Law and Transitions to Capitalism

A distinguishing feature of any mode of production is labour compulsion, or more precisely, the legal relations that demarcate the terms of labour. Marx identifies ‘[d]irect extra-economic force’ Marx (1977: 899) as the defining feature of the pre-capitalist mode of production, ¹ typified by the force that compels the labour of slaves, vassals, or indentured servants. Conversely, he describes capitalism as ‘a mode of compulsion not based on personal relations of domination and dependency’ (1021), where the ‘silent compulsion of economic relations’ prevails in place of direct extra-economic force (899). When this occurs, ‘formally free labour’ emerges accompanied by reconfigured relations of authority and subjectivity (928), or as Marx puts it: ‘[t]he master now ceases to be a capitalist because he is a master, and becomes a master because he is a capitalist’ (1031). Drawn from Capital I, this account dominates debates on the transition to capitalism in the mid-twentieth century. In this essay, I identify the misleading assumptions about law that underpin this account, explain the political and intellectual consequences of adhering to these assumptions, and gesture to new avenues for the critical analysis of law, labour, and the history of capitalism. The terms of labour in any given epoch reflect economic valuations as well as social and political principles. By interrogating prevailing assumptions about law and legal relations, I help advance critical analyses of the relation between law and political economy—a worthy pursuit especially during these times of social and economic upheaval.

Exemplary studies by Maurice Dobb, Rodney Hilton, Paul Sweezy, and Robert Brenner confirm that it is impossible to comprehend the transition to capitalism without paying special attention to labour compulsion. ² I argue that these major contributors to the transition debates of the mid-twentieth century also seem to have in common a distinguishing notion of law as artifice, whereby law and legal relations are external, derivative, and unnatural in relation to the economic sphere. This is the result of adhering to three assumptions about law and legal relations that are embedded in Marx's account in Capital I: first, the legal relations that shape labour compulsion in so-called ‘pre-capitalism’ are characteristically ‘extra’ in relation to the economic sphere and ‘direct’ in relation to the political and legal spheres; second, the transition from direct to indirect labour compulsion entails a qualitative shift in law's force; and third, law has an artificial (as in, extrinsic and/or unnatural) effect on the economic sphere, explicitly-so in the course of the transition to capitalism. ³ If left unchecked, I aver, these assumptions invite programmatic developmentalism as a political consequence and a false reconciliation between force and labour as an intellectual consequence.

When law and legal relations are accounted for primarily in terms of their necessity to a dominant mode of production, they help explain economic transformation but are scarcely afforded their own explanation. This engenders a paradigmatic notion of law as artifice in which the legal sphere is the realm of the external and artificial, while the economic sphere is the realm of the internal and natural. Once the paradigmatic becomes programmatic, a type of stagism prevails. This happens when the stubborn internalism of certain accounts of the English transition to capitalism skew historical realities, a political consequence of which is the reification of this bias through programmatic developmentalism. The resulting developmentalist template dictates that where extra-economic force as the basis of labour compulsion wanes, indirect force and ‘silent compulsion’ preside. However, this account of the transition to capitalism mystifies the relation between law and labour compulsion, an intellectual consequence of which is the false reconciliation between force and labour. This habituated emphasis on law's artificial effects erodes the ability to explain the relation between law and actual conditions of production, a limitation that, in turn, reinforces programmatic developmentalism. Because of these consequences, I argue for the need to rethink artifice as it relates to labour compulsion, drawing principal inspiration from Elleni Centime Zeleke's historically grounded and theoretically rich engagement with the transition debates. Zeleke's historical awareness and theoretical adeptness are antidotes to the political and intellectual consequences that arise from adhering to the misleading assumptions about law. Her work is especially useful for legal scholars because she shows how to resist a formulaic understanding of law, labour, and the history of capitalism, and because she clarifies the necessity of doing so.

To support the above claims, I explore the provenance of the notion of law as artifice, first, by accounting for it in the context of Marx's comments on the distinction between ‘natural’ and ‘artificial’, and second, in relation to his views on labour compulsion. Third, I explain how law as artifice inheres in the early transition debates, which bend toward internalist accounts of the origins of capitalism. This internalism ignores the complex ways that law and legal relations undercut the internal/external and direct/indirect divides, and leads to programmatic developmentalism and false reconciliation alike. I address these consequences in the fourth and final part, drawing on Zeleke's recent book, Ethiopia in Theory, to conceive of a more apt framework through which to analyze law, labour, and the history of capitalism. The point of doing so is not to use a supposedly exceptional (i.e., Ethiopian) case to disprove the ruling ideas about the transition to capitalism, but to show how those ideas come to rule and to support new perspectives on law and what Zeleke fittingly refers to as ‘transitions to capitalism’ (2019: 209).

Natural and Artificial

Marx's broader intellectual mission in Capital I is to ‘dispel all teleologies of progress’ (Fine, 2002: 102). Among his favourite targets in this interrogation of appearances are classical political economists, whom he chastises for their eagerness to rationalize the behaviour of capitalists (Marx, 1977: 738). Faced with the manifest violence of ‘the methods of primitive accumulation’ (874), he accuses them of spouting claims so awash with ‘insipid childishness’ that they give class divisions the appearance of being natural: the wealthy were always in the process of accumulation, the poor always had to sell their labour, and capitalism was a merely natural development of these pre-existing circumstances. Such was the ‘history of economic original sin’ (873). Crucially, Marx also observes that political economists rely on ‘the notions of law and property’ to supplement the appearance of the ‘ready-made world of capital’ (931). The contract as a ‘relation of two wills’ is indispensable in this regard (178), as it helps make actually unequal relations appear equal, which supports the lie that capitalism's definitive shift in the ownership over the means of production is a ‘natural process’ (929). Elsewhere, Marx refers to legislation as ‘manufacturing capitalists artificially’ (932). By describing legislation as having an artificial effect, he makes a decisive commentary on law's relation to the economic sphere in general and the English transition to capitalism in particular.

