That various legal orders preside in any one jurisdiction has long been seen as evidence of legal pluralism; however, this approach lacks a systematic understanding of history in general, and as such, tells us little about the inner machinations of law’s relation to capitalist development in particular. What is needed instead is a dialectical materialist approach to legal development; for this reason, I tender an uneven and combined development (UCD) theory of law. Law flexes in concert with ever-changing social relations, or more plainly, law evolves in an uneven and combined manner. More than being mired in the contradictions that are the driving force of the UCD of capitalism, however, law also boasts its own set of contradictions that, if carefully accounted for, helps distinguish the historical evolution of capitalism as a social totality.
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The debates regarding pluralism in general and legal pluralism in particular are voluminous. For brief assessments of the linkages between the pluralism debates from the early twentieth century and more recent discussions, I would direct readers to four of Fitzpatrick’s works (2001, p. 50; 1984, p. 117; 1983a, p. 46; 1983b, p. 161).
I borrow this distinction between the analytical and the descriptive from von Benda-Beckmann (1988, p. 898).
In an earlier essay, Fitzpatrick is tantalizing close to a UCD theory of law when he refers to ‘the forms and relations that result from the interaction of articulation of modes of production’ as ‘combined’ (1983b, p. 168).
With regard to Fitzpatrick’s scholarly output since ‘Law and Societies’ (1984), it is almost an understatement to describe it as prolific. Yet over the last three decades—despite the coincident scarcity of the word ‘dialectic’ and his dismissal of Marxism on the basis of its supposed ‘schema of stages’ (Fitzpatrick 1983b, p. 161)—there seems to be an ongoing commitment to a dialectical (though variably materialist) methodology across his works. Of course this claim warrants a more extensive analysis that is beyond the scope of the essay at hand, but I shall offer a preliminary glimpse of this continuity as it relates to the concept of totality. In an earlier work, Fitzpatrick offers a materialist critique of totality as an idealist construct, and proceeds to present Foucault as a champion of a materialist particularity against the undialectical ‘totalising explanation’ (1983a, p. 50). After establishing totality as one of the elements that constitutes the ‘[m]odern myth’ of law in The Mythology of Modern Law (1992, p. 43), the persistence of his dialectically-informed analytical framework is noteworthy as he dissects the linkages between mythic universality and the particularities of historical development. He makes sense of this relation by relying on quintessentially dialectical concepts: negation (1992, p. 65), integration (p. 125), reconciliation of ‘contradictory positions’ (p. 143), not to mention his account of progression as ‘developing in the negation of its origins’ and ‘always moving towards greater differentiation’ (p. 144). When Fitzpatrick revisits this theme of totality through a Freudian lens in Modernism and the Grounds of Law (2001), it is law that combines two irreconcilable positions: social totality and social particularity (2001, p. 52). Law ‘occup[ies] this area of apposition in-between’ totality and particularity (p. 54); later, he distills this relation to its dialectical essence: ‘[m]odernity, in sum, contains yet is exceeded by what it constituently negates’ (p. 63). While I recognize that the theoretical influences that animate Fitzpatrick’s writings of the last three decades have changed, it can be argued that the dialectical mode of thought present in his 1984 essay continued to hold some sway in his later works.
Acharya, Viral V. 2012. Implications of the Dodd–Frank act. Annual Review of Financial Economics 4 (1): 1–38.
Alexander, Michelle. 2012. The new Jim Crow: Mass incarceration in the age of colorblindness. New York: The New Press.
Ashman, Sam. 2009. Capitalism, uneven and combined development and the transhistoric. Cambridge Review of International Affairs 22 (1): 29–46.
Banaji, Jairus. 2011. Theory as history: Essays on modes of production and exploitation. First trade paper edition. Chicago: Haymarket Books.
Barkey, Karen. 2013. Aspects of legal pluralism in the Ottoman Empire. In Legal pluralism and empires, 1500–1850, ed. Lauren Benton, and Richard J. Ross, 83–108. New York: NYU Press.
Benton, Lauren. 2011. Historical perspectives on legal pluralism. Hague Journal on the Rule of Law 3 (1): 57–69. doi:10.1017/S1876404511100044.
Benton, Lauren, and Richard J. Ross. 2013. Empires and legal pluralism: Jurisdiction, sovereignty, and political imagination in the early modern world. In Legal pluralism and empires, 1500–1850, ed. Lauren Benton, and Richard J. Ross, 1–20. New York: NYU Press.
Brophy, Susan Dianne. 2013. Freedom, law, and the colonial project. Law and Critique 24 (1): 39–61.
Burbank, Jane, and Frederick Cooper. 2013. Rules of law, politics of empire. In Legal pluralism and empires, 1500-1850, ed. Lauren Benton, and Richard J. Ross, 279–294. New York: NYU Press.
