Law and Historical Materialism

56 Pages Posted: 3 Apr 2024

See all articles by Jeremy Kessler

Jeremy Kessler

Columbia University - Law School

Date Written: March 1, 2024

Abstract

Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From “law and political economy” to critical race theory to feminist legal studies to neo-Marxist legal theory, new perspectives have flourished and marginalized traditions have been revived. What they all share, however, is a point of intellectual origin in the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extra-legal social and economic forces. Some of those accounts, such as that of the law and society school, were associated with the political center. But others, most especially historical materialism, hailed from the political left. For CLS and its successors, the failure of historical materialism to account for the indeterminacy of law, the contingency of legal development, and the autonomous causal power of law and legal actors to shape society was (and remains) disqualifying. This Article argues that CLS erred, and that its successors continue to err, in sidelining historical materialism as a viable framework for left-leaning legal thought. The historical materialist account of law has the resources to make sense of the apparent indeterminacy, contingency, and autonomy of law and legal actors at least as well as CLS and its successors. It can also make better sense of three additional phenomena with which CLS and its successors have struggled: the tendency of legal development to reproduce existing social and economic hierarchies; the relationship between law and capitalism; and the relationship between law and the natural world.

Keywords: legal theory, legal history, law and political economy, critical legal studies

Suggested Citation

Kessler, Jeremy, Law and Historical Materialism (March 1, 2024). Duke Law Journal, Vol. 74, 2024, Available at SSRN: https://ssrn.com/abstract=4745408 or http://dx.doi.org/10.2139/ssrn.4745408

Jeremy Kessler (Contact Author)

Columbia University - Law School ( email )

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