Strategic Implications of Legal Constitution: Between Necessity and Contingency

Abstract

1. INTRODUCTION

This article presents a theory of the law’s constitutive role in capitalism, with a view to shedding light on the potential role of law in relation to radical political struggles. For the purposes of this discussion, radical political struggles are those which see as their long-term strategic goal, the overcoming, or transcending of, the capitalist system—rather than the modification, perfection or improvement, of that system.¹ The question that arises in this context is whether the structural or systemic change pursued by radicals is something with which law can assist, or whether law is confined in its effects and effectiveness to modifications of the existing system, tinkering at the edges without changing the system fundamentally.²

This question is pertinent given the scepticism and pessimism generally exhibited towards law regarding its role in social change. In the legal and sociological literature,³ for example, law is said to be too individualistic, incremental and amenable to alteration⁴; it is said to fragment,⁵ and isolate issues; to depoliticise them, and obscure their structural causes, as well as to alienate through its abstract, technical, language. The political context in which legal change functions is also said to shape patterns and effects of enforcement, rendering legal gains liable to reversal or repeal while doing so in ways that systematically favour the rich and powerful—such that legal changes tend simply to reinforce the status quo.⁶ Moreover, tactics of litigation, or regulatory lobbying, are recognised to be resource intensive, exhausting the energy and capacities of organisations and movements,⁷ while potentially diverting attention away from other forms of collective political action, surrendering control over to legal experts, and potentially alienating an organisation’s members.⁸

The role of the law in radical political struggles cannot, however, be reduced to this institutional dimension: to the scope for legal outcomes realised via litigation or regulatory reform to change socio-economic outcomes. Such a perspective ignores the complexity of the process by which legal change translates into social change and the significance of the immanence of law in everyday practices,⁹ that is, how law and legal language structure beliefs, ideas, understandings and behaviours—even outside the context of specific legal–institutional interactions.¹⁰ From this, what will be referred to as a ‘legal mobilisation’ perspective, the value of legal engagements in struggles for social change is seen to extend beyond the value of any legal changes which those interactions produce. It also needs to consider the political advantages of such interactions—where those interactions are seen to extend beyond the doors of the courtroom, or parliament, to penetrate all the fora in which legal language and legal arguments are harnessed and embraced, in the context of a range of political activities. This perspective places considerable emphasis on the more indirect ways that law can contribute to social change via its effects on social movements and the conditions for political struggle.¹¹ This perspective would even suggest that it is not only those legal–institutional interactions that are successful in the short term—that result in ‘winning’ a case, or having one’s argument, or framing, officially accepted and even enacted in law—that need to be considered. In addition, there are those that result in a ‘loss’,¹² but which through that loss, might expose the law’s limitations, prompting further legal change directly; or which, despite doing neither of these things (never even coming to court), might mobilise, and engage groups in a fight, and in framing demands, that have long-lasting effects on that group’s bargaining power, resources, understandings and motivations.¹³

While this ‘legal mobilisation’ perspective on the law’s role in social change is useful, as it calls attention to the indirect ways in which law can support political struggles via its effects on organising efforts and mobilisation, and thus, on the conditions from which political action through and beyond the law is conducted, there is still reason for scepticism about the value of legal interactions to radical political struggles. This is because, as critical scholars have long noted,¹⁴ the law’s effects on political struggles are not neutral, nor is the law completely open to manipulation by social actors. Rather, the law has an inherent tendency to ‘co-opt’¹⁵ radical political objectives, to distort them, and channel them into more moderate forms, legitimising the status quo. Legal arguments, and legal–institutional interactions, tend to deradicalise and depoliticise movements, while simultaneously valorising law as an adequate solution to social problems, thereby undermining momentum for the very structural, or systemic, change towards which radical struggles are directed.

These observed tendencies of the law—to individualise, and abstract; to deradicalise and demobilise—need to be taken seriously. However, in order to appreciate how, and to what extent, the law demonstrates these tendencies, how far they detract from the benefits of legal engagements, as well as whether, and how, they might navigated, we need a deeper understanding of why these tendencies exist, to what extent they are necessary or inevitable, and to what extent they may be amenable to change. In order to develop such an understanding, we need to engage more directly with the nature of the law’s structural relationship with capitalism and, more specifically, with the law’s constitutive role vis-à-vis capitalist social relations.

While the term ‘legal constitution’ is used in a vast range array of scholarly approaches to the study of law, referring in quite general terms to the immanence of law in the social practices which law often then seeks to ‘regulate’,¹⁶ in the Marxian tradition,¹⁷ the question of the law’s constitutive role is oriented quite specifically towards understanding the nature of the law’s relationship with the social practices of capitalist societies.¹⁸ More specifically, it focuses on the role played by law in their emergence, reproduction and legitimisation.¹⁹ The problem with most Marxian contributions to discussions about law’s constitutive role, however, is that they often fail to distinguish the different dimensions of the law’s constitutive role and the various degrees of necessity and contingency that exist in relation to each.²⁰ They thus fail to distinguish between aspects of the law’s relationship with concrete capitalist formations which are the product of contingent social developments and concrete struggles and aspects which are a product of fundamental, systematic features of law as it exists, and must exist in capitalism. As a result, they have largely failed to tease out the practical and strategic implications of the law’s ‘constitutive role’ for political actors seeking to mobilise the law in pursuit of radical social change because it is not clear whether different observed features and tendencies of the law can be avoided and overcome.²¹

The theory of legal constitution presented in this article seeks to overcome these problems. Central to this theory is an understanding of law as one of capitalism’s necessary power relations, a particular form of power relation without which the class relations that define capitalism as a mode of production could not exist or be reproduced, but one which manifests and is institutionalised in a variety of different ways, as a product of the concrete struggles, and conflicts, which shape its historical evolution. As such, if a radical political change is to be possible, law is both part of that which must be delegitimised, challenged and transcended, and a resource that can and must be mobilised to create the conditions conducive to the pursuit of that change—a pursuit which necessarily involves that delegitimisation and challenge.