Cain, Maureen Elizabeth, and Alan Hunt. 1979. Marx and Engels on law. London: Academic Press.
Collins, Hugh. 1984. Marxism and law. Oxford: Oxford University Press.
Davidson, Neil. 2009. Putting the nation back into ‘the International’. Cambridge Review of International Affairs 22 (1): 9–28.
Desai, Radhika. 2013. Geopolitical economy: After US hegemony, globalization and empire. London: Pluto Press.
Dewar, Helen. 2013. Litigating empire: The role of French courts in establishing colonial sovereignties. In Legal pluralism and empires, 1500–1850, ed. Lauren Benton, and Richard J. Ross, 49–82. New York: NYU Press.
Fanon, Frantz. 1952. Peau noire, masque blancs. Paris: Point, Editions du Seuil.
Fitzpatrick, Peter. 1983a. Marxism and legal pluralism. Australian Journal of Law and Society 1 (2): 45–59.
Fitzpatrick, Peter. 1983b. Law, plurality and underdevelopment. In Legality, ideology and the state, ed. David Sugarman, 159–182. London: Academic Press.
Fitzpatrick, Peter. 1984. Law and societies. Osgoode Hall Law Journal 22 (1): 115–138.
Fitzpatrick, Peter. 1992. The mythology of modern law. New York: Routledge.
Fitzpatrick, Peter. 2001. Modernism and the grounds of law. Cambridge: Cambridge University Press.
Gargola, Daniel J. 1995. Lands, laws and gods: Magistrates and ceremony in the regulation of public lands in Republican Rome. Chapel Hill: University of North Carolina, UNC Press Books.
Gordon, Robert. 1984. Critical legal histories. Faculty scholarship series. http://digitalcommons.law.yale.edu/fss_papers/1368. Accessed 17 March 2017.
Government Gazette of the Hellenic Republic (Translation). 2013. Laws 3894/2010, 4072/2012, 4146/2013. 2013. http://www.investingreece.gov.gr/files/FT/Kwdikopoiisi_2013/FT_kvdikopoiisi_N3894-2010_N4146-2013_en.pdf. Accessed 17 March 2017.
Griffiths, John. 1986. What is legal pluralism? The Journal of Legal Pluralism and Unofficial Law 18 (24): 1–55.
Halliday, Paul D. 2013. Laws′ histories: Pluralisms, pluralities, diversity. In Legal pluralism and empires, 1500–1850, ed. Lauren Benton, and Richard J. Ross, 261–277. New York: NYU Press.
Hamilton, Dona Cooper. 1994. The national association for the advancement of colored people and new deal reform legislation: A dual agenda. Social Service Review 68 (4): 488–502.
Harman, Chris. 1978. Mandel’s late capitalism. International Socialism 2 (1): 79–96.
Harvey, David. 2005. Notes towards a theory of uneven geographical development. In Spaces of neoliberalization: Towards a theory of uneven geographical development, Hettner-Lectures, Vol. 8, ed. Hans Gebhardt, and Peter Meusburger, 55–92. Stuttgart: Franz Steiner Verlag.
Harvey, David. 2014. Seventeen contradictions and the end of capitalism, 1st ed. Oxford: Oxford University Press.
Kennedy, Duncan. 1978. The structure of Blackstone’s Commentaries. Buffalo Law Review 28: 205.
Lenin, Vladimir Ilyich. 1939. Imperialism, the highest stage of capitalism: A popular outline. New York: International Publishers.
Lenin, Vladimir Ilyich. 1976. Collected works, vol. 38. Moscow: Progress Publishers.
Linebaugh, Peter. 2009. The Magna Carta Manifesto: Liberties and commons for all. Berkeley: University of California Press.
Lowe, Lisa. 1996. Immigrant acts: On Asian American cultural politics. Durham: Duke University Press Books.
Löwy, Michael. 1981. The politics of combined and uneven development: The theory of permanent revolution. London: New Left Books.
Mandel, Ernest. 1975. Late Capitalism. Trans. J de Bres. London: New Left Books.
Marx, Karl, and Friedrich Engels. 1975. Collected works of Marx and Engels: 1845–47, vol. 5. New York: International Publishers.
Marx, Karl, and Friedrich Engels. 1986. Collected works of Marx and Engels, economic works 1857–1861, vol. 28. New York: International Publishers.
Marx, Karl, and Friedrich Engels. 1990. Collected works of Marx and Engels: Engels works 1882–1889, vol. 26. New York: International Publishers.
Marx, Karl, and Friedrich Engels. 1996. Collected works of Marx and Engels: Capital I, vol. 35. New York: International Publishers.
