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The Baldy Center for Law and Social Policy at the ÃÛÌÒ´«Ã½

Episode #47- Part1

Podcast recording date: 4/11/2025

Host-producer: Tarun Gangadhar Vadaparthi

Speakers: Jeremy Kessler, Matthew Dimick, Paul Linden-Retek, and Matthew Steilen

Contact information: BaldyCenter@buffalo.edu

Transcription begins.

Tarun:
Hello and welcome to The Baldy Center for Law and Social Policy Podcast produced by the ÃÛÌÒ´«Ã½. I'm your podcast host and producer, Tarun Gangadhar. This episode features a special conversation hosted by three faculty members from the ÃÛÌÒ´«Ã½ School of Law, Professors Matthew Dimick, Paul Linden-Retek, and Matthew Steilen. They're joined by Professor Jeremy Kessler of Columbia Law School to discuss his paper, “The Origins of ‘The Rule of Law’”. This is part one of a two part episode. Let's get into the discussion.

Matthew Dimick:
Welcome. My name is Matthew Dimick. I'm a professor of law at the ÃÛÌÒ´«Ã½ School of Law and director of The Baldy Center for Law and Social Policy, and we're joined today with Paul Linden-Retek, also at the law school and Matt Steilen, also at the law school, professors at the law school. And our guest is Jeremy Kessler, who is a professor at Columbia Law School. He's an expert in First Amendment law, administrative law, legal history, constitutional law, and national security law. He's written in a variety of areas and fields from First Amendment in addition to administrative law and legal theory, and he's going to talk to us today about his paper on “The Origins of ‘The Rule of Law’”. The concept that we're all familiar with, except with its history to some extent. So Professor Kessler's going to unpack and explain some of that history for us.

Jeremy:
Okay. Thanks so much to Matt, Matt, and Paul for having me into The Baldy Center. So yeah, the paper basically begins with this kind of fact that I found similar puzzling, which is obviously the English language phrase ‘the rule of law’ is a really big deal and American society and to a significant extent in international society as well. And we have lots of histories about where the ideas we associate with ‘the rule of law’ come from and we have some understanding that it was popularized as a phrase in the late 19th century by a British jurist A.V. Dicey who felt that administrative governments in the administrative state that he associated with late 19th century France and Germany were doing things to their populations that he worried that the British state was starting to do to its population. And he felt that that kind of governance, basically through these sort of faceless nameless bureaucrats making summary decisions, was inconsistent with an English tradition, which he called the rule of law, which he associated with the publicity of norms, the stability of norms, their consistent application, and with a judicial process that would treat all subjects equally before the law. After Dicey, in the early and middle of the 20th century, legal philosophers began to theorize more and more about the rule of law. Some thinking that it had very little content that basically you just needed a legal system that was relatively consistent, stable, and public. Some felt that there needed to be more, the legal system needed to provide certain procedural protections. Any event, there's been lots of debate about what is the precise content of the rule of law. What my article began by asking is where did this phrase actually come from? And I argue that it seems as though the use of the phrase, the rule of law, to designate this sort of ideal mode of governance, governance that would provide individuals with fair adjudication of their claims, it would not expose them to arbitrary, inconsistent or unpredictable state power independent of a kind of impartial hearing of their claims emerged in early 17th century England. And it was a term that began to be used briefly by a group of common lawyers who were particularly offended by what they saw as a series of royal efforts to interfere with trade, both domestic and international trade, with the production of various goods, and with the sale of essentially professional services to those who needed those services. So they began to say that these royal impositions were inconsistent with the rule of law. I also note that the phrase had been used prior to the early 1600s, but previously it had been used to indicate only a specific, concrete common law rule or standard or principle relevant to the resolution of a particular kind of dispute. So the puzzle is like why did these common lawyers in around 1610 start to use this phrase in a totally new sense that referred to an ideal of political morality or a way of governing rather than just the existence of many rules of law potentially relevant to many different kinds of legal disputes. And I argue that the context in which they did so was one of extraordinary economic dynamism. When this new idea of the rule of law that they were articulating was felt to be facilitative of what was going on economically in England at that time. And that was the intensification of commodity exchange through different parts of English society. So basically in more and more domains of English, social life goods and services were acquired through bilateral negotiations between two willing parties to determine a particular prex for that good or service. Also at around this time, economic historians have recently established this is really when we begin to see a sustained and relatively unbroken uptick in productivity growth from 1600 all the way to the big takeoff in productivity growth that we associate with the industrial revolution.

Matthew Steilen
I know there's a second half of the paper, but can we pause right here so I can ask questions about that historical part first and then maybe we can turn out to the back theoretical side?

Jeremy:
Absolutely.

Matthew Steilen:
What did those 17th century parliamentarians and lawyers think the rule of law was when they use that phrase in its more general sense, what features of law did they intend to pick out?

Jeremy:
My understanding of the admittedly limited evidence I present in the paper is that what they were suggesting, and it may well have been a kind of rhetorical or polemical exercise in the House of Commons than if you had consulted them behind closed doors, their actual understanding of the state of common law at that time. My sense of what they were trying to pick out was the following idea. They were trying to say as common lawyers that they felt the best and most appropriate way that they and their clients and their families and friends would be governed, would be governance consistent with the rules of the common law as they purported to understand those rules. In other words, they were common lawyers, and they were saying, we know trust us, we're the experts. We know that there are a body of rules that are capable of governing English society, and we think that anytime the government takes an action that interferes with that body of rules and with the particular courts that are trusted with the enforcement, the promulgation, the enforcement of those rules, that's a problem. That effort to interfere with this kind of common law regime they were saying is bad, that is bad. It is bad when royal or church authorities disrupt the common law regime that we common lawyers are trying to build.

