Some Notes on Historical Materialism, Naturalism and Legal Theory, Part I

Guest Blogger

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

Brian Leiter

I very much appreciate Jeremy Kessler’s careful and well-informed exposition of “Law and Historical Materialism,” and I also appreciate his lucid attention to Pashukanis, who may not have been right, but who is worth revisiting as an intellectually serious form of genuinely left legal theory (see esp. 12-14 of Kessler’s essay for an excellent set of questions that Pashukanis’s analysis invites).  In this first post, I will focus primarily on some technical details about Professor Kessler’s understanding of historical materialism (hereafter HM), and functional explanation in particular.  In a second post, I will discuss his treatment of naturalism, which seems to me more problematic.   I will also say a bit in that second post about Kessler’s framing of his project in relation to Critical Legal Studies and other “left-leaning legal thought” as he calls it.

Kessler’s analysis of HM relies quite heavily on G.A. Cohen’s seminal 1978 account in terms of functional explanation (i.e., the distribution of property rights in a society is explained functionally by its contribution to the development of the productive forces).  Philosophically, functional explanations are peculiar, because the thing to be explained (the explanandum) is prior in time to the explanans (the thing that explains it):  e.g., that cheetahs run fast (the explanandum) is, in evolutionary theory, explained by the fact that doing so fulfills the function of allowing them to survive and then reproduce successfully.   Surviving and reproducing, however, occur after cheetahs are able to run fast.  Ordinary causal explanations involve an explanandum that comes temporally after the explanans:  e.g., the window broke because the brick was thrown through it (the brick caused the window to break).  How can something that comes after “explain” something that came before, as functional explanation would have it?

In my recent book with Jaime Edwards on Marx, we endorse a common view in philosophy of science, namely that a credible functional explanation must really be a shorthand gloss on ordinary, causal explanation, one which respects the temporal priority of explanans over explanandum.  Such explanations can, of course, be complex.   “Cheetahs run fast because doing so fulfills the function of promoting reproductive success” is really shorthand for a more complicated set of causal relations that are central to evolution by natural selection.  Early proto-cheetahs--ancestors of the current ones, as it were-- had differing genes, which produced different phenotypic (i.e., physically observable) traits.  Some of these proto-cheetahs had, by chance, genes conductive to running fast (the phenotype), and some did not.  In the ancestral environment, being able to run fast turned out to be a big advantage, in terms of avoiding predators and catching food.  As a result, the fast-running proto-cheetahs (unlike their slower-running brethren) lived longer and had more offspring that they could feed, and most of those offspring, in turn, had the genes conducive to developing the phenotypic trait of being able to run fast. 

Notice that this much more complicated causal explanation—genes conductive to fast-running enabled their bearers to have more offspring, most of whom have the same gene—is a causal explanation that preserves the temporal priority of explanans to explanandum.   Having a gene conducive to the phenotypic trait of running fast is prior to surviving and reproducing.  But—and this is the crucial bit--the reason that gene becomes predominant in a population of cheetahs is the function it performs:  contributing (causally) to survival and reproduction.  

The same thing is true of Marx’s actual explanation of historical change:  there is a causal mechanism underlying the functional explanations, what Marx usually calls “class struggle.”  Marx’s texts, themselves, make this clear.  Indeed, it is striking that the functionalist account from the 1859 Preface to A Critique of Political Economy (on which Cohen has to rely very heavily) is not articulated with the same theoretical clarity elsewhere:  there are some hints of it in The German Ideology of 1845-46, but it appears to be replaced by the “history is the history of class struggle” slogan of The Communist Manifesto, written in 1848.   Part I of The Communist Manifesto famously begins:  “The history of all hitherto existing society is the history of class struggles.  Freeman and slave, patrician and plebian, lord and serf, guild-master and journeyman, in a word, oppressor and oppressed, stood in constant opposition to one another, carried on an uninterrupted, now hidden, now open fight, a fight that each time ended, either in a revolutionary reconstitution of society at large, or in the common ruin of the contending classes” (MECW 6: 482).  Marx’s own practice of explaining historical events (e.g., The Eighteenth Brumaire of Louis Bonaparte) is also far closer to the “class struggle” version of historical explanation than to the functionalism of the 1859 Preface. 

The 1859 Preface, then, is the functionalist shorthand or gloss on the more elaborate causal theory of historical change which appeals to class struggle.  Cheetahs run fast because doing so enables them to survive and reproduce:  that is the functionalist gloss on the evolution of fast-running cheetahs.  The real, underlying causal mechanism, as we have seen, appeals to the fact that early proto-cheetahs with genes that disposed them to running fast fared much better in terms of surviving and reproducing, with the effect that those genes became predominant in the population of cheetahs over evolutionary time. 

