In a couple of previous posts on Legal Form, Rob Hunter has reminded us of the importance and aptness of a Marxist approach to the analysis of public law. Hunter’s intervention could not be more timely: even after the economic and financial crisis, and despite the comeback of Marxism as a relevant intellectual source at least within certain legal domains (think, for example, of international law)1, there has not yet been a Marxist revival in constitutional studies. One possible explanation for this phenomenon (though likely not the only one) is the discredit and almost total obliteration of the best-known Marxist contribution to constitutional studies: Lassalle’s notion of the material constitution.2 As is well known, in a couple of famous conferences, Lassalle denounced the formalism of liberal constitutions as a mask that conceals underlying class-based modes and relations of productions. The “real constitution”, according to Lasalle, was opposed to the false and deceitful formal constitution. His version of the material constitution was basically another iteration of the relation between base and superstructure. On this account, the political character of constitution-making is purified of any contingency and associated with an idea of necessity. The foundations of the constitution have to be found “always and exclusively in the real effective relations among social forces in a given society”.3 The principal limit of Lassalle’s theory is his neat separation of the real constitution of society (the material constitution) from the formal (and mystificatory) legal constitution. The legal dimension does not play any constitutive role.
Another influential (and perhaps more rewarding) attempt to draw upon historical materialism for purposes of constitutional theory is Charles Beard’s The Economic Foundations of the American Constitution.4 Beard’s analysis focused on the personal and class interests of the “Founding Fathers”, showing that, contrary to the statement contained in The Federalist No. 1, the framers of the U.S. constitution were not creating an autonomous sphere and science of politics. Rather, they were entrenching certain concrete interests in what would become one of the world’s most rigid constitutional documents.
There is something valuable in these denunciations. In particular, the idea that it is impossible to understand the constitutional order without taking into account its political economy certainly remains relevant. Yet the limits of this type of analysis became apparent to later generations of constitutional analysts. This is the case for two reasons, both related to a reductive understanding of societal formation and its relation to the legal order. First, writers like Lassalle and Beard misinterpreted the role of law by portraying the constitutional order as a supra-structure, the main elements of which were overdetermined by politico-economic forces and dynamics. In brief, they portrayed the relation between constitutional order and political economy in a uni-directional manner. Second, such crude economic determinism came at a high price because it did not encourage analysis of the composition of forces of production, thereby obscuring the agency of individuals and groups.5
In light of these considerations, one can understand why the notion of the material constitution did not come to dominate constitutional debates. A more nuanced and juristic (rather than materialist) notion of the material constitution was later made available by the first wave of legal institutionalists, in particular the works of Rudolf Smend, Herman Heller, and Costantino Mortati. Here the material constitution is presented as a function, and serves the specific purpose of integrating society through the constitutional order. While it has been largely forgotten by mainstream constitutionalism,6 Marxist constitutional scholars can still learn an important lesson from this tradition: the constitutional order ought to be studied together with societal institutions. However, one can detect at least two limits: the first concerns the separation between facts and norms, presented by many in strictly dualist fashion; the second involves excessive faith in the autonomy of the political and the integrative properties of the constitutional order. In other words, the formation of the constitutional order is depicted in ways that do away with divisions within society and accept too readily the idea that the constitution’s function is to mould society. To avoid any misunderstanding, the latter is not an inaccurate observation, but it is largely insufficient for an accurate constitutional theory.
The fundamental problem with these traditions is that they are prone to trivialise the materiality of the constitutional order. While they can offer useful insights for constitutional studies, both traditions need to be renewed from a materialist perspective. Similar to some of the recent sociological reconstructions of constitutional law7, the material constitution should indeed be thematised–against classic versions of liberalism–as internally related to the ordering of society. This means that the constitutional order is as constitutive of societal formation as other essential social factors. This, in turn, means that the constitutional order is not an externalisation of underlying social processes or an external device imposed upon society. The study of the material constitution entails the recognition that the constitutional order is embedded in society’s conflictual and necessarily partial self-description.