Marx places law and legal relations at the centre of the artificial/natural nexus, showing how law and legal relations abet the political economists’ mystifying accounts of the naturalization of capitalism. Less clear is the line between his affirmation versus his interrogation of law as artifice: the more he exhumes law's artificiality, the more he risks entrenching the perceived naturality of the economic sphere. Because it would be specious to hold him accountable for the use of ‘artificially’ that might be the product of translation, I must address possible confusions arising from interpretive license and the multiple meanings of the term itself.

A footnote in Capital I includes an enlightening quote from Marx's Misère de la philosophie, which (in the Fowkes translation) reads: ‘[t]he economists have a singular way of proceeding. For them there are only two kinds of institutions, artificial and natural. The institutions of feudalism are artificial institutions, those of the bourgeoisie are natural institutions’ (175 note 35). In the original French (quoted in a footnote in the first German edition of Das Kapital) the institutions mentioned are described as ‘celles de l’art et celles de la nature’, and subsequently as ‘des institutions artificielles’ and ‘des institutions naturelles’ (Marx, 1867: 42 note 28). The use of ‘artificielles’ resonates thematically with the preceding ‘art’ (as in, construct or something created), although in the English translation ‘artificial’ is used in both instances and reads more like he has in mind something that is unreal, unnatural, or fake. Beyond the question of translation, however, is the substance of Marx's argument. In this note, he scrutinizes the idea that economists present one kind of institution as natural, warning the reader to tread carefully when encountering such pronouncements.

On the matter of how these considerations pertain to law, Marx comments midway through Capital I that ‘[t]his industrial revolution, which advances naturally and spontaneously, is also helped on artificially by the extension of the Factory Acts’ (Marx, 1977: 604). This is a literal translation from the original first edition (‘künstlich’) (Marx, 1867: 466), and again it turns on a distinction between natural and artificial that includes a description of law's effects on industry. He reiterates this a few pages later, which in English reads: ‘the Factory Acts thus artificially ripen the material elements necessary for the conversion of the manufacturing system into the factory system’ (Marx, 1977: 607). The term ‘künstlich’ is not in the original German version of the same passage (Marx, 1867: 469), meaning that it was inserted according to translator's prerogative. But a more literal translation follows from the later Marx-Engels-Werke (MEW) edition, when Marx states that the Corn Laws ‘artificially [künstliche] encouraged the cultivation of corn’ (Marx, 1977: 870, note 41; Marx and Engels, 1962: 739, note 188b). There is more evidence of translator's license later, when Marx observes how the aim of legislation to ‘manufactur[e] capitalists artificially’ in the ‘mother country’ mirrors the ‘manufacturing [of] wage-labourers in the colonies’ (Marx, 1977: 932). The original and MEW editions refer to ‘Fabrikation von Kapitalisten’, but there is no explicit mention of this being artificial as such (Marx, 1867: 747; Marx and Engels, 1962: 793). On this occasion, the idea of ‘artificial’ as something produced or created seems to reign over the idea of it as something unreal or unnatural.

Far from an exhaustive account of every occurrence of the term, this sampling is enough to make three points with respect to how Marx describes law in relation to industry as it pertains to the natural/artificial nexus. First, when inserted into the text by a translator, the choice of ‘artificially’ may reflect an understanding of law as having an external albeit transformative effect on the economic sphere. Second, in certain English translations, ‘artificial’ and ‘artificially’ denote fakery, which reflects an idea of law as something unnatural. Third, this conceptual association with fakery tends to overshadow the implicit version of artifice as something created or produced, an association that is clearer in the French and German texts. All three points relay different facets of a singular conundrum: Marx's commentaries on what is artificial versus natural are useful in terms of drawing attention to the tenuousness of the distinction, yet questionable because they offer an implicit yet substantive point about law and legal relations that reifies the distinction itself.

To dispute the naturalization theses of classical political economists, Marx looks to the mystifying effects of law and legal relations as explanantia, that is, to explain what occurs in the transition to capitalism, but he does so without a commentary on law and legal relations as explananda, that is, phenomena in need of explanation in their own right. As such, the conceptualization of the artificiality of law and legal relations is useful to advocate for the overarching explanans he offers, yet dubious because of the inadequate assessment of law and legal relations as the explanandum. Engels admits as much in an 1893 letter, noting his and Marx's shared tendency to emphasize ‘the derivation of political, legal and other ideological conceptions […] from economic fundamentals’, at the expense of tending to ‘the manner in which the said conceptions, etc., arise’ (Fine, 2002: 106; Marx and Engels, 2010: 164). The demarcation of a given mode of production, however, is more than a descriptive act. By addressing the various facets of labour compulsion, one is also undertaking an immanent critique of the purpose and means of such attempts at demarcation as well as making assumptions about law and the legal relations that constitute said compulsion.

Labour Compulsion and Three Assumptions

In his account of the transition to capitalism, Marx centres labour compulsion while upholding three assumptions about law and legal relations. Below, I identify these assumptions to show how a notion of law as artifice begins to take root in this transition thesis.

