The Conflictual Theory of Law: Towards a More Inclusive Understanding of Rights

By: Julius M. Rogenhofer

This post introduces an article recently published in Contemporary Pragmatism titled “The Conflictual Theory of Law: A Pragmatist Conception of Laws as Social Institutions”. The full text can be read open-access here: https://brill.com/view/journals/copr/17/2-3/article-p170_170.xml?body=pdf-33151.

The detention of migrants in cages on America’s Southern border, Syrian President Bashar Al-Assad’s use of chemical weapons against his own citizens, and the cultural genocide and mass-internment of Uyghurs in China sit uncomfortably with the international communities’ commitment to universal norms and standards of how governments should treat human beings. Despite the global crisis of human rights imagination and protection, a universalist justification for rights remains firmly entrenched in the institutional self-understanding of many of the world’s liberal democracies. In a particularly stark example, the Basic Law of the Federal Republic of Germany (Basic Law) mirrors the Universal Declaration of Human Rights (UDHR) in its commitment to ‘inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world’ (Article 1(2)). This natural law conception of rights as fundamental and a-priori has been equated with Germany’s entry into the community of Western democracies (Fraenkel 2011, 90) and to the origin of the German state (Rolin, 2005). Yet I contend that liberalism’s ahistorical and undifferentiated justifications of what are undeniably important principles for the protection of human life and dignity, including rights to privacy, family, nationality and political participation (Articles 12, 15, 21 UDHR), are unable to account for the pluralism intrinsic to social histories and human experiences.

The predicament of irregular migrants[1] exemplifies the inadequacy of universalist conceptions of rights and their safeguarding by legal regimes. Irregular migrants are typically confronted with insufficient human rights safeguards, both in their countries of origin and throughout their migration trajectory. Alleged universalistic rights remain dependent on their recognition in law and enforcement by nation states and are, thus, contingent on citizenship of a rights protecting state or on a state’s decision to protect the human rights of certain groups of non-citizens.The precariousness and vulnerability encountered by irregular migrants, even within the legal regime of their host-country, often coincides with restrictions on employment, constant threats of deportation, restrictions on mobility and, hence, highly conditional access to human rights protection. An absence of citizenship rights in the host-country further undermines each irregular migrant’s political voice and entrenches their subordinate status within the host-community. As such, universalistic justifications have left irregular migrants and other typically marginalised actors unable to articulate human rights claims or to define the types of legal recognition they seek within their (new) communities.

In order to counteract the universalist justification for rights intrinsic to natural law theory and the liberal paradigm, I suggest theorising laws as social struggles over meaning, in which socio-political actors create and circulate social knowledge both to justify their interpretation of legal rights and to institutionalise these interpretations as laws. In accordance with pragmatist commitments to radical pluralism and democratic participation, this theorisation, which I refer to in my article as the “conflictual theory of law,” accords significance to the rights- and recognition claims of diverse and fluid groups and challenges static conceptions of citizenship in favour of an open-ended participatory process. Thus,according to the conflictual theory of law, laws emerge as temporary solutions to social problems. These laws remain contested and are justified by their problem-solving ability for all those affected by the laws in question. Each justification is contextually situated and dynamic, in line with underlying societal change.

American Pragmatism’s rejection of epistemic universals paves the way for a processual conception of truth(s) arrived at through argument, experience and the convergence of reasoned opinion over time (Hookway, 2002). The commitment to pluralistic inquiry among a community of inquiries that is neither fixed (Peirce, 1974: 221) nor confined by rigid group identities (Bernstein, 2010: 69) allows the conflictual theory of law to challenge the justification for laws in allegedly static and universal legal “truths” in favour of the constant (re)negotiation of laws between social actors. Pragmatism enables researchers to connect epistemological aspirations of inclusive and pluralistic inquiry with a normative assessment of laws and law-production, prioritizing an  evaluation of whether legislative solutions to social problems were derived by inclusive, participatory and open-ended means.

John Dewey, one of the most influential 20th century pragmatists, views democracy as a continuously improvable practice, in which ‘deliberation of all those affected by a decision would be superior to any other possible method of inquiry’ and in which ‘normative practical inquiry must seek to extend the scope of political possibilities rather than simply accept the facts and the institutions that produce and stabilize them as fixing the limits of political possibilities once and for all’ (Bohman, 2010: 189, 199-201). According to Mead, a contemporary of Dewey at the University of Chicago, social reality as encountered by politicians, scientists or psychologists, emerges by ‘taking the role of the other’ (Da Silva, 2007). The legal change can either converge on pluralistic and inclusive ideals (for example by opening legal deliberation to affected but previously disenfranchised members of the society) or moving away from these inclusive ideals (for example by actively excluding directly affected members of the society from legislative deliberations).Pluralistic and inclusive practices create ideal conditions for the emergence of creativity and hence the continuous reconstruction of existing legal frameworks in ways that better meet the needs of society as a whole, including those previously excluded.

