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 11th
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 2nd
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
Eva Nanopoulos is Senior Lecturer in Law at Queen Mary University of London. You can reach her by e-mail at e.nanopoulos@qmul.ac.uk.
[1] Emblematic
is the number of recent handbooks on Marxism. See for example, Alberto Toscano,
Sara R. Farris, and Svenja Bromberg (eds) The Sage Handbook of Marxism
(2022, SAGE); Paul O’Connell and Umut Özsu (eds) Handbook on Marxism and
Law (Edward Elgar, 2021); Alex Callinicos, Stathis Kouvelakis and Lucia
Pradella(eds) Routledge Handbook of Marxism and Post-Marxism (Routledge
2021); Musto, Marcello, The Marx Revival: Key Concepts and New
Interpretations (CUP 2020); Matt Vidal, Tony Smith, Tomás Rotta and Paul
Prew (eds) The Oxford Handbook of Karl Marx (OUP 2018).
[2] For my
own preliminary attempt see: Eva Nanopoulos, ‘The Material Constitution and
Imperialism’ in M Goldoni and M Wilkinson (eds) Cambridge Handbook on the
Material Constitution (CUP, 2023).
[3] James
Thuo Gathii, ‘Writing Race and Identity in a Global Context: What CRT and TWAIL
Can Learn From Each Other’ (2021) 67 U.C.L.A. Law Review 1610.
[4] On race see Robert Knox, ‘Valuing
Race? Stretched Marxism and the Logic of Imperialism’ (2016) 4 London Review
of International Law 8. On gender see Ruth Fletcher, ‘Legal Form,
Commodities and Reproduction: Reading Pashukanis’ in Maria Drakopoulou (ed) Feminist
Encounters with Legal Philosophy (Routledge 2013).
[5] See Paul
O’Connell, ‘The Poetry of the Future: Law, Marxism, and Social Change’ in
O’Connell and Özsu, Research Handbook on Law
and Marxism
[6] For
readers interested in Marx’s theory of revolution see the four volumes by Hal Draper, Karl
Marx's Theory of Revolution all published by the Monthly Review Press.
[7] Jeremy
Kessler, ‘Law and Historical Materialism’ (2024) 74 Duke Law Journal available
at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4745408>
10-11.
[8] On
which see Robert Knox, ‘Strategy and Tactics’ (2010) 21 Finnish Yearbook of
International Law 193.
[9]
Kessler, 13.
[10] Søren Mau,
Mute Compulsion: A Marxist Theory of the Economic Power of Capital (Verso,
2023) 107.
[11] Ludovico
Silva, Marx’s Literary Style (Verso
2023).
[12] Nate
Holdren and Eric Tucker, ‘Marxist Theories of Law Past and Present: A
Meditation Occasioned by the 25th Anniversary of Law, Labor, and Ideology’ (2020-21)
45 Law & Social Inquiry1142.
[13] In
doing so, Kessler in fact follows in the steps, rather than marks a break from,
CLS. See Robert Hunter, ‘Critical Legal Studies and Marx’s Critique: A
Reappraisal’ (2021) 31 Yale Journal of Law and the Humanities 389.
[14] Mau, 109.
[15] Evgeny
Pashukanis, Law and Marxism: A General Theory (Ink Links 1978).
[16] Kessler,10-11.
[17] ibid
13.
[18] See for
an overview Marcus Roberts, 'Analytical Marxism – an Ex-Paradigm?: The Odyssey
of G.A. Cohen’ (1997) 82 Radical Philosophy 17 and Analytical
Marxism: A Critique (Verso 1996).
[19] Corinne Blalock, ‘Introduction: Law and the Critique of Capitalism’ (2021) 121 The South Atlantic Quarterly 223.