2. Between opportunity and normative limitation: the ERT movement's experience of legal mobilisation

The ERTs is a grassroots labour movement in Argentina that formed in response to the social, political, legal and economic conditions brought about by the financial crisis at the end of the 1990s that reached a crescendo in 2001 (Rebón, Reference Rebón2004; Dinerstein, Reference Dinerstein2014; Ozarow and Croucher, Reference Ozarow and Croucher2014; Ruggeri, Reference Ruggeri2014). The ERT movement constitutes workers who resisted the condition of unemployment and sought to recuperate their workplaces. A factory or enterprise is recuperated by its workers when they: (1) occupy and take control of the production of goods or the provision of services and (2) establish a model of worker self-management and/or form of co-operativism and resume the production or provision or services. Today, the ERT movement continues to be an important labour movement in Argentina with the number of worker recuperations having grown exponentially since 2001 from a modest thirty-six pre-2001 to 251 by 2010 and 384 in 2018 (Ruggeri, Reference Ruggeri2018, p. 6).

Two legal instruments have dominated the ERTs’ interactions with law: first, the use of a provision of the Bankruptcy Law (La Ley de Quiebras, Reference Postilloni1995) that has allowed workers to remain in control of property for the express purpose of continuing production; and second, provincial, regional and national legislatures have passed expropriation laws where they have interpreted the worker co-operatives’ use of property as sufficient to satisfy the test of ‘public utility’ and trigger an exception to the constitutional right to property.

‘La Cooperativa Hotel Buenos Aires Una Empresa Nacional’ (also known as Cooperativa Hotel B.A.U.E.N., hereafter Hotel BAUEN Cooperative) is arguably the best-known worker co-operative in the Argentine recuperation movement. The hotel was first occupied by thirty-two former employees on 21 March 2003 (Ranis, Reference Ranis2010, p. 92). The Cooperative restarted the hotel's operations and, by 2006, 80 per cent of the 160 rooms had been refurbished and comprised 150 workers (Ranis, Reference Ranis2016, p. 71). At the time of writing, the Cooperative does not have a legal right to retain control over the property, although it remains in physical control and its legal and political struggle continues.

3. The opportunity and limitation of legal mobilisation: a theoretical perspective

To put it crudely, legal mobilisation is an interpretive battle over what human goods law ought to recognise and protect. The aim of this section is to contextualise legal mobilisation within law's internal tension between its capacity to respond to social demands and its commitment to entrenched interests. In order to comprehend what is at stake for labour movements on this terrain, we will comprehend this tension as one between law's excess of meaning and deficit of task. I argue that these twin concepts provide critical insights into both the interpretive opportunities and normative limitations in law that determine the effectiveness of legal mobilisation as tool of sociopolitical struggle. This section will apply these conceptual insights to the BAUEN case to develop our conception of their legal strategy and to illustrate the effect of law's normative interests on legal mobilisation. To conclude, we will consider how law's normative limitations underpins the rationale and necessity for a strategic approach to legal mobilisation.

The interpretative opportunity lies in the fact that there are multiple possible conceptions of what law ought to be. For Boaventura de Sousa Santos, this ‘excess of meaning’ refers to law's ‘symbolic expansion through abstract promises’ (Santos, 2002, p. 469). Santos refers here to the way legal systems manage social complexities using abstract rules that are applicable to a range of scenarios. Importantly, the abstract form means that law can be continually reinterpreted and re-articulated over time. This indicates that the opportunity in law for social struggles occurs in the determination of legal meaning, intended application and associated remedies. In order to unpack this idea of excess as opportunity, we will consider two central and interrelated elements: first, the moment of determination as a battleground for reinserting new meaning into law; and second, the practice of interpretation in which social struggles are necessarily involved in attempts to redeem excess meanings.

First, in legal theory, the determinatio is the act of positive law-making required to implement general principles as rules that can be understood, abided by and implemented (Finnis, Reference Finnis1985, p. 23; Reference Finnis2011, p. 284). In short, it is the determination of what a given right, duty, principle or value equates to in practice This refers to the creation of positive law whereby law-makers must continually engage in ‘practical reasoning’ (Finnis, Reference Finnis1985, p. 38) and interpret what the law ought to be (Waldron, Reference Waldron2008, p. 4). The interesting point about determinatio for social struggles is it highlights the process of including and excluding normative social programmes as belonging to a legal system. This is the critical moment in which a social struggle's proposed interpretation of what the law ought to be is either included in a redefined implementation of the law or it is excluded.

