In fact, capitalism, in some ways more than any other social form, needs politically organized and legally defined stability, regularity, and predictability in its social arrangements. Yet these are conditions of capital's existence and self-reproduction that it cannot provide for itself and that its own inherently anarchic laws of motion constantly subvert. To stabilize its constitutive social relations - between capital and labour or capital and other capitals - capitalism is especially reliant on legally defined and politically authorized regularities. Business transactions at every level require consistency and reliable enforcement, in contractual relations, monetary standards, exchanges of property. The coercions that sustain these regularities must exist apart from capital's own powers of appropriation if it is to preserve its capacity for self-expansion. (178-179)
England's particular process of feudal centralization produced a legal and political order more unified than was the European norm. So...England had long had a unitary national parliament; ...England had a more nationally unified legal system, especially its 'common law' adjudicated by royal courts, which had become the preferred and dominant legal system very early in the development of the English state.....Instead, state formation took the form of a cooperative project, a kind of division of labour between political and economic power, between the monarchical state and the aristocratic ruling class, between a central political power that enjoyed a virtual monopoly of coercive force much earlier than others in Europe and an economic power based on private property in land more concentrated than elsewhere in Europe. (172)
Here, then, was the separation between the moment of coercion and the moment of appropriation, allocated between two distinct but complementary 'spheres', that uniquely characterizes capitalist exploitation. English landlords increasingly depended on purely 'economic' forms of exploitation, while the state maintained order and enforced the whole system of property. Instead of enhancing their own coercive powers to squeeze more out of peasants, landlords relied on the coercive power of the state to sustain the whole system of property, while they exercised their purely economic power, their concentrated landholdings, to increase the productivity of labour, in conditions where appropriators and producers were both becoming increasingly market-dependent. Ellen Meiksins Wood [1999/2017] The Origin of Capitalism: A Longer view, 172-3
Yesterday, I noted that according to Meiksins Wood and Adam Smith, the origin of agricultural capitalism can be found in a change in the character of land-leases (which became fixed-term, but lengthy) such that tenants and landlords submitted, mediated by the estimations of surveyors, to the discipline of the market-place which internalized a practice of unceasing improvement. As Smith noted this system was made possible, in part, by a change in legal practice in which the state provided legal remedies to tenants.
This last point also fits a key strain in Meiksins Wood's argument: that agricultural capitalism is made possible by the state's capacity and willingness to maintain "order" and enforce "the whole system of property." In particular, on her view it also meant a willingness to give preference to a notion of property right that itself both encouraged improvement and, in part, is ground in or justified by such improvement. While she claims the account of property precedes Locke, she treats Locke (and by ignoring Grotius) as its greatest spokesman of a view she calls the "productivity of property" (111).
While her view skips the intrinsic defense of property rights (beloved by libertarians), that is, what Locke has to say about natural rights, I am not unsympathetic (recall) to her more instrumentalist and consequentialist reading of Locke's account of property (as an interpretation of Locke). This latter, more instrumentalist account is also (recall) visible in Toland's argument for Jewish naturalization and emancipation. Meiksins Wood is not inclined to see the productivity of property approach as emancipatory. Rather, she sees it rooted in the original sin of enclosure and the violation even "extinction of the customary rights of English commoners" (159) on which "many people depended for their livelihood" (108).
My interest today is not to debate the merits of the charge. Rather, I assume the 'productivity of property' is a doctrine that has entered and become entrenched in aspects of legal practice and statecraft; we see it, for example, in the practice of eminent domain (even though Locke has historically been associated with the natural law inspired criticism of eminent domain). This 'productivity of property' two important characteristics the first familiar, the second less so to liberal thought. First, as Meiksins Wood notes, the productivity of property presupposes independent state capacity to create a stable system of property rights that can shape expectations. And she is right to note that capitalism itself may create the institutional conditions -- rent-seeking, state capture, etc. -- that also create the incentives under which the impartial rule of law is undermined. One need not be a marxist to recognize she is onto something; the past two sentences describe the central obsession of the Ordoliberals (ORDOS), who worried that without both independent judiciary and independent civil service with esprit des corps, democracy provided a fast-track to the mechanisms by which the productivity of property was undermined.
