For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism.
Samuel Moyn
If I knew my tombstone would record that I had inadvertently provoked Jeremy Kessler to attempt to bring Marxism into American legal theory again, I could die a happy man.
Because it is already such a privilege that Jeremy took my own new essay as the prime target in his masterful new piece, I mainly want to thank him. Jeremy’s intervention is characteristically rich and stimulating. The fact that it exists at all portends an exciting new phase for legal theory. Still, I cannot help offering a few modest counterpoints.
Marxism hasn’t ever figured all that prominently in the history of American legal thought. If he is successful, Jeremy could “normalize” our scholarship, so that conversations in the legal academy would not remain so out of step with the contemporary renaissance of Marxist perspectives elsewhere in the university and beyond it (and in the legal theory of some other countries). Given his own premises, Jeremy might suspect there are objective constraints on such normalization. But it is still possible that his essay will have the salutary effect of prompting more teaching about Karl Marx and Marxism in America, at least up to a point, which other capitalist societies have permitted. And that is very good news.
But what is “Marxism” anyway?
To begin with, it depends which Marxism current and future Marxists like Jeremy back. And Jeremy’s strategic choice to train his fire “outward” on critical legal studies (and CLS in my contestable reconstruction of it) probably conceals or postpones too much strife intramurally. Jeremy has rebooted G.A. Cohen’s own attempt to reboot Second International Marxism, with its emphasis on the “materialist” foundations both of capitalism as a social form and of its dynamic evolution in time — and of the law that arises in relation to that social form in consequence. That’s great, but there were always a lot of other Marxisms out there.
Only a few footnotes in Jeremy’s text (some new, in his revisions) indicate just how controversial this highly particular rendition of Marxism has been. I’m not saying it’s not worth restating its premises, just as Jeremy does superbly. But doing so as if Second International Marxism had never been contested — and to a degree relinquished by Cohen himself in disputes that followed — is no more persuasive than Cohen’s original attempt to rehabilitate the Second International as if there had not been a lot of water under the bridge.
That very same point suggests a substantive reason that CLS is not the overridingly important problem Jeremy suggests it is in the basic posture of his piece. For if CLS shared much of the (over)reaction to “vulgar” Marxism of the Western Marxist tradition, then there is considerable overlap between it and alternative renditions of Marxism than the one Jeremy is interested in reviving. I also wrote a new footnote to my own piece, adding to my original claim that at some point Marxism became critical legal studies, by taking the functional and interpretive underdeterminacy of law more seriously than before. That is only true, I came to see, to the extent the converse is also true: in rejecting the most vulgar forms of functional explanation, CLS may have been Western Marxism all along, without generally presenting itself this way. Especially as I reconstruct it in my essay, the line between CLS and at least a number of versions of Marxism turns out to be pretty blurry. Certainly, the line within Marxism between its more intentionally vulgar forms and various sophisticated renditions is far starker. Expunging the CLS legacy unceremoniously, so fashionable rhetorically nowadays, disguises this fact.
Jeremy argues hard, in his sections on the functional and interpretive underdeterminacy of law, that the “minimal” version of Marxism he associates with Cohen is doing fine on its own. I accept Jeremy’s point that there are practically imposed limits to underdeterminacy. He might even be right that Roberto Unger is too voluntarist. (I’m not sure.) Yet Jeremy concedes so much to both functional and interpretive underdeterminacy in his article that it is not clear to me how minimal as an explanatory matter his Marxism is after all. If it can remain minimal, it is because, on Jeremy’s own account, it explains certain features of law but not a great many others. It that is true, then just as CLS needs to acknowledge limits to functional and interpretive underdeterminacy, CLS is a standing corrective to Marxists overclaiming how much about legal orders and outcomes they can explain.
If there are blurred lines between camps, or at least correction reciprocally across them, then I am left wondering if rebooting Marxism is working mostly as a rallying cry. It doesn’t matter much to me whether Karl Marx himself anticipated an adequately sophisticated legal theory, or whether that theory is called “Marxism” or something else. One question is about who or what tradition is given credit (whether or not it is due) and the other is about how to brand the results for the purposes of propagating them. It might well turn out that rallying cries are of great importance, for organizational and psychological reasons. But this would not change the fact that, theoretically, there is not a great deal of daylight between my “reconstruction” of CLS and Jeremy’s rendition of Marxism, in the end, or perhaps a difference in choice of emphasis that could depend on the intellectual situation.
Last, I do think Jeremy is absolutely right that whatever radical theory gets built or revived today needs to treat nature more centrally. This consideration might support the particular revival of Marxism that Jeremy proposes less straightforwardly than he thinks, but the consideration itself is of enormous importance.
As with Marxism itself, the main question then is what nature is anyway — and where freedom fits into it. No one should rest content with a theory of freedom in nature as imperium in imperio. But that doesn’t mean that the grim determinism of a familiar reductionist naturalism applied to society and law is going to be satisfactory either.
Cohen’s intervention had as perhaps its main effect to bypass the Hegelian legacy in Marxism (a legacy Western Marxism correspondingly reactivated). And this same effect bears powerfully on what counts as a credible form of naturalism in philosophy, including in legal theory.
I don’t buy Jeremy’s argument that the denial of freedom in vulgar Marxism is a big reason for its marginalization in our intellectual history, even if the theory itself supposedly “predicts” this marginality. What if that denial is just out of touch with the experience and explanation of modernity, as Hegel saw? For whatever it’s worth, Unger struggled hard too, notably in his writing on theoretical physics, to hypothesize that nature is more plastic than traditional naturalisms suggest — at least in the early phases of the history of the universe. And either way, what is after all at stake in sophisticated or Western Marxism is how to theorize freedom and society together. It is startling that Jeremy’s determinist naturalism is so hard-bitten that he seems to regard creationist intelligent design as the sole imaginable other option. Seriously?
There’s no doubt, however, that Jeremy has brilliantly succeeded in showing why Marxism must become much more fully and openly a part of ongoing controversy about the making of law in the past and its remaking in the future. For that success, he deserves our thanks.
Samuel Moyn is Kent Professor of Law and History at Yale University. You can reach him at samuel.moyn@yale.edu.