We can now say that excess legal meaning also refers to the fact that something is left outside of law at the moment of its determination. We will turn to the challenge of exclusion later; for now, let us recognise the continuity that is implicit in law's excess through the practice of determinatio. While the determinatio determines what is included in law, it also creates an excess of possible meanings that are excluded but can be included. The continual reinterpretation of what actions law ought to prescribe or proscribe is made possible precisely because previously excluded interpretations could be included in the future. This is what Christodoulidis has described as the ‘re-entry’ moment in the determination of law where what was previously excess will become part of law (Christodoulidis, Reference Christodoulidis2009, p. 21). The ‘re-entry’ of legal meaning can be understood as the ‘redetermination’ of the aims and content of a law, and it is this opportune moment – the determination of legal meaning – that is targeted by social struggles engaged in legal mobilisation.

The BAUEN's engagement with both bankruptcy law and expropriation laws are practical examples of the opportunity presented by determinatio. The interpretation of the Bankruptcy Law in a manner that recognised the Cooperative's recuperation of their workplace as included within the scope of legislative protections was a key tool in the ERT struggle. This involved an interpretive conflict over the meaning of ‘third parties’ that could make applications under the preventative bankruptcy provisions. It is important to note that ‘worker co-operatives’, ‘recuperations’ or ‘employees’ were not explicitly listed in the 1995 legislation. On the contrary, it was the redetermination of the scope of Article 21's application to third parties – or the implementation of new legal meaning – that provided an opportunity for worker co-operatives to develop a favourable judicial precedent. The new interpretation ensured that the Cooperative's applications for short-term control over the property provided direct legal protections.

Having identified the opportunity to insert new meanings into law as located in the moment of determination, it is necessary to consider the second element: how social struggles that mobilise litigation or confront legislative processes are engaged in making new legal meanings. The idea that law contains an excess of meaning that is not currently represented in concrete legal protections signals both the plurality of legal meaning and the opportunity to redeem certain values and insist on their application. Robert Cover deploys the concept of jurisgenesis to describe the practice of exploiting excess: how social movements are engaged in challenging law's current determination by presenting alternative conceptions of what it ought to be (Cover, Reference Cover1983). Moreover, Cover insisted that law can be interpreted in a multitude of ways, whether that is grounded in the constitutional text or claims about the normative purposes or values that underpin a legal system. On this terrain, the interpretive opportunity (or practice of jurisgenesis) will lead to the deployment of constitutional values, rights and a range of creative claims about what law ought to recognise and protect. For example, if in constitutional abstraction the law promises dignity when workers are treated with indignity, the law ought to offer a remedy.

And yet, we must not lose sight of the fact that interpretive opportunities presuppose and will necessarily involve interpretive conflict. For example, where a legal rule about the redistribution of property aims to satisfy constitutional principles about dignity and minimum subsistence, it simultaneously threatens to infringe the rights of property owners. The challenge for social struggles is to negotiate such legal conflicts effectively and secure necessary protections. For socio-legal scholars, it is necessary to comprehend the ways in which interpretive opportunities are curtailed not just by material or structural impediments, but also by hierarchies between values and rights and the differing protections afforded to certain social interests. Indeed, the practice of interpretation and legal meaning-making is a battleground for competing normative visions of society that ought to be recognised and protected by law.

The opportunity to engage in excess meaning-making through jurisgenesis can be seen explicitly in the BAUEN's engagement with the Expropriation Law. From its failed legislative attempts that focused too heavily on the constitutional importance of work or arguments challenging ownership on the basis of debts owed to the state, both represent excess meaning that could not be recognised as belonging to the Argentine legal system. In response, the BAUEN engaged in a process of pragmatic jurisgenesis that sought to balance the constitutional protection of private property with the broader social rights claims of the ERT movement. The ‘effectiveness’ of the BAUEN's struggle for an expropriation law is located in its direct engagement in interpretive conflicts and the production of new legal claims that were capable of being recognised as belonging to the Argentine legal system. Arguments about the public utility of expropriation that would have previously registered as excess meaning and excluded from law due to their conflict with the fundamental protections afforded to property ownership were now capable of being included.

While the opportunity presented by law's excess of meaning was exploited by the BAUEN, its case also highlights the limitations of this opportunity. Since 2007, the supremacy of title-holders’ rights to property have been recognised and prioritised ahead of the economic rationale of protecting viable businesses, the constitutional right to work or the public interest in securing the continued employment of Cooperative members. The BAUEN's engagement with the Bankruptcy Law ultimately failed because the Cooperative's claims could not supersede the constitutional right to property of other parties to the case.