The first assumption maintains that pre-capitalist legal compulsion is enacted on primarily political and legal terms, and indirectly on economic terms. At base, Marx's thesis relies on a distinction between pre-capitalism and capitalism, with labour compulsion in the former being dominated by ‘extra-economic force’. The foundation for this interpretation stems from the pat differentiation that Marx makes in Capital I, which relates to his depiction of ‘so-called primitive accumulation’. In brief, capitalism has violent, bloody, and coercive origins that encompass the process of transformation: ‘[t]he so-called primitive accumulation […] is nothing else than the historical process of divorcing the producer from the means of production. It appears as primitive, because it forms the prehistoric stage of capital and of the mode of production corresponding to it’ (Marx, 1977: 874–5). Due to the far from ‘idyllic’ terms of compulsion in the colonies (874), what emerges is a presumptive yet enduring correspondence between ‘the prehistoric stage of capital’ and ‘extra-economic force’. This establishes an idea of labour compulsion in pre-capitalism as wrought by direct force, or in other words, labour was materially as well as formally unfree.

The second assumption maintains that the transition to capitalism involves a withdrawal of extra-economic force as the defining feature of labour compulsion. Importantly, this does not deny law's coercive force tout court as evinced by Marx's reference to the Factory Inspectors’ Reports, which state that ‘“[f]ree labour (if so it may be termed) even in a free country, requires the strong arm of the law to protect it”’ (415 note 65). The ‘strong arm of the law’ survives as a supplemental disciplinary measure rather than as a primary condition of ‘free labour’—per Marx: in ‘fully developed’ capitalism, extra-economic force appears ‘only in exceptional cases’ (899). This relative withdrawal of ‘direct extra-economic’ coercion is best understood as a qualitative shift in law's force, evinced by Marx's description of the transition from ‘formal’ to ‘real subsumption’ of ‘labour under capital’ (645). He observes that quantitative changes (in terms of number of products, profits, and scale) lead to a qualitative transformations in the sphere of production. When this occurs, there is a transition from formal to real subsumption in labour compulsion (1037), as Marc Steinberg describes, ‘the very foundations of the production process are transformed’ Steinberg (2010: 177). In pre-capitalism, law's force is direct insofar as it sets the immediate ‘foundations’ of labour compulsion, whereas in ‘fully developed’ capitalism, law's force appears indirect as a secondary guarantor of the terms of labour compulsion. Note the shifting terminology: the transition to ‘formally free labour’ entails a shift from direct to indirect force (Marx, 1977: 928), which Marx elsewhere describes as shift from formal to real subsumption. With this second assumption, the formalities of the sphere of exchange appear to have a growing, determining effect on the analysis of the relation between labour and force in the sphere of production. In other words, the formal ‘freedom’ to sell one's own labour in exchange for a wage begins to emerge as the primary lens through which labour compulsion is understood, which filters into the analysis of law's relation to capitalism in general.

The third assumption is the culmination of the second and maintains that law has an artificial effect on the economic sphere. To forestall a tautological account of the transition to capitalism that results from an overly simplistic economic primacy thesis, law and legal relations are called upon opportunistically as explanantia. But even the most tautology-averse analysis does not guarantee an escape. ⁴ As ‘artificially encourag[ing]’ (870 note 41) the transition to capitalism, law and legal relations serve an explanatory purpose while the qualifiers (i.e., extra, indirect, formal, and artificial) do the work of safeguarding the primacy of economic factors in the transition, potentially doing so even to the point of their naturalization. Marx expresses wariness of this as an eventuality in the Grundrisse, rebuking economists who would assert such a simplistic view (Marx and Engels, 1986: 26), and again later when he recognizes the monumental but essential task of explaining ‘how the relations of production as legal relations enter into uneven development’ (39). Given the vacuum of explanation afforded to law and legal relations, however, the assumption that legal change derives from economic change gained credence thanks to law's eventual resting place: the superstructure. While a hindrance to more exacting accounts of law and legal relations, Marx endorses the derivative view in the Preface to A Critique of Political Economy ⁵ and lends it weight in Capital I where he discusses law's artificial effects. At first associated with pre-capitalism as direct extra-economic force, law slips into the superstructural ether as an indirect force, where the mystifying effect of its intrinsic formalism seems to lubricate capitalist relations. Thanks to the confounding language of ‘formally free labour’, ‘real subsumption’, and ‘artificial effect’, its relegation remains a stubborn problematic in Marxist-informed legal thought. This shifting language prefigures the supposed reconciliation between labour and force, which I refer to as an intellectual consequence of Marx's three assumptions and view as symptomatic of the mystification at the core of the notion of law as artifice.

What is at stake with this notion of law as artifice is nothing less than the limits of Marx's interrogation of capitalism. One objective of Capital I is to show how appearances and illusions come to be naturalized and permeate our everyday realities, and Marx's suspicion of the illusory dimensions of law is warranted. But what becomes ‘real’ in the transition to capitalism is that which Marx describes as having been manufactured ‘artificially’ as well as that which he accuses classical political economists of naturalizing: the formalities of labour compulsion endemic to the capitalist mode of production. By exposing legal measures of transformation as ‘artificial means’, Marx treats law as a type of slag—an historical by-product of secondary concern. Often this runs contrary to his own historical evidence. Consider, for instance, that law was at the centre of the historical process of ‘so-called primitive accumulation’: the usurpation of lands in England had a legislative basis, transforming the once communal into private property and setting in motion the rise of ‘formally free labour’, a process that was accompanied by a host of other legal measures, including ‘national debt-making’ (Marx, 1977: 919) ‘the modern system of taxation’ (921) and ‘bloody legislation against vagabondage’ (896). Now ponder what insights are squandered when such legal means are cast as the by-products of economic change and deemed to have an ‘artificial’ effect on the economy. Without more discrete considerations, law and legal relations can scarcely rise above a supporting role in the transition to capitalism, even when the historical evidence indicates otherwise. As I show in the following account of the early transition debates, there are grim political and intellectual consequences attached to this notion of law as artifice.

