In Praise of Humble Social Theory

Guest Blogger

For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism. 

Paul Gowder

I have a slightly embarrassing confession: I’ve always been skeptical of Big Social Theory (BST)—or, to be more accurate, ambitious Big Social Theory (aBST). It has always seemed to me that one of the major problems with the academic left is its attraction to huge theoretical edifices like historical materialism that purport to explain everything (no matter how implausible such a creature might seem a priori).

While that might sound like a prelude to a complaint about Law and Historical Materialism, it’s actually praise: Jeremy Kessler’s careful case for the superiority of historical materialism over CLS seems to me like an excellent (if somewhat implicit) demonstration of a sensible role for BST, both in the law and outside of it, but only so long as it is kept humble rather than ambitious.

First, let me explain my baseline skepticism about aBST. In order to do so, I’ll first have to fix some terms. Let’s say that a big social theory is one that aims to influence scholarship about about the entire social world, or substantial parts of it (like, say, the relationship between legal systems and systems-level economic development). Such social theories are big, in the terminology that I’m arbitrarily adopting here, insofar as they purport to say something broadly applicable (or decontextualized) about high-level social phenomena—where, for example, they purport to make claims about the indeterminacy of law in general or the relationship between law and stages of economic development without regard to particularities of time and space. (It should be obvious that bigness here is a continuum, not a binary, and, alas, I can’t define the specific degree of bigness at which my baseline skepticism kicks in.)

We can contrast that with a small social theory, which makes claims that are about relatively narrow domains of the social world—for example, about specific societies, specific time periods, or smaller social phenomena (like, say, how supreme courts work rather than how law works). A passage from Kessler’s article perfectly illustrates the contrast: a big social theory “would seek to explain why and how the material and mental structure of reality brings about the emergence of ideological stability and dominant legal tendencies” whereas a small social theory would do what he attributes to our host and to Roberto Unger in that same paragraph, “moving away from efforts to describe the causal structure of social reality and toward more local interventions at the level of legal and political institutions.”

Whether big or small, social theory can be ambitious or humble. I will say an ambitious social theory posits exclusive truth claims—if an ambitious historical materialist says, for example, that legal change follows the development of productive forces, they mean that explanations that don’t involve the development of productive forces are wrong. Ambitious social theories can also be prone to reductionism—an ambitious Marxist might not deny some alternative explanation for some legal change, but insist that it can and ought to be reduced to the productive forces (I’ll give an example of how this might go toward the end of this post).

By contrast, a humble social theory is more like a lens for inquiry, telling those who practice it, “hey, when you’re looking for explanatory variables to understand social phenomena, here’s some stuff you ought to look at. Political scientists have a number of hBSTs in this sense—rational choice theory, for example, counsels its practitioners to attend to explanations for social phenomena that involve individuals rationally pursuing their own interests; historical institutionalism is a hBST that says, essentially, “remember to pay attention to how the legacies of the past influence the present.” Both of those theoretical frameworks are big in my sense because they purport to give advice to scholars studying all kinds of political phenomena across time and space, but they’re humble because they don’t entail the proposition that any particular political phenomenon has to be a result of, respectively, rational choices or the influence of the past. They’re open to other explanatory stories outside their ambits.

So here’s my first claim: ambitious big social theories don’t work. They inevitably fall prey to a kind of scylla and charybdis between excessive abstraction, to the point that they don’t say anything, or excessive specificity such that they generate implausible implications everywhere outside their core cases. In the first instance, an aBST becomes vulnerable to the classic Popperian critique of, well, historical materialism (viz., “wait a minute, this stuff has no empirical implications, how on earth are we to know whether to believe it or not?”). In the second, it just gets disproven. And this is true just because in the face of the vast complexity in our social institutions, there may be no nontrivial true claims about how social institutions work that span time, space, and social context—or if there are, we haven’t discovered them yet.

