The gate to the law

The other day I was reading what I believe is the latest (and trust is the last) instalment in the long and almost epistolary debate between Matthew Kramer and Nigel Simmonds on the inherent morality of the law. (Nothing to say about that at the moment.) After following a few footnote references a song came unbidden to mind:

O Lord, won’t you buy me a sub to Jurisprudence?
The papers of interest are so multitudin’s!
Worked hard all my lifetime – ain’t no Homo Ludens -
So Lord, won’t you buy me a sub to Jurisprudence?

Or, more wistfully,

I often dream of reading Jurisprudence
I recommend it to selected students
I dream of it constantly
Accessed through the British Library,
Oxford or Cambridge,
Or Birmingham…

My institution, in other words, doesn’t subscribe to the journal where some of the key debates in a topic that fascinates me are being carried on. (As indeed most institutions don’t – the list above is exhaustive as far as I know.) There’s a simple solution, of course; it’s called an inter-library loan. The only problem is the opportunity cost – by which I don’t mean the (fairly trivial) effort of going to the library and filling in a form, but the fact that deciding to do so would inevitably remind me of all the reading I’ve already got queued up (physical books included). So for now those papers by Simmonds, Gardner, Finnis et al are just going to have to wait.

Getting introspective for a moment, Jurisprudence and its non-availability are a bit of a Russian doll for me. A series of worries and fears are nested behind my resentment of not being able to get hold of it: the suspicion that if I had those papers I wouldn’t get round to reading them; and that if I did it would just be an intellectual hobby – I wouldn’t actually be able to use them, e.g. by writing anything (or anything I could get published); and that, if I wrote something properly theoretical and got it published (which is a big if), I still wouldn’t be in the kind of job where writing this kind of stuff was expected and approved. But perhaps those aren’t independent worries; perhaps it’s just an inner voice saying yeah, but it wouldn’t work… And actually that’s precisely what I don’t know. (More to the point, I don’t know how going down that route would work, or what precisely it would lead to.) So perhaps I just need to give it a go and see what happens. Including an ILL for an issue or two of Jurisprudence – at least, once I’ve got through the backlog.

I’m also wondering about further qualifications. Getting a Graduate Diploma in Law would take two years of fairly intensive part-time study (where the year runs October-June). I could do the same thing by taking Open University modules; this would take four years of what would also be fairly intensive part-time study (year running February to October). Comparing the OU option with the GDL, the prospect of taking twice as long for the same qualification at once attracts and repels me: it would be a good learning experience, but do I want to commit that much time and effort? There’s also the fact that, while getting some Law under my belt would suit me personally, it wouldn’t benefit me greatly in the job I’m actually doing – and doing the degree would make me ineligible for research funding from some sources, which would be a positive disadvantage.

Don’t know where I am with that; all comments welcome. In the mean time, here’s the abstract of a paper I’ve just had accepted for publication (Journal of Criminal Law):

New ASBOs for old?
The Anti Social Behaviour Order (ASBO) was designed as a civil/criminal hybrid, preventive in structure and with a largely undefined object. After 2002, legal challenges to the ASBO led to the use of justificatory arguments from cumulative effect, and to the introduction of new measures which offered to regulate anti social behaviour in more legally acceptable forms. The Coalition currently proposes to replace the ASBO with two new instruments: a post-conviction Criminal Behaviour Order (CBO) and a wholly-civil ‘injunction to prevent nuisance and annoyance’ (IPNA). While the CBO and IPNA build on this history, it is argued that they do not represent a new approach to anti social behaviour so much as a continuation of the ASBO by other means.

And the abstract of a paper I’ve just submitted to a conference next year on “Penal law, abolitionism and anarchism” (feat. Joe Sim and Vincenzo Ruggiero):

Law after law? Abolitionism and the rule of law

Liberal legal theorists have argued that the law has an inherent morality (Simmonds 2007), making it an intrinsically valuable social project, and that the institutions and practices making up the rule of law encapsulate key virtues of the concept of law (Waldron 2008). However, the rule of law as we know it is predicated on two concepts which are alien to anarchist and abolitionist perspectives – the state, its authority ultimately guaranteed by unchallengeable coercive power, and its antagonist the rights-bearing, self-interested individual. Can we think in terms of the rule of law without invoking state coercion or competitive individualism? Is the morality of law an ideological construct specific to the era of capitalist competition, or does it embody ideals which would remain valuable in a society not predicated on capitalist economics and state coercion? If we assume that such a society would have its own (rule of) law, how do we envisage transitional or prefigurative forms of law? This paper suggests some provisional answers to these questions, drawing on contemporary jurisprudential debates and on studies of the alternative legalities imposed by gangs and ‘armed struggle’ groups.

Now I just need to write one explaining the connection between those two…

One Comment

  1. Posted 18 December 2013 at 14:05 | Permalink | Reply

    Hi Phil, has the Manc got Cities of Ideas, ed by Rodger and Colls? I’ve got a chapter in that about law enforcement which might give you a useful datapoint for your latter paper (of which “yay Joe Sim!”). It talk about how Sheffield radicals of the 1850s experimented with ultra-local government, including a couple of attempts to set up community courts. Also, I saw but didn’t speak to this guy last week:
    He’s working on the history of self-policing in the South African townships.
    The takeaway from this is that there seems to be a general desire, in modern urban societies, and among the egalitarian as well as the hierarchical, to fill power vaccuums with institutions dealing in legitimate force. Which, essentially, why I’ve not described myself as an anarchist for about 15 years*: I think that the goal has to be maximally-accountable state power, rather than the abolition of any force monopoly.
    *except when people say “why did you just pick up that litter?”

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