The Minimalism of the Minimalist Historical Materialist Approach to Law (MHMAL): A (Puzzled) Marxist View

Guest Blogger

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

Eva Nanopoulos

For all the baggage that the label carries, I would today self-identify as a Marxist. I was therefore very excited to be approached to contribute to a symposium on Kessler’s ‘Law and Historical Materialism’, given that historical materialism is usually understood to refer to Marx’s theory of historical change, even though he himself did not use the term.  As I was reading, however, rather than finding myself in familiar terrain, I began to feel a little puzzled. My puzzlement stemmed from three dimensions of Kessler’s intervention: a geographical one – Kessler is intervening in what is essentially a US debate; a political one – Kessler is writing for ‘left-leaning legal scholars’; and a theorical one – Kessler is seeking to develop what he calls a ‘minimalist historical materialist approach to law’ (MHMAL) as the best way forward for the left as against Critical Legal Studies (CLS).

My reaction may have had some roots in my personal experience: I am based in the UK; I first encountered Marxism through my political engagement – my investment in developing Marxist critiques of law and Marxist legal theory came later, as one of the contributions I could hope to make to the wider Marxist project as a legal academic; and by the Marxist project I understood not only the principles of historical materialism as a theory of history, but Marx’s critique of political economy (i.e. of capitalism) and his revolutionary project.

But they relate to and reveal several deeper problems about MHMAL. Each of these dimensions of MHMAL correspond to three types of minimalism – geographical, political and theoretical from which, I argue, MHMAL suffers. I cannot elaborate on those in detail in an informal blog post such as this. But I aim to show that, from a Marxist perspective, MHMAL’s minimalism not only casts doubt about its characterisation as historical materialist, but also as the best way forward for the development of a radical legal theory on its own terms.

Geographical Minimalism: Theory without the Context

A first problem with MHMAL is its geographical minimalism. This minimalism has two dimensions, internal and external. First, MHMAL is geographically limited internally because it is developed out of concerns and debates that are specific to US legal academia: it is a US product by a US manufacturer for US consumption. There are sporadic references to Marxist scholars based outside the US or to wider debates within Marxist legal theory, or Marxist theory more broadly. But reading Kessler, one would hardly know of the amount of very rich historical materialist scholarship available both within and beyond the US[1] (and indeed of the journal of the same name with annual conferences in London that include panels on Marxism and Law).

Internal minimalism is problematic not only because of the theoretical eclecticism to which it inevitably leads, but also because, from a Marxist perspective, a historical materialist approach to law is necessarily a collective global project about the place of law in capitalist society as a global social totality, however varied its concrete manifestations may be across time and space. A Marxist theory of law is not a theory that can be constructed solely from within the specific locality of the theorist, but one that must be developed out of the constitutive characteristics of the capitalist mode of production – what are sometimes called the ‘natural laws of capitalist production’ or the ‘laws of motion of capital’.  This method of rising from the abstract to the concrete is central to Marx’s method, who sees it as the only ‘way in which thought appropriates the concrete, reproduces it as the concrete in the mind’. Thus, for Marx, material reality, say specific legal regimes or branches of law for example, is the condensation of many concrete determinations. Only through a process of abstraction can we embark upon the task of (re)apprehending and seeking to comprehend that reality, for example, why and how the law produces and entrenches inequalities.

Second, MHMAL is geographically limited externally in that it contains very little engagement with the wider global context in which law operates and, critically, as a result, with the question of imperialism. Capitalism is not a territorially contained regime, but a global system of social organisation dominated by the law of value with inherent tendencies towards expansionism, uneven development, imperial domination and inter-imperial geopolitical rivalries. As such, a historical materialist perspective would need to analyse and theorise law as part of those structures. The need to stretch the spatial coordinates of legal theorising beyond domestic law is even more important in the US context where imperialism has been/is critical to both the genesis and contemporary role of the US, where US domestic law has been directly mobilised in the pursuit of imperial ventures (through for example its extra-territorial effects), and where  imperialism is so entangled in ‘internal’ manifestations of oppression such as racism. Admittedly, imperialism has for a long time been a category that has been mostly relevant to critical international lawyers, particularly TWAIL (Third World Approaches to International Law) scholars and Marxist scholars. But the distinction between domestic law and international law is itself a product of bourgeois ideology and there have been various attempts to overcome it both within the Marxist tradition[2] and in the form of calls for greater interaction between critical race theory and TWAIL.[3] By contrast, to the extent that Kessler engages with questions that are relevant to imperialism such as race and racism, he is primarily concerned to pre-empt concerns that MHMAL’s naturalistic premises may lead to racism. Nowhere does he analyse whether and how MHMAL might seek to explain and overcome racism (and indeed gender oppression), even though this has been a crucial aspect of recent Marxist legal theorising.[4]

