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Toward a Materialist Jurisprudence

  • Location: Amberican Bar Foundation-University of Illinois College of Law Legal History Workshop
  • Research area: Legal history

Dec 2008, Christopher L. Tomlins

Among many hares set running by Morton Horwitz’s Transformation of American Law (1977) one of the strangest was the debate whether or not Horwitz and his book were “Marxist.” Here I use this debate as a point of entry to the brief flirtation of legal history with Marxism in the 1970s in order to pose the question why that relationship ended and whether it might be revived. This leads on to the main subject of my paper, the promise I see for a Marxist history of law in the work of the German Jewish literary critic, revolutionary intellectual and victim of Nazism, Walter Benjamin (1892-1940). I identify Benjamin as the source of promise because in his philosophy of history, developed in the 1920s and 1930s, one finds an embrace of a historical materialism startlingly distinct from much of what bedeviled the orthodox Marxism that would eventually crash and burn in the 1980s. From Benjamin we can effect a recovery of a Marxist history theory and history of law by reaching for the moment prior to the dogmas of the third international and for a body of thought that lends itself powerfully to our perceptions of law in the current conjuncture.

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