The article will show how this approach to legal constitution can help us appreciate both the scope that exists for changing the legal framework in ways that are beneficial to radical political struggles, the nature and extent of the risks attendant on doing so, as well as how these risks might be navigated and productively harnessed for more directly subversive purposes.

The article will begin by presenting the author’s approach to questions of the law’s constitutive role in more detail (section 2). In section 3, the article will then tease out the strategic implications of this approach. It will show how the approach can help us identify the scope and limits that exist for legal interaction to contribute to radical political struggles; the different ways in which it can do so, as well as how radicals must engage with the law if their legal interactions are to be effective. The article will then conclude with some observations about how the insights presented in the article might inform attempts to incorporate legal tactics within a broader political strategy and the importance of legal scholarship to these attempts.

2. LAW’S CONSTITUTIVE ROLE

As noted above, the idea that law is ‘constitutive’ capitalist society is something that is frequently articulated in legal and sociological literature.²² However, scholars vary in how they use this term and the precise significance and meaning of the term constitutive is often unclear. This article uses the term in the specific way in which it is deployed in Marxian-inspired accounts of law.²³ In this context, law is said to be constitutive of capitalism in a fundamental sense, namely, in the sense that, as a historically specific form of regulation, law is one of capitalism’s necessary power relations.²⁴ This term, used here to give more precise expression to ideas developed in the author’s earlier work, reflects the premise that law is a power relation that is necessary for the emergence and reproduction of the unique class power relations without which capital accumulation would not be possible, and so, is part of the configuration of relations that make up capitalism as a historically specific mode of production. Therefore, when referring to this element of the law’s constitutive role, we are not speaking about specific laws and institutions but about a particular form of normativity, a particular mode of regulation. We are speaking, in other words, of questions of legal form.²⁵ As we will see, engaging with this dimension of the law’s constitutive role is vital if we are to appreciate the enduring features of law that exist, and persist, regardless of how the legal form of power comes to be institutionalised, and how those features shape, and constrain the effects of, social actors attempts to change it—that is, their strategic implications.

A. Law as One of Capitalism’s Necessary Power Relations

Capitalism is a society that is predicated on the extraction and realisation of surplus value. The historical and ongoing precondition for this process is the exclusion of the direct producers from access to the means of production, because it is this exclusion that establishes the power that capital enjoys over labour and which enables employers to extract surplus labour from workers in the production process. It is also this exclusion that brings into being the generalised practices of exchange that make possible the realisation of that surplus labour as surplus value in the market. Hence, capitalism is predicated on a distinctive form of class power relation between capital and labour, characterised by the dependence of one class on working for others to obtain the money they need to live.

The power dynamic that exists between capital and labour is a precondition for surplus value extraction and, thus, for capital accumulation; hence, this dynamic is integral to capitalism as a historically specific mode of production. Having said this, that power dynamic is not sufficient for that mode of production—neither for its historical emergence nor for its ongoing reproduction.²⁶ The ongoing existence of this power dynamic and, thus, the reproduction of workers’ exclusion from the means of production, depends on three forms of power relations that come into being via the same processes that give rise to class power relations: the legal form of power relation, a historically specific form of institutionalised power²⁷; the gendered form of power relation, the historically specific power relation that exists between groups depending on their relative roles in relation to production (for capital) and reproduction (production for consumption)²⁸; and the racialised form of power relation, that which obtains between those inside, and those outside, capitalism’s reproductive circuit.²⁹ Each of these power relations is necessary to capitalism in the sense that they are necessary (but not necessarily sufficient in isolation) for the reproduction of its unique class relation and its conditions of possibility. They are also specific to it, in the sense that they are predicated on the mode of production which those conditions underpin—they assume a particular form only within the framework of the capitalist system. While an exploration of all these power relations and the nature of their interaction is important, has been explored elsewhere,³⁰ for the purposes of this article, we are principally concerned with the legal form of power relation and its relationship with the class power relations.

This article suggests that the term the ‘legal form’, as used within Marxian literature, can be conceived as referring to that form of power relation that obtains between the institutionalised power of the state and its citizens in the context of capitalism. This form of power relation comes into being as a result of the conflict that exists between the subjectivity inherent in exchange, which provides for stability and predictability in that context, and the class power relations that necessarily underpin it.³¹ The generalisation of exchange brings into being a particular form of subjectivity, a particular way of understanding oneself and one’s relationship with others, characterised by one’s assumption as to one’s and everyone else’s equal freedom: an equal freedom to engage in exchange free from coercion.³² This subjectivity, which is essential to securing trust and stability in markets, and the co-ordination function of prices, exists, however, in a world in which one class, capital, enjoy power over another class, workers, and as such, in a world predicated on substantive inequality. If individuals are to see themselves as equal and free in the market and, thus, if the market practices that are essential to the extraction and realisation of surplus value are to be sustainable, this substantive inequality cannot be seen to impact on individuals’ market decisions. This gives rise to two requirements: on the one hand, the need for coercion, for mechanisms to prevent the exercise of force or violence,³³ and secure the enforceability of agreements, and the stability of property; and, on the other hand, the monopolisation of that coercion outside the market, and its exercise in a way that upholds, and protects, individuals’ equality and freedom.³⁴ it is in light of these presuppositions that we can say that capital accumulation presupposes a legal form of power. It presupposes the existence of an independent third party, monopolising coercion outside the market, exercising its power through the medium of law, where such is seen as an impartial, and generally applicable mechanism that addresses itself to individuals as free and equal citizens and can be trusted, as a result of its link with the independent and impartial state, to uphold their general interests, in generalised freedom, and by implication their equal capacity to engage ‘freely’ in regularised exchange.

The legal form of power is necessary in capitalism, however, for another reason. This is due to the conflicts and struggles to which markets, and the power relations underpinning them, necessarily give rise. These conflicts and struggles pose a threat to the stability and predictability of markets, the subjectivity that is intrinsic to them, and by implications, the very power relations which they help to sustain and reproduce. This brings us to the second dimension of the law’s constitutive role, namely its role in regulating and mediating conflicts, understanding which can help us appreciate why there exists considerable contingency when it comes to how the legal form of power comes to be institutionalised, and thus, the precise ways in which law comes to shape the dynamics of power within the framework of capitalism.

