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Where Is Race in Law and Political Economy?


Angela P. Harris is Professor Emerita at the UC Davis School of Law.

In their first post on this blog, Amy, David, and Jed assert that “politics and the economy cannot be separated.” Nevertheless, as they also observe, the separation of the two – as, for example, in the idea that economic activity is determined by laws of supply and demand that lie outside the power of governments to influence, other than through misguided “intervention” – continues to influence law and policy. A similar separation runs through scholarship in several disciplines, including law, between the study of economics and the study of race. As the new field of “law and political economy” grows, one of its tasks must be to trouble this separation as well.

We know the separation most familiarly as the “race or class?” question (note the either/or framing). In the affirmative action debate, it manifests as this: Isn’t a poor white kid from Appalachia more deserving of the last spot in a freshman class than a black doctor’s kid? In academic discussions, here’s how it typically goes: All this stuff about race, or more broadly, all of this “identity politics,” is a distraction from the deeper and more fundamental realities of wealth and poverty, production and exchange. Sometimes race distracts because it is considered to be a matter of “culture,” which is “epiphenomenal” to material relations: It’s about exploitation, stupid! Other times, race is considered a distraction for pragmatic reasons, because its appearance is “divisive,” threatening the solidarity of labor, or the electorate, or progressive communities, or women. At still other times, especially within academia, the separation of race from economics looks something like a polite form of intellectual self-segregation: while all the black kids are sitting in the cafeteria together talking about critical race theory, the law and economics kids are at their own table, drawing supply and demand curves and talking about Pareto optimality. To each their own, and everybody’s happy.

But this story of race and racism as either irrelevant to or reducible to the story of production, exchange, and consumption is wrong. Black studies scholars have been saying so for quite some time. In 1935, W.E.B. Du Bois argued that what turned the tide of the Civil War was a mass withdrawal of slave labor, amounting to a “general strike.” In his view, the North’s victory was neither a race story nor a labor story, but a powerful demonstration of how the two were intertwined. Generations later, Cedric Robinson’s Black Marxism provided a similar attempt to take race seriously within a materialist frame, arguing that the Eurocentric origins of Marxist theory left it unable to adequately account for black history.

Contemporary scholars outside black studies are also rediscovering the deep links between capitalism and racism through historical explorations of Atlantic slavery. The emerging literature on the American “history of capitalism,” for instance, keeps finding industrial capitalism’s roots tangled up with those of race. Recent books by historians such as Sven Beckert (Empire of Cotton), Walter Johnson (River of Dark Dreams), Ned and Constance Sublette (The American Slave Coast), and Edward Baptist (The Half Has Never Been Told) recognize that the antebellum American cotton empire was simultaneously a crucible for the births of industrial capitalism, finance capitalism, and the ideology of white supremacy. The Sublettes, in addition, call our attention to the centrality of gender and sexuality to the political economy of slavery, exploring “the way enslaved women’s bodies functioned as the essential production engine of the slave-breeding economy, which in turn fueled a global economy that processed slave-grown cotton into mass-produced cloth.”

These beginnings are useful, but much more work remains to be done. Analyses of “racial capitalism” in the United States still tend to be parochial, limited to the American nation-state and rooted in American slavery. But American slavery was part of a world system of empire and settler colonialism, as Beckert’s book so usefully demonstrates. Indeed, as Onur Ince observes, nation-states are themselves a product of imperial and colonial policy. When tracing the history of capitalism, then, it is better to start with early-modern “colonial empires” than individual nation-states. As Ince notes, colonialism was important not just for organizing and controlling land and labor in newly intensive ways; it also provided, with the help of violence, new ways of organizing social production. Colonial and imperial entrepreneurs found themselves with a free hand in “establishing regimes of bonded labor, extirpating indigenous inhabitants, and wreaking havoc on the forms of land tenure they found in place, from America to India to Australia.” The new political, legal, and social arrangements born in colonialism and imperialism allowed, in turn, “fresh fields of investment, expanded markets . . . and novel forms of economic enterprise called forth by colonial ventures, such as colonial joint-stock companies that prioritized the interests of their ‘shareholders’ over the well-being of the ‘stakeholders.’” They allowed new forms of direct control over men’s and women’s bodies, enabling black bodies to function as capital. As Sylvia Wynter argues, “Man” as the universal subject of history was invented on the plantation, defined against indigenous, immigrant, and imported populations considered savage, heathen, and lacking the capacity for self-determination. “Economics” was invented there, too, Wynter argues – understood not as the science of provisioning for human beings in general, but rather the science of reproducing the material conditions of existence for the production and reproduction of Man.

To understand how this happened, it is necessary to trace the work of legal institutions, principles, and structures in simultaneously establishing and securing the “treadmill” of industrial capitalism and the “racial contract” on which the treadmill depends. For now, we only have suggestive bits and pieces. Anne Orford traces how European lawyers “developed doctrines that rationalized the acquisition of territory for agricultural settlement, posited freedom of trade and navigation as inalienable rights, justified the enclosure of common land, authorized the conduct of imperial trading companies, and justified the policing of dispossessed people who resisted such practices.” Post-colonial international trade law continued the subjugation of the “Third World,” by favoring manufactured goods over primary commodities, as Carmen Gonzalez has shown. Gonzalez traces the twentieth-century emergence of the Washington Consensus, which secured the global North’s economic dominance over the global South even as its legal dominance withered away. In the meantime, the legal-political discourse of “development” sustained, now in the voice of “objective” economic analysis, the colonial story of Western Man and the non-Western Other.

From this perspective there may be a story to tell about economics itself: Macroeconomics as we know it today emerged in the twentieth century as a kind of Plan B in response to the dismantling of empires around the world, as part of a project “to limit and reduce the operation of market competition, through increased management of finance, trade and migration, and above all through the prevention of a global market in labour.” And here we converge with Du Bois again. Du Bois saw white supremacy not only as a way to sustain economic exploitation, but also as a psychological and cultural technology that discredits the image of homo economicus as motivated purely by rational self-interest. As Ella Myers notes, Du Bois is usually cited for his theory of “the wages of whiteness”: the idea that white American workers are willing to consent to economic exploitation in exchange for status superiority on the basis of race. In addition to this utilitarian “compensatory wage” thesis, however, Du Bois also speculated that slavery provided whites with a fantasy of total dominion over the earth and all its products, including other human beings. White supremacy as psychological and cultural fantasy survived slavery and formed the root of slavery’s “afterlife,” in Saidiya Hartman’s phrase. An unacknowledged investment in black inferiority – even black pain and death – is arguably at the root of Americans’ attraction to certain policies and political formations that are irrational, even self-destructive, from a conventional economic perspective.

Part of the mission of “law and political economy,” as I see it, is to broaden our investigation of the relationship between “race” and “economics” both spatially and temporally – beyond the bounds of America as a nation-state, and beyond slavery as a starting point. The proposition is that race is foundational to “law,” to “the political,” and to “the economy.” As the “law and political economy” conversation begins, our task must be both to see what’s at stake in evacuating race from these subjects, and to see what happens when we bring it back in. This blog is one place to do that work.