Law and Historical Materialism

Law and Historical Materialism Jeremy Kessler* 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. INTRODUCTION ........................................................................................................ 2 I. THE MINIMAL HISTORICAL MATERIALIST ACCOUNT OF LAW .............................. 4 A. The Material Conditions of Legal Development ........................................... 4 B. Historicity and Humanity as Complicating Factors ..................................... 14 II. WHAT THE MHMAL CAN DO AS WELL AS CLS............................................... 20 A. Balancing Determinacy and Indeterminacy ................................................. 20 B. Functional Underdetermination.................................................................... 24 C. Interpretive Underdetermination .................................................................. 28 III. WHAT THE MHMAL CAN DO BETTER THAN CLS .......................................... 31 * Stanley H. Fuld Professor of Law, Columbia Law School. For their helpful comments on earlier drafts, I thank Ash Ahmed, Grey Anderson, Kate Andrias, Mark Barenberg, Jed Britton-Purdy, Alexis Broderick, Mala Chatterjee, Kellen Funk, Monica Hakimi, Bernard Harcourt, Madhav Khosla, Lev Menand, Katharina Pistor, David Pozen, Alex Raskolnikov, Kate Redburn, Tom Schmidt, Nelson Tebbe, Kendall Thomas, and Caitlin Tully. For excellent research assistance, I thank Grace Bendik and Malik Morris-Sammons. LAW AND HISTORICAL MATERIALISM 2 A. The Limits of Underdetermination .............................................................. 31 B. Relating Law and Capitalism ....................................................................... 35 C. The Advantages of Naturalism ..................................................................... 39 IV. THE LIMITS OF THE MHMAL .......................................................................... 49 A. The Problem of Freedom ............................................................................. 49 B. The Problem of Professionalization ............................................................. 50 C. The Problem of Productivity ........................................................................ 51 D. The Problem of Naturalism .......................................................................... 53 CONCLUSION.......................................................................................................... 56 INTRODUCTION Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From law and political economy (“LPE”) to critical race theory (“CRT”) to feminist legal studies to neo-Marxist legal theory, new perspectives have flourished and marginalized traditions have been revived. What they all share 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.1 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. This Article’s description and defense of the historical materialist account of law can be counterposed to Professor Samuel Moyn’s recent call to reconstruct – rather than abandon – CLS.2 Moyn rightly sees CLS as the last major (or at least the last synoptic) effort to develop a “radical theory of law.” He also persuasively argues that all subsequent efforts to craft a radical legal theory have remained 1 See generally Neil Duxbury, Patterns of American Jurisprudence 421-475 (1995); Robert Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57 (1984). 2 Samuel Moyn, Reconstructing Critical Legal Studies, 134 Yale L.J. __ (forthcoming), available at https://ssrn.com/abstract=4531492. LAW AND HISTORICAL MATERIALISM 3 within the horizon of CLS, sharing its assumptions and unresolved tensions, even if not precisely its same goals or emphases.3 Moyn goes awry, however, when he suggests that the current hegemony of CLS on the legal academic left demonstrates the exhaustion of historical materialism as a tool for understanding law and legal development. It is this presumed exhaustion that frees Moyn to identify the further reconstruction and refinement of CLS as the singular conceptual task confronting the legal academic left today. Moyn arrives at this conclusion by accepting the criticisms of historical materialism leveled by CLS and its successors. In this sense, Moyn’s own methodology testifies to the hegemony of CLS. The problem with remaining in CLS’s ambit, however, is that the historical materialist account of law, when reconstructed with care and charity, is truer than CLS. What do I mean by “truer?” I mean, at least, that the minimal historical materialist account of law (“the MHMAL”) coheres better with, and is more consistent with, a range of other views about the world that most left-leaning legal scholars hold. These views include, most fundamentally, a broadly secular and naturalistic account of reality, including the dependence of mind on body, the dependence of society on human beings, who construct society by making use of their minds and bodies, and the fundamental ontological continuity between humans and the rest of the natural world.4 To the extent one holds those views, and wishes to reason about the law as a social – and thus ultimately a natural – phenomenon in as coherent and consistent a way as possible, the MHMAL is preferable to CLS, however reconstructed. Two caveats at the outset. One reason why the historical materialist account of law tends to be exposed to so much criticism and misunderstanding is that it accepts the burden of being part of a comprehensive social theory — a theory of how the human-centered world really fits together. Because most other accounts of law, including CLS, float free of such a burden, they are easier to defend on their own terms, if ultimately lacking in a convincing metaphysical foundation. Moyn himself notes this deficiency, and proposes the adoption of Roberto Mangabeira Unger’s social theory to supplement the traditional CLS approach to legal theorizing.5 This proposed reliance on Unger to deepen a reconstructed CLS is discussed and rejected in Parts II and III below. Another reason why the historical materialist account of law may be so readily dismissed as exhausted or superseded is that it is not necessarily of much use in producing traditional legal scholarship. CLS and its variants, even when taken in quite radical directions, are more suited to this disciplinary obligation, focused as they are on discursive structures and intentional acts, rather than non-intentional material regularities. As such, there may well be a pragmatic argument for steering 3 The surprisingly persistent hegemony of CLS is confirmed by the degree to which even recent efforts to revive Marxist legal theory concede so much to CLS’s critique of “vulgar Marxism” that they might best be understood as variants of CLS itself. See Moyn, supra note 2, at 30-33. 4 Many left-leaning legal scholars may well be compatibilists or soft dualists along the lines developed by David Chalmers. See David J. Chalmers, Facing Up to the Problem of Consciousness, 2 J. Consciousness Stud. 200 (1995). But I am not aware of any school of left-leaning legal scholarship that proceeds from the proposition that mind is fully autonomous from body. 5 Moyn, supra note 2, at 17-18. LAW AND HISTORICAL MATERIALISM 4 clear of the MHMAL, notwithstanding its greater coherence and consistency with the broader secular, naturalistic worldview to which most left-leaning legal scholars otherwise subscribe, explicitly or implicitly. With those caveats out of the way, this Article proceeds in four Parts. Part I outlines the MHMAL, a synthesis of what I take to be both the most crucial and the most defensible elements of an account of law grounded in historical materialist social theory. This Part avoids many debates within historical materialism, while picking sides in the ones that matter most for the law. Many self-described Marxists will disagree with aspects of the MHMAL, and the MHMAL is not rooted in historical consensus. It is instead rooted in those aspects of the historical materialist tradition that respond most directly to CLS’s critique of functional accounts of law. Part II argues that the MHMAL satisfies the criteria for a sufficiently “radical” and adequately explanatory social theory of law at least as well as CLS, however reconstructed. Part III argues that the MHMAL is superior to CLS, however reconstructed, on several dimensions, including the ability to make sense of: 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. Part IV concludes by discussing the limits of the MHMAL. These limits furnish reasons why one might reject the MHMAL even if Parts I-III are, in and of themselves, convincing. I. THE MINIMAL HISTORICAL MATERIALIST ACCOUNT OF LAW This Part introduces the minimal historical materialist account of law (“the MHMAL”). Part IA describes the MHMAL’s building blocks— productive forces, relations of production, legal relations — and discusses how these building blocks are causally related to one another. Part IIB highlights two additional features of the MHMAL that enable it to avoid implausibly reductive or deterministic explanations of legal development: the recognition of the historicity of human societies; and the emphasis on the place of human beings within the productive forces. A. The Material Conditions of Legal Development The minimal historical materialist account of law (“MHMAL”) holds that social reality is ultimately determined by the development of the productive forces (MHMAL 1). The productive forces include natural resources (such as waterways, mineral deposits, flora and fauna), artificial resources (tools fashioned out of natural resources by humans), and, most importantly, human labor power – what human beings can do with their minds and bodies at a given place and time.6 These forces 6 Note that the line between natural and artificial resources blurs quickly. See, e.g., Karl Marx & Friedrich Engels, The German Ideology 57 (1965) (“Even the objects of simplest ‘sensuous certainty’ are only given to [humans] through social development, industry, and commercial intercourse. The cherry-tree, like almost all fruit-trees, was, as is well known, only a few centuries ago transplanted by commerce into our [region], and therefore only by this action of a definite society in a definite age has it become ‘sensuous certainty’ for Feuerbach.”); Maurice Godelier, The LAW AND HISTORICAL MATERIALISM 5 are the forces that are essential for the production and reproduction of human life, and of the distinctive societies in which that life flourishes.7 The productive forces could not, however, be productive were it not for the relations of production – the social relations that directly organize the production of material goods. The social relations of production are all those relations that: “determin[e] the . . . form of access to resources and of control of means of production;” “distribut[e] the labour power of the society’s members among the different labour processes and organiz[e] these different processes;” and “determin[e] the social form of the circulation and distribution of the products of individual and collective labour.”8 As the productive forces develop, the relations of production tend to develop in a manner that is favorable to the productive forces’ continued development (MHMAL 2). To affirm MHMAL 2 is to imply a functional explanation of the relations of production in terms of the productive forces. If asked “why are the relations of production such-and-such?,” a historical materialist will answer, “because those relations are well-suited to the further development of the productive forces.”9 This answer does not purport to be a complete explanation of Mental and the Material 5 (Martin Thom trans., 1986) (“The boundary between nature and culture, the distinction between the material and the mental, tend moreover to dissolve once we approach that part of nature which is directly subordinated to humanity – that is, produced or reproduced by it (domestic animals and plants, tools, weapons, clothes). Although external to us this nature is not external to culture, society or history.”); Alfred Schmidt, The Concept of Nature in Marx 101-102 (Ben Fowkes trans., 2014) [1962] (“In the case of the tool, ‘nature itself becomes one of the organs of [the human’s] activity, one that he annexes to his own bodily organs’ . . . . With the development of artificial instruments of production, man’s control of nature increases both extensively and intensively. It is ‘the work of history,’ said Marx, ‘to rediscover the various uses of things.’ . . . The tool is a portion of nature that has already been incorporated by man.”). 7 See, e.g., Godelier, supra note 6, at 130 (“The productive forces, i.e. the material and intellectual means that members of this society utilize, after having invented, borrowed or inherited them, within the various labour processes through which they act upon nature for the purpose of extracting their means of existence, these means thereafter constituting a socialized part of nature”); Mariarosa Dalla Costa & Selma James, The Power of Women & the Subversion of the Community (1972) (extending the analysis of the productive forces to the forces and relations of reproduction); Lise Vogel, Marxism and the Oppression of Women (1983) (developing the theory of social reproduction); Maria Mies, Patriarchy and Accumulation on a World Scale (1986) (doing so in comparative perspective, with a particular emphasis on societies transitioning to capitalism); Silvia Federici, Revolution at Point Zero (2012) (tracing the development and application of social reproduction theory); Johanna Brenner & Barbara Laslett, Gender and Social Reproduction: Historical Perspectives, 15 Annual Review of Sociology 381 (1989) (refining the theory of social reproduction); Cinzia Arruzza, Functionalist, Determinist, Reductionist: Social Reproduction Feminism and its Critics, 80 Science & Society 9 (2016) (responding to critics of social reproduction theory). 8 Godelier, supra note 6, at 130-131. 9 Cf. G.A. Cohen, Karl Marx’s Theory of History 278-279 (1978) (“To say that [the relations of production correspond] to the achieved level of the productive forces means: [those relations provide] maximum scope for the fruitful use and development of the forces, and obtain . . . because [they] provide . . . such scope. To say that being determines consciousness means, at least in large part: the character of the leading ideas of a society is explained by their propensity, in virtue of that character, to sustain the structure of economic roles called for by the productive forces.”). For further discussion of functional explanation as the necessary foundation of historical materialist analysis, see G. A. Cohen, Walt on Historical Materialism and Functional Explanation, 97 Ethics 219 (1986). LAW AND HISTORICAL MATERIALISM 6 the relations of production. There are a host of factors that help to explain the specificity of the relations of production in a particular society, and no functional explanation will enumerate them all.10 But the historical materialist is committed to the claim that the productive forces exert a preponderant influence on the shape of the relations of production, and to the claim that that very shape facilitates the development of the productive forces.11 10 See Cohen, supra note 9, at 287 (‘Functional explanations . . . have intellectual validity and value, even if it is said that ‘they raise more questions than they answer.’ For they answer some questions, and the further ones to which they give rise point research in the right direction.”). 11 Critics of Cohen’s interpretation of historical materialism have objected both to the primacy it accords functional explanation and to its identification of the productive forces as the fundamental functional cause. See inter alia Jon Elster, An Introduction to Karl Marx (1986); Brian Leiter, Marxism and the Continuing Irrelevance of Normative Theory, 54 Stan. L. Rev. 1129, 1138-1142 (2002); Peter Railton, Explanatory Asymmetry in Historical Materialism, 97 Ethics 233 (1986); Steven Walt, Historical Materialism, Dispositions, and Functional Explanation, 97 Ethics 196 (1986). Railton and Leiter allow that Cohen’s functional explanatory gloss on historical materialism is coherent, and consistent with at least some strands of Marx’s own writing. But they reject the causal primacy of the productive forces. In its place, they identify the struggle among classes for control of the production process as the ultimate cause of historical change. Cf. Nikos Poulantzas, State, Power, Socialism 86-87 (Patrick Camiller trans., 2014) [1978] (likewise identifying class struggle rather than the development of the productive forces as the fundamental driver of historical development). Less hangs on this distinction than Leiter and Railton seem to realize, for what leads to class struggle on their own account is the development of the productive forces. Per Railton, supra, at 237: Historically man has enlarged what are in effect his natural (“material”) possibilities through the development of new productive forces, and, with this, new ranges of adaptations or social forms ... became possible. When the terms of competition thus shift, individuals or groups who happen to be so situated or so to act as to take differential advantage of these changes in adaptive possibilities will acquire increased resources, power, and so on. The result may be the emergence into prominence of new groups at the expense of those groups who previously commanded resources, power, and so on. If the terms of competition shift markedly, and if new groups emerge who take advantage of these changes, the resulting conflict may lead to an overthrow of existing social relations . . . a dominant class that cannot achieve efficient exploitation of the possibilities inherent in the existing state of productive forces will tend to be replaced by a class that can, and, in the process, social relations as a whole will be reshaped to reflect the mode of existence of this more efficient class. Endorsing Railton’s account, Leiter concludes, “So functionalist explanations are simply a gloss on ordinary causal explanations in terms of class struggle” (Leiter, supra, at 1142). One can reply, however, that “ordinary causal explanations in terms of class struggle” are simply a gloss on Cohen’s functional explanations in terms of the productive forces. For if one asks “why did that new class displace the previously dominant class?”, the answer remains “because the dominance of the new class favors the development of the productive forces.” In Cohen’s terminology, Leiter and Railton’s musings about class struggle actually provide the provisional answer to a “how” question: “how did the development of the productive forces help to cause the development of the relations of production?” This “how” question might be prompted by the initial “why” question, “why did the relations of production change in the way they did?”, and the historical materialist’s traditional answer: “because that change favored the development of the productive forces.” If one then asks “but how did that change favor the development of the productive forces?”, Cohen, Leiter, and Railton can all harmoniously respond: “Because that change LAW AND HISTORICAL MATERIALISM 7 The reason for this commitment lies in the overriding insight of historical materialism – that the explanation of society will be found in the “material conditions of social existence.”12 It is this insight that links historical materialism to the broader project of secular naturalism, a project to which most left-leaning legal theorists adhere, whether wittingly or unwittingly. If one rejects secular naturalism, then one can feel free to reject the commitment to the functional explanation of social relations in terms of the productive forces. But if one is reluctant to reject secular naturalism, then one ought to take seriously the historical materialist account of social reality in general, and of the law in particular.13 MHMAL 2 does not mean that the relations of production at any particular time and place do in fact maximize or optimize the output of the productive forces.14 Nor does MHMAL 2 mean that the relations of production tend to render human use of the productive forces sustainable or just. The tendency of the relations of production to develop in a manner that is fruitful for the development of the productive forces only means that that the development of the relations of production tends to favor the increased productivity of the productive forces. To believe MHMAL 2 is to believe that humans tend to figure out how to use the productive forces at their was consistent with the new and more productive uses of the productive forces that a certain class, having itself developed new productive capacities, was able to achieve.” Leiter and other critics might still be right that there is something impermissibly teleological or simply factually wrong about a kind of historical explanation that assumes that human history is driven by the imperative to develop the productive forces. See inter alia Charles Mills, From Class to Race 37-58 (2003); Joshua Cohen, Book Review, 79 J. Phil. 253, 262-66 (1982) (reviewing Cohen, supra note 9); Leiter, supra, at 1142. But explaining the development of the relations of production in terms of the outcome of a previous class struggle, an outcome itself explained in terms of the classes’ differential capacity to exploit the totality of the productive forces, does not avoid the supposedly objectionable assumption. For a classic example of the differential capacity to exploit the productive forces determining the outcome of a class struggle, and thus the development of new relations of production, see generally W.E.B. Dubois, Black Reconstruction (1935). 12 Godelier, supra note 6, at 148. 13 See, e.g., Schmidt, supra note 6, at 96 (“Marx described social production as ‘the basis of the whole sensuous world.’ He insisted nevertheless that the social mediation of nature confirms its ‘priority’ rather than abolishes it. Matter exists independently of men. Men create the ‘productive capacity of matter only if matter is presupposed.’”); Sebastiano Timpanaro, On Materialism 40 (Lawrence Garner trans., 1985) [1975] (“Marxism was born as an affirmation of the decisive primacy of the socio-economic level over juridical, political and cultural phenomena, and as an affirmation of the historicity of the economy. It might be said that in the expression ‘historical materialism,’ the noun was a polemic against Hegel and a whole philosophical tradition which affirmed the primacy of the spirit over any economic structure, whereas the adjective was a polemic against Feuerbach and English classical economics, in short against any statically naturalist conception of human society.”). 14 See, e.g., Cohen, supra note 9, at 56 (“The fact that something is not produced, or that what is produced is produced inefficiently relative to available techniques and resources – these do not tell against the level of development of the productive forces. When relations of production ‘fetter’ productive forces, they inhibit not only their development but also their optimal use. But sub-optimal use does not entail a drop in the level of development of the productive forces, as it would if the power of the productive forces were measured with reference to actual rather than possible output. (Hence our concept of productivity differs from the one the economist uses when he compares the physical productivity of labour in different societies. Productivity in our sense is the maximum to which productivity in that sense could be raised, with existing means and knowledge, and in abstraction from social constraints.)”). LAW AND HISTORICAL MATERIALISM 8 disposal, including themselves, in a manner that is conducive to the increasingly efficient production of the material goods necessary for their societies’ reproduction.15 Many critics of historical materialism have balked at the conceit that, on the one hand, the productive forces determine the relations of production while, on the other hand, the relations of production are necessary to render the productive forces . . . productive. This kind of dialectic is characteristic of all functional explanations, in which the function of an effect points us back to at least one of its causes. “At least one” because functional explanations rarely spell out, in and of themselves, the complete causal structure of a phenomenon. In the British philosopher G.A. Cohen’s terminology, functional explanations answer “why” questions, such as “why do the relations of production in this society take this particular form?” or “why does this species of lizard have a long tail?” The answer to the first question is “because that form is conducive to the development of the productive forces.” The answer to the second question is “because that length of tail is conducive to the lizard’s survival.” The productive forces (which enable the production and reproduction of human life) and the lizard’s survival are, in this sense, causes of the relations of production and the lizard’s long tail. But they are not the only the causes. To understand fully how the development of the productive forces caused the relations of production or how the lizard’s survival caused the lizard’s long tail, we need further information.16 Neo-Darwinian evolutionary theory is the classic example of a more-or-less fully worked out causal theory grounded in functional explanation. What that theory did was, in Cohen’s terms, “elaborate” how the function of the lizard’s long tail explains that tail’s size: chance genetic variations created a diversity of lizard morphologies and then environmental pressures selected the long tail as the fittest – or at least a comparatively well-fitting – tail. Historical materialism has never achieved consensus on such a complete causal theory, for all the reasons that causal explanations of social phenomena are harder to specify than causal explanations of natural phenomena. But even in this incomplete form, historical materialism’s functional explanations – its answers to “why” questions about social phenomena – guide empirical researchers toward the right kinds of “how” questions. As the decades-long debate about the transition from feudalism to capitalism demonstrates, “how” questions driven by historical materialism’s answers to “why” questions can bear impressive empirical fruit.17 Cohen’s analogical illustration of the complex functional relationship between productive forces and relations of production is still unmatched: Four struts are driven into the ground, each protruding the same distance above it. They are unstable. They sway and wobble in 15 For further discussion of the definition of “productivity” and the plausibility of historical materialist assumptions about productivity growth, see infra Part IVC. 16 See Cohen, supra note 9, at 249-277. 