B. The Legal Form, Struggles, Conflict and Contingency

At a societal level, capital accumulation requires that the total value realised when the products of labour are sold in the market is greater than the total value required to reproduce the labour power expended on their production. It also requires that capital collectively extracts more labour from workers collectively than is they receive in wages, while, simultaneously, paying enough to them to reproduce their labour power over time.³⁵ The conditions for this to be possible are provided by the existence of capitalism’s necessary power relations. The problem, however, is that the mere existence of these power relations does not guarantee such outcomes; for example, that individual employers pay each worker a wage sufficient to meet their basic needs and, thus, treat them in a manner that is consistent with their formal status as juridical subjects; or that labour power will be sustainably and reliably produced over time.³⁶ Rather, the existence of capitalism’s necessary power relations creates opportunities and incentives for individuals and groups to act in ways that actually undermine this process—encouraging, for example, employers to act in ways that undermine the reproduction of labour power in order to cut costs, such as by exposing workers to harmful working conditions, by paying below-subsistence wages or by appropriating labour outside the contractual nexus entirely (as with certain forms of so-called ‘forced labour’). Not only can employers take advantage of existing racial and gender power dynamics to legitimise, and further, this strategy³⁷ but, in so doing, they can reshape, and exacerbate the inequalities implied by such dynamics as well.

This tendency for individuals and groups to act in ways that advance their short-term private interests rather than their longer-term class interests not only risks undermining the reproduction of labour power but also contradicts the formal equivalence of exchange and the status of workers as free and equal subjects, casting doubts on the formal legitimacy of the law, and the state as well, while creating instability in the market.³⁸ The resulting harms and challenges for different groups explain why struggle and conflict are endemic in capitalism and lead, on the one hand, to particular actors calling for a resolution of such conflicts by a third party—such that these specific struggles tend to crystallise in legal disputes—and, on the other, and when sufficiently generalised, to such instability and legitimacy problems as to encourage the introduction of ‘mediation’ mechanisms. By this is meant institutions, or rules, oriented around mediating such struggles and conflicts, and/or modifying their most immediately harmful ‘effects’.³⁹ To the extent that any such ‘mediating’ mechanisms will only be effective if they impose constraints on behaviour—for example, if they prevent employers from succumbing to competitive pressures by making certain market decisions costly or illegal—they will only be seen as legitimate in capitalism if they are imposed in a manner that is compatible with individuals’ equal freedom and as constraints referable to the parties’ autonomous will, and enforceable before a third party: that is, if they assume the form of law.

It follows from this that the function of the legal form of power in capitalism is not merely to provide the conditions for the emergence and reproduction of capitalism’s necessary power relations and to help reproduce the particular subjectivity which is intrinsic to the market. In addition to this the legal form of power functions to provide a mechanism for mediating the exercises of power which pose challenges to the stability and legitimacy of the market, and the wider system. This mediating function exists not only in the courtroom when courts act as independent arbiters of a given dispute, but, also, at the level of regulation. The power relations necessary to capitalism require, as a condition of their ongoing reproduction, a mechanism for mediating ‘lower-level’ conflict, providing certainty and predictability to parties engaged in the market and production, and the existence of constraints on (structurally conditioned) behaviour, constraints that must, moreover, assume a particular legal form to be seen as legitimate. While the precise nature of the conflicts that trigger such ‘regulatory’ responses, as well as the precise nature and implications of such responses, are not fixed, these conflicts and responses will always nonetheless be conditioned by the legitimacy conditions imposed by the legal form, and the particular way in which constraints on behaviour must be framed, to be seen as legitimate in the context of capitalism.

These observations help us to appreciate the contingency that exists when it comes to the precise effects and implications of the legal form of power. The legal regulation that is introduced in ‘response’ to contingent struggles and conflicts impacts on the way in which existing laws, and institutions, are interpreted and applied, and, in turn, on the precise implications of the legal form of power in given conditions. At the same time, these existing laws and institutions are both a product of the past struggles and conflicts which have precipitated legal regulation and the particular way in which specific conflicts have crystallised into different legal disputes and have been contingently ‘resolved’ within the framework of the existing law. In this sense, then, the legal form shapes—but does not determine—the dynamics and orientation of the struggles and conflicts to which the law ‘responds’, and it also conditions—but does not determine—the effects, and orientation, of such responses. The way in which it shapes and conditions such dynamics, however, is influenced by its form.

As explained, the law conceptualises individuals as naturally equal and free and so abstracts away the gender, racial and class-based power dynamics that exist between them. However, insofar as those power dynamics make possible certain exercises of power that can operate to contradict that equality and freedom, it becomes both possible and necessary for the law to regulate those exercises—and in effect, ‘prevent’ or condemn them.⁴⁰ The problem, however, is that if the law presupposes that individuals are naturally equal and free, the existence of unequal power and its exercise can only be explained in law as a consequence of the actions and decisions of formally equal and autonomous subjects and/or as the result of isolated deviations from that natural state of equality and freedom. These exercises of power must, therefore, be explained in this form, as a consequence, for example, of the existence of monopsony, or as the product of the hierarchical structure of a contract of employment in order to become a legitimate ’target’ of legal regulation and/or in order to become the focus of a legal dispute, and adjudication. This effectively means abstracting those exercises from the underlying structures, from those necessary power relations that explain and give rise to them, framing these relations instead as isolated, and contingent products, of the actions and decisions of autonomous actors.⁴¹

It follows from this that while regulating the harmful effects of the exercises of power that capitalism systematically encourages and enables is essential to secure the reproduction and legitimisation of the capitalist system, and of law itself, the law’s ability to do this is itself limited by the form which it must assume in order to do so. This builds into law an ongoing contradiction: the law must be capable of responding to exercises of power which cast doubt on the legitimacy of the worldview it projects, while its ability to do so is itself constrained by that world view, and its inability to recognise, and engage with, the structural causes of the power to which it must respond. To remain faithful to its worldview, to deny the existence of structural power relations, means potentially threatening its capacity to be seen as an impartial and neutral arbiter of conflicts and, thus, as a legitimate form of power in society. However, for the law to directly acknowledge the structural basis of the power relations to whose effects it seeks to respond, risks exposing the law’s complicity in their emergence and reproduction.⁴² This means that the law necessarily reinforces a particular image of the causes of social problems and conflicts that are abstracted from their underlying structural causes and which present such problems as isolated and contingent rather than structural and systemic. This necessarily limits the extent to which the law can be harnessed to target the structural causes of social problems because those causes are not visible to law. But it also makes attempts to harness the law for this purpose extremely risky because it risks legitimising a worldview where those structures are denied and the necessity of transcending law itself to overcoming those causes is obscured.⁴³

