Strategic Implications of Legal Constitution: Between Necessity and Contingency

Abstract

Abstract This article offers a novel perspective on the ‘constitutive role’ of law and discusses the contribution that such a perspective can make to our understanding of law’s potential role in radical political struggles. It suggests that a distinction should be drawn between the necessary dimension of law’s constitutive role—the fact that law is one of capitalism’s necessary power relations—and the contingent dimension of that role—the historically variant ways in which those relations have been institutionalised, and the legal form of power given concrete expression. The article shows how this distinction can help refocus questions about the role of law in radical political struggles and can help inform strategic decisions about whether, when and how law might be mobilised in the context of such struggles, including how law might be used in explicitly subversive ways.