The Politics of Legal Form: An Essay on Subjunctive Jurisprudence

Abstract

This essay situates the jurisprudential practice of the Feminist Judgments Projects (FJPs) within a wider category of ‘subjunctive jurisprudence’. It thereby aims to do several things. Initially, the essay aims to introduce the conceptual category of subjunctive jurisprudence as a way of thinking about those actors who, lacking formal legal authority, nevertheless act as if they do, in order to create a body of imaginary law that theorises (often critically) the nature of formal law. Second, the essay uses the example of the FJPs (as an instance of subjunctive jurisprudence) to show how subjunctive jurists deploy the forms of law in creative, challenging and deeply political ways–thus nuancing an opposition between law and politics in thinking about these institutional experiments in law-creation and critique. And, finally, the essay makes the specific argument that within the practice of rewriting judgments in a feminist way there are two discernible currents: the reconstructive and the parodic. These currents exist together and are in productive tension within the FJPs.