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