Abstract
In the existing literature on depoliticization, the increasing use of law as a medium to tackle social and political issues is deemed to be detrimental to the legitimacy of political processes. Against this view, I argue that this trend – which some scholars call ‘juridification’ – can be key to giving life to new forms of politics. First, I show why juridification is a political more than a legal process. Second, I illustrate recent critiques of the dangers inherent in the particular type of juridification that involves the growing use of rights. Third, while concurring with these critiques, I make the case that other facets of juridification are often underrated that can ignite a novel kind of politics. On this account, I go on by elaborating on the idea of self-organization of social groups vis-à-vis the state that is entailed in this notion of politics. Finally, I discuss the recognition of non-conventional family networks to exemplify how a politics of juridification could work. The conclusion is that, while juridification calls for a thorough revision of the tasks of politics, it does not thwart it. Rather, traditional representative politics could and should take stock of how it involves social actors in the creation of new bodies of regulation.
1. Introduction: Juridification as a kind of politics
Juridification can be concisely described as the growing use of law as a medium to tackle a variety of social and political issues that were traditionally addressed by legislative and administrative action. As I will clarify in this article, such a broad definition fails to capture one of the key characteristics of today’s juridification: It is not as much a legal as it is a political phenomenon. As such, it is my claim that it is to be studied as the vehicle for a novel kind of politics. Yet, most scholars consider it as evidence of an increasing depoliticization (see e.g. Benbow 2018; Davis 2010; Jessop 2014; Loik 2014). 1 The law takes over politics, legal institutions take over parliamentary institutions, elections and representation turn out to be emptied out. At a domestic and international level, this eventuates in the increase of formal law, the expansion of legal procedures and the proliferation of transnational legal rules imposing limits on domestic policymaking. As Bob Jessop (2014) points out, enlarging the scope of the legal is instrumental in redrawing the dividing line between the political and other non-political spheres – most often to the advantage of the latter.
The importance of juridification can hardly be exaggerated. While it bears resemblance to more traditional phenomena of democratic institutional settings such as judicial activism and judicialization, juridification marks a broader change in the relation between representative politics and the legal field. In analysing various types of judicialization, Ran Hirschl (2004, 2006, 2008, 2010) captures a distinctive trait of what he dubs ‘judicialization of pure politics’. He submits that this more recent type of judicialization – which I will rather refer to as ‘juridification’ for the reasons that I will discuss in the next section – is different from preceding types in one main respect. Traditional forms of judicialization can be regarded as an ‘intrusion’ into politics from the outside. Judges (are said to) have a political agenda that lacks democratic legitimacy and seek to implement it through judicial decisions (see Thomassen 2012). In doing so, judges (are claimed to) overstep their competences to the potential detriment of political institutions. In short, traditional judicialization puts politics under siege. On the contrary, Hirschl suggests, the judicialization of pure politics bespeaks an inner transformation of politics – one that is favoured by both political agencies and citizens who have recourse to law. He uses the label ‘pure politics’ because courts are called upon to deal with issues that traditionally pertained to political institutions, such as foundational individual and collective identity issues. In this frame, courts, and especially constitutional ones, become ‘important forums for defining the very nature of the body politic’ (Hirschl 2010, 104). Here lies the distinctive feature of this special type of judicialization: It is politics itself as well as citizens that call on the judiciary to take care of traditionally political issues. The legal field becomes the venue where citizens articulate their claims relating to such fundamental issues as their culture, race, sexual orientation, faith, habits of consumption and so on (see also Comaroff 2009).
As I noted at the very outset, I want to take up this claim and argue that juridification is an essentially political phenomenon. For it ignites a transformation of the political sphere prompted by the citizens’ use of law as a political means to political ends. Juridification is a process whereby political issues and claims are turned into legal issues and claims for them to be fulfilled in a more effective and efficient manner. This is a first sense in which politics gets juridified: The language and structure of the citizens’ demands change to fit legal procedures. However, there is a second, arguably more relevant sense of the term. Not only are issues and claims transformed, but also the broader understanding and perception of what the fundamental goals of politics are. As it gets juridified, politics ceases to be the place where a project of common life can be negotiated and fostered to become the venue where citizens can gain both political visibility and political agency. While I will expand on this aspect below, what counts for now is that juridification is not the mere revision of the boundaries separating the political from the legal, nor does it simply concern the way politics is made within courts. More than this, juridification is a far-reaching change of how politics is enacted through law. In this regard, it is a particular kind of politics that is carried out within courts but exerts decisive effects well outside them.
