U.S. Intellectual History Blog

More Thoughts on E.P. Thompson, Historical Materialism, Law (Now With 48% More Robert Brenner!)

In last week’s essay, I suggested that the “cultural worker” (the figure about whom I am writing my dissertation) is a creation of the law.

What I would like to do with this essay is to continue with the theoretical writing about law and Marxism that we began last week. With E.P. Thompson’s Whigs and Hunters, we tried to map out some of the coordinates of a historical materialist theory of law and culture.

This week, I want to think a bit about Thompson and law in light of Robert Brenner’s systematization of historical materialism, beginning with his famous essays on the transition from feudalism to agrarian capitalism, through to his more recent works on late capitalism’s profitability crisis. While Thompson always resisted the kind of axiomatic theorization that stands at the center of Brenner’s work, I don’t think it does any violence to Thompson’s project to wed Whigs and Hunters’ analysis of law to Brenner’s general scheme.  

Brenner’s vision of Marxist historiography is one that takes models seriously. The inspiration lies in the mainstream economic profession’s heuristic models. As Mary Morgan (in the excellent recent text The World In The Model) reminds us, model-making in general is ancient, while economic modeling is new. The latter finds its differentia specifica in its demand that a model’s internal components be manipulable, with tweakable parameters.

The economic model, then, is not simply a spatial representation (of a solar system, or a great chain of being): it is a tool, meant to generate outcomes on the basis of initial inputs. This is surely an extremely crude description of how economic modeling works today (especially in new areas of dynamic, multifactor modeling), but that’s fine. The kinds of models with which any Marxist historian might profitably work are necessarily closer to the early hydraulic experiments of Irving Fisher or the “little apparatuses” built by John Hicks than they are to contemporary computer-driven research tools.

Brenner shares a fascination with economic modeling with other scholars associated with “Analytical Marxism” and “Rational-Choice Marxism” (Brenner contributed to the classic 1986 anthology Analytical Marxism, edited by John Roemer)––Jon Elster, G.A. Cohen, Erik Olin Wright, Adam Przeworksi, and Roemer. The term “Political Marxism,” however, with which Brenner is associated nowadays, was likely invented (by whom, I don’t know) with the deliberate intention of creating distance between Brenner and these tendencies. Brenner remains faithful, however, to several core premises of “Analytical Marxism”––in particular, its will-to-model––perhaps now more than ever. In this light, we should see “Analytical Marxism” as containing a baby who should not be lost with the bathwater.

The “baby” most in need of rescue is the “elaboration of explicit models,” which Erik Olin Wright identified as “Analytical Marxism’s” central contribution:

“One of the striking characteristics of Analytical Marxism has been the use of explicit abstract models, sometimes highly formalized as in game theory, other times somewhat less formalized as causal models.  Many Marxists… find such models objectionable on the grounds that they involve such dramatic simplifications of the complexity of real world situations that they cannot possibly deepen our knowledge of the world.  Analytical Marxists counter such objections on several grounds. First, the fact that models constitute simplifications of complexity is not in and of itself a failing, but a virtue. This is precisely what we want a good theory to do: to get to the heart of a complex problem by identifying the central mechanisms involved. Second, the essential structure of a formal model is to create a thought experiment of some process. That is, one is forced to specify the underlying assumptions of the model, the conditions which are treated as parameters, and the ways in which the mechanisms work. The clarity forced upon a theorist by making explicit such assumptions and arguments is desirable. Furthermore, since in real-life social situations it is generally hard to construct real experimental conditions for revealing the operation of causal mechanisms (or even, through comparative methods, quasi-experimental designs), thought-experiments are essential to give plausibility to the causal claims we actually make about any concrete problem. Finally, it is generally the case that lurking in the weeds behind every informal causal explanation is a tacit formal model. All explanatory theories contain assumptions, claims about the conditions under which the explanation hold, claims about how the various mechanisms fit together. The difference between what Analytical Marxists do and what many historical and empirical Marxist researchers do, then, may be basically a question of the extent to which they are prepared to put their cards on the table and articulate the causal models in their theories.” (Erik Olin Wright, Classes, 187).

To summarize (or beat a dead horse): what is new about “Analytical Marxism” is the explicit use of  “abstract models.”