17 See generally Ellen Meiksins Wood, The Origin of Capitalism (1999); The Transition from Feudalism to Capitalism (Rodney Hilton ed., 1976); Maurice Dobb, Studies in the Development of Capitalism (1946); Robert Brenner, Agrarian Class Structure and Economic Development in PreIndustrial Europe, 70 Past & Present 30 (1976). LAW AND HISTORICAL MATERIALISM 9 winds of force 2. Then a roof is attached to the four struts, and now they stay firmly erect in all winds under force 6. Of this roof one can say: (i) it is supported by the struts, and (ii) it renders them more stable.18 This same architectural metaphor applies to the relationship between the relations of production and all other social relations. Just as the relations of production are functionally explained by, while being essential to, the productivity of the productive forces, the other social relations – legal, political, religious, familial, artistic, etc. – tend to develop in a manner that is conducive to the stabilization and reproduction of the social relations of production (MHMAL 3). These not-directly-productive social relations compose what Marx called “the superstructure” (der Überbau) of a given society, while the relations of production and the productive forces compose what Marx called “the base” (die Basis). In this way, the social relations of production tend to develop in a manner conducive to the development of the productive forces, and the other social relations tend to develop in a manner that is conducive to the reproduction of the relations of production.19 In the abstract, then, the productive forces, the relations of production, and all other social relations can be understood as working together to produce and reproduce human life within a given society. “In the abstract” because, most of the time, these elements of social reality do not work together so harmoniously. The intrinsic creativity of human labor, about which more below, entails that the productive forces will gradually overlap the relations of production, and the relations of production the other social relations, leading to perpetual friction, disjointedness, and social conflict. Such persistent disharmony is what distinguishes functional explanation in historical materialism from functionalism in the social sciences.20 This brings us to the matter of specifically legal social relations, a particularly important and vexed component of Marx’s superstructure. The minimal historical materialist account of law holds that: “[L]egal structures rise and fall according as they promote or frustrate forms of economy [that is, relations of production] favoured by the productive forces. [Legal] relations have the character they do because production relations require that they have it.”21 A common critique of the MHMAL is that it is conceptually – as well as practically – impossible to distinguish relations of production in capitalist societies from legal relations.22 18 Cohen, supra note 9, at 231. Cf. Godelier, supra note 6, at 131 (“It is worth remembering, however, that productive forces and production relations, though distinct, never exist independently of each other but are always combined, articulated in a particular way.”). 19 For recent critiques of the base/superstructure typology, see Christopher Tomlins, Past Prescient, 92 U. Colorado L. Rev. 1192 (2021); Nate Holdren & Rob Hunter, No Bases, No Superstructures: Against Legal Economism, Legal Form (Jan. 15, 2020), https://legalform.blog/2020/01/15/no-basesno-superstructures-against-legal-economism-nate-holdren-and-rob-hunter. 20 See Cohen, supra note 9, at 283-285. 21 Id. at 231. 22 See, e.g., Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era 6 n. 12 (2020) (“The rule of the commodity is in important respects, and perhaps LAW AND HISTORICAL MATERIALISM 10 Even Marx himself often referred to relations of production as property relations, such as when speaking of ownership of the means of production. Marx nonetheless maintained a distinction between de facto and de jure ownership: for instance, certain production tools were “transformed into the property of the direct producer . . . first in fact, then also legally.”23 G.A. Cohen demonstrated that such a distinction makes sense, logically as well as historically, and offered a terminology capable of maintaining it. When speaking of relations of production, Cohen recommended using a language of powers, rather than of rights. Thus, one may have power to use a means of production, or power to withhold it, or power to prevent others from using it, or power to confer to another the power to use it. Such powers could be consequents of having legal rights . . . or not. Similarly, one can have a legal right to withhold a means of production, but lack the power to withhold it. Per Cohen: If x has power p and power p matches right r, we may say that, roughly speaking, the content of the power he has is the same as the content of right r, but we cannot infer that he also has right r. Possession of powers does not entail possession of the rights they match, nor does possession of rights entail possession of the powers matching them.24 To put the point a bit less formally: whether legal ownership of the means of production is a necessary condition of effective control of the means of production, or effective control is a necessary condition of legal ownership, or neither, or both, are empirical and theoretical questions that require further evidence and argument entirely, legally constituted.”); Gordon, supra note 1, at 103 (“In practice, it is just about impossible to describe any ‘basic’ social practices without describing the legal relations among the people involved—legal relations that don’t simply condition how the people relate to each other but to an important extent define the constitutive terms of the relationship, relations such as lord and peasant, master and slave, employer and employee, ratepayer and utility, and taxpayer and municipality.”). For a particularly thoughtful critique of the effort to distinguish between capitalist relations of production and legal relations, see generally Katharina Pistor, The Code of Capital (2019). Even some scholars otherwise sympathetic to the MHMAL have suggested that typically “superstructural” social relations – including legal relations – might function as part of the base, at least in certain societies. See, e.g., China Mieville, Between Equal Rights 88 (2006) (arguing that in capitalist societies, the legal form – but not the substance of particular laws – should be assigned to the base rather than the superstructure); Godelier, supra note 6, at 146-149 (arguing that when relations of kinship, religion, or politics directly perform the function of relations of production, as they did in certain pre-capitalist societies, they should be identified with the base rather than the superstructure); Hugh Collins, Marxism and Law 85-90 (1982) (arguing that certain normative and “metanormative” relations – including legal ones – are essential elements of the relations of production); Perry Anderson, Lineages of the Absolutist State 401-405 (1979) (arguing that legal relations functioned as part of the base of pre-capitalist societies). But see Cohen, supra note 9, at 247-248 (arguing against Anderson’s concession). 23 III Karl Marx, Capital 777 (1962). 24 Cohen, supra note 9, at 219. The avowedly non-Marxist sociologist David Bloor defended a similar distinction between ownership and control via Wittgenstein. See David Bloor, Wittgenstein, Rules, and Institutions 64-67 (1997). LAW AND HISTORICAL MATERIALISM 11 before their answers become obvious. Furthermore, those answers may well depend on the given society under study.25 While Cohen developed the most plausible account of the logical structure of historical materialist explanation, the Russian legal theorist Evgeny Pashukanis developed the most plausible account of the kinds of legal relations that capitalist production relations require. Pashukanis’s account, known as the commodity-form theory of law, holds that the form of legal relations in capitalist society emerges – both logically and historically – from the form of commodity exchange.26 It is because the form of commodity exchange entails the equality of persons-asexchangers that the fundamental feature of the capitalist legal form is “equal right,” or the equality of legal persons. As China Mieville summarizes Pashukanis’s insight: “the legal form is the form of the relations that inhere between necessarily abstract and isolated bearers of commodities. Those bearers are derived from the commodity form itself, and are an intrinsic part of the commodity relation.”27 Commodity exchange, of course, predates capitalism. This fact helps to explain why capitalist legal relations borrow extensively from feudal legal relations. But it was only under capitalism that the form of commodity exchange became universalized, penetrating every level of society including, most importantly, the production processes themselves.28 Workers’ sale of their own labor power as a commodity, and the purchase of that commodity by producers, is the engine of capitalist production, a mode of production that is itself always “production for exchange.”29 Capitalist legal relations both facilitate and memorialize this universalization of commodity exchange by positing workers, producers, and consumers as equivalent legal persons, each capable of and authorized to participate in the ceaseless exchange of commodities as the foundation of social order.30 25 For Cohen’s elaboration of the “rechtsfrei” (law-free) description of relations of effective control, and his argument for the cogency of explaining property relations in terms of the former, see Cohen, supra note 9, at 216-240. 26 See generally Evgeny B. Pashukanis, Law and Marxism: A General Theory 85-133 (Barbara Einhorn trans., 1983). 27 Mieville, supra note 22, at 92. 28 For a useful definition of capitalism, offered in response to Moyn’s doubts about that mode of production’s existence, see Rob Hunter, Complexity Without Contradictions: The Social Theory of Left-Liberal Legal Thought, Legal Form (Oct. 12, 2023), https://legalform.blog/2023/10/12/huntermoyn-lpe-cls/#sdfootnote24anc (“Capitalist society is none other than that particular (and historically distinct) form of society in which everything, including the question of whether or not anything that anyone might happen to need or want is actually available, is subordinated to the investment of money into the production and exchange of commodities, so that more and more money may be accumulated, indefinitely and with no other purpose. Capital qua self-valorising value reproduces and expands through the generalised production and exchange of commodities, and it may appear in a variety of juridical and institutional guises.”). 29 Mieville, supra note 22, at 93. 30 For recent reflections on the normative implications of these relations, see Virginia Montouvalou, Legal Construction of Structures of Exploitation, Philosophical Foundations of Labor Law 188 (Hugh Collins, Gillian Lester, and Virginia Montouvalou eds., 2019); and Jonathan Wolff, Structures of Exploitation, Philosophical Foundations of Labor Law, supra at 175. See also Mieville, supra note 22, at 92-93 (“While commodity exchange under capitalism is different from simple commodity exchange, in that it is based on and reproductive of exploitative [class-based] relations of production, it is also true that as commodity exchange it is also free and equal exchange of equivalents, borne by abstract, isolated social agents. . . . [T]he generalizing of the legal form can LAW AND HISTORICAL MATERIALISM 12 This account leaves open many questions concerning the finer-grained structure and content of particular legal relations. But it guides empirical and theoretical research into those questions. For instance, might the current controversies surrounding administrative legal relations in capitalist societies be illuminated by the inability of those legal relations to transcend the norm of equal right imposed by the commodity form?31 Might persistent questions about the efficacy of international legal relations to shape state behavior be illuminated by the degree to which international legal relations are beholden to the commodity form?32 Might the historical co-development of labor law and the corporate form be illuminated by the imperative to structure markets as markets of – and in – formally equal legal persons?33 Might debates about the relationship between antidiscrimination law and contract law in capitalist societies be sharpened by the hypothesis that both legal regimes struggle to stay within the bounds of the commodity form?34 Might the universalization of the commodity form during the nineteenth and twentieth centuries help to explain the peculiarities of one particular national legal culture’s historical development?35 A further advantage of the commodity-form theory of law is that it helps to explain a puzzle that increasingly confronts legal scholars at a great distance from historical materialism itself: why is capitalism, and particularly the forms of extreme inequality it produces, so resistant to legal reform? Scholars who have taken up this question in recent years tend to arrive at a claim that there just is something about law in capitalist society – some essential feature or constitutive norm – that resists efforts to subject the most economically powerful to differential treatment in the interests of the less economically powerful, even when the law on only occur under conditions of generalized commodity exchange. The final universalization of a commodity economy is, of course, capitalism. And, crucially and uniquely under capitalism, all social production is production for exchange . . . . [C]apitalist production is dependent on circulation like no other mode of production in history. Not only is all production for exchange, but the producers only avail themselves of production by exchange: that is the nature of wage-labour as opposed to other forms of surplus-extracting relations. The wage-labourer sells her labour power to the capitalist for its value, in an act of exchange without which capital would be paralysed.”); Schmidt, supra note 6, at 92 (“In the Marxist representation of the metamorphosis of the commodity, it is the reduction of the different forms of concrete labour to qualitatively equal, abstract human labour in general conditioned by a specifically bourgeois society, which is dealt with, rather than the directly productive relation of men to nature (as the useful material of their use-values), i.e., the ‘natural precondition of human existence’ which is characteristic of all forms of society. The commodity possesses exchange-value as the ‘materialization’ of abstract human labour, not through its subjective and objective determination by nature. The investigation of the creation of use-values through the labour-process does not at first require a characterization of the relations of production within which the process takes place. The historical specificity of an economic epoch appears first through the social relations of individuals in the process of exchange, which are distinct from those occurring in the labour process.”). 31 Mieville, supra note 22, at 111-112. 32 Id. at 153-293. 33 See Zoe Adams, Labour and the Wage (2020); Geoffrey Kay and James Mott, Political Order and the Law of Labor 102-117 (1982). 34 See Howard Engelskirchen, Consideration as the Commitment to Relinquish Autonomy, 27 Seton Hall L. Rev. 490 (1997). 35 See Anthony Chase, Law and History: The Revolution of the American Legal System (1997). LAW AND HISTORICAL MATERIALISM 13 the books would suggest such differential treatment is perfectly permissible.36 The essential feature or constitutive norm that continues to bedevil these scholars – and the reform efforts that they analyze and for which some advocate – may well be the foundational norm of equal right that Pashukanis traces back to the form of commodity exchange itself. The MHMAL is thus committed both to the explanation of the development of legal relations in terms of the development of the relations of production, and to the explanation of the development of the relations of production in terms of the development of the productive forces. This chain of explanatory dependencies is what makes the MHMAL a materialist account of law. The MHMAL is additionally, although more loosely, committed to the more specific claim that the form that legal relations take in mature capitalist societies is explicable in terms of the form of commodity exchange and its universalization in those societies. “More loosely” because the precise functional relationship between any particular social relation and the relations of production at a given time and place remains an empirical question. Pashukanis’s hypothesis is nonetheless compelling and has produced empirical and theoretical work at least as illuminating as that produced by alternative hypotheses.37 36 See Katharina Pistor, The Laws of Capitalism (working paper) (on file with the author); Alex Raskolnikov, Law for the Rich (working paper) (on file with the author). 37 One significant alternative was offered by Nikos Poulantzas. After initially hewing to Pashukanis’s commodity form theory, Poulantzas later repudiated it, arguing that any historical materialist explanation of law ought to be grounded in the division of labor at the point of production rather than in relations of distribution or circulation – relations of exchange. See Poulantzas, supra note 11, at 86-88; see also Bob Fine, Democracy and the Rule of Law (1984); Roger Cotterell, Pashukanis: Selected Writings on Marxism and Law, 1980 British J. L. & Soc’y 7; Gary Young, Justice and Capitalist Production, 3 Canadian J. Phil. 421 (1978). As China Mieville explains, however, this recurrent critique is misplaced in that what is special about capitalist production is precisely its saturation by relations of exchange. Mieville, supra note 22, at 92-94; see also Schmidt, supra note 6, at 92-94 (arguing that, for Marx, the historically specific transformation and universalization of the exchange relationship was the basis of capitalist production); Chris Arthur, Introduction, in Evgeny Pashukanis, Law and Marxism: A General Theory (1978) (making the same point); Susan von Arx, An Examination of E.B. Pashukanis's General Theory of Law and Marxism (Diss., SUNY-Buffalo, 1997) (making the same point). Another – far more popular – alternative is the hypothesis that law should be understood as a species of ideology. See inter alia Louis Althusser, On the Reproduction of Capitalism (2014); Judith Butler, The Psychic Life of Power (1997); Antonio Gramsci, Selections from the Prison Notebooks 195-196, 246-247 (Quintin Hoare & Geoffrey Nowell-Smith trans., 1971); Paul Hirst, On Law and Ideology (1979); Colin Sumner, Reading Ideologies: An Investigation into the Marxist Theory of Ideology and Law (1979). The American reception of Gramsci and, to a lesser extent, Althusser deeply shaped the critical legal studies and critical race theory movements. See Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-41, 62 Minn. L. Rev. 265 (1978); Duncan Kennedy, Antonio Gramsci and the Legal System, in 6 ALSA F. 32 (1982); Kimberlé W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev 1331 (1988); William E. Forbath, The Shaping of the American Labor Movement, 102 Harv. L. Rev. 1109 (1989); Robert Gordon, Some Critical Theories of Law and Their Critics, in The Politics of Law 641 (David Kairys ed., 1998); Kendall Thomas, Beyond the Privacy Principle, 92 Colum. L. Rev. 1431 (1992); Mark Barenberg, Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production, 94 Colum. L. Rev. 753 (1994). For an important critique of the Marxist and post-Marxist tendency to over-state the importance of ideology, see generally LAW AND HISTORICAL MATERIALISM 14 B. Historicity and Humanity as Complicating Factors It is the explanatory dependency of the social relations of law, politics, religion, etc., on the social relations of production and, ultimately, the productive forces that gives rise to the perennial charge that historical materialism is rigidly deterministic or reductive. Sometimes this determinism or reductivism is traced to historical materialism’s “functionalism,” sometimes to its “instrumentalism.” Although these terms mean different things, they are often used interchangeably in anti-Marxist polemics.38 Whatever terms are used, the core of the charge is that historical materialists believe – and are bound to believe – that one can “read off” the legal or political or religious relations, institutions, and ideas that animate a given society from the relations of production and, ultimately, the productive forces at that society’s disposal. In the domains of legal history and theory, this charge has been felt to be particularly grievous because it suggests that historical materialists have little or nothing to say about legal form, legal substance, legal contestation, and legal change. For the historical materialist, the intuition goes, the analysis of legal relations at a given time and place can – and must – be reduced to the analysis of the development of the forces and relations of production at that given time and place. Such a commitment to the rigid determination of legal (or other social) relations by the forces and relations of production is what is commonly referred to as vulgar Marxism. But there are at least two reasons why historical materialists are not committed to such a position. The first has to do with the historicity of social relations. The second has to do with the humanity – or the human-centered character – of the productive forces. To understand what the MHMAL means by historicity, begin with the uneven tempo at which productive forces, relations of production, and other social relations change over time. When there is a development in the productive forces (such as the arrival of a parasite that ravishes an agricultural staple, or the invention of a new tool, or the discovery by some group of humans of a new skill), the social relations – of production, as well as of law, of politics, of religion, etc. – are not immediately transformed. To the contrary, the old social relations persist, explicable in terms of the earlier state of development of the productive forces. How those old social relations will relate to the new composition of productive forces is hard to predict, and impossible to predict without extensive study of the society in question. Many social relations will undoubtedly remain unchanged and untroubled; some may be Nicholas Abercrombie et al., The Dominant Ideology Thesis (1980). Not all of the previously cited work, however, falls afoul of this critique to the same extent. See especially Forbath, supra, Thomas, supra, and Barenberg, supra, for efforts to trace the material bases of ideological efficacy and ideological change. 