16.09.2021

Class, state and constitution

Rising classes have to reshape states in their own interests. Mike Macnair explores the revolutionary origins of capitalist modernity

Is the US constitution dysfunctional and facing a potential crisis because of its great age? Or does the dysfunctionality result from its modernity as a capitalist constitution, and the rather recent political consequences of the relative decline of US productive industry and the responses of US political actors to this decline? And as part of these responses, the turn to ‘rollback’ on a world scale, the fall of the USSR, and the neoliberal attack on all forms of 20th century concessions to the working class?

In the first article in this series I discussed the continuing relevance of the ideology of the ‘ancient constitution’ in British politics, and offered negative criticism of Linda Colley’s recent Tory story of post-1750 constitutions in her 2021 book The gun, the ship and the pen, and of Samuel P Huntington’s 1960s claim that the US constitution is based on the English Tudor constitution, which comrade Dan Lazare used in his arguments. In the second article I criticised comrade Bradley Mayer’s arguments, in which he used JGA Pocock’s 1975 The Machiavellian moment, some muddling of ‘Whigs’ with the politics of the 1650s commonwealth and Cromwellian regimes, and the idea that ‘commercial’ capitalism is pre-modern, to conclude that a late-18th century Whig constitution would still be an ‘ancien régime’ constitution.¹

Out of these negative criticisms two elements of the positive emerged. One (from the first article) was that documents laying out a political structure, which came to be called ‘constitutions’ by English lawyers from the 1660s on, were present in cities and other corporations before the practice of producing a single document called ‘the constitution’ was applied to nation-states. In that sense, the adoption of ‘constitution’ documents could be seen as urbanising ideas about political order.

The second positive element (from the second article²), is that we should conceptualise capitalism as a mode of production in terms of the circuits of capital and proletarianisation, rather than either fetishising the particular form of steam or electricity-driven factory industry, or refusing to recognise capitalism until it is completely dominant.³ The result of doing so is that the shipping industry appears from the later medieval period to have reshaped other sectors of production, not only directly, but more broadly; and we will get a longer perspective on the rise of capitalism and on attempts to create capitalist-ruled states, and hence on ‘constitutionalism’. In this perspective, the US constitution will no longer appear ‘early’ (though obviously, it is not the most recent example).

At the end of the second article I posed the issue that recognising a prolonged period of transition might imply that the question of state order, and thus of constitutions, should be marginalised. Not so. There are theoretical grounds for supposing that the overthrow of the state form, and hence constitutions, are necessary to the replacement of the old order. And there is substantial empirical evidence of blocked progress and retrogression in transitions where the old state is not overthrown, before the recent substantial state-led retrogressions of the late 20th/early 21st centuries. Rising classes have to reshape states in their own interests. In practice this needs the overthrow of the old state and the construction of a new state organised on different principles. This theoretical issue provides the core of the context for the series of trial-and-error attempts by the capitalist class to construct constitutions which will combine being answerable to capital with securing the most-of-the-time consent of the lower orders to the constitutional order through which capitalist interests rule.

I should say that what follows (and indeed the whole of this series) is not a CPGB collective position, but merely my individual views. I flag this point here because what I am about to say is distinctly unorthodox Marxism.

Class and state

To understand why rising classes have to reshape states in their own interests it is necessary to have concepts that can distinguish between state as such and class as such; and also to do so in a way that recognises that there are ancient and medieval states, not just modern ones.⁴

I start by postulating that ‘class’ describes a private family relationship to a part of the means of production, such that the relationship is in principle inheritable, and that individuals/families of an exploiting class are in competition with each other for shares of the total surplus product or surplus labour. This competition, together with aspirations from individuals/families of subordinate classes to rise into the exploiting classes or to live like members of the exploiting classes, drives innovation both in material technique and in forms of social relations of production.

