Author: Rhys Aston
Aston, Rhys, 2020 Inviting New Worlds: Jurisgenesis, Anarchism, and Prefigurative Social Change, Flinders University, College of Business, Government and Law
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One of the central and most persistent themes of critical legal theory concerns the tension between law, power, and social change. Taking as a starting point a thorough interrogation of the nature of law, I argue that a reconceptualization of law — one that militates against essentialism and draws attention to the emergent vitality and plurality of law — provides unique opportunities to rethink the politics of law. It allows for a radical opening of the potential sites, sources, and participants involved in law, and brings to the fore the possibility for creative enactments and reimaginings of law. As conventionally understood, law may reflect broader social structures and relationships of power, but to what extent is it possible to enact alternative visions of law, visions which are less hierarchical and exclusionary?
In order to reconceptualise both law and forms of resistance to law, I draw on theoretical traditions which in different ways can be used to highlight the life of law. In the context of social theory, this includes neo-vitalist and neo-materialist theories that reject representational and static models of the world, emphasising instead immanence, becoming, creativity, and ontogenesis. These ideas are explored and applied in the context of law through socio-legal theories including legal pluralism (in particular those approaches which emphasise jurisgenesis), legal consciousness studies, and law in everyday life literature. I argue these provide solid foundations for thinking about law in more open, generative, and plural ways. Finally, I examine the political implications of this through an engagement with anarchist (and postanarchist) theory.
I contend that there are strong synergies between these approaches and that the emphasis on performativity and the possibility for constructing alternative enactments of law sit well with anarchism’s focus on prefigurative political action and scepticism of representation (both political and philosophical). Additionally, I argue that anarchism can provide a valuable and explicit ethical framework that promotes a participatory politics, resists philosophical and political essentialism, and eschews centralised and hierarchical political structures. I trace the theoretical connections between these different approaches, reading them ‘diffractively’ and highlighting their continuity and relationality.
In this unashamedly affirmative critical project, I attempt to push beyond the limits of a simply negative critique and bring law to ‘life’, drawing attention to the ways in which all people (including the theorist/researcher), participate in the creation and negotiation of plural legal worlds.
Keywords: law, legal theory, jurisgenesis, legal pluralism, anarchism, new materialism, prefigurative politics, everyday life, legal consciousness studies, fractiverse
Subject: Law thesis
Thesis type: Doctor of Philosophy
Completed: 2020
School: College of Business, Government and Law
Supervisor: Margaret Davies