C. Summary

The above analysis can help us to appreciate how, and to what extent, the ‘limitations’ attributed to law and its role in social change are structural and inherent, and the extent to which they are contingent. Legal change is prompted by struggles and conflicts already conditioned by capitalism’s structure, and the particular way in which those relations have been institutionalised at a given time. In effect, it is a mediated response to the struggles and conflicts that emerge endogenously within a legally structured reality, a reality in which the class power dynamics that exist between capital and labour exercise a significant influence over the interests, beliefs and capacities of different individuals and groups. This response is shaped by the particular way in which societal contradictions have been institutionalised and legally shaped at a given time due to the way in which past struggles and conflicts have been contingently, ‘legally’ mediated. It is also shaped by how those contradictions come to be conceptualised in the context of social struggles, and come to animate particular demands and claims; and by the way in which they are interpreted, and acted upon, through a particular adjudicatory, legislative or political process, in the context of historically specific state institutions; and by the particular way those institutions shape the perceptions, motivations and understandings, of legal and social actors. This does mean that there is considerable scope for variation when it comes to the precise way in which capitalist social relations are institutionalised however, and thus, that the precise dynamics of the class, gender and racial power relations that condition opportunities for, and the resources available to different groups in the context of, collective political action, can vary significantly as well. This is so both in terms of the concrete opportunities that legal structures provide to different groups for various forms of collective political action and in terms of shaping consciousness and understandings, motivating behaviour and facilitating the formation of identity.⁴⁴ However, it also means that law is always already shaping the outlooks, motivations, interests and resources available to different groups, mediating attempts to mobilise the law and other political resources. The law does this, moreover, in a way that tends to be obstructive to radical political struggles, reinforcing and naturalising a worldview which tends to individualise, valorise law as an adequate solution to social problems and deny the necessity of structural change. This makes mobilising behind legal change necessary but also extremely risky.

The existence of these risks does not mean, however, that law can or should be avoided. Not only will all political action inevitably have legal consequences, and not only are the conditions for collective political action profoundly shaped by the wide legal framework in which they are conducted, making legal change particularly important for facilitating that action; but social actors will also be interpreting their interests and formulating goals, advancing arguments and offering justifications for different types of actions in an ideological context which is profoundly shaped by law and structured and infiltrated by legal concepts and reasoning. At the same time, however, if law is a power relation that is necessary and integral to capitalism, the very fact of relying on law to advance more or less radical political objectives is always potentially counterproductive insofar as it endorses and co-opts the legitimacy of a power relation which is part and parcel of the system under challenge. This suggests that radicals don’t simply need guidance on when and in what contexts to mobilise the law; they need guidance as to how to navigate an always legally structured environment and how to take advantage of the opportunities for legal mobilisation and legal interaction thrown up by that environment, in order to further their struggles, struggles to which challenging and legitimising the law itself—or rather, the legal form of power—is integral.

3. PRACTICAL IMPLICATIONS

As argued above, radical political actors are operating in a legally structured reality in the context of which law is always shaping, to a greater or lesser extent, the outlooks, motivations and beliefs of those whom they seek to mobilise in support of the pursuit of structural change. In the context of that reality, moreover, they will regularly come into direct contact with laws and legal institutions, whether as an incidental by-product of their broader political action—as conflicts and disputes emerging endogenously from society bring radicals into interaction with the law, and/or legal institutions and authorities; and/or deliberately. That is, by deliberately breaking the law, bringing litigation and/or developing a political campaign oriented towards promoting some legal claim or demand.

In all these contexts, as they seek to pursue intermediate goals of mobilisation and organisation, radicals need to understand how to take advantage of the law’s potential while avoiding or minimising its risks. These risks include, importantly, the risk that merely harnessing the law mobilising the law’s own legitimacy in a way that is obstructive to radical politics, given that the law is itself a central part of that which radical politics seeks to transcend.⁴⁵ For this reason, when it comes to thinking about how to take advantage of the law’s potential, we need to be thinking not merely about instrumental uses of law—where a particular legal outcome or reform might alter the legal environment in which struggles are conducted in ways that contribute to a shorter-term goal of a movement or organisation—but also in terms of more subversive uses of law—where legal–institutional interactions function as an opportunity to mount a direct political attack on the law itself, to foster a critical orientation to the law and expose its limitations.⁴⁶

In practice, of course, even when harnessing the law ‘instrumentally’, radicals will need to take care to navigate the risks attendant on harnessing law, given its individualising and fragmenting effects. Likewise, even when the primary purpose of interacting with the law is subversive, that interaction is still likely to have legal consequences that will have to be carefully anticipated and managed, insofar as they have the potential to impact on the scope that exists for future political action or for future legal engagements. While the next two sections discuss each ‘type’ of legal interaction separately, we must not lose sight of the scope that exists for their interaction or the need, explored in the concluding section, for thinking about how they might be productively integrated within a broader ‘legal’ strategy that takes seriously the need to delegitimise law in the process of harnessing law as one way to help build capacities for political struggle.

A. Instrumental Uses of Law

In exploring the potential for instrumental uses of law to contribute to radical struggles, we need to think, first, about the scope that exists for legal changes to produce social changes beneficial to such struggles and, secondly, about how those legal changes might be pursued, so as to navigate the risks to such struggles that arise from pursuing them.