The Early Transition Debates

Initial contributions to the transition debates attest to the stubbornness of the three assumptions in the face of historical evidence to the contrary. Notwithstanding differences in temporal scope and geographical focus, Maurice Dobb, Rodney Hilton, Paul Sweezy, and Robert Brenner treat law as the explanans of the transition to capitalism. Ever the signifier, rarely the signified, portraying law as artifice involves ignoring aspects of their own historical findings and entrenching a Eurocentric stagism. ⁶ As I retrace the debate surrounding the conditions that led to the emergence of ‘formally free labour’ in England, I examine why—despite evidence that ‘formally free labour’ is not a sufficient condition for the emergence of a capitalist mode of production—it is the defining feature of the developmentalist template, and what this says about prevailing ideas about the relation between labour and force in capitalism.

Maurice Dobb's Studies in the Development of Capitalism was published in 1946, and it attracted significant attention in the decades that followed. Early in the text, Dobb admits that studies of economic relations alone do not offer enough detail when it comes to the task of differentiating between modes of production (Dobb, 1946: 11, 13–14), noting that the strict distinction between the economic and the social is a particularly egregious impediment in this regard (32). Attentiveness to social relations in his study of the conditions necessary for the emergence of capitalism (2–3) means, in part, an increased awareness of law and legal relations. Yet before long, the first assumption appears, unambiguously so when he explains that the type of ‘pre-capitalist’ force characteristic of feudalism ‘may be that of military strength possessed by the feudal superior, or of custom backed by some kind of juridical procedure, or the force of law’ (36). He also describes the transition as entailing the withdrawal of ‘legal compulsion’ and the onset of ‘productive activity’ (7), which hints at the second assumption relating to the withdrawal of direct force. In the intermediary period between feudalism and capitalism, evictions wrought by increasing numbers of enclosures, the relinquishing of small landholdings to pay off rising debt, and restrictive guilds (227, 229) were a few of the measures that contributed to the swelling ranks of a disposable workforce. That proletarianization occurred not as a ‘natural’ effect of population growth but as ‘an institutional creation’ is crucial in his account of the transition (223 also at 184), and is evidence of the third assumption as law settles into its place as an artifice of the second order.

Dobb's explicit intent to bridge the economic/social divide offers promise of a more rigorous explanation, but law continues to dwell in a mystifying relation to the ‘natural’ economic sphere, effectively naturalizing those appearances that Marx's framework attempts to interrogate. In place of a more expansive account of law and legal relations warranted by his own historical findings—which highlight law's intrinsic relation to early capitalism—Dobb offers a nod to technological determinism (87, 200, 220) and tends toward the idea that economic factors are the primary drivers of historical transformation (Dobb, 1946: 129, 149; Kaye, 1984: 67). Compounded by an internalist account of the ‘feudal economy’ in England that pays little heed to external influences, he is soon entwined by the notion of law as artifice (Dobb, 1946: 42). He acknowledges the relevance of international resource extraction to the extent that it ‘augmented the sum of utilities’, but in rejecting Smith's over-emphasis on international trade, he insists that it was thanks to the internal, exploitative relations of usury that led to the emergence of the bourgeoisie (88, 90). By focusing on internal over external factors, he advances the implied stagism of the three assumptions: the reign of direct force in pre-capitalism, followed by the qualitative shift in force from direct to indirect during the transitional phase, culminating with the dwindling of direct labour compulsion in capitalism. Comparisons to the Flemish, Dutch, German, Italian, and French cases abound in this extensively researched tome (150–158), which intensify the Eurocentric continuum of development in a way that still elevates the uniquely English circumstances that allowed for ‘fully developed’ capitalism (159). This has the effect of both upholding and rendering paradigmatic a specifically English shift from extra-economic force to market dependency, reifying the appearance of a developmental continuum as a political consequence.

Dobb's book precipitated a series of exchanges with featured contributions compiled into a 1976 text titled The Transition from Feudalism to Capitalism. ⁷ In the introductory essay, Rodney Hilton echoes Dobb's legalistic interpretation of extra-economic coercion, agreeing on the general definition of serfdom as a relation of ‘enforced transfer’ of ‘surplus labour or the product of surplus labour’ (Hilton, 1978: 14). Beyond this now familiar characterization of pre-capitalism as the realm of extra-economic force, law reappears later in Hilton's text as integral to how he explains the emergence of towns in the eleventh century. He notes that new commercial ventures arose in concert with new legal means of exploitation, such as ‘taxation’, ‘court fines’, and ‘the right to force the inhabitants, free or serf, or the area of jurisdiction, whether tenants or not, to grind corn at the lord's mill, bake in his oven or press grapes in his wine-press’ (17). These changes evince variability in the legal subjectivity of serfs, and point to the assumption that the relative withdrawal of law's coercive force is indicative of the emergence of capitalism.

