Law and Transitions to Capitalism
| Published date | 01 August 2023 |
| DOI | http://doi.org/10.1177/09646639221123029 |
| Author | Susan Dianne Brophy |
| Date | 01 August 2023 |
| Subject Matter | Articles |
Law and Transitions
to Capitalism
Susan Dianne Brophy
St Jerome’s University (in the University
of Waterloo), Canada
Abstract
Embedded in early debates about the transition to capitalism is the idea that law and legal
relations play a pre-determined yet artificial role. While this reflects Marx’s general
claims about law and capitalism, the more that the legal sphere is held as the realm of
fiction, the more that the economic sphere’s association to the natural realm grows
in concert. This undermines Marx’s broader objective to interrogate the apparent nat-
uralization of economic rationales in Capital I. In this essay, I dissect the notion of law as
artifice not simply to displace the conceptual association between law and derivation,
externality, or fakery, but to rethink the definitive transformation of labour compulsion
as it is portrayed in the transition debates. Aided by Elleni Centime Zeleke’sEthiopia in
Theory, I ascertain the Eurocentric limits of the early debates, and I recuperate a con-
structive notion of artifice in a way that does not treat law as a derivative phenomenon
prone to stagist interpretations. This perspective informs my call for an approach to law
and ‘transitions to capitalism’that is less enthralled by law’s mystifying force and more
attentive to the material conditions of labour compulsion.
Keywords
law, legal relations, capitalism, transition debates, labour compulsion, eurocentrism
A distinguishing feature of any mode of production is labour compulsion, or more pre-
cisely, the legal relations that demarcate the terms of labour. Marx identifies ‘[d]irect
extra-economic force’Marx (1977: 899) as the defining feature of the pre-capitalist
mode of production,
1
typified by the force that compels the labour of slaves, vassals,
Corresponding author:
Susan Dianne Brophy St Jerome’s University (in the University of Waterloo), Canada.
Email: susan.brophy@uwaterloo.ca
Article
Social & Legal Studies
2023, Vol. 32(4) 626–644
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639221123029
journals.sagepub.com/home/sls
or indentured servants. Conversely, he describes capitalism as ‘amode of compulsion not
based on personal relations of domination and dependency’(1021), where the ‘silent
compulsion of economic relations’prevails in place of direct extra-economic force
(899). When this occurs, ‘formally free labour’emerges accompanied by reconfigured
relations of authority and subjectivity (928), or as Marx puts it: ‘[t]he master now
ceases to be a capitalist because he is a master, and becomes a master because he is a cap-
italist’(1031). Drawn from Capital I, this account dominates debates on the transition to
capitalism in the mid-twentieth century. In this essay, I identify the misleading assump-
tions about law that underpin this account, explain the political and intellectual conse-
quences of adhering to these assumptions, and gesture to new avenues for the critical
analysis of law, labour, and the history of capitalism. The terms of labour in any given
epoch reflect economic valuations as well as social and political principles. By interrogat-
ing prevailing assumptions about law and legal relations, I help advance critical analyses
of the relation between law and political economy—a worthy pursuit especially during
these times of social and economic upheaval.
Exemplary studies by Maurice Dobb, Rodney Hilton, Paul Sweezy, and Robert
Brenner confirm that it is impossible to comprehend the transition to capitalism
without paying special attention to labour compulsion.
2
I argue that these major contri-
butors to the transition debates of the mid-twentieth century also seem to have in
common a distinguishing notion of law as artifice, whereby law and legal relations are
external, derivative, and unnatural in relation to the economic sphere. This is the result
of adhering to three assumptions about law and legal relations that are embedded in
Marx’s account in Capital I: first, the legal relations that shape labour compulsion in
so-called ‘pre-capitalism’are characteristically ‘extra’in relation to the economic
sphere and ‘direct’in relation to the political and legal spheres; second, the transition
from direct to indirect labour compulsion entails a qualitative shift in law’s force; and
third, law has an artificial (as in, extrinsic and/or unnatural) effect on the economic
sphere, explicitly-so in the course of the transition to capitalism.
3
If left unchecked,
I aver, these assumptions invite programmatic developmentalism as a political conse-
quence and a false reconciliation between force and labour as an intellectual
consequence.
When law and legal relations are accounted for primarily in terms of their necessity to
a dominant mode of production, they help explain economic transformation but are
scarcely afforded their own explanation. This engenders a paradigmatic notion of law
as artifice in which the legal sphere is the realm of the external and artificial, while the
economic sphere is the realm of the internal and natural. Once the paradigmatic
becomes programmatic, a type of stagism prevails. This happens when the stubborn
internalism of certain accounts of the English transition to capitalism skew historical real-
ities, a political consequence of which is the reification of this bias through programmatic
developmentalism. The resulting developmentalist template dictates that where extra-
economic force as the basis of labour compulsion wanes, indirect force and ‘silent com-
pulsion’preside. However, this account of the transition to capitalism mystifies the
relation between law and labour compulsion, an intellectual consequence of which is
the false reconciliation between force and labour. This habituated emphasis on law’s arti-
ficial effects erodes the ability to explain the relation between law and actual conditions of
Brophy 627
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