WIP 1: The rule of law – beyond or towards?

Sorry about the long silence. I’ve been reading a lot about strict liability, for reasons connected with the critique of regulatory justice which I’ve been playing with for the last several years: only another book and about a dozen papers to read, and then I can definitely start rewriting it, probably. I’m planning to read The Concept of Law for a third time, but accompany each chapter with the relevant chapter in the anthology Reading HLA Hart’s The Concept of Law; I’m sure that’ll make for some top blogging. And I’ve got a couple of papers to write, and a project to plan, and then there’s teaching, not to mention marking.

Anyway, here’s what I’m working on at the moment. I’m not sure if all the angles trailed in the original abstract will make it into the finished paper – the idea of gangs as sites of ‘wild’ regulation is one I keep meaning to get round to exploring – but I’ll do my best. This is for an anthology being put together for 2015 publication by the European Group for the Study of Deviance and Social Control, for whose 2014 conference on abolitionism it was originally intended (I wasn’t able to attend due to illness).

Law after law? Abolitionism and the rule of law

According to Simmonds, the law has an inherent morality, making it an intrinsically valuable social project; Waldron argues that the institutions and practices making up the rule of law encapsulate, and may constitute, key virtues of the concept of law. However, this liberal vision of the rule of law 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.

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