In staking his claim regarding the coercive relations that constituted a broadened notion of serfdom, Hilton eventually upholds an assumption about law that his own historical findings undermine. He states that not all serfs were ‘necessarily considered to be ‘servile’ in the eyes of the law’ (14), rather that serfdom as a legal relation appears in many different guises with a range of associated obligations that assume variable degrees of legal subjectivity. Hilton's disaggregation of strict servility and serfdom introduces to the debate the notion of ‘juridically free villeins’, that is, a class of ‘subordinated peasants’ who do not submit to juridically-circumscribed servility as the primary means of exploitation (14–15). Whereas in a capitalist mode of production there is the nominally “’free” worker’ (Marx, 1977: 382), the nominally ‘free villeins’ demarcate the intermediary centuries that comprised the transition to capitalism in England. Hilton explicates this point with the claim that ‘[v]illein (or servile) land tenure, without changing its essential juridical character, was attenuated into copyhold. In the atmosphere of peasant self-assertiveness, copyhold became hardly distinguishable from free tenure’ (Hilton, 1978: 25). I stress this differentiation to suggest that, much earlier than assumed by Marx's transition thesis, law gains that supposedly unique mystifying dimension that accounts for it appearing artificial and indirect—the root of its purportedly intrinsic formalism. This complicates the idea that changes to labour compulsion are derivative, external, or unnatural. Questions begin emerge regarding the possibility of indirect (or ‘silent’) compulsion in pre-capitalism and the assumed inevitability of a transition to indirect force—such questions that cannot be explained when law and legal relations are treated as explanantia in support of a stagist template.

The scope of this complication is clear in the ‘prime mover’ debate, a contest over what were the main catalysts in the transition and whether they were primarily endogenous or exogenous. Hilton observes that old social relations of domination retreated, which ushered in a phase of ‘long and uneven development’; extant social relations withered because surpluses were increasingly ‘retained within the peasant economy’ and because evolving economic and legal relations made the return to old types of exploitation ‘socially and politically impossible’ (1978: 27). His definition of serfdom shows how legal formalism in a pre-capitalist setting operates in a way that defies simple categorization. Here he expands on Marx's concept of ‘hybrid forms’ of compulsion as a middle phase (Marx, 1977: 645). The varied types of subordinate relationships that Hilton refers to were related to the uneven and combined nature of legal and economic transformation. That some serfs were more ‘free’ than others is a measure of this unevenness (Hilton 1978: 14), while the combined dimensions of transformation are evident in the rise of commodity production and the use of money as payment, which indicates that feudal-type relations and capitalist-type relations overlapped in a protracted transitional period. While such a nuanced interpretation of historical events seems impervious to stagism, this evidence does not survive Hilton's deference to the economic primacy thesis, which has him quarantine law and legal relations from the ‘prime mover’ debate in order to uphold the framework of transition as a shift from extra-economic force to market dependency. Again, law and legal relations as explanantia reaches a limit when it comes to more complex historical evidence.

Paul Sweezy's intervention also shows that attention to legal particulars complicates how the assumptions about law figure into the shift from feudalism to capitalism. This seems to be in keeping with his position in his 1942 book, The Theory of Capitalist Development, in which he cautions against attributing to Marx an economic reductivism (Sweezy, 1970: 15), and presses his interrogation of appearances further. In line with the hallmarks of Marx's original thesis, Sweezy states that the false equivalence between the buyer and seller of labour is a foundational ‘appearance’ upon which ‘has been erected the whole vast superstructure of ethical and legal principles’ (39). Implied is the idea that legal effects are derivative of the economic base, and that the shift to indirect force through market relations characterizes labour compulsion. Legal formalism in the sphere of exchange thus becomes the realm of mystification, where ‘silent’ compulsion is born.

Later, in a reply to Dobb from 1950 (republished in the Verso collection decades later), he mines the many reasons why serfs left the land in the thirteenth and fourteenth centuries, bringing the role of international trade into view to show how external forces shaped foundational changes in the mode of production (Sweezy, 1978a: 40). Movement away from land was coeval with the incursion of the ‘exchange economy’, and also portended changes to their essential legal subjectivity (44), comparable to how Hilton describes the legal gradations of ‘free villeins’. Suspicious about whether feudalism existed at all by the sixteenth century (47), Sweezy prefers to deploy the term ‘pre-capitalist’ to refer to the sprawling intermediary period between feudalism and capitalism (49). It is commonly assumed that modes of production ‘directly confront each other and fight it out for supremacy’, explains Sweezy, but as his own findings attest, this was not so (49). On this basis, he invalidates the presumption that there was an abrupt transition from the extra-economic to market dependency, arguing that this intermediary period does not amount to a ‘viable social order’ because it failed to establish a new mode of production (51). Held as indispensable to a full view of the transition to capitalism yet underexplained and mystified, even Sweezy's gesture to a more formative intermediate period is a thinly veiled stagism.

By the time Robert Brenner proffered his novel take the mid-1970s, Sweezy's critique of Dobb's book had been circulating for twenty years. To Sweezy's surprise, Brenner accuses him of a ‘neo-Smithian account of the origins of capitalism’, owing to his emphasis on the role of trade in the dismantling of feudal relations toward an expansive division of labour (Sweezy, 1978b: 94). Plainly, disagreements over whether to interpret Marx's interrogation of appearances as affirmation or criticism is a fault line in these debates. In his own defence, Sweezy insists that he was simply staying true to Marx's framework as stipulated in Part VIII of Capital I (95), the portion that centres primitive accumulation. For Brenner, Part VIII is ripe for misinterpretation: to elevate the explanatory force of the appearance of primitive accumulation is to ‘miss the point’, he states, arguing that Marx's account of primitive accumulation is not an affirmation, but an immanent critique of Adam Smith's version of the origins of capitalism (Brenner, 1977: 66). Against Smith's outward-looking, trade-focused script, Brenner turns to the class relations of the sixteenth and seventeenth centuries in the English agricultural sector as possessing the unique historical ingredients necessary for the emergence of capitalism. ⁸

