In his recent post about the LPE Movement’s reticence toward legal theory, Sam Moyn speculates that this aversion may be born of a noble yet misguided deference towards grassroots social movements. The notion of deference, however, does not capture the dynamic relationship between critical legal theory and radical political practice. One does not precede the other or take priority. There is a constant back-and-forth due to the inherent gap between the negativity of critique and the positivity of political praxis, between the destituent and the constituent, between deconstruction and reconstruction.
Only radical political experimentation in constant confrontation with critical theory can overcome the chasm. This does not mean that legal theorists become “practical servants of the masses.” It means they have a crucial role alongside organizers, activists, and revolutionaries—and for some, in those roles—to negotiate the generative space of critique and praxis.
A Ruthless Confrontation
Models of this productive back-and-forth can be found in the work of some of our most important critical thinkers. W.E.B. Du Bois’s legal critique of convict leasing and prison plantations in the postbellum South—and, more generally, his theory of how the criminal law supplanted property law as the primary tool to reestablish conditions of slavery—were instrumental to the development of a political praxis of African-American cooperation; vice versa, the many forms of cooperation within African-American churches, schools, worker cooperatives, insurance mutuals, and even Black secret societies that Du Bois meticulously documented in his 1907 study Economic Co-operation Among Negro Americans infused his proposal for an African-American cooperative society “separate from the national economy and mainstream labor.”
Angela Davis’ legal critique of the distinction between common law and political prisoners and, more generally, her deconstruction of the link between crime and punishment in the early 1970s gave impetus to prison industrial complex (PIC) abolition in the late 1980s and the formation of Critical Resistance by Davis, Rose Braz, Rachel Herzing, and others. In the other direction, novel transformative justice practices (including community accountability processes, truth and justice memorials, and participatory defense for survivors of domestic violence) have contributed to abolition feminist theory, as evidenced in the writings of Amna Akbar, Sarah Haley, Mariame Kaba, Ruth Wilson Gilmore, Derecka Purnell, Dorothy Roberts, and others.
Similarly, Michel Foucault’s critique of criminal law—captured succinctly in his argument that “the penal law is from top to bottom political”—as well as his critiques of popular tribunals, of the legal status of political prisoners, and, more generally, of knowledge formation, shaped the form, structure, and practices of the Prisons Information Group (GIP). Eschewing Jean-Paul Sartre’s model of a people’s tribunal, the GIP instead gave a bullhorn to incarcerated persons and the means to conduct inquiries. Vice versa, Foucault’s engagement in the GIP transformed his analysis of the prison from a repressive to a productive force and gave birth to the concept of a political economy of the body. As Foucault, Jean Genet, Gilles Deleuze, and others helped to organize Intolerable inquiries and to publish the words of those inside the prison—including George Jackson’s in The Assassination of George Jackson, released by the leading French publishing house Gallimard less than three months after Jackson was gunned down by prison guards at San Quentin State Prison—their collective praxis shaped Foucault’s Discipline and Punish, a book intended for users, for practitioners, for those engaged in political struggle. “I write for users, not just for readers,” Foucault maintained.
That book and writings by Bobby Sands, Cesar Chavez, George Jackson, and others—all of them shaped by radical political praxis—would be read, debated, critiqued, torn up and passed through vents and cracks of prison cells around the world, including at the SHU (Security Housing Unit) at Pelican Bay State Prison in California, where the men of the Short Corridor Collective, held in solitary confinement, formed a clandestine reading group and formulated new understandings of the ways in which the prison authorities were using their racial identities to control them. It was a journey that ultimately led to the country’s largest ever prison hunger strike in 2013, involving more than thirty thousand women and men throughout California prisons. Those hunger strikes then inspired even more abolitionist theory and practice.
The dynamic relationship between critique and praxis continues to this day. It is impossible to imagine the Summer 2020 protests without Critical Race Theory and Abolition Feminism, and their analyses of antiblackness, intersectionality, racial capitalism, and the police-and-prison-industrial complex. If one listens closely today, for instance, to Kali Akuno, co-founder of Cooperation Jackson, it is evident that his legal critiques of Mississippi’s incorporation statutes and private property regime, as well as his critique of the legal structure of earlier efforts by the Provisional Government of the Republic of New Afrika to build a self-determining community back in the 1970s, contributed to the creation of the Fannie Lou Hammer Community Land Trust (CLT) that presently includes more than 40 parcels of land in West Jackson. In turn, the practices of community land trusts, building on earlier experiments by the SNCC movement, fuel rich critical theorizations of the common, as reflected in the remarkable collection Jackson Rising Redux.
