LAW, CAPITALISM AND GLOBAL CRISIS: REVISI(TI)NG THE CANONS - PubPub
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LAW, CAPITALISM AND GLOBAL CRISIS: REVISI(TI)NG THE
CANONS
THURSDAY GLOBINAR every two weeks from 24th September 2020 at 6pm Paris time.
INTRODUCTION
The idea of this new GLOBINAR – an online avatar of the traditional “pilagg” (Cf. pilagg
website) seminar – is to open a discussion on the relationship between law, capitalism and crisis
by revisiting various canonical texts, and putting them into perspective or making them dialogue
with new ones. The focus is NOT on the pandemic that we may still be living through in
September 2020, but more broadly on the various forms of chaos induced by capitalism in our
lives and life forms, visions, experiences, environment, societies, governance, cultures, language,
sexuality, and more. While the chosen texts aren’t necessarily legal, the point is to think about
law’s role within these many upheavals, mutations or paradigm changes. One view of law we are
proposing is both internal to and generated by capitalism. Law can also be the frame that enables
market distribution, the configuration of a surplus, the identity of a worker. Thus, we understand
law as both a necessary and inherent part of capitalism’s modus operandi, affecting its economic
forefront but also and most importantly, as a force that modifies background rules at every turn.
Using crisis – past, present, and science-fictional future – as a lens through which to view the
interaction between law and capital is just one way among many to revisit not only capitalism's
inner conflicts and contradictions, but also law’s own political economy, or again the impact of
modern legal thought on the genesis and destiny of the capitalocene. Here, it will lead us back to
a series of foundational texts that continue to shape our perspective, even as our gaze shifts to
the global stage and contemporary accounts of the multiple injustices, disruptions, and loss of
meaning in our lives. It will also provide the opportunity to relate our legal life-forms and
interpretations to broader literary or cinematographic narratives about our current world.
Unlike a once dominant perspective, the project does not approach capitalism as an unequivocal,
streamlined economic process, a basic structure constituted by productive forces and economic
relations – with law merrily nestled up against the superstructure as one of capitalism’s willing
servants. Instead, capitalism is introduced here as a global social formation and life-form that
comprises and processes, produces and destroys, according to its needs, money and labour, power
and knowledge, culture and nature.
-1-Law has always accompanied capitalism through its transformations and the epochal submission
of women and workers, colonies and slaves as an accomplice, sometimes a free-rider and a
legitimizing authority. While we trace and profile (as far as will be possible) the genealogy of
capitalism’s takings – from the enclosure of common land, the colonizing of societies and the
exploitation of natural resources to the more recent cannibalizing of non-economic sectors of
society, like education, public safety and public health – , it will be crucial to analyse law’s and
lawyers’ disciplinary, normative and ideological contributions to capitalism’s well-being, as well
as to the various emancipatory or transformative moments that may have served or hoped to
break its momentum. As we look at capitalism’s histories and metamorphoses, language and
epistemology, constitution and courtship, gender and nature, and its other domains, we hope to
find out what adequately describes the “intimate dualism” between capitalism and law – relative
autonomy, structural alliance, division of labour, parasitism, complicity or some other feature?
Crisis has now lost its original meaning as a turning point for better or worse of a disease, so
crises of capitalism connote less a paroxysmal attack than a massive, protracted functional
disorder that endangers its own institutions, like the real estate market or investment banking,
or even the performance or hegemony of the capitalist system. Especially, the ceaseless economic
accumulation and the unequal distribution of wealth have historically been regarded as drivers
for severe cyclical crises. More recently, this crisis tendency has been associated with a
contradiction that sets up an increased interdependency between different elements of the
capitalist system against the absence of a general agency for their coordination. On the global
plane, capitalism’s disposition to generate crises has been attributed to the close interlocking of
international flows of capital, production and value chains, border-crossing trade relations and
knowledge transfers. An inherently crisis-prone mode of production is clearly dependent upon
some kind of local or global regulatory regime to kick in where self-regulation fails. The
GLOBINAR will be an ideal opportunity to discuss whether and how law is activated not only
to shield the foundational pillars of capitalism (property, contracts), legitimize the methods of
capital accumulation and code its assets but also to guide and constrain the interventions of
governments and international organisations to restore the economy’s balance, sustain
capitalism’s hegemony and thus solve crises.