Political Minimalism: Theory without the Praxis

Over the last two decades, Marxism, including the work of Marx, has witnessed a remarkable revival. In Europe, where I am based, the context included the Iraq war, the 2008 global financial crisis, its European manifestation in the form of the Euro-Crisis, the debt crisis of the European periphery, rampant austerity across Europe, the re-emergence (and fall) of the organised left as a real political force in several countries, and, in the case of Syriza in Greece, its election to governmental power, the increasingly neo-colonial and authoritarian character of the EU’s responses to those events, Brexit, the resurgence of the far right, the pandemic, wars, etc. In that context, various people, including but not limited to academic lawyers, turned to Marxism both to explain these phenomena, which were viewed as part of a crisis of global capital, and to inform the concrete questions of strategy and tactics that this crisis raised, including from a legal perspective.

Indeed, Marx not only left us with the most elaborate theory of capitalism (i.e. of the social reality) but his entire body of work was premised on the intimate connection, indeed unity, between theory and praxis.[5] That unity has at least two dimensions. On the one hand, theory is designed to inform practice: as per Marx’s 11^th thesis on Feuerbach Marx, the point of theory is not merely to interpret but to change the world. On the other hand, theory is informed by practice. As per the 2^nd thesis on Feuerbach: ‘the question whether objective truth can be attributed to human thinking is not a question of theory but is a practical question. Man must prove the truth — i.e. the reality and power, the this-sidedness of his thinking in practice. The dispute over the reality or non-reality of thinking that is isolated from practice is a purely scholastic question.’

Marx’s own intellectual production reflected this unity. Marx’s writings include detailed analyses of political events, which fed directly into his theory. Indeed, the Paris Commune of 1871 marked a radical shift in his thinking about politics, the state and, indirectly, law. One of Marx’s first texts to sketch the principles of historical materialism was none other than the Communist Manifesto, a political pamphlet commissioned by the Communist League and addressed to the workers of the world. Even his most abstract theoretical contribution, Capital, is a political work in the double sense that it was both aimed to inform political practice and based many of its findings on analyses of concrete struggles, including legal struggles.

That unity reflects the broader aim of historical materialism, namely human emancipation, understood not as a lofty idea but as a material reality, a classless society (communism) free from racial, gendered and other forms of oppression and domination.[6] Indeed, Marx himself was very critical of so-called ‘utopian socialism’ i.e., efforts to lay out normative prescriptions concerning the future communist society In that sense historical materialism is not only a theory of history or a method of analysis, but a theory of revolution i.e., a theory designed to reveal the possibilities of and to enable revolutionary praxis. Theory, Marx writes, ‘becomes a material force as soon as it has gripped the masses.’

When compared to the historical materialist position, MHMAL’s political minimalism manifests in at least two ways. First, MHMAL is developed largely in isolation from political concerns. The problem is not only that it primarily targets an academic audience, rather than social movements, let alone the revolutionary left, to which the work of a historical materialist might typically be addressed, even though one might have expected at least some references to these given the intensification of anti-racist, anti-imperial and labour struggles in the US, including in US universities and on US campuses (indeed, Columbia, his own law school, has been subject to an academic boycott for its stance towards Palestinian activists). Kessler’s purpose may be only to interpret rather than change the law, but giving an adequate account of reality can of course have political value. The problem is who sets the terms of theory (what needs explaining), how those terms are set and to what end.

Kessler does refer to the ‘revival’ of Marxism, or to be exact, of neo-Marxism (whatever he means by this term), alongside other critical theories, as part of the background in which he writes. He also mentions some of the social phenomena that I recognised as the background conditions of that ‘revival’ such as the growing inequalities, the financial crisis, climate change, and the pandemic, and gives some occasional illustrations about how MHMAL could be of use to those seeking to understand them. Yet, this conjuncture and those concerns are not what guide the development of MHMAL. MHMAL is constructed as a response to Moyn’s claim that the left, particularly LPE, lacks a radical theory of law and that they should go back for that purpose to a ‘reconstructed’ CLS. Kessler agrees with the first claim, but disputes the second and offers MHMAL as a better alternative to its ‘rival’. The criteria against which MHMAL and CLS are judged and compared are largely set by Moyn’s original piece and reflect the traditional concerns of CLS, notably functional and interpretative indeterminacy. The substance, structure and vocabulary of the piece at times left me feeling I was confronted with some kind of ‘cost/benefit’ analysis about the pros and cons of MHMAL vis-à-vis CLS rather than a more genuine engagement with their respective ability to help us apprehend and comprehend reality.