The conflictual theory of law aligns itself with the abovementioned pragmatist epistemology as well as the resulting democratic ideals defended by Dewey and Mead in order to advocate for the inclusion of all members of society that are directly affected by a law, whether they are citizens or not, within the legislative processes. This challenge to the citizen/non-citizen dichotomy harnesses the potential for creative social reform through inclusiveness and pluralism and corresponds with Mead’s conception of the ‘generalised other’ beyond national boundaries as well as James’ rejection of fixed group identities. In doing so the conflictual theory of law addresses the predicament that irregular migrants pose for universalist justifications of human rights and the question of access to those rights through what Arendt terms the ‘right to have rights’ within a nation state (1973: 296).

The precariousness and vulnerability encountered by irregular migrants throughout their migration trajectory often coincides with employment restrictions, threats of deportation, mobility restraints and, hence, highly conditional access to human rights protection. Arendt recognised that ‘the problem for the stateless was political membership […as…] without citizenship, refugees had no state to uphold their rights’ (Hirsch and Bell, 2017: 422, 425). As such, universalistic justifications leave irregular migrants and other typically marginalised actors often unable to articulate human rights claims or to define the types of legal recognition they seek.

The conflictual theory of law addresses the demands of irregular migrants within a nation state, as a particularly vulnerable segment of society, and makes the case for recognising and incorporating them into the negotiations that define the breadth and depth of human rights protections accorded by that state. This form of political membership is based on the irregular migrants’ presence within its territory and by the direct effect that the regulation of migration and asylum has on them. Political membership triggers a normative imperative to enter communicative relationships with irregular migrants; recognising and contemplating the predicaments and demands of irregular migrants within the legislative process becomes part of  intersubjective rights contestation. The normative implications of this form of communicative rationality emerge from its procedural commitments: ‘The solution of moral problems lies in being able to have the widest perspective possible so that all the conflicting points of view, interests, or ends are fully appreciated’ (Da Silva, 2007: 303).

Thus, a case can be made for including irregular migrants, members of their host communities and civil society groups that engage with migrants in the political deliberation and law-making processes that affect their condition within this (new) community. From this perspective, we can better recognise and include irregular migrants within a state’s political community and, hence, its contemplation of the ‘generalised other’. This form of political membership is justified both by irregular migrants’ presence within a state’s territory and by the direct effect that the regulation of migration and asylum has on them. It is important to emphasise that the context-dependent and communicative setting of ends does not depend on all socio-political actors achieving either normative consensus or a homogeneous outlook for the creative resolution of social problems to succeed. Rather, ‘the solution of moral problems requires creative intellectual accomplishments and the taking into account of all the values that are relevant in the situation in question’ (Joas 1990, 182).

Conclusion

In my article for Contemporary Pragmatism, I expand upon the conflictual theory of law and introduce six pillars that enable scholars to break down the process of law-production into its constituent elements. I highlight the significance of actors, practices and arenas of social problem definition, negotiation and resolution. In contrast to natural law foundationalism, the institutionalised solutions to rights and recognition claims are theorised as contextually situated, dynamic and contingent. The philosophical underpinnings of the conflictual theory of law in American Pragmatism allow me to reject epistemic universals, while simultaneously pushing back against moral relativism. In fact, the pragmatist commitment to testing truth claims across as many different experiences and inquirers as possible, allows scholars to evaluate laws and law-making processes by examining whether legislative solutions to social problems were derived by means that were inclusive, participatory and open-ended. As such, irregular migrants, who are immediately affected by regimes aimed at controlling, steering and often reducing their mobility and well-being, become key stakeholders to be included in the ongoing (re)negotiations of such regimes.


[1] Irregular migration is defined as ‘the movement of people across borders without the explicit sanction of the receiving state’ (McNevin 2017, 255). Hence, irregular migrants include refugees, asylum seekers and so-called “economic migrants”. Moreover, the term irregular migration accounts for the fluidity of migration statuses and the contestation of distinctions between different attempts to categorize migrants.

Julius is a PhD candidate in Sociology at the University of Cambridge, where his work focuses on parliamentary meaning-making in response to the two migrant “crises” in Germany’s post-reunification history. He is particularly interested in the logics that shape political action and their emotional underpinnings. Together with Hacer Gonul, Julius founded the platform M3Dialogue.com, which seeks to nurture exchange between academics, politicians, and the public on issues relating to migrants, minorities and marginalisation across the world. He is currently a Visiting Scholar at KU Leuven.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s