With particular relevance to the “boundary struggles” that have always been (literally and
metaphorically, geographically and normatively) a central focus of the pilagg seminars, Nancy
Fraser’s critical-theoretical framework will serve as starting point – and we are honoured indeed
that Rahel Jaeggi has accepted to open our first session 1. Focusing on capitalism’s “crisis
tendencies”, this framework asks how current forms of capitalism (financialized, globalized, neo-
liberal) redraw (once again) the lines between commodity production and social reproduction,
between private and public power, between human beings and the rest of nature, between
exploitation and expropriation. From the perspective of critical political theory, this framework
joins forces with its critical legal counterpart in revealing the ways in which each mutation of the
1
Nancy Fraser, Rahel Jaeggi, Capitalism. A Conversation in Critical Theory Polity Press, 2018
-2-capital form is undergirded by a specific order or law. Yesterday, the supremacy of contract, the
ubiquity of debt, and the sharp division between public and private authority; today,
transnational governance regimes to empower capital to discipline the very constituencies to
whom it is supposedly accountable. An additional geopolitical understanding of these boundary
struggles might highlight the ways in which such regimes are used to structure the global value
chains that dismantle national sovereignty and local claims to political and legal autonomy, while
the simultaneous growth of surveillance pushes capital’s extractive project still further.
In our present times of worldwide sanitary and social disaster and environmental depredation,
against a backdrop of generalized and protracted constitutional states of exception, the question
further arises as to whether or not we are witnessing a new, more radical crisis of capitalism as it
fails to contain the violence of its own inner contradictions and conflicts inherent in these
boundary struggles. Do post-covid social movements, the environmental consciousness of a new
generation, signs of economic collapse spreading from the periphery to the core, herald the end
if not of neo-liberalism as such, then (in Fraser’s terms) of neoliberalism as a hegemonic project?
This question is not only theoretical – although it seems obvious that no intellectual work in the
political and legal humanities can or should be done without its urgent consideration – but
engages the conditions of possibility, beyond the current crisis, for the building of a more
hospitable world. Understanding law’s much underestimated role – constitutive or
emancipatory? infrastructural or superstructural? – within capital’s global hegemonies and local
conflicts, smooth transitions and radical metamorphoses, is just one possible starting point...
***
The program proposed by the discursive collective of the GLOBINAR is undoubtedly ambitious
– commensurably with the gravity and contemporary relevance of its topic. It covers a lot of
ground in the fourteen sessions planned to run over the next two semesters. The GLOBINAR
will take place on line for the first semester. Sessions take place every two weeks during our two
semesters and last at most two hours each. We’ll have to wait and see whether we can have some
live attendance (in the usual room), and how we’ll organize the second semester. A grand finale is
planned during the intensive doctoral week in June at Sciences Po.
The GLOBINAR will run in a book-club mode. Three convenors are asked to start a conversation
(30 minutes maximum, so it has to be brief) about any one of the chosen texts or other materials,
or the relationship between them. An informal discussion will ensue in which the participants
will pick up any of these threads.
Registration is required (on the pilagg website). Registered participants will receive access to the
readings (including a shortened version of the chosen texts designed specifically to support and
encourage discussion) and a suggested list of issues on which discussion might focus.
-3-1. Capitalism’s Histories: 24th September 2020
Convenors: Horatia Muir Watt, Helena Alviar, Günter Frankenberg.
With special guest Rahel Jaeggi.
How should we understand capitalism itself, as more than a mere economic model? What are
capitalism’s “boundary struggles”? Why does capitalism have a front-story and a back-story? How
does law tie in?
Readings:
R. Jaeggi/N. Fraser: Capitalism. A Conversation in Critical Theory 2018 (ch. 3: The Ethical
Critique of Capitalism as a life form, 17 p.)
K. Marx, Capital I, 1867 (Genesis of the Industrial Capitalist, 8 p. + Historical Tendency
of Capitalist Accumulation, 3 p.)
Movie & narratives:
100 Years of Solitude (Gabriel García Márquez) Excerpts
The Underground Railroad (Colson Whitehead) Excerpts, 3-9, 340-345
Critique of Capitalism – Nancy Fraser – YouTube
-4-2. Capitalism’s Language: 8th October 2020
Convenors: Karen Knop, Antonio Marzal, Fuad Zarbiev, Astrid von Busekist.
Is capitalism legally and linguistically encoded? Conversely, how (and how far) does it colonize or
cannibalize law and language as its non-economic “takings”? Mercantile capitalism spoke the
language of property/dominium: have later models induced changes in our conceptual vocabulary?
Coding suggests a written form: does indigenous visual legal thought represent a zone of resistance?
Readings:
V. Klemperer, Lingua Tertii Imperii: Notizbuch eines Philologen (9-16)
C.F. Black, A Mosaic of Indigenous Legal Thought, 2017 (excerpts)
R. Cover, Nomos and Narrative (The Supreme Ct Foreword, Harv. L.Rev. 1983), (4 – 10)
Movie & narratives:
The Globalists (Quinn Slobodian), (1-26/27)
3. Capitalism’s Constitution: 22nd October 2020
Convenors: Helena Alviar, Günter Frankenberg, Jacco Bomhoff, Bruno Sousa Rodrigues.
