For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism.
Jeremy Kessler
I am indebted to the seven legal scholars who engaged so thoughtfully with Law and Historical Materialism, and to Jack Balkin for hosting a symposium on the article. As the symposium contributions make clear, Marxist legal thought remains a useful tool for studying the causal relationship between law and extra-legal social and natural phenomena. As the symposium contributions also make clear, there exists significant disagreement about the precise content of Marxist legal thought. For that reason, the article does not claim that its “minimal historical materialist account of law” (MHMAL) is a faithful rendering of Marx’s own understanding of law. Nor does the article claim that MHMAL offers a comprehensive overview of past or present Marxist legal thinkers. Instead, the article presents MHMAL as an interpretation of Marxist legal thought, an interpretation that aspires to be relatively simple, usable in legal and historical research, and consistent with other beliefs that left-leaning legal scholars hold about the world. That last criterion has occasioned the greatest pushback, which strikes me as all to the good. Such pushback reveals deep divisions within a scholarly community that might otherwise understand itself as united by the deficiencies of alternative frameworks – whether law and economics, critical legal studies, etc. To air these differences and, in doing so, to dissipate a false sense of intellectual unity, may be the symposium’s most significant, collective contribution.
Notwithstanding the virtues of difference, I will begin with agreement. First, Sam Moyn and Eva Nanopoulos are right to suggest that the ultimate antagonist of MHMAL is not critical legal studies or law and political economy but the mainstream of Western Marxism. I agree with Moyn that CLS and its successors are best understood as offering variations on a set of themes that have dominated Western Marxist thought for the past seventy-five years. The critique of economic determinism, the emphasis on agency and contingency, the suspicion of naturalism – the leitmotifs of CLS and its successors are the leitmotifs of Western Marxism more generally. By presenting MHMAL as a Marxist alternative to CLS and its successors, I was indeed deferring a debate about MHMAL’s heterodoxy in relation to Western Marxist orthodoxy. Moyn and Nanopoulos fairly take me to task for not acknowledging and justifying this heterodoxy. I will try to do so more fully below. For now, I only want to note that while Law and Historical Materialism offers a heterodox interpretation of Marxist legal thought, that interpretation is neither especially US-centric nor entirely alien to the Western Marxist tradition. To the contrary, the article seeks to identify something of a dissenting tradition within and at the boundaries of Western Marxism, a dissenting tradition that places the interplay between human and non-human nature at the foundation of its understanding of law. As none of the contributors fail to note, G.A. Cohen’s semi-repudiated Karl Marx’s Theory of History is a major contributor to this tradition. But so too are a range of works by French, German, Italian, Nigerian, and Russian scholars on whom the article draws.
A second source of agreement was more surprising to me. Most of the symposium contributors agree that strong avowals of the indeterminacy, contingency, and/or autonomy of law are neither consistent with historical materialism, broadly construed, nor especially useful for left-leaning legal thought and practice. Contribution after contribution affirm that the form and content of law is heavily determined by extra-legal social conditions, and, consequently, that law develops in a manner that is heavily determined by developments in those extra-legal social conditions. Whether legal relations should be understood as basal or superstructural, whether law should be understood as a species of ideology or as shaped by ideology, whether law is a terrain on which class struggle occurs or a tool deployed by contending class fractions – these distinctions are not insignificant, but they are secondary to the general sense that law and legal change ought to be explained by reference to extra-legal social phenomena.[1] Such agreement is consistent with Moyn’s intuition that what left-leaning legal scholars need and want is, after all, a social theory of law.
Given all this agreement, where do the deeper divisions lie? All over the place, but I will focus on four sites where disagreement seems to be most intense and sustained. First, should a historical materialist account of law seek to explain the social conditions of law in terms of even more fundamental natural conditions? Several contributors take MHMAL to task for adopting a relatively naïve, naturalistic perspective, in which law and legal development are ultimately attributable to human beings’ relationship to, and struggle with, the non-human world. Second, should a historical materialist account of law admit transhistorical elements into its explanation of law and legal development? Several contributors take MHMAL to task for explaining law and legal development in transhistorical terms – such as relatively innate individual and collective human propensities. Third, what role should class struggle play in a historical materialist account of law? Several contributors take MHMAL to task for underemphasizing class struggle and overemphasizing the development of the productive forces in its explanation of law and legal development. Fourth and finally, what role should ideology play in a historical materialist account of law? Several contributors take MHMAL to task for saying too little about ideology, instead emphasizing other sources of complexity and constraint.
