No Bases, No Superstructures: Against Legal Economism
Nate Holdren and Rob Hunter on rethinking the “base/superstructure” model.
via Legal Form
[Several recent posts on Legal Form have tackled the “base/superstructure” model sketched in Marx’s A Contribution to the Critique of Political Economy, posing questions about its analytical usefulness, correct interpretation, and ongoing relevance. For these earlier posts, authored by Anandha Krishna Raj, Nate Holdren, and Matthew Dimick respectively, see here, here, and here. The present post responds to and builds upon these earlier posts.]
Three Different Accounts of the Relationship Between State and Civil Society
Capitalist society subordinates human flourishing and freedom to the accumulation of value. This proposition is central to Marx’s critique of political economy. Historically, critics of Marx have taken this view to mean that he is a fundamentally economic thinker, portraying his critique as merely economic, and thus necessarily inadequate or distorted. This criticism has motivated a number of attempts to theorize the relationship between economic relations and other social relations. Such attempts are premised on the recognition that the sum of economic relations is not simply the prime mover of every other social relation. Law, the state, culture and subculture, religion, gender, sexuality, and more all have specificities forged through concrete histories of struggle, just like (and in close connection with) economic relations.
Within contemporary Marxism we discern three broad approaches to thinking critically about law and the state:
a) The first approach argues that legal and political relations reflect a base of economic relations (relations of production and exchange): the “base/superstructure” metaphor. The metaphor posits both a duality (state vs. civil society) and a hierarchy (economic primacy vs. noneconomic secondariness). This approach has a famous textual warrant: the “Preface” to Marx’s A Contribution to the Critique of Political Economy , often regarded, in Christopher Tomlins’ words, as the “requisite prolegomenon”  to Marxist theorizing about law and state. Marx declared that the “Preface” was a statement of “the materialistic basis of [his] method” as late as 1873 (in the afterword to the second German edition of Capital). 
b) The second approach understands law and state as residing at a distinct structural level in society. That level is endowed with “relative” (i.e. variable and dynamic, but never complete) autonomy from other levels, such as the economy. Adherents of this “relative autonomy” view argue that political actors and juridical subjects are not economic automatons; nor are the relations among and between them determined, in every instance, by allegedly more fundamental economic relations. 
c) The third approach apprehends law and state as moments  in the totality of capitalist social relations.  That is, law and state are, to borrow a phrase from Marx, “distinctions within a unity”.  This unity is capitalist society: a contradictory and incomplete unity, whose distinct elements are connected but are nevertheless each the outcomes of specific historical processes of struggle and antagonism.  On this view, capitalist “production is posited as a totality together with all its moments, but within which, at the same time, all contradictions come into play”.  There is no economy per se that is distinct from society. The existence and endurance of production and circulation are predicated upon the existence and endurance of other social relations. The totality of capitalist social relations is made and remade through struggle and antagonism; “nor does the economy comprise a structured system of independent economic laws” outside of or prior to this totality.  The reproduction of capitalist production is impossible without the reproduction of the totality of social relations.
What follows is a critique of the first approach (base/superstructure) from the perspective of the third (totality). We argue that the base/superstructure metaphor is inherently and unavoidably premised on economism (unsurprisingly, since the metaphor originates within classical political economy, not its critique).  Economism is a double-faceted mistake. One facet consists of insisting that the economy constitutes the source, cause, or ultimate determinant of other social relations, including legal relations. The second facet consists of taking a domain of society called “the economy” as given. (Those who criticize Marx as economistic typically accuse him of the first facet of the mistake, while themselves still caught up in the second.) One of the central claims of the critique of political economy is that we all produce the “economy”–albeit behind our backs–through struggle and antagonism. What we typically call “the economy”, then, has a certain social validity, but only within capitalist social relations. There are no such things as eternally or universally valid economic laws; rather, “economic laws are inverted forms of definite social relations” (a point to which we shall return below). 
