Law and Historical Materialism: A Reply to Critics – Part II

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

Jeremy Kessler 

In Part I of this Reply, I addressed objections to the naturalistic and transhistorical character of the minimal historical materialist account of law (“MHMAL”). MHMAL is naturalistic in that it: (a) takes the relationship between human and non-human nature to provide the ultimate, explanatory foundation of law and legal development; and (b) assumes that the causal structure of this relationship is uniquely accessible to empirical scientific inquiry. MHMAL is transhistorical in that it seeks to explain law and legal development by reference to individual and collective human propensities that are effectively invariant across historical epochs. Part II of this Reply considers how these commitments shape MHMAL’s understanding of the place of class struggle and ideology in the explanation of law and legal development. 

Several symposium contributors take MHMAL to task for marginalizing class struggle[1] and ideology[2] in its explanatory scheme. Although Law and Historical Materialism addressed both phenomena, it gave pride of place to others: on the one hand, the primacy of the development of the productive forces in explaining law and legal development; on the other hand, the potential role that “nonfunctional determinations” – such as aspects of culture and environment unrelated to a particular development of the productive forces – might play in such explanation. I am more confident about the explanatory primacy of the productive forces than about MHMAL’s openness to so-called nonfunctional determinations. But I will try to clarify why I think that the historical materialist explanation of law and legal development might be stuck with both, even as it accords significant roles to class struggle and ideology as well.

A. Class Struggle in Historical Materialist Explanation 

            As discussed in Part I, MHMAL is largely harmonious with Brian Leiter’s reconstruction of historical materialist explanation. Nonetheless, Leiter rightly notes that MHMAL’s reliance on G.A. Cohen’s identification of historical materialist explanation with functional explanation tends to sideline class struggle – and may introduce unnecessary mystification as well. On Cohen’s account, social relations (including legal relations) change because that change facilitates the development of the productive forces. But why? Here, Leiter’s “causal theorist” answers: “class struggle.” The functional theorist and the causal theorist agree that “technological innovations . . . that enhance productive power” lead to lasting changes in “the relations of production and ideological superstructure”;  and that these changes “accommodate and support the exploitation of those [technologically enhanced] productive forces.” But only the causal theorist specifies a relatively intuitive causal mechanism by which productivity-enhancing technological innovations lead to lasting legal changes. That causal mechanism is class struggle. As Leiter writes: 

Because they make effective use of forces of production Y, members of Class A flourish and dominate; but when technological developments make more advanced forces of production Y* possible, and Class A fails to make use of Y*, then Class A’s competitors in Class B, who can make effective use of Y*, struggle with Class A and ultimately triumph. 

On this account, it is through Class B’s struggle and eventual triumph that legal relations are transformed. Furthermore, Class B brings about these transformations precisely because they facilitate Class B’s effective exploitation of the more advanced productive forces. 

MHMAL could adopt the foregoing description of class struggle with little modification. And it probably should. Not only are Cohen’s functional explanations confusing as a matter of rhetoric, but they also may be logically confused, at least some of the time. Furthermore, as Eva Nanopoulos notes, there is something odd – both intellectually and politically – about a historical materialist account of law that does not say much about class struggle. Before ceding the field, however, I want to make two, hopefully clarifying, remarks about Leiter’s causal theory. The goal of these remarks is to distinguish the causal theory from other class-struggle-based explanations of law and legal development; and to suggest that Leiter’s account, Cohen’s account, and MHMAL are united by similar if not identical sets of naturalistic, transhistorical assumptions. 

First, the causal theory, like MHMAL, assumes the explanatory primacy of the productive forces. Recall that Leiter’s explanation of why one class defeats another turns on the victorious class’s ability to make “effective use” of “more advanced forces of production.” Technological innovation occurs. Then, the class that is in a better position to exploit the innovation does the work of changing the law to facilitate the new productivity that the innovation makes possible. This story is consistent with MHMAL. It is not, however, consistent with class-struggle-based explanations of law and legal development that attribute a great deal of contingency to the outcome of class struggle, or a great deal of autonomy to various class fractions. The victory of the class most able to leverage the productivity-enhancing potential of new technology is highly favored, if not always assured. I will return below to the question of what if any factors might arrest such a victory. 

