Sonja Buckel, Subjectivation and Cohesion, trans. Monika Vykoukal (Brill, 2021)
Reviewed by Susan Dianne Brophy
From the start, Sonja Buckel faces a difficult task. Although writing “in the tradition of Karl Marx”, she is “diametrically opposed” to the standard line adopted by latter-day Marxist legal theorists, namely that law should be unmasked as ideologically complicit with the worst of capitalism yet understood as something beyond a mere superstructural effect of an economic base. For Buckel, “law is its own ‘base’” (p. xiii). At first, this seems like a radically materialist declaration, yet it also calls to mind Kantian-inspired theories of self-referential law—more “in the tradition of” Hans Kelsen than Karl Marx.
Between Kelsen and Marx sits famed Marxist legal scholar, Evgenyi Pashukanis. In developing her materialist theory of law, Buckel pursues a “form analysis” approach as she adopts and corrects Pashukanis’s “legal form” (p. 121). Like Pashukanis, she eschews a “logical linear course”, preferring an analysis that is “fragmentary” by design (p. 88). This unsystematic approach reads part poststructuralist and part performative, as in, she is performing what she is analysing: mystification. By rejecting the view that law’s mystification is an ideological effect, she grants law its spectral power and proceeds to excavate the materialist conditions of this mystification (p. xiv). In doing so, she sets herself the difficult task of materializing mystification. If a materialist theory means anchoring the legal form in social practice, Buckel accomplishes her goal; however, some Marxist legal theorists may read this as mystifying materialism and not find it persuasive.
In what follows, I foreground her line of interrogation regarding Marxist legal theory and identify legal autonomy as an essential problem. From there, I trace the logic behind what she keeps and what she rejects from Pashukanis, as she positions herself as building on his core insights but avoiding the same pitfalls. Although I question her materialising process and outcome, by any measure, Buckel’s form-analysis raises profound questions about what constitutes materialist legal analysis in particular, and Marxist legal theory in general. For these reasons, her book should be required reading for Marxist legal scholars.
The “Central Deficits” of Marxist Legal Theory
Originally published in German in 2007, the English edition of this book was released by Brill in 2021 as part of the Historical Materialism book series. It opens with an account of two opposing theories of law from the late twentieth century, then goes back to the interwar period for a chronological overview of materialist legal theory in the second part, unpacks the concepts of “subjectivation” and “cohesion” in the third, and concludes on a more speculative note in the fourth part with a discussion about law’s emancipatory potential.
In the first part, Buckel focuses on the debates among German legal theorists writing from 1970 through to the book’s original publication date. This summary of “two paradigmatic perspectives on law/rights” identifies the problems her materialist legal theory is meant to address (p. 63). Born of an antagonism between the legal systems theory of Niklaus Luhmann and Gunther Teubner and Jurgen Habermas’s discourse theory, the “baggage” that Buckel carries over to her materialist theory is the paradox that law both is and is not independent from social relations. Legal theorists of all stripes will recognize this as the puzzle of legal autonomy. In systems theory, Buckel identifies “autonomisation” as the reifying process of inter-institutional connectivity that accounts for the apparent independence of law from social realm (p.63), and, in Habermas’s “social self-organization”, she identifies communicative acts as the basis of law’s normativity and its connection to social relations (p. 60). The goal for Buckel is to develop a materialist legal theory that is capable of “‘de-paradoxification’” (p. 64), or what I interpret as materialising mystification.
Pashukanis enters the scene in the midst of Buckel’s eulogy for Marxist legal theory; a fledgling field, she associates its decline with what Louis Althusser refers to as the “crisis of Marxism” in the early 1980s (p. 68). Marxist-inspired approaches to law came to be seen by some as “irrelevant” or a “theoretical dead end”, which Buckel laments briefly before committing to overcome the bifurcation that emerged between materialist theory and legal theory (p. 69). She then lists seven shortcomings that must be addressed to achieve a viable materialist theory of law, disclosing the theoretical demons that Buckel deems most in need of slaying when it comes to Marxist legal theory.