38 Some Marxist legal theorists, such as Pyotr Stuchka, were indeed instrumentalists, holding that the content of capitalist law is traceable to the preferences of the bourgeoisie. Pashukanis and Cohen were emphatically not instrumentalists. The degree to which their commitment to functional explanation makes them “functionalists” is debatable, because of the varied meanings of functionalism itself. See, e.g., Cohen, supra note 9, at 283-285 (distinguishing the functional explanations to which historical materialists are committed from the functionalism of Malinowski and Radcliffe-Brown). LAW AND HISTORICAL MATERIALISM 15 transformed; some others may disappear – or persist in a state of increasing conflict with the social relations that have adapted to the new productive force. Such local changes, and the global conflicts they engender, are happening all the time. All societies are societies in flux – that is, societies in time. The fundamentally historical character of society – at least from the standpoint of the MHMAL – frustrates simplistically deterministic or reductive explanations of the character of a given social relation. Making matters more complicated – and less reductive – still, historicity does not only mean that various social relations and productive forces will frequently find themselves out of joint with one another. It also means that the gradual and uneven tempo of developments within the social relations, themselves responsive to developments within the productive forces, will give rise to unpredictable interaction effects. For instance, if a particular social relation of production changes relatively rapidly in response to the development of some productive force, that may trigger a cascade of further changes throughout the social relations, as other relations of production, as well as various legal, political, or religious relations, interact with the newly transformed relation of production. Another interactive possibility is that the relatively rapid change of a particular relation of production will forestall the need for more global changes in the social structure. In other words, one development within the social relations – itself responding to a change in the productive forces – may either favor or disfavor one or another further development within the social relations. The timing and character of a particular development within the social relations will either mitigate or exacerbate the overall pressure on the social structure to change further. To offer a complete explanation – or even less likely, a complete prediction – of these interaction effects will require reference not only to the functional requirements of the productive forces but also to the internal organizational logic of each of the social relations. And to understand these internal logics is to engage with their specific forms – whether legal, political, religious, and so on. Finally, this sort of attention to the specific formal qualities of the various social relations will reveal that not every aspect of a social relation is explicable in terms of the development of the productive forces. In other words, historical materialism does not claim that every aspect of a given social relation is explained exhaustively by the degree to which it facilitates the development of the productive forces. Two formally distinct legal relations may be equally facilitative – or equally obstructive – of a particular stage of capitalist development. The formal differences between the two legal relations may be explained by quirks in local geography, ecology, language, and so on, as well as by the pressures placed on each legal relation by the gradual, uneven, and interactive development of the surrounding social relations in the society in question. It will take considerable empirical as well as theoretical effort to identify the shared characteristics of the two formally distinct legal relations that render them equally facilitative – or obstructive – of the relevant productive forces and relations of production. All that that historical materialism is committed to is the proposition that there are some such shared characteristics the existence of which is explicable by the functional role they played in facilitating some prior development in the productive forces and relations of production. LAW AND HISTORICAL MATERIALISM 16 A second reason why the MHMAL resists a simplistically deterministic or reductive understanding of social relations has to do with the place of human beings within the productive forces. Critics of historical materialism, and of historical materialist approaches to law in particular, tend to assume that most of what we associate with humanity other than its bare capacity to produce physical force comes by way of the superstructure – the social relations other than the relations of production. Many defenders of one form of historical materialism or another have also shared this assumption. In such accounts, the relationship between infrastructure (the productive forces and relations of production) and superstructure (all other social relations and institutions) resembles the relationship between matter and spirit in the more simplistic versions of dualism. But as theorists and historians of historical materialism have long emphasized, human beings in all their physical and mental complexity are fully present at the most fundamental level of the infrastructure – where they appear in the form of the productive force of human labor power. Indeed, human labor power, mental and physical, conscious and unconscious, is the most important of all the productive forces. Here is how the philosopher Shlomo Avineri put the point in 1968: Had Marx ever viewed productive forces as objective, economic “facts” that do not need the mediation of human consciousness for their emergence and existence, then the problem would be serious indeed. But according to Marx ‘productive forces’ are not objective facts external to human consciousness. They represent the organization of human consciousness and human activity: Niagara Falls does or does not constitute a ‘productive force’ not because of its natural, “objective” attributes per se, but because surrounding society does or does not view it as a productive force and does or does not harness it to purposive human action. Consequently, the distinction between “material base” and “super-structure” is not a distinction between “matter” and “spirit” . . . but between conscious human activity, aimed at the creation and preservation of the conditions of human life, and human consciousness, which furnishes reasons, rationalizations and modes of legitimization and moral justification for the specific forms that activity takes. . . . The concrete expression of this human activity is work, the creation of tools of human activity that leaves its impact on the world. Since he calls work man’s specific attribute, Marx conceives history as the continuum of modes of work over generations. The pre-eminence of Marx’s discussion of economic activity does not derive from the pre-eminence of material economic values, but from Marx’s view of man as homo faber. The conditions in which labour manifests itself provide the key to the understanding of human history and to its ultimate and immanent vindication.39 39 Shlomo Avineri, The Social and Political Thought of Karl Marx 75-77 (1968). LAW AND HISTORICAL MATERIALISM 17 A decade after Avineri wrote, the anthropologist Maurice Godelier arrived at a similar conception, driven to it as much by his fieldwork in Papua New Guinea as his reading of Marx. Godelier first defines the productive forces as “the material and intellectual means that members of [a given] society utilize, after having invented, borrowed or inherited them, within the various labor processes through which they act upon nature for the purpose of extracting their means of existence, these means thereafter constituting a socialized part of nature.”40 He then specifies that, “[i]n the first place, material means are the human beings themselves, their own bodies and physical capabilities.”41 Humans soon supplement their own bodies with tools, those “means interposed by human beings between themselves and nature in order to act upon the latter.” These tools “can be found readymade or else can be manufactured.”42 Crucially, Godelier insists that the use of both tools and the human body itself “implies the application of a complex set of representations . . . representations of the goal, the stages, and the effects of activities which we call labor.”43 It follows that “[w]e thus find inside all humankind’s material activities upon nature a complex set of mental realities whose presence and intervention are essential if this activity is to occur at all.” To speak of human labor power as a productive force is thus to find “right at the heart of the most material area of societies’ infrastructure . . . a mental element.”44 And not only a mental element, but a communicative element as well. For the mental representations intrinsic to the physical process of transforming nature “do not only exist in the mind,” but “are also ideas that are expressed in a language.”45 Only if a technique first discovered or invented by some individual or group can be learned by and transmitted to others will “the conservation of the productive forces” be possible. Because the conjugation of physical and mental processes “must be communicated from generation to generation via language and body language,” Godelier “count[s] among the productive forces not only [mental representations] but also the means – linguistic or otherwise – required to express them socially and to transmit them within a given society and ‘culture.’” 46 This analysis led Godelier to conclude “that thought and language necessarily belong to the productive forces.” But it also leads him to conceive of the distinction between infrastructure and superstructure not as a distinction between “material and non-material reality,” but rather as “a distinction between functions.” What Godelier means by this is that material and mental processes are at work within the productive forces, within the relations of production, and within all the other social 40 Godelier, supra note 6, at 130. Id. at 131. 42 Id. 43 Id. at 132. 44 Id. at 136-137 45 Id. at 137. 46 Id. Cf. Lucio Colletti, From Rousseau to Lenin 6-7 (1972) (“[T]o what is ‘production’ reduced when one abstracts from the element which makes that material production simultaneously a production of ideas and hence a production of human relations (for which however, precisely, thought, language, and communication exist)? This could only reduce it to a relation between individual man and nature . . . that is to a presocial or asocial fact. The result, in other words . . . is to remove ‘production’ from the field of enquiry altogether, evading the very object in question.”). 41 LAW AND HISTORICAL MATERIALISM 18 relations, including legal relations. What distinguishes productive forces from productive relations from legal relations is not their metaphysical composition but their social function.47 As these passages suggest, the pivotal and in some sense originary productive force – human beings’ physical and mental capacities – is itself complex and subject to development over time. Human beings’ capacities include conscious and unconscious mental states, as well as a host of physical abilities and propensities, from the most automatic reflex to the self-conscious articulation of complex ideas in language, to the physical habits that are internalized, in part, in response to linguistic conditioning. Human mentation can be further analyzed or taxonomized or differentiated, in order to relate mentation as a productive force to the role that mentation plays in the development of social relations, as well as to shed light on the much discussed and always controversial place of ideology in historical materialism. But for now, what is most important to recognize is the degree to which the place of human mentation and communication within the productive forces both frustrates efforts to trace the form and content of social relations back to the productive forces, and makes it at least conceivable to do so.48 The MHMAL is committed to an anthropology in which humans labor – that is, transform non-human nature – in order to survive and to flourish. How those humans labor depends on natural variations in mental and communicative, as well as physical, capacity. Social relations will, over time, track the more rather than the less effective productive and reproductive strategies that human labor generates in response to challenges thrown up by non-human nature. But whatever those strategies are, understanding how social relations arose and changed in response to them will require a deep and diachronic dive into the thought and language intrinsic to, and transformed by, the labor process. This thought and language, in turn, will become incorporated in and reflected by those social relations that respond to and facilitate the development of the productive forces. Accordingly, a historical materialist explanation of the form and substance of a given legal relation will have to refer to and contend with the full variety of productive forces at play within the relevant society, including the mental and communicative practices of its human members. Such an effort will encounter all the familiar hermeneutic challenges that arise when analyzing human thought and language. As Part II will discuss, historicity and humanity are two features of the MHMAL that help to explain why and how the forces and relations of production underdetermine legal relations. Before turning to Part II, however, it is important to emphasize that nothing in the above discussion has argued for or assumed the existence of the freedom of legal actors as such. The historical and human-centered character of the forces and relations of production does not entail the freedom of 47 Godelier, supra note 6, at 137; cf. Chris Harman, Marxism and History 28-29 (1998) (describing the distinction between base and superstructure as “a distinction between relations that are directly connected to production and those that are not”). 48 For further discussion of the distinction between mental capacities as an element of human labor power – and thus of the productive forces – and social relations, see Cohen, supra note 9, at 46-47. LAW AND HISTORICAL MATERIALISM 19 legal actors from those forces and relations.49 Moyn, drawing on Unger, at times suggests that demonstrating, or at least making room for, the freedom of legal actors is essential for any radical social theory.50 To the historical materialist, any general, metaphysical claim about the freedom of legal actors would be either obviously false or trivially true. Accordingly, the historical materialist neither denies the existence of freedom, nor assumes it a priori. To the extent that freedom is realized, it will be realized in particular settings for particular reasons and only to some particular degree. The demonstration of freedom becomes a matter of inference to the best explanation in light of observed facts and relationships.51 And the burden of proof will be on the historian or theorist claiming that freedom explains behavior or the outcome of behavior. The one setting in which the historical materialist is committed to something like freedom a priori is in the development of the productive force of human labor. Here, there are certain fundamental assumptions made by the historical materialist about the creative capacity of the human laborer in relation to non-human nature. But even in this context, such freedom is neither unconstrained nor entirely unpredictable. To the contrary, the very fact that the creativity of human labor is a natural creativity entails its subjection to a host of natural laws and limitations.52 How does the MHMAL explain this distinction between the more reliable presence of comparatively free, transformative action within the productive forces and the more doubtful presence of free, transformative action within the relations of production and the other social relations? The exercise of comparatively free, transformative action within the productive forces leads to non-intentional material and mental regularities which, because they are intrinsic to the production and reproduction of human life, exert a difficult-to-overcome force on transformative action within the social relations. These regularities preemptively limit the exercise of free action within the social relations, or preemptively constrain the efficacy of such free action when it seeks to reshape the social world. The stickiness — or the preemptive effect — of these regularities is what Jean-Paul Sartre called “the practico-inert.”53 Non-intentional mental regularities, meanwhile, are often glossed in both Marxist and non-Marxist thought as “ideological.” Such a gloss is only warranted if those regularities interpret reality in a manner that does not adequately 49 Cf. Timpanaro, supra note 13, at 40 n.9 (distinguishing the observation of freedom from the observation of a human action that is difficult to explain due to the quantity and complexity of its causal determinants). 50 See Moyn, supra note 2, at 3 (“No credible theory of law could omit the situated freedom of agents to alter the terms of their domination—even, in rare instances, to lift it.”). 51 See generally Peter Lipton, Inference to the Best Explanation (1991). 52 Cf. Schmidt, supra note 6, at 97 (“The dialectical element of Marxist materialism does not consist in the denial that matter has its own laws and its own . . . motion . . . but in the understanding that matter’s laws of motion can only be recognized and appropriately applied by men through the agency of mediating practice. The dialectical movement between man and nature which takes place in production does not exclude the operation of the laws of nature . . . ”). 53 See 1 Jean-Paul Sartre, Critique of Dialectical Reason 46, 67, 71, 122-255 (Alan Sheridan-Smith trans., 2004) [1960]. LAW AND HISTORICAL MATERIALISM 20 capture its true causal structure, and if that interpretation, in virtue of its falsity, is functional for the reproduction of the prevailing social order.54 As with other aspects of the social structure, non-intentional material and mental regularities can be underdetermined by the forces and relations of production. But that does not mean there is anything liberating about them. This is an important distinction because an overhasty endorsement of the freedom of legal actors to reshape the social world makes it exceedingly difficult to satisfy Moyn’s third criterion for radical social theories of law: their ability to account for the fact that, most of the time, legal development tends to reproduce existing social and economic hierarchies. As will be discussed in Part III, it is in satisfying this criterion that the MHMAL not only equals but outpaces its radical competitors. But first, Part II will make clear what the MHMAL can do at least as well as CLS. II. WHAT THE MHMAL CAN DO AS WELL AS CLS This Part identifies the ways in which the MHMAL performs at least as well as CLS when it comes to explaining legal development. Part IIA introduces the familiar argument that CLS proves superior to historical materialism (and other functional accounts of law) because it is capable of accounting for functional and interpretive underdetermination – that is, the degree to which legal development resists explanation in terms of either extra-legal socio-economic imperatives or the internal constraints imposed by legal logic and rhetoric. Part IIB discusses how the MHMAL makes sense of functional underdetermination at least as well as CLS. Part IIC discusses how the MHMAL makes sense of interpretive underdetermination at least as well as CLS. A. Balancing Determinacy and Indeterminacy On Moyn’s account, the chief virtue of the more sophisticated versions of CLS is their recognition that legal development is neither wholly determined by extralegal social, political, or economic factors, nor the wholly indeterminate product of linguistic ambiguity and rhetorical contestation. In other words, of all radical legal theories, CLS is uniquely capable of acknowledging functional and interpretive underdetermination while not ignoring the degree to which legal outcomes tend to reproduce, rather than resist (or have no obvious relation to), the prevailing distributions of social, political, and economic power in a given society. It is this capacity to think indeterminacy and determinacy together, and in balance, that makes CLS such a promising methodological foundation on which to build a fuller social theory of law. As this last sentence suggests, however, Moyn himself acknowledges that CLS is not itself a fully fleshed out social theory of law. The necessary supplement is provided by the work of Roberto Unger, which offers not only a fully fleshed out social theory but also one that, according to Moyn, strikes the right balance between determinacy and indeterminacy. Indeed, it 54 See Godelier, supra note 6, at 149-156. For more on the MHMAL’s treatment of ideology, see infra Part IIC, on interpretive underdetermination, and Part IIIA, on the limits of underdetermination. LAW AND HISTORICAL MATERIALISM 21 is Unger’s historical inclusion within the CLS fold that almost exclusively motivates Moyn’s argument that CLS remains the last, best hope for a radical social theory of law. Moyn’s harsh – if on the whole fair – criticisms of Hortwitz’s instrumentalism and Kennedy and Gordon’s embrace of indeterminacy would otherwise (presumably) lead him to condemn rather than celebrate CLS. Yet when it comes to Unger’s own views, Moyn tells us that “[t]he details don’t matter much for this essay.”55 All that does matter is “evidence of Unger’s aspiration to avoid the equal and opposite poles of reductive functionalism that treated law as an aftereffect of capitalism and a cult of underdetermination that abjured explanation (not to mention radicalism itself).”56 The evidence that Moyn provides in the essay is limited: When Marxist theorists of law express frustration with critical legal studies across the board, it is because it is alleged to have discarded necessity altogether, and enthroned “false contingency” out of a horror of what Unger called false necessity. For Unger, the accent did fall on freedom: a radical account must also make sense of the situated freedom of the individuals and groups constituted by those orders to exploit functional underdetermination in a powerfully determined world. But there is no missing that the entire point of Unger’s approach was to purge from social theory any concessions to necessity without sacrificing its essential goal of accounting for the inception and reproduction of order—while angling to force its undoing.57 I do not think that Unger’s social theory, once when gets into the details, makes good on Moyn’s description of it as striking a reasonable balance between determinacy and indeterminacy and of maintaining “the essential goal of accounting for the inception and reproduction of order.” It would take a separate article to demonstrate this point adequately but here is the argument in brief. Unger – at the least the Unger that Moyn cites – builds his social theory on the skeleton of Cohen’s functional interpretation of historical materialist explanation.58 But in place of historical materialism’s foundational assumption, that human history tends toward the production and reproduction of human life, Unger substitutes an alternative foundational assumption, that human history tends toward the growth of “negative capability,” by which he means the capacity of humans to challenge and transform their “formative context,” the material and social structure of a given society at given moment in time.59 While Unger disclaims teleology, the way in which he seeks to strike a balance between determinacy and indeterminacy is to posit both formative contexts and a 55 Moyn, supra note 2, at 16. Id. 57 Id. at 17. 58 See, e.g., Roberto Mangabeira Unger, False Necessity 280-282, 294-99, 332-337 (2d ed. 2004) [1987]. 59 See id. at 33-37, 164-171, 251-254, 277-282. 