Matthew Steilen:
You cite the work of Christian Burset who has a paper on the development of the rule of law in this period, and he distinguishes between traditional conceptions of the rule of law, if you recall, in sort of a modern updated one. And the traditional one’s much thicker. He says that those 17th century common lawyers not only wanted to wrest control over the economy from royal impositions, but they had in mind when they spoke about the rule of law, something like specific institutions like the jury or the freehold, so specific forms of tenure and land that they tended to think of those as uniquely English inheritances or accomplishments and that they were forced to give up on this thicker conception of the rule of law only when England became a major imperial power. So really subsequent to the period that you've focused on because they encountered different forms of society that it wasn't obvious to them how they could transplant the jury there and have a predictable orderly legal system. Is your thesis consistent with Burset? Are you proposing modifications to it? Does empire play a role in this story you're telling?

Jeremy:
Well, so I learned a great deal from Christian’s piece, and I think my thesis is roughly consistent with his empire. I would even say the brig comes sooner. I think you start to see an effort to articulate some kind of ideal mode of governance that might have some of the features of the thicker rule of law, but not all of them and certainly divorce from respect for the autonomy of some of the core common law institutions in a more physical sense, not just freehold, but what they were envisioning in 1610 is in some sense the supremacy of the Commonwealth courts. I think you begin to see that break around the 1640s, 1650s, 1660s. During the English Civil War I think disrupts the idea that this kind of thick vision of law supremacy was workable. But then I would certainly agree with Christian that the abandonment of that thicker conception is certainly also accelerated and intensified by the imperial dimension I would say. So I don't think Christian and I differ. I think the two pieces have very different thematic but also temporal emphases. I mean Christian is not really talking about the early 17th century. He alludes to it, and I think to some extent he takes for granted that there was this thicker conception, and he is really focused on what he sees as the normalization of a thinner conception in the end of the 17th century and especially the 18th century. That's my memory of the piece. So I think there's just a difference in chronological focus. This piece basically stops, other than the third part, which we could talk about later, which projects into the 19th and 20th century, my engagement with the early modern material stops in 1642 at the very latest. But I would also just note, and this I think can sound like, and this may lead us into a discussion of nominalism later on, I would just note that in addition to the chronological differences, the thematic and maybe to some extent a methodological difference between the two papers is I am focused on the use of the phrase. And if you go back and you look at Christian's piece, and this is true I would say of almost all of the early modern legal historiography and political historiography I've encountered to an extent that I think is surprising to find within the historical profession. Early modern legal historians use the phrase out of quotation marks with no evidence that it was ever actually used. I mean this is even true., and I'm not these people, I'm not an early modernist, these people are far more learned in the period than I am. I will just note that whether we're talking about Sommerville or Baker or Chris Brooks, Paul Christensen and Christian in that article, these historians write about the rule of law as though it were a discourse, a discursive formation that existed in their period, not just a kind of adverbien ideal type or admittedly anachronistic heuristic that they're using on their historical material. And this is kind of where the piece began. I was really surprised by that. And so I just kind of felt surely someone has figured out when this turn that all of these historians are using to analyze their material, entered the English language. And as far as I can tell, no one has written that. No one wrote that up. So here I am, a 20th century American historian, very probably boldly and unadvisedly going in there and saying, this can't be figured out definitively. And I don't by any means claim that I have canvassed all of, not just the legal and political documentation, but the pamphlet literature that one would have to do to really hit home the claim that the uses I've identified in the House of Commons in 1610 are the earliest uses. The only other source that I have found that even identifies them in passing as the first uses, and he doesn't say they're the first uses, just this is John Phillip Reid's book on the rule of law. It's sort of a quasi-documentary history and he just begins kind of in medias res and he says, well, here are some uses and they're the uses in 1610, but even John Phillip Reid just kind of assumes it would seem that this phrase surely was well known and in use prior to that time. A sort of piece of the argument I make in this article is that as far as I can tell, the phrase was used prior to 1610, but as I've already mentioned, it was used in analogy to the Latin Regulae juris to indicate specific standards, principles, or rules relevant to the resolution of particular kinds of dispute, which to me raises a really interesting just kind of question of diachronic linguistics or genealogy of. It's not to me at all obvious as a native English language speaker that is an intuitive transition, to have a group of language users talking about here's a rule of law, here's a rule of law, here's a rule of law, and then all of a sudden one day they say you are acting out of conformity to the rule of law.

Matthew Steilen:
I think so too. I think that's a nice point because if you think about the conception of the common law in that period, it's a procedural conception. So when I think of rule of law today, I have in mind substantive rules. So the principles that we teach our students in class, sort of like the baseline introductory rules about whatever field it is, in constitutional law, the different powers of Congress and the powers of so on, but the way they think of rules is of the things you need to do to get a particular remedy from a particular place. And if that's what you're thinking of when you think of rule, what the rule is, it's sort of like a recipe for getting a particular kind of relief. And then it's not at all obvious how you get from that procedural conception sort of a writ base to the rule of law in a more general and theoretical sense, which has some of the features that you were describing earlier. It is pretty mysterious.

Jeremy:
And I'll just note that you see, and you know far more about this than I do, but you see a bit of a slippage I think between the writ based common law, the reception of the Roman law, and the potential emergence of this other idea that you were just referring us to. I think you see it even a little bit in Bracton. There's one citation I have to Bracton where they sort of say a writ is like a Regulae juris, is like a rule of law in that it states like the Intentio or the cause. So there’s this road which those lawyers back in the 13th century were just kind of like you start to see this kind of mashup I think going on way back then and it's clearly going on for centuries and it just starts to, and this is why I think the piece can obviously give charges, give rise to an understandable charge of anachronism. It just seems to feel a lot more modern at this moment in 1610 that I'm writing about where they seem to be invoking the rule of law as whether it refers to the actual operations of the commonwealth at this time, which is something we talked about in an earlier session, maybe, maybe not, probably not. But they are invoking this idea of we believe in a system of government. It is a system of government that is distinguishable from royal absolutism, and it is distinguishable, I try to argue some of these common lawyers, specifically the ones using this phrase argued in other writings as Coke did, it is distinguishable from parliamentary supremacy. A regime existed in England in 1610. I am noting that these people suggested that they would like it to exist and engage in, as lawyers often will, and there was a lot of this obviously going on at this time, then added on the kind of Pocock and Tuck, it's existed forever. There was some of those claims to its immemorial nature, but that was obviously even at the time, I think no one really believed that because there were so many interlocutors who were saying, no, that's not what exists the time immemorial. So else something more about parliament or more about the king or kind of the crown or more about a more pluralistic system. There were people who said, we think some stuff should stay in the wards and liveries and stop trying to get everything into the king's courts. So I think they had a project that they might, and this is the last thing I'll say on this, that they might've understood as a professional project or a political project, but another emphasis of the paper is that the project, given their client base and the kind of work they were doing and the evidence we have of the increasing quantity and the changing quality of the character of litigation in the common law courts, it was a project that was inextricably bound up with those areas of English society that the economic historians tell us were increasingly engaged in bilateral bargaining for ship deal prices and increasingly productive.