The limited effectiveness of legal mobilisation in the BAUEN case raises significant questions: How far can the opportunity presented by legal mobilisation extend? And what are the factors that limit the opportunity to reinterpret and redetermine the content of law? In answering these questions, we will confront a key tension in law between the opportunity to continually reinterpret legal meaning and the limit at which new meaning cannot be included in law. Indeed, this brings us to the central contention of this paper that legal mobilisation operates within the context of a fundamental tension in law between its excess of meaning and deficit of task.

Before introducing the concept of deficit, we must first attend to an inherent limitation in the idea of law's excess meaning. Until this point, the concept of excess has been discussed in positive terms, as providing an interpretive opportunity at the moment of determination. However, the idea of an excess of legal meaning also identifies what is outside law and that which cannot been accommodated within law when general principles are determined as a concrete set of rules (Christodoulidis, Reference Christodoulidis2009, p. 17). In a passage describing the interpretative opportunities of human rights, Christodoulidis grasps the contingency of excess as both capable of being inserted into law and yet always outside of it:

This passage is rich in its allusion to critical theoretical and post-structuralist discussions about law's responsiveness to social demands that cannot be given their due in these pages. Nonetheless, important lessons can be extracted about the inexhaustibility of excess both as an opportunity to insert new meanings and as a repository for those who seek to contest the normative content and aims of law. The lesson is not simply that there is always an excess of meaning left outside of law that cannot be exhausted by law's determinations. On the contrary, the ‘double movement’ of the determinatio exemplifies how any redetermination of law both includes and excludes and, as such, any claim simultaneously remains as a normative claim that cannot be wholly subsumed, elucidated or excluded by the determinatio. For example, while a new interpretation of the ‘right to work’ might extend current worker protections, the legal implementation of the right cannot live up to the political promise contained in a ‘right to work’. This means that there is a continual opportunity to redefine inadequate labour provisions in the future; but, it also shows that any claims about what the law ought to be can only be implemented in law as definable rights, duties and remedies. Therefore, for each reinterpretation of a right that fails to grasp the extent of possible legal interpretations, there is an inexhaustible excess of meaning that can both deepen or negate our enjoyment of a right. It is in this irreconcilable relation between determination and excess legal meaning that there resides both the promise that law can respond to social demands and an inherent limitation. This should serve as both an encouragement and a warning to social struggles engaging in legal mobilisation.

If law cannot include all interpretations, it must determine which actions are permissible and which are proscribed. This begs a fundamental question: What prevents law from recognising certain interests and not others? For instance, if the Constitution is committed to the principle of equality before the law and promises to protect both the right to work and to private property, why have liberal legal systems offered greater protections to private property and the productive interests of capital than to labour? One possible answer is revealed in the tension between law's excess of meaning and its deficit of task.

For Santos, law's deficit of task resides in the ‘the narrowness of concrete achievements’ (Santos, 2002, p. 469). Unfortunately, Santos does not elucidate further the meaning behind this intriguing statement. To develop its insight, I will suggest that the idea of law's deficit of task draws out two limitations on the opportunity presented by law's excess of meaning: (1) the practical limits on interpretation imposed by available legal rules and the requirement of decision-making and (2) the effect of entrenched interests on law's emancipatory promises.

First, the scope for social transformation is limited to the legal rules and remedies that are already prescribed by law. While it is possible to use law as a tool of social struggles, this is limited to the implementation of existing law. In other words, there is a practical deficit in law's task that means it can only respond to a social demand by reference to an existing legal rule or constitutional value. For example, a perceived violation of labour standards and/or claim that law ought to provide a higher level of protection at work needs to be grounded in either a statute that guarantees a certain regulatory standard or, as we have previously seen, in the constitutional value of dignity and the right to work. Moreover, in practical terms, law cannot include all normative aims and demands without succumbing to the pressures of contradictory social expectations.

We can extend the practical fact that not all legal claims can be included to recognise the gatekeeping role of judges in the process of inclusion/exclusion. Cover's concept of ‘jurisgenesis’ and its mirror, the ‘jurispathic’ (Cover, Reference Cover1983, p. 40), which requires judges to ‘kill off’ alternative legal meanings, is indicative here. While a multitude of legal interpretations (jurisgenesis) are possible, a court's judgment ‘shuts down the creative hermeneutic of principle that is spread throughout our communities’ (Cover, Reference Cover1983, p. 44). In Coverian terms, the determining of law is an act of violence in so far as it imposes certain limits upon the interpretation of legal meaning in a given community. For the purposes of the present argument, the judicial role in resolving the tension between jurisgenesis and jurispathic tendencies in law identifies a practical deficit in law's task where judgments foreclose the interpretive opportunity.