56 LAW AND HISTORICAL MATERIALISM 22 transhistorical preference for their becoming more rather than less “disentrenched.” Disentrenchment is the process by which social relations become less fixed, less hierarchical, and more flexible, particularly with respect to the distinction between rule-imposing and rule-executing social roles.60 Disentrenchment is favored because disentrenchment is conducive to the growth of negative capability.61 If that was all, Unger might well be able to maintain the sought-after-balance between determinacy and indeterminacy, notwithstanding the contestable assumption of a transhistorical tendency toward the growth in negative capability. The problem is that when Unger comes to explain how formative contexts become disentrenched, that is, when he elaborates the material and social processes that render a formative context suddenly more conducive to the exercise of negative capability, his explanation is that the exercise of negative capability itself is the primary process that produces disentrenchment and thus the growth of negative capability.62 In other words, Unger identifies a quasi-Hegelian dialectic at work in history. While this dialectic has both material and ideal elements, it grants priority to what Unger calls the “noneconomic” forms of negative capability – that is, those that do not work directly on the material constraints imposed by non-human nature.63 As such, Unger’s theory, despite his protestations to the contrary, falls closer to the Kennedy/Gordon side of the Horwitz-Kennedy/Gordon spectrum than either Moyn or Unger acknowledge.64 Even if this admittedly polemical interpretation of Unger is wrong, and his social theory when charitably and rationally reconstructed can maintain a balance between determinacy and indeterminacy, so too can historical materialism. The 60 See id. at 282-288; see also Roberto Mangabeira Unger, Social Theory 154-157 (2004) [1987]. Unger, supra note 58, at 280 (“The attractions of negative capability account for the possibility of a cumulative movement toward greater disentrenchment. . . . The idea of negative capability as an influence represents a frankly functionalist . . . element in the theory of context making. The appearance and propagation of less entrenched institutional and imaginative orders is explained by the consequences they may produce – the development of negative capability.”). 62 See, e.g., Unger, supra note 58, at 252-253, 259-260, 267-268, 272-273. When it comes to elaborating the social processes that lead from entrenchment to disentrenchment, Unger emphasizes the degree to which ambiguities and inconsistencies intrinsic to the means of entrenchment furnish opportunities for human individuals and groups to pursue disentrenchment. At times, these ambiguities and inconsistences seem of themselves to generate negative capability. But as the examples mount up, it becomes clear that Unger simply posits a residual degree of freedom that human individuals and groups possess, a degree of freedom that enables them to exploit ambiguities and inconsistencies in the formative context. 63 See, e.g., Unger, supra note 58, at li-lv, 290-294, 302-305, 316-324. 64 For a complementary critique of Unger’s failure to reckon with “false contingency,” see Susan Marks, False Contingency, 62 Current Legal Problems 1 (2009). For those attracted to Unger’s relatively pluralistic account of social structure, but uncomfortable with some of his metaphysical assumptions, the recent revival of “material constitutionalism” might offer an appealing alternative. See Marco Goldoni & Michael A. Wilkinson, The Material Constitution, 81 Modern L. Rev. 567 (2018); see generally The Cambridge Handbook on the Material Constitution (Marco Goldoni & Michael A. Wilkinson eds., 2023). It is not immediately clear to me why Goldoni and Wilkinson’s “four ordering forces of the material constitution” could not be adapted to describe the social setting of law more generally, both public and private. The limitation of this approach might be its inability to generate strong hypotheses about legal development, past or present. That limitation, however, would also apply to Unger’s approach, at least if it were stripped of its more controversial metaphysical assumptions. 61 LAW AND HISTORICAL MATERIALISM 23 minimal historical materialist account of law simply does not conform to the caricature of “simplistic functionalism” on which Moyn relies. It is true that in Unger’s social theory the accent is on freedom (arguably to the point of sacrificing any operationalizable account of determinacy), while in the MHMAL the accent is on those unintended material and mental regularities that emerge from the drive to produce and reproduce human life and then come to constrain human agency. Perhaps that is sufficient to disqualify the MHMAL as an adequately “radical” social theory. But if the MHMAL satisfies the criteria of determinacy and indeterminacy at least as well as Unger’s social theory, it is surely worth considering. This is especially true because the MHMAL fits nicely with a variety of other epistemic and metaphysical commitments shared by the modal left-leaning legal theorist: commitments to a secular, naturalist worldview. Unger’s social theory does not. In the foundational 1980s texts to which Moyn refers his readers, Unger explicitly rejected naturalism. At the time, his reasons for doing so were somewhat confused, or at least not adequately justified. As far as I can tell, Unger conflated secular naturalism with iusnaturalism, naturalistic theories with natural law theories.65 In doing so, he implied that any naturalistic theory must end up relying on the sorts of argument from authority or tradition that define natural law theory. There is an interesting point lurking beneath the surface of this argument, more clearly and convincingly developed by historians and philosophers of science and religion.66 But Unger instead opted for a leap into a voluntarism as metaphysically contestable as any natural law theory. Recently, Professor Charles Sabel has identified in Unger’s later work a realization that naturalism must be rejected for a different reason: because nature, as scientists seek to understand it, imposes a fixity on human action that is simply incompatible with Unger’s commitment to the plasticity of social life.67 This is a much clearer reason for rejecting naturalism, but it comes at a significant cost: the cost of abandoning the pursuit of an explanatory social theory capable of relating the human and non-human worlds. Bracketing Unger’s antinaturalism and voluntarism, to which Moyn does not explicitly commit, the remaining three criteria that he offers for an adequate radical social theory of law are: first, that such a theory must offer an account of the functional underdetermination of law; second, that such a theory must offer an account of the interpretive underdetermination of law; third, that such a theory must offer an account of how law – notwithstanding these underdeterminations – depends upon the rest of social reality, and tends to reproduce the social and economic inequalities that structure that reality. Happily, the MHMAL can satisfy all three criteria. The remainder of Part II takes up the first two criteria – functional and interpretive underdetermination. Part III then turns to the third criterion, the relative determination of law by the social 65 See Unger, supra note 58, at 125-126, 164; Unger, supra note 60, at 84-87. For the significance of this distinction, particularly with respect to historical materialism and its predecessors, see generally Augusto Del Noce, The Problem of Atheism (Carlo Lancellotti trans., 2021) [1964]. 66 See, e.g., Ronald Giere, Science Without Laws (1999); Peter Harrison, The Fall of Man and the Foundations of Science (2009). 67 See Charles Sabel, The Work of Roberto Mangabeira Unger, University of São Paulo (Nov. 12, 2019), https://www.youtube.com/watch?v=9R5X8dtFgSg. LAW AND HISTORICAL MATERIALISM 24 structure and law’s tendency to reproduce the social structure. I argue there that not only does the MHMAL satisfy the third criterion, it does so in a much more convincing fashion than could Moyn’s reconstructed CLS. B. Functional Underdetermination Rather than transparently reflecting and reliably reproducing the social and organization of a given society, law at times seem to be out of joint with its social and economic context, sometimes even working to destabilize rather than entrench prevailing social and economic hierarchies. For these reasons, Marxist theorists in the 1960s and 1970s began to talk about the “relative autonomy” of law. CLSers ran with the concept, while, in some cases, pushing toward a thesis of full, rather than relative, autonomy. Moyn rejects those variants of CLS that embraced the full autonomy of the law. He also seems skeptical of the concept of relative autonomy, in that it bears the residue of Marxist determinism. But he nonetheless adopts a position very similar to that of relative autonomy theorists, a position captured by his insistence that any adequate radical social theory of law must make room for functional underdetermination. Contrary to Moyn’s characterization of traditional Marxist thought as trading in simplistic functionalism, the MHMAL has adequate resources for making sense of functional underdetermination. The two main resources – the historicity of social relations and the primacy of human labor within the productive forces – were already discussed in Part I above. But there is more to be said about their implications for the functional underdetermination of legal relations. Recall that the form and substance of legal relations are functionally explained by the state of development of the forces and relations of production at some prior moment in the life of a given society. Legal relation X at Tn has the form and substance that it does because that form and substance facilitated the development of the forces and relations of production at Tn-1 (or Tn-1 + Tn-2, etc., since the form and substance of legal relation X may bear the imprint of many stages of material development). All this means is that legal relations are determined by the material structure of society at a certain moment in time. It does not mean that legal relations are determined by the material structure of the present society. To the contrary, legal relations are habitually laggard. The belatedness of legal relations vis-à-vis the development of the forces and relations of production is the first aspect of their historicity. Two other aspects of the historicity of legal relations – and thus of their underdetermination by the functional requirements of the forces and relations of production – are the degree to which they are influenced by the development (or stability) of surrounding social relations, and the degree to which they are influenced by non-functional features of the socio-natural environment. Laggard legal relations do tend to transform as human actors develop the productive forces and thus put pressure on the preexisting relations of production and the legal relations that developed to support them. But how and when a laggard legal relation will transform is influenced not only by the functional requirements of a particular development within the forces and relations of production, but also: LAW AND HISTORICAL MATERIALISM 25 (i) by whether and when other social relations transform or do not transform in response to the particular development; (ii) by peculiarities of a society’s geography, ecology, or culture that do not themselves causally influence the particular development but nonetheless favor one kind of social response to that development over another. With respect to (i), legal relations do not exist in a silo, but rather in a vast network of other social relations. The timing and character of a functionally explicable development within one social relation will often influence the timing and character of an otherwise functionally explicable development within another social relation. If the belatedness of legal relations vis-à-vis the development of the forces and relations of production is one aspect of their historicity, the interactive development of legal relations is a second aspect.68 With respect to (ii), a third aspect of legal relations’ historicity is their conditioning by non-functional determinations. Recall that it was said in Part I that geographical, ecological, cultural, and other peculiarities of a given society can shape the internal logics and formal characteristics of its social relations. This may be the case even though those peculiarities are not themselves determinative for the development of the forces and relations of production within the given society. In comparative perspective, such non-functional determinations tend to promote a diversity of legal relations (or political relations, religious relations, etc.) that are equally facilitative of a particular development within the material conditions of the societies in question. In addition to the belatedness and interactivity of legal relations, the existence of such non-functional determinations is a third source of functional underdetermination.69 Accordingly, if a historical materialist is asked whether a particular legal relation X is exhaustively determined by its function vis-à-vis the forces and relations of production at a given time and place, the answer will usually be “no.” The form and substance of legal relation X may be partly attributable to its facilitation of some earlier development within the forces and relations of production. The form and substance of legal relation X may be partly attributable to its interactions with other social relations, which themselves may or may not be changing in response to developments within the forces and relations of production. Finally, the form and substance of legal relation X may be partly attributable to nonfunctional determinations stemming from features of a society’s natural and cultural context that are not themselves decisive for the production and reproduction of human life. The historicity of the MHMAL thus goes a long way toward making sense of the functional underdetermination of law. The humanity of the MHMAL – that is, its recognition of the primacy of human labor power within the productive forces – also contributes to the MHMAL’s ability to accommodate, and explain, functional 68 See, e.g., Althusser, supra note 37, at 140-147 (discussing the interaction effects among various relations of production). 69 Cf. Bernard Williams, Truth and Truthfulness 20-30 (2002) (discussing causal determinants of human behavior unrelated to the evolutionary process). LAW AND HISTORICAL MATERIALISM 26 underdetermination. First, the primacy of the productive force of human labor power is precisely what leads legal relations to become laggard, and to become laggard in often unexpected ways. As discussed in Part I, the MHMAL understands human labor power as a complex physical, mental, and communicative process that responds to non-human nature – and inter-human cooperation and competition – with creativity, spontaneity, and even irrationality. Such creativity, spontaneity, and irrationality are responsible for history itself, and are primary drivers of the pace and character of the development of the social relations. Without the impetus of human labor power, the belated and interactive development of legal relations would simply not take place. Humanity drives historicity and historicity drives functional underdetermination.70 The productive force of labor power contributes to functional underdetermination in a second way as well. As labor power develops, so too does human mentation and communication. This development of mentation and communication through the labor process is the seedbed of all the mental and communicative complexity that characterizes the social relations, including legal relations. When a legal relation changes in response to developments within the relations of production, which themselves respond to developments within the productive forces, the transformation of the legal relation will be functionally explicable in terms of those developments. But the requisite functional explanation will have to consider whether, and to what extent, specifically ideational and linguistic developments within the processes of production contributed to the transformation of the legal relation. Such an inquiry is an inescapably hermeneutic one.71 Accordingly, there will often be several plausible functional explanations for the transformation of the legal relation, each turning on a different interpretation of the relationship between, on the one hand, the ideational and linguistic structure of the legal relation and, on the other, any relevant ideational or linguistic developments within the processes of production. Some interpretations might identify an underlying ideational or linguistic change as causally decisive. Others might view the ideational or linguistic change as causally inconsequential in light of other developments within the forces and relations of production. Still other interpretations might deny that any relevant ideational or linguistic change even took place. While each of these explanations will be a functional explanation, the sheer diversity of plausible interpretations underdetermines the character of the functional change that has occurred. The MHMAL is thus committed to functional explanation in that human labor drives the transformation of the productive forces which, in turn, favors changes to the relations of production, which in turn favor changes to legal relations. From one perspective, then, all legal change can be explained in terms of causally prior 70 Cf. Schmidt, supra note 6, at 28-30 (“The historical movement . . . is a mutual relation between men and men, and between men and nature. It is true that the ‘world-material’ comprises both Subject and Object. However, what is essential is that . . . the incompatibility of man with nature, i.e., in the last analysis the necessity of labour, triumphs over the unity of man and nature.”). 71 See Godelier, supra note 6, at 169-176 (discussing the role of thought and communication in the production of social relations). LAW AND HISTORICAL MATERIALISM 27 developments within the forces and relations of production. But such an explanatory relationship does not entail that legal relations are reducible to or deducible from the material conditions of society at a given moment in time. All that the MHMAL’s commitment to functional explanation tells us is that the development of legal relations tends to facilitate the development of the forces and relations of production over some unpredictable time scale. There are many moments when the legal relations do not so facilitate the development of the forces and relations of production. The piecemeal changes that will gradually occur in response to this friction can take any number of different forms, false starts, and so on. As a result of this piecemeal development, the MHMAL will tend to sound more functionalist and deterministic when it seeks to explain a legal change that took place in the distant past, and less functionalist and deterministic when it seeks to explain a legal change that took place more recently. When a legal relation changes, this change could prove to facilitate the development of the forces and relations of production – eventually. Or it could prove not to facilitate that development. The change could be influenced by some non-functional determination, such as an ecological or geological or cultural change that does not itself influence the forces and relations of production. Or the legal change could be influenced by a change to some other social relation that will itself prove to be facilitative or not facilitative of the development of the forces and relations of production in the longer term. Or the legal change could be influenced by some change within the productive force of human labor – such as a mental or communicative development – that is itself a passing phenomenon, soon to be overlapped by further developments. In the short term, then, the MHMAL suggests a variety of potential explanations of the legal change. The question whether the legal change is best explained by the degree to which it facilitates the development of the forces and relations of production will not be immediately answerable. In such an explanatory context, what the MHMAL has to say about the legal change will not be so dissimilar from what a CLS-inspired account has to say about it. The MHMAL will at least provide some relatively clear guidance to researchers about the features of the social and natural world that could explain the legal change. But not all of these features will have functional significance vis-à-vis the development of the forces and relations of production.72 By contrast, when more time has passed since the legal change occurred, and the legal change has endured, the MHMAL predicts that the best explanation of that legal change will relate to the role it played – and may continue to play – in facilitating the development of the forces and relations of production. Even in this longer-run explanatory context, the MHMAL remains open to the influence of non72 Cf. Timpanaro, supra note 13, at 43-44 (““[W]e may agree it is permissible for a Marxist, when writing the history of political or cultural events within the restricted context of a fundamentally unitary and stable socio-economic situation, to take the latter as a constant and study the history of the superstructure alone. . . . But, if basing ourselves on this relatively immobile character (over a certain period) of the economic and social structure, we were to conclude that it has no conditioning power over the superstructure, or even no real existence, we should be committing a typical ‘historicist’ fallacy.”). LAW AND HISTORICAL MATERIALISM 28 functional factors on the form and substance of the legal relation, acknowledging that not every aspect of the legal relation will be explicable in terms of its functional relationship to the forces and relations of production. Nonetheless, the MHMAL assumes that the existence of legal relations is ultimately explicable in terms of the functional role they play in reproducing the material conditions of the society of which they are a part. If this assumption is wrong, the social theory capable of explaining legal relations would be more perverse or pessimistic than most legal scholars would be willing to accept. To conclude, it is true that the MHMAL’s answer to the question “why did this legal development occur (and persist)?” will generally have an answer of the form: “that legal development occurred (and persisted) because it facilitated changes in the relations of production, changes that themselves facilitated the development of the productive forces.” But it is also true that additional empirical and hermeneutic inquiry will always be necessary to determine how a particular legal development came about. To use Cohen’s terminology, while the MHMAL’s answers to “why” questions will typically sound in functional determination, its answers to “how” questions will typically acknowledge a great deal of functional underdetermination. It is also in answering these how-questions about legal change that interpretive underdetermination comes into play. C. Interpretive Underdetermination As with functional underdetermination, interpretive underdetermination is largely attributable to the historicity and humanity of social development. Legal relations that were conducive to the development of the forces and relations of production at one time and place tend to become outmoded as the creativity of human labor transforms the productive forces, and the relations of production gradually catch up. The inherent ambiguity of legal discourse enables those legal actors who seek to close the gap between legal relations and new or emerging relations of production to do so without bringing about a total transformation of legal form and substance. But other legal actors will resist this interpretive creativity for one or more reasons. Some will find themselves attached to legal stability as a value in itself. This valorization likely relates to those legal actors’ relatively privileged position within the division of labor, a status that they sense depends on adherence to the stability of legal form and substance.73 Others may resist partial transformations of legal form and substance through interpretive creativity because they oppose the underlying transformations in the forces and relations of production that creative interpreters are trying to facilitate. In this case, progressive and conservative interpreters may well represent the interests of different class fractions – those that stand to reap the benefits from the underlying material transformations and those that do not. In either case, the struggle between progressive and conservative interpreters may go on for a long time, especially if the conservative interpreters occupy a particularly privileged position within the division of labor, or represent class 73 For the place of legal experts within the division of labor, see Poulantzas, supra note 11, at 90. LAW AND HISTORICAL MATERIALISM 29 fractions that do, notwithstanding the threat that is posed to those fractions by the underlying material transformations. In the end, the MHMAL predicts that progressive interpreters will win out, because legal relations tend to develop in a manner that facilitates the development of the forces and relations of production. But the MHMAL claims to predict neither the degree nor the speed of this victory. The extent and the timing of the victory will depend on how ambiguous the relevant legal materials are, the relative social power of progressive and conservative interpreters, the vagaries of particular cultures of interpretation, themselves rooted in other aspects of the superstructure, and the fact that, over the course of interpretive struggle, the forces and relations of production may well continue to change, upending the type of partial-transformation-by-interpretation that is in fact favored by the underlying material conditions. As a result of these complicating factors, whatever kind of victory progressive interpreters do eventually achieve, it will rarely appear to be the result of functional determination of any kind. To the contrary, the victory of progressive interpreters will be more intuitively attributable to their ingenuity, to other political or cultural pressures, or to “legal indeterminacy” itself.74 In addition to the historicity and humanity of social development in general, the MHMAL identifies a more specific source of interpretive underdetermination in the context of capitalist societies. That source is the tension between the capitalist legal form, grounded in the universalization of commodity exchange, and the more frequently shifting legal substance, grounded in and responsive to smaller-bore developments in the forces and relations of production. Commodity exchange is the stickiest of all relations of production within capitalist societies; more than any other relation of production, its presence defines a society as capitalist. The capitalist legal form, in turn, reflects and reproduces this relation, positing every legal relation as a relation between abstract, formally equal subjects.75 The tight connection between commodity form and legal form, however, also means that the legal form cannot express – and indeed systemically occludes – the complex division of labor that characterizes any advanced capitalist society. The division of labor is shot through with substantive social and natural differences, differences that are themselves reflective of a particular balance of class forces. That balance is ultimately attributable to the differential control that various groups of human beings exert over the productive forces. All of this conflict and complexity exists in considerable tension with the abstract equality posited by the legal form. Which means that if the law is to keep pace with shifting material realities, it must do so primarily through developments within legal substance rather than legal form. As a result, the logical and rhetorical gap between legal substance and legal form will grow. Almost any legal text in an advanced capitalist society will embody this tension between a legal form grounded in the universalization of commodity exchange and substantive provisions that respond to specific developments in the productive 74 This discussion draws inspiration from Cohen’s analysis of four types of historically evidenced relationships between old legal relations and new relations of production. See Cohen, supra note 9, at 167-169, 225-230. 