Matthew Dimick:
I want to ask about this point and come back to a comment that I think you suggested an opening to talk about the, how did you put it, the vulgar explanation here. So the argument is tied to this idea of the rise in development of capitalism, more exchange, the effort to make exchange more predictable and rule bound and free from arbitrary inference from the royal government. You also emphasize part of making that argument requires you to point out that what they were actually defending was you had like three Ps, that's property, professions and I can't remember what the third one was…

Jeremy:
Profit.

Matthew Dimick:
Profit. So you have to show that there was sort of an economic motive for this, but then it raises the question of how does this then generalize into something much broader than just profit, property, and profession? One thing that comes up is you talk about Fuller defending, how do you put it? “A critic of bishopric power within the Church of England, Fuller’s modest fame, or infamy, derived as much from his defense of Puritans charged by ecclesiastical courts with religious disobedience as from his representation of merchants who ran afoul of royal economic regulation.” So just to take that as an example, is that a defense of profession or was there a broader concept of religious liberty that was already being engaged in that time? I think, yeah, let's start with that question.

Jeremy:
Yeah, this has come up in a lot of conversations and just for those listening who are not early modernists, one of the kind of aspects, the rhetorical posture of this piece is somewhat knowingly breaking from the dominant sense of what explains legal change and legal conflict in early modern England. At one time I think there were historians more sympathetic to search for some kind of economic or materialist explanation. But I would say the mainstream is committed either to a political account that the real kind of hot stuff here is James coming over from Scotland and bringing this different potentially Catholic and so basically political or religious that the political or religious conflict is driving legal change and perhaps to some extent economic change I would say is more of my understanding of where the mainstream historiography is at. So I first wanted to say that. So there are lots of very legitimate questions in this vein. Many people would look at Fuller and say this is a story of religious struggle. This is a representative of a certain kind of nascent puritan establishment. It's not very well established, but they are vying for some degree of social power against the kind of hard liners in the Church of England, for instance. And they're trying desperately to distinguish themselves from Catholics because most of these people have the position like you can oppress Catholics but don't oppress puritans. What I would say is there is no doubt, and at any historical period, there is no doubt that there is always going to be multiple sources of historical dynamism. There will be economic sources, there will be political sources, there will be religious sources and intellectual sources and kind of much more intimate interpersonal sources scaled up of dynamism. I think one of the advantages of a kind of more insistently, materialist perspective is precisely to make the move that you already implied here, which is, okay, so we've got a bunch of political stuff going on and we've got a bunch of religious stuff going on. And then yeah, we do have some of this interesting evidence of intensified trade, intensified bargaining in areas where prices were usually previously set by other means. The guilds have kind of collapsed in their actual power by this period, even though they're still very much around. So we have all this diverse phenomena, how do we develop causal hypotheses amidst a social world that is invariably always has lots of different potential causal drivers? And to me the advantage of the materialist perspective is it can tend to actually save more of those phenomena but represent them in some manner that is going to allow for a more coherent account. And that's a lot of abstract words. So let me say what I mean by that. So by treating Fuller’s representation of these dissident clergy as a defense of their professional autonomy, all of a sudden, we can develop a causal hypothesis that links those representations of clergy to his representation of other lawyers including himself, who also have their professional autonomy being attacked to the representation of the same group of common lawyers, of physicians who are getting in trouble with the royal college in some big cases at this time. The point I think oftentimes materialist perspective is thought to be reducted, you're just reducing all explanation to the economic. I would kind of like to turn that claim on its head and say, well, in a way it is those who would just assert religion’s driving the bus here or politics are driving the bus here who in a way are at risk of reduction or erasure because it's like, okay, religion and trade seem to be pretty incommensurable. What if we can find a common ground that links them together as related social processes in which the same people are bound up with? These are traitors and they are believers and they're political subjects. So to me, materialism isn't about focusing on the economic at the expense of the religious or the political. It is trying to find a kind of sociological baseline that can knit together these different social processes. And it's true, it does ultimately knit them together by some idea that most of what drives humans is, or what drives almost every human throughout history is the will to survive. But beyond that, I think it can be pretty capacious. So sorry for that long-winded answer.

Matthew Dimick:
No, it's great.

Matthew Steilen:
But if I say to you, why did Fuller do what he did? Why did Fuller say what he said? You start with an account of the material character of his profession, his interest in a steady stream of income.

Jeremy:
So let me make a distinction. You could mean two different things. When you ask me why did he do what he did, you could be asking me for my account of his, what a philosopher friend of mine would call his intentionality, my account of his mental structure, not necessarily how he would've understood himself. We struggle with self-consciousness, but some account of his, let's call him subconscious motivations, his mental inventory. Do I think, so that's one way of asking the why did he do what he did question. And I would say this is going to sound overly dismissive, but I'll say it this strongly in order to clarify, I don't really care. I don't purport to answer the question, the why question, in the sense of what do you make of Fuller's mental makeup that led him to do what he did. I think I'm answering a different why question, which is what was the total set of social conditions that put such a figure in the position to make these sorts of moves, regardless of whether he had a totally different understanding of why he was doing what he was doing. And regardless of the fact whether all of his contemporaries would've understood if you had asked them because maybe that's a good way to get away from the self-understanding issue. If you ask everyone who knew Fuller, what's Fuller up to? For anyone in English society at this time, they would probably give an account more grounded in his religiosity, in his family, in his political leanings. I am answering the why question that would maybe take the form of something like, how was it possible for him to do what he did? And to me, once you take that framing, what were the conditions of possibility?