Wright acknowledges that many Marxists critique the use of economic modeling as leading to “dramatic simplifications of the complexity of real world situations that they cannot possibly deepen our knowledge of the world.” Conceding that models do, indeed, simplify, Wright insists that this is a strength, not a weakness, of model-based Marxisms. We might say that, as with the Borgesian allegory of the map so detailed it covers the same amount of territory as the surveyed land, every historical analysis contains a “dramatic simplification of the complexity of real world situations”—at least, Wright asserts, Marxist modelers “put their cards on the table.” For Wright, the essence of Marxist inquiry is the “thought experiment,” which forces the researcher to articulate underlying assumptions, acknowledge which conditions are artificially stabilized while others are treated as parameters, and account for change in a linear, causal manner. Those who protest the loudest about the inherent reductionism of models are usually those who are most phobic about coming to terms with their own presuppositions.

I find nothing in this paragraph that an E.P. Thompson would disagree with (provided that the model-making was seen as part and parcel of historical research into the real lives of actual people in concrete situations). I am drawn to this conclusion because Thompson consistently acknowledged his intellectual debts to the British Marxist economist Maurice Dobb, and Dobb was an early pioneer of such thinking (though he did not present himself as such).

In his Studies in the Development of Capitalism, Dobb assumes many of the most controversial positions later adopted by “Analytical Marxists.” First, his perspective is, without question, “methodological-individualist,” or reliant upon “micro-foundations.” That is, Dobb assumes that his basic unit of analysis is the given solitary individual, making decisions about where to allocate resources, given certain bounded conditions. Dobb wants to know how, given the situation in a given locality in 14th century England, a feudal lord or vassal or peasant makes decisions. The sum of these decisions, in aggregate, over time, amounts to the historical process that traditional Marxists describe as the linear sequence of one “mode of production” after another.

Marx’s two major philosophical innovations—the notion of “class struggle” and the idea of social “contradictions”––come into play, in Dobb’s view, largely as a result of  unintended consequences. This notion is now so central a tenet of political sociology, and to the field that is known in the US as “American Political Development” (APD) that it is unlikely to strike the reader as particularly earth-shattering.

Yet, it is also true that many Marxists, seeking to coordinate base and superstructure, resist this kind of analysis; much more common are “just so stories,” the least appealing of which have a decidedly conspiratorial cast.

In stark contrast to the too-tidy stories sometimes marketed as “Marxist,” Brenner develops Dobb’s premises into the basis for a messier, more processual, and contradiction-laden historical narrative (indeed, it is rare to hear a Brenner talk on any historical matter that clocks in at under two hours).

From Dobb’s conceptual arsenal (and, of course, one can always trace these notions back to Marx of the Grundrisse and Capital), Brenner extracts and refines the idea that the key determinant of class is placement within a society’s “social-property relations”; recovers the key opposition “extra-economic coercion”/“purely economic coercion” (the idea here is that every society with some version of a state relies on the threat of violence to extract the surplus from the direct producer, with the exception of capitalism, which delegates this task to the “market”); and, perhaps most importantly, discovers the concept that each society contains distinctive “rules for reproduction,” at the level of both the system, and of the individual subjects within it.

These rules are not carved in stone: one can ignore them, and be an outlaw; one can get lucky, and inherit a fortune; one can get unlucky, and die of the Plague. At a general level, in aggregate, however, they are functional. What a historian must discover, then, is: first, what a given society’s “rules for reproduction” are and how they are enforced; and secondly, how it would be possible for such an order, characterized by more or less strict compliance on the part of its members, to ever change into a different type of order, with different “rules for reproduction.” That’s not an uninteresting question, nor, at least as far as I can tell, is it an unappealing way to approach the matter. 

What Dobb points towards, and Brenner takes up, is the theme that Thompson emphasizes throughout Whigs and Hunters. A given ruling class, seeking to enhance its position and gain easy access to revenues, gains control of the state, and perceiving the members of  subordinate classes to weak to resist, begin to limit access to the Royal Forests (an important source of food and kindling). To the degree possible, the victims of this offensive resist. The battle is played out in courts of law: institutions that the members of the elite both resent, and also desperately require in order to do business.

The courts, as a result of a long ideological process stretching back to early Middle Ages, must at least appear to treat all parties justly; and thus while elites would prefer to have a law that was uniformly sensitive to their needs and desires, the ruling ideological contradiction of the moment meant that this law was preferable to no law at all. Out of all of this, finally, over time, would emerge further unintended consequences—most importantly, the slow and steady immiseration of the agrarian lower classes, who would slowly lose all non-market access to the means of reproduction, and thus join the desperate thousands seeking proletarian work in the new manufacturing hubs like Manchester and Liverpool.