Interested in showing how ‘certain historically-developed social-productive relations’ in England were the fount of capitalist relations Brenner (1977: 66 − 67), Brenner proposes that through class struggle the fetters of serfdom weakened, releasing labour power from the confines of direct force while undermining ownership of the means of production. Land and labour power, having become commodities, spurred competition and innovation, with survival increasingly requiring exchange relations that were subject to market imperatives. He maintains that the impetus for such a wholesale change emanates neither from the will of a single self-interested actor nor from expanded accumulation as such: the self-interested individual would likely want to hold firm to the status quo at the same time that there are no assurances that the increases in accumulated surplus will be invested back into production (Brenner, 1977: 30; 1986: 25). What is lacking is not merely an incentive to maximize gains, but the social necessity (1986: 29)—that driving force that imposes itself as an ‘unintended consequence of the actions of individual pre-capitalist actors and especially the conflicts between pre-capitalist classes’ (25). Brenner dissects the qualitative dimensions of the transition to capitalism with the term ‘political accumulation’, which refers to the means by which feudal lords buttressed their holdings when there was heightened competition among fiefdoms (Brenner, 1985: 239). This supports his main contention that a political explanation of social relations of property is necessary in order to make sense of the transition to capitalism.

Though he reconfigures the ‘prime mover’, law's relation to labour compulsion remains definitive. For example, he refers to ‘law and administration’ as the ‘instruments of force’ in his brief study of serfdom in Poland (Brenner, 1977: 65), arguing that the pervasiveness of such instruments contributed to stagnation and underdevelopment, and was symptomatic of the lack of newfound efficiencies in production that are prerequisite for the emergence of capitalism (70). He also offers an excellent legal analysis of the property relations of the late medieval era, notable among other reasons for his observation regarding ‘theoretically fixed, but actually fluctuating, structure of customary rights and obligations that define landholding arrangements’ (1985: 19). But again, his own historical findings sit awkwardly alongside the central thesis of the transition debates that he also endorses, namely that it was the abundance of extra-economic fetters of so-called ‘pre-capitalist economies’ that inhibited innovation and expansion (1977: 30).

While this overview shows the durability of the three assumptions, more needs to be said about how this connects to the naturalization of the artificial effects of law, and in turn, to a prescriptive developmentalism and putative reconciliation between force and labour. For that, I reframe the ‘prime mover’ debate to explain how and why the internal becomes alloyed to the natural against the external and artificial. This reframing clarifies the causes and consequences of an incipient stagism and false reconciliation, which leads to a rethink of artifice and compulsion with the help of Zeleke's Ethiopia in Theory.

Rethinking Artifice and Compulsion

Adherence to the notion that law is a euphemistic ‘extra’ in the story of capitalism's rise assumes economic and legal stagism alike: pre-capitalism followed by a transitional period that culminates with capitalism-proper. Declarations of this sort often originate from jurisdictions where this evolutionary trajectory is supposed to have occurred: England specifically, Europe selectively. In the more vulgar applications of this developmentalist template, other nation-states become the testing ground for the verifiable superiority of European ideals and are refused their due consideration as differentiated domains with discrete histories (Anievas and Nişancıoğlu, 2015: 5). Under the weight of abstracted rules of development, the non-European and/or colonized realms are reduced to rigid pre-capitalist caricatures where unthinking appetites, vengeance, and the whip reign supreme.

Arguably, one can amend this thesis by rejecting Brenner's reading of Capital I and insisting that primitive accumulation is not merely an appearance that Marx critiques. On this basis, it is possible to suggest that the historical evolution of law as artifice exists in some form and at some level along a continuum in which the transition to capitalism is and always has been a global if not international process. One region might be at a later stage, but that is because its capacity to produce and accumulate requires that another region remain at an earlier stage. Colonial relations are integral to this tale of capitalism's origins, while the global dimensions of capitalism's rapaciousness are no longer explicable through theories of endogenous causality or naturalized predilection. A corollary to this view is that law in turn can never be relegated wholly as an artifice (as in, external, derivative, unnatural) because the transition to later stages of development is contingent on some other region remaining at the first stage. Direct force is always being practiced somewhere, if even to the indirect benefit of regions further afield, while law's content, form, and effect evolve dialectically and not causally. However, this amendment amounts to a resuscitated dependency thesis and does little to advance knowledge of the relation between law and capitalism. Instead, it is important to break the relation of mutual reinforcement between the internalist position in the prime mover debate and the reification of a notion of law as artifice.

Consider again Dobb, Hilton, and Brenner—who all adopt internalist approaches. For them, domestic struggles around the reorganization of labour in the sphere of production, especially in the face of technological change, are held up as the prime mover in the English transition to capitalism. Less relevant is the extent to which circuits of exchange were stimulated by foreign demand and wealth from slave economies and plundered resources. Measures that are domestic in origin appear ‘directed externally’ (Dobb, 1946: 207) such as ‘overseas trade, and especially colonial trade’ (182), ‘monopoly companies of merchants’ (Hilton, 1978: 26), and ‘a long-term transfer of surplus away from the periphery’ (Brenner, 1977: 84). These measures nevertheless facilitated England's ‘new mechanical age’ (Dobb, 1946: 198), its ‘uneven development’ (Hilton, 1978: 27), and provided the basis for its ‘landlords and their capitalist tenants to consolidate holdings and to improve’ (Brenner, 1977: 76). Trade frameworks, chartered privileges, and colonial regulations operationalized foreign demand and enabled the accumulation of wealth; these legal measures, which were domestic in origin yet had ‘artificial effects’, are considered tangential to changes to production in the domestic sphere. Taken as explanantia, law and legal relations are called upon by economic necessity to perform this mystification, and to the extent that the transformations that ensue are assumed to have primarily endogenous explanations, this reinforces the notion of law as artifice. Far from an obvious internalism, however, this suggests that law and legal relations corrupt the internal/external divide by internalizing external forces and externalizing internal forces.