Matthew Steilen:
So it's a critique then of a kind. I mean you, in dispensing with the reasons that Fuller might adduce to explain his own behavior or what his best buddies might say really moves him.

Jeremy:
Or even his contemporaries.

Matthew Steilen:
Yeah, you're saying what actually were the conditions of possibility of him doing what he did?

Jeremy:
That's right. And I think kind of like materialist historiography, as I'm defining it, very much is in that tradition to Marx through even someone like Foucault because the conditions of possibility is something that even someone who rejected Marxism like Foucault very much ran with. So yes, it is in this broad tradition from the late 18th century on critique, phenomenological reduction, all sorts of moves. Yeah, I think that's where we would place it methodologically is what we are trying to get at is yeah, how did this happen? Not why.

Matthew Dimick:
I think this is an absolutely fundamental point, and obviously people can take reasonably disagree on this. Let me propose an alternative which is that especially someone like Marx thought you had to do both. That you had to explain not just sort of the external conditions, but also how it made sense to the actors engaged in them at the time. I mean, I think the most beautiful example of this is Marxist theory of commodity fetishism. Because he goes from a very particular sort of sets of economic relations, commodity exchange, but then shows how this explains it, not just what set of material motives it gives to people that a whole epistemology of the world, one that's basically defined by objects, that's mostly asocial, that he’s explaining the Hobbesian state of nature, where people are basically preformed before they enter into society. And society only comes about when individuals, pre-social individuals, somehow individuals that are able to acquire personality and interest prior to entering into society, then form a society. And so I guess that leads to something like a view of the social world that's governed by some kinds of natural laws that's different from one based centered in the king or God. The social world has its own sort of natural function and therefore is above the dictates of a king or something like that. And so that might allow one both to explain that kind of view comes out of a social world where commodity exchange is entered, but that also produces a view of the social world that gives a person justification for resisting arbitrary authority because you're obeying some sort of higher law in nature or…

Jeremy:
There are, maybe Marx and commodity fetishism is a good example. Sartre famously tried to do this with Flaubert and his search for method. We're trying to both establish the full external conditions of possibility for such a subject while reconstructing to some extent faithfully and almost beautifully or in an aesthetically right manner and an ethically right manner their interiority. I think it can be done. I obviously do not purport to do it here. I would just note one more thought on this. If one were, because I agree with Matt Steilen, that to make sense of this, it's good to start with that idea of critique, but then taking Matt Dimick’s point that you could do both. I would just note that if I were to set about saying, okay, I really now want to understand Fuller's motivations and really develop a compelling picture of who this man was. I do think the materialist starting point still has advantages, if done respectively and in a sufficiently erudite manner, able to deal with all the internal integrity of the religious materials, of the religious conflicts, the political conflicts, the family conflicts. You have to be open to all of that. But I would just note in searching for the specificity of his religious background, of his family background, of who he married, of, why he was where he was, where he grew up, all of those things that we would want to develop a kind of full account and mental inventory, we are going to end up with questions, if we keep tracing the causal line backwards of why was the family there? Why were there this many children? Why was the mother doing this and the father doing that? Or why was the mother gone or the father gone? And I think again, it's the strength of the kind of materialist baseline to say probably somewhere far down that line of inquiry, we're going to come to some statements about what people were doing in order to survive and reproduce themselves.

Tarun:
That was Professors Matthew Dimick, Paul Linden-Retek, Matthew Steilen, Jeremy Kessler, and this has been The Baldy Center for Law on Social Policy Podcast produced by the ÃÛÌÒ´«Ã½. Be sure to join us for part two of this discussion where the conversation continues and dives even deeper. Let us know what you think by visiting our X, formerly Twitter, @baldycenter, or emailing us at baldycenter@buffalo.edu. To learn more about the Center, visit our website, buffalo.edu/baldycenter. My name is Tarun and on behalf of The Baldy Center, thank you for listening.

Transcription ends.

The Baldy Center for Law and Social Policy at the ÃÛÌÒ´«Ã½

Episode #47- part2

Podcast recording date: 4/11/2025

Host-producer: Tarun Gangadhar Vadaparthi

Speakers: Jeremy Kessler, Matthew Dimick, Paul Linden-Retek, and Matthew Steilen

Contact information: BaldyCenter@buffalo.edu

Transcription begins.

Tarun:
Welcome to The Baldy Center for Law and Social Policy Podcast produced by the ÃÛÌÒ´«Ã½. I'm your podcast host and producer Tarun Gangadhar. This is part two of a conversation with Professor Jeremy Kessler of Columbia Law School, joined by Professors Matthew Dimick, Paul Linden-Retek, and Matthew Steilen from the ÃÛÌÒ´«Ã½ School of Law. We are continuing a discussion of Professor Kessler's paper, “The Origins of ‘The Rule of Law’”. Let's return to the conversation.