In the remainder of Part I of this Reply, I will try to clarify my understanding of the naturalistic and transhistorical aspects of historical materialist explanation. A second post will take up the role of class struggle in legal development, and the relationship between law and ideology. Throughout both Parts, I will indicate where my understanding of these issues seems to overlap with or diverge from the perspectives of various symposium contributors. With respect to the naturalistic and transhistorical character of MHMAL, there is significant overlap between Brian Leiter’s perspective and my own. Even with respect to the question of class struggle, Leiter and I agree that the outcome of class struggle must ultimately be explained in terms of contending classes’ more or less “effective” use of the productive forces. As for ideology, the MHMAL’s approach lies somewhere between Leiter’s and Matt Dimick’s. It is harder to quantify the relative degrees of overlap and divergence when it comes to the other contributions, although I suspect that my clarifications will be comparatively more acceptable to Moyn, Paul Gowder, and Dimick than to Yochai Benkler, Nanopoulos, and Talha Syed. I will nonetheless suggest that Benkler’s account has at least a bit more in common with MHMAL (and Leiter) than one might think on a first read.
A. Naturalism in Historical
Materialist Explanation
Brian Leiter’s two-part symposium contribution offers several useful corrections to Law and Historical Materialism’s discussion of naturalism. I agree that all that MHMAL needs to be committed to is methodological, as opposed to substantive, naturalism, and that Law and Historical Materialism should have avoided suggesting that Marx himself was a substantive naturalist. Nonetheless, as Leiter’s own reconstruction of Marxist thought demonstrates, a commitment to methodological naturalism has real bite. Methodological (or 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 explanations; and (iv) engaging in inductive and abductive inferences over the evidence.
Many Western Marxists – and, I imagine, many symposium contributors – would find this approach insufficiently critical of the social bases of scientific knowledge. I myself would soften Leiter’s deflationary account of the social construction of scientific knowledge: “Credible scientific theories of nature do not survive unless they are predictively successful, and they are not predictively successful unless they identify the actual causal structure of the world.” The determination that a scientific theory is “predictively successful” is the outcome of a social process.[2] Some scientific theories persist for a long time despite their failure to satisfy a certain metric of predictive (or explanatory) adequacy.[3] Nonetheless, I agree with Leiter that empirical scientific inquiry proceeds from the assumption that there is an “actual causal structure of the world,” and that historical materialism proceeds from the same assumption.
Accordingly, when Law and Historical Materialism talks about “the social construction of nature,” it is indeed referencing what Leiter calls “causal” and “category” social construction and not “idealist” social construction. But it is precisely because a great deal of Western Marxist and contemporary left-leaning legal thought flirts with idealist social construction that I believe it is important both: to defend what Leiter describes as the “trivially true” alternative; and to identify a dissenting tradition within Western Marxism that thoughtfully critiques the idealist temptation.[4] Leiter – and his student Lawrence Dallman – clearly can be counted as members of this dissenting tradition.[5]
So we agree that there is an actual causal structure of the world. We also agree, I think, that the historical materialist account of law should strive for consistency with what empirical scientific inquiry learns about the actual causal structure of the world. What assumptions and hypotheses about that structure does MHMAL make? Leiter suggests that MHMAL should dispense with an assumption about human nature that it inherits from G.A Cohen’s version of historical materialism: “that human beings are always striving to increase productive power.” Instead, MHMAL should follow more carefully the lesson of Darwinian theory. All it needs to assume – or hypothesize – is that “when technological innovations occur that enhance productive power (the analogue of genetic mutations in the Darwin case) . . . the relations of production and ideological superstructure will change . . . to accommodate and support the exploitation of those productive forces [affected by the technological innovations].” “[T]hose changes” to the relations of production and ideological superstructure will, in turn, “predominate in the population affected by the technological advance.”
