In times when state violence and law’s covert or overt complicity in it seem more evident than ever, exacerbated and epitomised in contemporary conflicts such as those in Iraq, Libya, Mali, Syria, Palestine and Ukraine, it seems pertinent to re-examine the prospect of a radical re-imagination of the paradigm of law and legality. My intention is not to reprise some of the commonplace stands in Marxist legal thought, which tend to oscillate between two seemingly opposite poles. On the one end, common accounts uphold a commitment to the perceived counter-hegemonic and emancipatory aspects of law and legality, in which re-appraisals of human rights somehow always manage to take centre stage. In contrast, on the other end, common accounts re-enact the classic prophecy in Marx, Engels and Pashukanis that both state and law ought to and will eventually wither away. Meanwhile, between these two extremes is a curious space full of indecisiveness, inconsistency, ‘bad faith’ and other post-utopian ‘maladies’. If this were an essay about such common stands, I could hardly find any reason not to agree with those left with little or no faith in law and legality, tout court. As sombre works such as China Miéville’s Between Equal Rights: A Marxist Theory of International Law (2005) demonstrate all too well, ‘[a] world structured around international law cannot but be one of imperialist violence. The chaotic and bloody world around us is the rule of law’ (ibid: 319). Indeed, in the present-day capitalist mode of economic, cultural and political production, it is difficult to perceive or recuperate any law and law-making activity – either on national or supranational levels – as not always already neoliberal. That is, the very production of law and
legality2 is an integral part of the economic, cultural or political logic of late capitalism (cf. Jameson, 1991). Even the few remaining sites of anticapitalist legality, such as those produced and maintained in certain Latin American states, increasingly find themselves unable to subvert the dominant, globalised logic of neoliberal legality. While I take the point of those who claim that this might be a reductive (e.g. Stone, 1985; Vincent, 1993) or overly doctrinaire vision (Carty, 2008) – one that potentially lacks the sophistication of everyday (legal, political, social, economic) life – I am reluctant to denounce the importance of its stark pessimist overtone. Quite the contrary, it could be the very same unceasing pessimism, which had ultimately made Miéville and a number of other legal prodigies leave legal writing altogether, that compels my search for spaces outside or behind the prevalent legality. For, even if law as such is undesirable at this or any future point, it strikes me that its material zones of influence and realisation, i.e. social, political and even economic human relations, are still capable of resisting its omnipresent neoliberal turn. The usual way to approach this capacity to resist a dominant form of legality is to analyse the dyad of legal-illegal relations, for an active opposition to law is almost always taken for granted as formally illegal. In this brief piece, I would like to propose that this is an incomplete picture of the terrain affected by law, and that what usually gets lost is the aspect of alegality, a capacity to be neither legal nor illegal, an ability to exist and act in the interstices, or perhaps beyond or outside, the dominant (capitalist) modes of legal production. I begin by sketching out a trajectory of legal and political writing on the question of alegality. In these works, alegality remains a legal phenomenon, i.e. an occurrence firmly within the domain of law, legal theory and practice. In order to test this supposition, I revisit seminal Marxist interpretations of alienation and resistance to account for both emancipatory and anti-emancipatory potentials of the alegal space. This experimentation reveals an array of underexplored issues concerning alegality and leads me to the next step, which is a search for material accounts of the alegal in spaces and communities that resist the law as well as the dyad of legal-illegal relations. Relying on certain instructive sociological and anthropological studies on the matter and my own ethnographic experience in Pakistan, I propose that strategies for alegal self-governance – that
is, for communal normative life outside the law – invite an analysis that is both spatial and discursive. In other words, what alegality produces is often both a geographic terrain and a corresponding discourse in which the dominant legal-illegal relations are replaced with alternative regulative frameworks. After a brief visit to several examples of spatial alegality, I move to a closer examination of discursive alegality, with a particular focus on what James C. Scott calls ‘the infrapolitics of the powerless’ (Scott, 1990: xiii): the clandestine practices of resistance – in our case, to the law – that may or may not erupt into a full-fledged proletarian uprising. I argue, apropos, that any theorisation of discursive resistance to neoliberal legality in our time has to take into account the relationship between capitalism and alegality as well, given the centrality of global capitalism in the production cycles of neoliberal political economy. I continue by attempting just that – a brief account of how capitalism fares in the present discussion on alegality. I revisit, on the one hand, Marx’s theory of primitive accumulation (Marx, 1961 : 713) and capital’s ‘colonial anomalies’ (ibid: 765) and, on the other hand, Thomas Piketty’s popular call for a renewed analytical focus on the distribution of wealth (Piketty, 2014 : 15), to account for a continuous alienation of the powerless by both capital and law. I argue that this modality of capitalist and neoliberal social, economic and legal accumulation can be productively (en)countered by taking pessimism seriously, as an instance of critique of life under capitalism in which the alegal and the infrapolitical constitute invaluable sources of everyday anti-capitalist struggle. I conclude by interrogating a disconcerting example of a new global neoliberal and, curiously perhaps, neo-Roman legality. Both local and global planes reveal a necessary turn towards further studies of the alegal – a turn that is both epistemic and methodological in nature. For, it is our system(s) of knowledge as well as disciplinary (academic) production that need changing in our commitment to the radical potential of alegality.