Atop the list is her claim that “Marxist legal theory has often argued functionally and reduced law to the reproduction of capitalism”, and the six points that follow nudge this generalisation toward specificity. From the foundational accusation of functionalism and its corollary (economism), the second raises the inability to account for primary material conditions of reproduction without recourse to economism; the third notes the tendency toward class reductionism; the fourth accuses proponents of materialism of ignoring “practice and actors”; the fifth remarks on the tendency to focus on the state and treat law as an expression of state power; the sixth speaks to a failure to comprehend the relative autonomy of law; and the seventh highlights the dearth of analysis regarding law’s emancipatory potential (p. 70). The repetitiveness of the these points regarding functionalism and economism confirms that she considers “ideology-critical” approaches in Marxist legal theory as prone to these sins (p. 140), and that her materialist theory has this aversion at its core. However, the outlier on the list—because it is less self-explanatory as a reiteration or derivation of the initial accusation—is the sixth limitation.
Among the most significant areas of debate in Marxist legal theory is whether there is any degree of independence between law and other spheres of influence, namely the political and the economic. After she argues that Marxist legal theory becomes too state-centric, which threatens to reduce law to a mere instrument of state power, Buckel’s stakes her position in this debate with her sixth point: “[a]ccordingly, almost all theories failed to grasp a central mystery of law, namely its relational autonomy, that is, its counterfactual facticity” (p. 70). Her insistence on a certain formulation of legal autonomy serves two general purposes in support of her thesis: it helps her legal theory resist backsliding into economism; in turn, this separation of law from economic and political spheres clears the way for a discussion of law’s normative attributes, which becomes useful when accounting for human practice in law’s validating processes. This attention to autonomy, therefore, is her materialist wedge.
Relational Autonomy and Autonomisation
As Buckel develops her materialism, she turns to Marxist theorists, starting with Franz Neumann and Otto Kirchheimer before moving on to Pashukanis. In the discussion leading up to Pashukanis, she focuses on the inter-war period when constitutional law and state politics dominated legal theory. The Weimar Republic was the focal point for the German legal theorists of the day, with the social democrats on one side of Buckel’s analysis, and the likes of Carl Schmitt on the other. In this era, theorists across the political spectrum—including Pashukanis, despite the geographical distance—could not escape the work of the Austrian legal practitioner and philosopher, Hans Kelsen. Known primarily for his Pure Theory of Law, which he first sketched-out in 1934 and developed further in 1960, Kelsen also helped draft the Austrian Constitution of 1920. Buckel observes that “Kelsen is the first legal theorist to rigorously consider the particularity of the capitalist legal form, that is to say its ‘inner logic’. Most Marxist legal theorists, adopting a[n] ideology-critical approach, overlook this” (p. 140). Her regard for Kelsen’s pioneering work is instructive because it hints at the role that legal autonomy plays in de-paradoxification, a point that I return to later in this section.
To see Kelsen as a pioneer of the capitalist legal form is to understand him as particularly adept at theorising law’s central mystery, that is, its “relational autonomy”. By excavating this aspect of Kelsen’s work, it illuminates Buckel’s approach to Pashukanis, which informs the trajectory of her materialist theory of law.
Kelsen’s scientific study of the processes of legal validation was motivated by concerns over the ideological capture of law, perhaps a reflection of the politically fraught interwar and postwar period.[1] His Pure Theory of Law enshrines the domain of law’s validity in a self-referential manner, wherein a “basic norm” operates as an objective fact that validates law, premised on a particular understanding of the generative force of individual “acts of will”: “Pure Theory is concerned with facts only so far as they are determined by legal norms which are the meanings of acts of will”.[2] The self-referential essence of this theory—that is, the role that autonomy plays in this self-referentiality—is evident when Kelsen explains what becomes of individual freedom: “political freedom, that is, freedom under social order, is self-determination of the individual by participating in the creation of the social order. Political freedom is liberty, and liberty is autonomy”.[3] At the risk of oversimplification, individual freedom is a manifestation of order: autonomous acts of will validate the basic norm while the autonomy of the basic norm is validated in those acts of will.[4]
In practical terms, the central mystery of law is not simply the mitigation of the tension between freedom and order, but their productive containment. By productive containment, I have in mind the way that individual agency is conscripted as a creative force through overlapping processes of what Buckel comes to term as “subjectivation” and “cohesion”, processes that are based on and reproduce a type of autonomy. When Buckel identifies “relational autonomy” as the central mystery, it is the mystery of how autonomous acts are proceduralised in ways that mediate the tension between norm and fact. This is evinced by her reference to relational autonomy as “counterfactual facticity”. More description than synonym, understanding relational autonomy as an expression of counterfactual facticity places relations of autonomy at the centre of the paradox between fact and norm. Kelsen’s Pure Theory of Law achieves this feat ostensibly without bowing to ideological pitfalls, an allergy that Buckel shares as evinced by her aversion to functionalism and economism. Like Kelsen, she recognises that the perception of law’s validity is bound together with its normative force, which are measures of its autonomy.