In the BAUEN case, we can see jurispathic effects in the rejection of bankruptcy and expropriation claims, the absence of legal rules protecting worker co-operatives, the exhaustion of time-limited remedies and the presence of fundamental rights provisions whose protection run counter to the BAUEN's legal claims. While Cover's concepts illuminate the challenge of presenting new legal meanings and the practical realities of producing clear legal rules within a coherent legal system, we must now turn to consider the normative context in which legal mobilisation operates.

Second, the idea of law's deficit of task provides an understanding of law's normative incapacity to deliver unfettered social transformation. Law is organised around the protection of vested (or entrenched) social, economic and political interests. Law might contain the promises of dignity and equality, but the actual interpretation and implementation of these values in the form of regulation will be shaped by these interests. For example, the liberal constitutions of modernity maintain the social and economic interests of productive capital through the inviolability of private property, the enforcement of contractual obligations and individual rights that promote formal (cf. substantive) freedom and equality (Hardt and Negri, Reference Hardt and Negri1994, pp. 57–58). This means that modern law has been organised around the protection of property title and the productive interests of capital, and not the emancipation of the subaltern. Indeed, historical materialist analysis has insisted on the role played by legal and political institutions in the reproduction of economic and social conditions and, in turn, how law necessarily entrenches certain political and economic interests at the expense of others. For Ellen Wood, legal and political systems are ‘implicated’ in facilitating and constituting relations of production and domination through the provision of juridical forms that enable the enforcement of contractual obligations and the institution of property (Wood, Reference Wood2016, pp. 26–29). This means recognising the historical and material forces that constitute capitalist social relations, how these social experiences and expectations have shaped the development and content of liberal legal systems, and what this might mean for the interpretive trajectory of law in the future.

And yet, in addition to structuring productive relations, law has also facilitated and been organised around multiple social, political and economic interests that have recognised and redistributed rights protections. We might argue that modern law has entrenched interests in civil liberties, social rights and the rule of law. Universal suffrage and the establishment of the welfare state are indicative, but so too are the contemporary challenges faced by claims for social rights, the absence of legal protections for care workers and the privileged position of market indicators in politico-legal decision-making. The concept of deficit encourages an understanding of which dominant social interests have been institutionalised in law and how these shape the reproduction of certain social structures and relations at the expense of others. Therefore, the constitutional promises of social emancipation, as well as quotidian legal struggles for the enforcement of rights protections, are limited to, or must be re-presented as, demands that do not compromise the expectations of dominant social interests. And, in practice, social struggles will have to accept certain normative restraints when engaging with law.

If a legal system is organised around the entrenched interests of capital, then we can assume that the deficit of task will arise in relation to legal claims that seek to radically reform legal rules relating to economic individualism, private property and the productive conditions of capital generally. Workers might demand improved labour standards in line with the Constitution's commitment to dignity, but a labour movement whose legal strategy interprets the Constitution as advocating emancipation from the conditions of capitalist exploitation is unlikely to be recognised in a liberal legal system. There are several reasons why such a strategy is likely to fail. However, for our purposes, we can quickly recognise the practical challenges noted above that require legal claims to be grounded in existing law and for litigants to have a cause of action. For example, workers in the so-called gig-economy may contest the indignity of their work but their legal claims are formulated through the lens of employment status claims that categorises workers not in the political language of emancipation, but as ‘workers’, ‘employees’ or ‘self-employed’ with corresponding rights protections.

The stake for social struggles engaging in legal mobilisation is to identify the potential between law's protection of vested interests and the existence in law's excess of meaning for opportunities to challenge law's current trajectory and redeem certain values – such as dignity – and insist upon their legal protection. These insights do not reveal any silver bullets for social struggles seeking to confront entrenched social interests, but, against despair, inaction or false promises, it provides some explication of the difficult terrain on which legal mobilisation operates.

Accordingly, to better comprehend the BAUEN's experience, we need to consider the role of normative interests in the construction of legal rationality and how the tension between the opportunity and limitation of legal mobilisation shapes their strategic approach to law. As we have seen, the opportunity in the BAUEN case lies in the capacity to register Article 21 bankruptcy claims and to reinterpret the Cooperative's actions as a public utility protected by the Constitution. The limitation is highlighted by the failure to convert these opportunities into permanent legal protections and, in both cases, the law's protection of private property rights and economic interests.