I am happy to accept this redescription of how MHMAL might explain the relationship between technological and legal change. But I do not think it frees MHMAL – or Leiter’s account of Marx – of certain assumptions about human nature and human society. If one asks why the relations of production and ideological superstructure change to accommodate and support the exploitation of newly productive productive forces, the answer is going to have something to do with the propensity of humans – whether human individuals or human collectives – to favor or to be benefitted by enhanced productivity. I will make a similar argument when it comes to Leiter’s account of class struggle. I do not think Leiter’s account, Marx’s account, or my own can be stripped of a particular set of anthropological assumptions. Such assumptions are the source of much of the criticism that Western Marxists – and left-leaning Anglophone legal scholars – have historically directed at accounts such as Leiter’s and my own.
For instance, neither Leiter nor I would object – I don’t think – to Talha Syed’s argument that the proper focus of “denaturalizing critique” is “to point to the ways that something that is social, and historical, is falsely imputed to asocial, or transhistorical, natural givens.” This form of critique is wholly consistent with Leiter’s worldview and my own. But the question remains what phenomena are truly imputed to asocial, or transhistorical, natural givens. One gets the sense that Syed would accept as true few if any claims about the explanatory power of “asocial, or transhistorical, natural givens.” Yet a historical materialist cannot do without them.[6] Similarly, neither Leiter nor I would object – I don’t think – to Yochai Benkler’s definition of productivity as “the capacity to turn nature into more of what people need and want with a given set of resources and labor,” or his insistence that the “continuous intensification of productivity” is a distinctive feature of the “historically unprecedented dynamics of capitalism,” dynamics ushered in by the generalization of commodity exchange.[7] Yet I also want to understand the extent to which the human “capacity” – and maybe even the human propensity – “to turn nature into more of what people need and want with a given set of resources and labor” contributed to the generalization of commodity exchange that unleashed the unprecedented dynamics of capitalism. To the extent that such capacities and propensities remain essential features of what it means to be human, that socio-physical fact ought to have some bearing on efforts to explain both the persistence of capitalism and potential pathways beyond it.
When I drafted Law and Historical Materialism, I did not have the benefit of the American philosopher Vanessa Wills’s recent book, Marx’s Ethical Vision. Whether or not one agrees that Marx had an ethical vision, or with Wills’s reconstruction of it, the book makes the case for “a historical materialist account of human nature” with exceptional clarity.[8] Wills’s account begins by recognizing that: “Humans are natural beings in the sense that they are biological beings of a certain sort. In particular, they are mammals, with a particular anatomy, particular metabolic processes, and particular history of evolutionary development that has led to their emergence as a distinct biological species.”[9] What makes this species distinct is its propensity to “labor,” which Wills defines as “human beings’ goal-directed intervention into their natural and social environment, an intervention that humans initiate in order to satisfy their needs, and through which they necessarily transform their environment and themselves in the process.”[10] It is the human labor process that creates history; but this very fact entails something transhistorical about human beings, their labor, and what that labor produces.
Before turning to the question of MHMAL’s transhistorical tendencies, I want to acknowledge that both Leiter and Moyn express reasonable discomfort with my suggestion that the only alternative to MHMAL’s naturalism is Thomas Nagel’s critique of the neo-Darwinian synthesis or the advocates of intelligent design. Perhaps that suggestion was rhetorically extravagant. But my rhetorical posture stems from a belief that historical materialists committed to methodological naturalism and the explanatory primacy of the productive forces tend to understate the strength of those commitments. Such commitments certainly allow for interpretations of human freedom distinguishable from divine intervention, and for a variety of solutions to the mind-body problem, but they exclude social theoretic approaches that reject the explanatory primacy of the productive forces or the belief that the world has one, actual causal structure uniquely accessible to empirical scientific inquiry.
