Towards the rule of law

Here’s the opening of a paper I’ve just submitted:

Law, counter-law and the rule of law: resources for radicals

The law and the ideal of the rule of law are often associated with the maintenance of the status quo, and with ideas of ‘law and order’. But is the rule of law an inherently reactionary ideological formation? Do ideas about law have anything to offer to the perspective of a classless society? This paper sets out some basic definitions of the law, and of the rule of law, and considers the impact on them of Marxist and Gramscian critiques of ideology. An examination of some attempts at counter-law and regulation from below leads to the conclusion that the model of law, and the ideal of the rule of law, may offer more resources for radical and progressive movements, and for democratic politics more generally, than Marx’s or Gramsci’s critique would seem to imply.

The collection it’s intended for has an abolitionist & anarchist slant; I don’t usually refer to ‘the perspective of a classless society’ as a framing device. (Not that it’s necessarily a bad framing device.) The “attempts at counter-law” I examine are those associated with gangs in Salford (via Walklate), the IRA in West Belfast (via Hamill) and the Italian armed struggle groups of the 1970s; the Red Brigades were particularly fond of claiming law-making power for themselves, and particularly bad at exercising it.

And here, for anyone curious about where I’m coming from, are the references.

Brehm, S. and Brehm, J. (1981), Psychological reactance: A theory of freedom and control. New York: Academic Press.
Cole, D. (2001), “‘An Unqualified Human Good’: E.P. Thompson and the Rule of Law”. Journal of Law and Society 28(2): 177-203.
Della Porta, D. (1995), Social movements, political violence and the state. Cambridge: Cambridge University Press.
Fuller, L. (1964), The morality of law. New Haven: Yale University Press.
Hay, D. (2011; originally published 1975), “Property, authority and the criminal law”. In Hay, D., Linebaugh, P., Rule, J., Thompson, E. and Winslow, C. (eds.), Albion’s Fatal Tree. London: Verso.
Engels, F. (1968; composed 1890), “Letter to Conrad Schmidt”. In Marx, K. and Engels, F., Marx and Engels Correspondence. New York: International Publishers.
Gramsci, A. (1971), Selections from the Prison Notebooks. New York: International Publishers.
Hamill, H. (2002), “Victims of paramilitary punishment attacks in Belfast”. In Hoyle, C. and Young, R. (eds.), New visions of crime victims. Oxford: Hart.
Manconi, L. (1986), “The language of terrorism: a critique of the Red Brigades”. Emergency 4:37 40.
Manconi, L. (1991), ‘The political ideology of the Red Brigades’. In Catanzaro, R. (ed.) (1991), The Red Brigades and left-wing terrorism in Italy. London: Pinter.
Marx, K. (1968; composed 1845), The German Ideology. Moscow: Progress Publishers.
Marx, K. (1977; composed 1859), A Contribution to the Critique of Political Economy. Moscow: Progress Publishers; text.
Monicelli, M. (1978), L’ultrasinistra in Italia 1968–1978. Rome: Laterza.
Moss, D. (1989), The politics of left-wing violence in Italy, 1969–85. London: Macmillan.
Progetto Memoria (1994), La mappa perduta. Milan: Sensibili alle foglie.
Progetto Memoria (1996), Le parole scritte. Milan: Sensibili alle foglie.
Simmonds, N. (2005), “Jurisprudence as a Moral and Historical Inquiry”. Canadian Journal of Law and Jurisprudence 18:249-76.
Simmonds, N. (2007), The law as a moral idea. Oxford: Oxford University Press.
Thompson, E. P. (1975), Whigs and hunters. Harmondsworth: Allen Lane.
Walklate, S. (1998), “Crime and community: fear or trust?”. British Journal of Sociology 49(4):550-569.
Waldron, J. (2008), “The concept and the rule of law”. Georgia Law Review 43(1):1-61.

I made a couple of false starts on this paper, one of which was a critique of Hay; I realised after I’d written a couple of paragraphs that defining the rule of law, examining Gramsci’s concept of hegemony and offering a close reading of “Property, authority and the criminal law” would be altogether too much to ask from my readers. I’ll return to that some time and try to get a paper out of it. The other writers I was hoping to get round to in this paper are Pashukanis and Kamenka & Tay; again, that will have to be another paper. Right now I’ve got to write something intelligent – and not too tendentious – about restorative justice. Oh, and mark 78 essays, or possibly 80…

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