In relation to the former, the analysis presented in section 2 above calls attention to the limits that exist for isolated cases or legislation, and thus, isolated legal changes, to meaningfully change the environment in which radical political struggles take place and the importance of not ignoring the law’s tendency to co-opt political narratives and assimilate them into a form that is compatible with the structures of capitalist society.⁴⁷ In this respect, as highlighted by scholars of legal evolution, the legal form imposes certain legitimacy conditions on legal decision-making, tying its legitimacy to the existence of clarity, and consistency, in the law.⁴⁸ As such, the law comes to be structured hierarchically, through various levels of concepts, the scope for variation of which varies depending on their level of abstraction. This means, importantly, that while certain aspects of the law might be subject to considerable historical variation, others remain relatively enduring.⁴⁹ Thus, property might be given expression through a variety of torts of trespass, nuisance, etc., but the precise rules associated with these doctrines will be subject to greater variation—variations which will, however, have relatively minimal effect on the overall structure, and logic, of the institutions with which particular rules are connected. Given that, as we saw in Part 1, this is a logic that denies the structural origins of social problems and the salience and legitimacy of class-based solidarity, the degree to which the law can ever be harnessed to contribute to radical struggles will always be limited by its tendencies to abstract, fragment and individualise, given the effects this can have on the formation of a structural understanding of social problems, and class-based political consciousness.

The analysis also helps us to appreciate that the impact of each incremental legal change can also be limited because the capacity for actors to conduct a co-ordinated campaign for more widespread legal and institutional change is always already limited by prevailing power dynamics. These power dynamics will always be stacked in favour (albeit to different extents) of those groups with greatest access to resources, and thus, capital. While mobilising around legal changes that include reforms of legal procedure, and access to justice, would thus be one way to improve the scope that exists for the mobilisation of the law in the services of radical social change,⁵⁰ ultimately, legal change is never going to be sufficient to bring about the sort of wide-scale changes that will be required to underpin, and facilitate, class-based political action.⁵¹

Having said this, the theory of legal constitution presented in Part 1 also helps reveal how different configurations of legal rules and institutions might produce different power dynamics, different opportunities and constraints when it comes to collective political action, to creating space for experimentation with alternative forms of democratic practice, and for the construction of alternative discourses about justice. For example, while workers might necessarily be structurally disempowered in the context of capitalism from organising collectively in advance of their interests because of the exclusion from the means of subsistence that is a structural feature of capitalist societies, the degree, nature and extent, of this disempowerment, can vary significantly over time. Thus, the precise implications of worker’s wage dependence vary depending on the contents of private property rights⁵² and the restrictions these rights place on the actions and decisions of third parties; on how freedom of contract is conceptualised, and thus, the preconditions that the court believes ought to be in place for a contract to be lawful. It also depends on the extent to which freedom of contract is deemed compatible with the actions, and decisions, of collectives, such as trade unions, and companies.⁵³ In addition to this, workers’ capacity to recognise their commonality of interest and forge bonds of solidarity depends on the extent to which they are placed into competition with each other in the context of the labour market, something which can be exacerbated or ameliorated depending on the degree to which employers are able to take advantage of extant social categories as a grounds for wage differentiation, as well as by the degree of employment security that they enjoy. That is, the degree to which they are insulated from social and economic risks. Different systems of social protection, rules in relation to job security, the legality of different working arrangements, the scope of public service provision and different regimes of taxation are all examples of the ways in which legal changes can differentially mediate the impact of capitalism’s constitutive power relations on individuals and groups, and thus, provide different opportunities, and incentives when it comes to collective organisation and direct action.⁵⁴

The account of the law’s constitutive role presented in this article also highlights the profound role that the law plays in shaping the way in which people perceive the world, their role within it—and, importantly, their relationship with and commonality of interest with, others.⁵⁵ Recognising that certain legal outcomes—whether it be a particular legal decision, or a new piece of regulation—can either unite or fragment class consciousness; can either highlight the commonality that exists between different labour market groups, or emphasise their differences; and/or can produce different understandings, or framings, of various problems, can all help us focus not only on what laws exist, and how they are enforced, but also, on how they frame the problems, and actors, to which they are addressed. This can then empower radical political actors when it comes to how they frame their arguments and disputes, as well as what concepts they use in their campaigns for regulation.

To take the status used to delimit access to labour law protections, for example, the concept currently used in UK labour law—the ‘worker’ or ‘employee’—ties access to such protections to the structure of the contract by which people are hired.⁵⁶ The way in which the question of status is approached by the courts thus tends to present the vulnerabilities against which labour law protects, and which unite workers together, as if they have their origins in a contingent working arrangement, rather than their common structural position,⁵⁷ and thus, the degree to which they are dependent on working for others to live. The courts thus refer to the existence of control as if it arises from an implied or express contractual obligation on behalf of the employee/right on behalf of the employer. As a result, it tends to promote a highly apolitical, and contingent conception of class that is abstracted from the structure of the capitalist system—people share interests because they just happen to work under a similar type of contractual arrangement, not because they are born into a particular structural position, and are, as a result, dependent on generating value for capital to live. Similarly, an approach to access to labour law which is fragmented, that treats labour market groups differently depending on the nature of their working arrangement, their skills or occupation, is liable to fragment, rather than unite, workers, obscuring the commonalities of interest that exist between them. By contrast, an approach which unites workers together, regardless of their occupation and form of working arrangement, could provide a better framework for the development of class-based solidarity, even if the legal status itself cannot make direct reference to the structural basis of that unity.