B. Transhistorical Aspects of Historical Materialist Explanation
While several contributors raise concerns about MHMAL’s transhistorical aspects, Benkler’s critique is the most thoroughgoing. As the previous discussion of naturalism suggests, my view is that a historical materialist account of law cannot do without at least a few transhistorical assumptions. I have the further intuition that Benkler’s own approach is not bereft of transhistorical assumptions either. If that’s right, then our primary disagreements concern whose transhistorical assumptions are more plausible, and how relevant anyone’s transhistorical assumptions should be when it comes to explaining specific legal developments. Nor may that second disagreement turn out to be all that divisive. Benkler is surely right that his fine-grained explanation of the rise and fall of the Statute of Artificers is preferable, in most respects, to G.A. Cohen’s impressionistic sally, which I should not have used as the sole example of how MHMAL might work in practice. Nonetheless, there are costs to the version of historicism that Benkler commends.
I will begin with some minor caveats about Benkler’s
account of the Statute of Artificers because summarizing that account tees up
our broader disagreements about transhistorical explanation. In addition to his
meticulous research, what enables Benkler so
deftly to balance constraint, complexity, and agency in his account of the
Statute of Artificers of 1563 is the assumption that by the middle of the previous
century, England was a capitalist society. With that assumption in place, the
“institutionally imposed structural dynamics” that we associate with capitalism
– market dependence for both subsistence and production, the “imperative” to pursue “profit on pain of losing your access to the means
of production,” and the resulting political “influence of the profit-reaping
classes” – go a long way to organizing the historical data that Benkler puts at
our disposal. The Statute of Artificers and related legislation embodied “the
competing demands, and lobbying, of major already-powerful capitalist sectors:
urban trade and textile manufacture, on the one hand, and an emerging
agricultural capitalist sector, farming reliant on wage labor in large commodity
farming oriented farms, on the other hand.”
The “social stabilization program” these capitalists put in place in in the
middle of the sixteenth century “survived until the end of the 18th century, when the Smithian government
of William Pitt the Younger led far more liberalizing reforms.” “Not a shred of
feudal remnants in sight; nor of ‘productive forces’ ineluctably forcing their
demise.” In other words, sometime between 1350 and 1550, capitalist social
relations emerged and became dominant, along with the rural and urban
capitalist classes themselves. Then, between 1563 and 1694, when the Statute of
Artificers was partly repealed, “[n]othing important changed.”[11]
Some
of Benkler’s own data, such as the “compression in real income distribution and
rising rural standards of living” between 1650 and 1750, could be read as
cutting against this insistence on a macro-stable – if characteristically
crisis-ridden – social structure. Benkler attributes these economic phenomena
to a combination of the legislative compromise that rural and urban capitalists
brokered in 1563 and “continuous agricultural productivity growth.” Elsewhere,
however, Benkler himself has placed more emphasis on punctuated technological
change – in particular, the transmission to England of new agricultural tools
and techniques by Dutch refugees beginning around 1568, five years after the Statute of
Artificers was enacted.[12]
These imports bear significant responsibility for the “revolutionary productivity
gains” witnessed thereafter.[13]
That is no reason to think that the putatively intra-capitalist legislative
compromise that Benkler emphasizes in his symposium contribution did not also contribute
to productivity gains, just as it took time for new agricultural tools and
techniques to make their mark.[14]
Yet a great deal was changing in the 1600s: in particular, the percentage of
the English population living in large towns and cities more than doubled, and
a second wave of Dutch technological imports further transformed English
society and economy – particularly in the realms of manufacturing and
transportation.[15]
It seems reasonable to hypothesize that these developments might have
contributed to the sort of de facto supersession of mid-sixteenth-century
labor regulation that Cohen had in mind, as well as to the gradual
institutionalization of “Smithian ideology” in the eighteenth century. More
research would be necessary to make good on this alternative hypothesis.
