I gave a talk recently-ish about my book. When invited a few months before the event I asked if I could also send along some work in progress for people to read in addition to the prepared talk, a request that was me selfishly looking for interlocuturs and, as it turns out, wildly optimistic as by the time the event rolled around I didn’t have any progess on any work! So I wrote up a thinkpiece, not wanting to squandering the opportunity to borrow the mental muscles of a group. The talk’s below, trying to think through some ideas in Jack Copley’s Governing Financialization and Tony Smith’s Beyond Liberal Egalitarianism, both excellent books (books I wish I could write!) that I highly recommend. My prefatory note to the audience is below followed by the text itself. As of now, in late July (when did THAT happen?!) I remain preoccupied with the ideas I’m trying to sort through, but this is a think piece written for the sake of trying to get a bit further down the road intellectually so I don’t know that I would stand by any of the particular content. *
I’m delighted to be speaking with you today. I requested that I be able to send you some work in progress to read, in part selfishly - talking with you will help me to think! - and in part because I am a livelier interlocutor when talking about work that is still underway, because the conversation covers matters that are less settled for me intellectually. At the time that I made the request I assumed I would by this time have another piece of writing that I could send you, but I assumed wrong, so I wrote one, please find that below.
This is a think-piece I wrote which attempts to connects some dots among some things I wrote. I have, I think, just recently passed the point at which I am justified in claiming to be early career, yet something that still feels a bit new to me is that every thing I write leaves a kind of residue or remainder in my mind - a thing I’m left thinking about in the aftermath of writing the thing. Bits of aftermath from different pieces of writing resonate with each other sometimes, and with other things I’ve read. I wanted here to try to gather some of them up because they’ve been preoccupying me. I mention the relevant works I’ve read in the text below. The works of mine that are related are, in case they are of any interest to you, my book on the history of workers’ compensation laws, Injury Impoverished (https://www.cambridge.org/us/academic/subjects/history/twentieth-century-american-history/injury-impoverished-workplace-accidents-capitalism-and-law-progressive-era?format=PB); a chapter I wrote in the Elgar Research Handbook on Law and Marxism (https://www.elgaronline.com/view/edcoll/9781788119856/9781788119856.00020.xml); and a short essay I wrote for the health policy and bioethics blog Bill of Health, about the Biden administration’s handling of the COVID-19 pandemic (https://blog.petrieflom.law.harvard.edu/2022/03/21/depoliticizing-social-murder-covid-pandemic/). I hope what’s below stands on its own but I wanted to flag these other related pieces of mine in case they’re of interest.
These are ideas that are very live and unsettled for me. I appreciate you thinking with me and giving me this opportunity to think. I have a pet theory that we should consider “think” to be a verb like “flock,” an activity that is simply impossible to do alone: if truly alone, one doesn’t think; if thinking, one is not truly alone. The pet theory could be wrong but I mention it out of gratitude - I’d have not done this thinking without you as part of the context, I appreciate you reading this, and I look forward to thinking with you in conversation.
Thinking through Depoliticization and Social Bifurcation
I am currently relatively preoccupied by a pair of related concepts, depoliticization and social bifurcation, and how they relate to thinking about law and society. I’ll explain both terms and why I find them especially interesting in tandem. The version of depoliticization that’s on my mind lately is one I found in the work of Peter Burnham, a scholar of international political economy and British economic policy. Burnham discusses depoliticization as government putting at a remove its own decision-making authority: think of an authority figure saying “it’s out of my hands!” Doing so helps that authority figure to present actions and outcomes as events that just occurred rather than decisions for which they are accountable. It could be that since I am newly preoccupied with this phenomenon my mind is primed to see it, but intuitively I think see this kind of operation all over the place, in lots of jobs I’ve had and my current workplace, and in politics today and in the past. It seems like an important move, so to speak.
Social bifurcation is my term for a point made by the philosopher Tony Smith in his superb book Beyond Liberal Egalitarianism. Smith argues that in capitalist societies there is a domain of social life called politics and there is a domain of life called the economy. This fundamental division is easy to think about such that the economy is nonpolitical and only the political sphere is political. Smith argues that the reality, however, is that the ostensibly apolitical world of the economy is deeply political, with fundamental issues of freedom, justice, and human flourishing decided regularly - and often decided accidentally, as the emergent result of economic actors focused on other matters. As an example, consider workplace injuries. There are typically about 5,000 fatal workplace injuries per year in the US, and about 3 million serious nonfatal injuries. These injuries are rarely the result of a conscious, explicit decision to injure or kill, but rather emerge from a lot of decisions made by people focused on other matters than safety and danger.
Social bifurcation seems to be a quality of capitalist societies as such, which is to say, in capitalist societies we are encouraged to think too narrowly about politics and to treat some areas of life as non-political despite those areas of life being shot through with power, conflict, and matters of justice and injustice. That said, no two capitalist societies are identical, and any specific capitalist society changes over time. I think about this in terms of institutionalization: capitalist societies have a general set of qualities that all such societies share, but those qualities are organized in institutionally specific ways, which help us to distinguish different capitalist societies from each other over time and space. The creation of workers’ compensation laws, the subject of my book, was a change in the institutionalization of capitalist social relations. To my mind, this means that the particular organization of social bifurcation can vary across time and place: what is and is not political can vary a little between different capitalist societies. In general, though, capitalist societies will tend to treat an area of life called the economy as relatively non-political.
