An Abolitionist Theory of Law

This dissertation, “An Abolitionist Theory of Law,” seeks to recover the emancipatory core of law as a political practice by reimagining it in dialogue with contemporary police and prison abolitionists. Modern political theorists like Jean-Jacques Rousseau, Immanuel Kant, and Jürgen Habermas saw law as the rational foundation for a new society that would transcend dogmatic and despotic foundations for authority. But the legal orders built in the wake of these theories, particularly in the United States, have yielded carceral regimes that have reproduced much of the domination law was intended to ameliorate. Modern legal theories and legal orders founder on what this dissertation calls the enforcement compulsion; their conceptual, moral, and/or political architecture inclines them to the an uncritical equation between law and the possibility, or even necessity, of enforcing violence.

Neither a simple policy proposal for the closure of carceral institutions nor, as this dissertation shows, a straightforward rejection of law, abolition offers a complex and contested politics defined by both critique of prevailing forms of legal violence and an intense focus on a core theme of modern legal thought: what it means to organize collectively and durably around shared principles and interests. As such, it offers a valuable, if counterintuitive, framework through which to reconceive and restore law’s political possibilities beyond the enforcement compulsion. Methodologically committed to legal pluralism, this dissertation reads grassroots abolitionist institutional experiments as legal efforts in and of themselves. It takes abolitionist writers, organizers, and activists seriously as political and legal theorists, while engaging and further developing their ideas at the same time. Without making a normative argument for abolition, it leverages abolitionist ideas and practices to unsettle and reimagine legal theory.

An introductory chapter derives four pathologies of the enforcement compulsion—internal enmity, alienation, myopia, and fatalism—through readings of Rousseau, Kant, and Habermas, before introducing and motivating abolition as a framework to dislodge this compulsion. The first substantive chapter then evaluates the surprising reception of the legal theorist Robert M. Cover in the work of abolitionist Black Studies scholar Fred Moten. The second examines resonances and disjunctures between abolitionist activist and writer Mariame Kaba and critical legal studies scholar Roberto Mangabeira Unger’s respective emphases on institutional experimentation. The third interrogates the role of the state in an abolitionist theory of law, and derives principles for potentially permissible violence, through a reading of abolitionist geographer Ruth Wilson Gilmore. Finally, the fourth interprets the drafting and career of the influential “INCITE!-Critical Resistance Statement on Gender Violence and the Prison Industrial Complex” as an exercise in abolitionist constitutionalism.

Rather than as protocols for enforcing violence, this dissertation argues that law might be reconceived with abolitionists as a pluralistic site for the objectification and ongoing reiteration of collective principles and default practices, and as a facilitating guideline for free political action in their spirit.