Class in this sense, being private, entails the ‘public’ as its necessary other. To give a very simple example, ownership or possession of land is completely useless if there is no means of accessing the land. Private ownership of land thus entails that there must be public ways and spaces. Indeed, the concept of private ownership itself is a social convention that is necessarily ‘public’. Disputes about ‘who owns what’ are equally necessarily public - even in the absence of a state, under the regime of ‘peace in the feud’, feuding affects the parties’ neighbours and they are drawn in to enforce a settlement. Again, all land ownership titles since the Neolithic are based on collective conquest and/or collective defence against the original hunter-gatherer occupiers, or against rival groups.⁵ These are merely examples. The ‘public’ is not necessarily the ‘state’; but the ‘state’ is necessarily ‘public’.

In pre-feudal societies the ‘public’ is also the ‘sacred’: for a few examples, third millennium BCE institutions, which archaeologists have identified as those of a secular ‘state’, may be better explained as involving the sacred; the aut sacrom aut poublicom (the ‘sacred or public’) as synonyms of the Roman republic; the Chinese Great Ming Code promulgated in 1367 was heavily motivated by concerns for the sanctity of the empire.⁶

From another angle, the state is an organised armed group, which has a sufficient preponderance of armed force, in a particular territory, to be able to extract surplus product or labour from people in that territory in the form of tax/tribute. This description intentionally does not presuppose class.

It is also deliberately differentiated from the very common Weberian conception, also used by Weber-influenced Marxists, that the state has a ‘monopoly of the legitimate use of force’. If the state had to have a real monopoly of the use of force, no state exists or has ever existed anywhere in the world. The introduction of the word ‘legitimate’ makes the Weberian definition question-begging (eg, why was the use of force by the Peruvian state ‘legitimate’ and that by Sendero Luminoso not)? ‘Sufficient preponderance of organised force to enable taxation’ is more analytically helpful in distinguishing between states, on the one hand, and insurgents, on the other, otherwise than by our own approval or disapproval.

This conception also does not presuppose that the state is, morally, anything more than a very successful robber band or protection racket: states may start as mere robbers or protection rackets (eg, 10th century Normandy; ancient Rome according to the traditional narrative) or collapse into mere protection rackets (eg, the Whites in the Russian civil war). The state may emerge by way of the public/sacred acquiring military force and the ability to tax. But conversely, if it does emerge from armed robbers, it will inevitably be driven towards providing some degree of public services - since the group’s possession of the power to coerce and to tax will lead to the people ruled calling on it to provide justice, common defence, the maintenance of public spaces, and so on.

The state’s preponderance of organised armed force, sufficient to extract tax, depends on the armed force remaining organised. There are many historical stories of battlefield disintegration of apparently victorious armies in search of loot, leading to defeat; ‘state failure’ commonly has as an element the rise of kleptocracy and looting in the logistics apparatus, leading to the soldiers not being fed or paid (Russia 1914-17; the collapse of the Afghan puppet regime); and so on. In consequence, a state has to have some principle on the basis of which its officials and rank-and-file soldiers remain loyal and organised, and do not become mere looters.

The performance of public functions is fundamental to this problem of state officials’ loyalty. This is true as much for the Roman republic or empire as for a medieval kingdom, as for a modern state: state officials can think themselves as part of a public-service subculture, and for that reason limit their looting. Examples can be found in 6th century Byzantine civil servant John Lydus’s book On magistrates, or from 12th century England Richard Fitz Nigel’s Course of the exchequer.⁷

But this role in itself explains why rising classes have to overthrow existing states. The state, perceived not as a mere engine of extortion, but as providing public services, is not about innovation, but about preserving the social order that exists. Its dispute-settlement role is about restoring the status quo ante, the way things were before the alleged wrongdoing.

The innovations created by a rising class are from the point of view of a subsisting state precisely disruptions or thefts. Thus the disruption of the tax machinery by ‘great men’ taking peasants under their wings in late antiquity (the state tried to prohibit it); thus ‘theft’ of labour services and related lordly rights by runaway serfs and their proto-capitalist employers in the late middle ages; ‘extortion’ from employers and ‘tyranny’ over scabs by trade union ‘barons’ or ‘monopolists’ in modern times.⁸

The problem is then to disrupt the pattern of official loyalty to the state, that is loyalty to the old order and create a new form of loyalty that will serve as loyalty to the new rising class: a new ‘constitution’.