Based on this understanding, the gist of my argument will be that juridification is not tantamount to depoliticization. Unlike scholars who straightforwardly reduce it to the transferal of political power and competences to bodies that lack political legitimation, I believe juridification can give life to a different form of politics that certainly transforms but does not necessarily impair political processes. Similarly, it alters the conventional relation political and legal procedures but does not necessarily harm people’s political agency. In the subsequent sections, I explore a few elements that make juridification an effective political means. In Section 2, I present a few concerns relating to the use of rights for political purposes. This is of course but one aspect of juridification; yet, it is one of the main concerns within recent critical accounts of how the law affects those who have recourse to it. While I agree with these critiques, the rest of the article tries to enlarge the analytical scope to cast light on other aspects of juridification that could lessen the risks identified by critics. Section 3 discusses an institutional notion of organization that implies an alternative view of the tasks of politics vis-à-vis social groups. Section 4 specifies how and to what extent this alternative approach to the functions of politics requires rethinking the state’s orientation to social life. Section 5 brings out the idea of the social that animates such a new understanding of state politics. Finally, Section 6 examines the case of non-conventional family formations to offer an example of how a politics of this kind could work. The article concludes by considering the potential advantages of a new kind of politics that does not exclude and rather supplements traditional ones.
2. Critical accounts: The detrimental effects of using law as a political means
Before I embark on my defence of the political nature of juridification, it is vital to illustrate briefly what recent critical accounts of it believe to be detrimental to politics. Those who think that politics within liberal states is being harmed by the growing use of legal instruments for political purposes primarily concentrate on the intensive recourse to rights as a legal recognition mechanism. One of the most influential contributions, Wendy Brown’s (2000, 232) analysis of rights as ‘paradox’, insists that ‘rights that entail some specification of our suffering, injury, or inequality lock us into the identity defined by our subordination, while rights that eschew this specificity not only sustain the invisibility of our subordination, but potentially even enhance it’. Although Brown here is referring to women’s rights in particular, her point can be said to apply to rights in general as a means to the end of recognition. The condition of women having recourse to rights for legal recognition and protection is the same as for all subjects who belong to oppressed and marginalized social groups, such as cultural minorities, unconventional sexualities or undocumented migrants.
According to Brown, while rights favour the recognition of social agents as liberal subjects, being a liberal subject ‘requires that women abstract from their daily lives in the household and repudiate or transcend the social construction of femaleness consequent to this dailiness’ (184). This paradox risks turning into a pragmatically ineffective and symbolically expensive trap. On the one hand, rights tailored to specific social conditions reify and crystallize the identity of people living in those conditions. On the other hand, as instruments that claim to cast light on universal liberties that naturally pertain to all citizens, most rights schemes fail to redress the condition of exclusion of their bearers. 2 The symbolic and political cost is doubly high. This type of recognition entails a self-surrender to a model, enshrined in state law, that has long contributed to those people’s subjugation; at the same time, those people’s acceptance of the reified model that rights embody forces them into a normalizing path.
With reference to Brown’s critique and its forerunners – in particular, the classic version advanced by Friedrich Engels and Karl Kautsky against ‘juridical socialism’ – Daniel Loik (2014) places emphasis on the depolicizing consequences of rights gained through litigation. Social groups and movements that seek to achieve legal recognition and symbolic redress through rights contribute to drawing political attention away from the genuine roots of exclusion, oppression and abjection. A sort of negotiation is obtained whereby a new state-sponsored normality is produced as it feeds into the law: ‘The juridical worldview becomes, once again, ideology’ (773). This unearths the twofold risk entailed in the growing expansion of legal protections, most often invoked by marginalized groups themselves: Newly recognized and protected groups of people get normalized and, paradoxically, on account of this, other groups are excluded.
As four decades or so of queer critique has abundantly demonstrated (especially but not only) with reference to the quest for sexual rights, political battles carried out within the legal field with legal instruments are dangerously ambivalent. They recognize and misrecognize at one and the same time. Although I will get back to this ambivalence later on, in this preliminary discussion of the critiques of juridification it is worth summarizing the gist of this argument. Rights that legalize and protect certain conducts or forms of life tend to naturalize them and thus to efface the political character of all types of inclusion and exclusion. This is the case with legal measures accommodating same-sex sexuality when it is presented as deserving legal protection because it is ‘as natural as’ opposite-sex sexuality. In addition, liberal rights perilously confine same-sex sexuality to the sphere of private life and individual preferences, and thus rob it of its defying and erosive grip on taken-for-granted models of life. At the same time, however, rights surreptitiously exclude others because recognition is hardly neutral. As Michael Warner (1999) has persuasively demonstrated by analysing the inadvertent effects of legalizing same-sex marriage, legal recognition mobilizes law’s ‘selective legitimacy’ (82), whereby the state gets to ‘regulate the sexual lives of those who do not marry’ (96). Whereas erstwhile political critiques of marriage uncovered the flaws and biases of the traditional sexist and heterosexist culture, marriage obtained through litigation allows institutions to confer legitimacy on certain types of unions and to revise the boundaries of legitimate normality.