Situated Critiques of Law
Critical legal theories saturate these political struggles in a constant back-and-forth with political experimentation. For decades now, or rather centuries, critical legal thinkers have dissected the myriad ways in which the law brings about domination and exploitation in so-called capitalist societies. From Marxist critiques of rights to the American legal realist focus on duress, Frankfurt School analyses of state capitalism, critical legal studies’ take-downs of reborn formalisms, Foucaultian theories of “illegalisms,” queer theory challenges to sexual regulation, critical race theories of how law participates in “race-ing” society, postcolonial frameworks of empire, to the various strands of the Law and Political Economy movement today, powerful critiques of law have amply demonstrated how legal practices and institutions enable, contribute, construct, solidify, and reconstruct hierarchies in society—racial, class, gender, sexual, and other social orders. And the clash between critique and praxis constantly generates new frameworks, such as Katharina Pistor’s writings on the code of capital, Katherine Franke’s work on racial endowments, Kendall Thomas’ explorations of racial neoliberalism, or Jack Halberstam’s trans* manifesto.
These critiques of law operate at different levels (some at the surface, more instrumentally, and others at a deeper epistemological level) and have different focal points (race, class, caste, gender, sexuality, disability, and more). Some demonstrate that law can serve as a tool, instrument, or weapon deployed in political struggle, but remain subservient to other forces that drive history, such as the legacy of slavery and political economy. Others show how legal ideals can become internalized and form part of a hegemonic ideology, regime of truth, or legal consciousness that shapes who we are as contemporary subjects. They also highlight different mechanisms of power.
The fact that they often clash in the abstract does not mean that they contradict each other, so much as they complement each other. They work best in different historical conjunctures and capture different ways in which the law produces and reproduces social hierarchies. In some political battles, queer theory may be more pertinent, in others critical race theory may provide more insight, in still others class conflict analysis may be more powerful. The same goes for the differing levels of analysis—thick or thin. In some political contexts, law simply is being used instrumentally to impose a political outcome—as with the “major questions doctrine” that the conservative supermajority at the Supreme Court has recently used to gut progressive climate change or student debt initiatives, or their “shadow docket” in death penalty cases that enables executions. At other times, legal ideologies—such as, for instance, the illusion of free markets, of systems analysis, or of liberal legalism—operate at a deeper epistemic level.
One need not embrace Marx’s philosophy of history to acknowledge that the dual receptions of his critiques of law—thick and thin—still influence the contemporary space of critical legal thought, though they do not confine it. At one end, law operates at times as superstructure—a quite literal interpretation of some of Marx’s writings, from his early essay On the Jewish Question (1843) to his Preface to A Contribution to the Critique of Political Economy (1859) where he coined the term “legal and political superstructure,” to the last, Critique of the Gotha Program (1875), where he argued that “legal relations arise from economic ones.” At the other end, starting at least with The German Ideology (1845-46), law often operates at the deeper epistemological level that Gramsci proposed in his reading of Marx: legal ideals become internalized, hegemonic, and begin to shape the way human subjects view the world. They legitimize existing forms of domination; eventually, there is no need for outright coercion because everyone toes to the hegemonic ideas. As Foucault observed, “political and philosophical debates begin within the horizon generally defined and coded by Marx.” I would add, legal debates as well.
Our task, then, is to ruthlessly confront political praxis and experimentation with critiques of law and vice versa—a continuous back-and-forth in which each one challenges, checks, and transforms the other. To be sure, certain strands of contemporary critical thought, like Afropessimism, radical deconstruction, or destituent theories, eschew reconstructive projects; but even there, their merciless confrontation with political praxis is extremely generative. Afropessimist theories of antiblackness, for instance, unquestionably gave momentum to the movement for Black lives.
In these critical times, there is no need to wait for a new social theory of law or legal transformation. Those will emerge organically—and shift organically—from the ruthless confrontations of critique and praxis. There is no reason either to systematize the critiques into a totalizing legal theory, or to impugn some at the expense of others—say, the post-structuralist critiques of law, as Ntina Tzoulvala seems to suggest. There is simply no need to tidy them up into a system. As Adorno argued already in 1931, the systematic and total theories of nineteenth philosophy are things of the past. “Philosophy,” Adorno said, “must learn to renounce the question of totality.”
The task ahead is to deploy the most productive critiques in the right historical context for specific political struggles. This is not simply pragmatism, pluralism, or liberal tolerance. It is a combative, engaged, reflexive posture, critical in its orientation to knowledge and power, that constantly struggles to deploy the most formidable legal critiques to fit the exact historical and political conjuncture—and that allows new ones to emerge organically from the ruthless confrontation. Most importantly, it is a commitment to keep our eyes on the prize and know our real adversaries, who are lurking outside these debates over critical legal theory and radical political praxis.