How should we understand authoritarian liberalism in relation to capitalism? How two-faced is
neo-liberal capitalism’s constitution, as seen through fiscal and monetary policy, the international
foreign investment regime, or modern monetary theory?
Readings:
K. Marx, On the Jewish Question, 1844 (excerpt 5p).
C. Robinson, Black Marxism, 1983, (50-51, 162-171).
Constitution of Haiti, 1805 (Articles 1-14).
Movie & narratives:
Adults in the Room (Costa Gavras)
The Road to Serfdom – F. v. Hayek {Interview} – YouTube
-5-4. Capitalism’s Gender: 5th November 2020
Convenors: Helena Alviar, Clarisse Anceau, and Samira Akbarian
That capitalism’s inequalities are inherently gendered is frequently overlooked. This flows from
ignoring or underestimating its component of social reproduction. Whither feminist critique of Marx
today?
Readings:
Donna Haraway, A Cyborg Manifesto, 1985.
Catherine McKinnon, Feminism, Marxism, Method and the State, 1983.
Movie & narratives:
Babel (Alejandro González Iñárritu)
5. Capitalism’s Resources : 19th November 2020
Convenors: Jorge Esquirol, Mikhail Xifaras and Filipe Antunes Madeira Da Silva
Capitalism’s extractive dynamic is undergirded by law. When existing resources are exhausted, new
ones are required, along with a renewed legal vocabulary and grammar. Extraction has now turned
from human labour and minerals to data. How far is this mere reiteration or the dawn of a whole
new model?
Readings:
Shoshana Zuboff, Big other: surveillance capitalism and the prospects of an information
civilization, 2015.
Sven Beckert, The Empire of Cotton, 2015, (179-185, 299-303).
Movie & narratives:
Telex from Cuba (Rachel Kushner)
1984 (George Orwell)
Modern Times (Charlie Chaplin)
-6-6. Capitalism’s Religion: 3rd December 2020
Convenors: PG Monateri, Martti Koskenniemi, Horatia Muir Watt
If capitalism has a religion, it is probably the protestant ethic that first comes to mind. The cult of
global capitalism reconstructs markets as churches. And perhaps the other way round, too. But there
are missing elements to the puzzle. How does the Jewish Question fit here? And how should Gaia
intervene?
Readings:
Walter Benjamin, Capitalism as Religion, 1924.
Max Weber, Protestant Ethic, 1905, (102-125).
Jürgen Habermas, Between Naturalism and Religion, Polity, 2008, (209-227).
Movie & narratives:
The Wolf of Wall Street (Martin Scorsese)
7. Capitalism’s Experts: 10th December 2020
Convenors: Akbar Rasulov, Jean d’Aspremont, Deval Desai, Omar Kamel.
In our contemporary world of struggle, neoliberal capitalism generates experts and conflicts of
expertise, with their own political economy. That biopower in global governance depends upon
scientific expertise has become evident during the current pandemic. How should we relate this to
capitalism’s (past?) claim to democratic government?
Readings:
David Kennedy, A World of Struggle, 2016 (excerpts).
Richard Posner, The Law and Economics of the Economic Expert Witness, 1999.
Movie & narratives:
La Volonté de savoir – Michel Foucault {Interview}, 1977 Paula Jacques – YouTube
-7-2nd SEMESTER
8. Capitalism’s Courtship: {Date to be determined}
Convenors: Horatia Muir Watt, Robert Wai, Dina Waked, Amina Hassani
Does capitalism have its own structures and forms of administering justice and, if so, how do they
differ under its different historical models? Are examples of “extraterritorial courts” an historical
anomaly of colonial rule or a constitutive part of law’s informal empire?
Readings:
Teemu Ruskola, Colonialism Without Colonies (on Extraterritorial Courts).
Willis Hugh Evander, Capitalism, The United States Constitution and the Supreme Court,
1934.
Movie & narratives:
To Kill a Mockingbird (Harper Lee)
Capitalism in the Courtroom, Podcast (Karen Duffin)
Capitalism and the Courts in 19th Century Egypt, Podcast (Omar Cheta)
-8-9. Capitalism’s Epistemology
Convenors: Hans Lindahl, Nicholas GS Saul, Megan Ma, Ralf Michaels
Capitalism can be seen as a cultural way of producing, attributing, and accumulating specific forms
of worth, which need not be monetary. What are capitalism’s specific dynamics in knowledge
production? What is the role of the “native informant” within capitalism’s colonial epistemology?
How should we think about digitalisation (ordering by numbers) in this context? And is decoloniality
better at emphasising the role of capitalism than postcolonial studies?
Readings:
Michel Callon & Bruno Latour, Unscrewing the Big Leviathan. How Actors Macrostructure
Reality and How Sociologists Help Them To Do So, 1981.
Clark Miller, Civic Epistemologies: Constituting Knowledge and Order in Political Communities,
2008.