In sum, as a swath of studies has cogently argued, it is the instrument itself of rights that yields these undesired consequences (instructive book-length analyses are Menke (2015) and Spång (2018)). In other writings (see Croce 2018a; Croce 2018b; Swennen and Croce 2016), I concurred with this critical literature that the way rights and other forms of legal recognition operate can jeopardize politics, because they are based on the mechanism of legal labelling and the looping effect it ignites. The legal categories that are evoked to account for particular conditions affect the identity and self-perception of those who mobilize those categories. In doing so, law empowers but transforms, recognizes but alters, includes some people and groups and excludes others. In what follows, however, I do not want to go down this critical road. Rather, mine will be a positive, constructive argument for other aspects of juridification that can counter its normalizing tendencies. In this sense, my argument aims to overcome the impasse of the Brown paradox: Should one take advantage of the effectiveness of legal means or should one refuse to endorse the ambivalence of legal recognition?
I will argue that juridification can take another form, one that sidesteps the usual type of recognition based on legal labelling. Law ceases to be a social filter with normalizing effects and becomes an active instrument of normative production. Before I show how this type of juridification should work, let me dig into the theoretical basis of this view.
3. The plural nature of organization
While acknowledging the detrimental effects of legal recognition examined above, in other contexts (Croce 2015b; Croce and Swennen 2020; Swennen and Croce 2016; Swennen and Croce 2017) I made the argument, also based on other studies, that these effects mostly depend on a specific way the law is used within contemporary legal systems. If it serves as a recognition-conferring tool founded on pre-existing legal labels, the law eventuates into a filter that includes and excludes. Yet, jurisprudential accounts that foreground the multifaceted nature of law argue the case that this is not the only way it works. Other modes of functioning exalt the political character of people’s use of legal means and allow rejecting the simplistic equation between juridification and depoliticization. I would now like to elaborate on this perspective to bring out facets of law that help escape the paradox I discussed in the previous section and open the door to other uses of law. As I will explain, advancing this view also requires rethinking key aspects of how society organizes itself and how self-organization activities feed into the legal order.
To commence, it is worth drawing out the notion of the political embedded in the so called ‘classic legal institutionalism’ 3 – a theoretical paradigm that at the beginning of the 20th century was particularly influential among political and legal theorists. Classic legal institutionalism should not itself be treated as a homogeneous theory. For its advocates disagreed on key aspects of the nature of law and its relation to the political sphere. Despite this, an element that is common to all of them it is that the law of the state only reflects a limited portion of the legal life of the myriads of sub-state groups that have an inner normative life of their own. To put it briefly, the law embedded into the constitutional framework is nothing but an abstraction, a reduction and an approximation. While this conclusion could also be supported by authors who do not belong to institutionalism (see e.g. Shachar 2001), most classic institutionalists held a more radical view related to it. According to them, if it is the case that official laws are abstractions, reductions and approximations, then nothing justifies their supremacy over other sub- or supra-state legal orders. This conception, which is generally referred to as ‘panlegalism’ (see Melissaris and Croce, 2017), is a radically pluralist theoretical model arguing that law is all that organizes the life of stable groups (or even the relationship of two or more individuals, as claimed by the most radical institutionalists). 4
It would be pointless in this context to give further details about this conception as a jurisprudential paradigm. For present purposes, it is more interesting to tease out its political import. If the law does not really condense and consolidate a shared societal project – as it cannot obviously reflect the needs and orientations of all the legal orders of all the societal groups – then its political role should be radically revisited. The values and principles entrenched in the constitution work as a filter, a sieve: They reflect the normativity of a few prevailing groups whose values and principles are de facto established as enforceable. This realist tenet comes with a more sociological one, stating that those groups whose values and principles are not (or only partially) embodied by the constitution continue to govern themselves in keeping with their inner (legal) orders. Most social conflicts are nothing other than the manifestation of the conflicts between orders.