            Second, the causal theory must make some additional assumptions about human and non-human nature in order to explain why class struggle works in the way it describes. Cohen’s original account was off-putting not only because of its reliance on functional explanation, but also because of its reliance on a set of speculative, transhistorical assumptions about human and non-human nature – namely, that certain facts about human nature and about the relative scarcity imposed by non-human nature conduce to ensure the tendency of the productive forces to develop.[3] Yet the causal theory strikes me as vulnerable to a similar criticism. What is it about the nature of social and physical reality, across human history, that favors the victory of those classes that “can make effective use” of the “more advanced forces of production”? 

The most plausible – or at least the least spooky – answer to this question is that the class that has the capacity to make effective use of productivity-enhancing technological innovations will enjoy a competitive advantage in the class struggle in virtue of that capacity. For instance, if metallurgical developments make it possible to produce brass ammunition cases at scale, then the class that can make effective use of those developments may enjoy an advantage in the class struggle thanks to its breech-loading rifles. But I do not think this example is all that generalizable. The capacity to exploit a technological innovation is not necessarily co-extensive with the capacity to force others to let one exploit it. A class that has the capacity to exploit some productivity-enhancing agricultural innovation may be nonetheless hopelessly outgunned. 

In response to this reservation, I suspect that the causal theorist would say something like the following. “All I am claiming is that when Class B has the capacity to make effective use of more advanced productive forces, the productivity gains that Class B can leverage – or can convincingly promise to leverage – will give Class B a competitive advantage in its struggle against Class A.” For instance, assume that Class B discovers a new, productivity-enhancing agricultural technique and has control of a certain amount of land. Under these conditions, Class B’s capacity to produce more grain renders its members newly strong, numerous, or wealthy. Class B’s newfound power might be sufficient to overcome Class A’s initial advantage with respect to weaponry in a direct physical confrontation. Or other classes might align with Class B, impressed by its newfound power. Or it might be the case that Class B could prove victorious even if, at first, it lacked the requisite land to exploit the new agricultural technique. The mere promise of productivity gains could lead to class collaboration sufficient to overcome Class A’s resistance. 

In any of these cases, it is the transferability of productivity from the extractive relationship between human beings and non-human nature to the competitive relationship between classes that completes the causal theory. Thanks to this transferability, the causal theorist can now explain why technological innovations lead to legal developments that facilitate the exploitation of those innovations. The class in the best position to exploit the innovations enjoys an advantage in the class struggle in virtue of the productivity gains unleashed – or unleash-able – by the innovations. That advantage makes it more likely that the class in the best position to exploit productivity-enhancing innovations will also be the class in the best position to change the law. 

When spelled out in this way, the causal theory’s assumptions do not strike me as much less speculative than Cohen’s own. With one exception: what makes the causal theory more plausible is its rejection of any transhistorical claim about rising productivity over the longue durée.[4] The causal theory instead claims that when technological innovation makes productivity gains possible, the class better positioned to exploit those innovations will try to do so and will enjoy an advantage in trying. Nonetheless, this claim still commits the causal theorist to some contestable transhistorical assumptions about human nature and about the relationship between human and non-human nature. 

As discussed in Part I, I see no categorial reason to reject transhistorical assumptions about nature, whether human or non-human. Furthermore, the causal theory’s transhistorical assumptions strike me as plausible. I just think they are similar to MHMAL’s and Cohen’s assumptions, notwithstanding the causal theory’s foregrounding of class struggle. Class struggle as described by the causal theory is a telegraphic description of two transhistorical tendencies:  the tendency of humans to seek to exploit productivity-enhancing technological innovations; and the tendency of humans who are capable of exploiting such innovations to enjoy a competitive advantage against other humans in their struggle for social control.[5] 

Thanks to Leiter’s intervention, I see now that these transhistorical tendencies – and the account of class struggle that comes with them – are either implicit in or entailed by MHMAL’s own explanation of legal development. Accordingly, Leiter’s causal theory affords MHMAL with a description of the relationship between class struggle and legal development that it was previously lacking, as well as a fuller description of the relationship between the development of the productive forces and legal development. 