For now, I want to make two more general points – one
empirical, one theoretical – about Benkler’s starting point. That starting
point is capitalism in the saddle. Since we know that capitalism was the law,
so to speak, of the land, it makes sense that the Statute of Artificers was
brokered by the leading capitalists of the day in pursuit of the profits that
capitalist social relations required them to pursue. I have no objection to
reasoning in this way – from macro-historical (if emphatically not transhistorical)
social structure to the explanation of the behavior of social actors and the
legal outcomes that their behavior produced. Nor do I have any doubt that
Benkler has plenty of evidentiary support for his analysis of the social
structure that obtained in 1563 and of the most influential actors within that
structure. Nonetheless, Benkler’s treatment of mid-sixteenth-century England as
a mature capitalist society– “[n]ot a shred of feudal remnants in sight” – is
far from uncontroversial.
Benkler’s chronology roughly tracks that of the historian Robert Brenner, whose “historical-institutional political Marxism” Benkler commends as a subtler alternative to the Marxism on offer from MHMAL and Cohen. Benkler’s own approach is more subtle still, drawing on Veblen, Polanyi, DuBois, Pinchbeck, and a host of others. Furthermore, Benkler’s independent reading of early modern sources and scholarship avoids Brenner’s (and Ellen Meiksins Wood’s) tendency to overstate the role of the English countryside in the emergence of capitalism. Nonetheless, a range of liberal, institutionalist, and Marxist scholars have lodged powerful objections to the identification of a mature capitalist society in fifteenth and sixteenth century England.[16] I emphasize “mature,” because Benkler needs a fully operational capitalist “structure” in place to motivate his story of a durable, intra-capitalist compromise in the early 1560s. I agree with those scholars who cannot locate such a structure in the period when Benkler needs it to exist.[17] What I see instead is an uneven and combined development of capitalist social relations, with those relations gradually achieving dominance over feudal ones between the mid-sixteenth and the mid-eighteenth centuries. The “liberalizing reforms” described by Benkler in the late eighteenth century memorialized that dominance, although they certainly did not cause it.
This empirical disagreement is relevant to our theoretical disagreements concerning transhistorical explanation in the following way. Benkler takes MHMAL to task for adopting “a profoundly, irreducibly transhistorical account of human nature no different from the transhistorical account of Smithian ideology.” More generally, Benkler argues that transhistorical dynamics are not the place to look for constraints on individual or collective human agency in historical explanation. Instead, it is “the historically specific structure of the society and time” that typically prevents an “individual choice” from becoming a “population-level social practice.” What Benkler means by “historically specific structure” is a set of sufficiently entrenched “social relations” or “institutions.” And it is these sufficiently entrenched social relations or institutions that constrain – and explain the constraints on – transformative human decision-making at a particular time and place. In the case of the Statute of Artificers, recall, it is the distinctively capitalist structure of sixteenth century England that ultimately explains the existence of the urban and rural capitalists and why they crafted the legislative compromise that they did.
I have three reservations about such an anti-transhistorical social theory. First, I am not sure it can explain how capitalist “structure” came into being. Second, and relatedly, I am not sure how it deals with the possibility – mooted above – that sixteenth century England featured a mix of capitalist and feudal social relations without an obviously dominant social-structural logic. In the absence of such a dominant logic, from where does the social theory derive constraint and the explanation of constraint? Third, to the extent that such an anti-transhistorical social theory can explain how capitalist structure came into being, I doubt it can do so without resort to transhistorical elements of its own.
With respect to the first two reservations, it might be the case that some pre-existing social structure – such as a feudal social structure, dominated by feudal social relations or institutions – is replaced all at once by a capitalist social structure, dominated by capitalist social relations or institutions. Or it might be the case that capitalist social relations gradually appeared within a society previously constituted exclusively or primarily by feudal social relations, and then gradually, for whatever reason, edged out the previously dominant feudal relations. In either case, we still need to explain the process by which the eventual dominance of capitalist social relations came about. In explaining this process and its outcome, however, we are not able to appeal exclusively to the constraints imposed by feudal or capitalist social structure. This is because the logic of the process by which one structure of social relations ceases to be dominant, and another structure of social relations becomes dominant, is what we are after. Accordingly, I think we need something like a structure of structures – or, rather, a transhistorical structure – that imposes constraints on the transition from one social structure to another.