Paul Linden-Retek:
So I want to pick up on this idea of resisting reductive or reductionist accounts because I think I'm deeply compelled by digging deeply into these conditions of possibility. And it seems to me you're absolutely right that excavating those is, even if it gets to some kind of material base, is very much less reductive than the more superficial accounts that try to stick at that level. So I think that that's very well taken, but I wonder at what point, and this may be as an invitation to connect this piece to your previous piece on law and historical materialism. At what point the excavation of some kind of deeper material conditions of possibility set some kind of firm origin story that's so grounded in the particular economic conditions of that time that they set the course for how history unfolds in a reductive way. And so one way that I've been thinking about this in your paper here is that there's a kind of struggle with a lot of contemporary legal theorists really thinking about how it is that law can free itself from the modern classical paradigm, classical liberalism, and your identification of the rule of law as rooted in this particular origin story. It seems like that because of the implication of economy and common law and the rule of law that it's actually quite hard for the rule of law as an idea, as a concept to truly free itself from that historical moment and because of the material layers of the conditions of possibility. So even if we try to get beyond that, as you speak about in the later parts of the paper, we're going to ceaselessly born back into that kind of moment. And so the question I guess I would have is, that you have in that moment this kind of modern classical liberal moment, you’re identifying formal equality, the quality that establishes what matters is property, profit and so on. Our status as equal, as equal competitors. So we might be equal, but we're equal competitors and competition and the way that we engage with all of that is essential to our self-understanding. There seems to me a very clear tension between being equal and being competitive that isn't just a stable equilibrium but does evolve over time. And in so far as it does, it seems that capitalism also evolves and transforms over time. And it seems like that law would also, the functions of law would also evolve as capitalism transforms. So to create new conditions of possibility where law can play slightly different, operates slightly differently, to create new possibilities for understanding what the rule of law might be away from the classical liberal conception, so the embrace of general rules. But to say no, the form of law that we need in say monopoly capitalism actually requires specific much more substantive engagements against concentrated power that were not precisely, we're not no longer equal competitors. The equality is being undermined. And so that is not just a call for re-inscribing the classical liberal paradigm, but actually search for a new paradigm of law. What role does that kind of shift in legal paradigms play in your story? Is that significant and why does that not have staying power to actually provide new foundations for the rule of law such that it provides some kind of ballast against the slide back all the way back to classical liberalism?

Jeremy:
Okay, so there's a lot there, Paul. The first point, which I think in a way you, kind of beautifully, illuminated early on in the question, that I think is just really useful to listeners or for us or for me to hold onto, is the distinction between determinism and reductionism. And I think these often get confused in critiques of Marxist historiography or Marxist legal theory. And I would note that there are actually interesting parallels in theology, in all sorts of realms. Determinism and reductionism are not the same thing. So you can argue that it is simply ontologically impossible to reduce my conception of God to my material bearings or to my material circumstances. Or even arguably you could argue that ontologically it just exists independently of the world I inhabit today. Even indeed, some arguments about the meaning of divinity would insist upon that. That could be true, and it could still be the case that I had no choice but to have the conception of God that I do, that I have been determined to have that conception of God. Some religious traditions ask some forms of Christianity, even would argue that I only have the conception of God that I do in virtue of God's own grace. That is a non-reductionist determinism. Anyway. So I would just note that I think I’m pretty comfortable resisting charges of reductionism, and I think charges of reductionism are often overdrawn with respect to a lot of history that was written in a historical materialist vein over the century or so. But I'm actually not interested in resisting charges of determinism because I have no strong metaphysical warrant to not believe in determinism. I have no strong metaphysical warrant to believe in determinism. We can get into that at length, but I've never understood this, and this is why I'm kind of at cross-purposes with most of the historical profession. I've never understood this idea of what our job as historians to do is somehow evade the metaphysical error of determinism. Well, surely a historian’s comparative advantage is not knowing that determinism is not true, right? So what are historians doing saying helping themselves to this incredibly robust metaphysical premise. Anyway, so that's kind of like in the background and I think I would believe that even if I had never read any Marx, it just doesn't make a lot of sense to me. Okay. Sorry. So now back to the law. So there obviously are people who are trying to break out of what Paul was describing as the classical liberal paradigm, or we could just say break out of some conception of law that clearly is rooted in the 18th, if not as I argue, the early 17th century, sometime in the early modern period we got a conception of law, legality, the rule of law, whatever. And certainly by the mid-19th century people were identifying big problems with this big normative problems with this conception, big practical problems with this conception, and they've tried to build new institutions and develop new legal ideas in order to transcend it. My sense as a historical matter, and I suppose also some sense a theoretical matter is there have been more and less successful efforts to transcend it, but given that for 175 years, let's say, the kind of leading legal thinkers have understood that this paradigm, this classical liberal, whatever paradigm that we often associate with the traditional rule of law doesn't help us or prevents us from solving some of the most important socio and economic problems we face and have devised, proceeded to transcend it. I think it is a really important datum that those efforts, at least let's say in the North Atlantic world, have proven extraordinarily piecemeal when they have stuck and are recognized by their own advocates as rife with contradictions. And so I would just say I'm not contesting that people want to transcend the paradigm and that they have taken fascinating steps to transcend the paradigm and that in different sectors we can find partial transcendence of the paradigm, whether we look at certain corporatist arrangements in various sectors of the economy, whether we look at certain trade union laws, although as Matt [Dimick] well knows. So Matt [Dimick] himself has given us a really interesting argument in previous work that one way of understanding the US New Deal labor regime, labor law regime is as precisely at the moment of trying to transcend something like a classic liberal legal paradigm, it was kind of warped, even in that moment of attempted transcendence by the sort of gravitational pull of the paradigm. Okay, so that being so, the question it seems to me becomes why what is sticking, right? And I think you have a couple of potential ways of answering that question, and I'll just note two. One way of answering that question is that at some point in history, an ideology forms that people within the given society where the ideology forms are very seized by it and maybe that ideology is deepened in their minds and hearts by education or by professional discipline or sometimes by fear of political reprisal. And that's not really supposed to be how ideology works, but any number of factors creates a kind of mental pattern that these folks are just not able to break out of. So that's the kind of account of why efforts to transcend the paradigm don't work because the paradigm is just stuck in their heads. A different account would be that there are certain, not just social practices, but social practices related to the production and reproduction of human life in this society that obtained at the time the classical liberal paradigm was formed and that continued to obtain. So one explanation of the stickiness is that material conditions produce the ideology at one time, then the ideology takes on such autonomy that it prevents you from breaking out of it at a kind of ideational level. Another account is that actually there is some continuity in the material conditions such that you can't break out of it. And I think both of those are totally legitimate possibilities and I would just note, and I think Matt Dimick would agree with me to a significant extent, even if you go to the ideational room that the reason why the paradigm sticks with us is it's stuck in our heads. You can still have a pretty socially materially grounded explanation of that stickiness by noting things like what I've already mentioned, educational institutions, professional pathways, there can be pretty socially grounded explanations for the stickiness of ideology. I would just note that there is an alternative explanation, which is not just the stickiness of the ideology reproduced through certain social institutions and practices, but the stickiness of the actual material processes of production and exchange that might be lasting. And I just think we should be agnostic. The one thing as between those two explanations, the one thing I don't really understand, sorry, this is going to be a little polemical, but a tendency that I try in my writing to stay away from, which I think to some extent has been the dominant tendency in both legal historical and scholarship certainly about the modern period, which is what I know best. I resist the tendency to say, oh no, there isn't stickiness. People have totally, there really is no continuity between the classical liberal paradigm and what people are up to in the present day. Yes, there are some aspects of a kind of bad, sort of negative individualism that seem to recur. Yes, it does seem like the rich keep getting richer. Yes, it does seem like we can't really transcend the tendency to treat an organization of workers as a single party to a legal dispute or a single node in a corporatist regime, but that's just an echo or there isn't continuity. What is really going on is just a fabulous tessellation of constant historical change. I associate that with a somewhat more postmodern outlook. Interestingly, that kind of postmodern outlook aligns pretty neatly with a certain style actually of mid-century liberal historical explanation. Lots of interest groups running around doing things, who knows who wins, who knows who loses. To me, we would need an ideological and ultimately a material explanation of why so many academics are committed to that philosophy of history, a philosophy of history, of discontinuity, constant novelty, constant innovation, which seems to just prevent us from making obvious conclusions about the historical record.