In the present context, I am particularly concerned with the legal-institutionalist paradigm advocated by Italian jurist Santi Romano. In 1918, he put forward a seminal theory of law that prima facie claimed not to have any bearing on politics. In his masterpiece The Legal Order (Romano 2017), which is coming back to the fore in many Anglophone debates, 5 he wrote that he wanted to advance a theory of public law that could overcome the flaws of existing theories. His overt objective was to provide jurists with a conception of the legal order that could make sense of law as a foundational phenomenon. However, his theory (implicitly) comprises an account of politics that is key to understanding juridification in the sense that I specified above. Therefore, it is worth discussing it in some detail.
For Romano, law is organization. All the various elements that are invoked to qualify the law’s distinctive nature – such as legitimized coercion or the courts’ activity – are ancillary to its organizational nature. More precisely, based on Romano’s view, ‘law’ is a label that can be used for referring to the ensemble of knowledge, norms and procedures that govern a given group of human beings. A legal order is nothing but the normative scaffolding that makes sure that the life and survival of a given group be independent from the life and survival of its transient members. In this sense, there can be various substantive characteristics of a legal order, such as its formality, specialization, the nature and scope of its sanctions, the existence of dedicated bodies administering its procedures and many others. However, what makes it a legal order is its organizational structure. This becomes independent from the activities of the group members, who in their turn conduct their own life (within the group) in compliance with its knowledge, norms and procedures. Importantly, this means that the term ‘legal order’ cannot be reserved to the state legal order. The latter is one legal order among the various legal orders of the various groups that exist in a given geo-historical context. From a theoretical standpoint, the state legal order cannot claim any superiority over the other legal orders, even those that the state deems to be illegal (such as the inner law of criminal gangs).
Interestingly, in Romano’s view, the state legal order’s claim to override other normative orders cannot be justified through traditional political devices, such as the social contract or the aspiration to generality. However, in ways that created some frictions with his hyper-pluralist understanding of law, Romano sought to vindicate the priority of state law over other laws. One way to make theoretical pluralism and the state priority compatible was to revise thoroughly the role of state law in the life of a political community. Certainly, Romano insisted, state law could no longer be depicted as a shared set of rules that governs the inner life of all societal groups. This understanding would be untenable, because it is at odds with both the plural nature of law and the plural nature of the social. Rather, the legal order of the state is a venue where groups negotiate the interactions among their inner orders with a view to avoiding and/or solving normative conflicts. Therefore, state law does not enshrine any collective project or shared values. It is a bounded space where state personnel with specific expertise in various legal areas oversee the interactions and settle the conflicts among the various rules and principles of the various sub- and supra-state orders.
In summary, Romano introduced an institutional theory that defied the conventional view of politics, law and social normativity of his time – and that in my view proves key to understanding our present. Three points look particularly relevant to my argument overall. First, he theorized that all societal groups have a legal order of their own, and that the state legal order is one among them. Second, this notion questioned the separation between social and legal normativity: All entities that are organized are ipso facto legal entities. Third, this view of normativity affects how one conceives of the role of the state. It is neither the lawmaker nor a guarantor of a common view of the good, rather it comprises a series of technical, specialized agencies that make pluralism workable. The state’s main task is to make sure that the continuous emergence of self-organizing social groups and the practices they engage in do not engender the conditions for political conflict. This is why Romano insisted that the state legal order and its various apparatuses should always be conscious of the existing social practices that give life to stable groups with a legal life of their own. The succeeding section builds on these three points to clarify what idea of the state’s tasks this institutional view implies and how this helps understand the present.
4. Revising the functions of state politics
As I wrote above, Romano’s institutionalism serves as a good entry point to current juridification. Certainly, the socio-political conditions of the early 20th century were not the same as today’s. At the time, European states were developing an administrative institutional structure with an eye to more extensive state regulation over economic and social activity. Governmental intervention was growing, and national states were increasing administrative competences and strengthening the governmental function. At the same time, also because of the expansion of the administrative state, many social and political movements began to challenge these governmental developments and to advance alternative ideas of the relationship between groups and the state. 6 These movements – more or less organized, more or less violent – had an impact on public policy and the socio-economic organization of the state. In short, a contradictory tendency marked the political scenario in which Romano was immersed: The expansion of the administrative state was confronting the rising claims to autonomy of organized social groups.
