Law and the Critique of Political Economy

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

Talha Syed 

Jeremy Kessler’s “Law and Historical Materialism” is bracing. Bracing in its unapologetic embrace of strong explanatory ambitions for any theory of law, one that must be anchored in a broader theory of society (and even of humanity’s interaction with the natural world). And bracing also in its no-pulled-punches approach to articulating dissatisfaction with existing legal theories, critical legal studies (CLS) principally among them. Sharing both commitments—not only in the content of the views, but also in the form of their unvarnished articulation—I will use this platform of agreement as the basis for launching an unvarnished critique of the alternative theory he offers.

Kessler’s intervention has two principal aims: to present to a legal audience a robust variant of the classical Marxist theory of history and society, historical materialism; and to defend it as a theory of law against various criticisms, principally those advanced by CLS. In respect of the first aim, the version of historical materialism advanced by Kessler is indeed of classical stripe: it is a theory of history as driven by the development of the (material) forces of production, in accord with which development arise and fall different (social) relations of production, and corresponding to which production relations are superstructural political and legal institutions and ideologies.[1] In reply to the central Crit objections to this view—namely, that it fails to attend to the indeterminacy, contingency, and autonomy of law[2]—Kessler advances a two-fold answer: historical materialism can account for these “apparent” features of law “at least as well as CLS and its successors,” while also making better sense of aspects of law that “CLS and its successors have struggled” with, in particular law’s resistance to reform and its tendency to reproduce social and economic hierarchies. 

There is one aspect of Professor Kessler’s argument with which I quite agree, and this is that classical Marxism has within it the resources to handle standard Crit objections based on law. As I have stated on a previous occasion—pointing to the same work of G.A. Cohen on which Kessler heavily relies—“the reasons for classical Marxism’s flaws have little to do with Crit claims from law’s autonomy, constitutive role, and indeterminacy. In fact, classical Marxism can defend itself quite well against these criticisms—indeed, it already did, avant la lettre of CLS.” I hasten to add that, as the passage just quoted indicates, my own view is that classical Marxism does have serious—indeed, as I will discuss next, fatal—flaws. But these go less to its theory of law than to its theory of society. Or, to be more precise, the flaws in its theory of law are tributary from flaws in its theory of society, and in either case the flaws have little to do with those pointed to by CLS. Indeed, and this is the nub of the present point, it is telling that the Crit objections were in fact addressed “avant la lettre” by G.A. Cohen—i.e., based on arguments made long before the Crits—and even more telling is that the Crit responses to Cohen were perfunctory and in passing at best.[3] 

These points are telling because they go to the twin bases of shared agreement I have with Professor Kessler: namely, that any social theory of law worth the name needs to be serious about its explanatory—conceptual and empirical—claims and that, in these respects at least, CLS views were wanting. This point has been perceptively driven home by Ntina Tzouvala, who urges that  “we need a more substantive, more analytically ambitious and less aestheticised idea of [] legal theory,” while CLS is often “better understood as an attachment to certain avant-garde aesthetics.” 

Yet it is precisely as an explanatory theory—both of society and of law—that I believe Kessler’s rehabilitation of classical Marxism fails. And its failure is not accidental or arbitrary but symptomatic, in ways that have much to tell us about the way forward for a critical theory of both society and law. Put succinctly, in each of its twin component parts—namely, the “materialist conception of history” and a “critical political economy”—classical Marxism involved the naturalization of historically-specific social relations and their projection onto history as a whole, in precisely the ways that Marx himself warned against in his mature critique of political economy. That critique was a denaturalizing analysis of capitalist relations and dynamics, showing at one and the same time how such relations and dynamics were historically-specific and yet naturalized by the eternal categories of the “classical political economy” of Smith and Ricardo. The great irony of classical Marxism is that it followed in precisely these false Smithian-Ricardian footsteps. 

Given the centrality Kessler accords to “naturalism” for any plausible explanatory theory of society and law, it is important to be clear about what is and is not meant by “denaturalizing” as a central aspect of Marx’s critical analysis of capitalist relations and dynamics. What is not meant is any repudiation of “naturalism” in substantive social inquiry where that is simply taken to mean, as it primarily seems to for Kessler, a methodological commitment that substantive theorizing be continuous with the protocols and findings of scientific analysis in general. (Kessler at 7.) Rather, the point of a denaturalizing critique is to point to the ways that something that is social, and historical, is falsely imputed to asocial, or transhistorical, natural givens. Further, to be effective, any such critique must supply its own alternative, more plausible, denaturalizing explanation of the phenomena at issue—for Marx, one advanced in terms of historically-specific social relations. 