75 For the commodity form theory of law, see supra notes 26-37 and accompanying text. LAW AND HISTORICAL MATERIALISM 30 forces, the relations of production, and the balance of class forces that prevails under those material conditions. Those who seek to resolve that tension, and to make sense of ambiguous prior resolutions embodied in legal texts, will confront significant interpretive challenges, and significant interpretive leeway. These interpretive challenges and possibilities will continually excite the struggle between progressive and conservative interpreters described above. In this context, however, the question of who counts as a progressive as opposed to a conservative interpreter becomes more complex: some legal actors may seek to conserve the legal form at the cost of changes to legal substance; some legal actors may seek to conserve legal substance at the cost of changes to the legal form; some legal actors may seek to transform the legal form in order to maintain the prevailing legal substance; some legal actors may seek to transform the prevailing legal substance in order to maintain the legal form. Finally, interpretive struggles between advocates of one kind of change to legal substance and advocates of a different kind of change to legal substance are also likely to occur. The MHMAL makes only two predictions about the outcome of these interpretive struggles. First, that legal substance is more likely to change than legal form, due to the tight connection between legal form and commodity form, and the centrality of the latter to capitalism itself. Second, that changes to legal substance and legal form will tend, in the long run, to facilitate the development of the forces and relations of production. It is this second prediction that most commonly gives rise to the critique of the historical materialist account of law as unduly functionalist. If one is not prepared to accept the plausibility of the prediction, the MHMAL may be worth rejecting. But as will be discussed in Part III below, disclaiming a priori the plausibility of the second prediction has historically come with its own considerable theoretical costs. The question ultimately becomes one of comparing the theoretical costs and benefits of each supposedly “radical” account of law. Moyn’s argument proceeds by understating the benefits and overstating the costs of the historical materialist account, while significantly understating the costs of its primary competitor, CLS. Finally, it is worth noting that the MHMAL offers an account of interpretive underdetermination that is more specifically legal than what CLS has to offer. Little that is said by Kennedy, Gordon, or Unger about interpretive underdetermination in the law could not also be said of interpretive underdetermination in religion, politics, literature, or science. Indeed, as Moyn himself acknowledges, CLS tends to treat interpretive underdetermination as a byproduct of linguistic indeterminacy or of psychological responses to seemingly contradictory or incommensurable concepts.76 The law is certainly full of linguistic indeterminacy and seemingly contradictory or incommensurable concepts. But so too is the rest of human culture. The MHMAL, by contrast, roots the underdetermination of legal interpretation in law’s distinctive social role. 76 See Moyn, supra note 2, at 12, 23. LAW AND HISTORICAL MATERIALISM 31 III. WHAT THE MHMAL CAN DO BETTER THAN CLS This Part identifies three ways in which MHMAL outpaces CLS when it comes to explaining legal development. Part IIIA reviews the MHMAL’s formidable capacity to account for the limits of functional and interpretive underdetermination – that is, the degree to which legal change, notwithstanding those forms of underdetermination, tends to reproduce prevailing social and economic hierarchies. Part IIIB compares the MHMAL’s understanding of the relationship between law and capitalism to that of CLS and its successors, including LPE. Finally, Part IIIC contrasts the MHMAL’s naturalism to CLS’s constructivism, in light of contemporary socio-natural problems such as climate change and COVID-19. A. The Limits of Underdetermination Contrary to Moyn’s dismissal of Marxist legal theory as failing to account for functional and interpretive underdetermination, the MHMAL supplies hypotheses about both why and how legal development is functionally and interpretively underdetermined. Nor does the MHMAL achieve all this simply by parroting CLS’s criticisms of materialism and functionalism, as Moyn (often rightly) suggests contemporary Marxist legal theorists do. To the contrary, the MHMAL offers independent grounds for acknowledging and explaining the reality of functional and interpretive underdetermination. Just as significantly, the MHMAL’s account of functional and interpretive underdetermination also furnishes an account of the limits of such underdetermination. The ability to acknowledge and explain these limits is what Moyn identifies as the third, essential criterion that any radical social theory of law must satisfy. In other words, radical social theories of law must make room for functional and interpretive underdetermination while also accounting for the fact that, most of the time, legal development tends to reproduce existing social and economic hierarchies. As already discussed in Parts I and II above, the MHMAL shines when it comes to accounting for the limits of underdetermination or, to put it more directly, the determination of law by the balance of material forces within a given society. The burden of the argument up until this point has been in demonstrating that the MHMAL is also capable of accounting for underdetermination, notwithstanding its focus on the tendency of law to reproduce existing social and economic hierarchies. According to Moyn, CLS often failed to satisfy this third criterion. While Horwitz’s early work did satisfy it, that work’s instrumentalism came at the expense of an adequate account of functional and interpretive underdetermination. While Kennedy and Gordon aced the underdetermination challenge, they neglected to account for the limits of that underdetermination. Because of these disappointments, Moyn holds up Unger as the one CLSer who got the balance right. As discussed in Part IIA above, however, I do not think a deeper dive into Unger repays Moyn’s confidence. Unger certainly showed more concern for the third criterion than did Kennedy and Gordon, identifying several historical circumstances in which social and economic hierarchies remained entrenched for a LAW AND HISTORICAL MATERIALISM 32 long time, despite challenge.77 But Unger’s ultimate explanation for these hierarchies’ persistence is the seemingly contingent absence of negative capability. The requisite negative capability is simply sometimes there, and sometimes not.78 The MHMAL does a better job at getting at what Moyn is after: an account of why interpretive underdetermination tends to get resolved in favor of the maintenance of prevailing social and economic hierarchies, and of why functional underdetermination, rather than functional non-determination, is the historical norm. The functional underdetermination of law is constrained by the tendency of all social relations to develop in manner that facilitates the further development of the productive forces and the concomitant relations of production. If a given society’s legal system does not change in response to changed material conditions, the production and reproduction of human life within the given society will falter. It will falter either because the given society’s productive capacities become overburdened by the weight of tradition, or because the given society’s legal system loses its legitimacy and thus its capacity to organize all manner of social relations effectively. As for interpretive underdetermination, the capitalist legal form itself, rooted as it is in the universalization of commodity exchange, strongly disfavors interpretations that push back against the deep social reality of that universalization. Meanwhile, both ambiguities within legal substance and tensions between legal form and legal substance will tend to be resolved in a manner that favors the reproduction of those relations of production that facilitate the most productive of the productive forces. This point is more commonly put in terms of the balance of class forces: those classes or class fractions that are most capable of leveraging the productive forces, or most directly connected to the most productive of the productive forces, tend to get what they want out of legal interpretation. How does this happen? Legal actors – and legal professionals in particular – occupy particular positions within the society-wide division of labor. Bereft of any Archimedean position, they instead exist, as we all do, within the relations of production. In capitalist societies, legal professionals tend to exist in close relationship with those producers who control the most productive of the productive forces. When Marxist or post-Marxist thinkers refer to legal ideology, or even define law as the dominant form of ideology in capitalist society, what they are really referencing, at a material level, is the particular location that legal professionals occupy within the division of labor, their lives being more closely intertwined with some rather than other fractions of producers. Of course, legal professionals often do not intend to resolve interpretive ambiguity in favor of specific class fractions, or understand themselves to be doing so. This relative lack of intentionality and consciousness is functional, for at least two reasons. First, the relative lack of intentionality and consciousness contributes 77 See, e.g., Unger, supra note 58, at 41-82; Unger, supra note 60, at 48-52. See, e.g., Unger, supra note 58, at 126 (“By contrast to a social theory that relies on the conception of a closed list of possible social worlds (whether or not ordered in an evolutionary sequence), [Unger’s] argument assumes that each level of emancipation from false necessity can be realized through an indefinite range of distinct institutional forms. This variety is limited only by our institutional tradition and our reconstructive imagination.”). 78 LAW AND HISTORICAL MATERIALISM 33 to the appearance of law’s neutrality vis-à-vis the relevant material conflicts. The appearance of neutrality, in turn, underwrites the sociological legitimacy of the law. Second, many legal professionals would be disturbed by the material biases of their own discourse and practice, were they to recognize them. Some of these professionals might have normative objections to such material biases. Many others would at least recognize that they benefit from the sociological legitimacy that the appearance of neutrality generates. In either case, legal professionals’ lack of intentionality and consciousness vis-à-vis the material biases of their practice and discourse is useful – to the professionals themselves and, ultimately, to the development of the productive forces. It is these non-intentional and unconscious – yet highly efficacious – features of legal practice and legal discourse that historically have led legal practice and discourse to be understood as ideological.79 This account of the limits to interpretive freedom imposed by capitalist social relations (relations of production and otherwise) has much in common with certain CLS efforts to theorize the relationship between law and ideology. As Moyn approvingly notes, Jack Balkin’s early work did just that: “building on [Duncan] Kennedy’s insistence that at least ‘phenomenologically’ adjudication involves felt constraint, Balkin suggested that one purpose of a theory of ideology has to be to show how legal actors do not exploit available underdetermination. . . . Balkin was peremptory in rejection of any association with ‘radical indeterminacy’ in interpretation.”80 Yet Balkin would soon abandon the effort to link the constraint imposed by ideology on legal interpretation to a broader account of social structure, a linkage that would have been necessary to avoid a fall back into Kennedy-esque indeterminacy. Citing Balkin’s 1999 book, Cultural Software, Moyn laments: “it was quite another step to follow Kennedy into an account of ideology that forsakes any attempt to trace law back to its place in social relations generally, in order to help explain outcomes.”81 So it goes. The disappointing trajectory of Balkin’s theorizing is paradigmatic of CLS’s trajectory more generally: from historical materialism to poststructuralism (or simply liberal pluralism). For Moyn, of course, the crucial exception is Unger: He never flirted with the linguistic or poststructuralist turns popular in the humanities at the time. What Unger called “deviationist” doctrine proposed to coax future social alternatives from interpretive instability, taking advantage of “disputes of legal doctrine [that] repeatedly threaten to escalate into struggles over the basic imaginative structure of social existence.” . . . Unger never appealed to radical interpretive indeterminacy. On the contrary, deviationist doctrine presupposes that, while you can activate recessive 79 Cf. Moyn, supra note 2, at 21 (“If a theory of ideology is not about the occultation and rationalization of powerful social practices, it is not a theory of ideology.”). 80 Id. (citing J.M. Balkin, Ideology as Constraint, 43 Stan. L. Rev. 1133 (1991); J.M. Balkin, Nested Oppositions, 99 Yale L.J. 1669 (1990)). 81 Id. (citing Jack M. Balkin, Cultural Software: A Theory of Ideology (1999)). LAW AND HISTORICAL MATERIALISM 34 tendencies in contradictory bodies of law, an essential reason for doctrine in the first place is ideological stability.82 In this passage, Moyn praises Unger for acknowledging ideological stability and for recognizing that every legal system has dominant, as well as recessive, traits. But to acknowledge and recognize obvious facts is not to explain them.83 An adequate social theory of law, Moyn elsewhere insists, would seek to explain why and how the material and mental structure of reality brings about the emergence of ideological stability and dominant legal tendencies.84 For the reasons discussed in Part IIA above, I do not think Unger’s social theory provides such an explanatory framework. To the contrary, it follows a trajectory similar to Balkin’s own, moving away from efforts to describe the causal structure of social reality and toward more local interventions at the level of legal and political institutions, interventions underwritten by the stipulated existence of an adequate degree of “negative capability.” This is a perfectly worthy critical and reconstructive endeavor. But if the radical legal theorist wishes to explain – and make predictions about – legal development in a given society, the MHMAL is the better bet. Not only does the MHMAL satisfy Moyn’s third criterion more convincingly than CLS itself can, the MHMAL also offers several further advantages, two of which are particularly significant for left-leaning legal scholars. First, to the extent that these scholars seek to understand and critique capitalism and capitalist legality, they need an account of capitalism and capitalist legality. The MHMAL offers one while CLS, as Moyn describes it, does not. Second, as mentioned previously, the MHMAL is a social theory of law that fits nicely with a variety of other epistemic and metaphysical commitments to which most left-leaning legal scholars subscribe, either explicitly or implicitly. These epistemic and metaphysical commitments are those intrinsic to a secular, naturalistic worldview, and they undergird a variety of pressing left-leaning concerns, including in the domains of climate, public health, and education policy. CLS puts the modal left-leaning legal scholar in the awkward position of maintaining a relatively voluntaristic and denaturalized worldview 82 Id. at 22 (citing Roberto Mangabeira Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev. 563, 579, 582 (1983)). 83 Cf. Marks, supra note 64, at 11-12 (“Unger is certainly aware of the problem of false contingency. His constant talk is of ‘frameworks’, ‘routines’ and ‘formative contexts’ and, in agglutinative mode, of ‘context-transforming struggle’, ‘structure-revising capabilities’, ‘framework-preserving routines’, and ‘institutional disentrenchment’. This language could scarcely be more redolent of the existence of limits and pressures. Yet we are never invited or encouraged to scrutinize these, at least not in any sustained fashion. They remain in the background, casting long shadows but rarely coming directly into view. To be sure, the burden of Unger’s story is that there are limits to the limits and pressures on the pressures—in his phrase, ‘structure-defying resistance’ is always possible. But that does not explain why false necessity is allowed to occupy the whole field of analytical enquiry, for surely—and this is the burden of false contingency—you need to know what the structure is that can be resistently defied.”). 84 See, e.g., Moyn, supra note 2, at 15 (“Stressing functional underdetermination in reaching some order or outcome generally just means that a more specific explanation of why it came about is needed—including why agents constituted by the social order with a range of likewise constituted options moved in one way rather than other.”); id. at 16 (praising “Unger’s aspiration to avoid the equal and opposite poles of reductive functionalism that treated law as an aftereffect of capitalism and a cult of underdetermination that abjured explanation”). LAW AND HISTORICAL MATERIALISM 35 when talking about the law, while maintaining a relatively deterministic and naturalistic worldview when talking about a range of other material and mental phenomena that the law seeks to regulate. The MHMAL relieves the modal leftleaning legal theorist of this burden.85 B. Relating Law and Capitalism An increasing number of scholars within the American legal academy have committed themselves to a critique of the specific forms of inequality and domination propagated by capitalist social relations.86 The MHMAL can orient their critique in a way that CLS, at least as Moyn would reconstruct it, cannot. As discussed above, the MHMAL holds that, under capitalism, legal relations relate to the forces and relations of production in a particular way.87 The MHMAL may be wrong about the place of law within capitalist societies, but it is an account of the place of law within capitalist societies. Unger and Moyn, by contrast, have regularly expressed skepticism about the existence of capitalism itself.88 In keeping with their CLS roots, Unger and Moyn are more interested in the organization of specific legal and political institutions and ideas than in the social-natural totalities from which institutions and ideas emerge. Given their interests, Unger and Moyn do not require a systematic account of capitalism, or of the distinctive place of law within capitalist societies. But would-be analysts and critics of capitalist legality might well want such an account. If they do, the MHMAL is worth considering. As Moyn notes, the burgeoning, CLS-inspired school of “law and political economy” is especially focused on the relationship between law and capitalism. In both “Reconstructing Critical Legal Studies” and a companion piece, “Does LPE Need Theory?”, Moyn frames LPE as carrying forward both the promise and the unresolved puzzles of CLS, and argues that LPErs, even more than their theoretical forerunners, need a social theory like Unger’s to ground their analytic and critical work.89 Responses from within the LPE fold have been equivocal.90 My sense of the debate is that the participants are largely talking past one another. This failure to engage more directly stems from a lack of clarity about how three questions relate to one another. The first question is whether capitalism exists or not, and if it does exist, how to define it. Funnily enough, neither LPErs nor Moyn seem all that vexed by this question. For Moyn, capitalism is just a sloppy way of talking about a host of 85 For the close connection between the secular, naturalistic worldview and the normative aspirations of historical materialism and left-wing politics more generally, see Timpanaro, supra note 13, at 2954. 86 See generally Corinne Blalock, Introduction: Law and the Critique of Capitalism, 121 South Atlantic Quarterly 223 (Apr. 2022). 87 See supra Parts I-II, Part IIIA. 88 See Unger, supra note 60, at 101-109; Samuel Moyn, Thomas Piketty and the Future of Legal Scholarship, 128 Harv. L. Rev. F. 49, 55 (2014). 89 Samuel Moyn, Does LPE Need Theory? LPE Project (Sep. 4, 2023). 