But how can Romano’s institutionalism be of aid in analysing present-day juridifying trends? Critical accounts that I summarized in Section 2 emphasize how today’s push to liberalization leads national governments to include private enterprise and non-governmental organizations into various phases of policymaking. As a result, the distinction between the private and the public fades away while the separation of powers ends up being completely subordinated to goal-oriented governmental practice. In this regard, the socio-political scenario is remarkably different than Romano’s. However, one element looks strikingly similar. As Foucauldian scholarship elucidates, current governmental trends are inspired by a double device based both on the government of the others and the government of the self (see e.g. de Beistegui 2018; Lorenzini 2018). It combines discipline, which operates authoritatively, and the freedom of the subject on whom it is imposed. And it is precisely the government of the self that introduces various processes of self-organization on the part of the citizens. As Aihwa Ong (2006, 27) suggests, ‘specific technologies of governing and of self-governing produce a variety of meanings and room for maneuver, negotiation, and ethical doubt’. Whether or not this gives way to further forms of subjection and/or subjectivation, 7 in most Western countries, present-day politics promotes activities of self-organization whereby citizens construct segmental identities based on their interests and needs. Below I will discuss an example relating to the organization of family formations. Before doing this, however, I would like to justify the plausibility of my use of Romano’s theoretical framework to pinpoint this trend and how juridification is involved.
Let’s stick to the crux of his conception of the legal order. For the sake of my argument, two main assumptions can be isolated. First, a legal order is a set of knowledge, rules and principles that organize the interactional patterns of a particular group of individuals. Its rules and principles can be more or less formalized; its knowledge can be more or less specialized and separate from everyday knowledge. These substantive characteristics vary depending on the concrete context and its actual organizational needs. Still, it is the fact itself of there being a normative formal structure that qualifies the entity and how it turns into a legal entity. If this is so, then a given geo-historical context can be characterized by the presence of many legal orders, while individuals can be members of many of them, depending on the degree of complexity of their social life. ‘Society’ is a shorthand for these intertwined orders that organize various and most often overlapping aspects of people’s existence. The hallmark of legal institutionalism, and Romano’s particularly, is that the state legal order can claim no normative superiority over these orders.
The second assumption of this institutional view is that the state and its legal order are not jettisoned by any means. Denying the normative pre-eminence of the state does not imply denying its valuable political activity. In many of his writings, Romano took pain to redefine the role of the state vis-à-vis the other legal orders – whether sub-national, international and supra-national. If there is a point in the state’s political function, this is to open up a space where the specialized knowledge of state law can be used as a platform for other groups to negotiate the interactions with the state and between them. An example from Romano’s The Legal Order can be of help. While discussing the reform of labour law, Romano (2017, 61–62) remarked that it is senseless for the state to turn a blind eye to the concrete relations taking place within the enterprise as an organized entity. The inner rules of an enterprise might well be unfair or inefficient, but this is no excuse for the state not to be knowledgeable about them. State regulation must get as close as possible to the regulation of the context it has to govern. A long quotation seems justified here.
Labour relationships have much more complex characteristics than those inadequately contemplated and regulated by the Civil Code in the few articles devoted to this matter. Without a doubt, these relationships, at least most of them, cannot be addressed by the existing law of the Italian state if not as contracts. It is no less certain that, despite the efforts and resources of the acutest dialectic, both doctrine and jurisprudence fail to put them under this rubric, if not by sacrificing some elements of these relations, or at least by distorting them. […] In my opinion, we are confronted with a two-sided legal phenomenon, which cannot be entirely explained unless we admit that it takes place at the same time and with different, perhaps opposite attitudes, within the respective spheres of two distinct legal orders. The one is that of the state, and in its eyes the figure of the contract is by and large the only one that is relevant. All that falls outside that figure cannot be protected by this order and even runs the risk of being declared illegitimate. The other legal order is the particular order that materializes within any institutions or more institutions constituted by the groups of entrepreneurs and workers. For state law, this is a contract; for the particular order, it works as a more or less autonomous system of law, which imposes itself with the means at the disposal of the organization and within the organization – means that for the state might be extra-legal or anti-legal, but, on the contrary, are legitimate for the special regime to which they refer.
The gist of Romano’s argument in this juncture is that for state law to be effective, it must be cognizant of the inner laws of the normative contexts that it claims to govern. The closer state law gets to the normative contexts it aims to regulate with its policies, the more effective the state regulation. The mere imposition of abstract rules that fail to capture the inner dynamics of the various groups is destined to be ineffective. In short, the rules of state law should enter various forms of interaction and integration with the rules of the other normative contexts that state law claims to override. It is first and foremost a matter of effectiveness.
