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PORTSIDE CULTURE

TOWARDS A MATERIALIST THEORY OF LAW  
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Rosie Woodhouse
July 5, 2024
Marx & Philosophy Review of Books
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_ This book, writes reviewer Woodhouse, "aims to revitalise Marxist
legal theory that has lagged behind the disciplinary flourishing of
Marxism elsewhere." _

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_Subjectivation and Cohesion
Towards the Reconstruction of a Materialist Theory of Law_
Sonja Buckel
Haymarket Books
ISBN: 9781642595949

It is commonplace to preface an inquiry into Marxist approaches to law
with how Marx’s own writing on law was so fragmentary that it cannot
resemble something like a comprehensive _theory_ of law. Increasingly,
then, Marxist legal literature has sought to deploy certain
methodological tools that extend Marx’s legacy into law, questioning
the given intellectual headliners of a relatively undertheorised area
of social life. _Subjectivation and Cohesion_ is an intricately
presented and far-reaching contribution to this effort. By
reconstructing legal theory beyond but in the tradition of Marx,
_Subjectivation and Cohesion_ avoids having to answer to occasionally
‘unfruitful’ (97) intra-Marxist debates on law by contextualising
and pushing this scholarship into a developed critical legal theory
that is rigorously and generatively materialist.

Buckel understands the materiality of modern law as that of a form of
social practice. By working in tandem with capitalism’s other forms
of appearance, the ‘legal form’ helps produce a society in which
people lose control of their relations – an insight typically
attributed to the social predominance of the value-form. However, in
plumbing a wide-ranging set of disciplinary resources, Buckel, who
articulates the legal form at base as a ‘technology of power’
among many, aims to revitalise Marxist legal theory that has lagged
behind the disciplinary flourishing of Marxism elsewhere. Hence
_Subjectivation and Cohesion_ does not focus on the law or Marx’s
writing _as such_, but capitalist social formations and the
interconnections between them more broadly, centring ‘how the legal
form works, not how it is derived’ (213).

_Subjectivation and Cohesion_ is presented in four parts. In the
first, Buckel mirrors Marx’s critique of political economy in
_Capital_ by detailing and critiquing the prevailing (liberal)
theories of law’s role in society: systems theory (Luhmann/Teubner)
and the intellectual tradition surrounding Habermas. In Part Two,
Marxist legal theory is chronologically reconstructed through its
historical and changing political contexts: from its Russian and
German foundations in the 1920s and 1930s with the Russian Revolution
and Weimar Constitution; past the ‘crisis of Marxism’ of the 1970s
and the fall of the Soviet Union; to the influence of the
‘Franco-Italian Theory Strand’ and, as noted perhaps
‘surprisingly’ but in dedication to viewing the law as a relation
and technology of power, Foucault. Part Three and Four concern
Buckel’s own reconstructed materialist theory of law, which
preserves and integrates the most significant conceptual insights from
the previous sections. Here the law’s twinned working social
processes – subjectivation, or its capacity to produce subjects
‘isolated in relation to each other’, and cohesion, which
‘tie[s] together those individuals in a precarious social whole’
(213) – are made answerable to the initial materialist paradox posed
by Buckel at the outset that has long concerned critical theorists
including Marx, that is, how modern law can simultaneously act as a
source of emancipation and violence in a way that relatively delimits
both.

The discussions in and between these four parts can be novel,
particularly for Anglophone readers, due in large part to the deep
weft of Marxist and unsuspecting materialist thinkers Buckel draws
together across epochal and geographical boundaries. For instance, her
fascination with systems theory is that it identifies the law’s
independence as its own base, as a ‘system unto itself’ (7). In so
doing, systems theory can _immanently_ ‘speak’ ‘from inside the
legal form’ (23), naming the reification of social relations in the
vein of Marxist fetishism, yet precludes the capitalist character of
the systems it describes and so must, it seems, constantly make up for
itself wherever its own descriptions become self-reifying.
Nonetheless, the utility of the theory (perhaps ‘against its
authors’ will’ (62)) is that it can extend the political
shortsightedness and economism of Marxist legal theories which
‘consider law as a mere reflex of a base, whatever it may be like,
or as an immediately accessible object for political actors’ (63).

Arguing for the relative autonomy and reifying effects of the legal
form is convincingly justified and runs a thread throughout the
book’s progression, taking shape through the thought of Habermas,
Pashukanis and Poulantzas, into Buckel’s own theoretical
adumbrations that lift off from Foucault. One of Buckel’s most
significant theoretical moves is the positioning of Poulanztas as a
hinge point between Pashukanis and Foucault, reworking both away from
their well-documented shortcomings. The piquing attention to
Pashukanis in critical legal scholarship (this year marks the
hundredth anniversary of his _General Theory of Law and Marxism_ and,
following on from sustained recent attention, accordingly a whole
swathe of intellectual outputs are marking it) will certainly benefit
from Buckel’s reading. For Buckel, by disallowing the subsumption of
legal theory under state theory, as with the German theorists of law
in the Weimar Constitution era, Pashukanis gauges most explicitly how
the law reifies social relationships in a way that escapes people
(108). Despite Poulanztas’ ‘misunderstanding’ of Pashukanis as
veering into economic determinism (138), Buckel reads Pashukanis
_with_ Poulanztas’s relational theory of power to reconstruct the
relative independence of the legal form, simultaneously allowing her
to arrive at Foucault’s politically constituted and differential
concept of subjectivation over, say, Pashukanis’ legal subject.