90 Jedediah Britton-Purdy, In Defense of Theoretical Pluralism, LPE Project (Sept. 12, 2023); Ntina Tzouvala, Legal Theory in the Lowercase, LPE Project (Sept. 19, 202); Sanjukta Paul, In Defense of Theoretical Quietism, LPE Project (Oct. 3, 2023). LAW AND HISTORICAL MATERIALISM 36 different societies and social problems. Most LPErs, on the other hand, believe that capitalism exists.91 But they do not fret too much about its lineaments. Some borrow from Marxist analysis, others from a host of liberal, social democratic, and post-Marxist economists and social theorists, including Wendy Brown, Melinda Cooper, John Maynard Keynes, Thomas Piketty, and Cedric Robinson. Whatever their differences, Moyn and LPErs seem to agree that the political economic conditions of the contemporary post-industrial world are deeply influenced by neoliberal governance, and that this influence is malign. The reason why capitalism vel non still matters has to do with the second question: whether LPE needs an explanatory social theory to ground its analysis of the relationship between law and political economy. The responses to Moyn’s suggestion that LPE “need[s] theory” find the term itself to be ambiguous, engaguing with a variety of different meanings of “theory.” But when read in the context of Moyn’s broader argument about CLS and its legacies, Moyn’s critique of LPE’s lack of theory is clearly about its lack of a theory that makes consistent claims about the place of law within the broader causal structure of a given society. Moyn’s insistence on the need for such a social theory of law stems from the trouble that CLS and its successors confront when asked to place limits on the indeterminacy of law and the autonomous causal power of legal actors. LPE scholars may face the same trouble, at least if they rigidly adhere to the claim found in most of the programmatic statements offered by the school’s early advocates and architects: that “the economy” is constituted by legal and political decision-making.92 Pursuant to this claim, if one wants to know why the economy 91 See Blalock, supra note 86, at 229 (“LPE scholarship, as mentioned above, offers a critique of capitalism . . . . [I]t identifies the capitalist relation as the source of and the critical lens through which to understand and address today’s mounting crises. This recognition of law as both deeply embedded and complicit in capitalism but also not fully constitutive of it, represents a different relationship to legal indeterminacy than CLS embraced. Law is indeterminate, as CLS forcefully proved; it is just not radically so, because it comprises but a part of the capitalist relation. Accordingly, contemporary critical legal projects focus on using the law as a means of shifting and building power.”). 92 See generally Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski, and K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784 (2020); see also Angela P. Harris and James J. Varellas, Law and Political Economy in a Time of Accelerating Crises, 1. J. L. & Political Econ. 1, 10-11 (2020) (identifying “two central claims . . . at the heart of Law and Political Economy”: the first is that “law is central to the creation and maintenance of structural inequalities in the state and the market”; the second is that these legally-created structural inequalities cross the boundaries of race, class, and gender, redefining and recombining those categories, such that the development of “‘class’” power is inextricably connected to the development of racial and gender hierarchies”). But see Angela P. Harris, Amy Kapczynski, and Noah Zatz, Where Is the Political Economy?, LPE Project (June 21, 2021) (arguing for an approach to LPE that “would describe markets as embedded within social and political relations, not only by supplying “inputs” into or constraints on market activity, not only by shaping the formation or construction of markets, but also by shaping the ongoing social relations internal to market activity. From this perspective, all market dynamics—supply, demand, price setting, bargaining, and so forth—operate within social relations, and thus are engaged with domination irreducible to the market form”). This last formulation would seem to hedge against the tendency to accord causal primacy to legal, political, or formal economic decision, instead privileging the causal effects of some broader category of social relations. From this perspective, LPE moves in the direction of historical materialism, although not to the point of according causal LAW AND HISTORICAL MATERIALISM 37 is a certain way, one has to figure out the legal and political decisions that made it that way. And to figure that out, one has to contend with the indeterminacy of law, that is, with law’s capacity to mean and do different things in different actors’ hands. The chief weakness of this way of thinking is that there is no reason to believe that it is true. Beneath the constructivism in which LPE’s more programmatic statements engage lurks a profound, and profoundly contestable, metaphysical assumption: that more-or-less conscious human decisions to change the world . . . change the world. In other words, while constructivism and voluntarism are logically separable ideas, LPE – like most CLS-inspired accounts of law, including Moyn’s own – tends to conflate them. The possibility that legal and political decisions function primarily as pass-throughs for non-intentional regularities is neglected. The possibility that the economy is the way it is because of forms of human action and interaction – including with the non-human world – that lie beyond the precincts of legal and political institutions, or their informal, social-movement doubles, is also neglected. Despite the claim of LPE and other CLS-inspired accounts of law to greatly enrich the threadbare account of social reality on offer from law and economics, these critical fields themselves risk offering a highly partial picture of social reality, while investing that partial picture with unmotivated causal power.93 A second weakness of LPE’s constructivism is that by according such causal primacy to legal and political decision-making, it undermines the explanatory power of a concept like capitalism. If whatever capitalist political economy is is the outcome of legal and political decisions made by those who happen to have sufficient power to make and enforce them, then there is little explanatory valueadded in affirming capitalism’s existence, rather than denying it. Moyn intuits this problem. But following Unger, he himself is committed to the claim that legal and political decisions, at least some of the time, do have the power to transform the meaning of law and thus the structure of economic arrangements. Unlike LPE, of course, Moyn and Unger have divested themselves of reference to any kind of historically recurrent social totality, such as capitalism. Nonetheless, how to determine the limits of the indeterminacy of law and of the autonomous causal power of legal discourses and decision-makers remains a pressing question primacy to the productive forces themselves. Corinne Blalock has also confronted this issue. See Blalock, supra note 88. 93 Cf. Matthew Dimick, “Without Remainder”: Law and the Constitution of Economy and Society, Legal Form (July 11, 2022), https://legalform.blog/2022/07/11/without-remainder-law-socialconstitution-adorno-kant-hale-dimick/ (“Take a closer look at [Robert] Hale’s conclusion that it is the law that compels the worker to starve if they have no wages, that compels them to go without wages unless they obey the employer, and that coerces them into wage work under penalty of starvation. Is this true? . . . Workers under capitalism labour under the ‘dull compulsion’ of the market—the threat of starvation. Serfs and slaves labour in addition under the direct, legallysanctioned compulsion to work. The distinction is important precisely because it shows that the compulsion facing the worker is not legally constituted without remainder. The coerced form of work under capitalism is premised more on the ‘natural’ compulsion of biological (and social) need and want than it is on the ‘artificial’ compulsions to work found in antiquity or feudalism. Hale makes no distinction between these sources of coercion, leading to the erroneous conclusion that ‘the law’ is the final and ultimate source of compulsion—that the law constitutes the economy, without remainder.”). LAW AND HISTORICAL MATERIALISM 38 for Moyn. It is also the third, and most fundamental, question that animates the quasi-debate between Moyn and LPE. Moyn thinks CLS and its successors (including himself) need a social theory to ground their claims. Otherwise, the indeterminacy of law and the autonomous causal power of legal actors function as a kind of explanatory magic wand. Without some empirically grounded method for putting indeterminacy and autonomy in their place, the legal theorist or legal historian can make almost any claim at all about why a legal change happened or did not happen, succeeded or failed. A social theory such as Unger’s, Moyn proposes, would provide such a method. Given the above discussion of Unger’s social theory, however, it is far from clear that Moyn’s prescription would be any more demanding than his interlocutors’ alternatives: theoretical pluralism,94 theoretical quietism,95 or a materialistic amalgam of Marxist, liberal, and post-Marxist strands of social theory.96 The ironic core of the debate between Moyn and the LPErs, then, is that neither Moyn nor the LPErs are comfortable committing to a social theory that places consistent limits on the indeterminacy of law and the autonomous causal power of legal actors.97 The MHMAL offers such a social theory. It is one that nicely complements much of the excellent empirical research and domain-specific legal theory currently being done by scholars associated with LPE.98 Their research and theorizing often complicate – if they do not dislodge altogether – the traditional emphasis on 94 Britton-Purdy, supra note 90. Paul, supra note 90. 96 Tzouvala, supra note 90. 97 Taking a similar tack to the one offered here, the Marxist legal theorist Rob Hunter identifies both Moyn and LPE with the broader complex of “contemporary left-liberal legal-political economic scholarship” which “understands the current moment as one of rising economic inequality resulting from ‘specific legal innovations’ that caused specific changes in economic relations.” Hunter, supra note 28. “In other words,” Hunter goes on, “inequality is the fault of regulatory failure and capture, or monopolism, or financialisation, or markets being ‘disembedded’ from public institutions—or, contrariwise, the state’s imposition of neoliberal rationality in more and more spheres of life—and so on. Legal change—consisting of ‘specific legal innovations’ with respect to particular kinds of assets, markets, contractual relationships, property claims, and so on—is presented as a sufficient explanation for economic change.” Id. Hunter contrasts the voluntaristic and subjectivist assumptions shared by Moyn and at least some LPErs with a historical materialist perspective on the law: “When it comes to legal institutions and norms, the inevitable—but bounded—variability of the content of law is determined by historically specific social forms, constituted behind the backs and through the practical activity of determinate social individuals in history.” Id. 98 See inter alia Amna A. Akbar, Non-Reformist Reforms and Struggles Over Life, Death, and Democracy, 132 Yale L. J. 2360 (2023); Veena Dubal, The New Racial Wage Code, 15 Harv. L. & Pol’y Rev. 511 (2022); Amy Kapczynski, The Political Economy of Market Power in Pharmaceuticals, 48 Journal of Health Politics, Policy and Law 215 (2023); K-Sue Park, Property and Sovereignty in America: A History of Title Registries and Jurisdictional Power, 133 Yale L.J. __ (forthcoming 2023); Amanda Parsons & Salomé Viljoen, Valuing Social Data, 124 Colum. L. Rev. __ (forthcoming 2024); Sanjukta Paul, Recovering the Moral Economy Foundations of the Sherman Act, 131 Yale L.J. 1 (2021); K. Sabeel Rahman, Constructing Citizenship: Exclusion and Inclusion through the Governance of Basic Necessities, 118 Colum. L. Rev. 2447 (2018); Brishen Rogers, Capitalist Development, Labor Law, and the New Working Class, 131 Yale L.J. 1719 (2022). For a similar approach, though one more consciously rooted in Marxist legal theory, see Ntina Tzouvala, Capitalism as Civilization: A History of International Law (2020). For a classic precursor, see Barbara Fields, Slavery and Freedom on the Middle Ground (1985). 95 LAW AND HISTORICAL MATERIALISM 39 individual and collective choices, shedding light on non-intentional material and mental regularities that shape legal and other forms of political economic decisionmaking. These scholars might be well served by engaging with the strictures of the MHMAL. While these strictures are not without cost, they include hypotheses about the relationship between law and capitalism, about the sources and limits of the indeterminacy of legal discourse, and about the narrow conditions under which legal actors might have the capacity to alter other social relations, including relations of production. LPE, in other words, could avoid the criticisms that Moyn levels at it by helping itself to a framework more fully emancipated from the hesitations and ambiguities endemic to the CLS enterprise, including Moyn’s own updated version of CLS. C. The Advantages of Naturalism A third advantage of the MHMAL is its consistency with the secular, naturalistic worldview that undergirds the policy commitments of left-leaning legal scholars in domains such as climate change, public health, and education. The claim that left-leaning legal scholars are committed to a secular, naturalistic worldview might come as a surprise, given the decades-long vogue on the academic left for emphasizing the socially constructed character of much, and perhaps all, of reality. As will be discussed below, there is no fundamental tension between theories of social construction and naturalistic theories; indeed, historical materialism provides a naturalistic account of how social construction works. But before turning to that more scholastic discussion, it is important to understand the sources of the MHMAL’s naturalism, and why so many of the core policy commitments of leftleaning legal theorists assume, even if they do not openly embrace, such naturalism. The MHMAL’s naturalism stems from its materialism. The latter holds that the explanation of human societies must be rooted in the explanation of how such societies produce and reproduce themselves, and that these societies do so first and foremost through the laborious interaction of humans with non-human nature. Nonhuman nature not only furnishes the materials that humans use to produce and reproduce themselves and their societies but also imposes limits on humans’ capacity to do so. Furthermore, the historical passage from non-human to human nature – that is, the natural preconditions of life and, only much later, specifically human life – continues to guide what humans do, need, and want. As Sebastiano Timpanaro puts it: By materialism we understand above all acknowledgment of the priority of nature over “mind,” or if you like, of the physical level over the biological level, and of the biological level over the socioeconomic and cultural level; both in the sense of chronological priority (the very long time which supervened before life appeared on earth, and between the origin of life and the origin of man), and in the sense of the conditioning which nature still exercises on man and will continue to exercise at least for the foreseeable future. . . . We cannot, in other words, deny or evade the element of passivity LAW AND HISTORICAL MATERIALISM 40 in experience: the external situation which we do not create but which imposes itself on us. Nor can we reabsorb this external datum by making it a mere negative moment in the activity of the subject, or by making both the subject and the object mere moments, distinguishable only in abstraction, or a single effective reality constituted by experience.99 Why is such naturalism an advantage for left-leaning legal scholars? Consider social problems as diverse as climate change, the COVID-19 pandemic, the unequal incidence and severity of diseases across populations, and the teaching of intelligent design in public schools. Left-leaning legal scholars generally assume that at heart of each of these problems there exist facts of the matter that are no longer in serious dispute by the relevant experts. Identification of these facts is delegated to natural scientific experts rather than political debate or broader social consensus. Furthermore, it is understood that the elimination or mitigation of these facts poses technical as well as a social, political, and legal challenges. At least in these contexts, left-leaning legal scholars affirm “the element of passivity in experience,” that is, the reality of an “external situation which [humans] do not create but which imposes itself on us.”100 And, rightly or wrongly, left-leaning legal scholars turn to technical experts in the relevant scientific fields to define the contours of this element of passivity.101 When proceeding in this way, left-leaning legal scholars acknowledge the limited plasticity of nature, and rely on certain groups of socially authorized experts to illuminate the structure of those limits. Such a procedure does not necessarily contradict the general tendency among such scholars to emphasize human agency or the specifically social contributions to the occurrence, incidence, and intensity of phenomena such as climate change, disease, “natural” disasters, and so on. To the contrary, reliable knowledge about the non-human material regularities that undergird socio-natural problems is essential to understanding the ways in which collective human action has also contributed to those problems – and might now mitigate their most destructive and unjust effects.102 99 Timpanaro, supra note 13, at 34. Cf. Schmidt, supra note 6, at 98 (“The fundamental materialist tenet could be summed up as follows: the laws of nature exist independently of and outside the consciousness and will of men. . . . Society is always faced with the same laws of nature. Its existing historical structure determines the form in which men are subjected to these laws, their mode of operation, their field of application, and the degree to which they can be understood and made socially useful. The power of nature cannot be broken entirely. Nature can only be ruled in accordance with its own laws.”). 100 Timpanaro, supra note 13, at 34. 101 For the social structure of delegation described above, see Michel Callon, Pierre Lascoumes, and Yannick Barthe, Acting in an Uncertain World: An Essay on Technical Democracy (2009). For a recent account of the political problems that attend such delegation, see Gil Eyal, The Crisis of Expertise (2019). 102 That being said, over-reliance on socially authorized expertise at any given time and place can be an impediment to knowledge about non-human nature – and thus to collective human efforts to modify the perilous interactions between human and non-human nature. See, e.g., Charles Sabel & David Victor, Fixing the Climate 6 (2022) (“Analysts often celebrate Montreal because it followed the science of ozone depletion, but that science at the time of Montreal’s adoption was indeterminate LAW AND HISTORICAL MATERIALISM 41 The contemporary left-leaning legal scholar should want a theory of law that is consistent with this recognition of the limited plasticity of nature. The MHMAL offers such a theory. What have historically been seen as the downsides of historical materialism – its deterministic tendencies, its granting of causal priority to nonintentional mental and material regularities, its skepticism about agency, contingency, and indeterminacy – are precisely those features that render it capable of thinking in a consistent and coherent fashion about the complex relationship between the legal and scientific aspects of social problems such as climate change and COVID-19. Notwithstanding their reliance on natural scientific knowledge to identify and understand these kinds of problems, many left-leaning legal scholars might be skeptical of a social theory that uncritically accepts the objectivity of such knowledge. Indeed, the socially constructed character of scientific facts is a cherished insight of much left-leaning social theory. Theorists in this tradition maintain that that it is actually quite difficult – and perhaps impossible – to isolate those aspects of nature that are non-plastic in the sense discussed above, that is, those aspects of nature that are not themselves artifacts of human mentation, communication, and physical intervention.103 But the MHMAL is not committed to a naive conception of scientific objectivity or of a natural world that can be known independently of social mediation. To the contrary, the socially constructed character of the natural world and of knowledge about it are core insights of historical materialism. The historians, philosophers, and sociologists of science who have deeply influenced the contemporary academic left stood on the shoulders not only of Nietzsche and Wittgenstein, but also of Marx.104 As Alfred Schmidt put it: It is the socio-historical character of Marx’s concept of nature which distinguishes it from the outset. Marx considered nature to be “the primary source of all instruments and objects of labour,” i.e., he saw nature from the beginning in relation to human activity. All other statements about nature [that is, after the initial positing of nature as the source of the instruments and objects of human labor], whether of a speculative, epistemological, or scientific kind, already presuppose social practice, the ensemble of man’s technologicaleconomic modes of appropriation. Natural phenomena and all consciousness of nature have been reduced in the course of history more and more to functions of . . . social processes.105 Historical materialism, in other words, is itself an account of the social construction of nature. What most humans today still understand as “the objective as to ozone safe solutions, and the real root of success was the Montreal orchestration of experimentation and learning about uncertain industrial futures.”). 103 See generally Sally Haslanger, Resisting Reality 83-112 (2012); Ian Hacking, The Social Construction of What? 1-34 (1999); Science as Practice and Culture (Andrew Pickering ed., 1992); Rationality and Relativism (Martin Hollis & Steven Lukes eds., 1982). 104 See, e.g., Barry Barnes, Interests and the Growth of Knowledge (1977) (exploring the importance of historical materialism for the sociology of scientific knowledge). 105 Schmidt, supra note 6, at 15. LAW AND HISTORICAL MATERIALISM 42 world” is for, historical materialists, created by “the socio-historical life-process of human beings.”106 As human societies have developed, “extra-human natural existence has been reduced more and more to a function of human social organization.”107 As such, the MHMAL is happy to take on board the insights of those historians, philosophers, and sociologists who have opened up the black box of scientific knowledge production.108 In doing so, however, the MHMAL recognizes that the community of skeptics about the objectivity of nature and of natural scientific knowledge is diverse and divided. This community has played host to a decades-long debate about the precise contours of social construction.109 Within that debate, the MHMAL sides with those participants who maintain that it is reasonable to affirm the distinction between human and non-human nature.110 It follows from this distinction that there exists a world that predates human history and that persists, at least to some extent, independently of human intervention. Ever since the advent of human society, however, both the composition of this nonhuman world and the very possibility of knowledge about it have been matters of social construction. How does historical materialism negotiate the relationship between its naturalistic and constructivist commitments? Alfred Schmidt’s reading of Marx’s concept of nature remains the best answer to this question. Originally published in German in 1962, Schmidt’s monograph found in Marx’s canonical works an account of the relationship between nature and society that is strikingly consistent with the account developed by Anglophone sociologists of science in the 1970s and 1980s. According to Schmidt, “Marx defined nature . . . as that which is not particular to the Subject, not incorporated in the modes of human appropriation, and not identical with men in general.”111 In other words, nature is that portion of 106 Id. at 28. Id. 108 See inter alia Helen Longino, Studying Human Behavior: How Scientists Investigate Aggression and Sexuality (2013); David Bloor, The Enigma of the Aerofoil: Rival Theories in Aerodynamics, 1909-1930 (2011); Karen Barad, Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning (2007); Harry Collins, Gravity’s Shadow: The Search for Gravitational Waves (2004); Harry Collins & Trevor Pinch, The Golem at Large: What Everyone Should Know About Technology (1998); Donald Mackenzie, Inventing Accuracy: A Historical Sociology of Nuclear Missile Guidance (1990); Trevor Pinch, Wiebe Bijker & Thomas Hughes, The Social Construction of Technological Systems (1987); Harry Collins, Changing Order: Replication and Induction in Scientific Practice (1985); Simon Schaffer & Steven Shapin, Leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life (1985); Science in Context: Readings in the Sociology of Science (Barry Barnes & David Edge eds., 1982); Bruno Latour & Steve Woolgar, Laboratory Life: The Social Construction of Scientific Facts (1979); Natural Order: Historical Studies of Scientific Culture (Barry Barnes & Steven Shapin eds., 1979). 