The Conflictual Theory of Law

Abstract

This article introduces the conflictual theory of law as a new way of understanding laws as struggles over meaning, in which actors create and circulate social knowledge to justify their interpretation of rights. The theory addresses law-production processes and underlying knowledge/power constructs, for example, in legislative deliberations and interactions between politicians and the media. It shares pragmatist commitments to a highly participative version of democracy, attained through the active involvement of all members of society in democratic processes and rejects claims of universally applicable legal “truths” in favour of the constant (re)negotiation of laws between members immediately affected by a law. Pragmatism’s antifoundationalism challenges the dualism between citizens and non-citizens, facilitating the inclusion of the latter in legislative deliberations.