Making these theories ‘accessible to each other’ (162) is no easy
task, and Buckel must belabour finding a way through pluralist
conceptions of power and more explicitly Marxist materialist theory
somewhat. Of great aid in this task is _Subjectivation and
Cohesion_’s structure. Through historical contextualisation the
theoretical differences are clearly explained, with each thinker
expounded carefully for their utility and criticised in turn,
sharpening as Buckel brings in the overwhelming neglect of how gender
operates alongside class as a further ‘structuring principle’ in
the formation of power relations. In materialist fashion, Buckel’s
own theory structurally moves as much as possible from a high level of
abstraction to the concrete, from ‘structuring principles’ and
form analysis to social formations and institutionalisation (214ff.).
The English translation of _Subjectivation and Cohesion_ comes nearly
fifteen years after the original 2007 German edition and has not
included a further chapter with an empirical investigation into the
case law of European fundamental rights, which would have read as
starkly out of date in the English reprint. Yet Buckel’s commitment
to the methodological operationalisation of Marx is not only
consistent but crucial for holding together her research and
arguments: gauging an ‘ideal-type’ materialist theory of law
(again akin to _Capital_) and its fundamental contradictions. The law
is hence conceived not as extra-economic violence but closer to a dull
compulsion, leapfrogging over the historical dead ends of Marxist
theories of law that she identifies.

As a side, in foregrounding gendered power relations, Buckel likewise
refers to other structuring principles of social hierarchisation such
as race: despite not being a focus of the book, there is perhaps a
little too much unselfconscious overgeneralisation in Buckel’s
paragraph on ‘racialisation’, which could have benefitted from
further attention (220).

On close reading, it is intriguing that throughout _Subjectivation and
Cohesion_ Adorno (and to a lesser extent, Hegel) is repeatedly turned
to to qualify Buckel’s arguments but is not then expounded in her
own theory. Yet Adorno acts as one of Part Four’s impetuses for
sketching out emancipatory potentials of law _qua_ the social division
of labour (208). For instance, Habermas and systems theory are
critically read via Adorno for their Kantianism (28), and there is an
Adornian glimmer in the argument that Foucault’s subjectivation
follows a more generative understanding of real abstraction than the
subject in Pashukanis. Following Adorno, for Buckel, Pashukanis’
theory ‘abstracts more comprehensively than “the thing in
itself”’ (207), insofar as the legal subject is not, ‘as in
Pashukanis an abstraction of “real” human beings raised to the
skies, but the medium that actually constitutes the subjects’ (202).
In Part Four on ‘self-governance’ – perhaps to tie back in the
Italian Marxist viewpoint, Habermas’ work on communication and
networks and, more broadly, the critical theoretical obsession with
the ‘information society’ of the 1990s and 2000s – Buckel’s
emancipatory division of labour instead refers among others to Virno,
Hardt and Negri of the ‘multitude’ (273). This is the first point
where the tension between pluralism/biopolitics and Marxist
conceptions of power compatibility-wise becomes strained, with Part
Four self-admittedly running thinner on the ground compared to the
previous sections. This is primarily down to Buckel’s astute
critique of ontological or anthropological conceptualisations of the
subject up until this point. Yet relying on theory that identifies an
_ontological change_ to the status of labour in post-Fordist
production processes as the basis of another form of socialisation or
‘cooperative autonomy’ runs up against the problem of where
Marxist critique arrives at moralistic end points, at the
self-productivity of labour and simple predation of capital. Again,
this criticism is only to place _Subjectivation and Cohesion_’s
fidelity to the theoretical forefront at its original time of writing,
rather than a deconstruction of the coherence of Buckel’s theory, as
since the ‘multitude’ has been for a large part left aside by
Marxists.

If Part Four acts as an adumbration of the emancipatory potentials of
law inspired by theories of capitalist socialization and reproduction
that methodologically ‘operationalise the reified social process’
(121) – towards democratising the legal form – then the dropping
out of the Adornian undercurrent is interesting. Nevertheless,
_Subjectivation and Cohesion_ presents an ambitious theoretical
process, the development or _education_ of legal thought. Buckel’s
reconstructed ‘ideal-type’ materialist theory of law will be
valuable to further analyses which seek to, like Buckel, make use of
the tradition of Marx for the most pressing exigencies related to the
law’s ordering of social life.

Rosie Woodhouse is a PhD candidate in Law Studies at the University of
Warwick. She works on property, power and the speculative social
philosophy of Gillian Rose.

* Marxism
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* law
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* materialism
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* theory
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