Marxist and other critical legal scholarship has long critiqued Marx’s initial base-superstructure dichotomy, which relegated law to a superstructural add-on that is ultimately determined by the economic base (Hay, 1975; Thompson, 1975; Balbus, 1977). However, it is unfortunate that the alternative far more nuanced and rigorous idea that law has played an active and constitutive role in the development of capitalism has been slow to gain traction in other fields, as this constitutive conception of law reveals much about neoliberalism. In this view, the transformation in the form of law during the transition from feudalism to capitalism highlights how the specificities of the liberal capitalist legal form are co-constitutive of capitalist relations. Under feudalism, law was chaotic and intermingled with religious and political authority. It was not a set of abstract normative judgments but was embedded in concrete social relationships between specific people. Local law was an extension of political (feudal) power. It was used primarily by lords in their own manorial courts to ensure that feudal services were rendered to them, and it was enforced by those lords through direct coercion. Importantly, law and its enforcement were dependent upon the parties’ unequal positions in the feudal hierarchy, and there was no pretence to law’s neutrality (Tigar, 1977; Fine, 1984). The same social processes that led to the gradual degeneration of the feudal order and the development of capitalist imperatives of production and exchange (see Wood, 2009) also led to gradual changes in the form of law. In order to conceive of a commodity in the capitalist sense, or of the process of buying and selling commodities, a particular type of property right was necessary – one that no longer referred to specific people but was general and interchangeable. At the same time, law started to become abstracted from specific relationships in a manner that allowed it to mediate relations between all potential buyers and sellers of property, as equals before the law. Legal subjects were still substantively unequal, but the reorientation and abstraction of law concealed their substantive inequality. Similarly, law was no more neutral
and less political than it had been in feudal times, but its legitimacy now depended upon its ability to mystify its political nature. The enforcement of law eventually became indirect, not applied by property owners themselves but mediated by law. Power and authority were seen less to be inflicted by one person on another and more as the mutual subordination of both parties to the independent reason of a neutral and rational authority: the law (Tigar, 1977; Pashukanis, 1978; Fine, 1984). Importantly, in this account, the capitalist form of law did not develop ideationally, separate from capitalist relations of production and exchange. Nor did it develop subsequently to, and as a mere extension of, or institutional framework for, capitalist relations of production and exchange. Instead, this account emphasises that capitalist economic and juridical relations developed in tandem as two equally essential expressions of capitalist relations (Fine, 1984: 207). Nonetheless, it is clear that each also contains elements of its own logic. For instance, the specificities of the liberal-capitalist legal form enable law to depoliticise the social relations that are mediated through it: the abstraction of laws from the specific social contexts in which they arise obscures their indeterminacy, their historical contingency, and the power relations underpinning them.1 This enables laws to appear to be universal and fixed, independent of historical conjuncture and political will, and legal decisions to appear to be technical matters of the interpretation of universal and fixed legal texts in a very formalist sense. In Karl Klare’s (1982) words,
legal discourse . . . tends to . . . induce the belief that our evolving social arrangements are just and rational, or at least inevitable, and therefore legitimate. The modus operandi of law as legitimating ideology is to make the historically contingent appear necessary.