This is all familiar enough. But there is also a second feature, which she notes in the following paragraph:
We need to be reminded that the definition of property was in Locke's day not just a philosophical issue but a very immediate practical one. As we have seen, a new, capitalist definition of property was in the process of establishing itself, challenging traditional forms not just in theory but also in practice. The idea of overlapping use rights to the same piece of land was giving way in England to exclusive ownership. From the sixteenth to the eighteenth century, there were constant disputes over common and customary rights. Increasingly, the principle of improvement for profitable exchange was taking precedence over other principles and other claims to property, whether those claims were based on custom or on some fundamental right of subsistence. Enhancing productivity itself became a reason for excluding other rights. (114-115)
Now, Meiksins Wood's rhetorical point is to give a reader a sense of the unfairness or suffering that accompanies the exclusion of other rights. But lurking in it is the seminal point that to embrace the 'productivity of property' also means embracing unseizing conflict over property rights. That is, it is not just accepting the friction that accompanies a change in legal regime (from, say, common and customary rights to the productivity of property). But once the productivity of property is hegemonic even more legal friction is to be expected.*
To the best of my knowledge, writing in the midst of the Great Depressions (1937), Walter Lippmann (no Marxist) was the first to really grasp this point (although surely elements of it are in Marx); entrenched technological change would help drive open ended possible improvements in productivity, and, thus, constant relative changes in productivity of different factors of and property in production, but technological change would also drive a constant reconceptualization of what counts as property (and commodity), as witnessed by recent debates inspired by changes in artificial intelligence, financial innovation, and the status of genetic code of (say) plants and animals.
The elements of the second features give rise to the need for what (echoing Lippmann) one might call the 'spirit of adaptation' in government and law. The legal and political system can't merely stand back, but must "adapt itself successfully to the intensely dynamic character of the new technology.” (Lippmann's The Great Society: 16) Drawing in part on Adam Smith, Lippmann notes that this dynamic character of technology and property involves showing “how law and public policy may best be adapted to this mode of production which specializes men's work, and thereby establishes an increasingly elaborate interdependence among individuals and their communities throughout the world.” (174)
That is to say, Meiksins Wood is right that the productivity of property generates innumerable sites and constantly new forms of legal conflict. The rise of capitalism puts great, perhaps too great, demands on state capacity. It must provide a legal and tax framework that can generate reliable expectations, and simultaneously the governing elites must be willing, despite great temptations to profit from or steer it to partial ends, to adapt that framework in light of the friction generated by the practices shaped by it in open ended fashion. And it must do so while pursuing other political goals (connected to defense, public health, public goods, etc.)
Meiksins Wood closes her book with the observation that "as capitalism spreads more widely and penetrates more deeply into every aspect of social life and the natural environment, its contradictions are increasingly escaping all our efforts to control them." (198) As should be clear, I agree that the contradictions are real; they are features not bugs. This suggests, in fact, that the marxists are right in thinking that political and economic crises are intrinsic to capitalism, despite their shape and content being often wholly new or genuinely uncertain. Writing in the pandemic, with living memory of the financial meltdown of 2007-9, this fits the lived experience of adult life under capitalism. But despite repeated and entirely justified collapses of confidence in the liberal project (broadly defined), it has also shown enormous resilience under adversity. And this resilience is also ground in lived experience. What's needed is a firmer grasp and critical evaluation of the spirit of adaptation that is itself shaped by the forces unleashed by the productivity of property, and that shapes these in turn.
*It's to be expected, in part, due to the nature of modern sovereignty which is legalistic in character (recall Siedentop on the canon law roots of the modern conception of sovereignty). I develop the significance of this soon.
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