Exploring in detail how different aspects of the legal framework differentially empower or disempower different groups and/or contribute or detract from efforts at mobilisation can thus help us better understand which legal changes to prioritise, as well as which combinations of legal changes ought to be pursued and prioritised, notwithstanding the limits and obstacles that exist for their realisation. It is here that existing contributions to critical legal literature can be most useful. This includes the work of scholars such as Paul O’Connell that underscores the importance of different democratic institutions to radical struggles⁵⁸; those works which explore how different legal frameworks can help create more or less space of experimentation with alternative forms of democratic practice and alternative ways of organising production and reproduction⁵⁹; those accounts which trace the broader implications of specific legal changes, or specific legal frameworks, for the trade union movement, or workers’ living and working conditions. All these works can help radicals to understand the sorts of legal changes that might be possible and beneficial, and the contexts in which those benefits might be realised.⁶⁰ Equally as significant are the contributions to labour law literature that actively expose the assumptions underpinning particular legal frameworks, and thus, the extent to which they may be inadvertently re-affirmed and valorised, through the pursuit of discrete reforms and/or amendments.⁶¹

The analysis in section 2 also helps us to understand, however, the existence, nature and origins, of the risks that arise when law is used in this ‘instrumental’ way to support radical political struggles, regardless of whether they are successful in realising the legal outcome desired, and helps us navigate or mitigate these risks in practice. In order for an argument to resonate before a court, for example, it has to be articulated in a way that accepts the legal system’s basic presuppositions about the world—including the existence and legitimacy of the institution of private property and of a generalised freedom to contract—and all the power relations, and structural preconditions, that these imply. This includes, moreover, the independence and impartiality of the state—precluding any acknowledgement of class power relations, and the complicity of the state in their emergence and reproduction. It follows that, to rely on litigation, even to prompt a ‘politically desirable’ legal change, can have the effect of obscuring the structural causes of wider conflicts and struggles; the commonality of interest that exists between different groups, and the structural basis of that commonality. At the same time, it risks valorising law as an adequate solution, potentially undermining momentum for more far-reaching change.

The analysis also helps us to appreciate that these constraints on legal decision-making also condition the form, orientation and implications, of legal regulation. In order to translate a political goal into law, it first has to be expressed through a conceptual framework in which certain facts about the world—the quality and freedom of the subject, the independence of the state etc.—are taken for granted, and in the context of which the legitimacy and existence of certain fundamental legal institutions—property and contract—are simply assumed.⁶² This places limits on how far regulation can ‘target’ structural problems, because, in law, the structural causes of such problems tend to be obscured, or denied, and as a result, the nature and implications of such problems distorted. In addition, however, regulation tends to valorise the abstract image of the world that the law promotes, and which downplays the necessity and importance of the structural change for which radical political groups are fighting, while, simultaneously, reinforcing an abstract subjectivity that obscures the significance of class—of one’s relationship to the means of production—in conditioning one’s fundamental interests.⁶³

This awareness and understanding of the risks and limitations attendant on mobilising the law can help guide political actors when it comes to how they conduct their legal engagements in practice. For example, it suggests that when thinking about mobilising the law ‘instrumentally’, radicals need to pay attention to how their legal engagements relate to their wider political objectives and ensuring that they are properly contextualised and embedded in a broader political narrative in the context of which legal goals, and legal objectives, are subordinated to a broader, strategic, purpose.⁶⁴ This means actively challenging the legal system’s framing of a given conflict or problem and explaining how and why that framing comes about and with what implications. This is so even if, for tactical reasons, the legal framing might need to be deployed in particular contexts. This also means that radicals must make a conscious effort to separate the framing that must be adopted for the purposes of legal–institutional action—that is, in the courtroom—from that which is adopted in wider political campaigns, their engagement with members, and with wider society. In this way, in the context of radical politics, the legal is always posited as an imperfect, and partial expression, of the political, such that the political retains primary emphasis.⁶⁵ This can help radicals maintain control over the narrative in the context of which any legal engagement functions.⁶⁶ In so doing, they may then be able to highlight the structural issues behind a legal conflict or dispute, before it is co-opted by the courts or legislature, directly publicising the contrast that exists between the political, and legal narrative. This can help them to avoid valorising the law as a sufficient solution to a dispute or problem so that, as Paul O’Connell has advised, law does not replace other forms of emancipatory discourse and co-ordinated political action but can act as a supplement and incentive towards their development.⁶⁷

For example, the Independent Workers’ Union of Great Britain (IWGB) has frequently relied on litigation as a means both to publicise and expose certain problematic features of neoliberal capitalism and as a means through which to directly advance the interests of their members achieving legal decisions that increase the rights which they can claim.⁶⁸ The problem, however, is that the legal framing and a legalistic narrative in which they participate in the courtroom have been replicated in their wider campaign materials. Thus, frequently, the IWGB has presented a claim for ‘rights for workers’,⁶⁹ and has challenged so-called ‘bogus self-employment’ as a solution to the exploitation faced by their members. In so doing, they risk valorising law, and labour law, as an adequate solution to problems such as low pay, over-work and precarity, the causes of which are structural in nature. In doing so, they risk endorsing the legal system’s apolitical, and abstract framing of issue, potentially undermining scope, and momentum for, broader, structural, change.⁷⁰

The analysis presented also suggests that radicals must remain cognisant of the legal technicalities and technical legal arguments they are likely to confront in the context of different legal–institutional interactions so that their more ‘radical’ discourses are not simply dismissed by professional lawyers or distorted through legal processes.⁷¹ They also need to carefully develop, and clarify, their broader political vision to be able to express the core points of tension that exist between their understandings of issues, and problems, and the way they are conceptualised in law.⁷² This involves maintaining a productive ‘tension’ between legal precision, and the semantic openness necessary for political mobilisation,⁷³ having an awareness of the technical legal concepts which will have to be deployed in the courtroom, as well as how, and why, they differ from a movement’s own understandings of them.

In addition to embedding their legal tactics in a wider political narrative, the analysis in section 2 would suggest that radicals need to make an ongoing attempt to expose and challenge the validity and empirical basis of abstract legal statuses and categories avoiding the use of legal terms of art in the context of their campaigns, offering instead a conceptual framework consistent with a structural understanding of social problems and a class-based political consciousness. In the context of campaigns for labour law reform, moreover, radicals should avoid harnessing legal terms such as ‘worker’ and ‘employee’ and should instead articulate their arguments through the more ‘neutral’ categories of ‘working person’ or ‘working class’ to directly challenge and politicise the legal system’s denial of the reality of such categories, exposing their exclusionary, and individualising, effects. Rather than campaigning for an increase in the wages of workers, for example, radicals should instead be arguing in favour of a guaranteed income sufficient to cover living costs for all those who have no choice but to provide the benefit of their labour to others through the market to live. In this way, even if any resulting regulatory response is targeted at an abstract, depoliticised category of ‘worker’ or ‘employee’, the immediate insufficiency of such a response—despite its necessity—will be visible and can be actively politicised and exposed in the context of wider political action.