For that reason, aBSTs tend to fall to one of three terrible fates. They might get reduced to triviality—this is the Popperian objection, generalized a bit. They might get eaten by counterexamples. Or, for those aBSTs that remain a going concern, they might produce thousands and thousands of pages of increasingly complex and self-referential theory generating endless refinements in attempt to avoid the other two fates—but with the consequence that they become increasingly removed from actual social reality, increasingly incomprehensible except to devotees, and vulnerable to the critique that they’re internally contradictory, because if you pile enough ideas on top of a theoretical framework you’ll inevitably start contradicting yourself. (Examples of going-concern aBSTs that have tendencies in this direction include not just the ambitious versions of Marxism, but also the Unger framework that Moyn defends and Kessler criticizes, and even, alas, major parts of the corpus of Jürgen Habermas, my personal favorite big social theorist.)

It struck me, in reading Law and Historical Materialism, that Kessler was really defending a humble, not an ambitious, version of historical materialism. As he presents them, the distinction between CLS (especially in versions like Moyn’s) and HM is essentially that the former is too wedded to methodological intentionalism, and hence flails about helplessly when confronted with the material influences on human choicemaking. The role of HM, then, is to say “hey wait a minute—are you sure that the explanation you just gave involving some legal actor making a decision to do the thing really captures the full story about the situation? Was that decision conditioned by some background conditions… perhaps even (quelle horreur!) by the actor’s economic role?”

The humble character of Kessler’s version of HM seems to me to be at least in part a consequence of his endorsement of Jerry Cohen’s analysis of functional explanation. Functional explanations tend to be non-exclusive—with respect to any instance of some observation of P allegedly caused by some F which it serves, the functional explanation will often be agnostic about how P actually came about. Thus, the most famous and well supported instance of functional explanation, namely biological evolution, works on explananda that arise randomly.

Moreover, it might be that different instances of P in different contexts can still be caused by instances of F even though they work through different mechanisms—it might be, for example, that the same legal institution in two different countries is attributable to the fact that both countries are at the same stage in the development of the forces of production. This might be true even though in one country that legal institution was implemented by an enlightened dictator who understood and sought to harmonize with the underlying economics. And it might be the case that in the other country that institution was the result of revolutionary mass action demanded by the people (who made such a demand because it was useful to them in benefiting from their position in the relations of production). Nonetheless, the same functional historical materialist explanation could cover both cases. Consider as a real-world example the principles of equal protection of the laws in the Fourteenth Amendment and in Catherine the Great’s Nakaz—I take it that a Marxist could say that both were consequences of the capitalist representation of people as interchangable exchangers of goods (or something like that—I’m not enough of a Marxist to have a clear idea, as much as I love to read stuff like the Cohen-Elster debates) even though they were put into place for very different reasons by very different kinds of agents.

All of this suggests that functional explanations will typically be compatible with other explanations for the same phenomenon, such as in terms of their mechanism. For example, we can explain an observed biological trait both in terms of its function in the fitness of the organism and in term of the specific conditions (e.g. genetic) that give rise to it.

Sometimes Kessler is tempted by constructions like “determined by” which seem to exclude other kinds of explanation. For example, toward the end of his article, he says that his version of historical materialism “assumes that law is ultimately determined not by legal and political actors but by their social and physical environment.” However, he frequently—most notably in his critique of “vulgar Marxism”—emphasizes the relative openness of his account of historical materialism to other kind of explanation. For example, consider the following excellent passage:

The MHMAL is additionally, although more loosely, committed to the more specific claim that the form that legal relations take in mature capitalist societies is explicable in terms of the form of commodity exchange and its universalization in those societies. “More loosely” because the precise functional relationship between any particular social relation and the relations of production at a given time and place remains an empirical question.

Observe how the quoted passage invites further explanatory development beyond “the relations of production did it” for any legal observation in at least two respects. The second sentence explicitly invites an analyst to fill in the details of how the relations of production did it, with the recognition that there are lots of different ways that the relations of production might do it (a couple pages later he aptly describes this as “the internal organizational logic of each of the social relations”). This is the Cohen point. The first sentence—even more interestingly—implicitly holds open the possible of explanations that don’t involve the relations of production at all. The construction “is explicable in terms of” is very different from, say, “is determined by”—the former seems to me to be non-exclusive, to recognize implicitly that the form that legal relations take might also be explicable by other theoretical frameworks. In his words later on: “the MHMAL counsels the legal scholar to remain open to the potential explanatory value of all aspects of the socio-natural whole.” All that the quoted passage seems to commit Kessler to is the proposition that for any observation of a legal system, there must be an explanation of that observation in terms of the underlying forces of production—not that such an explanation is the only or the best one.

