synonymous.”