Responses to the charge of “economism” tend to undermine the explanatory power typically claimed on behalf of the base/superstructure model or yield an insufficiently critical account of political economy. Ultimately, the base/superstructure metaphor naturalizes the bourgeois antinomy between state and civil society, rather than critiquing it. It also effaces the ways in which juridical and economic relations are mutually constituted, as well as their reproduction through class struggle. We find no compelling reason to retain the base/superstructure metaphor.
The Continuing Project of Critique
That there is a textual warrant for the base/superstructure metaphor in the “Preface” to Marx’s A Contribution to the Critique of Political Economy should not, in our view, militate in favour of retaining it. Testing Marx’s writings against argument, interpretation, and experience is a small way in which Marxism as a living project offers a brief glimpse at a kind of social practice “in which the free development of each is the condition for the free development of all”.  We see the MEGA project –we are most familiar with Michael Heinrich’s work –as a sterling example of the necessary work of probing the contradictions, silences, and omissions in Marx’s body of work. This is not to criticize Marx so much as to humanize him–what actual thinker does not change their mind or self-contradict sometimes?
It seems to us that there can be multiple textual Marxes–or, on some questions, none at all. This destabilizes any notion that there is a Marxian theoretical apparatus that is stable and valid over time, let alone invulnerable to critique, reappraisal, and recomposition.  To insist otherwise would be to turn Marx’s work, and the work of those inspired by him, into just one more tradition of dead generations weighing nightmarishly on the brains of the living. We should not hesitate to apply immanent critique to the body of work left by one of the masters of the genre.
Two Defences of the Base/Superstructure Metaphor
With this in mind, we turn to two comrades’ recent contributions to Legal Form. Anandha Krishna Raj  and Matthew Dimick  have both written in defence of the base/superstructure metaphor. Let us begin with Raj, who argues for attending to the ways in which the superstructure acts upon the base and not just vice versa. He criticizes the mechanical and reductive character of crude–or as he characterizes them, “metaphysical”–conceptions of the base/superstructure metaphor, which are “deterministic and reductionist”. He claims–and here we can hardly disagree–that “it is not possible to reduce all social relations, including those involving ‘superstructural’ elements, to a single base”. He elaborates this point as follows:
The legal superstructure cannot always be the faithful reflection of the base, and it cannot maintain the “purity” of the base. … [T]he metaphysical understanding of the separation of base and superstructure leads to a distorted understanding of the Marxist theory of law.
Raj concludes that “it cannot be said that as an element of the superstructure, the law has no impact on politico-economic relations”. Relations of production may reside in the base, and juridical relations in the superstructure. But the latter can, within certain limits, determine the former, and not just vice versa.
Dimick recasts the base/superstructure metaphor as an account of social ontology rather than a model of social causality. His line of inquiry is similar to Raj’s: “how can the economic base explain the legal superstructure if the base itself is already defined in legal terms?” However, Dimick appears unsatisfied by interpretations like Raj’s that accord determinative capacities to constituents of the superstructure, worrying that such gambits risk becoming either circular or otiose. He sees the base’s constraining determination as ontological, rather than causal. The base/superstructure metaphor allows us to apprehend the mutual constitution of state and civil society as they obtain in lived reality. Such a reading, Dimick contends, is better equipped to explain bourgeois legality and capitalist relations of production and exchange as co-originary. It also accounts more successfully for the specifically legal characters of commodities, labour, private property, and so on. We should not reify the base into some sort of Neoplatonic first cause. Dimick insists that that the base/superstructure metaphor be understood as a metaphor–a vivid image that illustrates the materialist conception of history.
Both posts display a focus on the economic as the distinctive point of departure for Marxist analysis. (Dimick, for example, refers to “economic primacy” as “an idea to which Marx remained committed throughout his work”–this is reminiscent of Lukács’ insistence that Marx believed in the “ontological priority of the economy”. ) Consequently, in our view, both Dimick and Raj court the same reductionism against which they want to argue. Assigning primacy to economic relations–abstracting and isolating them from the totality of social relations–means accepting bourgeois society’s self-conception on its own terms. The separation of the economic from the political and the legal–that is, the separation of civil society from the state–is constitutive of bourgeois society’s self-understanding, that is, how it presents itself to itself. It should not be treated as natural, nor should alternative models of that separation be built–which is how we read attempts to elaborate or refine the base/superstructure model. Rather, this separation should be historicized and critiqued.
