The Emancipatory Potential of Law

Legal Struggles: A Social Theory Perspective on Strategic Litigation and Legal Mobilisation

“…In our view, a fundamental concept of society is required to complement the fruitful existing empirical research and theoretical approaches of legal sociology, and thus capture the multiple and interlinked political, economic and cultural factors influencing legal struggles. These are the dimensions that determine both the emancipatory possibilities and the limits of juridically based strategies considering the relational autonomy of the law vis-à-vis the social context (Adorno, 1965(Adorno, /2018Buckel, 2020). Legal mobilisation does not take place beyond social constellations of power, nor is it self-perpetuating, certainly not the collective legal mobilisation that is created by progressive collectivities.…”

“…Secondly, our legal-theoretical considerations follow from an understanding of capitalist society which advocates that the seemingly natural social context is not simply produced by the value form but rather requires further social forms or cohesion technologies (Buckel, 2020: 228–252). In addition to the exchange form, the political and the legal form also process social antagonisms.…”

“…What they have in common is a shared mode of substitution, growing autonomy and the outward bond that they create between individuals. In the same way that, for example, commodity-producing work becomes abstract work, work sans phrase , concrete individuals are transformed into abstract legal subjects in the legal form (Buckel, 2020: 128). The legal subject seems to precede the law and merely to be regulated by it.…”

“…Contrary to orthodox Marxist views, here the law is recognised as possessing its own materiality and meaning as a field – or a social form. It exhibits relational autonomy and thus a high degree of societal independence (Bourdieu, 1987; Buckel, 2020). This institutionalization of law is, however, highly ambivalent: When social struggles enter the juridical field, they are transformed in order to fit the autonomous logic of the law: legal procedures, legal doctrine and juridical subjectivation appear as mere legal techniques.…”

“…Our contribution intends to propose a social-theory-based understanding of struggles in and around the law by bringing in a perspective that is critical of the capitalist relations of domination ( Herrschaftsverhältnisse ). Moreover, at the centre of our analysis is the concept of ‘struggle’, which is a key category of social theory (Adorno, 1965/2018) and particularly important for the analysis of law since it underlines the fact that social contradictions and antagonistic interests are specifically expressed in the juridical field – a place of legal struggles – which is defined by its procedural logics and technical conditions (Bourdieu, 1987; Buckel, 2020: 242–244).…”