Gendered States of Punishment and Welfare

Feminist Political Economy, Primitive Accumulation and the Law

Adrienne Roberts

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781134880201
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Politique

This book presents a feminist historical materialist analysis of the ways in which the law, policing and penal regimes have overlapped with social policies to coercively discipline the poor and marginalized sectors of the population throughout the history of capitalism. Roberts argues that capitalism has always been underpinned by the use of state power to discursively construct and materially manage those sectors of the population who are most resistant to and marginalized by the instantiation and deepening of capitalism.

The book reveals that the law, along with social welfare regimes, have operated in ways that are highly gendered, as gender – along with race – has been a key axis along which difference has been constructed and regulated. It offers an important theoretical and empirical contribution that disrupts the tendency for mainstream and critical work within IPE to view capitalism primarily as an economic relation. Roberts also provides a feminist critique of the failure of mainstream and critical scholars to analyse the gendered nature of capitalist social relations of production and social reproduction.

Exploring a range of issues related to the nature of the capitalist state, the creation and protection of private property, the governance of poverty, the structural compulsions underpinning waged work and the place of women in paid and unpaid labour, this book is of great use to students and scholars of IPE, gender studies, social work, law, sociology, criminology, global development studies, political science and history.

1
The making of global capitalism

A feminist historical materialist analysis

Introduction

This chapter outlines the feminist historical materialist perspective that underpins the rest of the book. It draws on the work of Marx and Engels along with several different bodies of Marxist and feminist scholarship, including in the areas of (international) political economy, sociology, history, legal theory and criminology. In bringing together these different approaches, my theoretical apparatus goes beyond both the instrumentalism of much Marxist theory and the particularism that characterizes much feminist work. That is, in contrast to Marxist accounts that have tended to conceptualize the law (and law enforcement) as an instrument of class power and feminist accounts that have tended to shy away from grand pronouncements about the intrinsically gendered and class-based character of the law, in this chapter I outline a conceptualization of the law as constitutive of the class-based and gendered social relations of capitalism. I also outline the ways in which the law has both progressive and repressive dimensions.

The purpose is not to suggest that the law and the related institutions of penality always operate in the interests of capital and of men. Rather, it is to point to some of the ways in which the law, as part of the social ontology of capitalism, defines the limits within in which political and social action take place. Thus, while feminists need not cease making demands on the state regarding the improvement of gender equality, given that the social relations of the state are the product of the broader totality of capitalist social relations, it cannot be the only means through which gender equality is envisaged.

This chapter builds on Marx’s dialectical view of the law, which, with the development of capitalism, institutionalized certain rights and freedoms while simultaneously imposing limits on possible forms of emancipation by cementing private property as “an ideal beyond which it was neither possible nor desirable to go” (Fine 1986: 97). Taking this as a starting point allows for a conception of historical change that avoids the pitfalls of what the Italian Marxist Antonio Gramsci called ‘historical economism’ whereby all forms of social and historical change are rooted in shifts in the relations of production (2000: 210–7). Rather, here, historical change is located in shifting relations of production and the interconnected shifts in social reproduction. Historical change is also conditioned by the emergence of new ideas, with the ideas of political economists being particularly pertinent to the subject of this book. Finally, as Gramsci and those following his intellectual tradition of ‘non-structuralist historicism’ have pointed out, social struggles and contestations also play a role in the shaping of human history (Gill 2008: 17).

In what follows, I elaborate on three interrelated premises of my feminist historical materialist reading of the importance of the law (and the means used to enforce the law) in constituting and reproducing the gendered social relations of capitalism. The first premise is that one of the ways in which the law helps to constitute capitalism is through its mobilization as a mechanism of the primitive accumulation of capital, historically and up to the present. The second premise is that primitive accumulation is a highly gendered process that has helped to create and sustain a gender-based division of labour, to institutionalize a role for capital and the state in controlling women’s bodies and to create differences and divisions that undermine collective power. The third premise is that the law should be viewed not simply as a repressive instrument of the ruling classes but rather as part of the social ontology of capitalism.