We can see the point most clearly by zeroing in on the fundamental empirical difficulty facing the classical Marxist view, as recognized by two of its stoutest defenders, the historian Eric Hobsbawm and G.A. Cohen himself.[4] As Hobsbawm and Cohen both concede—the former more forthrightly, the latter more hesitantly—a key embarrassment facing historical materialism is the fact that it is only within capitalism that the “forces of production” exhibit a systematic tendency to grow.[5] Moreover, and shifting gears from empirical to conceptual registers, it is only within capitalism that a plausible explanatory mechanism exists to account for such growth, namely the “selection” effects of compulsive market pressures.[6] And what accounts for these pressures? For the Marx of Capital, it is neither Adam Smith’s “human nature” to “truck, barter, and exchange” nor Malthusian-Ricardian demographic-environmental constraints of population and soil fertility, but, rather, the historically-specific—not transhistorically-determined nor “contingent”—socio-political institutionalization of relations of generalized commodity production, whereby all economic agents are subjected to market-dependence by virtue of producers becoming “free in the double sense,” freed of both extra-economic forms of exploitation and the means of subsistence.[7] 

To state the point in more general terms, historical materialism on Kessler’s version is a theory of history as the march of “progress”: the development of human powers vis-à-vis nature (“technology”) via their envelopment in different social forms of production of a surplus (“class”). The relations of production that obtain at a given point in time are those best suited for the further development of productive forces, in light of given geographical, demographic, and technological conditions (the “forces of production” of nature, labor, tools). This view raises two key questions: how precisely do those relations most propitious to the development of the forces become adopted at a given point in time and, in any case, why exactly is the development of the forces of production the ultimate driver of history? The standard answers consist of an implausibly transhistorical view of asocial drivers of the development of material forces, and an implausibly functionalist view of the selection of social relations to develop these. These fail both empirically and explanatorily. Empirically, because there are long stretches of history where the forces do not develop but rather “petrify”—they only systematically develop within capitalism. Explanatorily, because no plausible mechanism(s) is/are identified to select the social relations that optimally develop the forces—it is only within capitalist social relations that such a mechanism, for the selection of productive forces, exists: economic competition driven by imperatives of generalized market-dependence. And so we can now see this view for what it is: a transposition of the historically-specific social relations of capitalism and its dynamics—technological dynamism propelled by generalized markets—onto history as a whole, via a naturalizing of capitalist social relations as a kind of ahistorical materialist rationality of homo economicus (ingenuity and instrumental rationality in conditions of scarcity).[8] This explains both the empirical and explanatory gaps of the view: only once you have capitalist social relations do you get either the empirical result (sustained productivity) or the explanation (selection by generalized markets). In sum, the “forces” theory is the clearest (but not only) case of a historical materialist view that turns out, upon closer inspection, to be a naturalization of the relations and dynamics of a specific society and their projection onto all of history. 

I need to make two important clarifications. First, the empirical point being pressed here is not that there is no (incremental, jagged) growth in productive forces for much of history, only that significant, systematic development is specific to the modern—capitalist—epoch, with earlier eras marked by long periods of relative stasis. That there has been some growth—in part because once acquired, productive facilities are rarely given up, so that development is “sticky downward”[9]–is no doubt true, but this provides a slender basis for any (transhistorical) explanatory theory of society.[10] To think otherwise likely owes to a projection of capitalist dynamics onto history as a whole.[11] And similar projections may fuel a possible misunderstanding of the present point, which is that it somehow vaunts “economic development” or growth in productive forces as desirable in itself, and perhaps even denigrates societies not significantly marked by it. But nothing of the sort is indicated here. In particular, two points need to be made in reply to this concern: first, whatever evaluative attitude we wish to adopt toward such growth, the issue here is about the explanatory power of a specific social theory, and for that the empirical realities of such growth need to be addressed; second the position being advanced here takes, as discussed next, a decidedly jaundiced view of capitalist growth, as a form of systematically “alienated productivity.” Indeed it is precisely the way Marx’s denaturalizing mode of analysis is able to solder an explanation of a phenomenon with its critique, that marks out his mature critique of political economy as a matter of method. 

