Abstract
Law and political economy (LPE) scholars have revived a longstanding debate over the relationship among law, capitalism, and postcapitalist possibility. Is law a creature of capitalism, destined to reproduce its dynamics of exploitation and dominance? Or are there moments of indeterminacy in law that function specifically as openings to a postcapitalist elsewhere?
We enter this debate by posing a different question. Following feminist Marxist economic geographers J.K. Gibson-Graham, we ask what questions arise for LPE scholars if we begin instead with the presumption "that postcapitalist worlds are already here but have been cast into shadow by a singular economic framing that presumes capitalist dominance." Building from actually existing experiments in cooperation and solidarity, we translate conceptual questions about legal indeterminacy into processual and sociolegal inquiries about how indeterminacy works in tandem with social practices of coordination and regularization. We endeavor to make these inquiries visible by examining how people negotiate their interdependence by making decisions about needs, surplus, production, consumption, and the creation of commons, and how these decisions may create new patterns and habits (and subjects) over time. Legalities emerge in these negotiations—sometimes as the community-generated rules people work out to cooperate; sometimes through how people play with background rules of state law through direct action; and sometimes through more familiar efforts to ask judges and legislators to reform state-enforceable legal rules.
What we call "diverse legalities" thus combines legal pluralism, prefigurative legality, and more familiar accounts of legal instrumentalism. As an analytical intervention, diverse legalities suggests that postcapitalism, no less than capitalism, depends on legalities that find their sources of authority beyond the state. As a political intervention, diverse legalities suggests that one way to strengthen postcapitalist economies and legalities is to start by studying the moments in which people have already been successful in their local communities.
Citation
Amy J. Cohen & Stephen Healy,
Diverse Legalities: Towards a Legal Theory for a Postcapitalist Political Economy,
88 Law and Contemporary Problems
79-115
(2025)
Available at: https://scholarship.law.duke.edu/lcp/vol88/iss1/5