John Brigham


By way of introduction, I will provide some working definitions for a constitutive approach to law and will situate the project of developing this approach in the business of constituting an academic orientation. This Essay demonstrates the tensions between politics and epistemology in establishing an academic foundation for the public interest in law. First, I point to glimpses of the constitutive in early Critical Legal Studies (CLS), foundational considerations that comprise the roots of professional projects in and around the legal academy. Next, I discuss how these are nurtured in the ideological orientation of the Amherst Seminar and generously referenced in the attempt to build a conception of legal research under the heading "after the law." Finally, I note an antagonism between constitutivism and relativism and propose the need to "uncouple" constitutivism from what I term the appeal of a "decentered" legal research. The entire project moves from the constitution of interests to the sites where law engages with the social and material world. These are places where sometimes law is successful and sometimes it fails to constitute.

Whenever we speak of the Constitution, a noun form derived from the Latin constituere is a part of our legal vocabulary. The law constitutes when it composes, constructs or forms something; that is, when it acts as a verb. For instance, the law of marriage constitutes the relation between a man and woman when they are husband and wife. The law of property constitutes the relations of landlord and tenant in the same sense that the "separation of powers" in the Constitution is essential to understanding American government. We know the marital relation as a legal one. Heterosexuals speak in the shadow of law when they say, "My husband did this," or "My wife did that." In these forms, one's lover is referred to in terms of a legal relation. Law here puts gay discourse on the defensive, as in the reference to "partner" or in other efforts to describe relations outside of the law. Thus law is linked with the constitutive process as a verb just as law is positively inseparable from the noun. Constitutive work in sociolegal scholarship looks at the way relations among people are formed by or with reference to law.