In the English case of the transition to capitalism, internally-directed laws manage labour and conflict, bending to domestic pressures and improving capacities, which change in response to external forces. These external forces also respond to the colonial and trade regulations of domestic agents, who win monopolies from the state to exploit foreign lands and peoples. Neither verifiably ‘extra’ nor restricted to the formalities of exchange, law and legal relations traverse the internal/external, economic/social, and direct/indirect divides. Consequently, little is accomplished by choosing a side in the internal/external divide, nor is it adequate to neutralize the dichotomy by saying that the English transition to capitalism entails the ‘interaction of the two’ (Dobb, 1963: 23). What demands attention is the extent to which law and legal relations are fodder and fetter, reacting to economic change and driving economic change, domesticating and externalizing in turn. Kernels of such inspired analysis are present in the works of transition debates authors already mentioned. From them we learn that the removal of feudalist yoke alone is an insufficient condition for the emergence of capitalism; that struggles over the terms of labour compulsion do not fade; that law and legal relations are intrinsic to transformations; and that the force of domestically-derived/externally-directed measures matters. These concerns are vital to the broader task of keeping in check the stagist Eurocentrism of the transition thesis, and as such, abide in more recent contributions to the transition debates, offering a sound foundation upon which to rethink the relation between law and capitalism.

Of interest is How the West Came to Rule, Alexander Anievas and Kerem Nişancıoğlu's effort to move past the ‘prime mover’ framework. They do this by rejecting the placement of England or Europe as ‘internal’ and everywhere else as ‘external’ (2015: 41), which involves calling into question the ‘sharp distinction’ between direct and indirect extra-economic force. One particular scholar working at the intersection of law and the history of capitalism, Maïa Pal, sees Anievas and Nişancıoğlu's work as encouraging a more careful account of the legal dimensions of the history of capitalism (Pal, 2018: 102). I agree with her view and likewise interpret her own contributions to the debates as a testament to the role of law in blurring the internal/external divide (108). Yet Pal recuperates the ‘internal/external fallacy’ (99) and ends up defending an ‘internalist standpoint’ (117), a move that makes it difficult to refute a Eurocentric outlook. ⁹ A clearer sense of the political and intellectual implications of this view is needed to avoid such pitfalls, which provides direction for how to rethink the relation between artifice and compulsion.

Elleni Centime Zeleke's Ethiopia in Theory is invaluable for this campaign. Although not explicitly about law and legal relations, her blend of political philosophy and analysis of recent Ethiopian history leads to a host of insightful commentaries on law and the transitions to capitalism. At the macro level, she finds that the reluctance to understand Ethiopia as a site of knowledge production serves a purposeful ignorance; not only does this shield Eurocentric developmentalism from its own limits of applicability, but it also serves to keep Ethiopia as a paradigmatic outsider denied its own internality—a site where external legalistic prescriptions are domesticated as fatalistic enlightenment, or what Zeleke calls ‘programmatic awakening’ (2019: 108–109). Instead of fetishizing mystification to pry open the ‘teleologies of progress’, she articulates the imperative that arises from one's awareness of the tendency toward mystification (22–23). Pointedly, she comments that ‘there are in fact no universal and ahistorical laws of human development’, adding that ‘[t]his does not make truth relative to an individual culture or person; rather, explanation is relative to the concrete set of social relations that make up our reality’ (98). Much like how Marx uses the term ‘artificial’ to refer to something that is made (a point I revisit later), Zeleke emphasizes the need to understand ‘the concrete set of social relations’ if one is to understand the making of history. This imperative drives her analysis of recent Ethiopian history and leads to a novel take on what she terms ‘transitions to capitalism’.

Like others already discussed, Zeleke's most significant insights on law and legal relations emerge as a corollary to an assessment of labour compulsion. For instance, with the land reform laws of 1975, peasant associations replaced the feudalistic landlord/tenant relation, initiating a type of ‘programmatic awakening’ that was meant to ‘liberate Ethiopian peasants from age-old feudal oppression, injustice, poverty and disease’ (quoted at Zeleke, 2019: 138–139). For lawmakers of the 1970s, a ‘coalition of anti-feudal forces’ made it clear that development and feudalism were incompatible (141), a position in-line with the Eurocentric stagism evinced in the early transition debates. Yet the actual terms of labour compulsion prove the limits of programmatic anti-feudalism. On this, Zeleke explains that ‘land reform simply released peasants from social obligations to a landlord class. At its most extreme, it implied the destruction of an aristocratic class without changing the production process of ordinary farmers’ (142). This is comparable in some respects to what Hilton describes as the emergence of ‘juridically free villeins’, wherein the abolition of the landlord did little to change the productive capacities of peasant labour as such. Notably, the apparent dissolution of feudalist fetters—per the second assumption that entails the qualitative shift away from direct force that underpins labour compulsion in feudalism—does not necessarily portend a transition to the ‘silent’ compulsion of market dependency. This obliges a reconsideration of how to frame labour compulsion as the measure of transformation so as to challenge the notion of law as artifice.

In the standard account of the transition to capitalism, law and legal relations are ‘extra’ in relation to the economic realm while also appearing to become artificial, but on closer examination, something happens to the framing of labour compulsion in this account, specifically at the point of the second assumption. In pre-capitalism, force is ‘direct’ insofar as it is intrinsic to social relations in the sphere of production, whereas in capitalism, force appears indirect or even ‘silent’ insofar as law and legal relations become alloyed to the sphere of exchange. When the focus of analysis shifts from the material conditions of production to the disciplinary effects of exchange, ¹⁰ herein lies the potential for false reconciliation between force and labour and the mystifying potential of law as artifice. The shift itself has the effect of diffusing compulsion, rendering it artificial, derivative and external, and by extension, mystifying the relation between law and capitalism by inserting conceptual distance between ‘force and market relations’ (Zeleke 2019: 229). Force appears ‘silent’ and ‘indirect’ when labour compulsion is subsumed into exchange relations, but whether it is prudent to take this as a commentary on the real relation between force and labour in the capitalist sphere of production is one matter, and whether one should see ‘silent’ compulsion as indicative of capitalism-proper is another.