But how is the materiality of the constitutional order to be approached? In the context of modern legal orders, the material constitution comprises four constitutive elements–or, to resort loosely to an Aristotelian scheme, four causes.8 The formation of the material constitution necessarily takes place together with the production of political and legal unity, which operates as the formal cause. In this respect, Nicos Poulantzas’ contribution remains essential.9 Each legal and political order is associated with a concrete temporal and spatial matrix. In capitalist orders, the dominant form of this matrix has been shaped by states and empires. Yet there is nothing conceptually necessary about this form. In fact, other temporal and spatial matrixes can be found at the supranational level, as is the case, for example, with the peculiar legal space created by the European Union.
A second element is given by social and legal institutions that are necessary for moulding social relations. Classic examples of these institutions are money, the family, and private and public property. Note that many of these institutions are often deemed to belong to private law, but their impact on the formation and development of the material constitution is undeniable.
The third element concerns the subjects (or bearers) of the material constitution. This is a key element of the materialist analysis: while structures are obviously deemed to be essential, agency is equally relevant in the formation and development of the material constitution.10 This element pertains to the political dimension of the material constitution, as agency partly entails the determination of group subjectivities. While in standard accounts the political system is normally thought to be the main site for agency, constitutional analysis cannot restrain itself to this dimension, and, according to the specific context, it will have to expand the analysis to other subjects as well (such as trade unions and social movements).
Finally, the fourth element is the teleological cause: each material constitution is a condensation of social and political forces around certain fundamental objectives. This is another subjective aspect of the material constitution because the choice entails a degree of political arbitrariness. Unlike the classic reconstruction by liberal constitutionalists, based on consent and neutrality, this fourth element shows that the constitutional order “is also an expression of state aims in the context of class conflict”.11 At the same time, setting fundamental political aims is actually quite costly because it entails an enormous effort whose outcome is often riven with contradictions. However, one should be careful in adopting an unqualified idea of hegemony to describe this process. The formation of a political regime, with its main actors, is imbricated in the choice of these aims. But collective subjects form their political identity in conflicts around the choice of these aims and the resistance against them.12
At this point, one clarification is in order. it should be evident that the formation of a material constitution is generally the outcome of a complicated and significant series of operations. This does not entail the trivialisation of the formal constitution. Although the material constitution breathes life into the formal legal order, it should be noted that the two levels (material and formal) are usually not in contrast; they stand instead in an integrative relation. Considering the formal constitution, i.e. the set of constitutional norms and conventions, may be illuminating about certain aspects of the whole constitutional order. But it remains impossible to understand the constitutional order without interrogating the material constitution. The real challenge, for constitutional theorists, concerns the understanding of the nature of materiality.
- ↩See, e.g., China Miéville, Between Equal Rights. A Marxist Theory of International Law (London: Pluto Press, 2004).
- ↩Ferdinand Lassalle, Über Verfassungswesen  (all quotes are from the English translation available at: https://www.marxists.org/history/etol/newspape/fi/vol03/no01/lassalle.htm).
- ↩Charles Beard, An Economic interpretation of the Constitution of the United States (New York: Dover, 2015 ).
- ↩In the case of Beard, for example, this blindness impeded a proper analysis of the role of slavery in the formation of the U.S. constitution.
- ↩For a laudable exception, see David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Cambridge: Cambridge University Press, 1996).
- ↩See, e.g., Chris Thornhill, A Sociology of Constitutions (Cambridge: Cambridge University Press, 2011).
- ↩I expand the analysis of these four elements with Mike Wilkinson in “The Material Constitution” Modern Law Review (2018, forthcoming).
- ↩See especially Nicos Poulantzas, State, Power, Socialism (London: Verso, 2014 ), 11-44.
- ↩For a classic statement of the importance of autonomous agency, see Mario Tronti, Operai e capitale, DeriveApprodi (Roma: Biblioteca dell’operaismo, 2006 ).
- ↩Rob Hunter, “Constitutionalism: Appearance, Form, and Content”, available at: https://legalform.blog/2017/12/03/constitutionalism-appearance-form-and-content-rob-hunter/.
- ↩See James C. Scott, Domination and the Arts of Resistance (New Haven: Yale University Press, 1990).
Marco Goldoni is Senior Lecturer in Law at the University of Glasgow.