Paul Linden-Retek:
So can I ask you maybe a quick vulgar question? Is one intention of this piece to put the appeal of the rule of law in its place that actually it's misguided in any discussion that we have today, what might seem in the near term or immediate sense profitable to actually appeal to the rule of law that in the deeper sense it's actually it's counterproductive that's not getting at the real material struggles that ultimately are the causes of injustice that we do care about. Is that part of the intention of this piece or is that even a program that you subscribed to?

Jeremy:
I would say in some ways, at least as written, when I look back at the near final product, it emphatically seems not to be an intention of the piece. Actually, when I finished a full draft, I got very anxious after I sent it out to the editors at some workshops and I was like, did I even mention E.P. Thompson's Whigs and Hunters and Morton Horowitz’s, his famous response. Famously, Thompson, E.P. Thompson, the English historian said at one point, somewhat out of context, the rule of law is an unqualified human good. And then Morty Horowitz in the relatively early days of critical legal studies published a piece saying something like, it's not, I'm misquoting. And that was precisely the debate of the sort that Paul is thinking of, I think, and it's a very famous debate in legal history, and that's a debate about whether, can we recognize that despite the rule of laws inextricable relationship to forms of oppression and inequality, nonetheless it can be used for good and to help vulnerable people. And then there's the opposite perspective is essentially to be a little bit reductive. Even if it seems like you're helping people in the short run, participating in it will actually just further entrench its negative characteristics. I don't have any stake in that debate, and I certainly don't have any stake in debate in that piece. Maybe it's a little bit irresponsible in some ways. We all have to say, I don't have any stake. We all have a stake in that debate. I'm not writing to respond to that debate. My view on that question is that that sort of predicament that Thompson and Horowitz were hashing out is just a very common problem that confronts political actors, social movements, can even, we encounter versions of it in our own personal and professional lives. I've got a problem with a colleague but, I’d like to change something about a school. There are certain mechanisms by which I can, there are certain inbuilt mechanisms for which I can try to bring about reform in a school, but in participating in those mechanisms, am I actually entrenching my superior? This is just to me, I think I don't mean to be, it's easy for me in hindsight to say what were Thompson and Horowitz on about. I understand that there were particular stakes at that particular time, but that's just an iteration of a basic problem of strategy, of strategy of actors in a situated world under conditions of constraint.

Matthew Dimick:
No, right life in a wrong world.

Jeremy:
Pardon?

Matthew Dimick:
No right life in a wrong world.

Jeremy:
Right or maybe a partly right life in a wrong world. If you want a kind of locus classicist, for my perspective, it would be like if you go and look at what Lukács says about legality and illegality in history and class consciousness. Lukács, there is this debate about should we use legal means or should we use illegal means to bring about point. Again, I'm being reductive in history and class consciousness just says for a true revolutionary that question, if you're asking that question, you're actually not inhabiting the subjectivity of a revolutionary. A revolutionary wouldn't actually even wouldn't really see the profound difference between legal and illegal means you do what works.

Paul:
Just thinking about someone like Franz Nuemann, who I think was willing to describe some kind of independent ethical normativity to the law. And to avoid seeing it just as a tool among others. That it's just a strategic question, whether to use it or not, because I appreciate that point. But one aspect of the law that I think we might still look to is that when it comes to actually identifying the ends to pursue not just the means but the ends, that the law is perhaps one of the only ways we have actually meaningfully identifying those in a complicated society where we don't have a way to figure out what is true among all of us as a social matter. In that case, that seems like a deeper evocation of the law than just a tool among others.