This is not to suggest that Buckel presents a normatively neutral materialist theory of law. She is adamant that a materialist theory cannot assume neutrality of social forces as if there are no uneven power dynamics (p. 217). Rather, she does not attach specific normative content to legal autonomy, other than to treat its normative force as fact, like Kelsen. This separates legal autonomy from its usual confines in legal theory, where it operates in the liberal legal tradition as an ideal that nourishes validity by depoliticising law’s sources and application. On the one hand, Buckel treats this idealist vision of legal autonomy as the counterfactual that exists in tension with the material fact of the totalising forces of capitalism. On the other hand, her vision of the normative force of autonomy is more than an idealist principle, as an expression of “the autonomisation of social relations” (p. 63), wherein the reifying processes of abstraction that make autonomy possible also become a condition of the materiality of social forms (p. 245).
his loaded concept of “autonomisation” first appears in the same chapter where the reader first encounters “relational autonomy” (pp. 21 and 17, respectively). My use of the term “relational autonomy” and not “relative autonomy” up to this point is intentional. A look at the subject index shows that Buckel mentions “relative autonomy” more frequently than “relational autonomy”, despite the latter being her unique contribution to materialist legal theory. Yet, contrary to what is listed in the subject index, relational autonomy is mentioned prior to relative autonomy (pp. 16–17), which adds a layer of preventable confusion to the already complex fragmentary, form-analysis approach.[5]
Autonomisation and relational autonomy both appear in Buckel’s account of systems theory of law, which is notable because she later refers to Kelsen as having “anticipate[d] systems theory in evoking the ‘autonomy’ of normative systems” (p. 245). Luhmann insists that a qualified (i.e. relative) autonomy is no autonomy at all, opting instead for the notion of “autopoiesis” for a purer self-referential internalism, wherein law has the capacity to determine the terms of its own existence and to define itself in accordance with its own internal logic (pp. 9–10). The legal system is open only to the extent that it can react to limits in its effectiveness, identify new terrain for its applicability, and adjust its norms accordingly (p. 10). Legal norms, insofar that they reflect certain expectations, have an ordering effect on society in that order comes from the counterfactual expectation of a certain type of behaviour. Buckel retains the edifying potential of the normative counterfactual from Kelsen and Luhmann, which becomes a way that she bridges form-analysis and materialism.
With “relational”, Buckel avoids the oxymoronic connotation of “relative autonomy” that Luhmann discusses. For her, law’s “relational autonomy” means that it exists among various technologies of power, and that is has a normative force that precludes functionalist explanations (p. 246). This gains depth in the context of her engagement with Poulantzas’s (or more precisely, Bob Jessop’s) as well as Foucault’s “relational concept of power”, wherein power appears “anonymous” when it is institutionally dispersed while its potency can only be measured relatively as effects of material practices (p. 166). The concept of the “relational” also speaks to de-paradoxification, which Buckel considers a materialist quest.
To account for the relational autonomy of law as a counterfactual reality, it is necessary to understand it as a closed system of open-ended processes that reproduce relations of exploitation while also containing normative force. A corrected Pashukanisian “legal form” appears uniquely positioned to deliver on this task. To grasp what this reveals about her argument’s form and content, it is worth outlining what she sees as the strengths and drawbacks of Pashukanis’s approach to law.