Based on this, Romano’s institutional view evokes a thorough revision of the political task of the state. Its main function is to make use of its specialized apparatus and personnel to create contexts of integration and negotiation with the groups that it wants to govern. For Romano, only state law can fulfil this goal, as it is not the particular law of any particular group. Evidently, this conception betrays blind faith in the law’s capacity to overcome social conflicts and limited sensitivity to the dynamics of power that are always involved in the production of state law. However, for my purpose in this article, what counts is the interactional process that Romano had in mind. My understanding of juridification maps onto Romano’s notion of the law as a delimited space for the interactional practices of normative orders. On this account, the state is not so much a legislative machinery designed to secure a shared way of life. Rather, it is a reservoir of knowledge and competences that can be used to ensure the productive coexistence of groups. I wrote ‘productive’ instead of ‘peaceful’, because the state should not be simply regarded as a gigantic mechanism of dispute resolution. It is a place where groups and their normative orders interact and amend themselves based on this interaction.
5. The normativity of networks
In this section, I would like to propose an integration between Romano’s conception and more recent accounts of organizational dynamics that rely on the notion of network. In particular, the one advanced within actor–network theory (ANT) jibes with Romano’s institutional notion of the inner life of normative contexts in two main respects. 8 First, networks do not pre-exist the concrete activities that set them up – so much so that it makes no sense to develop a general theory of networks. 9 Second, networks are (at least partially) autonomous normative productions that have to be considered as social actors’ incessant activities of demarcation and consolidation of their own contexts. 10 All that exists, in this theory of the social, is the actors’ traceable activity as they establish and stabilize their own contexts. As John Law illustrates in a seminal article, one of ANT’s main tenets is the following:
If we want to understand the mechanics of power and organization it is important not to start out assuming whatever we wish to explain. For instance, it is a good idea not to take it for granted that there is a macrosocial system on the one hand, and bits and pieces of derivative microsocial detail on the other. If we do this we close off most of the interesting questions about the origins of power and organization. Instead, we should start with a clean slate. For instance, we might start with interaction and assume that interaction is all that there is. Then we might ask how some kinds of interactions more or less succeed in stabilizing and reproducing themselves. (Law 1992, 380, emphasis original)
This interestingly resonates with Romano’s notions of law as organization. If we take for granted that the law is a superstructure that allows a group to consolidate and outlive its members, then we dismiss a more detailed analysis of what the things are that these members use to produce their own law. In this vein, Romano rejected any definition of the legal order based on substantive characteristics and equated it to the operational activities that contribute to establishing the normative contexts of groups. In line with ANT, Romano’s legal order can be reduced to effects generated in patterned networks. 11 This applies to all macrostructures that are often invoked to explain what it is that stabilizes the interactions of social actors, such as society as a whole, power mechanisms and other familiar devices. Contrary to theoretical paradigms that utilize these general concepts, both Romano and ANT agree that social actors’ organizational stuff can be made up of heterogeneous materials that are assembled for different purposes at different times in different circumstances. This also explains why Romano thought it meaningless to try to determine once and for all the essential characteristics of law other than its organizational function. For sure, rules, coercion, procedures and tribunals can be relevant to there being such thing as a law. These traits, however, should not be taken as distinguishing marks of law in general – indeed there is no law in general. They make up law-stuff that assume various shapes and could, or could not, be included in this or that law within this or that group. The bare presence (or absence) of this or that trait does not qualify on its own an entity as legal, extralegal or non-legal. Therefore, law amounts to the activities and materials that are carried out within a particular normative context to consolidate its structure and coagulate certain patterns.
This understanding lays stress on the agency of the social actors who do the job of organization and consolidation along with the things they use to do it. Similarly, more recently Bruno Latour’s defence of ANT reinstates the methodological primacy of the actors’ activities. Against social theorists who make reference to macrostructures to make sense of what the actors do, he writes: ‘Let the actors do the job for us. Don’t define for them what makes up the social’ (Latour 2005, 36). His is a plea for a deep revision of the research activity of those who study the social. Theorists and researchers should not explain what the structures and mechanisms are that constitute the social, and then explain what the actors do with reference to those structures and mechanisms. Quite the reverse, they should focus on the traceable activities that the actors do to make and secure their interactional contexts. Theorists and researchers should never take it for granted that collectives exist. Rather, they should explain what makes them exist:
We have to restudy what we are made of and extend the repertoire of ties and the number of associations way beyond the repertoire proposed by social explanations. At every corner, science, religion, politics, law, economics, organizations, etc. offer phenomena that we have to find puzzling again if we want to understand the types of entities collectives may be composed of in the future. (Latour 2005, 248).
