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

Guest Blogger

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

Brian Leiter 

         In this second post on Professor Kessler’s “Law and Historical Materialism,” I comment critically on his understanding of naturalism, of the relationship between historical materialism (hereafter HM) and naturalism, and, briefly, on the situating of his project in relation to what he calls “left-leaning legal thought.”

         Kessler begins his discussion of naturalism by claiming that it is an “advantage” of his version of HM that it is consistent “with the naturalistic worldview that undergirds the policy commitments of left-leaning legal scholars” (39).  How is this an advantage?  What “left-leaning legal scholars” think is of no scholarly interest; only what is true or at least justified matters.  That would certainly have been Marx’s view.  I understand Kessler is trying to offer a kind of “internal” argument to appeal to his political allies on the left.  That is fine, but in my view, beneath the intellectual seriousness of his project and a distraction from it.

         So what is naturalism?  We can distinguish two kinds of answers.  Substantive naturalists (S-Naturalists) make a metaphysical claim, namely, that the only stuff that exists is the “natural” stuff.  (What is the “natural” stuff?  Here S-Naturalists usually appeal to existing physical science, and thus start to sound more like the other kind of naturalist.)  Methodological naturalists (M-Naturalists) refer the answers to all metaphysical questions to the scientific methodologies that are most successful at prediction and (in the case of historical sciences, like evolutionary biology) explanation.  For the M-Naturalist, if you want to know what exists, turn to empirical science, not philosophy.  M-Naturalists then seek to emulate successful scientific methodologies, which means some amalgam of (i) drawing on established scientific results; (ii) collecting empirical evidence of their own; (iii) appealing only to well-established causal mechanisms in offering expanations; and (4) engaging in inductive and abductive inferences over the evidence.

         Kessler treats Marx as an S-Naturalist.  According to Kessler, historical materialism’s “naturalism stems from its materialism” (39), which he illustrates with a quote (at 40) from the Italian Marxist Timpanaro:   “By materialism we understand above all acknowledgment of the priority of nature over ‘mind,’ or if you like, of the physical over the socio-economic and cultural level.”  The talk of “priority” is ambiguous, but there is no evidence Marx takes any position on, e.g., the metaphysical relationship between the mental and the physical.  HM assigns explanatory priority to the level of development of technology over other causal forces, but that is actually compatible with many different views on the mind-body problem.

         I cannot defend here the view that Marx is, instead, an M-Naturalist (for such a defense, see Lawrence Dallman’s brilliant dissertation on “Marx’s Naturalism”).  I do think reading Marx as an M-Naturalist is helpful for another purpose:   clearing up some of the confusions about HM and “social construction.”  Kessler worries that “many left-leaning legal scholars might be skeptical of a social theory that uncritically accepts the objectivity of” scientific knowledge, since “the social constructed character of scientific facts is a cherished insight of much left-leaning social thery” (41).  Kessler probably correctly reports a sociological fact about the beliefs of many members of the academy who hold a “left” union card, but, again, I do not know why anyone else should care.  Kessler seems to credit these concerns about “the socially constructed character of the nature world and of knowledge about it” (41), but the entire discussion seems to me to trade on serious confusions that are anathema to Marx.

         Let’s distinguish five senses of social construction: 

(1) Constitutive Social Construction.  Some features of the social or human world are socially constructed in the sense that absent a kind of social consensus this bit of the social/human world would not exist:   money is the paradigm case, since absent a fairly robust social consensus investing greenish pieces of paper with George Washington’s picture with value, the exchange of dollar bills as currency in America would cease.

(2) Practice Social Construction.  Central features of the human world—including law, but also etiquette—would not exist without human beings and their attitudes towards those practices:  they are constructed by human attitudes and practices.  There is overlap here with (1).

(3) Causal Social Construction.  Some things (“artifacts”) only exist because human beings intend to cause them to exist (e.g.,  shoes, airplanes).  We can also put in this category unintended effects of the artifacts (e.g., the climate crisis, an effect of fossil fuel consumption together with facts about atmospheric chemistry).

(4) Category Social Construction.  The concepts and language we use to describe the world depend on human beings:  water can be “water,” or “Wasser” or “eau” but it is still water.  Inflation (i.e., the reduced purchasing power of a currency) is real even before economists developed the concept of the phenomenon.  