So with these two concepts, we have then social bifurcation, meaning a condition where a lot of social life is treated as non-political, with the details varying a little between specific capitalist societies, and we have depoliticization, meaning a specific effort by governments to treat an action or event as not political. It seems clear that these two concepts work at different levels, so to speak, or at different degrees of analytical abstraction. That is, social bifurcation is a very zoomed out concept about capitalism as such, while depoliticization is a very zoomed in concept about what happens in policy in a specific capitalist society over a relatively short period of time.
To my mind, these concepts work best in tandem, though to be frank I’m not entirely sure I could defend that claim yet. Here’s my current best attempt to connect the two concepts. The sociologist Erik Olin Wright once said that we can think about the sociology of class as having three basic approaches, which he spelled out by analogy to a game. There are at least three kinds of questions we can ask about games. We can apply these questions to work and jobs as well. One set of questions is concerned with what the best move is in a specific game that’s actually played: what should a person who is job-hunting do right now to get the best job they can? What do the most successful job-seekers do, how can we learn from them? A second set of questions has to do with the rules of the game: what rule change could we make to this game to improve it? What is the best government action or policy right now in light of the labor market? How is policy structuring the labor market? A third set of questions is what game to play at all: should we have a capitalist society or a different kind of society? How does capitalist society work, what role does employment have in this kind of society and what does that mean for those of us who live in a capitalist society?
It seems to me that Smith’s account of social bifurcation is fundamentally a matter of the third kind of question: capitalist society has a certain set of qualities where an area of social life is treated as non-political. Burnham’s account of depoliticization, on the other hand, is a matter of the second kind of question, the question of what policy should be, for what purposes. Depoliticization as an action by government helps serve the passage of specific policies and the avoidance of other policies, and depoliticization as a concept helps us to explain those government actions. Then again, maybe depoliticization is really a matter of the first set of questions, i.e., not what is the best policy but rather what is the best move for the government to make right now. To put it another way: what is the best policy depends on how we define “best,” and the social outcomes we might hope to see arise from policy aren’t necessarily the same as the political effects for government personnel when it comes to take specific actions. That is, there’s a big different between state action taken for some vision of the greater good and state action taken for, say, concerns about getting re-elected.
Obviously as an abstract matter of taxonomizing, this doesn’t really matter and is just a silly question like whether or not a hot dog counts as a sandwich. On the other hand, I want to suggest that the ambiguity over whether depoliticization is a matter of the first or second kind of question can help bring out an ambiguity in the state itself in capitalist society, namely that state actors aren’t always acting in a high-minded way serving larger purposes. Some of the time they’re just trying to get through the day, like a lot of people with jobs. This isn’t exactly right but I think it’s close - the concept of depoliticization helps draw out that some of the time state action is in part a matter of state personnel just trying to ride out difficult events and last long enough for those events to go away.
In his recent book Governing Financialization, the international political economy scholar Jack Copley argues that the government of the UK repeatedly acted this way in the 1970s and 1980s, basically making policy in an ad hoc way - trying to put out fires immediately before them, so to speak - rather than having any particular plan. His analysis is suggestive for people on the left like myself who tend to want to talk about things like Thatcherism in the UK and Reaganism in the US, and about the two as examples of neoliberalism. More specifically his analysis suggests that Thatcherism, Reaganism, neoliberalism emerged over time as messy processes which look more coherent and planned out retroactively than they actually were as they were occurring. To put it simply, Copley suggests that in effect governments are in important respects just like everyone in capitalist society in that they’re mostly just trying to ride the tiger of capitalist society, without getting thrown off or mauled. Of course the ways in which people ride the tiger, as it were, differs greatly by social position. The key point is that a great deal of what happens is, at the level of plans and decisions, fairly chaotic and ad hoc.
I’m a little worried here that this will seem like I’m minimizing governments’ responsibility for their actions, which is not my intent, so let me make a quick detour. I recently read Edouard Louis’s very short and very moving book Who Killed My Father. I recommend it to you highly. In it Louis talks about the terrible suffering of his father due to poverty and chronic pain from a workplace injury, and Louis polemicizes against the Macron government cutting disability benefits in ways that deepen the suffering of Louis’s father and others like him. In my view those cuts are monstrous, Macron is fully responsible, and politicians who take those actions should be consider - as the title of Louis’s book asserts - as committing acts of killing. But all of that said, how is it that we come to live in a society that kills in this way, and how is it that social patterns of killing take these specific forms rather than others? That’s what concepts like depoliticization and social bifurcation can help us understand, I think. With that in mind I’ll change the metaphor a little: if capitalism is the tiger and governments are riding the tiger, we might be fleas on the back of the rider - if the rider is thrown to the ground or eaten by the tiger, we might get hurt in the process as well.