Correcting and Expanding the Legal Form
Anyone writing in the vein of Marxist legal theory will offer at least one of three standard pronouncements, usually as a guide for both non-Marxists and non-legal theorists should they find themselves in this unfamiliar terrain. First, Marx himself had no fully formulated theory of law (p. 67), which warns Marxists to expect some combination of extrapolation and derivation when it comes to a legal analysis of primary sources. Second, the base/superstructure relation should be understood metaphorically because a literal interpretation banishes law to the superstructure (p. 68), rendering imperative the reductive view of law as an instrument of class rule. And third, the law has a mystifying force in capitalist relations, and Pashukanis’s “legal form”—derived from Marx’s “commodity form”—is key to comprehending law’s mystifying force (p. 87). Like with any field, Marxist legal scholars might dispute which texts should be deemed canonical; however, there is one book that would garner unanimous consent: Pashukanis’s A General Theory of Law and Marxism. Published just seven years after the Russian Revolution, Buckel notes that Pashukanis was a judge in the early Soviet-era, that his theory was part of the legal curriculum for a short spell, and that he was “disappeared” in 1937 (p. 81).
After an overview of the legal theory debates of the interwar period, Buckel poses four questions about relational autonomy before turning to Pashukanis. These four questions can be thought of as elaborations of the last two of the seven “central deficits” and offers a blueprint for her book’s main arguments. The first is a methodological question about how to conceptualise social and legal relations in a capitalist context; the second is about legal autonomy as a source of law’s normative potential; third, she asks what becomes of political power where law is also relatively autonomous; and the fourth is an emancipatory question that centres the transformative agency of individuals (p. 86). To ascertain how she builds her materialist theory in response to Pashukanis, it is useful to consider her formative answers to the four points of inquiry.
I: How to Analyse the Social and the Legal in Capitalism as a Social Totality
For Pashukanis, the sphere of circulation is the generative domain of the bourgeois legal form, where individuals exchange as if they are equals. That it appears as false equivalence is a result of the obfuscation of social context, a process of reification that is the consequence of material practices of exchange (p. 95). The common charge against this approach is that this legal form is too narrowly conceived as a mere derivation of capitalist exchange relations. For Buckel, however, Pashukanis’s main failing is that he never “bothered to develop what was meant by such a form analysis” in advance (p. 98), resulting in a derivative legal form that implies certain causalities and limits his capacity to explain social reproduction possible within a capitalist context (p. 215). The key in making sense of this as a totality is in materialising the processes of abstraction, which necessitates a form-analysis approach that accounts for contradictory forces. Buckel expands the legal form to capture this complexity, which means treating it neither as a functionalist derivation (p. 232) nor static condition (p. 127), but as “represent[ing] a social relation that becomes autonomous through abstraction and develops its own form” (p. 239). “Contradictions move within the form”, meaning they can be contained but not disappear; de-paradoxification occurs both within the form and in material acts of reification that arise as an effect of the form—when legal subjects act “counterfactually” as if they are free (p. 241).
II: Autonomy as Normative Construct
In Pashukanis’s “scheme”, “the base is formed by the material relations of exchange” (p. 90). Legal norms enter the plane of law’s validation as “political superstructure” with designs on manufacturing social unity through claims on objectivity. Pashukanis maintains that the sphere of constitutional law is amok with self-referential legal validity that relies on autonomy as an idealist normative construct. His tinkering with the base/superstructure relation renders private law as the base of the legal form and public law as superstructural overlay, making his theory vulnerable to the criticism that he offers a “theory of civil law”, not the ‘General Theory’ promised in the title of his most famous book (p. 99). Again, however, Buckel points to a failing in Pashukanis’s form-analysis approach, surmising that a properly conceived form-analysis would have been able to account for the materialist facets of law’s autonomy (p. 100). The autonomy of law is not an idealist overlay, but a material effect of the intersecting processes, where law retains its constitutive connections to the social and economic spheres, and in appearing autonomous it accrues normative force (p. 241). She sees Foucault pushing Poulantzas and Pashukanis further in refuting a functionalist account of law, noting how the effectiveness of “legal technology” is connected to the ability for power to appear “anonymous” through self-perpetuating processes (pp. 197–8).