(5) Idealist Social Construction.  It could turn out that everything, not just those entities in (1), depends on how human beings think about, talk about, categorize them:  absent that thinking, talking, categorizing, the world would not exist.  We don’t just construct the categories, the categories construct the world, as it is.

         Sometimes Kessler gets this right:  e.g., “there exists a non-human natural world to be known, one that is not wholly constituted by human mediation and communication” (44).  That is really all that needs to be said, and Kessler’s tangent into climate change struck me as peculiar.  From the HM perspective, human contributions to climate change admit of explanation within the materialist framework:  choices about energy sources, where to build, what precautions against disaster to take all operate within an economic context whose defining feature in the U.S. (and many other places) is the allocation of capital in pursuit of profit. 

         One final comment about naturalism.  I was surprised by the supposed “problem[s]” Kessler identifies for naturalism (53-55).   “Scientific” racism collapsed precisely because it was a predictive and explanatory failure, i.e., its methods failed to deliver.  (M-Naturalism is agnostic, contra Kessler [54], on race eliminativism:  it all depends on which explanations are most successful.)  The idea that political activism on behalf of trans rights has any bearing at all on the biology of sex is mysterious.  Intelligent design is not a serious M-Naturalist alternative to evolution by natural selection, and Thomas Nagel’s  incompetent polemic against S-Naturalism (not M-Naturalism) is not a serious challenge.  Law professors sympathetic to HM and naturalism should not worry!

         A final word about “left-leaning” legal thought.  I understand Kessler’s reasons for framing his project in the context of Critical Legal Studies, but I do think serious scholarship would be well-served by forgetting the more jejeune excrescences of the American legal academy, including much of CLS, which has been moribund since the early 1990s.  (Ironically, most of the major CLS-allied scholars [Gordon, Kelman, Tushnet etc.] moved on to do important work unrelated to the weaknesses of CLS over the last thirty years.)   As I explained a quarter century ago,

CLS…revive[d] a certain strategy of left-wing critique that dates back to the Left Young Hegelians of the 1830's in Germany….[who] sought to effect change by demonstrating that the prevailing conservative ideas were inherently contradictory and thus unstable.  To resolve these contradictions, it would be necessary to change our ideas, and thus change the world.  This strand of Hegelianism…was not revived until 1922 when Georg Lukács re-introduced Left Hegelian themes into the Marxist tradition of social critique in History and Class Consciousness, especially in the central chapter on "The Antinomies of Bourgeois Thought."  CLS, however, acquires the style of argument less from Lukács--though he is a favorite figure in the footnotes of CLS articles--than from…CLS "founding father" Roberto Unger, whose 1975 book Knowledge and Politics is quite obviously a replay of the central arguments and themes from Lukács….What is…ironic in this intellectual genealogy…is that CLS should have revived precisely the tradition in left-wing thought that Marx had so viciously lampooned 150 years earlier.

CLS has always had more traction with legal historians than legal philosophers, so in that regard, Kessler may have done an important service for the former in showing how a more orthodox historical materialism is fully adequate to understanding legal phenomena and, indeed, does better than CLS.   

         The other “contemporary” reference point in the legal academy (if not elsewhere) of note is the motley collection of views that are being subsumed under the capacious heading of “Law and Political Economy” (hereafter LPE).  Those trying to found LPE as an intellectual project define it as follows:  “Our work is rooted in the insight that politics and the economy cannot be separated and that both are constructed in essential respects by law.”  Lots of views—from Marxism to public choice theory—accept that politics and the economy cannot be separated, but on the Marxist view (1) economic factors are primary; and (2) law only “constructs” the economy in the limited sense that it constitutes certain relations of production.  Law is otherwise a site of class conflict, it explains nothing independently.   As Kessler rightly says, LPE ignores the “possibility that the economy is the way it is because of forms of human action and interaction…that lie beyond the precincts of legal and political institutions” (37).

         The American legal academy has always been vulnerable to capture by intellectual fads, since its primary “scholarly” outlets are not edited by scholars, many of its faculty lack scholarly expertise adequate to their ambitions, and the incentive structure of the academy rewards faddish innovations, in part due to the rapid pace of publication.   CLS was largely such a fad.  LPE may or may not prove to be the same.  If, in fact, law faculty take seriously and actually develop historical materialist analysis, I will be pleasantly surprised, since doing so is hard and requires real historical expertise and patience.  If that happens, we will have only Professor Kessler to thank.

 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