Finally, the foregoing discussion of class struggle helps me understand why I left open the possibility of “nonfunctional determinations” in Law and Historical Materialism. Once one begins to explore the ways in which a class capable of exploiting a productivity-enhancing innovation might also be a class capable of bringing about legal change that facilitates such exploitation, one encounters a fair amount of complexity, and perhaps contingency too. For example: 

Class B might have the capacity to exploit a productivity-enhancing agricultural innovation – a new kind of seed – and begin to grow in strength and number. But in order to counter Class A’s initial advantage with respect to weaponry, Class B needs access to more land under control of Class C. Will Class C afford that access? Class C is attracted to Class B’s capacity to exploit the productivity-enhancing agricultural innovation, but how attracted? It does not strike me as unreasonable, or an abandonment of the historical materialist framework, to keep open the possibility that some cultural antagonism between Classes B and C (even a linguistic barrier) might frustrate their productivity-enhancing collaboration. Alternatively, the resulting collaboration, enabled by successful management of the cultural antagonism, might itself lead to legal reforms that cannot be explained solely in terms of the degree to which they facilitate seed exploitation, but also in terms of the degree to which they facilitate management of the cultural antagonism. Yet again, the collaboration between Classes B and C might be ultimately frustrated by the arrival of a parasite that significantly dampens the productivity-enhancing potential of the new seed. Class A wins the struggle after all, and the productivity gains promised by the new seed are lost. 

Of course, describing the cultural antagonism and the parasite as “nonfunctional determinations” could be unnecessary and ultimately misleading. The cultural antagonism itself might be explicable in terms of a long-gone development of the productive forces. The antagonism was functional at one time but is now simply laggard vis-à-vis the subsequent development of the productive forces. Similarly, in the event of a successful collaboration between Classes B and C, legal changes that are necessary to manage the cultural antagonism are themselves functional. For management of the cultural antagonism between Classes B and C is a necessary condition of Class B’s exploitation of the new seed. As for the parasite, its arrival rendered nugatory the capacity of Class B to make effective use of the new seed. There were no productivity gains to be had after all, and that is why legal relations did not transform in response to Class B’s discovery of the new seed. 

MHMAL predicts that such translations of seemingly nonfunctional determinations into functional determinations will be empirically supportable, most of the time. But it nonetheless strikes me as unreasonable to rule out the possibility of nonfunctional determinations altogether. Recall that the assumptions made by the causal theory, as I’ve reconstructed them, involve transhistorical tendencies. How strong are those tendencies? MHMAL is committed to assuming they are quite strong. But if MHMAL treats the tendencies as certainties, the historical character of the account will be lost. MHMAL’s claim is thus that each legal relation’s facilitation of the development of the productive forces at some prior time is a necessary – but not necessarily a sufficient – condition of its existence. The functional genealogy of a legal relation is not a complete genealogy.[6]

 

This way of thinking still requires us to explain legal relations in terms of the role they play – or once played – in the facilitation of the development of the productive forces. This requirement is quite demanding, and in significant tension with most variants of CLS, not to mention many variants of Marxist legal theory. It is true that the possibility of nonfunctional determination opens the door to empirical and theoretical debate about how best to parse the functional and nonfunctional aspects of a legal relation’s genealogy. But it does not open the door the conclusion that there are no functionals aspects of the legal relation’s genealogy, or to the conclusion that the functional aspects are inessential. 

B. Ideology in Historical Materialist Explanation 

In his symposium contribution, Matt Dimick argues that ideology, properly understood, provides an explanation of “law’s persistent role in reproducing social hierarchies” that is superior to MHMAL’s functional framework. The latter holds that law tends to reproduce social hierarchies because it is the function of law to facilitate the relations of production that are responsible for those hierarchies in the first place. On Dimick’s understanding of law as ideology, legal practices such as judging are bound up with, help to instantiate, and are explicable in terms of more general and abstract phenomena, including “the legal form” and “(Big-L) Liberalism” (at least under capitalism). These more general and abstract phenomena, however, should not be understood as elements of “a free-floating intellectual philosophy” but rather as “the ideological expression of the social practices and forms of capitalism.” Ideological phenomena, in other words, are not misleading representations of social practices, ginned up by Machiavellian elites, but the real expression of historically specific social relations. 

