Portside

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.