Non-Reformist Reforms and Struggles over Life, Death, and Democracy.

Date01 June 2023
AuthorAkbar, Amna A.

FEATURE CONTENTS INTRODUCTION 2500 I. MOVEMENTS AGAINST RACISM AND CAPITALISM 2511 II. REFORM AND REVOLUTION 2515 A. Reformism 2518 B. Non-Reformist Reforms 2527 C. "Multiple Grammars of Struggle" 2531 III. ACTUALLY EXISTING SITES OF STRUGGLE 2534 A. Abolition and Decarceration 2537 B. Decolonization and Decommodification 2543 C. Democratization 2557 IV. REORIENTING REFORM 2562 A. Beyond Legalism 2562 B. Antagonistic and Conflictual 2564 C. Intervening in the Balance of Power 2568 D. Building Democratic Organizations and Preparing to Govern 2571 CONCLUSION 2576 INTRODUCTION

In the United States, law is idealized as a product of tripartite government, an exercise of democratic process or popular will held in place by checks and balances. But whichever branch you examine--the judiciary, the legislature, or the executive--individually or collectively, at the local, state, or federal level, you will not find a map of democratic process or popular will. The Supreme Court is composed of nine Justices with life tenure and the power to veto legislation and executive action; Congress is captured by corporate power and gerrymandered districts with two senators per state regardless of population; and the route to the presidency is carved out of the Electoral College rather than the popular vote. (1) Both parties have closer ties to billionaires, millionaires, and each other than they do to the people they purport to represent. (2) Even the vote--the ostensible center of electoral democracy--is subject to rampant suppression and disenfranchisement. (3) Antidemocratic institutional features in our system of laws are rife. (4)

It is unclear whether law's aspiration can even be described as democratic. Legal, legislative, and administrative processes are exercises in technocratic expertise--defined by those with concentrated economic and political power. (5) The violence of policing and incarceration is an engine of the state. (6) Courts facilitate political, economic, and social stratification by providing cover for evictions, deportation, incarceration, debt collection, and family separation against the poor and working class. (7) Environmental and infrastructural catastrophe are a feature of life across the United States into its colonies and territories, as are depressed wages, widespread hunger, ballooning debt, reduced life expectancy, sprawling housing insecurity, and a healthcare system that puts profit over people. (8) The state ignores or facilitates these problems. No wonder public faith in the U.S. government is hovering near record lows. (9)

For those of us who see the world around us on fire, the question is what is to be done. For the law professor, the lawyer, and even the law student, reform and regulation are the ever-present terrain. (10) In courtrooms, classrooms, and law reviews, the circuitry of conversation moves from diagnosing a problem to suggesting a reform. Not long ago, it felt as if conversations about reform assumed the legitimacy of the prevailing political, economic, social, and juridical order: tweaks of doctrine or, perhaps, policy; the audience and discussants one and the same--our colleagues, the courts, agencies, bureaucrats, perhaps legislators. (11) These debates often felt inflected by such hopelessness that I sometimes felt the political horizon was not much further than my nose. That a "reform" could be imagined as a "solution" suggested our discourse reduced questions of life and death to the tiniest of "problems"--now solvable by the expert and political classes.

Neoliberal reform projects have funneled social problems into the market and the prison to solve; and both are insulated from popular input. (12) Legal scholarship often mirrors the fundamental faith in the market and the prison. Private-law scholarship emphasizes "overcom[ing] inefficiencies and pressfing] toward wealth-maximizing outcomes" while public-law scholarship focuses on "narrowly defined differential treatment of individuals, especially by the state." (13) Across scholarly siloes, concern for economic power or distribution is diminished, obscuring the structuring force of concentrated economic power. (14) Faith in markets is too often paired with a deep "pessimism about... politics and the effectiveness of the state," rendering collective action the task of fools. (15)