Premise 1: the law as primitive accumulation

Marx’s critique of primitive accumulation

In section VIII of the first volume of Capital, Karl Marx set out to describe the historical processes that made capitalist accumulation possible, or what he called the ‘so-called primitive accumulation’ of capital. In this section, Marx critiqued and reformulated the concept of primitive accumulation put forth by political economists such as Adam Smith, which naturalized the emergence and development of capitalism. Marx summarized the liberal myth of primitive accumulation as follows:

In times long gone-by there were two sorts of people; one, the diligent, intelligent, and, above all, frugal elite; the other, lazy rascals, spending their substance, and more, in riotous living. [...] Thus it came to pass that the former sort accumulated wealth, and the latter sort had at last nothing to sell except their own skins. And from this original sin dates the poverty of the great majority that, despite all its labor, has up to now nothing to sell but itself, and the wealth of the few that increases constantly although they have long ceased to work.

(Marx [1867] 1976: 873)

Rather than historicizing the origins of capitalism, the liberal myth of primitive accumulation attributes the emergence of capitalism to the natural inclination of rationally self-interested individuals to (with reference to Adam Smith) ‘truck, barter and trade’.¹

From this ontological starting point, the story goes on to suggest that as societies became more complex, the natural tendency for individuals to barter and exchange goods came to be mediated by money, which acted as a universal equivalent.² The loosening of feudal bonds of constraint (such as those limiting labour mobility), the growing division of labour and technological changes led to the further development of capitalism. From this perspective, then, the transition to capitalism did not represent a radical break from other forms of society but was rather an advanced stage in age-old commercial practices (Marx [1867] 1976; see also Wood 2002).

In contrast to this narrative, in his critical historical re-reading of the primitive accumulation of capital, Marx argued that transition to capitalism was a violent and highly contested social transformation that entailed a qualitative change in social forms in the sixteenth and seventeenth centuries. Whereas many of the classical liberal political economists underplayed the importance of power, social struggles and states in bringing about the transition to capitalism, Marx argued that this was a violent and highly contested social transformation that was forcefully promoted by individual landowners and, particularly after the Glorious Revolution of 1688, by the English state. It was only after this violent dispossession had taken place that ‘accumulation proper’ could be achieved primarily through the ‘silent compulsion of the market’, though violent mechanisms of primitive accumulation continue to be used on a global scale.³

The commodification of land and labour, which are commonly understood to be central components of any capitalist society, were two such qualitative changes. Challenging the liberal myth that human economies have always been based on market principles, Marx pointed out that the commodification of land and labour were achieved by way of the expropriation of the peasantry from the land (which occurred through the enclosures as well as military conquest both internally and in the colonies), the destruction of individual and collective forms of property, the criminalization of non-market means of survival and the imposition of extremely harsh penalties, including mutilation, imprisonment, deportation and/or death for those who disobeyed the new laws. These were the historical processes that led to a market in land and the creation of ‘free’ labourers who had nothing left to sell except their own skins.

The on-going and global nature of primitive accumulation

While the issue was not fully explored in Capital, Marx did support the view that processes of primitive accumulation were not unique to England but rather constitutive of the expansion of capitalism globally. At the end of section VIII, Marx turns to the ‘modern theory of colonization’ in order to demonstrate that capital is a social relation between capitalists and workers who are divorced from the means of production and are therefore compelled to sell their capacity to labour for someone else on the market. European colonists discovered this reality when they arrived in the colonies with money, machines, servants and workers, but who immediately ran into problems as the abundance of land meant that there was no compulsion for workers to labour for a wage: “[I]n the Colonies, property in money, means of subsistence, machines, and other means of production, does not as yet stamp a man as a capitalist if there be wanting the correlative – the wage-worker, the other man who is compelled to sell himself of his own free-will” (Marx [1867] 1976: 932).

Subsequent theorists went much further than Marx in emphasizing the continuous and global character of primitive accumulation. Rosa Luxemburg ([1913] 2003) argued that capitalist accumulation takes place both thorough the exploitation of wage labour, which Marx emphasized, and through on-going processes of primitive accumulation. She argued that in order to survive, capitalism needs to continually expand into non-capitalist sectors, which is primarily done through the imposition of processes of primitive accumulation in the colonies by imperial powers. This would also, however, be the basis of its demise:

Capitalism is the first mode of economy [...] which tends to engulf the entire globe and to stamp out all other economies, tolerating no rival at its side. Yet at the same time it is also the first mode of economy which is unable to exist by itself, which needs other economic systems as a medium and soil. [...] In its living history it is a contradiction in itself, and its movement of accumulation provides a solution to the conflict and aggravates it at the same time.