The attempts to negotiate this tension between opportunity (excess) and limitation (deficit) are explicit in the BAUEN's struggle for an expropriation law. The BAUEN could have framed its legal claims by accentuating how public service provision is part of the intrinsic importance and ideological superiority of factory recuperations. Indeed, the recuperations are not simply hotels that provide accommodation to guests or ceramic factories that make tiles, but social enterprises that are inextricably engaged in their local communities (Magnani, Reference Magnani2009). However, in order to have legal traction and avoid the dangers of excess and deficit, the Cooperative presented claims within the boundaries of what is comprehensible to the legal system and politically defensible for elected representatives. Therefore, the Cooperative relied on the Constitution's own conception of public goods – employment, education and health care. Rather than dispensing with the normative foundations of the Argentine legal system, the BAUEN framed its actions according to the legal requirement that an expropriation contributes to the common good, either materially or spiritually.

The normative limitations on legal interpretation have been the key determinant of effectiveness in the BAUEN's legal struggle. Notwithstanding the specific political context in Argentina and the fact that legislative opportunities are affected by the changing ideological sympathies of elected representatives, we cannot de-emphasise the role of fundamental rights protections as indicative of law's normative boundaries and the effect on legal mobilisation strategies. Indeed, even if the BAUEN's expropriation bill had been ratified by the president, the exceptional nature of the BAUEN's claims means that law's normative interests remain central to our understanding of their legal struggle. Recognise, for example, that the BAUEN's legislative claims hinge on an exception to the inviolability of private property and, similarly, the opportunity in the Bankruptcy Law was an exception to the usual rights of property owners and creditors. The BAUEN's struggle faced a series of normative challenges, from the absence of legal rules that directly protect the aims of the recuperation movement and the fact that its claims confront the expectations guaranteed by property rights, but also the politically sensitive nature of its legal demands, which we will return to below.

The key point provided by our theoretical framework is that legal argumentation and interpretive opportunities are shaped by legal rules and rights that correspond to normative commitments, such as private property regimes and credit markets. The theoretical framework of law's excess of meaning and deficit of task explores the tension between the opportunity to reinterpret the scope of legal protections and the law's apparent commitment to certain fundamental sociopolitical interests. Indeed, we can see both from the failures of the BAUEN and the way it reframed its political demands as legal claims the effect of law's deficit of task on the opportunity presented by its excess of meaning. What this reveals for law's effectiveness as a tool of social struggle is both a continual opportunity to redetermine the content and scope of law and, against unfettered enthusiasm for the potential of legal reform, a normative barrier to what can be said and understood in law. In other words, social struggles that engage with law encounter interpretive battles that occur within and are determined by what claims can be rationalised by a legal system that guarantees and reproduces experiences and expectations in a social, political and economic context.

To conclude this section, we need to clarify the role of politics in the concept of law's deficit of task. The aim of the analysis in this paper is to comprehend how the BAUEN workers’ demands to remain in control of the property that houses their co-operative have been presented as legal demands and the extent to which such claims confront law's normative boundaries. An important question that flows from this scheme is: To what extent is the insight about law's deficit of task determined by the limits of what does or does not have political support in a given time and place?

The dynamics of electoral politics constructed the possibility for an expropriation bill to pass through Congress, which indicates that politics’ normative interests are, along with law's normative interests, critical in determining the effectiveness of a given legal mobilisation strategy. In the context of legislative law-making, political interests are particularly important. For example, the BAUEN was all too aware of the cost of failing to generate sufficient support in Congress and the need to reconsider their initial legislative strategy by presenting a claim that draws on the opportunity of law-making. By focusing on the role of normative interests in law, I am concerned with the effect upon law-making of sociopolitical interests that (re)produce certain conceptions of what law, politics and society ought to be. Indeed, the insights from the concepts of deficit and excess is that law is not an autonomous field, but is subject to arguments drawn from and shaped by its social, political and economic context.

This does not mean collapsing legal arguments into political demands, nor does it mean that any legal reform is necessarily possible under specific political conditions. Political demands must be presented in a legal form and ought to be capable of being defended against procedural and substantive legal challenges. However, the important insight from the theoretical framework presented in this paper is that social relations, political demands and economic conditions have shaped legal systems in a manner that allows us to identify certain normative interests that are entrenched in and protected by law. The protection of private property in liberal legal systems has been central to our analysis because it is representative of a normative interest whose protection by law militates against antagonistic political demands and legal struggles. The protection of property is not rooted in the legal system's autonomous interest in reproducing the status quo; it is in the continual redetermination of the law that social experiences, expectations and normative interests are reproduced. This means that legal systems are both open to interpretation and always already structured according to conceptions of what law is that prescribe the limits of interpretation and decision-making. Social struggles, like the recuperation movement in Argentina, attempt to dislodge and reshape these givens through innovative forms of legal and political action. Drawing upon their experience and a conceptual analysis of legal rationality, we have seen how the political aims and legal demands of social struggles confront and exist in tension with the limitations of law as a site of sociopolitical struggle.