Feudal state and capitalists

Feudalism involves a bifurcation of the exploiters between the landlord class, on the one hand, and the clerical caste, on the other - whether the clerical caste is made up of Catholic institutions, or, as in Japan, Buddhist monasteries. Surplus is extracted though consuetudines ­- customary claims - which may be labour services, but equally rents or tolls in cash or kind, jurisdictions and so on. The competition between landlord and cleric allows the primary peasant and artisan producers a limited space to manoeuvre between the two, with the result that peasants and artisans are both recognised as members of the society (unlike slaves) and enabled to retain a limited share of surplus, facilitating innovation; and superiors are seen to have not only rights, but also duties, in relation to their subjects.

Because the primary producers are (unlike slaves) accepted as members of the society, the social specialisation of function (‘division of labour’) is explained in terms of the personal qualities of the members of estates/classes: inherited ‘fitness’ for their places of the landlords, peasants and artisans; personal sanctity and learning in the case of the clerics. These are given effect as legal status rules. At the same time, on the other side is a principle of local self-government of the patriarchal heads of families: of the village, of the manor, of the town, of the cathedral or monastery ... the headman, lord or his bailiff, mayor, dean or abbot is to act by the organised advice of this group.

The feudal state form reflects both the bifurcation of sacred and secular, and the quality of personal authority (muddled in Weber’s distinctions between ‘charismatic’ and ‘traditional’ authority). The social relations of the manor and parish are thus imitated on the scale of the nation-state.⁹ The church is unambiguously a sector of the public, but particular churches and monasteries compete, like landlords, over jurisdictions and consuetudines. The landlord class looks from one angle like a body of private owners; from another like a system of delegation of jurisdictions and tax claims. The state considered as a specialist group employing coercive force and extracting tax as ‘public’ takes primarily the form of the king’s household and broader servants, but draws into it as agents both the hierarchy of lordships and the ecclesiastical bodies. The principle of loyalty is on both sides very much personal - and ‘affective’, involving love and fear mixed (the nearest modern equivalent is marital abuse, which, of course, descends from the medieval conception of marriage).¹⁰

We can give a striking example of how the working of the affective lordship of the late-feudal state in England obstructed capitalist development. Andrew Yarranton and his partners in the late 1660s/early 1670s sank significant capital into acquiring the technique of tinplating from Saxony, and setting up a plant to work the process. When they were about to commence commercial operations, it transpired that king Charles II had in 1661 privately granted a patent for tinplating to a court crony (who had made no use of it); this was sufficient to block Yarranton and his partners’ project. Yarranton unsurprisingly became a Whig in 1679-82; he was murdered by persons unknown in 1684.¹¹

The problem is a generalised one: that the availability of private crony access to the monarch creates serious risks for capitalist investors, against which they can have no useful defence. The point has been systematically explored by ‘institutionalist’ economic writers, but it is obviously equally valid under Marxist analysis.¹² The circuit M-C-P-Cʹ-Mʹ needs a reasonable degree of predictability that the rules will be the same at all stages of the circuit.

Equally and on the other hand, the regime of local regulation in manors, guilds and boroughs was prone to produce gridlock against innovation.¹³ A fully feudal regime, as contrasted with the mitigated version created by the Reformation, also involves the possibility of arbitrary interventions by members of the clergy. Medieval canon (church) law technically banned usury, subject to complicated loopholes.¹⁴ The point is not that it actually banned lending at interest, but rather that the uncertainties of the law made it unpredictable for an investor whether some ‘reforming’ bishop or ecclesiastical judge would suddenly take a hard-line approach, preventing the recovery of profit on a medium-term investment arrangement.

It is then unsurprising that counter-Reformation states, which fully reinstated personal monarchy and the ecclesiastical authority, were associated with visible economic stagnation and decline in southern Germany, and other countries, in the later 17th/early 18th centuries, as contrasted with the visible economic progress of the Netherlands and of England after 1688.¹⁵

Bourgeois states

I have already argued that the circuit of capital and proletarianisation emerges in the first place in the shipping industry, and that this industry in turn impacts on both primary extractive production and secondary manufacture, and so on, to push towards generalising capitalism. The consequence is that - as Jairus Banaji has argued, though not for quite identical reasons - the primary beginnings of capitalism within the interstices of feudalism fall in the later medieval Mediterranean interface of Christendom and the dar-al-islam. I say ‘primary’, because there was, in fact, another bulk-shipping nexus in the North Sea. This is reflected both in the autonomy of the Hanse towns in north Germany and in the relatively advanced ‘marketisation’ of the later medieval Netherlands.¹⁶ But the first independent bourgeois regimes were the Italian city-states, products of the combination of strong shipping industries and the particular weaknesses of Italian feudalism.