Jeremy:
Terrific. I think the distinction Paul just made is really, really important and maybe I am misunderstanding Thompson's defense of the rule of law as going in that direction. But yeah, I think it's really important to distinguish between what strikes me, as I said, a strategic and a pretty often hard to answer, but basically an empirical question about is going along with a broken system going to make the system more broken or could help us mitigate the consequences of a brokenness? I don't know. Depends on the system. It depends on who you are. So in that version of the debate, that's kind of what I'm not very interested in. The point you're making I take to be actually categorically different, which is could it be the case that law and the rule of law is a normative achievement that human history produced at some point? This is not quite what you said, but I'm putting it in slightly different terms and that whatever its flaws and the flaws of the system, the larger social system that it participates in and propagates, we have come to recognize that its normativity has a tendency to produce in human beings certain ethical and rational dispositions that it would be really scary to live in a world with human beings who had much less of those, a greater deficit of those ethical and rational dispositions. And we could say it at the system level that it has a tendency to instill in social systems certain ethical and rational dispositions that we wouldn't want to be a part of systems that lacked those ethical and rational dispositions. That could definitely be the case. It's no accident that all of the crits and pseudo crits in the American academy who are living through what the Trump administration is doing right now, it is like we are getting, I think we as, and I think different groups of Americans always experience this, but I think certainly at the level of the elite privileged legal academy, even the elite legal academy is getting a real experience of like, oh, this is what it feels like to live in a world bereft of that minimal core of ethical and rational dispositions that may as an empirical matter have been gifted to us by the persistence of the rule of law and of legality.

Paul:
Is there a connection then between that conception of the rule of law as a normative achievement, as a set of dispositions that are extremely valuable to us as a human society connection between that and the historical thesis? Well, the first emergence of the expression and the connection between that moment in emerging modes, changes in modes of production and emerging markets. I mean because if there's no connection, then maybe the ambitions of this particular project of yours are narrower or maybe if there is a connection, how does it sit with some of the early reflections you are offering us on determinism and the proper role of modes of production in historical explanation?

Jeremy:
Great. So I don't pursue that connection in this piece because I was not treating the rule of law in the manner that Paul and I have just reconstructed it. I was beginning with a kind of saying in this much more particularly purely nominal mode of rule of law discourse and then trying to tie it back together to certain kind of moments in social historical time. But I could definitely see a connection, and it's in a funny way, a connection that was in some ways first argued for by dulcimerist theorists into early modern period. It seems to me perfectly tenable, a perfectly reasonable hypothesis that at least in, because I don't, I think it would be a different matter to talk about this in a truly comparative perspective with respect to very different societies that at least at the time were quite insulated from what was going on in the North Atlantic. But it seems to me totally plausible to think that the set of ethical and rational dispositions that have kind of been carried forward by this discourse of the rule of law or legality or classical liberalism or however you want to define it, emerged in concert with the development of competitive capitalism and that the kind of theory of the individual that I think is bound up with those ethical and rational dispositions in this rule of law or classical liberal paradigm, it's a theory of the individual that at least, I'm not saying it necessarily, I'm not saying it could only have emerged from the development of competitive capitalism, but it seems like it did. And it seems as though as a historical matter in the subsequent 400 years, this is going back to Paul's earlier question, it's a different way of framing his earlier question. It has proven surprisingly difficult to prize apart the ethical and rational dispositions that to some extent we learn about or can at least denote through reference to the rule of law or the classical liberal paradigm. It's been somewhat difficult to prize it apart from aspects of that kind of conjuncture that by the 19th century we were less happy about, whether that's competitive individualism, acquisitiveness, whatever. And also the forms of social organization that seemed to attend that kind of understanding of, as Paul put it earlier, very beautifully as we are all equal in that we are competitors with one another. My instinct would be in this I don't think is inconsistent. I think this is consistent with the deterministic instinct. My instinct is to say we at least in the North Atlantic world got it in a bundle, and our societies testified to the fact that we've got it in a bundle and what most social legal reformers have been due up to for the last 200 years is trying to keep the parts of the bundle that they both consider normatively preferable, that have normatively stood the test of time and that seem to be practically useful in organizing increasingly complex societies. But we can't seem to dispense with some of those roots that seem very moored in the early days of competitive capitals.

Paul:
So as we’ve been talking about…

Jeremy:
Sorry to interrupt. I just wanted to say, and I think Franz Neumann's work is actually a really beautiful place to see someone confronting, precisely this problem. It's no accident that he's thinking so much about labor law and was trying to both on the one hand, yeah, sorry, I don't want to go off on that tangent, but Franz Neumann is, and there are many examples I think, but he was someone who kind of I think understood to a significant extent the nature of the problem. I think he believed to some extent that you could prize them apart, the kind of competitive individual detritus from the commendable, ethical and rational dimensions. But he understood that it was a huge undertaking.

Paul:
It's kind of what I was going to ask you. In ways you've set up a dichotomy between the kind of maybe rationalities of capitalism versus the rationality of law and the potential perhaps of law to somehow discipline transcending these injustices of capitalism, even though it might emerge from capitalism initially, but there's some kind of independent rationality of law that can reflect on those. So I appreciate the point that that can be incredibly flimsy and difficult to do. One way to introduce a way out is to introduce the state as a way to marshal the rationality of law against the rationalities of capitalism. And without getting into German state theory, what's your sense of the place of the state vis-a-vis capitalism in the market, vis-a-vis democratic societies that have some kind of control over the state apparatus, and how do you view the introduction of the state and the power of the state into making the ambition of rationalizing, taming capitalism, rationalizing the rational, more of a likely scenario?