Second, to the extent that MHMAL is concerned to further a political project, we are miles away from the material and revolutionary outlook of historical materialism. Beyond his immediate interlocutors, Kessler speaks to ‘left-leaning legal scholars’ which he defines as a group committed to a ‘broadly secular and naturalistic account of reality, including the dependence of mind on body, the dependence of society on human beings, who construct society by making use of their minds and bodies, and the fundamental ontological continuity between humans and the rest of the natural world’.[7] These commitments are not only vague but distinctively normative and idealist. And here too, the concern is not with informing social and political struggles but with proving MHMAL’s advantages in relation to CLS, claiming that it is ‘truer’ to this ‘left’ worldview. 

MHMAL’s political minimalism is linked to its theoretical foundations: other than some references to Marx, it is largely based on the work of G. A. Cohen, one of the ‘founders’ of an analytical ‘Marxism’ that developed in the context of a growing gap between the academy and the organised political left in the 1970s. But it nonetheless raises serious questions about for what and for whom theory exists. Telling, too, is his discussion of some of the objections he thinks one could bring to this approach. There, he is more concerned that MHMAL might be irrelevant for lawyers committed to using the law for progressive ends or for the development of traditional legal scholarship, rather than whether MHMAL could support social actors thinking about whether or how to engage legal tactics.[8]

Theoretical Minimalism: Theory without the Theory

Historical Materialism without Historical Materialism

Finally, MHMAL suffers from at least two types of theoretical minimalism. MHMAL’s vocabulary is certainly built around terms borrowed from historical materialism – ‘productive forces’, ‘relations of production’, ‘social relations’. Yet, it is hardly representative of the historical materialist tradition.

First, MHMAL’s version of historical materialism is incomplete. For example, Engels identifies historical materialism with ‘that view of the course of history which seeks the ultimate cause and the great moving power of all important historic events in the economic development of society, in the changes in the modes of production and exchange, in the consequent division of society into distinct classes, and in the struggles of these classes against one another.’ Those last two elements – class divisions and class struggle – are entirely missing in MHMAL.

Second, Kessler’s interpretation of the principles of historical materialism that do feature prominently in MHMAL is far from uncontroversial. Kessler draws a neat distinction between the ‘productive forces’, the ‘relations of productions’ and ‘other social relations’, such as, crucially, law. Their relationship is then approached as a ‘chain of explanatory dependency’ based on the primacy of the productive base. MHMAL, he writes, is ‘committed both to the explanation of the development of legal relations in terms of the development of the relations of production, and to the explanation of the development of the relations of production in terms of the development of the productive forces.’[9]

These premises, however, are questionable. As Mau points out, for example, after a ‘detailed study of technology in the early 1860s’, Marx changed his view about the primacy of the productive forces which he began to see ‘as a result of the relations of production’.[10] Thus, for example, under capitalism, technological progress is not, pace Kessler, the expression of human creativity alone but of capitalist social relations: competition between capitalists compels them to increase the productivity of labour through technological and other innovations to make profit and hence to survive. Similarly, the mechanistic understanding of the base-superstructure metaphor – and it remains, in Marx, a metaphor[11] – whereupon legal relations are a mere epiphenomenon of the economic base has been largely superseded in the Marxist legal academy, including in the US.[12] And more generally, this kind of neat delimitation between different spheres and causality-based explanatory model goes against a whole body of scholarship that approaches capitalism and its many social forms, including law, as part of a complex, dynamic and contradictory social whole.

That (mis)reading of historical materialism ultimately also undermines some of Kessler’s conclusions, such as MHMAL’s ability to account for legal developments in the sense of changes to the legal content of the law. Kessler explains instances when specific laws do not align with or do not support the development of the productive forces by the ‘laggardness’ of law or by external socio-economic, political or cultural conditions. Had he included (class) conflict in the principles of MHMAL and/or viewed law, politics or culture as different but internally related forms of appearance of capitalist social relations, he could have explained such laws as an expression of the conflicts and multiple determinations and mediations that underwrite the capitalist totality. Indeed, even a limited reading of Marx’s discussion of the Factory Acts in Volume 1 of Capital would illustrate how this plays out concretely. In that sense, disjunctures between the content of law and the productive forces are not ‘anomalies’ but intrinsic to the nature of, and relationship between, law and capital.