Dimick exemplifies his understanding of law as ideology with an interpretation of “the adjudicatory undermining of pro-worker labor law” in the twentieth-century United States. Dimick’s interpretation departs from earlier scholarly treatments of anti-worker judicial action as involving “the importation of crass political interests” or the obfuscation of a particular, pre-1937 constitutional vision. Instead, Dimick wants us to see seemingly anti-labor judges as faithfully and relatively forthrightly “working within the bounds of the legal form.” “For labor law to be law,” Dimick goes on, “it must at some point acknowledge—and protect—employers’ property rights.” And that is what the judges did. 

I greatly appreciate Dimick’s example and believe that that our understandings of ideology overlap in significant respects. Like Dimick, I do not think that to claim that a statement or belief is ideological is to impute “more-or-less conscious bad faith” to the speaker or the believer.[7] Like Dimick, I do not think that ideology is reducible to the thinly veiled expression of the interests of particular class fractions. And like Dimick, I believe we need to retain the ability to describe ideological statements and beliefs as false, in some non-trivial sense.  Given all this agreement, where do our understandings of ideology diverge? First, I want to insist on a sharper distinction between legal ideology and the legal form, largely in order to clarify what it is about ideological statements and beliefs that makes them false. Second, I see no reason to deny that legal ideology is at least partly explicable in functional terms.

As suggested in passing in Law and Historical Materialism, Pashukanis’s concept of “the legal form” can be understood as a close relative of Alfred Sohn-Rethel’s concept of “real abstraction,”[8] which Dimick’s analysis of ideology echoes to a certain extent.[9] The “crystalliz[ation]”[10] of the legal form and the emergence of real abstraction are both traceable to, and expressive of, the universalization of commodity exchange that is coincident with the development of capitalism itself. These expressions of a historically specific kind of relationality are not just real but inescapable and imposing; they bear down on thought itself.[11] But they are not reducible to thought. As Alberto Toscano puts it: 

Society is above all relation: the role of . . . univocal simple abstractions – such as value, labor, private property – in the formation of the concrete must be carefully gauged so that they do not mutate back into those powerless and separate, not to mention mystifying, intellectual abstractions that . . . occupied the earlier theory of ideology. . . . These [univocal simple] abstractions are not mental categories that ideally precede the concrete totality; they are real abstractions that are truly caught up in the social whole, the social relation.[12] 

Dimick would seem largely to agree when, quoting Marx, he writes: 

[I]n capitalism, as in social life generally, social practices precede their self-conscious expression. “Reflection on the forms of human life, hence also scientific analysis of those forms, takes a course directly opposite to their real development. Reflection begins post festum.” In that sense, there is nothing false about value or any of the other forms of thought and institutions of capitalism. 

Where I think Dimick goes awry is in his conflation of the epistemic character of the legal form or the value form with the epistemic character of discourses about the legal form or the value form. Teasing out the distinction between real abstraction and “thought abstraction in the theory of knowledge”[13] is what Sohn-Rethel set out to do, beginning in the 1920s. Whether or not he and his followers have been entirely successful in their endeavor to trace “the fundamental forms of abstract thought” back to “the commodity-form and its introduction, into the social universe, of the principles of abstract exchange and calculability,”[14] their insistence on the initial distinction between real abstraction and thought abstraction strikes me as invaluable. The risk of collapsing that distinction too quickly is the risk of turning real abstraction, or the legal form, into nothing more than a particularly pervasive intellectual perspective or linguistic practice. The risk, in other words, is a kind of idealism, and a relativistic one at that. 