III: Political Power and the Legal Form
Described as the donning “character masks”, Pashukanis has a limited view of rights-bearing legal subjectivity and its role in producing the materiality of cohesion (p. 91). Legal form as derivation invites the problem that law is unobservable “as a specific object of scientific research”, as Buckel references Poulantzas to argue that law has its own “‘specificity and autonomy’” (pp. 101–2). For a non-derivationist account, it is necessary to address the normative force of law’s relative autonomy as a counterfactual reality. Buckel expands the legal form with this in mind, emphasising that it “produces subjectivation and cohesion” (p. 232). Power is dispersed throughout the material practices that constitute the legal form, which involves legal techniques that navigate the paradox between differentiation and unity. Buckel adapts Pashukanis’s observation that political power expresses itself as an external force onto social relations and that it does so through “unifying mechanisms” (pp. 216–17). To materialise the mystifying forces of cohesion, she supplements the schematic quality of Pashukanis’s superstructural understanding of political power with Gramsci’s concept of hegemony, wherein economic as well as political forces are central to cohesion (p. 142); the proceduralism of Habermas, who notes how the formalism of juridical procedures operates as a filtering process to validate law and produce hegemony (p. 243); and Foucault’s concepts of subjectivation (p. 163) and correlated “power technologies” (p. 246). The result is an expanded legal form that better resists functionalism and economism (p. 232).
IV: Subjectivity and Emancipation
Pashukanis queries the conditions for the necessity of the state, noting its contradictory role as existing as a by-product of capitalist relations and yet also serving as a moderator of class conflict (pp. 92–3). He argues, therefore, that the condition for emancipation is the “withering away” of bourgeois law and state (p. 103). Here, Buckel reads Pashukanis as echoing Lenin: externally imposed norms and the coercive enforcement thereof would be unnecessary because individuals’ material practices would advance social norms as a matter of habit (p. 107). Pashukanis’s approach benefits an understanding of law that does not centre coercive force, and his stance on the “withering away” thesis confirms that social practices are a primary concern when making sense of law’s lifecycle. Yet his abbreviated form-analysis undermines this observation, notably so in the limited agency he grants legal subjects and in the relegation of law’s autonomy to the political superstructure. For Buckel, law’s normative force is a measure of the qualified agency of individuals and their capacity to exploit law’s relational autonomy in their favour with a democratic vision. She rejects Pashukanis’s reductive view of legal subjects as “carriers of structures” (p. 142), and follows Foucault’s account of the process of subjectivation as also a productive process. As its own abstracted form, the legal form can differentiate subjectivities while serving as one among several “techniques of cohesion” (p. 161).
Buckel concludes the sixth chapter remarking that there is merit to the critiques of Pashukanis, but not enough to warrant the rejection of his approach—instead, his “unfulfilled potential thus lies in a further continuation of his work” (p. 109). Pashukanis offers Buckel a firm foundation for further inquiry, albeit with partial answers. By reading Buckel’s assessment of Pashukanis as formative replies to her four lead-in questions, her materialist theory emerges. Now it is possible to piece the fragments together and examine it holistically.
Uncritical Materialism
From Pashukanis, Buckel salvages form-analysis and the logic of self-referentiality, that is, the idea that formal legal process is self-generating and self-reproducing. The more she develops her materialism, the more it is evident that the logic of self-referentiality animates not only her form-analysis, but also her emancipatory vision. In the preface, she writes about being inspired by the “spectral, self-contained realm of the law” (p. xiii), so her position on self-referentiality is no secret. In the tradition of Kelsen, her proceduralised conception of autonomy obscures the relation between fact and norm, principally by means of abstraction. This is laid bare in the final chapters, as she refers to her position as “[a] theory that focuses on the autonomisation of human activity” (p. 239). The curiosity that remains is how she packages this as materialist, and what this says about her materialism.
One main strategy is a de-paradoxifying interpretation of Marx, which is manifest in several tactics. The first hint is in the ‘Introduction’, when she refers to Marx’s materialism (quoting Theodor Adorno) as aiming for an understanding of the world that “‘resides beyond this dichotomy of materialism and idealism’” (p. 2). More substantive evidence is in her treatment of Marx’s theory of fetishism as the progenitor of her understanding of “the autonomisation of social relations” (pp. 3, 237). Buckel views the process of fetishisation as the “reification of social conditions to forms” (p. 130), eventually describing social forms as “congealed human relations” (p. 236). Fetishisation and autonomisation are mystifying yet also materialising processes: “[i]t is the autonomisation and fetishisation of [social] relations that make possible a materiality of those forms themselves” (p. 245). When she faults subsequent Marxist legal theorists (including Pashukanis) for not recognising that “Marx himself” understood that political struggles were “mediated through the commodity form” and that this position was articulated “in one theory”, she uses Marx to elevate the form from functionalist derivation to “structuring principle” (p. 108). The original italicisation of “one” underscores the simultaneity of mystifying and materialising processes as a de-paradoxifying move.
