From the Octagon to the Courtroom: The Right to Fight, Subaltern Cosmopolitanism, and Public Interest Litigation as Tool for Mixed Martial Arts as a Community/Cultural Normative System

As a new sport, mixed martial arts (“MMA”) has grown wildly in popularity. Yet MMA faces hurdles in legitimization and acceptance through legal, regulatory, and political means. While the MMA community has gone to great lengths to change its image, its internal rules, and regulatory framework—and while most American states and Canadian provinces now legally regulate MMA—certain states, such as New York, continue to ban live professional MMA events.

MMA suffers from a lack of scholarship across many disciplines, including legal scholarship. While the available literature on MMA gradually develops, the minimal legal scholarship related to the matter has concentrated on the practical rather than the theoretical. How ever, the recent New York lawsuit—Jones v. Schneiderman—brought by members of the MMA community alleging a violation of their First Amendment rights, and naming the Attorney General of New York State as the defendant, provides an opening for a theory-based discussion of MMA. This paper’s focus will be on the MMA community, utilizing a theoretical framework provided by Boaventura de Sousa Santos’ notion of subaltern cosmopolitanism, and Brian Tamanaha’s classification of community/cultural normative system that, here, forms part of legal pluralism in the social arena within a state. The discussion will then turn to the strategies for social inclusion and increased legitimacy employed by the MMA community through public interest litigation versus lobbying efforts. Finally, this paper will suggest that success through public interest litigation must not be solely assessed at face value. Instead, public interest litigation facilitates a non-hegemonic use of hegemonic legal tools and structure that a subaltern community/cultural normative system may appropriate in order to represent its interests, its internal rules and norms, and the narratives of its members in a language of the dominant legal framework— that of constitutionality and First Amendment rights. I then propose that this dialogue operates as popular constitutionalism where a social movement, through popular resistance and engagement in a dialogue with the judiciary, may instigate a shift in constitutional interpretation and meaning.