Within the LPE movement, there is a broad consensus that “law is central to the creation and maintenance of structural inequalities in the state and the market” and that “class power is inextricably connected to the development of racial and gender hierarchies.” These claims, while often articulated in response to neoliberalism, go to the very origins of capitalism and its particular patterns of inequality.
According to Sam Moyn, capitalism and the ills it is said to generate are nothing more than a contingent jumble of various legal rules and regulations. Indeed, “capitalism” is merely a term of abuse, to which nineteenth-century thinkers made a misguided attempt to attribute “general laws.” This critique, however, overlooks the extent to which Marx’s conception of capitalism is itself historically specific, even contingent. Capitalism is not a consequence of ineluctable laws of nature, human or otherwise, but a fortuitous convergence of a peculiar constellation of social relations and institutions.
Sam Moyn’s recent call for a renewed interest in a radical theory of law is timely and welcome. However, if LPE wants a social and legal theory adequate to its ambitions, we cannot turn to the insights of the earlier CLS movement to develop it. This is because CLS, in the relevant respects, did not have (much of) any theory at all.
Sam Moyn has recently challenged what he sees as the “theoretical quietism” of LPE. Yet this resistance to high-altitude legal and social theory is entirely justified. The most productive theorizing, which involves contesting and clarifying the mid-level legal and economic concepts that have the most effect in the world, will occur a step below these abstract heights. It is here that LPE scholars should continue to focus their attention.
The idea that LPE is lacking in legal theory, as Sam Moyn has recently claimed, depends on what counts as legal theory. If we take Legal Theory to be a subject that is defined by the Marxism-related anxieties of CLS, then LPE work is severely under-theorised. If, instead, we endorse an idea of legal theory without capitalisation – a way of writing about law that is explicit and explanatory about our assumptions – then many LPE scholars have been analytically generous in presenting their understanding of law and political economy, even if more remains to be done.
The NLRB’s recent Cemex decision should discourage employers from resisting unionization and therefore make it easier for workers to gain bargaining rights. But how should we understand the basis of this decision? Brishen Rogers considers the case from three theoretical perspectives: the liberal legalist, the progressive functionalist, and the low-key Marxist.
Sam Moyn has recently suggested that the LPE movement should embrace an underlying account of what law does — and by extension, an account of capitalism and the state. But no single theoretical perspective, however self-consistent and well fortified, can match the complexity of our world. If we are to acknowledge this reality without falling into social-theoretic nihilism, we must take seriously the practice of theoretical pluralism.
Are we liberals or low-key Marxists? What is our theory of the “capitalism” that we so often attack? And above all, how do we understand the role of law in the making and unmaking of social order? Sam Moyn kicks off a new year at the Blog by asking whether the Law and Political Economy movement needs deeper theoretical foundations than it has so far been willing to articulate.