Perhaps the most instructive de-paradoxifying treatment of Marx is in her interpretation of dialectical analysis. Once we understand that “[c]ontradictions move within the form”, the paradox is an internally contained dialectical relation. For Buckel, form-analysis is “dialectical observation”, which is inherently de-paradoxifying. The legal form is the effect of abstracting processes of circulation, but, as we learn from Pashukanis, it is also “a real social process” (p. 95); it would be an “undialectical slide of merely systemic domination” to ignore that people “make their own history” (p. 126). This is how Buckel keeps the relationality of “duality” without devolving into the binarity of “dualism” (p. 28). Later, when she collapses “actions and structures” into an internal relation while arguing that “structures are both the medium and result of the practices” (p. 217.),[6] she admits a deep affinity with systems theory. With another strategic reference to Marx’s famed “men make their own history”, however, she emphasises that the “practice of subjects” is the factor that differentiates her approach from systems theory (pp. 217–18).
Comprehensive in a way that you start wondering a third of the way through what remains for a Marxist legal theorist to write about, it is also the case that, the further and deeper that Buckel indulges the various theories, the thinner her materialism becomes. This is evident when she flattens the differences between Marx, Foucault, and Derrida. With Jacques Derrida, she finds an ally in a materialism that “does not deny this ‘phantasmagoric process’” (p. xiv), while, with Foucault, she admits that his prominence in a materialist theory “might seem surprising” (p. 161), his approach to law as a “technology of power” help fills the gap in form-analysis regarding subjectivation and relational autonomy (p. 164). As her materialism stretches, her insistence on social practices as the differentiating hallmark of her theory becomes tenuous. After all, Kelsen centres individual “acts of will” in his Pure Theory of Law, yet it would be difficult to argue that he is a materialist in view of his neo-Kantianism. I end up questioning if centring social practices is enough to make a theory materialist, especially a theory looks to formalist proceduralism as a basis of “material existence” (p. 254). This critical view is supported by examining how Buckel’s mode of inquiry implicates her political objectives.
When Buckel notes that “systemic independences have to pass through practice” (p. 28), there is reason to think that she centres social practice to vindicate systems theory. With scattered references to Marx’s historical-materialist refrain (p. 217),[7] the reader is reminded that human activity is at the centre of her theory of autonomisation and is a defining feature of the materialist theories she discusses (p. 215). She paraphrases him frequently without mentioning the term “historical materialism”, and, most importantly, without adhering to its critical raison d’être. To retrace well-trodden grounds, historical materialism does not relegate questions of knowledge to the abstract, individualistic, and consequently self-alienating realms; instead, it boasts a particular ontology of praxis aimed at exposing the urgency of the contradictions.[8]
Buckel does not pretend to offer a critical commentary, having condemned the “ideological-critical approach” that carries the threat of functionalism and economism. The underlying implication is that genuine Marxist theory involves essentialising the sphere of production. Pashukanis was similarly suspicious of a tendency among Marxists to focus on “the concrete content of the legal norms”,[9] which he thought was too narrow in scope and too wedded to functionalist account of legal history. But, to borrow from the late Ellen Meiksins Wood, the centring of production in Marxist thought is a principled political position and is the basis of historical materialism. To turn away from it is “to deal with society ‘in the abstract’”, causing analysis to lose “its critical edge” and rendering it indistinguishable from “bourgeois ideology”.[10]
Once distanced from “‘radical Marxist approaches’” (p. 17), Buckel’s strategy is to present political containment as reality. Her materialist theory is not critical on purpose; as a de-paradoxifying exercise, contradictions are “always already” internally contained in the form, which empties the theory of urgency (p. 246). Even when this is all flipped on its head in part four of her book, she does not stray far from this strategy of inquiry. The language of emancipation that prevails in the final chapters is meant to imbue her materialism with radical purpose; but having rejected the “ideological-critical approach”, she must take a circuitous route to align herself with “resistance movements” (p. 3). At page 263 of the 276-page book, Buckel offers what she describes as “cursory” response to a sense of political urgency regarding law’s potential for emancipation (p. 263). She concludes that a “juridical concept of democracy” is antithetical to emancipatory politics before making an appeal for “the democratisation of the legal form”. This involves gradual changes to daily routines, which evolve into new formative procedures of cohesion and subjectivation (pp. 272–6).