Economism is precisely what we find objectionable in both Raj and Dimick’s accounts. Our objection may seem surprising. After all, both Raj and Dimick are motivated by the rejection of vulgar economic determinism. They assume from the outset that it would be insufficient to treat law and the state as crude instrumentalities of class rule, or as mere reflections of relations of production. What is more, there is, in Tony Smith’s words, “an undeniable element of truth” to economism.  The attentive observer cannot fail to notice the tendencies for particular capitals or owners of capital to influence or capture state institutions, or for the law of value to dominate individuals–or, indeed, for capitalism in general to shape the chances and courses of individuals’ lives. Who will deny that the reproduction of capital accumulation and the endurance of the bourgeois state are related? But their mutual constitution is better apprehended if we abandon the antinomy between state and civil society built into the base/superstructure metaphor. As such, we contend that Raj and Dimick do not succeed in avoiding the pitfalls of economism and instrumentalism. Nor we do not consider the “undeniable element of truth” in economism to be an adequate foundation for social explanation in the critical spirit of Marx.
We share with Raj the conviction that the juridical cannot be a mere reflection of the economic. We agree with Dimick that Marx’s critique is in part a critique of bourgeois social ontology; it is an immanent critique of bourgeois society’s self-understanding. Both Raj and Dimick present sophisticated interpretations of the base/superstructure metaphor. But it seems to us that they inadvertently argue for the merits of conceiving of capitalist social relations as a totality.
The Inadequacy of the Base/Superstructure Metaphor
The base/superstructure metaphor’s enduring popularity is largely a remnant of processes that were part of the deformation and calcification of habits and postures of critique and inquiry–inspired by, but also responding to, Marx–through which they hardened into programs taken as historically invariant by their adherents.  In the early days of the workers’ movement, Marx was adopted as a patron saint of the German Social Democratic Party and the larger socialist movement around the world. Marx later became a key figure in the official ideologies of the Soviet Union and other states.  Marx’s works and those of his various interpreters, interlocutors, and continuators became a set of canonical (and occasionally apocryphal, even heretical) texts. Major advances in the critique of political economy and the theorization of emancipatory struggle have been secured in spite of such processes of textual vitrification, not because of them.
Marx himself never explicitly disavowed the base/superstructure metaphor as inadequate. So much the worse for Marx, in our view.  His signal contributions were to the critique of political economy, but he never delivered an account of the state to rival his accounts of capitalist production and exchange (nor, for that matter, was he able to deliver his planned accounts of credit, the world market, and so on). Those portions of Marx’s “Preface” that are sometimes read as declarations of methodological commitments are better thought of as gears that are decorative rather than providing motor power. The “Preface” is an expression of the sensibility of immanent critique: an impulse to look at people in capitalist society as caught in the grip of their own social relations and practices, which have come to dominate them, taking on an alien appearance and possessing their own power. Dimick is not wrong to suggest that we should attend to questions of ontology. Indeed, as many have noted, capitalist society’s is an “inverted”  ontology in which the products of human activity increasingly come to mediate humans’ relations with one another, rendering persons as things and endowing things with social power. What makes capitalism nightmarish is that behind the “objective appearance” of the economic lurks nothing other than our own handiwork, a handiwork we undertake despite ourselves. The categories and concepts of political economy refer not to natural but thoroughly social phenomena. 