So too with HM:   the relations of production and ideological superstructure of a society are explained by their fulfilling the function of developing the forces of production in that society, and historical change occurs when the existing relations of production and ideologies cease to fulfill that function.  There is, however, an underlying causal mechanism here, namely, class struggle.  While the functionalist says, “Relations of production X are explained by the contribution they make to the use and development of forces of production Y,” the causal theory of HM says,

Because they make effective use of forces of production Y, members of Class A flourish and dominate; but when technological developments make more advanced forces of production Y* possible, and Class A fails to make use of Y*, then Class A’s competitors in Class B, who can make effective use of Y*, struggle with Class A and ultimately triumph. 

If I may be permitted, a bit of obviously potted history:  the nascent bourgeois class of capitalist society sees the productive potential of the new industrial technologies (e.g., the power loom), but realizes that to exploit that productive power, it must have the legal right to purchase the labor power of other people--people, who, under existing relations of productions, may be serfs, peasants, or journeyman beholden to trade guilds.  Thus the bourgeois class must “struggle” to change the existing relations of production so it can take advantage of the new technology and its productive power.

Kessler acknowledges this concern about the priority of causal explanation in terms of class struggle, observing (correctly) that on this account “the development of the productive forces is [still] essential to explaining the origin and outcome of class struggle” (6 n. 18).   He worries, however, that, “Historical materialism has never achieved consensus on…a complete causal theory, for all the reasons that causal explanations of social phenomena are harder to specify than causal explanations of natural phenomena” (8).   The questions for his account, however, are:  (1) is there more consensus on the “complete” functional explanation? and (2) how much dissensus is there from the view that conflict between different classes is at the root of historical changes?  I would welcome answers that draw on Professor Kessler’s historical expertise.

Kessler acknowledges that the preceding account of functional explanation as a gloss on causal explanation represents a “friendly amendment” (6 n. 18) to his “minimal” account of HM.  I think it is more than that, one that actually improves his case.  For example, the obvious reason that “law at times seem to be out of joint with its social and economic context, sometimes even working to destabilize rather than entrench prevailing social and economic hierarchies” (24) is that law is a site on which classes compete for dominance (precisely because law under capitalism is constitutive of relations of production, a point to which I return, below).  This is why, as Kessler says, “legal relations are habitually laggard” (25):     the dominant class has established “legal relations” conducive to its rule, while ascendant classes who can make better use of available productive power struggle to unsettle precisely those legal relations.  A major advantage of the class struggle version of HM is that it directs our attention to the crucial fact:  what are the classes at any given time, and how are they competing with each other?  That also allows us to avoid appeal, as Kessler surprisingly does in explaining the lag, to “cultural and other peculiarities of a given society” (26), whose status in a materialist account is mysterious. 

The emphasis on classes in competition, including through the law, is compatible with the quite important point Kessler makes, namely, that “legal and political decisions function primarily as pass-throughs for non-intentional regularities” (37).   Classes seeking economic advantage need not realize the large-scale effects of their motives, or how they contribute to the growth of productive power and ultimately the transformation of economic orders. 

 Let me conclude this first post with some quibbles about Kessler’s account of HM--quibbles that may not matter in the end, but I’m not wholly certain.  

 First, human labor power is not the most important force of production, unless you treat the outputs of mental labor power as part of the former--as Kessler [e.g., 16] and others do.  This is, however, misleading.  The development of technology is the crucial fact for HM, because it is technology that increases productive power.  Yes, technology results from human mental labor, but what matters is that the technology is actually utilized to increase productive output:   the technology is different than the brain power that conceives it.

Second, I find it odd to characterize the superstructure as a matter of “social relations” (9), as Kessler does, rather than as ideology.  It is ideologies—ideas that are both false and in the interest of the ruling class--that are to be explained in terms of their function of sustaining the relations of production:  the ideas themselves are not relations.  It is true that some of these ideas, like the legal ones, can be constitutive of the relations of production, but that is not what Marx targets when he attacks law as an ideology:  he attacks rather legal ideas (think, e.g., “equality under law”), just as he targets religious, moral and economic ideas and theories.

Third, Kessler is correct that Cohen’s version of HM involves an assumption about human nature, i.e., that human beings are always striving to increase productive power (51).  This assumption is not needed, however, as the analogy with evolution illustrates.  For natural selection to work, there must be random genetic mutations that produce changes in the phenotypic features of organisms, features that then affect reproductive success (e.g., making proto-cheetahs run faster).   Darwinian theory does not explain why genetic mutations occur, but it does explain what happens when certain mutations affecting phenotypic features occur:  those that are conducive to reproductive advantage come to dominate in a population. So, too, Marx may not be entitled to assume (if he did) that productive forces always grow everywhere and at all times; but when technological innovations occur that enhance productive power (the analogue of genetic mutations in the Darwin case), Marx’s theory of historical materialism offers an explanation of how the relations of production and ideological superstructure will change (they will change to accommodate and support the exploitation of those productive forces), and those changes will predominate in the population affected by the technological advance. 

 Brian Leiter is Karl N. Llewellyn Professor of Jurisprudence and Director of the Center for Law, Philosophy & Human Values at the University of Chicago.  He can be reached at bleiter@uchicago.edu