B. Subversive Legal Engagements

A welcome side effect of many of the suggestions above would be that, however marginally and indirectly, an engagement that is predominantly instrumental in orientation may well have the effect of helping to delegitimise and politicise law and expose its limitations. Having said this, the analysis in section 2 also suggests that it might be possible and desirable for radicals to exploit legal–institutional interactions for more explicitly subversive purposes. This means seeing certain legal–institutional interactions not as a means to realise a particular legal outcome but as a political opportunity to be harnessed to mount a direct attack on the law itself. In this way, legal engagements can create an entry point, or a point of ‘rupture’,⁷⁴ in the context of which an alternative to the existing order can be imagined, articulated and, potentially, publicly advanced.⁷⁵

Exactly what a subversive approach would look like varies depending on the nature of the institutional interaction in question. In the context of litigation, for example, the essence of a subversive approach lies in seizing the publicity of the courtroom as a means through which to articulate political arguments and to expose the complicity and hypocrisy of the law to delegitimise and call into question not just a particular legal outcome but the legal–institutional order more generally.

To illustrate this, we can again return to the example of employment-status litigation, like that pursued by the IWGB. As alluded to previously, in recent years, it has become particularly common for many social organisations to seek to improve the position of various groups of workers by engaging in ‘employment status litigation’.⁷⁶ Generally speaking, this involves arguing before a court that someone contractually designated as an independent contractor ought to be recognised as a ‘worker’ or ‘employee’ for the purposes of labour law and, thereby, be entitled to labour law rights and protections. At the heart of such an approach is an implicit challenge to the way in which the concept of the worker, or the scope of labour law, has been interpreted by the courts by way of articulating an interpretation of the law that would allow certain previously excluded groups to enjoy its protection. Thus, either an interpretation of the law is advanced that would allow such an outcome and this is said to be an adequate reflection of the law; or an argument is made for the development of a new interpretation, to adapt the law to a changing environment; or a case which falls outside the scope of prevailing definitions is brought to publicly expose the limitations of existing definitions and interpretations and encourage parliamentary intervention.⁷⁷

A radical or subversive approach, by contrast, would use the opportunity of a dispute about employment status not to challenge prevailing definitions or interpretations but to expose the underlying logic and assumptions which preclude the recognition of certain groups as in need of labour law’s protection, challenging the validity and legitimacy of the law’s process of categorisation.⁷⁸ The objective here is not (or not only) to show how a different definition, concept or interpretation might be ‘better’ but to show how and why any legal definition, concept or interpretation will necessarily be insufficient—exposing the law’s inability to recognise the structural basis of workers’ subordination and dependence, and the limitations of a system that conceptualises social relations through the lens of interpersonal relations between ‘class-less’ subjects. In this way the legal engagement prioritises delegitimising law and demonstrating the necessity for reforms that go beyond it.

Another example can be provided from the realm of trade union law. In recent years, faced with severe obstacles to the organisation of industrial action posed by domestic trade union legislation, many UK trade unions have sought to challenge the validity of the law on human rights grounds relying, very often, on the right to freedom of association protected under Article 11 of the European Convention.⁷⁹ In this context, the essence of the argument is that trade union legislation in the UK, or particular aspects of it, is unlawful, and should be changed because it violates human rights norms. As a result, this sort of challenge implicitly endorses the image of trade unions, and the rationale for the protection of rights in relation to them, that human rights law itself projects. This is one where the essence of the wrong is seen through the lens of a violation of individualistic rights—and understanding that has the effect of abstracting trade unions, and industrial action, from the structural contradictions that they help mediate.⁸⁰ This means that, even where a favourable legal decision is reached, it is one that still obscures the relevance of class-based solidarity and class conflict because it accepts as legitimate the premise that collective interests ought to be ‘balanced’ against the ‘equally’ important rights and interests of others—for example, in terms of private property, and freedom from inconvenience in relation to the receipt and delivery of goods and services.⁸¹

A radical approach, by contrast, would take advantage of the forum of the human rights case to articulate an alternative image of trade unions and of the interests they serve, one that cannot be accommodated within the framework of human rights law, and which rejects the logic of ‘balancing’ that constrains their scope of action. In articulating an image of trade unions that foregrounds class and class-based solidarity, and recognises the integral relationship between trade unions and class conflict, radicals would thereby expose the limitations not just of particular aspects of the legal framework but of law and human rights law itself—thereby helping to publicly expose the failing and limitations of the capitalist system.

A recent example of a subversive tactic being used in the context of the courtroom can be seen in the recent trial of Just Stop Oil protestors in relation to a slow march protest they participated in contravention of section 7 of the new Public Order Act 2023, which creates a new offence of interfering with key infrastructure.⁸² Rather than contesting the judge’s interpretation and application of the law, the protestors responded to the judge’s refusal to allow them to advance evidence of the political cause in the name of which the march was conducted by drawing attention to the unusual heat in the courtroom—something which had led the judge to finish the trial early on several days. In so doing, they sought to take advantage of the publicity of the courtroom to emphasise the irony of their prosecution for an attempt to draw attention to the ultimate cause of a problem which was now interfering with their prosecution. In effect they sought to embarrass the court by effectively highlighting the complicity of the law in perpetuating a problem the existence of which the court itself had implicitly acknowledged.⁸³

It is also possible to adopt a subversive approach in the context of campaigns for regulatory reform. In this context, the ‘subversive’ nature of the approach is a product of the particular demands being made and the discourse through which those demands are articulated. In relation to the former, many reformist social movements tend to focus their political campaigns on trying to secure modest amendments to the existing framework, fixing ‘gaps’ in enforcement or scope, or arguing for new rights and protections. An approach that avoids valorising the law—and which actually helps call the legitimacy and neutrality of the law into question—would instead seek to claim rights that actually cannot be met within the framework of existing structures, exposing the insufficiency of legal change and the necessity of reforms beyond the law in the process.⁸⁴ Thus, the task for radicals would be to deliberately make demands of the state that cannot be met—in capitalism and/or through law—so as to reveal the inherent limitations of both while mobilising around certain goods (clean water/environment, meaningful work, safe and affordable housing, etc.), or objectives, the necessity to which of structural change thereby becomes apparent.⁸⁵ The goal thus shifts from trying to win concessions and rights that can be enforced in the form of a political compromise from the state, towards exposing the inability of the state and legal system to recognise and provide for certain substantive goods around which society can mobilise, exposing the limitations of rights, and of the narrative, or discourse, to which rights are wedded.

