Jeremy Kessler, Columbia Law School, has posted Does Law Constitute Society? which is forthcoming in Law and Contemporary Problems :
This Essay identifies three senses in which law might be said to “constitute” society. First, law might be constitutive in that it is necessary to explain how humans experience the relative distribution of power within a given society (C1). A person’s control of certain means of production might be regularly understood in terms of their legal ownership of that means of production. Legal ownership is, phenomenologically speaking, constitutive of that person’s control. Second, law might be constitutive in that it facilitates, but does not cause, the relative distribution of power (C2). Certain property laws might render more efficient the exploitation of the means of production. Those property laws are, functionally speaking, constitutive of the efficient exploitation of the means of production. But those laws do not explain why a particular person controls the means of production, why they wish to exploit those means, or why more rather than less efficient exploitation is favored by the legal system. Finally, law might be constitutive in that it is causally responsible for the relative distribution of power among human individuals and collectives within a given society (C3). But for certain legal decisions, the relative distribution of power would be different. From this perspective, certain property and contract laws are, causally speaking, constitutive of a person’s control of certain means of production.
In earlier work, I have described and defended the minimal historical materialist account of law (MHMAL), which affirms C1 and C2 but denies C3. By contrast, Umut Özsu’s Article, “Marx, Marxism, and the Critique of Law,” appears to affirm C3, and to argue that the best of the Marxist legal tradition – from volume 1 of Capital to Nicos Poulantzas’s State, Power, Socialism – also affirms C3. If the dialectic between law and class struggle that Özsu discerns in this tradition is an accurate description of social reality, then C3 is not only consistent with but essential to Marxist legal thought. Since law is shaped by class struggle, law is explicable in materialist terms. Since class struggle is shaped by law, law is not a mere reflection or derivative of the extra-legal balance of class forces. Özsu contends that this dialectical understanding of the relationship between law and class struggle is superior to Evgeny Pashukanis’s functionalism (which, like MHMAL, denies C3) and Katharina Pistor’s “juridical idealism” (which radicalizes C3 at the expense of materialism). This Essay argues that Volume 1 of Capital provides little evidence of Marx’s commitment to C3; that the putative dialectic between law and class struggle inevitably collapses back into either functionalism or idealism; and that functionalism – of the sort defended by Pashukanis and by MHMAL – is the preferable path forward for those interested in offering causal explanations of legal development in a materialist vein.
--Dan Ernst
