The Yale Law Journal recently published an important article, “Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis,” by Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski and K. Sabeel Rahman (2020, 129: 1784 – 1835). It concludes with a call for action (here quoted without their footnotes):
If it is to succeed, law and political economy [i.e., the framework in the article’s title] will also require something beyond mere critique. It will require a positive agenda. Many new and energized voices, from the legal academy to political candidates to movement activists, are already building in this direction, calling for and giving shape to programs for more genuine democracy that also takes seriously questions of economic power and racial subordination; more equal distribution of resources and life chances; more public and shared resources and infrastructures; the displacement of concentrated corporate power and rooting of new forms of worker power; the end of mass incarceration and broader contestation of the long history of the criminalization and control of poor people and people of color in building capitalism; the recognition of finance and money as public infrastructures; the challenges posed by emerging forms of power and control arising from new technologies; and the need for a radical new emphasis on ecology. These are the materials from which a positive agenda, over time, will be built.
I agree with this agenda and ask you to do the same for the following thought experiment.
–Assume I start my own article with the above quote. Where do subsequent paragraphs lead? In what directions do I–or you–drive this agenda? To make this interesting, I sketch five extensions that most differ, I believe, from what the authors seem to assume:
- Instead of feeling overwhelmed by the enormity of the implementation challenges, I’d ask: Where are the activities already underway? What are the better practices there that can be modified and applied here, or if not, then elsewhere? The point is that this agenda is too good to be restricted to the US only.
- Instead of thinking the agenda stands or falls on how I pre-define key terms (capitalism, power, democracy. . .), the better practices identified in the preceding do the next best thing: entail the ends sought by the means used. Here, behaving democratically is with respect to these practices to achieve those outputs or outcomes. There, power is supposed to be control by these means for those ends; elsewhere, power is managing in these rather than those ways as control is no longer (if ever) possible.
- Instead of starting by prioritizing what do first, second and afterwards, I’d stay with the mess of interconnections and see where they lead. Think of the agenda as a composite argument read off a very layered and overwritten palimpsest of earlier arguments about power, capitalism, democracy and more, each new argument assembled from older ones effaced in the process. Resurfacing earlier erasures is one way to signal where to go with my paragraphs. E.g., toward those willfully ignored cases where capitalism looks less like control and more like negotiation and bargaining among, yes, unequals.
- Instead of trying first to reduce the agenda’s uncertainties and complexities, I’d see if there were analogies that recast its tasks differently. For example, a longstanding analogy has been that of “being at sea,” as in challenges likened to: keeping balance while stepping through a muddy shoal, treading water with no bottom to touch, tacking into unpredictable winds, repairing the ship at sea with only what is at hand, no safe harbor to return to in the storm, and keeping your head above the rushing tide-race. That to my mind is the view-scape within which or on which the positive agenda, over time, will be based. Better to know this than delude ourselves in thinking it’s about “Reduce uncertainty” or “First, simplify”!
- Instead of seeking to integrate the agenda into a coherent single narrative, I’d look for narrative discrepancies that indicate where other more useful narratives are complicating matters. For instance, it’s not surprising as someone who writes on critical infrastructures that I’d trip over the conflation of stock (e.g., facilities) and flow (e.g., money to run the facilities) in the quote’s two references to “infrastructures.” But this then raises a productive question: Are there in fact conditions under which money is an infrastructure just like large-scale water supplies and electricity grids? Here’s one such set of conditions: when government releases emergency funding to recover from those disasters that have destroyed the infrastructures upon which we survive. In this case, money and assets are fungible. By extension, think of the radical agenda as massive emergency responses to recover and repurpose critical infrastructures (like that for justice and education) failing us.
–Such would be the leads in the Results section of my paper. I’m in no position to sketch a follow-on Conclusion, but the first point in the Discussion section following the Results is obvious to me: Why accept anything less radical than the starting agenda? The standard retort of gradualism, “Well, here we want something more modest having greater chances of being achievable,” makes sense only if other really-existing practices in like situations weren’t more successful. Have the experts in planetary interconnectivity undertaken that canvassing? I don’t think so.
–It’s not just the contingent (idiosyncratic), complex and uncertain remain unavoidable whatever the agenda; it’s not just that the unfinished may be unfinishable. It’s also because your radical differs from my radical, while radical responses are to be expected regardless. Because, from the perspective here, people-in-contexts differ in their inexperience, difficulties and not-knowing, and those differences matter now as you read these very words.
If people are as equal as the teeth of a comb, the numbers of different combs are too many to add up.