My summary would go something like this: in Whigs and Hunters, E.P. Thompson lays out a coherent theory of historical development (at least in the West) as a product of power relations between groups that dominate, and groups that are dominated. The source of this domination is the extraction of an economic surplus from the latter by the former, backed by threat of force. The name for the mechanisms that sustain this threat of force, and process the antagonisms that result from it, is “law.” Because the motor of the system is “threat” rather than the “force” itself, we move immediately to locate much of the law’s symbolic efficiency in the realm of culture. Wherever we begin—1576, 1632, 2004––we find actors arrayed in this pattern, and we see law as the glue that holds the formation together.

So far, so good. Here, Thompson is entirely in agreement with an ostensible foe like Nicos Poulantzas. He takes pains, in Whigs and Hunters, to point out that he has no quarrel with the sociological rudiment that law is the emblem of a potential violence. At the level of fantasy, always, and reality, often, Thompson would not disagree that the hypothetical limitlessness of the sovereign’s legal right to destroy the bodies and property of his subjects is terrifying.

Thus, when Thompson describe the slow emergence of civil liberties within the English legal order as a “good,” we should recognize that every identifiable rhetorical resource is being marshaled to simultaneously signal that law is also, in potentia, brutal, obscene, terroristic. Chief among these rhetorical maneuvers is the placement of the argument after 200 pages of careful demonstration of just how brutal, obscene, and terroristic the law (in the form of the Black Act) was in the transition from post-feudal absolutism to capitalist liberalism.

Thus, although a scholar like Poulantzas seems more “hard-boiled” than an E.P. Thompson—more insistent on law as a medium of interpellation, more invested in a holistic condemnation of the state form––I think that the reverse is true. Thompson is an extreme cynic about ruling classes, and the sorts of societies they produce.

The importance of the law, then, is that it is a product internal to the system that generates contradictions—particularly the values of universalism, disinterest, and fairness––that can be taken advantage of by the poor. The law is not the only tool of resistance available to the poor (thus he writes of anonymous threatening letter writing campaigns, “rough music,” fence-breaking, etc.), but to the degree that infra-political forms are infra-political, the frame is usually that of the licit and illicit. Should an anti-enclosure fence-breaking movement pick up enough steam, the gaze that will determine its effectiveness will be that of the law—which might decide, as in Whig England, that the punishment for fence-breaking ought to be changed from a fine to a public hanging; but might also decide that police considerations demand rather a reversal of the hated enclosure laws that precipitated the protest. Such reversals are known to history; it is not too much to say that they constitute a large percentage of the cases contained within the dossier entitled “class struggles.”

5 Thoughts on this Post

  1. I realized that an awkward bit of phrasing at this essay’s start may have promised a fuller–undelivered–discussion of Brenner’s use of modeling vis-a-vis the transition from feudalism to capitalism and the ongoing crisis of capitalism.

    The former overlaps substantially with Dobb, (and discussion of it can be found in many places, elsewhere)–here I will just say that the key question is how “social property relations” changed, leading to new “rules of reproduction”–all of which resulted in a productivity breakthrough in agriculture, within the English countryside, that would re-shape the entire political economy of the globe.

    Without wishing to sign off on all of this (one notices that colonialism and slavery are conspicuously absent), and offering this analysis for propadeutic purposes, I would just want to underline Brenner’s emphasis on the rise in “productivity” (and concomitant skepticism regarding development of markets/spread of money economy/technological innovation as causal factors). In Brenner, everything is “productivity.”

    Similarly, Brenner’s explanation of the profitability slump since WWII starts with “micro-foundations” (in this case, firms, rather than individuals) and capitalism’s “rules for reproduction” (within the boundaries of the law, and the limits set for exploitation by class struggle, firms in different countries will seek to maximize profits–typically, by out-producing rivals–and gain market dominance, or at least seek a marginal advantage over other firms).

    Looking particularly at competition between firms with asymmetrical “sunk costs,” Brenner discovers a narrative that would explain choices made at the individual level (presumably seen as “good for the firm” by the firm) that result in a long-term trend towards declining profitability (which presumably would be seen as “bad for capitalism” by all capitalists). This is Brenner’s “malicious circle,” the inverse of Adam Smith’s virtuous one.