Zeleke is unequivocal on both fronts, arguing that ‘force and market relations are not separable. In Africa, force is not the pre-history of market relations but is tied to the very way capitalist market relations are reproduced’ (2019: 229). Her refusal to separate ‘force and market relations’—combined with the rejection that this as some quirk of ‘pre-history’—presses the need for a rethink of labour compulsion on a scale that lays waste to the paradigmatic union of force, primitivism, and pre-capitalism. She insists that transitions to capitalism should be viewed not as the natural unravelling of an already spoken-for history, but the pursuit of a particular future by force (36). In this light, I read her wariness of the presumed separation of ‘force and market relations’ as a statement on what happens when the sphere of exchange replaces the sphere of production as the focal point for the analysis of labour compulsion. This shift ‘grossly misreads the Marxian notion of social progress and social development’ (243) because it mistakes a change in analytical focus from production to exchange as an actual shift in the terms of labour compulsion from direct to indirect. Force becomes ‘indirect’ and is mystified—the apogee of law as artifice that hints at a reconciliation between force and labour. This lends itself to a misappropriation of progress by ignoring the actual terms of labour compulsion within the capitalist sphere of production, that sphere where—as the late David Graeber observes—characteristically feudal relations continue under different guises (Graeber, 2018: 180–181).

The result is a distorted template for historical analysis that reinforces the political and intellectual consequences of the three assumptions. On the one hand, internal factors are fodder for social progress in the English case while internal factors fetter progress in non-English contexts. On the other hand, by casting the shift in focus to the sphere of exchange as compulsion's indirect relation to the sphere of production (rather than focusing on actual relations of production), the developmentalist template engenders law as artifice, making it a highly exportable programmatic tool that gains clout the more that the complex realities of labour compulsion are ignored. With this in view, questions in need of answers begin to reveal themselves in quick succession as the tenability of the three assumptions fades. In response to the first assumption: if there is an assumed correlation between extra-economic force and pre-capitalism, what does this ‘direct’ force look like in different sites, eras and industries, be it in a settler-colony, among nomadic shepherds, seasonal hunters, small-scale fisheries, sharecropping or in the labour of social reproduction? In response to the second assumption: if the transition is assumed to involve a qualitative shift from direct to indirect force, does this qualitative change within the sphere of production, why, and how can it be measured? In response to the third assumption: if law and legal relations are assumed to have an artificial effect, does it matter if these social processes have internal or external origins? Concerted attempts at explanation will answer these questions, undermining the fallibilities inherent in the naturalization of law's artificial effect by encouraging vigilance against the distortion or dismissal of historical complexities. While assessing the transformation of labour compulsion in accordance with these lines of inquiry, a secondary benefit is that this type of inquiry will be more immune to the incipient stagism of the early transition debates.

This is well-served by revisiting Marx's original motivation—the interrogation of appearances—and using this to challenge the reification of the artificial/natural dichotomy, particularly as it is manifest in accordance with internalist/externalist rationales in the transition debates. One final step in this direction is to rethink artifice as construct, a process emerging from and reflecting part of social relations themselves. Jeanne Gaaker's offers a useful clarification in this regard: ‘[…] artificial is not synonymous with fictitious. That which is artificial is real and not imaginary, e.g., ‘an artificial lake is not an imaginary lake,’ because artificial as a juridical term contains the root fiction derived from the Latin verb fingere, to make, i.e., not to feign’ (Gaakeer 2016: 287, 295). By recovering this understanding of artifice implied in Marx's original assessment, law and legal relations are not only revealed as processes in need of their own explanation, but it also provides the basis to challenge the naturalization of capitalism in particular, and the economic sphere in general. It becomes possible then to resist the reification of artifice as external, unnatural, or derivative, tackle Engels’s 1893 admission, and contest the three assumptions.

Conclusion

By implying that laws play pre-determined yet derivative roles at each stage of the transition, mystification becomes the defining feature of the relation between law and capitalism. The more that the legal sphere is held as the realm of fiction, the economic sphere's association to the natural realm grows in concert; this undermines the point of Capital I, that is, to comprehend capitalism as artifice. Capitalism and law alike are constructs, and forgetting this basic point makes permanent law's banishment to the superstructure and stalls the objective of the interrogation.

With artifice as construct, it is not simply a matter of displacing the conceptual association between law and derivation, externality, or fakery that animates the three suppositions about law; rather, it is a commitment to historical analysis that calls for law and legal relations to be accounted for in all their contradictions and complexities. Law is primary and secondary, a cause and a consequence, a fetter and a catalyst; casting it as artificial distorts analysis because it explains very little about the historical relation between law and capitalism. The cost of ignoring such a consideration in relation to the transitions to capitalism has been the unwitting endorsement of a narrow notion of law as artifice, an endorsement that contradicts the findings arising from historically-specific assessments of transitional processes. A broader notion of law as artifice makes it possible to understand the transformation of labour compulsion without leading to programmatic developmentalism as a political consequence and a false reconciliation between force and labour as an intellectual consequence. My rethink addresses Engels's admitted oversight by rejecting the easy explanation, favouring instead an even greater level of comprehension of the world that was, is, and can be.