Judicial Politics in an Age of Democratic Contestation

Author : Dr Dr Carolina A. Vestena The relationship between law, collective mobilisation and social movements is inherently ambivalent. If we consider the history of social movements that have shaped critical theories of law, we see that these studies are characterised by a dialectical logic: on the one hand, legal instruments and the grammar of rights lend legitimacy to political demands. Conversely, the juridification of social conflicts threatens the legitimacy of political decision-making and often leads to the depoliticisation of political struggles. Current progressive struggles concerning labour conditions in the global economy express their interests by invoking the law, yet remain on the margins of the legal field. The inner logic of law determines the conditions under which social antagonisms are processed in legal terms, i.e. how collective actors are legitimised to bring their demands into the legal arena. This central question, which was already a topic of critical legal theories (ex. Ingeborg Maus and Duncan Kennedy), is gaining new momentum in academic research, particularly in light of growing authoritarian tendencies at the executive level and movements' repertoires of civil disobedience. In order to understand the interplay between political action and the legal arena during times of democratic crisis, I propose an analytical matrix for social movement-oriented research of legal mobilisation processes. This matrix is based on materialist and field-theoretical approaches to law, as well as a critical tradition of social movement research. At an analytical level, it provides a theoretical framework for analysing the ambivalent effects of collective legal mobilisation as a resistance tactic on the margins of the law.