On Benkler’s account, it seems to be the existence of a society-wide structure – a set of dominant social relations or institutions – that generates the historical field within which non-transhistorical explanation takes place. (Something similar could be said about Syed’s implicit philosophy of history.) If that’s right, then the transition between one society-wide structure and another is a transhistorical process. Class struggle is one obvious candidate for such a transhistorical process – a process in which the classes generated by one society-wide structure come into increasing conflict, a conflict that eventually results in the victorious class’s construction (or at least superintendence) of a new society-wide structure. Class struggle, on this reading, is transhistorical both because it purports to explain the transition from one historically specific social structure to another, and because it purports to explain multiple such transitions.[18] This account is consistent, I think, with Leiter’s description of the causal role of class struggle in historical materialism. It is also consistent, as I will discuss in Part II of this Reply, with MHMAL.[19]
An alternative to class struggle would be a process less focused on conflict between large social groups defined by their position in a historically specific production process and more focused on the gradual adjustment of historically specific social relations or institutions to historically specific social and natural pressures. As certain pressures produce certain institutional adjustments, those adjustments begin to have knock-on effects on other relations or institutions that were not, at first, affected by the initial pressures. Eventually, a new social structure emerges from this concatenation of adjustments. Such an explanatory framework, however, would be just as transhistorical as class struggle. For it purports to explain the transition from one historically specific social structure to another, and it purports to explain multiple such transitions.
To escape the transhistorical regress, I suppose that the anti-transhistorical social theorist could argue that the process which leads from one social structure to another is always and everywhere distinct. There is no transhistorical process to speak of – each social structure generates its own unique mode of disappearance. There are two difficulties with this strategy. First, it does not work for historical cases in which a society features antagonistic sets of social relations or institutions, neither of which is dominant over the other. Earlier, I suggested that sixteenth century England might have been such a society. The truly anti-transhistorical social theorist, however, must deny that any such society could exist. There always must be a dominant set of social relations that explains how all the society’s relations relate to one another, and how the dominant set might someday lose its dominance. The second difficulty is even deeper. The very categories of “structure,” “social relation,” and “institution” are transhistorical in nature. The very claim that “each social structure generates its own unique mode of disappearance” is a transhistorical claim. Any social theory that seeks to explain historical change will have to include transhistorical elements. The questions that remain are: how plausible are the transhistorical elements; and do they do too much explanatory work in the mine-run of historical cases?
Reformulated in this way, I take Benkler’s critique of MHMAL to be grounded in the latter’s use of an implausible account of human nature to do too much historical explanation. For reasons discussed in the previous section on naturalism, I don’t find MHMAL’s account of human nature to be implausible. I do agree that such an account risks flattening historical specificity, and has done so in the past. But the transhistorical alternatives are not without their own risks. For instance, social theories that insist on the existence of dominant sets of social relations in every time and place, and task those relations with explaining their own transformation, tend to flatten historical detail as well. They also tend to lose interest in purely natural constraints on social agency. The trick, in all cases, is to remain fallibilistic about the theory and attentive to the detail. Benkler can undoubtedly be trusted to pull off the trick. Nonetheless, for reasons discussed above and in Part II of this Reply, I think there are advantages to grounding social theory – even and perhaps especially radical social theory – in a more naturalistic framework.[20] Within such a framework, transhistorical human propensities – including propensities that drive the structure and outcomes of class struggle – are particularly useful in explaining historical cases that lack an obviously dominant set of social relations.