This is precisely the position he ought to take. The utility of a hBST comes out in Kessler’s critique of CLS. Even if a hBST doesn’t insist on the exclusivity of the explanans it offers for any given explanandum, it at least insists that it be given some attention. For that reason a hBST is particularly useful in a critical lens—to ask other scholars, in the case of historical materialism, “hey, wait a minute buddy, have you maybe considered that these outcomes might be affected by the productive forces?” Thus, Kessler observes, quite convincingly, that at least some CLS-inflected LPE scholars ignore the possibility that the effect of political choices in the law might be a “pass-through” for the forces of production. Similarly, CLS-inflected LPE scholars are plausibly charged with ignoring the possibility that nature (even if, as in climate change, conditioned by human action) might occupy a causal role.

On the other hand, an aBST version of historical materialism can flounder when confronted with the same sort of argument that Kessler deployed against Moyn et. al. The vulgar Marxist (not Kessler!) who endorses the aBST version has no good answer when asked why their theory of some legal development ignores some seemingly important non-material explanation for some institution. (The contemporary intellectual world is, alas, full of vulgar Marxists. These days they can be often identified by their insistence that any story about the world—particularly, it seems, any kind of advocacy for racial justice—that doesn’t revolve around class conflict is just a kickback to the “professional-managerial class.” The pages of rags like Jacobin are troublingly full of this sort of stuff.)

I think this matters because we often might have good reasons to choose non-material explanations even for legal phenomena that might also be susceptible to material explanations. Consider a concrete example of a legal change that we might want to explain: how did we get birthright citizenship (as opposed to colonization) in the 14th amendment? There are at least three broad kinds of explanation available, focused, respectively, on the advocacy and moral claims of the freedpeople, the partisan interests of Northern Republicans, and the interests of whites in maintaining a surplus labor population.

The third of those is obviously compatible with (vulgar) historical materialism in a straightforward way. I imagine that a Marxist would pretty easily be able to argue for the second as well (with a standard story about industrialization in the North etc.). But an ambitious/vulgar version of historical materialism would be tempted to rule out the explanation that goes through the agency of freedpeople, probably by reducing it to some kind of story about how it all just comes down to the productive forces after all. For example, our ambitious Marxist might say that the freedpeople could make the kinds of claims of citizenship that they made because they had cognitive access to a particular conception of the citizen dominant in American culture, where that conception in turn was dominant because of its suitability for the system of commodity exchange. (I hereby incorporate by reference my disclaimer from above that I’m not sufficiently deep into the bits of Marxism that weren’t deeply nerdy September Group methodological debates about how social science works—I with some degree of pain refrain here from finding an excuse to blather on about Markov processes—to have any confidence that this is precisely how the reduction would go.)

And that might very well be true! Yet the ambitious historical materialist’s insistence on such reductionism would entail real sacrifices. Given that we have a choice between different degrees of reduction, we have to consult external methodological or normative considerations in order to choose among them. After all, we could in principle just try to reduce all of our social explanations to the laws of physics and biology—we choose not to do so, I take it, because we don’t find that level of explanation useful for any of our practical purposes.

In the given example, there are strong normative reasons to emphasize Black agency in our explanation of the birthright citizenship clause, because—for reasons I have repeatedly given elsewhere, attending to the degree of Black agency in our existing constitutional law has the potential to contribute to liberatory and democratically legitimate doctrine. That methodological choice is open to the practitioner of humble historical materialism, but not to the ambitious. (And if you’re skeptical about the notion that normative considerations have any right to impinge on seemingly non-normative analytical projects like the historical explanation of social phenomena, permit me to simply gesture broadly to Sally Haslanger’s notion of ameliorative analysis, or to large swathes of feminist philosophy of science.)

For those reasons, I think that Jeremy Kessler has offered a fantastic defense of the sorts of explanations of legal institutions and outcomes characteristic of historical materialism—but only as one important option in a pluralistic and decidedly non-vulgar methodological menu.

Paul Gowder is professor of law at Northwestern University. You can reach him by e-mail at paul.gowder@law.northwestern.edu.