How Autonomous is Law?
Posted: 6 Dec 2007
Socio-legal scholars forever debate whether law is the product of internally constructed rules, procedures, and rationales or an effect of external social forces and interests. Traditionally, the debate pitted formalists who defended law's actual autonomy against instrumentalists who claimed law was a creature of exogenous circumstance. The debate was transformed in the later twentieth century, first by fundamental refinements in Marxist theory that produced structuralist accounts of law's relative autonomy, then by poststructural innovations in critical theory which held that all discourses (including law) were epistemically autonomous. Parallel formulations claimed not only that law was autonomous but also that law was in fact constitutive of the very social circumstances once held to determine its development. This article reviews the highlights of the debate while adopting a perspective outside it. It treats the autonomy question as relational - if law is autonomous it must still be autonomous in relation to something - and asks in relation to what? All sides in the debate assume the answer is society, so the article asks how the social became law's relational other and what other relationalities might be brought into play.
Keywords: relationality, Marxism, theory, history, justice, law
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