How do critical theory and the critique of capital relate to ongoing struggles against caging, surveillance, and state violence today? I’ll be speaking about these topics with attorneys Rebecca Chapman and Cooper Brinson in a webinar hosted by the Civil Liberties Defense Center today, October 8 at 6:00 PM EDT / 3:00 PM PDT. It will run for two hours, ending with a Zoom-mediated Q&A session.
I’ve compiled a list of links that may be helpful to those who are interested in these questions and want to get their bearings. I’ve cast a wide net; I’m less interested in advocating for a particular view than I am in providing a glimpse of the breadth and diversity of critical theory as it relates to law, courts, and prisons—and the struggles in and against them.
Nate Holdren and Eric Tucker, “Marxist Theories of Law Past and Present”
E.P. Thompson, “The Rule of Law”
You can find a thematically-arranged overview of the posts at Legal Form here.
If time permits, I plan to talk about one way of categorizing different critical approaches to law and the state—specifically, (1) class power; (2) struggle (2); and (3) mediation. I co-wrote a short essay on this scheme for Legal Form, which you can read for further exploration of those distinctions. Categorizations are always imperfect, of course; and they often impose a sense of tidiness and orderliness that isn’t really there. Still, I think it’s a useful way to initially approach a very big and contradictory world of texts, traditions, and debates.
Theory and History
I also recommend the following background readings:
Angela Davis, Women, Race, and Class (1981)
- An all-around classic; I’ve included it here because, among other things, it vividly illustrates how liberal and legalistic conceptions of rights and justice can crowd out and inhibit collective struggles for liberation, dignity, and lasting material gains.
Michel Foucault, “The Mesh of Power” (1976)
- An essay that deserves to be read more widely—one that puts the lie to simplistic interpretations of Foucault as non- or antimarxist. There are so many different ways to enter Foucault’s work; I like this essay because it covers a lot of ground but is still relatively self-contained.
- There are many guides and introductions to Marx and Marx’s critique of capitalism. Smith’s is an excellent place to start if you are familiar with contemporary liberal and progressive theories of inequality and political justice (Rawls, Habermas, etc.). It also contains a rigorous—but brief and accessible—overview of Marx’s critique of capitalism and what makes it distinctive.
- More introductions to Marx:
- Michael Heinrich, An Introduction to the Three Volumes of Marx’s Capital (2003).
- Simon Clarke, Reading Guide to Capital.
Law and Courts
For background on law and courts more generally, see:
Robert A Kagan, Adversarial Legalism (2nd ed., 2019)
- A sobering account of the distinctive features of the practice and experience of law in the U.S. Compared to many other countries, the American legal system is far more punitive and far more inequitable, from pre-trial hearings to sentencing.
Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing (2019)
- An unlikely complement to Kagan’s book, Kohler-Hausmann’s survey of lower criminal courts demonstrates that one of the primary roles of American courts is to serve as an adjunct to, and promoter of, violent forms of social control (aggressive policing, mass incarceration, and omnipresent surveillance). American criminal courts break lives on a daily basis—even when they do not formally decide cases or deliver sentences.
Keith E. Whittington, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (2019)
- The latest book by a leading political scientist who has charted the close, occasionally antagonistic, but usually reciprocal relationships between the U.S. Supreme Court and national politicians. The Court is not a neutral arbiter of legal disputes—still less is it a haven of justice and reasoned deliberation. It is a political institution and its decisions are interventions in politics. This is an important point to emphasize against uncritical celebration of the Court—or of particular justices—as defenders of individual rights.
- See also:
- Lucas A. Powe, Jr., The Supreme Court and the American Elite (2008); The Warren Court and American Politics (2002)
- Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (2nd edn., 2008)
- Martin-Quinn measures of judicial ideology