Christopher Tomlins, Elizabeth J. Boalt Professor of Law at the University of California, Berkeley, has authored a new paper on Marxist histories and historiographies of law, past, present, and future. It is available on SSRN, and set to appear in the forthcoming Oxford Handbook of Historical Legal Research. The abstract is as follows:
“Marxism”, wrote the American legal historian William E. Nelson in 1985, “is not about to disappear as an attractive ideology or as a powerful political force in the world”. The prediction was not well timed. The Marxism of the socialist bloc was anything but an attractive ideology or a powerful force (in any intellectually defensible sense) in the world of the mid-1980s. The bloc’s inability to recover from the early 1980s world recession, combined with Soviet entrapment in war in Afghanistan, had already turned the historical conjuncture decisively against Soviet and Eastern European socialism. Western Marxism, meanwhile, was enmeshed in its own deep theoretical crisis, impaled on the stake of materialist determination, and increasingly “rigid and scholastic” in its attempts to escape. Given all this, Nelson’s coda–“I expect neo-Marxist legal history … to flourish”–was mystifying. Then in the “take-off” stage of what would prove to be thirty years of extraordinary growth, Anglophone legal history actually lacked any clear Marxist component. Nor has one been forthcoming. This paper charts the possibility for a Marxist historiography of law such as it existed in the 1970s and the reasons for its failure to materialize. Forty years on, in the grip of a new fast-forming historical conjuncture in which capital, both globally and within its historic Anglophone heartlands, is at war with itself, the paper asks what opportunities exist for renewing the attempt to create a Marxist legal historiography, and what responsibilities attend that effort.