As Paul Gowder reminds us, the relevance and adequacy of a social theory is context- and goal-dependent. Both MHMAL and Benkler’s social theory of law – adumbrated over a series of important articles and in a forthcoming book – would, I think, qualify as “big social theories” in Gowder’s sense. Yet Benkler’s approach also possesses certain features of “small social theory,” which Gowder defines as “mak[ing] claims that are about relatively narrow domains of the social world—for example, about specific societies, specific time periods, or smaller social phenomena.” The focus of Benkler’s social theory is “what drives social relations” once the “historically unprecedented dynamics of capitalism” are unleashed. This is no narrow focus! Yet it is, as Benkler says, anchored in a “historically specific dynamic.” The focus of MHMAL is even less delimited. I do think MHMAL provides some useful guardrails when it comes to explaining specific legal developments within mature capitalist societies. But its motivating impulse is to get clear on the more general relationships between law, society, and nature before, during, and – potentially – after capitalism.[21]
Inspired by Gowder’s call for social theories to be “humble” even if they are “big,” I can imagine a research program that favors Benkler’s approach when there is consensus about the relevant social structure guiding legal development, but favors MHMAL when the precise character – or existence – of a dominant set of social relations is in dispute. It is in the latter circumstances that MHMAL’s transhistorical commitments to naturalism and the explanatory primacy of the productive forces become most salient. Part II of this Reply will spell out in greater detail how those commitments shape MHMAL’s understanding of the place of class struggle and ideology in the explanation of legal development.
Jeremy Kessler is Stanley H. Fuld Professor of Law at Columbia Law School. You can reach him by e-mail at jeremy.k.kessler@gmail.com.
[1]
Talha Syed’s bravura contribution raises the deepest objections to this way of
talking. But even Syed’s double-critique of historical materialism and critical
legal studies leaves us with law understood as a system of “social relations”
that are “in no way ‘legally constructed,’ nor simply indeterminately up for
grabs.” Such historically specific social relations possess an “architectural
systematicity” that can only be “targeted” and “transform[ed]” by “social
agency.” The degree of such social agency itself depends on the “lucid[ity]” of
our “social understanding” and the “effectiveness” of our “social practices.”
Even here, law takes a back seat to the social, notwithstanding Syed’s
dissatisfaction with the trope of “internal” versus “external” critique.
[2] See
generally Barry Barnes, David Bloor & John Henry, Scientific Knowledge:
A Sociological Analysis (1996).
[3]
See, e.g., Harry Collins, Changing Order: Replication and Induction
in Scientific Practice (1985); Donald MacKenzie, Inventing Accuracy: A Historical
Sociology of Nuclear Missile Guidance (1990); Simon Schaffer & Steven
Shapin, Leviathan and the Air-Pump (1985).
[4] Here, as elsewhere, Leiter suggests I worry too much about
what various communities of Marxist or leftist scholars think. I suspect that
the difference between historical and philosophical training helps to explain
why I take the persuasiveness of a claim to depend more on what others have
written than Leiter does.
[5] See
Lawrence Dallman, Marx’s
Naturalism: A Study in Philosophical Methodology (2021); Lawrence Dallman
& Brian Leiter, Marx and Marxism, in The Routledge Handbook
of Philosophy of Relativism 88 (Martin Kusch ed., 2020).
[6] For this reason, among others, Syed’s preferred
account of law rightly abjures both historical materialism and critical legal
studies.
[7]
Yochai Benkler, Structure and Legitimation in Capitalism: Law, Power, and
Justice in Market Society 7 & 7 n.30 (Nov. 25, 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4614192.
[8]
Vanessa Wills, Marx’s Ethical Vision 46 (2024).
[9] Id.
at 50.
[10] Id.
at 48.
[11]
Benkler might mean only that the partial repeal of the Statute of Artificers in
1694 itself changed nothing important. But that is a statement with which Cohen
would have agreed. On his (and Christopher Hill’s) interpretation, the
important social changes occurred in the century prior to repeal. See Christopher
Hill, From Reformation to Industrial Revolution 18-19, 41, 71-76, 139 (1967).
[12] See Benkler, supra note 7, at 28.
[13] Id.
[14]
For the limited if still identifiable impact of late sixteenth and early
seventeenth century innovations on agricultural productivity growth before
1750, see S.N. Broadberry et al., British Economic Growth, 1270-1870, at
128-129 (2015); and Mark Overton, Agricultural Revolution in England 202-203
(1996).