Capitalist society’s ontology it is not a pyramid of primacy and secondariness. This is an ontology that requires immanent critique to be understood adequately. Merely positivist description cannot suffice to capture its contradictions and ramifications. But it is not layered into a hierarchy of “realness”, with “the economy” at its base. It is a “distorted and upside-down world” , one in which human flourishing is subordinated to the needs of the reproduction of capital accumulation. “Upside-down” should not be taken, we contend, to mean that capitalist society’s ontology is divided into a hierarchy of truly real essences and mere appearances. Rather, the necessary disjuncture between appearances and essences is itself constitutive of the fetishism and unfreedom under capitalism. “There is only one social reality and this is the reality of the capitalistically organized social relations of production.”  According to the base/superstructure metaphor, the economic is the ground of other social relations. This is not false insofar as law, the state, and culture must not be seen as pre-constituted social levels that just happen to be conjoined with a capitalist economy. However, this is the case precisely because our social relations are constituted through, and mediated by, the production of value and its accumulation. There is no clean separation between economy and state (or anything else).
In capitalist society, human ends (freedom, dignity, and sustenance) are subordinated to the ends of capital (accumulation, exploitation, and extraction). The unfreedom and alienation characteristic of capitalist sociality are best apprehended through the concepts with which Marx wrestled in his mature works–as well as the concepts and arguments that others have articulated down to the present day. The sensibility expressed in Marx’s “Preface” is important, but it is only a “propaedeutic” –that is, a compressed and tentative declaration of commitments and ambitions, delivered before Marx had completed his mature critical works. The terms and concepts of the “Preface”, including the base/superstructure model, are incomplete and under-developed metaphors for pursuing an immanent critique of capitalist social relations.
The insistence on defining and delimiting a base is contrary to the sensibility that informs the Marxian critique of political economy, which ranges across historical, social, and conceptual boundaries. (Such attempts at social definition are, in any event, self-contradictory. ) It is not possible to critically apprehend capitalism by fixating on any one aspect of it and assigning primacy to that aspect–or, in Hegel’s terms, “giving authority to a partial and abstract principle, in its isolation”.  Rather, as Simon Clarke has put it,
the capitalist mode of production can only be grasped as a complex totality. However, this is not the complexity of relations of structural interdependence, it is the complexity of an historical process, a process of class struggle which develops on the basis of contradictory historical foundations. 
The Marxian critique of political economy, far from being narrowly focused on processes and points of production (though these certainly receive their due), encompasses capitalist social relations in their complex and contradictory totality.  We do not share Dimick’s reading of Marx as disclosing a “method of political economy”. There is a textual basis for that reading of Marx, but in our view Marx is better read as alerting us to what’s unsaid and unargued-for in political economy.
We acknowledge that the base/superstructure metaphor captures an important insight: within capitalism, social relations are mediated by value and its compulsion towards self-expansion. However, this insight is simultaneously obscured by the metaphor’s privileging of the economic over the political. The latter is hardly compatible with the fact that, as Tony Smith observes, “an indefinite number of different and incompatible concrete paths are compatible with capital accumulation”.  The diversity of past and present accumulation regimes negates the claim that capitalist economic relations will tend to produce a particular set of institutional arrangements or juridical forms. The base/superstructure metaphor simultaneously insists on and denies this point.
As Ellen Meiksins Wood observed, adherents of the base/superstructure metaphor can only account for contingency and indeterminacy in law and the state in one of two ways, neither of which are compelling.  One can suppress the metaphor’s privileging of the economic, by qualifying and modifying it with reciprocal feedback loops between base and superstructure. This muddles the core premise of the metaphor. Or one can dismiss the forms taken by legal and political relations as mere reifications or determinations of capitalism’s essential processes–the production of surplus value. But such crude economism is precisely what Raj, Dimick, and other sophisticated defenders of the base/superstructure metaphor (rightly) seek to overcome.
The base/superstructure metaphor can only be retained either by effacing its distinctive premise or by biting down on the bullet of economism. It would be better to discard the metaphor than to defend it at such costs. Fortunately, the burgeoning critical tradition inspired by Marx provides ample resources for moving beyond the antinomy between state and civil society, a self-contradictory precept of liberal thought that depoliticizes–and naturalizes–the relations that predominate in and are characteristic of bourgeois society.  We have gestured at the virtues we see in the third view in our typology in the first section of this post. The second view presents yet another alternative. With alternative views on offer, it seems to us that a defensible fidelity to the base/superstructure model is neither possible nor necessary.