6. The case of family networks
I find this understanding of the social particularly fruitful especially if combined with the notion of politics that emerges out of Romano’s institutional conception of law. The question I would like to tackle in the remaining pages is the following: What if state politics and state law were (among) the instruments in the hands of social actors to consolidate the networks that they themselves create? What if state (and regional, supra-state) lawmaking could tap into these activities of consolidation to generate new normative bodies closer to the inner normativity of networks? By building on Romano’s view of law and politics, my proposal envisages a potentially virtuous circle between the normative activity of networks and how they could/should be recognized through institutional mechanisms that are more sensitive to the specificity of these networks. My discussion homes in on a topical phenomenon, that is, the recognition of non-conventional family networks 12 – a subject matter that I have explored in recent studies based on integrated socio-theoretical methods. 13 This example is particularly instructive for two reasons. First, non-conventional family networks are contexts where everyday practices yield normativity that can often be at variance with standard normativity enshrined in state law and policies. Second, this example suitably shows why and how a different model of recognition implanted on juridifying processes is likely to reduce the frictions between these networks’ normativity and the state’s.
Despite legislative and judicial advances in the recognition of once illegitimate relationship forms, in most Western countries, state policies and legal measures relating to the family are still principled on the normative model that Martha Fineman (1995) dubbed the ‘Sexual Family’. It is a bio-sociologically inspired matrix that encompasses a married heterosexual couple who raise their common children in one household to the exclusion of others. It is a model in which a variety of values and principles coalesce. Coupledom, mutual love, procreative sex, lifelong commitment, reciprocal fidelity and dyadic parenting are assumed to demarcate the borders of a social practice that feeds into the body of family law and becomes an enforceable standard. Queer and radical critics claim this standard is affected by some major biases that significantly limit its inclusive potential. In a way or another, all legal and policy reform that is founded on the Sexual Family upholds forms of ‘heteronormativity’, ‘homonormativity’ or ‘domestinormativity’ – for these legislative and judicial interventions tend to mould non-conventional phenomena in such a way that they might not pose any serious threat to the conventional family model. More than that, they channel socio-political transformation in a direction that could reinforce the latter. In doing so, critics continue, law and policymaking contribute to the normalization of relationship and sexuality forms by incorporating a standard against which novel family configurations are to be measured and regulated.
In short, there are ways to accommodate non-conventional sexualities that are certainly normalizing. This is the argument to which I alluded in Section 2. Queer and radical theorists convincingly criticize recent legal developments, as they claim that relationship-recognition models are reasserting conventional ideals about proper sexual and family relations (within an abundant literature, see classics such as Warner (1999) and Polikoff (2008) and more recent works such as Barker (2012) and Franke (2015)). The crux of this critical approach is that the recognition of minority (sexual) practices through existing institutions is affected by a twofold contradiction. On one side, legal recognition works both as a push for equality in terms of rights and benefits and as a disciplinary tool that erases the subversive element of alternative forms of sexuality (see e.g. Ruskola 2005). On the other, those who remain excluded are confined to the realm of the unspeakable (Butler 2004) and thus can still exert a critical force on the hegemonic matrix of respectable sex. Nevertheless, at the same time, this removal is instrumental in silencing what exceeds the grid of official legal categories, the power to leave them with no words to describe who they are and what they are doing (see Ritchie and Barker 2006).
While I explored in detail such critiques of (alleged) legal advances in other venues referenced above, what I would like to do in these final pages is to gesture towards a recognition model that circumvents those risks and explain why they can achieve this. This model capitalizes on juridification as a political method in the hands of social actors who have recourse to legal means. It also invites to drop the conventional model of recognition mainly based on rights that I succinctly described in Section 2.
As I stated above, juridification calls for a new sensitivity to the normativity of networks. In line with Romano’s conception of legal orders and ANT’s understanding of how contexts come about, the model I am advocating here should see all family networks as normative entities that produce their own knowledge, rules and principles. 14 What does it mean to make room for the normativity of networks? If we understand juridification as a process whereby social actors reach out to legal institutions to have their claims heard, legal institutions could and should rethink their activity in a way that opens spaces for social actors to verbalize what they do, how they organize their networks, what the symbolic and material resources are that they use to set them up and what they think they need in order to make it continue to exist.