Historical Materialism without the Critique of Political Economy

Even more significantly, other than some sporadic references to ‘use value’, ‘exchange value’ or ‘profit’, lacking in MHMAL is any engagement with Marx’s critique of political economy.[13] Bracketing notions like ‘primitive accumulation’, ‘surplus value’, ‘competition’ and more generally the ‘law of value’ means MHMAL lacks the tools to understand capitalism and its multifarious processes of dispossession, destitution, exploitation, domination and destruction. Indeed, the article refers in generic terms to the tendency of law to reproduce ‘prevailing social, economic, and political hierarchies’ without ever offering an account of these hierarchies and how they are produced. But dispensing with a critique of capitalism has also broader consequences for MHMAL’s aspiration to ground a radical legal theory.

Historical materialism could be viewed as a general theory of history or a general historical method. It can therefore, following Kessler, indeed provide some helpful coordinates to guide a general analysis of law. But Marx was also clear that each mode of production has its own ‘laws of motion’ i.e. the ‘essential and historically specific determinations of a mode of production’.[14] An analysis of social reality, including law, therefore requires an understanding of capitalism (i.e. of the critique of political economy) not only of the broad principles of historical development. Historical materialism cannot be severed from the critique of political economy, and a historical materialist approach to law cannot be severed from the critique/theory of law.

MHMAL, however, does not offer such a critique and theory. Kessler engages approvingly with Pashukanis’ commodity theory of law,[15] the first and only theory that has sought to theorise not only the concrete content of the law (which is the product of many determinations and mediations) but the legal form. Pashukanis’ key aim was to understand why, at a specific point in time (under capitalism), social regulation takes on a legal character. His answer was that this was linked to the generalisation of commodity-exchange and hence to capitalism. Law is not a transhistorical but a capitalist phenomenon. Put otherwise, law as a social form is structurally linked to capitalism, and this is indeed what sets limits on the potentiality of substantive legal reform. In that sense, Pashukanis’ theory also implies a distinction between law in the abstract sense of a social form and the concrete content of laws, which indeed will vary across time and space, though always within the limits set by the legal form. To use Kessler’s vocabulary the contingency and indeterminacy of legal content finds its limits in the necessity of the capitalist legal form.

Yet, ultimately Kessler falls short of incorporating Pashukanis’ insights into MHMAL. First, Kessler seems to settle for a transhistorical reading of law. Kessler reads Pashukanis as offering an account of the ‘precise kind of legal relations that capitalist relations of production require – and generate’.[16] But this is not exactly what Pashukanis was after. Pashukanis saw law as a form of social regulation that emerges with and is tied to capitalism as the generalisation of commodity exchange, not as a form of social regulation that pre-existed but was transformed by capitalism. Even if this passage was a purely semantic slip, contrary to Pashukanis, second, MHMAL collapses the question of the form of law from its content, reducing both to mere empirical phenomena. Indeed, in a passage that also makes explicit his ambigious relationship to commodity-theory, Kessler writes:

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. Pashukanis’s hypothesis is nonetheless compelling and has produced empirical and theoretical work at least as illuminating as that produced by alternative hypotheses.[17]

This not only casts doubt on MHMAL’s credentials as a historical materialist account of law that would take its historical specificity seriously, but again also undermines some of Kessler’s key assertions. For example, Kessler’s claim that MHMAL offers a better account of the relationship between law and capitalism than CLS. That may well be, but by failing to commit to a theory of the legal form, it too falls short of offering a theoretical account of that relationship. This failure similarly undermines his claim that MHMAL offers a better indicator of the limits of using the law to achieve progressive change given that, in the last instance, those limits are reduced to mere empirical questions whose answer varies in times and locality. And finally, because of these assumptions, Kessler envisages that both the legal form and the legal content can be subject to change. But if we follow Pashukanis, transcending capitalist social relations necessarily entails transcending the law in what Marxists call the ‘withering away of law’. Here, also, we see the full implications of Marxist legal theory for legal tactics: ultimately, revolution would entail a rupture with, rather than shift in, legal relations.

Part of MHMAL’s problem here is, again, its theoretical eclecticism. As I mentioned earlier, MHMAL is largely built on what has come to be known as analytical Marxism, and to be exact, G. A. Cohen’s Karl Marx's Theory of History: A Defence published in 1978. It would be remarkable enough for any historical materialist theory of law to be developed without real engagement with the work of Marx and the immensely rich and varied Marxist tradition that followed. But as others in this symposium have developed at greater length, the reliance on analytical Marxism is problematic in and of itself. Analytical Marxism has not only been widely criticised by Marxist scholars for, among other things, its ahistorical normative orientation and its resulting disregard of capitalism,[18] but it also itself came largely to dismiss the relevance of Marx’s ideas. It is therefore hardly representative of the Marxist tradition.  

Conclusion: Historical Materialism without the Marxism