    Again, not sure this explanation is complete, in and of itself (in its original iteration, at least it deals insufficiently with both the history of the finance sector, and the more general questions of ideology and hegemony; it is also difficult to see where “racial capitalism” fits in here, and I don’t think we’d want a historical narrative that overlooked that, to say the least). Why Brenner’s work is so valuable (I agree with Perry Anderson, give the guy a Nobel Prize) is that he lays it all out, with the expectation of disagreement and challenge. As opposed to, say, Hardt and Negri (whom I do not wish to pick on, I am a fan of much of what they have written)–you can actually argue with Brenner’s writings, on empirical terms. In other words, it is actually historical historical materialism. I wouldn’t want to not have the various exciting philosophical Marxisms that have emerged since (to place the pin arbitrarily) Sartre–but they need always to be in dialectical conversation with arguments about history.

    • Really, Kurt, for continuing to . Following up on your remark on how racial capitalism and slavery fit into this schema, it seems that the intellectual antecedent would be the “model” of hegemony deployed by the Marxist Genovese in Roll, Jordan, Roll. Here Genovese also understands social struggle at the individual level, as conflicts waged between masters able to act more or less coherently as a class and slaves unable to do so, but one by one able to turn the ideology paternalism against their oppressors. Though armed with total control over the apparatuses of the southern polity, the masters could not so easily use the law to advance their class interests at the point of production in the fields and the slave quarters of the plantation because the law could not recognize the day-to-day negotiations and concessions that made up American slavery.

      While certainly Genovese’s interpretation of resistance and hegemony have been criticized and often rightly so (e.g. Walter Johnson), his Marxist frame remains vital. How should we proceed? Perhaps Roediger and Esch’s The Production of Difference on the deep influence of slavery over managerial prerogatives?

  2. I’d also like to thank Kurt for continuing this series. If anything, it’s proven to be a reminder to me to read up, a bit more, on some of the important Marxist and Marxist-influenced historians!

    I can see how this relates to your idea of the “cultural worker” and the intersection of law and power. Frankly I think it’s a fascinating idea that makes a great deal of sense. I’m intrigued to see where you go next. For lack of a better question, are there particular Marxist thinkers who, for whatever reason, offer radically different descriptions of the idea of law? Or, at the very least, offered ideas that clash with those on display here?

  3. Robert and Kit–thanks so much for these comments. They go well together, in fact, because Kit’s invocation of Roll, Jordan, Roll speaks to Robert’s question about internal disputation re: Marxist theories of law. Genovese’s use of Gramsci as a proxy theorist of law (he claims, oddly, that there basically isn’t a Marxist theory of law in a footnote, when surely he would have been familiar with the great Leninist Bolshevik jurist Pashukanis and the Frankfurt School’s Rusche and Kirscheimer… what Genovese could not find, we might say, was a properly Soviet theorist of law) leads him to construct a vision of law in slave societies that is far more oriented towards the question of “hegemony” than Thompson. Thompson’s idea of law as “class theater,” in fact, is pretty explicitly offered as a counter to Gramscian readings of law’s function.

    The larger question has to do with what the Critical Legal Theorists referred to as law’s constitutive function–the idea that law was an agent of capitalist development, not just a reflection of class struggle in a mirror that hovers above the real action. This was the moment of Theda Skocpol’s classic essay on “Neo-Marxist” theories of the state, which dealt a pretty significant blow to the idea that the law was just a plaything of elites.

    But there were constraints on this project. The old, hated, legal positivism also thought that law was constitutive (the problem with legal positivism is that it saw the law as too autonomous, self-contained, insulated from social and economic pressures); so did Legal Realism (against which the Marxists of the 1970s were also rebelling).

    So the Critical Legal thinkers wanted a strong vision of law as an agent of capitalist development, but could not go with the sort of simple privileging of law as more important than every other “non-material” force that I argue for here.

    Where they went was towards a kind of complicated theory of the American state, which used the law to finance the development of a market economy without creating a centralized state or levying extensive direct taxes. (This is Morton Horwitz’s argument in Transformation of American Law, and it finds expression, in a slightly different form, in the labor law history of William Forbath, Karl Klare, Christopher Tomlins).

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