109 See inter alia Knowledge as Social Order: Rethinking the Sociology of Barry Barnes (Massimo Mazzotti ed., 2008); Thomas Kuhn, The Road Since Structure (2000); Science as Practice and Culture, supra note 105; Rationality and Relativism, supra note 105; Bruno Latour, For Bloor and Beyond, 30 Studies in History and Philosophy of Science 113 (1999); David Bloor, Anti-Latour, 30 Studies in History and Philosophy of Science 81 (1999). 110 See, e.g., H.M. Collins & Steven Yearley, Epistemological Chicken, in Science as Practice and Culture, supra note 105, at 301 (discussing and criticizing reflexive and semiotic approaches to science studies that either reject this distinction outright, or question its meaningfulness). 111 Schmidt, supra note 6, at 27. 107 LAW AND HISTORICAL MATERIALISM 43 reality that is not yet entirely subject to socially organized knowledge and control. This portion of reality includes human beings themselves to the extent that their thoughts and actions remain not entirely knowable and controllable by the social organizations of which they are a part.112 Historical materialism’s naturalism depends on the belief in the unity between human and non-human nature. Its constructivism depends on the belief that this unity is a “socio-historically mediated” unity, one that is characterized not by harmony but by the “differentiation” or “separation” between collective human purposes and the raw materials necessary to accomplish those purposes.113 The differentiation between social and natural reality is revealed most palpably in “industry,” that is, in the laborious process by which organized groups of humans seek to wrest from nature the materials necessary for the production and reproduction of human life, and of the societies in which that life flourishes.114 It is through this process that nature begins to be – and continues to be – socially constructed. The historical advent of the socially constructed world – the advent of history itself – does not, however, abolish the reality of nature. Naturalism is reaffirmed to the extent that the condition of possibility of the process of social construction remains the persistence of nature itself, that is, the persistence of all the non-human and human physical processes not yet entirely consumed by industry.115 By adopting this blend of naturalism and social construction, the MHMAL helps itself to a single social theory capable of accounting for the ways in which both law and scientific knowledge relate to the material conditions of society. These material conditions are composed by a mix of human and non-human nature. That mix, once mobilized by human labor, is what historical materialism traditionally refers to as the productive forces. As discussed in Parts I, II, and IIIA above, the functional imperatives of those forces exert a significant influence on the form and substance of all social relations, including legal relations, even as they do not exhaustively explain them. Something similar could be said about the development of natural scientific knowledge in a given society, as a host of historians, philosophers, and sociologists of science, not to mention some natural scientists themselves, have argued over the years.116 The difference is that natural scientific 112 Cf. id. at 29 (“Marx described extra-human reality which is both independent of men and mediated or, at least, capable of being mediated with them, by using the following synonymous terms: ‘material’, ‘nature’, ‘stuff of nature’, ‘natural thing’, ‘earth’, ‘objective moments of labour’s existence’, ‘objective’ or ‘material (sachlich) conditions of labour’. Since men constitute a component of this reality, the concept of ‘nature’ is identical with the ‘whole of reality’ in the Marxist view.”). 113 Id. at 27. 114 Id. 115 Cf. Timpanaro, supra note 13, at 45 (“To maintain that, since the ‘biological’ is always presented to us as mediated by the ‘social,’ the ‘biological’ is nothing and the ‘social’ is everything, would once again be idealist sophistry. If we make it ours, how are we to defend ourselves from those who will in turn maintain that, since all reality (including economic and social reality) is knowable only through language (or through the thinking mind), language (or the thinking mind) is the sole reality, and all the rest is abstraction?”). 116 See supra note 105 (collecting sources); see also R.C. Lewontin, Biology as Ideology 3 (“[S]cience is molded by society because it is a human productive activity that takes time and LAW AND HISTORICAL MATERIALISM 44 knowledge consciously takes as its object the physical structure of the productive forces that unconsciously shape such knowledge, as well as the physical structure of that portion of nature not yet integrated into the labor process at all. In seeking to engage with this as-yet-unmediated natural surround, however, scientific investigation introduces social mediation there as well. In this way, scientific investigation represents the extension of the labor process – and the social mediation inherent to it – ever farther into the natural world.117 How such an intrinsically social activity produces authoritative – or at least reliable – knowledge about the natural world is the question that the sociology of science seeks to answer. As mentioned above, the MHMAL sides with those sociologists of science who argue that part of the answer lies in the fact that there exists a non-human natural world to be known, one that is not wholly constituted by human mentation and communication.118 This sociological argument is consistent with what one might call the revealed preferences of most left-leaning legal scholars in their reliance on natural scientific knowledge about climate change, pandemics, the evolutionary biological origins of human life, and so on. This naturalistic way of thinking is also essential if one wants to enjoy the considerable explanatory benefits that historical materialism offers as a social theory of law. Recall that the MHMAL explains legal development in terms of the functional role it plays in the production and reproduction of human societies. The production and reproduction of human societies, in turn, involve the ongoing interaction between humans and non-human nature in the labor process. To refuse to recognize the persistence of non-human nature is to lose track of this process, and thus to lose track of the law. Skeptics about the MHMAL’s naturalism might nonetheless worry that scholastic debates about the social construction of scientific knowledge distract from the more legally and politically pressing insights gained when one acknowledges the fundamentally social nature of destructive events that at first might seem “natural” in origin, such as the rapid spread of a deadly virus or of a wild fire. In other words, anti-naturalists might argue that the point is not to doubt scientific reports about the physical structure of the virus or the fire, but rather to appreciate the degree to which the incidence and intensity of the virus’s or fire’s spread has everything to do with prior legal and political choices. For instance, in his magisterial account of the ecological context of contemporary law and politics, Jedediah Britton-Purdy argues that we live in a “post-natural” world. “Post-natural” because of the degree to which political, legal, and technological decision-making have led “[t]he natural and the artificial” to “merge[] at every scale”: money, and so is guided by and directed by those forces in the world that have control over money and time.”). For potential limitations on this analogy between legal relations and scientific knowledge, see Timpanaro, supra note 13, at 47-48; and Cohen, supra note 9, at 45. 117 Cf. Schmidt, supra note 6, at 29 (“Men construe the world, in the various spheres of their culture, on the model of their contemporary struggle with nature.”). 118 See inter alia Hacking, supra note 103; Haslanger, supra note 103; Collins & Yearley, supra note 110. LAW AND HISTORICAL MATERIALISM 45 Climate change makes the global atmosphere, its chemistry and weather systems, into Frankenstein’s monster— part natural, part made. The same is true of the seas, as carbon absorption turns the oceans acidic and threatens everything that lives in them. The planet’s landscapes, its forests and fields, along with the species that inhabit them, are a mélange of those we have created, those we have cultivated and introduced, and those we let live—or, in only the deepest jungles, have not yet reached. Even wilderness, that emblem of untouched nature, persists where lawmaking and management create it, artificial testament to the value of natural things.119 This passage bears the familiar marks of the left-leaning legal scholar’s commitment to the socially constructed character of reality. Yet by referencing species that “we let live” and “deepest jungles” that we “have not yet reached,” Britton-Purdy appears to acknowledge a residuum of non-human nature. Indeed, a few pages later, he explicitly declines to abandon the concept of nature.120 At times, Britton-Purdy suggests that retention of the concept is justified by the power exerted by human “ideas about nature.”121 But at other times, he accords a more autonomous causal role to non-human nature. For instance: As economy, ecology, and politics unite with growing intensity, the natural world itself will enforce unequal economic and political power. Wealth has always meant the power to resist natural shocks and carry on with one’s life. Wealth commands vaccines and antibiotics, upland real estate safe from floods, reliable flows of food and water when drought strikes, and muscle and weaponry when the desperate and the opportunistic try to take those things for themselves. In these ways, natural catastrophe amplifies existing inequality. When sea levels rise, malaria spreads, and storms intensify, low-lying and poor regions will see their poverty confirmed by disasters for which no one can quite be blamed, while rich countries, even ones that have started out as haplessly as the United States has on climate change, will build seawalls and innovatively adaptive buildings and cities. The global atmosphere is a great launderer of historical contributions to, and benefits from, inequality. Everything washes out in the weather.122 On this account, nature retains an obdurately alien causal role, attributable as much to non-intentional material regularities as to past planning and present crisis management. However much nature is shaped by prior human labor, and however much our legal, political, and economic institutions shape the unequal incidence and intensity of “natural catastrophe,” there is something about those catastrophes 119 Jedediah Purdy, After Nature 15-16 (2015). Id. at 21 121 Id. at 21-22 (emphasis added). 122 Id. at 46 (emphasis added). 120 LAW AND HISTORICAL MATERIALISM 46 that remains resolutely non-human. And not only catastrophes. See, for example, Britton-Purdy’s description of the contemporary “food movement,” which “hints at a new picture of people and nature,” a picture in which “the physical labor of growing, gathering, and cooking food is a source of satisfaction, enriched by knowledge of the ecological, chemical, and other processes that the work engages.”123 “This movement,” Britton-Purdy continues, “aims at a kind of farming that preserves, even enhances, natural processes, rather than exhausting them.”124 Understanding and responding to the non-human core invoked in these passages requires natural scientific knowledge, as well as the integration of that knowledge (and the degree of scientific realism that comes with it) with knowledge about the law, all within a broader social theory. Treating the fate of human society as always and only a matter of “politics” – that is, intentional, collective decision-making about human behavior – is fundamentally inconsistent with the causal role that Britton-Purdy assigns the natural world at pivotal moments in his book. The MHMAL supplies a way out of this impasse, a way out that seems perfectly consistent with Purdy’s sharpest observations.125 The fact that climate change is largely anthropogenic or that “natural” disasters are largely “man-made” does not entail that human consciousness saturates nature all the way down, or that nature is infinitely plastic. Rather, the social construction of putatively natural disasters demonstrates that human behavior contributes to the production of non-intentional regularities every bit as obdurate, as inflexible, as non-human physical processes. In other words, by acknowledging the socially constructed character of problems such as climate change, we discover (or rediscover) that human and non-human nature work together to produce patterns that are enormously difficult to alter by subsequent intentional action. To recognize that climate change is a “man-made” problem, then, is to recognize that what humans make comes to constrain what humans do. If historical materialism, in its emphasis on the transformative force of human labor, begins by challenging the passivity of nature, it ends by discovering that human activity itself feeds into this passivity, creating ever more weighty constraints on human action. Intentional human action creates non-intentional mental and material regularities that constrain subsequent human intention and action. This social construction of 123 Id. at 232 (emphasis added). Id. 125 Compare id. at 22 (“We shape the world by living. Our lives knit into a kind of collective landscape architecture. By the ways we eat, move around, stay warm or cool, and amuse ourselves, we create the subsystems of a vast metabolism tying us at every point to our environment. We call these subsystems the energy economy, the food economy, the transportation system, and shelter— cities and suburbs.”) with Schmidt, supra note 6, at 76 (“The later, and more critical, Marx . . . took the view that the struggle of man with nature could be transformed but not abolished. In this connection, he made use of the term ‘metabolism’ which, for all its scientific air, is none the less speculative in character. This ‘metabolism’ is subject to laws of nature anterior to man. Any attempt to form the stuff of nature must take heed of the regularities proper to matter. ‘Man can only proceed in his production in the same way as nature itself, that is he can only alter the forms of the material.’ The alteration of the forms can itself only take place wit the help of natural forces, amongst which Marx also counted active human Subjects.”). 124 LAW AND HISTORICAL MATERIALISM 47 unfreedom is what Sartre meant by “the practico-inert.”126 The recognition that law is part of the practico-inert lies at the heart of the MHMAL. Law, in other words, becomes recognized as part of the process by which the social construction of nature comes to create a socio-natural world that primarily constrains humans and, indeed, constitutes their laws. This view of the law helps to explain the puzzle that legal scholars critical of capitalist legal reform have recently encountered: that capitalist law is something that is made by humans but then becomes something difficult for humans to unmake.127 In this regard, law is a lot like climate change or a COVID-19. This consistency between claims about the limited plasticity of non-human nature and claims about the limited plasticity of socio-natural phenomena as various as climate change, COVID-19, and the law is a virtue. Or so the MHMAL claims. There is something profoundly strange about left-leaning legal scholars who believe one thing about the metaphysical character of law and another about the metaphysical character of a socio-natural problem like climate change. From the perspective of the MHMAL, there is one world, as complicated and variegated as it may be, composed of different mixtures of the human and the non-human, and of different degrees of human agency within different socio-natural domains. Nonetheless, there is a world.128 In addition to its other virtues, this provisional monism may be a necessary condition of fulfilling the explanatory imperative that Moyn imposes on radical social theories of law. As Moyn writes, “[s]tressing functional underdetermination in reaching some order or outcome generally just means that a more specific explanation of why it came about is needed—including why agents constituted by the social order with a range of likewise constituted options moved in one way rather than other.”129 Moyn insists on the passage from functional underdetermination to more specific explanations in order to guard against the reduction of legal explanation to arguments from accident or contingency.130 These insights resonate with the previous discussion of the MHMAL’s approach to functional underdetermination. The fact that some legal development cannot be exhaustively explained by reference to the functional role that the legal development serves vis-à-vis the forces and relations of production does not mean that the legal development cannot be explained at all. Rather, what functional underdetermination entails is that a complete or, in Moyn’s terms, “more specific,” explanation will require reference to non-functional as well as functional factors. Where are those factors to be found? Here is where some daylight opens up between Moyn’s insights and the MHMAL’s own. 126 See Sartre, supra note 53, at 46, 67, 71, 122-255. See inter alia Pistor, supra note 36; Raskolnikov, supra note 36. 128 Cf. Schmidt, supra note 6, at 16 (“Marx showed . . . that society itself was a natural environment. This was meant not only in the immediately critical sense that men are still not in control of their own productive forces vis-à-vis nature, that these forces confront them as the organized, rigid form of an opaque society, as a ‘second nature’ which sets its own essence against its creators, but also in the ‘metaphysical’ sense that Marx’s theory is a theory of the world as a whole.”). 129 Moyn, supra note 2, at 15. 130 Cf. id. at 15-16 (“What does not follow—like, at all—is that those results could have been anything, or were ‘accidental’ or ‘contingent,’ as if social life were a series of rolls of the dice.”). 127 LAW AND HISTORICAL MATERIALISM 48 The MHMAL posits a socio-natural totality that, in theory, exhaustively determines – and thus explains – any given legal change. This totality includes the productive forces (including human labor), the social relations of productions, all other social relations, interactions between various social relations, and all the other features of a society’s natural context and composition, from climactic patterns to as-yet-poorly-understood aspects of human cognition. To the extent that the features in this final category have been thoroughly incorporated into the labor process, they can be counted as productive forces; to the extent they remain at least somewhat free of human cognizance and control, they cannot be – despite their causal power, and thus their potential relevance for explanation. A complete explanation of a given legal change might have to draw on all these categories. An adequate explanation – that is, one more convincing than other explanations – rarely will. But in either case, the MHMAL counsels the legal scholar to remain open to the potential explanatory value of all aspects of the socio-natural whole. Moyn, for his part, also posits a kind of explanatory whole, “the social order.”131 This social order constitutes both “agents” and their “options.”132 Moyn follows Unger – and, elsewhere, the French post-Marxist Claude Lefort133 – in treating “social order” as the explanatorily relevant totality. But where is nature in all of this? And why are the only agents intentional ones, choosing between various options? And why, again, is the only force constituting agents and their options society – as opposed to nature? At two points in his Article, Moyn does acknowledge the existence and potential significance of the natural world for legal explanation. First, when he writes: “Alongside biological life and broader natural processes, social order and reproduction is what everyone is ultimately involved in, and anything they might do or not do traces back to it.”134 And a little later, when he writes: “Philosophers will continue to ponder how freedom is conceivable in a determined world—which is determined naturally before it is determined socially. But social theorists have posed the problem in light of the fact that different social orders set up radically different potentials for agents under them to transform the terms of their personal lives or of their collective institutional settings.”135 In each case, the causal power of nature is recognized only to be cabined. But it is not clear why the “more specific explanation[s]” toward which functional underdetermination leads – explanations that guard against reducing legal explanation to arguments from contingency or accident – should be deprived of nature as a source of explanatory power. This is especially so given that the causal power of non-human nature is precisely what human societies are forever confronting in their effort to produce and reproduce themselves. Nor is it clear why a social order, even if abstracted from its natural surround, should be thought of as 131 Id. at 15. Id. at 16. 133 See generally Samuel Moyn, History, Law, and the Rediscovery of Social Theory, in History in the Humanities and Social Sciences (Richard Bourke & Quentin Skinner eds., 2023). 134 Moyn, supra note 2, at 5. 135 Id. at 8. 132 LAW AND HISTORICAL MATERIALISM 49 being comprised, whether exhaustively or even primarily, of agents choosing between options. As the previous discussion of Britton-Purdy’s After Nature highlighted, leftleaning legal scholars concerned with understanding the relationship between law and contemporary social problems should not confine themselves to an explanatory matrix as ethereal as “the social.”136 More ethereal still would be an understanding of “the social” confined to the intentional. The MHMAL offers a social theory of law that is capable of generating explanations of legal development that account for both the degree to which the laborious human transformation of non-human nature shapes the law (whether intentionally or not), and the degree to which legal developments influence this ceaseless passage from human to non-human nature and back again. IV. THE LIMITS OF THE MHMAL Readers who have made it this far will likely have thought of many potential objections to the MHMAL. This Part addresses four problems that CLS-inspired accounts of law avoid altogether. Part IVA discusses the MHMAL’s skepticism about the freedom of legal actors. Part IVB acknowledges the evidentiary demands that the MHMAL imposes on legal scholars and the questions of testability that its causal claims raise. Part IVC seeks to clarify what the MHMAL means when it talks about “productivity.” Part IVD, finally, tackles the relationship between the MHMAL’s naturalism and contemporary scholarship on race, gender and sexuality, and the limits of evolutionary theory. A. The Problem of Freedom Moyn at times suggests that the freedom of legal actors to change the law, and thus the world, is a critical feature of any radical theory of law.137 As previously discussed, the MHMAL casts doubt on this freedom. It does not deny the freedom altogether, but it holds that such freedom is entirely situated and dependent on the position of a particular legal actor within the relations of production and in relation to the productive forces. Moyn too insists that the freedom of legal actors is always “situated” within a “powerfully determined world.”138 But by making explicit how determined the world really is, and by identifying the most determinant aspects of that world with non-intentional material and mental regularities, the MHMAL narrows the horizon and the value of legal agency. Legal actors closer to the control of the most potent productive forces will have more power to change the law – and, more marginally, the world – than legal actors further away. And even those legal actors closer to the control of the most potent productive forces are likely to exercise their agency in favor of those forces’ continued development, not in favor 136 See supra notes 119-125 and accompanying text. See, e.g., Moyn, supra note 2, at 15 (“A radical theory of the law needs to make room for freedom—always constituted freedom among old or newly constituted options—to alter the terms of social life, or to leave those terms the same for that matter.”). 138 Id. at 17. 