Radha d’Souza, Postcolonialism, Realism, and Critical Realism, 2010.
Movie & narratives:
Measuring the World, (Daniel Kehlmann)
-9-10. Capitalism’s Nature
Convenors: Alain Pottage, Vincent Forray, Aurelien Bouayad.
More traditional understandings of capitalism often missed its inherent need to separate the human
from the non-human. This is changing with narratives of the Anthropocene. Have we been “losing
the world knowingly”? How should we (and law) relate to “green eschatology” or understand the
political economy of the technocene?
Readings:
Sheila Jasanoff, Designs on Nature: Science and Democracy in Europe and the United States,
(Ch. 1 : Why Compare and/or Ch. 2 : Controlling Narratives), 2007.
Clive Hamilton et al, The Anthropocene and the Global Environmental Crisis (Rethinking
Modernity in a new epoch), 2015.
Movie & narratives:
Crude (The Story of Chevron - Texaco's Ecuador Disaster), 2009 (Joe Berlinger) –
YouTube
Grapes of Wrath (John Steinbeck), 1939
- 10 -11. Capitalism’s Bodies
Convenors: Jeremy Perelman, Sandrine Brachotte, Max Pichl
Capitalism backed by law drives our “busy – bodies” to ceaseless (market) activity. It commodifies
women’s bodies (industrial surrogacy). It pushes migrants to constant movement across frontiers in
search of work within global chains of production, or away from home in the wake of climate change.
Is capitalism’s body gendered, racialized, and also diseased, somatically affected by the weight of all
flesh – the charge of sovereignty that modernity transferred to each individual member of the body
politic?
Readings:
Eric Santner, The Weight of All Flesh: On the Subject-Matter of Political Economy, 2015.
Chantal Thomas, Irregular Migration and International Economic Asymmetry in World Trade
And Investment Law Reimagined: A Progressive Agenda For An Inclusive Globalization,
2019.
Movie & narratives:
Go, Went, Gone (Jenny Erpenbeck)
Lost Children’s Archive (Valeria Luiselli)
12. Capitalism’s Culture
Convenors: Claire Cutler, Vittoria Becci, Kerry Rittich.
Taking a long look at capitalism's culture industry requires de-centering the economy within
capitalism. How exactly do the arts relate to the political economy?
Readings:
Adorno & Horkheimer, The Culture Industry - Enlightenment and Mass Deception
Walter Benjamin, The Work of Art in the Age of Mechanical Reproduction
Movie & narratives:
- 11 - The Black Box (Toni Morrison)
13. Capitalism’s Metamorphoses
Convenors: Nicolas Perrone, Dan Danielsen, Poul Kjaer.
How should we view capitalism’s attempts to redeem itself through a discourse on “responsible
capital”, corporate social responsibility and other forms of green-washing? Can these claims to virtue
be taken, in law, at their face value? And if these are smokescreens, what is capital’s real
contemporary shape?
Readings:
Ronan Shamir, Capitalism, Governance, and Authority: The Case of Corporate Social
Responsibility, 2010.
Movie & narratives:
United Fruit Company (Pablo Neruda)
The Metamorphosis (Franz Kafka)
- 12 -14. Capitalism’s Utopia & Dystopia
Convenors: Horatia Muir Watt, Helena Alviar, Günter Frankenberg.
For the finale of our GLOBINAR we return to the epidemic/pandemic threat and two drivers of
capitalism and its civilization that have generated dystopian/utopian perspectives. First, the
imperative of exploration has been propelled to unforeseen forms of behavioural control and regulation
by the algorithmic combination of data and the exertion of artificial intelligence facilitating
anticipatory government, predictive policing, social scoring, and smart orders. Second, capitalism’s
extractive dynamic and the imperative of relentless growth have from the very beginning colonized
“nature” and incurred ever new ecological imbalances and crises. Deforestation, land grab for
industrial production, agroindustry, strip mining, and urban sprawl have invaded fauna’s and flora’s
habitat. The infinite variety of viruses and bacilli, amoeba and bacteria delivered by animal hosts,
like fleas, flies, rats, bats, lice, civet cats and even dromedaries, invariably indicate that civilization
has recklessly crossed a border. COVID-19 brought capitalism to a grinding halt, albeit temporarily,
and called into question law’s equipment to cope with a pandemic. The disease should be taken as a
warning and a metaphor that something is deeply wrong with capitalism and should be used as an
occasion to rethink our relationship to nature.
Readings:
Klaus Günther, Smart Orders
Philippe Descola, Beyond Nature and Culture, 2013
Movie & narratives:
Of Bamboo, Cicadas, and the Economy of Adam Smith, in Ever Since Darwin (Stephen
Jay Gould)
Heart of darkness (Joseph Conrad)
Plagues and Peoples (1976), 1-13 (William McNeill)
Disease as Political Metaphor (Susan Sontag)
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