But over the almost two decades of my career as a lawyer and law professor, conversations about reform have shapeshifted. (16) In 2011, three years after the global financial crisis hit, Tunisian produce vendor Mohamed Bouazizi immolated himself in protest of unemployment, indebtedness, and police harassment. (17) His act sparked the Arab Spring, which, in turn, set off Occupy Wall Street in New York City. (18) Since then, a drumbeat of protest has disrupted seemingly settled terms of law and policy. (19) These popular protests cannot be read as simple or linear--they are uneven and filled with contradictory impulses. (20) In the United States, mass protests took place during the summer of 2020 in response to the police murder of George Floyd, and expressed hope and futility by tens of millions of people. (21) These protests meditated not on questions of efficiency or wealth maximization but on life and death. (22) They embodied popular revolts against the state, the status quo, and electoral democracy. (23)

This decade-plus of riots and social movements is like nothing we have seen since the 1960s and 1970s. It is impossible to know when this period of heightened protest will die down. We may already be within its recesses. But that the struggles are global, popular, and iterative speaks to the systemic nature of the problems. (24) In the United States, large majorities of the public support greater regulation of guns and the environment, easy access to abortion, some version of Medicare for All, a higher minimum wage, paid sick and parental leave, and greater taxation of millionaires and billionaires--and yet these preferences rarely take shape in law and policy. (25) It is curious the extent to which the political class has chastised grassroots demands like defunding the police or the Green New Deal for their unpopularity, when it is increasingly clear that the structures of the state fortress law and policy from public needs and aspirations. (26) To put it plainly: what does popularity have to do with law and policy anyway?

A familiar scholarly posture for the law professor is to defend and defer to formal law and politics, its forums, and processes: the courtroom, the vote, notice-and-comment, and so on. This posture typically involves skepticism of protest as anarchy and of radical demands as counterproductive. (27) There are whole bodies of scholarship oriented toward legitimating state power, even state violence. (28) Law faculty come in and out of judicial, legislative, and executive offices, often at the highest echelons of state power. We advise corporations and the police. (29) We serve on commissions and working groups to study problems raised by streets protests. (30) We do this work often to the exclusion of those who organized, protested, and even risked or lost their lives for the state to take these issues seriously. We are essential parts of the state's arsenal to reassert the status quo in which inequality and violence flourish. (31)

In this Feature, I argue that we must reconceive our relationship to reforms and the popular struggles in which they are embedded. (32) I examine the turn of left social movements to "non-reformist reforms" as a framework for reconceiving reform: not as an end goal but as struggles to reconstitute the terms of life, death, and democracy. Today's left social movements are challenging formal law and politics for their capitulation to a regime of racial capitalism and how it reproduces raced, classed, and gendered domination, exploitation, dispossession, and exposure to premature death. (33) The turn to non-reformist reform is part of a larger meditation on what strategies and tactics will help build a more equal and just society, one that works for the many rather than the few, where people have their needs met and democracy extends to all realms of life well beyond the ballot box. (34)

Non-reformist reforms aim to undermine the prevailing political, economic, social order, construct an essentially different one, and build democratic power toward emancipatory horizons. They seek to redistribute power and reconstitute who governs and how. Today's thinking about non-reformist reform is both an effort to rethink the kinds of laws, policies, norms, relationships, and modes of organization that we might build to govern society, and an effort to democratize relations of power: to have fundamentally different people at the helm.

Social movements highlight the relationships between our understanding of the world around us (criticism), the world we fight for (horizon), and the reforms, strategies, and tactics that might bridge the two (praxis). The discourse on non-reformist reforms, then, reflects theories of social change (35) on the margins of legal scholarship. (36) There is an underlying argument within the Feature--I do not go to any real length to substantiate it--that protest and organizing put pressure on and transform law. But I avoid fetishizing law as the ultimate object of emancipatory projects that aim to change the many lifeworlds we inhabit. (37)

Law and lawyers have a place in social-change work, but to assert the roles as primary is to capitulate to a conception of power that is top-down and centralized rather than everywhere and relational. What does it mean to think about law in relation to emancipation and long freedom struggles? (38) To begin, it requires that we understand law as a site of domination, exploitation, expropriation, and legitimation--and lawyers as central partners therein. (39) Law is neither above nor below politics or reason, nor is it the entire...

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