Abstract
Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From law and political economy to critical race theory to feminist legal studies to Marxist legal theory, new perspectives have flourished, and marginalized traditions have been revived and revised. These new perspectives and revisionist projects all share an intellectual debt to 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 extralegal social and economic forces. Some of those accounts, such as that of the law and society school, were associated with the political center. 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.
Citation
Jeremy Kessler,
Law and Historical Materialism,
74 Duke Law Journal
1523-1595
(2025)
Available at: https://scholarship.law.duke.edu/dlj/vol74/iss7/1