To illustrate the distinctiveness of ‘defiant rights claiming’, we can contrast campaigns for living wages—something which by definition presupposes the structures of the existing system—with claims of access to various substantive goods which are systematically denied in capitalism to particular groups, where such a denial is, moreover, integral to the basic structure of the system, and intrinsic to its unique form of class politics. This might include, for example, universal access to a minimum bundle of goods sufficient to meet individuals’ needs; social housing; universal child care and public services; a safe and clean environment.⁸⁶ Insofar as those goods presuppose de-commodification—including a de-commodification of labour power—and are not framed in terms of universal entitlements nor are they dependent on legal enforcement.⁸⁷ Instead, they constitute features of life to which people might have unmediated access outside the framework of capitalism, making structural transformation a key element in their realisation.

In addition to positing unrealisable demands, such an approach would attempt to frame demands through a discourse, and set of concepts, that explicitly rejects the logic and empirical basis of constitutive legal categories, such as the legal subject, and the legal right, with a view to revealing how our understanding of those concepts is linked with the structure of the existing system. This does not mean avoiding invoking such categories entirely; but to transforming them from within by counterposing to the law’s understanding of them an alternative image of what that concept might entail.⁸⁸

If we take the concept of a ‘right’, for example, one of the unique features of capitalism is the separation of people from the resources that they need to live and flourish; it is only in capitalism that one’s ability to live has to be secured through guarantees of access to something from which one has otherwise been separated.⁸⁹ This includes not only basic material goods—such as food, housing, clothing—but also immaterial goods, such as the ability to freely express oneself, a capacity from which one is alienated in a society where the ability to so express comes into conflict with the legally protected property rights of other people. In articulating a ‘defiant’ rights claim,⁹⁰ therefore, radicals are harnessing the legitimacy of the discourse of rights while seeking to challenge the structure of the world that very discourse presupposes. This involves transforming the notion of a right as a claim to something from which people are otherwise separated a claim that is asserted against the state into a claim for a re-organisation of society. Through these radical practices, therefore, rights become something qualitatively different. Rights no longer imply the existence of the state and its separation from a society populated by isolated individuals, but instead implies the existence of a society in which everyone has access to that which they need to live as a result of the structure of social organisation and reliance on the state to guarantee such access—through rights—is no longer required.

4. CONCLUSION

Having outlined some guidelines for radicals when it comes to engaging with the law, we now need to think in broader terms as to how these might be productively integrated within the framework of a broader political strategy. This means thinking about the relative priority of instrumental, as opposed to subversive, tactics, as well as the relative priority of shorter-term objectives that they each might be harnessed to further. This question of priority, and the related question of focus, cannot, however, be decided a priori. Rather it must be decided in light of the particular circumstances in which organisations find themselves, the options for various forms of legal action that present themselves, and the resources available to them to pursue actions. This implies taking into account the specific organisational constraints that different types of political actors face, the more immediate challenges and harms with which their members are confronted. In practical terms, legal changes oriented towards bringing about social changes conducive to organisation and mobilisation are likely to be vital pre-requisites for more radical, or subversive legal action. This is because such action will be supported by the collective power and capacities that such organisation and mobilisation can enable and will likely be more effective if embedded in the wider campaigns of a relatively organised and cohesive group. This suggests that organisations need to think not only about which tactics to prioritise in particular contexts but how to link these choices together in a broader programme, wherein more immediate goals are carefully positioned and assessed in light of longer-term objectives.⁹¹

Given that the priority afforded to different types of legal action depends, in part, on the opportunities that exist to pursue certain forms of legal challenge or engage in certain forms of legal–institutional interaction, legal practitioners and scholars play a key role in radical political struggles by identifying such opportunities—for example, in highlighting those aspects of the law that do make room for challenge and debate, interrogating the hidden assumptions embedded within particular aspects of doctrine and showing the complex linkages that exist between different legal ideas, concepts, and features of the wider environment in which the law functions. It follows from this that while any discussion of radical legal strategy must be directed towards those engaged more directly in social movements and struggles, we must not forget the essential role to be played by other ‘specialists’ and other categories of institutional actors—and nor should we downplay the important role that we, as legal scholars, can play in creating conditions conducive to the formation and pursuit of radical legal strategies in practice.

In this respect, there are many examples of legal-scholarly work which situates various legal or labour-law reform programmes within an analysis of capitalism and its structural limitations.⁹² Moreover, there is also a long tradition of critical legal scholarship highlighting the pitfalls of legal engagement for social movements and exposing in detail how the law can detract from their radical objectives.⁹³ There is as yet, however, only a very small literature that offers practical advice to social actors as to how to adapt their legal interactions in ‘productive’ ways and explores what ends to pursue through law and how in a manner that draws both on an understanding of the context in which social movements operate, and a deep understanding of the structural features of, and limits of, legal engagements in capitalism. Notable examples of such literature include the theory and examples of ‘defiant’ rights-claiming presented in the work of Eristavi⁹⁴; the theory and examples of radical human rights and practices presented by Rua Wall⁹⁵; the work of Honor Brabazon, which has explored the legal tactics deployed by radical social movements, isolating and explaining the logic and their advantages/disadvantages of various ‘subversive’ legal tactics⁹⁶; and the examples of ‘radical’ uses of rights and rights-based language provided in the work of Paul O’Connell, in the context of social movements throughout the world.⁹⁷ This article has attempted to build on this literature, providing the theoretical tools that are necessary if scholars are to be able to meaningfully assist radicals in navigating the limits and the subversive potential of law, given the complexity of its relationship with and ‘constitutive’ role within the framework of capitalist society.

Footnotes

Author notes