This brings us to the second key component of the classical Marxism advocated by Kessler, going not to its theory of history—historical materialism—but to its theory of a specific society, capitalism.[12] The classical understanding of Marx’s project is as a “critical political economy,” one that joins classical political economy in its analysis of a “material” field of inquiry, but radicalizes the classicals’ surplus-based analysis of growth, distribution, and classes by refining and extending it in the vein of a labor theory of surplus-value, profits, and exploitation. This conception of Marx’s project faces two difficulties. A first is substantive deficits in its analysis of the problems it focuses on—including, principally, those afflicting a theory of class based on “the labor theory of value.” Second, an even deeper set of drawbacks concern the limited horizon of the problems themselves. 

On an alternative view, Marx’s project was less a critical political economy than a critique of political economy. On this conception, Marx’s aim was not to join classical political economy in its analysis of a naturalized field of inquiry, but to delimit the conditions of possibility of the field itself, in terms of the historically-specific social relations of capital that constitute its proper object of inquiry.[13] His focus is best understood not in terms of a Ricardian analysis of property-based distribution, but of an analysis of the social relations of production themselves. In Diane Elson’s illuminating encapsulation, we need to shift from a “labor theory of value” to a value theory of labor.[14] The first refers to an attempt to take over the surplus-based analysis of classical political economy and provide a quantitative theory of price, profit, or exploitation—an attempt ill-fated in both its explanatory and evaluative facets. The second refers to an analysis not of the “material content” of “value” in labor, but rather of the social form taken by labor (and utility) under capitalist social relations[15]—i.e., a qualitative analysis of how human powers and needs are shaped by generalized commodity production and subjected to its impersonal imperatives of ceaseless expansion of exchange-value for its own sake. The result? A systematic alienation of social powers and relations, as not only human needs and powers but also human relations and the Earth are subjected to ever-more extensive and intensive instrumental quantification. 

This critical strand of Marxian thought, long submerged under a crust of materialist overlay within the classical Marxist tradition, is currently undergoing a worldwide revival.[16] It is one that left legal scholars would do well to join. Especially since recovering and fully developing it is something that legal academics are particularly well-placed to undertake, as doing so would also involve recovering and fully developing a distinct strand of legal theory. This is a submerged aspect of Legal Realist analysis, one that fully eschews the dominant “internal” and “external” critiques of formalism associated with Realism, and advances instead a dereification critique that forms a close counterpart to the denaturalization critique of political economy. This critique takes law to be a human artifact serving human interests, with lucidity about the structure and purposes of that artifact (its forms and means) being the first step toward effectiveness in pursuit of those interests. 

This legal strand has its deepest roots in the work of Hohfeld, with the analysis of the social relations of modern law as rights being a micro-institutional counterpart to the macro-institutional component of the critique of political economy, with its analysis of the social relations of market-dependence. Such social relations, while in no way “materially” determined, are also in no way “legally constructed,” nor simply indeterminately up for grabs. It is only by understanding their architectural systematicity that they can be strategically targeted for effective transformation. What matters in law is neither “indeterminacy” (wholly misguided) nor “autonomy” (of what, from what?) but, rather, social agency.[17] Such agency can be neither assumed nor foreclosed. It is, rather, entirely variable, expanding or contracting depending on how lucid is our social understanding of the relations meriting change and how effective are our social practices of transformation.[18] 

In the debate between CLS and classical Marxism, many may be tempted to stake out a halfway position, a compromise of some sort between “some” legal indeterminacy (or autonomy) and “some” material constraint. That would be a mistake. It would be a mistake because both poles of this spectrum are simply ill-conceived. We need to fully jettison all talk of both “indeterminacy” and “materialism,” as holdovers of deeply misguided strands of both CLS and Marxism. In their stead, we need to recover submerged strands of critical traditions, both in the critique of law and of political economy. As those traditions teach, constraint comes not from material factors but from social relations, and social agency (not autonomy, much less indeterminacy) is neither foreclosed nor guaranteed but, rather, earned, through understanding and practice directed at transformation.

Talha Syed is Lecturer in Law at U.C. Berkeley. You can reach him by e-mail at tsyed@law.berkeley.edu.