How were the creators of these regimes to think an alternative structure to the world of consuetudines and personal lordship/personal sanctity as the grounds of authority? To a considerable extent, they began by taking power merely pragmatically. The pragmatic steps involved the creation of elected magistracies, and councils. These could in principle fit within feudal community self-government. But they soon found themselves in a ‘clash of legitimacies’ with both lords and villagers.¹⁷

One way to counter the surrounding feudalism was to appeal to Roman antiquity: thus, for example, the Pisans in their 1161 constitutum usus asserted that the city of Pisa had for a considerable time lived by Roman law.¹⁸ The appeal to classical antiquity continued as a normal element of capitalist ideology down to the French revolution (Marx noticed it in The 18th Brumaire of Louis Bonaparte). But this idea contained a trap: Justinian’s codification of Roman law contains both the jurisdiction of bishops and explicitly absolute-monarchist argumentation: quod principi placuit habet vigorem lex, ‘the will of the monarch has the force of statute’, and so on.¹⁹

Moreover, the self-government practice pragmatically adapted from feudalism carried with it the threat to the circuit of capital as such from regulation ‘from below’ (and from the appeal of charismatic preachers to the poor against the ‘usurer’ rich). The ‘bourgeoisie’ in origins means the town-dwellers, rich and poor; the capitalist class needs to constitute itself into a class-for-itself, a class capable of ruling. It does so out of the combination of ‘working’ merchants, landlord-class and other investors, and so on, through the constitution of financial arrangements that tie together active manager, financial intermediary and passive investor.²⁰ And the process involves the constitution of political power of this class both against external landlordism, monarchism and clericalism - against the peasantry of the contado, the city’s rural territory - and against the lower urban classes.

Controlling the lower orders entailed, for these early experiments in capitalist rule, the reassertion of legal personal status distinctions to explain why the ‘patricians’ or ‘nobles’ should rule and the lower orders obey. But the consequence of this approach was to threaten to unify the islands of urban rulers with the sea of feudal lordship that surrounded them - just as Soviet-bureaucratic and trade union and labour managerialism unites the workers’ leaders with the sea of capitalist managerialism that surround them. Formal political exclusion of the lower classes, moreover, produced both episodes of revolt and generic disloyalty to the city communes. Most city-states collapsed into signorie - lordships; the great survivor was the Venetian republic, which lasted down to the French revolution; the lesser survivor was the Genoese republic, which moved in and out of autonomy, mainly subordinate to the Spanish feudal-absolutist kingdom in the early modern period.²¹

It must be relevant that the Venetians and Genoese had most success (compared to other cities) with overseas imperialism, building networks of naval bases and exporting capital to slave-worked sugar-plantation colonies. It must also be relevant that both insisted on their customary law as against Roman law and on the complete autonomy of their ‘ancient constitutions’ - and that the Venetians, unlike the other Italian city-states, subordinated the church to their republic (in their case by setting up the ‘patriarch of Venice’ as a purported equal of the pope and the patriarch of Constantinople).²² Both the various experimental regimes that failed and the Venetian and Genoese ancient constitution ideas were groping towards the regime that is in more modern times called the ‘rule of law’.

17th century

The Netherlands and England in the 17th century are on a larger scale - states of whole countries rather than of cities, and imperialist operations on a global, rather than merely Mediterranean, scale. In terms of constitutional forms, they involved a more radical attack on the clerisy - Calvinism; and the need for institutional forms going beyond the single city.

