When the first edition of this book was published in 2007 on the eve of the great crisis of capitalism, it was impossible to imagine how much the world would change over the following decade. In this crisis of the economy, hegemony, politics, gender relations and ecology, the historical formation of post-Fordism came to an end. Naturally, law – the legal form, as I will argue – also entered into crisis. The dialectics of democracy and capitalism, as developed by Marx in his essay The Eighteenth Brumaire of Louis Napoleon, unfolded with destructive momentum. The legal and democratic achievements of social struggles are eroding and authoritarian state formations are on the rise world-wide. Executive power is able to free itself from its legal enclosures.
This book was thus written in another era; at a time when I could pursue calmly for five years the question of how the law of those societies in which the capitalist mode of production prevails, presents itself as a system. How can its contradictory basic structure – that it constitutes at the same time a technology of power and a deferral of this very power – be understood? How can the limited emancipatory potential of the legal form be explained?
Today, after ten years of capitalist dystopia, the answers that I believe myself to have found have to meet new challenges: the law at the limits – in the double meaning of the territorial borders of the global North and at the boundaries of the legal form itself.
For the English edition one chapter of the original manuscript has been omitted. This chapter consisted of an empirical investigation into the case law of European fundamental rights, the purpose of which was to empirically deepen the analytical results. This investigation would have required a substantial update, something which the hectic pace of academic practice leaves me no time for. Above all, however, such a study is not necessary for the theoretical reconstruction of a materialist legal theory.
Most of all I want to thank two people: Loren Balhorn of Historical Materialism, who succeeded after ten years in setting everything in motion to finally realise the planned translation project. I also have to thank Monika Vykoukal, and not only for the meticulous translation of the book. In fact together with Marietta Thien of Velbrück Wissenschaft, she made sure that the German version (published by Velbrück Wissenschaft in 2007) was submitted to the translation funding programme Geisteswissenschaft International for German works in the humanities and social sciences, a joint initiative of the Fritz Thyssen Foundation, the German Federal Foreign Office, the collecting society VG WORT, and the Börsenverein des Deutschen Buchhandels (the German Publishers and Booksellers Association). I am grateful to this funding body for financing the translation of this book. Finally I would like to thank Danny Hayward from the Historical Materialism Book Series for carefully reading the text and Jennifer Obdam from Brill Publishing for her friendly support.
S.B.
Frankfurt am Main, December 2019