In my view, such an approach is able to escape the paradox of rights because it does not provide recognition through existing legal labels but enlarges the notion of family based on the contribution of family networks. The law is not called upon to provide a ‘badge of respectability’ through inclusion into something that is already included in the legal body – as is the case with most current relationship-recognition regimes – but would first and foremost draw from the transformative potential of networks as they engage in negotiations with greater institutional networks such as the state apparatus. Their transformative potential lies in using law to negotiate the normative recognition of a body of normativity that could feed in many ways into the broader legal body and could extend the latter. On this account, official legal courts could become the space for verbalizing a set of needs and requirements that cut across a variety of contexts. Debates of this sort within courts would not only relate to self-interested, inward-looking concerns. Rather, they would be oriented to the creation of bodies of legislation that do not build on existing law and thus expand its inclusive scope. In preceding articles (Croce and Swennen 2020; Swennen and Croce 2017), I called ‘cont(r)actualization’ this relationship-recognition model to signify a movement from contacts to contracts. This is a movement by which legal institutions look into the concrete networks created by social actors to understand how they themselves create their points of contact. Cont(r)actualization takes stock of ANT scholars’ invitation to trace the connections created by the actors and not to impose on them any pre-existing normative tools that claim to define what those actors are doing. As far as non-conventional family configurations are concerned, legal recognition should work as an ethnographer who seeks to pinpoint the actual stuff that is involved in the creation of the networks whose members think that they should be officially recognized as members of a network. This recognition model uses juridification – viz., the increasing use of law as a political means – as an effective instrument to bring out the multiple ways in which social actors self-organize and how this self-organization can be consolidated with recourse to a legal proxy.
Thus, a cont(r)actual model is a juridified one in the sense that social actors temporarily become policymakers who do not simply consolidate their own networks. Indeed, the interaction with state agencies has the potential to construct bodies of regulation that can apply to other networks as the appropriate circumstances arise. In this frame, the state’s competences would not be either reduced or effaced. They would be rethought. The negotiations with the members of non-conventional family networks exceeding the conjugal couple could take place around a limited set of state-sponsored ‘modules’ containing a group of rights and obligations regarding personal and economic interdependency, with intensifying degrees. The protection and allocation of rights and obligations could then become non-binary, divisible and inclusive. A template could be devised wherein various modules are connected to state-recognized functions of all family networks. These modules could apply by default, while opting out per module could be allowed, except for a basic module of solidarity that would apply imperatively. What counts more is that the way these modules apply to the concrete networks depends on the negotiations between their members and state agencies. While the discussion of how this module-based allocation of rights and obligations would need more space, 15 what deserves attention here is the leeway for the people involved to arrange their network with the instruments of state law. Their recourse to official legal bodies would not merely turn into a way to circumvent the ineffectiveness of legislative politics. Rather, it would kindle a new kind of politics that could productively complement more traditional kinds.
7. Concluding remarks
The example of non-conventional family networks was meant to bring out the political potential of juridification, one that takes stock of critical voices but digs out more positive aspects of using law. Social actors involved in sub- and supra-state networks engage in negotiations that establish normative standards for the resolution of intra- and inter-group conflicts. By building on a view of the social as the cradle of numerous (and potentially conflicting) networks endowed with their own inner normativity, the idea of politics that I defended in this article deems juridification to be one of the ways in which people’s capacity to self-organize can be exalted and channelled. At the same time, the risks denounced by queer and radical critics is pre-empted because the recognition mechanism changes significantly: It does not admit formerly excluded people based on legal schemes that are already in place but enable excluded networks to expand existing law through normative negotiations.
Indubitably, the state cannot limit itself to serving as a mere register of existing networks and their organizational models. As I noted, the ethnographic approach I mentioned does not imply getting rid of the state normative functions. Furthermore, state recognition always involves some sort of selection. Hardly ever can state regulation be the mere collection of the multiple produces of social normativity. Despite this, the impracticability of full inclusion does not entail that politics amounts to exclusion. It is one thing to say that pluralism cannot be unlimited; quite another to say that exclusion is foundational to politics. The approach advocated in this article endorses the view that juridification as a political means involves limited degrees of people’s self-organization that could be key to revising state regulation in a more effective and inclusive manner.
Social actors become conscious law-users potentially able to exert effects on state policies. Self-organization becomes a resource for state politics. Fresh integration patterns would be promoted between legal courts and the legislative process. Certainly, this all significantly alters the way politics has been so far thought of within constitutional orders. But the time is ripe to turn processes that are regarded as forms of depoliticization into virtuous spirals of integrated politics, in which social actors can voice their claims and needs in more direct ways.