McHugh, P.G. 2013. ‘A Pretty Gov[ernment]!’ the ‘Confederation of United Tribes’ and Britain’s quest for Imperial Order in the New Zealand Islands during the 1830s. In Legal pluralism and empires, 1500–1850, ed. Lauren Benton, and Richard J. Ross, 233–260. New York: NYU Press.
Meiksins Wood, Ellen. 1995. Democracy against capitalism: Renewing historical materialism. Cambridge: Cambridge University Press.
Merry, Sally Engle. 1988. Legal pluralism. Law and Society Review 22 (5): 869–896.
Mészáros, István. 2005. Marx’s theory of alienation. London: Merlin Press.
Novack, George. 1974. Understanding history: Marxist essays, 2nd ed. New York: Pathfinder Press Inc.
O’Brien, Patrick Karl. 2007. Global economic history as the accumulation of capital through a process of combined and uneven development: An appreciation and critique of Ernest Mandel. Historical Materialism 15 (1): 75–108.
Owensby, Brian P. 2013. Reconstructing early modern notions of legal pluralism. In Legal pluralism and empires, 1500–1850, ed. Lauren Benton, and Richard J. Ross, 143–172. New York: NYU Press.
Pashukanis, Evgeny Bronislavovich. 2007. General theory of law and Marxism, ed. Chris Arthur, 2nd ed. Trans. Barbara Einhorn. Piscataway: Transaction Publishers.
Rees, John. 1998. The algebra of revolution: The dialectic and the classical Marxist tradition, 1st ed. London: Routledge.
Roediger, David R. 2006. Working toward whiteness: How America’s immigrants became white. New York: Basic Books.
Roediger, David R. 2010. How race survived US history: From settlement and slavery to the Obama phenomenon. London: Verso.
Ross, Richard J., and Philip J. Stern. 2013. Reconstructing early modern notions of legal pluralism. In Legal pluralism and empires, 1500–1850, ed. Lauren Benton, and Richard J. Ross, 109–142. New York: NYU Press.
Rupert, Linda M. 2013. ‘Seeking the water of baptism’: Fugitive slaves and imperial jurisdiction in the early modern Caribbean. In Legal pluralism and empires, 1500–1850, ed. Lauren Benton, and Richard J. Ross, 199–232. New York: NYU Press.
Santos, Boaventura de Sousa. 1987. Law: A map of misreading. Toward a postmodern conception of law. Journal of Law and Society 14 (3): 279–302.
Smith, Neil. 2008. Uneven development: Nature, capital, and the production of space, 3rd ed. Athens: University of Georgia Press.
Stern, Philip J. 2013. ‘Bundles of hyphens’: Corporations as legal communities in the early modern British Empire. In Legal pluralism and empires, 1500–1850, ed. Lauren Benton, and Richard J. Ross, 21–48. New York: NYU Press.
Tamanaha, Brian Z. 1993. The folly of the ‘social scientific’ concept of legal pluralism. Journal of Law and Society 20 (2): 192–217.
Teschke, Benno. 2014. IR theory, historical materialism and the false promise of international historical sociology. Spectrum 6 (1): 1–66.
Teubner, Gunther. 1991. The two faces of Janus: Rethinking legal pluralism. Cardozo Law Review 13: 1443–1462.
Thompson, E.P. 1995. The poverty of theory. London: Merlin Press.
Tomlins, Christopher L. 1993. Law, labor, and ideology in the early American Republic. History E-Book Project. Cambridge: Cambridge University Press.
Trotsky, Leon. 1942. In defense of Marxism. New York: Pioneer Publishers.
Trotsky, Leon. 1986. Trotsky’s notebooks, 1933–1935: Writings of Lenin, dialectics and evolutionism. Trans. Philip Pomper. New York: Columbia University Press.
Trotsky, Leon. 2008. History of the Russian revolution. Trans. Max Eastman. Chicago: Haymarket Books.
Trotsky, Leon. 2010. The Permanent revolution and results and prospects. Seattle: Red Letter Press.
van der Linden, Marcel. 2007. The ‘law’ of uneven and combined development: Some underdeveloped thoughts. Historical Materialism 15: 145–165.
von Benda-Beckmann, Franz. 1988. Comment on Merry. Law and Society Review 22 (5): 897–901.
von Benda-Beckmann, Franz. 2002. Who’s afraid of legal pluralism? The Journal of Legal Pluralism and Unofficial Law 34 (47): 37–82.
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An erratum to this article is available at http://dx.doi.org/10.1007/s10978-017-9202-y.
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Brophy, S.D. An Uneven and Combined Development Theory of Law: Initiation. Law Critique 28, 167–191 (2017). https://doi.org/10.1007/s10978-017-9200-0
- Dialectical materialism
- Legal pluralism
- Uneven and combined development