Marx’s critique of political economy cannot speak, at the same level of sophistication, to all questions of social theory. The plain absence of a rigorous critique of the state in Marx’s writings cannot be supplemented by extrapolating an entire theory from dicta such as the “Preface” to A Contribution to the Critique of Political Economy. To the extent that Marx can be said to have had a critique of the state, it “exists only in fragments”.  The production of a Marxian critique of the state has been, and will continue to be, the task of those coming after Marx.
Our critique of capitalist society affects how we orient to struggles within and against that form of society. If the unity of theory and practice is the gold standard for emancipatory activity, then we ought to assay the quality of theory’s portion of that whole. As such, we encourage our readers and interlocutors to seriously consider our critique and rejection of the base/superstructure metaphor. We expect disagreement, and welcome continued debate, in keeping with the spirit of Marx’s critique.
 Karl Marx, “Preface” to A Contribution to the Critique of Political Economy (Moscow: Progress Publishers, 1977 ). The relevant portion of the text–fewer than five hundred words–begins with “In the social production of their existence” and ends with “closes with this social formation”.
 Christopher Tomlins, “Marxist Legal History”, in Markus D. Dubber and Christopher Tomlins (eds), The Oxford Handbook of Legal History (Oxford: Oxford University Press, 2018), 519. For discussions see Hugh Collins, Marxism and Law (Oxford: Oxford University Press, 1982), 77–93; China Miéville, Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill, 2004), 84–97.
 Karl Marx, Capital, vol. 1, trans. Ben Fowkes (Harmondsworth: Penguin, 1976 ), 100.
 See, e.g., Christopher Tomlins, “How Autonomous Is Law?” 3 (2007) Annual Review of Law and Social Science 45. For a critique of the state theory of Nicos Poulantzas, the preeminent Marxist exponent of the relative autonomy thesis, see Simon Clarke, “Marxism, Sociology, and Poulantzas’s Theory of the State”, in Simon Clarke (ed), The State Debate (London: Macmillan, 1991).
 By “moment” we mean a “an element considered in itself that can be conceptually isolated and analyzed as such but that can have no isolated existence” outside of a broader totality. Geert Reuten, “The Difficult Labor of a Social Theory of Value”, in Fred Moseley (ed), Marx’s Method in Capital: A Reexamination (Atlantic Highlands, NJ: Humanities Press, 1993), 92. See also Geert Reuten, “An Outline of the Systematic-Dialectical Method: Scientific and Political Significance”, in Fred Moseley and Tony Smith (eds), Marx’s Capital and Hegel’s Logic: A Reexamination (Leiden: Brill, 2014).
 We might add a fourth: the “state derivation” argument that law and the state are necessary presuppositions of the reproduction of capitalism. This view has alternately languished in the condescension of posterity–especially among partisans of the first and second views–or seen the best aspects of itself taken up by the third view. See John Holloway and Sol Picciotto (eds), State and Capital: A Marxist Debate (London: Edward Arnold, 1978); Chris O’Kane, “State Violence, State Control: Marxist State Theory and the Critique of Political Economy” 4 (2014) Viewpoint.
 Karl Marx, “Introduction“, in Grundrisse, trans. Martin Nicolaus (Harmondsworth: Penguin/New Left Review, 1973 ).
 Simon Clarke, “The Global Accumulation of Capital and the Periodisation of the Capitalist State Form“, in Werner Bonefeld, Richard Gunn, and Kosmas Psychopedis (eds), Open Marxism, vol. 1 (London: Pluto Press, 1992), 149.
 Marx, Grundrisse, ch. 4, 426.
 “The idea that the economy comprises an independent reality expresses a theological conviction. The capitalist state is neither independent from the economy nor does it derive from it, nor does the economy comprise a structured system of independent economic laws. [The c]apitalist economy is a socially constituted system of human reproduction that is antagonistic from the outset. Its cohesion, organization, integration and reproduction are matters of state.” Werner Bonefeld, Critical Theory and the Critique of Political Economy: On Subversion and Negative Reason (London: Bloomsbury, 2014), 182.