Pocock is right that the 17th century English (and, in addition, the Netherlanders, who he does not discuss) drew on the experience of Italian city republicanism. What is wrong is his method, both in Machiavellian moment and in Ancient constitution. He converts experiments which end up with a capitalist political regime into a closed and ‘pre-modern’ universe of discourse, whether of immemorial law or of virtue-based republicanism. Pocock’s method depends on the a priori claims that language limits thought; that ‘context’ is a chain of canonical authors; and that historiography develops teleologically towards the telos of discovery of ‘the truth’, meaning rejection of ‘Whig history’.

The ‘ancient constitution’ was not a language to limit thought. It is a technical legal device to allow political authorities to be treated as subject to laws. It enables a state based on loyalty to the constitution as law, as opposed to the loyalties to personal authority that define the feudal state.

Missing from Pocock’s story, moreover, are the untheorised practices inherited from the Italians: in particular the unification of the capitalist class and, through financial markets, the creation of dependence of the state on its creditors. And equally missing are the untheorised novelties, in particular the creation of the professionalised army in the Netherlands under Maurice of Nassau in the 1590s-1610s and of the English New Model Army from 1644 on.

The Dutch Regents remained, like the Italian city patricians, a cooptative rather than elected group. The English House of Lords, though formally hereditary, had a large cooptative element to it through the creation of new peerages. But England after 1688 also had a new constitutional element relative to the Italian city-states and the Netherlands, albeit remodelled from feudal consultation practices: the development of managed elections and political parties as a means of incorporating at least sections of the lower orders, while retaining control in the investor class; and in this context, the managed advertising-funded press.

In another innovation, the Bank of England is a development beyond the Amsterdam Wisselbank, as a ‘central committee of the state’s creditors’, from the outset capable of threatening the state with withdrawal of credit in response to unacceptable policies.²³

1688 triggered not just a war, but a series of wars, all ending in French defeats. By the later 18th century, it was much clearer that the English model represented modern success than had been true of the Netherlands - let alone of the Italian city-states, which were used as an awful example of the dangers of ‘faction’ and the necessity of monarchy by writers down to the 1680s. Capital had found state forms which would answer to its needs.

What was to follow was a succession of efforts to imitate (and modify to local needs) the British state, as seen though ideologists of this constitutional order: an aspiration that was to run out of steam in the period of British decline, and be replaced by new remodellings along the lines of imitating the US constitution after the US’s victories in 1939-45 - yet again modified in the era of ‘rollback’ after 1976.

It is in this last period that lawyers and politicians began to reshape the US constitution as an ‘ancient constitution’ as ineffable as the British. To this we will have to return.

mike.macnair@weeklyworker.co.uk

1. ‘Constitutions ancient and modern’ Weekly Worker September 2: weeklyworker.co.uk/worker/1361/constitutions-ancient-and-modern.↩︎

2. ‘Artificial antiquity’ Weekly Worker September 9: weeklyworker.co.uk/worker/1362/artificial-antiquity.↩︎

3. Which, if taken seriously, would really require us to say that there was no capitalism until the 1990s.↩︎

4. The word ‘state’ is late medieval Italian, but, as I already indicated in the first article in this series, the idea exists under older names as politeia or res publica. See also (from another perspective) S Reynolds, ‘The historiography of the medieval state’ in M Bentley (ed) Companion to historiography Abingdon 1997, chapter 7.↩︎

5. Ownership conventions: G Rose Property and persuasion Boulder CO 1994. Even ‘peace in the feud’ involves the neighbours: eg, WI Miller, Bloodtaking and peacemaking: feud, law and society in saga Iceland Chicago 1990. Titles based on conquest: PJ du Plessis, ‘The case of the careless purchaser or “bonitary ownership” and ownership’ in B Spagnolo and J Sampson (eds) Principle and pragmatism in Roman law Oxford 2020, pp49-55.↩︎

6. A Porter Mobile pastoralism and the formation of near eastern civilizations Cambridge 2014, chapter 2; M Crawford, ‘Aut sacrom aut poublicom’ in P Birks (ed) New perspectives in the Roman law of property Oxford 1989, chapter 6; Y Jiang The mandate of heaven and the great Ming code Washington 2011.↩︎