[15] See
Steven Pincus, 1688: The First Modern Revolution 49-90 (2009); William Sewell, Jr., On the
Emergence of Capitalism: Marx, Brenner, and the Troublesome Case of the Dutch,
8 Critical Historical Studies 1 (2024).
[16] See,
e.g., Overton, supra note 14, at 193-207; Geoffrey Hodgson, The
Wealth of a Nation 8-14, 77-111 (2023); Neil Davidson, How Revolutionary Were the Bourgeois Revolutions?,
13 Historical Materialism 3 (2005).
[17] In a
recent article, Bill Sewell offers both a helpful overview of the strengths and
weaknesses of Brenner’s evolving approach, and a broadly persuasive, if
streamlined account, of the interrelated origins of Dutch and English
capitalism. See Sewell, Jr., supra note 15.
[18]
Note that for class struggle to serve as a satisfying explanatory framework for
structural transitions, the framework would have to include further assumptions
about why classes come into conflict and the kinds of factors that determine the
outcomes of such conflicts.
[19]
Benkler and Syed reject this explanatory framework – on anti-transhistorical
grounds – in a recent article. See Yochai Benkler & Talha Syed, Reconstructing
Class Analysis, 4 Journal of Law and Political Economy 731, 738-739
(2024).
[20] Vanessa
Wills nicely captures the intuition with respect to radical social theory: “We do not exist in a world that is shaped only by capitalists
promoting capitalist ideas, building capitalist institutions, and enforcing
capitalist property relations. We live in a world in which capitalists have an
overwhelmingly significant role in determining human reality; but try as they
might, their rule over humanity is no settled fact. . . . It is th[e] practical
contradiction between capital and labor, its dynamic unfolding under changing
historical circumstances, that increasingly draws the whole of humanity into a
single, central conflict. The sharp, ever more all-encompassing character of
this battle creates, as a material reality, the possibility of observing the
species as a totality in motion, one riven by internal conflicts whose
expression under different circumstances over time
grants us insight into the nature of the species as one whole.” Wills, supra note 8, at 47.
[21] Many thinkers within the historical
materialist tradition argue that Marx himself rejected such a transhistorical
aspiration. I disagree, although I don’t think that particular disagreement is
relevant for understanding the differences between Benkler’s approach and
MHMAL. It is relevant for understanding a difference between my
interpretation of Evgeny Pashukanis’s commodity form theory of law and Eva
Nanopoulos’s. Nanopoulos writes that: “Kessler reads Pashukanis as offering an
account of the ‘precise kind of legal relations that
capitalist relations of production require – and generate’. 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
generalization of commodity exchange, not as a form of social regulation that
pre-existed but was transformed by capitalism.” Pashukanis is
more ambivalent on this point than Nanopoulos suggests. While it is true that
Pashukanis argues that only under capitalism does the fully “crystallized” legal
form become the dominant mode of social regulation, his historical
curiosity prevented him from claiming that law emerged with capitalism. Evgeny B. Pashukanis, Law and Marxism:
A General Theory 59 (Barbara
Einhorn trans., 1983). That is why his General
Theory includes detailed analyses of Roman and medieval law. Thus: “The municipal statutes were in part general charters, and in part
an enumeration of isolated rights or privileges belonging to particular groups
of citizens. Only when bourgeois relations are fully developed does law become
abstract in character.” Id.
at 120. And: “The earliest and most complete
separation between the public-law principle of territorial sovereignty and
private land ownership occurs in medieval Europe, within the city walls. It is
there that the material and personal obligations pertaining to land
disintegrate earlier than anywhere else into taxes and obligations in favour of
the municipality on the one hand, and into rent based on private property on
the other.” Id. at 137. See also Matthew Dimick, Pashukanis’
Commodity-Form Theory of Law, in Research Handbook on Law and
Marxism 115, 120-121 (Paul O’Connell & Umut Uszu eds., 2021) (noting that,
for Pashukanis, “the ‘juridical factor’ in social life appears wherever private
exchange or private property” – and thus “the differentiation and opposition of
interests” between individuals intrinsic to such exchange and such property –
“exist,” but that “exchange relations under capitalism sharpen and purify this
differentiation and opposition of interests to an unprecedented degree”).