Excerpted from MARIA ROSARIA MARELLA:

“is bottom up lawmaking feasible and/or desirable at all?

The first burning question we have to face is namely: is it possible to produce law from below? To my knowledge, there is no evidence of such a course in legal history.

a) In the middle ages jurists were private citizens who created law: they were not representatives of the State. They derived their legitimation not from state authority but from the prestige of the legal source they interpreted (Corpus Iuris Civilis) and from their own personal prestige. However they represented an elite and created new law to serve the interests of dominant social groups (not poor people).

b) Customary law might be an example of law from below, but in complex legal systems its enforceability is in the gift of the sovereign and is in a way absorbed within it.

c) Is the lex mercatoria an example of bottom-up lawmaking? The lex mercatoria is certainly not produced under a state authority but it is definitely not law from below.

So we must conclude that so far the law has never been a weapon handled by the subaltern. We come now to another big question: how to deal with this (updated) faith in law? The attitude recently taken by some radical movements in Italy clashes with the most traditional findings of Critical Legal Studies (hereinafter CLS). And, of course, with the Marxist tradition, which I leave apart here. I will instead confront two CLS’ topoi.

First: we know that law is inherently incoherent, that legal rules are indeterminate, and that rights can be deployed to fulfil divergent political projects. However our disenchantment towards legal change as social engineering cannot disguise the lack of something. Is the internal critique strategy enough at this point? Can we defeat neoliberal policies, unbundle property, grant access to resources through internal critique, that is by denouncing the indeterminacy of legal rules and proposing socially oriented interpretations that might perhaps achieve more desirable adjudication outcomes?

I am not proposing to set aside the tools of critical analysis – which I am very fond of – and to embrace instead an illuminist project of legal change; yet, I am convinced that disarticulating property is a necessary step toward a fairer model of wealth distribution, toward, ultimately, a new idea of citizenship, and I doubt that such goals can be fulfilled today by means of ‘microsurgery’.

Second: the project of a bottom-up lawmaking has to deal with the Foucauldian critique of law’s performativity. Legal rules as governamentality devices produce not only behaviours but even subjects. If, in theory, ‘lawmaking from below’ should be able to flip the order of discourse, it would not lose its performativity, its ability to construe individuals’ identities, to orient people’s conduct. Distributive analysis, however, can help us to set aside the darkness of a deterministic image of the law as an apparatus that unavoidably maintains a given distribution of power within the social body and to focus on the ‘good’ performativity of possible legal rules capable of moulding different settings of power.
To begin with, a legal regime of open access for some resources, together with the defeat of the hegemonic role of property, would empower the 99% of all human beings, although this would not prevent distributive conflicts from reproducing themselves within the now-reinvigorated majority. ”