137 LAW AND HISTORICAL MATERIALISM 50 of some independent social or political or economic goal. This vision of severely situated freedom may contribute to the unpopularity of the MHMAL. Why? To the extent that affirming the capacity of legal actors to change the law and the world is important to their social status and economic value, legal scholars may be inclined to disfavor an account of law that represents this capacity as severely limited. But even scholars unbothered by these professional costs might worry that the MHMAL’s delimitation of the efficacy of legal reform and the agency of legal reformers is simply too dispiriting. Then again, why should the fact that the MHMAL is dispiriting preclude its adoption? Many left-leaning legal scholars hold views that are pessimistic. Why would the MHMAL’s skepticism about the significance of legal reform be especially likely to doom it to marginalization? Drawing on the MHMAL itself, one might argue that the MHMAL’s adoption is disfavored precisely because the propagation of the MHMAL’s worldview would not facilitate the development of the prevailing forces and relations of production. By contrast, accounts of law that accord greater significance to the intentions and choices of legal actors – even if those accounts treat comparatively radical choices as unlikely to succeed – might tend to generate a kind of legal dynamism that does facilitate, however unintentionally, the prevailing forces and relations of production. From this perspective, the dispiriting character of the MHMAL is attributable not simply to the legal scholar’s self-interest, or to the legal scholaractivist’s understanding of the importance of hope, but to the material conditions of contemporary capitalist society. The MHMAL would thus predict its own marginalization, on account of its discounting the freedom of legal actors. B. The Problem of Professionalization A related problem concerns whether the MHMAL, even if accepted by some legal scholars, could reliably produce successful legal scholarship. The explanatory framework developed in Parts I-III entails engagement with an array of scholarship in the social – and even the natural – sciences far afield from traditional law review articles and monographs. One might reasonably doubt whether such engagement redounds to the benefit of aspiring – or even seasoned – legal theorists and historians. Such engagement is certainly not these theorists and historians’ “comparative advantage” in the context of the contemporary academy. More problematic still, the MHMAL makes many explicit assumptions about the nature of reality, and generates explicit causal hypotheses. Other radical theories tend to stay away from this dangerously empirical terrain. “Dangerous” because explicit assumptions and causal hypotheses give rise, at least in the current legal academic environment, to the belief that those assumptions and hypotheses should be tested. This belief is not an unreasonable one. Yet all explanations that involve hermeneutic judgments, whether historical or presentist in orientation, are infamously difficult to test. The traditional way of doing so in the historical profession, for instance, was both subjective and guild-like. When a historian drew on particular archives to offer a new argument about the causal structure of some past event, the argument would be assessed by other historians familiar with those same archives and past scholarship about the causal structure of the same event. A LAW AND HISTORICAL MATERIALISM 51 rough consensus would then emerge about whether the new argument: offered a plausible interpretation of the archival materials; and drew plausible connections between that interpretation and a transformed understanding of the causal structure of the event in question.139 Whatever the concerns one might have about the rigor or replicability of such a method, the method is increasingly difficult to apply even in mainstream historiographical research. This is in large part due to the massive expansion in the chronological, geographical, and technological range, and thus the archives, of historical study today.140 It is harder than ever to find scholars intimately familiar with the archives plumbed by the latest scholarship. But there are also social incentives against testing, and ever-more-politically-charged interpretive disagreements over whether a piece of work passes some particular test or not.141 These problems, of course, are not so dissimilar from those that bedevil the more quantitative social sciences today, under the rubric of the replication crisis.142 In any event, the MHMAL risks exposing qualitative legal theory and legal history to such trouble. CLS-inspired accounts of law, by contrast, largely avoid the burden of testable explanations. It does so by assuming such a large degree of legal indeterminacy, contingency, and agency that the possibility – or desirability – of testing competing causal hypotheses recedes altogether.143 C. The Problem of Productivity One might ask on what basis the MHMAL assumes that the development of the productive forces leads, over the long run, in a particular direction, and that that direction is conducive to the production and reproduction of human life, and of the societies in which such life flourishes. This was one of Unger’s – and many others’ – central criticisms of historical materialism. One response, contemplated above, is that other left-leaning social theories, including Unger’s, make at least equally questionable assumptions about the nature of reality. Nonetheless, even if the MHMAL’s assumptions are independently preferable to the assumptions favored by CLS-inspired accounts of law, the problem of “productivity” will remain vexing for those who might otherwise favor the MHMAL. The first aspect of the problem has to do with the definition of “productivity.” A second aspect of the problem has to do with our intuitions about the historically attested perils of productivity, however defined. With respect to definitions, Marx wrote that “the growth of the productive forces . . . means merely that less direct 139 See generally Maurice Mandelbaum, The Anatomy of Historical Knowledge (1977). See generally Dan Edelstein et al., Historical Research in a Digital Age, 122 Am. Hist. Rev. 400 (2017). 141 See, e.g., Anton Howes, Cort Case, Age of Invention (July 7, 2023), https://www.ageofinvention.xyz/p/age-of-invention-cort-case (discussing the debate surrounding Jenny Bulstrode, Black Metallurgists and the Making of the Industrial Revolution, 39 History & Technology 1 (2023)). 142 See generally Reproducibility (Harald Atmanspacher & Sabine Maasen eds., 2016). 143 Cf. Moyn, supra note 2, at 16 (contrasting the “reductive functionalism” of Marxist and law-andsociety influenced approaches with the “cult of underdetermination that abjured explanation”). 140 LAW AND HISTORICAL MATERIALISM 52 labour is required in order to make a larger product.”144 Extrapolating the point, G.A. Cohen argued that, at least for historical materialists, “an increase in productivity [is] defined as a rise in the value of th[e] quotient: ‘Size of product/Amount of direct labour required to produce it.’”145 Fifteen years later, Moishe Postone offered a similar if not identical gloss: “An increase in average productivity increases the average number of commodities produced per unit of time.”146 More recently, Andreas Malm, drawing on Postone and E.P. Thompson, defined productivity as “labour output as measured against a fixed time unit.”147 Disagreements about whether the output in question is a use-value or an exchangevalue,148 and what counts as a use-value as opposed to an exchange-value (a question that became particularly significant for debates about the character of social reproduction)149 must be put to one side for now. But just as controversial is the claim, often implicit but rendered explicit by Cohen, that for the historical materialist, as against the neoclassical or neoKeynesian economic theorist, productivity is defined without reference to the prevailing social relations of production.150 In other words, the productivity of the productive forces is defined by what those forces could produce under optimal social conditions. This rather speculative definition of productivity helps to motivate the historical materialist intuition that relations of production can be said to act as fetters upon, and not just facilitators of, the productive forces. Fettering, in turn, becomes a source of historical dynamism, as the productive forces – including the productive force of human labor power – push against the bounds imposed on them by “sub-optimal” relations of production.151 Even if one accepts this definition of productivity, one still might have reason to question the apparent historical materialist assumption that increases in 144 Karl Marx, Grundrisse 831 (Ben Fowkes trans., 1973). Cohen, supra note 9, at 56. 146 Moishe Postone, Time, Labor, and Social Domination 193 (1993). 147 Andreas Malm, The Origins of Fossil Capital: From Water to Steam in the British Cotton Industry, 21 Historical Materialism, 15, 55 (2013). 148 See, e.g., Postone, supra note 146, at 197 (“Increased productivity does not, as noted, yield greater amounts of [exchange-]value per unit of time. For this reason, all means of increasing productivity, such as applied science and technology, do not increase the amount of value yielded per unit of time, but they do increase greatly the amount of material wealth [that is, of use-values] produced.”). 149 See generally Arruzza, supra note 7; Lise Vogel, Domestic Labor Revisited, 64 Science & Society 151 (2000). 150 See Cohen, supra note 9, at 56 (“What counts is not the amount of labour actually spent on what is actually made, but how much needs or would need to be spent . . . to make specified products. The fact that something is not produced, or that what is produced is produced inefficiently relative to available techniques and resources – these do not tell against the level of development of the productive forces. When relations of production ‘fetter’ productive forces, they inhibit not only their development but also their optimal use. But sub-optimal use does not entail a drop in the level of development of the productive forces, as it would if the power of the productive forces were measured with reference to actual rather than possible output. (Hence our concept of productivity differs from the one the economist uses when he compares the physical productivity of labour in different societies. Productivity in our sense is the maximum to which productivity in that sense could be raised, with existing means and knowledge, and in abstraction from social constraints.)”). 151 Id. See also id. at 326-340 (considering various accounts of “fettering”). 145 LAW AND HISTORICAL MATERIALISM 53 productivity tend to inhere to the benefit of human society. Three obvious and overlapping examples of how a growth in productivity might threaten the wellbeing, and perhaps the survival, of a hypothetical human society are: a growth in productivity that brings about environmental crisis; a growth in productivity that brings about nuclear war; a growth in productivity that benefits one human society but beggars another, contemporaneous human society. Scholars working within the historical materialist tradition have discussed all three examples at length.152 At the risk of significant reduction, responses to these (counter-)examples tend to turn on the distinction between the productivity of the productive forces and their more-or-less optimal mobilization by the relations of production and the other social relations. In other words, ecological crisis, nuclear war, and geopolitical competition neither falsify the tendency of the productive forces to grow more productive nor demonstrate that such growth in productivity is itself lamentable. Rather, it is the laggardness of the social relations – their failure to adapt to new forms and degrees of productivity in a timely and effective manner – that is to blame for the human suffering that one might otherwise attribute to technological growth (or some destructive tendency intrinsic to human labor power).153 Whether the basic structure of this argument strikes one as plausible will depend on one’s assessment of the causal division of labor that historical materialism assigns to the productive forces and the social relations, defended in Parts I-III above. D. The Problem of Naturalism A fourth category of potential objections to the MHMAL relates to its naturalism. While Part IIIC made the case for the advantages of naturalism, including its compatibility with a commitment to the socially constructed nature of law, that section did not address the full gamut of concerns that naturalism might raise for left-leaning legal scholars. Two loom particularly large: the historical relationship between naturalism and racist social and natural scientific theories; and the historical relationship between naturalism and retrograde theories of sex and gender roles. A third concern is less likely to animate left-leaning legal scholars, but still seems sensible to address here. This is the concern that the secular, naturalistic worldview is simply false all the way down. If non-human and, later, human nature did not emerge from a series of non-purposive physical and chemical 152 For some recent examples, see Drew Pendergrass & Troy Vettesse, Half-Earth Socialism (2022); Matthew T. Huber, Climate Change as Class War (2022); Tzouvala, supra note 100; Peter Custers, Questioning Global Militarism: Nuclear and Military Production and Critical Economic Theory (2008); Alyssa Battistoni, Freedom and Catastrophe, 135 New Left Review 143 (2022) (reviewing Pierre Charbonier, Affluence and Freedom: An Environmental History of Political Ideas (2021)); Guglielmo Carchedi & Michael Roberts, The Economics of Modern Imperialism, 29 Historical Materialism 23 (2021); Susan Watkins, The Nuclear Non-Protestation Treaty, 54 New Left Review 5 (2008). For a classic example, see Exterminism and Cold War (New Left Review ed., 1982). 153 For an early caution against this way of thinking, see Cohen, supra note 9, at 61 (“If the ‘crisis of resources’ is as serious as some say, it is a genuine threat to the realization of forms of communism which depend upon a radically reduced working day, for those forms require astronomically high levels of productive power.”). For a critique from outside historical materialism, see Augusto Del Noce, The Crisis of Modernity 3-18 (Carlo Lancellotti trans., 2015). LAW AND HISTORICAL MATERIALISM 54 interactions, but rather in conformity to a plan or in pursuit of a goal, then the MHMAL – along with most of the rest of left-leaning social theory – may be deeply misguided. The relationship between naturalism and racism is a subject of long study and debate.154 Left-leaning natural scientists and social theorists, however, have been at the forefront of demonstrating why naturalism does not entail racism, and why racist social and natural scientific theories often fail the logical strictures of the secular, naturalistic worldview.155 In short, the best natural and social scientific evidence undermines the case for attributing group differences in behavior to heritable genetic variations.156 While those variations may drive the phenotypical diversity that has historically been used to demarcate “race,” they do not plausibly explain behavioral differences among differently-raced groups.157 Race, in other words, is well and truly socially constructed. Its existence as a socially salient category is more reasonably attributed to the development of and interplay among social relations – of production and otherwise – than to any underlying biological fact of the matter. To the extent these arguments are persuasive, there is no reason to believe that the MHMAL’s naturalism would expose it – any more than antinaturalistic social theories of law – to racist deviations. On the other hand, recent developments within left-leaning social and legal theory may make the naturalistic anti-racism of past generations less palatable. That earlier form of anti-racism assumed that the recognition of race as epiphenomenal vis-a-vis underlying material realities was itself egalitarian and emancipatory. Over the past several decades, however, some of the most influential left-leaning social and legal theorists have raised the possibility that the naturalistic critique of racism is itself premised on an unduly color-blind epistemology and metaphysics. These theorists argue that, at least in some human societies, racial differentiation and subordination play such fundamental causal roles that it is empirically and normatively misguided to seek to explain such phenomena in terms of race-neutral 154 For a useful overview, see John P. Jackson Jr. & Nadine M. Weidman, Race, Racism, and Science (2005). For some recent and classic contributions to the U.S. historiography, see Ann Fabian, The Skull Collectors: Race, Science, and America’s Unburied Dead (2010); Rana Hogarth, Medicalizing Blackness: Making Racial Difference in the Atlantic World, 1780-1840 (2017); Winthrop Jordan, White Over Black: American Attitudes Toward the Negro, 1550-1812 (2d ed., 2012); Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (1997); Christopher Willoughby, Masters of Health: Racial Science and Slavery in U.S. Medical Schools (2022). 155 See inter alia Barbara J. Fields & Karen Fields, Racecraft (2012); Stephen Jay Gould, The Mismeasure of Man (1981); Lewontin, supra note 116; Timpanaro, supra note 13, at 48-50 & 49 n. 21; William H. Tucker, The Science and Politics of Racial Research (1994); Michael Yudell, Race Unmasked: Biology and Race in the Twentieth Century (2014); Joseph L. Graves Jr., Great Is Their Sin: Biological Determinism in the Age of Genomics, 661 Annals of the American Academy of Political and Social Science 24 (2015). See also Michel Foucault, Society Must Be Defended 6483 (David Macey trans., 2003) (situating scientific racism within a longer history of European thinking about social conflict and civil war). 156 For a useful overview, see Graves, supra note 155. 157 See generally Gould, supra note 155; Lewontin, supra note 116; Graves, supra note 155. For a review of the argument that even the link between heritable genetic variation and racially salient phenotypical diversity has been overstated, see Michael Yudell, Dorothy Roberts, Rob DeSalle, and Sarah Tishkoff, Taking Race Out of Human Genetics, 351 Science 564 (2016). LAW AND HISTORICAL MATERIALISM 55 or pre-racial categories, such as forces and relations of production.158 What if the productive force of human labor power cannot be abstracted from an alwaysalready racialized division of labor? What if racialized social relations constitute a category of social reality that is simply not explicable in terms of the development and interaction of non-racialized forces and relations of production? In either case, the MHMAL might not be able adequately to account for the autonomous causal power of race within contemporary capitalist societies. A somewhat different worry might arise concerning the relationship between MHMAL’s naturalism and contemporary left-leaning legal thought about sex and gender.159 The MHMAL’s naturalism certainly does not prevent it from differentiating sex and gender – although that differentiation itself has been powerfully criticized by some post-Marxist feminists.160 Nor is the MHMAL without tools for explaining the development and diversity of legal, political, and cultural norms governing gender expression and sexual reproduction in various human societies.161 But the MHMAL’s commitment to the existence of a set of material propensities intrinsic to human life – including the drive to produce and reproduce human life – may well come into conflict with strongly anti-essentialist accounts of human sexuality.162 A third objection to the MHMAL’s naturalism might be that the secular, naturalistic worldview to which it subscribes is simply false. The secular, naturalistic worldview holds that inanimate and animate nature, including human life, emerged from a series of non-purposive physical and chemical interactions. But a range of secular and religious critics have argued that the totality of the evidence weighs in favor of a different view: that the origins of the universe, the origins of life within it, and the origins of human life in particular, are better explained by the existence of purposive natural laws,163 or of an intentional creative 158 See, e.g., Mills, supra note 11 (criticizing the explanatory subordination of race to class in “white Marxism”); Cedric Robinson, Black Marxism (1983) (arguing that capitalism cannot be analyzed apart from “racial capitalism” and the race relations that subtend that social formation); Critical Race Theory: The Key Writings That Formed the Movement xxvi (Kimberlé Crenshaw, Neil Gotanda, Gary Peller & Kendall Thomas eds., 1995) (describing the subsumption of “race under class” as “the typical Marxist error,” and distinguishing that error from critical legal studies’ “failure to come to terms with the particularity of race, and with the specifically racial character of ‘social interests’ in the racialized state”); Angela P. Harris, From Precarity to Positive Freedom 44 Sw. L. Rev. 621, 625 (2015) (symposium introduction) (describing theories of intersectionality as substituting a commitment to the mutually constitutive character of class, race, and gender for the traditional Marxist commitment to the primacy of class). 159 For a useful overview of recent scholarly trends, see Meeting the Moment: Legal Frameworks for Feminist Futures, 34 Yale J. L. & Feminism 1 (2023) (symposium). 160 For a powerful critique of the “sex/gender system” deployed by Marxist feminists, see Donna J. Haraway, “Gender” for a Marxist Dictionary, in Culture, Society, and Sexuality 82 (Richard Parker & Peter Aggleton eds., 2006). 161 See generally Federici, supra note 7; Mies, supra note 7; Vogel, supra note 7; Arruzza, supra note 7. 162 For a recent attempt to grapple with the problem, see Transgender Marxism (Jules Joanne Gleeson & Elle O’Rourke eds., 2021). 163 See generally Thomas Nagel, Mind and Cosmos (2012). LAW AND HISTORICAL MATERIALISM 56 agent.164 If these critics are correct, the MHMAL would have to be significantly revised or abandoned altogether.165 CONCLUSION This Article has sought to cast doubt on the claim that reconstructing CLS is the best methodological bet for left-leaning legal scholars. That claim is premised on the failure of traditional Marxist legal theory to account for the functional and interpretive underdetermination of law while still making sense of the fact that, most of the time, legal change reproduces prevailing social, economic, and political hierarchies. As Parts I and II of this Article attempted to demonstrate, the minimal historical materialist account of law (“the MHMAL”) satisfies all three of these criteria as least as well as CLS could, however reconstructed. Part III went on to argue that the MHMAL offers additional benefits that CLS, however reconstructed, cannot: a more complete account of the limits of functional and interpretive underdetermination; a more specific account of the relationship between law and capitalism; and a more coherent and consistent account of the relationship between law and contemporary socio-natural problems such as climate change and COVID19. Notwithstanding these advantages, objections undoubtedly remain. The primary ones relate to the MHMAL’s skepticism about the autonomous causal power of legal actors, its naturalism, and the exacting, interdisciplinary work it imposes on scholars seeking to explain the form, substance, and development of legal relations. But if the MHMAL’s skepticism and naturalism are warranted, then the additional empirical and theoretical work it asks of legal scholars might well be worthwhile. 164 See inter alia Michael Behe, Darwin’s Black Box (2d ed., 2006); John Polkinghorne, Exploring Reality (2005); William Dembski, The Design Inference (1998). 165 Revision rather than abandonment would be the appropriate response to the success of secular arguments such as those that philosopher Thomas Nagel lodged against the “materialist neoDarwinian conception of nature.” Nagel, supra note 163. Indeed, a case could be made that the admission of a greater degree of teleology into natural scientific explanation would strengthen historical materialism’s hand against competitor social theories. For instance, Nagel’s worldview might supply a more satisfying justification for some of historical materialism’s own flirtations with teleology, such as the tendency of the productive force of human labor power to grow more productive. On the other hand, a worldview that attributes the emergence and development of nonhuman and human life to an intentional creative agent would radically undermine the MHMAL’s premises. See generally Del Noce, supra note 65.