Depoliticization, then, is a kind of move that governments make to manage how patterns and processes in capitalist society affect governments and their personnel. Depoliticized government action is less the second kind of question - “what kind of policy is best?” considered from a social point of view or from the perspective of politicians’ ostensible constituents - and is more the first kind of question - “what is the best move in this game?” considered from the point of view of governments and state personnel trying to avoid consequences in their own lives. As Edouard Louis writes in Who Killed My Father, "politics is what separates some populations, whose lives are supported, nurtured, protected, from other populations, who are exposed to death, to persecution, to murder" but governments’ are not always primarily concerned with those important questions and their high stakes. Rather, again to quote Louis, “for the ruling class, in general politics is a question of aesthetics: a way of seeing themselves, of seeing the world, of constructing a personality.” That’s overstated and I don’t fully agree with Louis, but the point is that in important respects powerful people have less skin in the game than the rest of us - or to put it another way, while powerful people make have some skin in the game, a lot of us are just the pieces the game is played with and our well-being isn’t a factor in the game at all.
This means in part, I think, that depoliticization, is part of how governments play the games they play, and part of them doing so in ways that keep the rest of us as the pieces rather than the players. That latter condition, where we don’t get to be equal players, is part of social bifurcation: what kind of society we have is pre-determined, if some rules might be made to vary there won’t be any variations permitted that disrupt the accumulation of capital. Of course, it’s possible to take unpermitted actions - I’d argue that human progress demands such actions - but that’s more than I can go into today.
I want to make a tentative conclusion from this line of thinking, but first let me briefly recap: social bifurcation is the general division of society into a political realm and a supposedly non-political economic realm, a division characteristic of capitalist societies. That division is institutionalized in slightly different ways in specific capitalist societies. Depoliticization as a concept has a smaller frame of reference. It means treating specific actions in a specific time and place as non-political. My tentative conclusion then is that depoliticization will occur when there are problems in the actually existing set of institutions in a time and place that institutionalize capitalist social relations. More simply, depoliticization occurs when there is a threat - either real or potential - of politicization, by which I mean treating existing patterns as power relationships subject to real challenges and as a result re-organization. It seems to me that politicization can work on at least two levels as well: institutional re-organization, i.e. changing the rules of the game, and social re-organization, i.e. abandoning one kind of game for another.
I’m going to stop in a moment but first some final points. The conclusion of a process of institutional re-organization - like the passage and implementation of workers’ compensation laws as I discuss in my book - is a kind of depoliticization. That conclusion closes off institutional re-organization, at least for a time. The initiation of a process of institutional re-organization - like the initial calls for reform to employee injury law and eventual calls for compensation laws specifically as the way to reform employee injury law - can itself be a kind of depoliticization as well, in two ways. One is that any given institutional re-organization leaves other roads not taken in terms of other specific approaches to institutionalization. Another is that the re-organization of the ways in which capitalist social relations are institutionalized leaves aside other roads not taken in terms human possibilities beyond capitalism.
Lastly, I want to suggest that all of this has a great deal to do with law, in that I think law does a great deal to set the terms of institutional malleability - when are institutions subject to revision or not, how is that revision to be proposed and carried out, and so on. I suspect as well that law also helps secure the legitimacy of these processes and social relations specifically for the people at the relative top of the food chain. In the famous words of Anatole France, “the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal loaves of bread.” I suspect that generally the people most convinced by law are the rich, so to speak, and their being convinced is fairly important, helping them to live with themselves as they carry out the actions and give the orders that must occur in a society where some people have to beg, steal, and sleep under bridges to live.
I say this with a mind toward a fairly long history of progressives attempting to use law for human betterment, an enterprise about which I often find myself deeply conflicted. I of course respect the humanitarian impulses of people who seek to improve society and the lives of our fellow human beings. I wrote about Crystal Eastman a little in my book, a socialist and social scientist and attorney who worked very hard to try to improve the lives of workers who were injured as a result of workplace injuries and to improve the lives of the families of workers who died. Her efforts led her to work for the passage of compensation laws. I don’t think Eastman particularly succeeded, unfortunately, which I find tragic for many reasons. Among other things, I think workers’ compensation laws helped depoliticize harms to working class people, despite Eastman’s best and genuinely laudable intentions. I say this because I think part of the way law secures social legitimacy among the well off is by providing opportunities for sincere humanitarians like Eastman to try make some improvements in the world. I also want to stress that I know very well, personally in my own life experience and that of several friends and family members, that the actions of humanitarians advocates and attorneys like Eastman can make a massive difference in the lives of vulnerable people who are in conditions of desperate need. This amounts to providing some palliative care to people who desperately need it. That matters tremendously at a human level and I don’t at all want to minimize that, but palliative care and ending the source of harm are very different enterprises.
What I wonder about and would like to discuss if anyone is so inclined, is if there is any role for legal claims-making in the pursuit of justice that goes being either palliation or defense. How likely are legal institutions and the pursuit of justice through legal institution to politicize - either to politicize the specific forms of institutionalization of capitalist social relations or to politicize those social relations themselves? I am inclined to say generally unlikely to the first and absolutely unlikely to the second, but I am very open to being challenged.
Thanks for reading.