In order to “allow[] ideology critique to retain its critical edge,” Dimick wants to be able to treat ideological discourse as, in some sense, false. In particular, he wants to be able to assert that “there is still something false about the categories of bourgeois thought.” The way his account of ideology achieves this goal is by positing that “[c]oncepts and claims become ideological [and thus false] when they claim to transcend their own historical context, when they claim, in other words, to have practice-independent validity.” This definitional statement does seem to imply a quite radically relativistic epistemology. But the only point I want to press here is that it seems inconsistent with Dimick’s own approach to treat the legal form as falsifiable (or not) in the same sense that other kinds of concepts and claims about the law are falsifiable (or not). Take for example Dimick’s statement that: 

[J]udges are engaged, for the most part, in a good faith attempt to make sense of the social practices they make judgments about, but these social practices must always have some particular, historically-specific form. Moreover, they include the social practice of adjudication itself, which we can describe as the legal form, following both Kessler and Pashukanis. 

So long as Dimick would agree that the legal form is attributable not exclusively to the social practice of adjudication, but rather to the whole complex of social practices – including adjudication – intrinsic to the universalization of commodity exchange, then he and I are on the same page. Within that page, however, I don’t see how it would ever make sense to describe the “particular, historically-specific form” of “these social practices” as false. The legal form exists or it doesn’t – it expresses rather than represents social relations, to use Dimick’s terms. By contrast, the claim that the legal form was imported whole cloth by the Norman conquest, or is attributable to a shared feature of all human beings’ genetic makeup, might well be false. And it might well make sense to describe such a claim as ideological partly in virtue of its falsity. 

Notwithstanding Dimick’s insistence that his account of ideology is “expressivist” rather than “representationalist,” what makes the claim attributing the legal form to the Norman conquest or humans’ genetic makeup false – and at least potentially ideological – is its representational content. Recall that “[c]oncepts and claims become ideological [and thus false] when they claim to transcend their own historical context” or “to have practice-independent validity.” The foregoing claims about the legal form’s genesis are not merely expressive of social relations; they misrepresent what Dimick believes to be the historically specific truth of those social relations. 

Note that it can still be the historically specific truth of social relations – including the legal form, the value form, etc. – that helps us explain why people mispresent the true character of those social relations. There is no need to resort to any explanation from bad faith. But I do think there is a need to soften the claim – if this is Dimick’s claim – that legal ideology (or any other species of ideology) can be both false and entirely non-representational. By contrast, I think Dimick is right to describe the legal form itself as expressive rather than representational in nature. 

Finally, is there a need to explain legal ideology in terms of the functional role it plays – or once played – in the development of the productive forces? MHMAL answers “yes,” for the reasons discussed at length above and in Part I of this Reply. I won’t rehearse those answers here. But one more trite example. Suppose that the belief that the legal form was ordained by God becomes widely held throughout the United States and persists as an organizing principle of American legal ideology for a century. MHMAL would hypothesize that this state of affairs is at least partly explicable in terms of the role that that belief played, at some point during the century, in facilitating the development of the productive forces.[15] 

Dimick concedes that ideology may have “effects that are functional for capitalist rule.” He only resists the further claim that “these consequences . . . explain the form and content of this ideology.” He concedes that “[c]apitalist ideology may serve the ‘interests’ of capitalists,” but insists that “that beneficial effect need not play a necessary role in the generation of such ideology.” “An ideology is dominant,” Dimick goes on, “not because it is successful in duping the dominated . . . but because it is an expression of historically-specific social relations that themselves assign certain groups a dominant place, within which they are able to identify particular courses of action (forms of law, legislation) which will further their interests.” There is not all that much within this final statement with which MHMAL (or Leiter’s causal theorist) would disagree. But if one asks why those “historically-specific social relations” take the form that they do, MHMAL will answer that that it is because, at some point in time, those relations and that form facilitated the development of the productive forces. The causal theorist will answer that, at some point in time, a class able to make effective use of newly advanced productive forces won its struggle against a previously dominant class. I am not sure what Dimick’s answer will be. 

The seven contributors to this symposium have done its readers – me foremost among them – an invaluable service. I am grateful to both contributors and readers, and to Jack Balkin for hosting.

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.

[15] For an alternative account of ideology, see Edwards & Leiter, supra note 4, at 150-190. For reasons related to my discussion of the causal theory above, I believe that MHMAL’s hypothesis could be reconciled with Edwards and Leiter’s treatment.