7. On Lydus, see C Kelly Ruling the later Roman empire Cambridge Mass 2004; F Nigel Dialogus de Scaccario (editor and translator: C Johnson) Oxford 1983.↩︎

8. Patronage: eg, C Grey Constructing communities in the late Roman countryside Cambridge 2011, chapters 4 and 7; runaway villeins: eg, M Bailey After the black death Oxford 2021, pp102-10; arguments that trade unions are ‘monopolists’: eg, F Cengiz, ‘The conflict between market competition and worker solidarity’ Legal studies Vol 41 (2021), pp73-90.↩︎

9. I have given reasons for taking the nation-state to be a feudal form in ‘Nation-state and feudal revolution’ Weekly Worker February 13 2003: weeklyworker.co.uk/worker/467/nation-state-and-feudal-revolution; and ‘Nation-state and nationalism’, Weekly Worker July 16 2015: weeklyworker.co.uk/worker/1067/nation-state-and-nationalism.↩︎

10. Personal lordship: eg, T Bisson The crisis of the twelfth century Princeton NJ 2009; G Garnett Conquered England Oxford 2007. For the church, several of the articles in Charisma, medieval and modern (‘Religions’ special issue) 2012: www.mdpi.com/journal/religions/special_issues/charisma_medieval are relevant.↩︎

11. Oxford dictionary of national biography (Yarranton, Andrew).↩︎

12. Eg, HL Root The fountain of privilege Berkeley CA 2014.↩︎

13. Eg, J Goodacre The transformation of a peasant economy chapter 3, Totnes 1994; D Parker Class and state in ancien regime France Abingdon 1996.↩︎

14. JT Noonan The scholastic analysis of usury Cambridge Mass 1957. For the broader difficulties of late medieval and early modern canonists and moral theologians with ‘just prices’ and profits see W Decock Theologians and contract law Leiden 2013.↩︎

15. S Ogilvie, ‘Germany and the 17th century crisis’ Historical journal Vol 35 (1992), pp417-41, has relevant literature and data, though not this interpretation.↩︎

16. Banaji, ‘Islam, the Mediterranean and the rise of capitalism’ Historical materialism Vol 15 (2007), pp47-74. North Sea: L Berggren, N Hybel and A Landen (eds) Cogs, cargoes and commerce: maritime bulk trade in northern Europe 1150-1400 Toronto 2002. For the autonomy of the Hanse towns in north Germany: eg, H Spruit The sovereign state and its competitors Princeton NJ 1994, chapter 6: ‘The fragmentation of the German empire and the rise of the Hanseatic League’. For the relatively high level of market development in the low countries, see B van Bavel Manors and markets: economy and society in the low countries 500-1600 Oxford 2010.↩︎

17. C Wickham Sleepwalking into a new world: the emergence of Italian city communes in the twelfth century Princeton NJ 2015; A Gamberini The clash of legitimacies: the state-building process in late medieval Lombardy Oxford 2018.↩︎

18. P Vignoli (ed) I costituti della legge e dell’uso di Pisa; see also Istituto Storico Italiano per il medio evo 2003, p129: “a multis retro temporibus”.↩︎

19. Episcopal jurisdiction, Justinian Code 1.3, 1.4. ‘Quod principi placuit’ Institutes 1.2.6.↩︎

20. Eg, Q van Dosselaere Commercial agreements and social dynamics in medieval Genoa Cambridge 2009; RC Mueller The Venetian money market: banks, panics and the public debt, 1200-1500 Baltimore MD 1999.↩︎

21. Discussion of the general theoretical issue involved and some references in M Macnair, ‘Historical blind alleys: Arian kingdoms, signorie, Stalinism’ Critique Vol 39 (2011), pp545-61.↩︎

22. Some discussion: eg, NS Davidson, ‘The clergy of Venice in the sixteenth century’ Bulletin of the Society of Renaissance Studies Vol 2 (1978), pp19-31; A Wright, ‘Republican tradition and the maintenance of “national” religious traditions in Venice’ Renaissance studies Vol 10 (1996), pp405-16.↩︎

23. Discussion: eg, AL Murphy ‘Performing public credit at the 18th century Bank of England’ Journal of British studies Vol 58 (2019), pp58-78.↩︎