Buckel does not explain how a democratised legal form differs substantively from a non-“juridical concept of democracy”. That she keeps the language of legal form, subjectivation, and cohesion suggests that the technologies would persist while the content would change, presumably through “acts of will” (to quote Kelsen). The theoretical benefit is that it confirms the self-referential normative force of the legal form and its ability to forestall change. The political consequence is the problem of making a case for emancipatory politics after developing a materialist theory of the legal form that is premised on the procedural containment of real antagonisms.
By focusing on social practice, Buckel implies a more bottom-up approach that could open the legal form to democratisation, but the self-referentiality that drives her form-analysis is (at best) resistant to social change, and (at worst) antithetical to emancipatory politics. From this angle, the appeals to materialism come across as a theoretical sleight of hand, and it is in this sense that the book can be read as mystifying materialism.
Conclusion
In the end, the value of a fragmentary approach is not clear, except that it allows Buckel to indulge in the enigmatic much like Luhmann and Habermas. This is evident in the use of specific terminology: definitive statements—hallmarked by the exclusivity of term “only”—are “always already” radically relativised. In other words, for every fact there is a counterfactual. By performing the mystification that she is explaining, it is difficult not to read this as more mystifying materialism than materialising mystification.
Still, Marxist legal theorists should read this book for the same reasons we are compelled to read Pashukanis, namely because the mapping of commodity fetishism on to legal fetishism is an interesting thought experiment that tests the conditions of the possibility of a Marxist approach to law. By answering the question, “What if we take law’s mystification as a fact and theorise from there?”, Buckel pushes this to its furthest reaches. There is something revelatory that the pursuit to realise the full potential of Pashukanis’s work involves a turn to self-referential form-analysis in the vein of Kelsen. I would not go so far as to argue that this is an inevitability for anyone looking to extend the applicability of Pashukanis’s insights, but Buckel’s argument is compelling.
The result is a meticulously-crafted legal theory with a rich intellectual pedigree, and, although its politics are difficult to reconcile with theorisation of legal materiality, the quality of Buckel’s research makes this an essential text in terms of setting a standard for theoretical inquiry. She makes connections across theoretical divides, placing a range of twentieth-century thinkers in conversation with each other in ways rarely seen. As a standalone piece of theoretical analysis, it is dense in the best way: it is serious and unforgiving, demanding much of the reader and establishes itself an aspirational benchmark for critical legal theorists of all stripes.
Buckel provides new points of entry into old debates, encouraging her readers to think deeply about the materiality of law’s mystifying force. Most importantly, Buckel’s analysis shows that the scope and potency of political objectives are inseparable from the core matter of how we define law. Marxist legal theorists who identify with historical materialism would be very well-served by giving more thought to this most elementary consideration.
[1] Hans Kelsen, General Theory of Law and State (New York: Russell & Russell, 1961), p. xvi.
[2] Hans Kelsen, Pure Theory of Law (Berkeley: University of California Press, 1967), p. 102.
[3] Kelsen, General Theory of Law and State, p. 285.
[4] Buckel explores the Kantian roots of Habermas’s ability to integrate individual rationality and freedom within “legitimacy-generating procedures”, noting this as the “payoff” of Habermas’s “procedural turn”, see p. 46.
[5] I add the caveat that this might be a complication arising in the process of translating the work into English.
[6] This finds its fullest expression when she differentiates within the form between abstract (structuring principles) and concrete (institutional form) to distinguish between law and state, see Buckel, p. 257.
[7] See also pp. 27, 126, 136, and 263.
[8] Karl Marx and Friedrich Engels, Collected Works of Marx and Engels: 1845-47, vol. 5 (New York: International Publishers, 1975), p. 58.
[9] Evgeny Bronislavovich Pashukanis, General Theory of Law and Marxism, ed. Chris Arthur, trans. Barbara Einhorn, 2nd ed. (Piscataway, NJ: Transaction Publishers, 2007), p. 54.
[10] Ellen Meiksins Wood, “The Separation of the Economic and the Political in Capitalism,” New Left Review 127, no. May–June (1981): p. 69.