Jeremy:
It's obviously a very big question, Paul, and I've written some on this elsewhere. I mean maybe, and I don't know how much time we have left, but maybe I would just, I'll respond to that with, and I hate to do this, but I don't hate to do this, with a question in response, and it could be a rhetorical question, but I think you understand the point I'm making. My initial hesitation about that question about what about the state as this kind of causal force we can introduce into the mix that's going to overcome the problem we just stated as why can't law and legal reform change certain kind of tendencies that seem to be overpower over weaning in economic or material order? My question would be, let's say the state, whether it's a democratic or authoritarian state, does something and seems to have an economic problem was identified, was thought to be persistent and unamenable to legal reform, and then the state comes in and overcomes the economic problem. Let's just posit that this happened. The observers saw this happen in a society. Would that demonstrate that the state a kind of seized control of the economy or would that serve as evidence that something changed? I shouldn't say the economy, that something changed in social and material relationships that led to the state to do that. So to me, a lot of this debate about state theory, a lot of this debate about the autonomy of law and of the autonomy of the state, a lot of it adds up to people talking past each other and to not being on the same page about the kinds of evidence they are marshal. Examples of the state taking action that changes people's experience of their daily economic lives. Just simply as a definitional matter in my mind, do not demonstrate the autonomy of the state from the base. It's just a non-sequitur, no one depths. I don't think any serious historian or certainly any serious Marxist theorist has ever doubted that it seems as though political and legal institutions are constantly reordering economic length. The question I think is twofold. One, the questions are twofold. One, what is the causal explanation? What are the conditions of possibility of the state, the political or legal institution doing that? It could be that the conditions of possibility are prior changes in processes of production and circulation that we weren't even looking at. There goes the autonomy of the state. That's one question. And then the other is, that question can kind of be asked and potentially answered, at least in theory, synchronically, relatively synchronically, a short timescale. And then a second question is, a longer timescale is, will that seemingly autonomous intervention of the legal or political institution change over the long term our basic normative discontents with the world in which we live? And that's in some ways a version of the Thompson Horowitz debate, right? It's just like, oh, wait, you changed that little economic problem. Are we sure that in 10 years this is going to lead to some, that there's not going to be essentially, equivalently, normatively, undesirable disposition of social power and the society? I'm not saying, I don't mean to sound fatalistic. I'm just pointing out that I don't think many people who engage in these sorts of arguments are really marshaling evidence that's responsive to the argument. I would say that someone who's critical of this perspective would just say, well, Kessler, A) you're not marshaling any evidence, you’re just criticizing other people, and B) the standards of evidence are too high. Are you basically saying that to ever demonstrate the autonomy of legal or political institution, we would have to do a kind of Angus Deaton study that you basically have to get as much information as possible of everything that's going on in the society and chasing down every potential explanation of why that political legal institution. I get that. It does sound very frustrating, but my point, I guess to me, and this goes back to an earlier station of conversation, why wouldn't this whole set of methodological predicaments and logical predicaments just all leave us to start from a place where we say we have no reason to believe, no good reason to believe we might have, I should say it's kind of a pure reason versus practical reason. We might have ethical or pragmatic reasons to assert almost as an act of faith that we can put legal institutions are autonomous or a relative autonomy because we believe that it would just lead to socially unhelpful behavior if people didn't believe it. But that's as best as I can see. I think that's the best warrant anyone has for these claims of the autonomy of political or legal institutions. I don't think there is much empirical warrant marshaled by the historians of legal theorists who engage in that kind of language. I think in some ways it's a leap of faith and I have no problem with that. But I think it's a leap of faith.

Matthew Dimick:
Since Paul brought the state. I don't know what any of you think about this, but this is often how I approach the question of the value of the rule of law. If someone asked me, do you defend the rule of law? And I'm going to say, well, is there a state that can deport me, that can jail me, then yeah, I want the rule of law. And that opens up a bunch of questions. I just don't think there's a nice choice between state and market. Markets always have required states.

Jeremy:
And states definitely require markets.

Matthew Dimick:
Yeah, I think the only way to get around that question is to think about a society where you're not given a choice between powerful, huge economic actors and strong people with guns, basically. Right? That's what we've got to get beyond that choice because that’s a bad choice, right? We've got to think about how to organize production and exchange and distribution in a way that is an alternative to both of those. That's in some ways a really simple way to put it, but that's how my reaction on that. Do you want to do a final thought and then we can end there?

Jeremy:
Okay. So I'll just end on just thinking about the conversation, just the last 10 minutes or so. I think precisely because of the challenge and the sort of way you almost get tongue tied and trying to keep apart, is the state, is the political institution, autonomous or not, is the legal institutional autonomous or not? And the point I earlier made saying it's actually, I think it could be in theory empirically answerable, but I think it's really, really, really, really hard to do so. I think it's that predicament that we've just kind of outlined for ourselves, which is one of the deep reasons why people are so attracted to the language of the mutual constitution of law and society, of the state and the economy and so on and so forth. And I would just note to end on a polemical note, this came up in an earlier conversation today. The reason why I think I've embarked on writing what I think some people reasonably see as in some ways pretty cartoonish or pretty, I don't think it's reductive for reasons we discussed, but potentially pretty reductive seeming legal history, is in a self-conscious attempt to force myself to avoid any recourse to the discourse of the mutually constituting nature of these different realms of society. Why do I avoid it? I think it is an absolute non-answer to the predicament saying, taking a look at this situation where we've acknowledged that it's very difficult to determine whether any particular political or legal action stems ultimately from some extra legal or extra political series of interactions in society or in nature, doesn't mean that we solve it. We don't solve the problem, that explanatory challenge by saying, oh, those different realms mutually constitute each other. I actually think that is a way of papering over innovating the explanatory challenge.  It explains nothing. The last thing I'll say is because obviously so much great historical scholarship and great legal scholarship has been written with that discourse of the mutual constitution of law and society or the state and the economy or what have you, I think that discourse, although I think it's basically logically inert, I think it can provide a useful basis with which to do good empirical historical scholarship that is not too focused on causal explanation. In other words, that framing is a great impetus to say, go to the archives and go to many different archives and figure out, try to make sense of this whole messy world. And so I think as an encouragement, I've got no problem with that discourse of the mutual constitution of these various aspects of the social world. The idea that it is a logical or epistemological advance on the much more rigid orthodox understanding of historical materialism that I'm kind of plumping for here, I think is a misprision. I just think it's a confusion. I don't think it's in advance.

Matthew Dimick:
Alright.

Jeremy:
Thank you all you. Thanks for having me.

Tarun:
That was Professor Matthew Dimick, Paul Linden-Retek, Matthew Steilen, Jeremy Kessler, and this has been The Baldy Center for Law on Social Policy Podcast produced by the ÃÛÌÒ´«Ã½. Let us know what you think by visiting our X, formerly Twitter @baldycenter, or emailing us at baldycenter@buffalo.edu. To learn more about the Center, visit our website, buffalo.edu/baldycenter. My name is Tarun, and on behalf of The Baldy Center, thank you for listening.

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