(Luxemburg [1913] 2003: 447)

In the 1970s, the influential political economist Samir Amin reasserted this view. He argued that the mechanisms of primitive accumulation “do not belong only to the prehistory of capitalism; they are contemporary as well. It is these forms of primitive accumulation, modified but persistent, to the advantage of the centre [of the world system], that form the domain of the theory of accumulation on a world scale” (quoted in Bonefeld 2011: 381–2).

More recently, the Marxist geographer David Harvey (2003a; 2003b) has engaged Marx’s concept of primitive accumulation, though he prefers to use the term ‘accumulation by dispossession’ in order to highlight the fact that dispossession is not part of some ‘primitive’ past but rather an on-going process associated with the accumulation of capital. According to Harvey, since around the 1970s, one of the ways in which capitalism has addressed the problem of over-accumulation is by following a strategy of accumulation by dispossession, which is a spatio-temporal fix aimed at overcoming the inherent contradictions of capitalism that ultimately relies on the dispossession of populations from common resources and spaces previously shielded from the capitalist market. According to Harvey, the state plays a crucial role in underpinning these processes, which have largely served to redistribute wealth from the lower classes to the elite and from the public to the private sector (Harvey 2005: 159–65). Following on from the writings of Marx and others, a whole host of studies have pointed to the on-going forms of primitive accumulation that have been used to separate workers from direct access to the means of production (such as through land grabs), to enclose public or communal spaces, to privatize publicly owned industries (including health care and transportation systems) and more (De Angelis 2001; 2004; 2007; Bakker and Gill 2003; Arrighi 2004; Federici 2004; Sassen 2010; McNally 2011; Soederberg 2014).

The importance of the law in primitive accumulation

It is implicit in Marx’s work that the law has played an important role in advancing processes of primitive accumulation in the sense of both helping to create private property as a legal relation backed up by force and compelling the poor to labour by criminalizing a range of their customs, rights, activities and habits. For instance, in one of his early works, Marx extensively critiqued the German laws that made the gathering of fallen wood and the foraging of berries in the forest criminal offences (Marx [1842] 1975). Such practices, which were traditionally viewed as customary rights of the poor, were legitimized by the indeterminate character of feudal property. However, as political theorist C. B. Macpherson explains, whereas under feudalism, different people could have rights to the same land, with none of them possessing absolute ownership of it, modern capitalist forms of private property imply an exclusive right to a thing and thus inherently also imply exclusion (1978: 6). One of the primary ways in which this exclusion was (and continues to be) enforced was through legal processes that criminalized activities previously understood to be customary rights. Under such conditions, Marx argued, “it is inevitable that many people not of a criminal disposition are cut off from the green tree of morality and cast like fallen wood into the hell of crime, infamy and misery” (Marx [1842] 1975).

Criminalizing such customary rights therefore served a dual purpose. On the one hand, it was essential to the protection, and indeed to the very definition, of private property. On the other hand, the criminalization of customary rights was a means of dispossessing the peasantry from direct (non-market) access to the means of subsistence, thus creating a compulsion to work for a wage. These processes were intricately linked to the development of capitalist agriculture in the eighteenth century, and the desire of landlords to make a profit from the resources (forests, ponds, etc.) on their estates. While there were certainly some moves to enclose land and employ wage labour prior to this point, it is also the case that as capitalist agriculture was expanded and intensified, previously tolerated customary rights of the peasantry were increasingly rendered illegal and subjected to harsh punishment.

A number of historians, including the Marxist historians E. P. Thompson, Douglas Hay and Peter Linebaugh, have thoroughly documented this trend, and a few examples should help to elucidate the point. For one, though feudal in origin, the English Game Laws that were instituted at the end of the seventeenth century became part of a broader movement to enclose private property and to prevent the rural poor from hunting meat for their consumption (Hay 1975a; Hay 1980; Thompson [1975] 1990). Another example is the Black Act of 1723, which criminalized the collection of wood and berries from the forest and fishing in ponds. It also stated that killing deer could be pena...