 Bonefeld, Critical Theory, 165–6, 168–74.
 Bonefeld, Critical Theory, 25.
 Karl Marx and Friedrich Engels, “Manifesto of the Communist Party” MECW 6: 506.
 “MEGA” stands for Marx-Engels-Gesamtausgabe (Complete Edition of Marx and Engels).
 Cf. Michael Heinrich, “Invaders from Marx” Jungle World (21 September 2005).
 Michael Heinrich, “Je ne suis pas marxiste” Neues Deutschland (24 January 2015).
 Anandha Krishna Raj, “Law as Superstructure” Legal Form (3 October 2018).
 Matthew Dimick, “Base and Superstructure as Ontology” Legal Form (17 August 2019).
 György Lukács, Marx’s Basic Ontological Principles, trans. David Fernbach (London: Merlin Press, 1978), 10.
 Tony Smith, Beyond Liberal Egalitarianism: Marx and Normative Social Theory in the Twenty-First Century (Leiden: Brill, 2017), 183.
 For a criticism of the base/superstructure metaphor along these lines see Ellen Meiksins Wood, Democracy Against Capitalism: Renewing Historical Materialism (London: Verso, 1995), 27, 49–75.
 See Michael Heinrich, An Introduction to the Three Volumes of Karl Marx’s Capital, trans. Alexander Locascio (New York: Monthly Review Press, 2012), 23–27; and Ingo Elbe, “Between Marx, Marxism, and Marxisms: Ways of Reading Marx’s Theory“, trans. Alexander Locascio, Viewpoint, 21 October 2013.
 “Marx’s metaphor does not surpass classical political economy.” Bonefeld, Critical Theory, 188, n. 41.
 Smith, Beyond Liberal Egalitarianism, 98, 116, passim.
 Marx, Capital, vol. 1, 176.
 Karl Marx, Capital, vol. 3, trans. David Fernbach (Harmondsworth: Penguin, 1981 ), 969.
 Bonefeld, Critical Theory, 166.
 Patrick Murray, Marx’s Theory of Scientific Knowledge (London: Humanities Press, 1988), 3.
 Bonefeld, Critical Theory, 103.
 G. W. F. Hegel, Encyclopedia of the Philosophical Sciences, Volume I: Science of Logic, trans. William Wallace (Oxford: Clarendon Press, 1975 ), §81 (“Lesser Logic”).
 Clarke, “The Global Accumulation of Capital“, 149.
 See Chris O’Kane, “Society Maintains Itself Despite All the Catastrophes that May Eventuate”: Critical Theory, Negative Totality, and Crisis” 25 (2018) Constellations 287; Chris O’Kane, “On the Development of the Critique of Political Economy as a Critical Social Theory of Economic Objectivity” 26 (2018) Historical Materialism 175; Lars Heitmann, “Society as ‘Totality’: On the Negative-Dialectical Presentation of Capitalist Socialization“, in Beverley Best, Werner Bonefeld, and Chris O’Kane (eds), The SAGE Handbook of Frankfurt School Critical Theory, vol. 2 (London: SAGE, 2018).
 Smith, Beyond Liberal Egalitarianism, 185. For accounts of changing regimes of accumulation in capitalism, see Nancy Fraser and Rahel Jaeggi, Capitalism: A Conversation in Critical Theory (Cambridge: Polity, 2018), 54, 61–66, 71–87; Martin H. Wolfson and David M. Kotz, “A Re-conceptualization of Social Structure of Accumulation Theory“, in Terrence McDonough, Michael Reich, and David M. Kotz (eds), Contemporary Capitalism and its Crises: Social Structure of Accumulation Theory for the 21st Century (Cambridge: Cambridge University Press, 2010).
 Wood, Democracy Against Capitalism, 60.
 Murray, Marx’s Theory, 31–34; Smith, Beyond Liberal Egalitarianism, 187–91.
 Bonefeld, Critical Theory, 165.
Nate Holdren teaches at Drake University. Rob Hunter is a member of the Legal Form editorial collective. They are grateful to Matthew Dimick for helpful comments and criticisms.