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Social Order Beyond Law and Order and Rule of Law

Info: 2050 words (8 pages) Law Essay
Published: 4th Dec 2020

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Nick Cheesman argues that “law and order makes order; the rule of law is orderly” (Cheesman 2014:111).Cheesman’s concept is supported by Lon Fuller, Martin Krygier, Didier Fassin, Boaventura Santos and Sally Merry and each have different approaches to the normative dimension of law. Cumulatively these theorists demonstrate law and order and rule of law make social order in both local and global settings. However, thisessay argues although the rule of law and law and order make social order in local and global settings, social order still exists when neither rule of law or law and order is present. This argument is supported firstly by defining law and order and rule of law. Secondly, an analysis reveals how social order is made by law and order in local settings. Thirdly, it is revealed that social order is made by rule of law in global settings. Fourthly, an analysis depicts how social order exists in cases of extralegal violence when neither law and order and rule of law are apparent. Conclusively this essay depicts that social order can exist when law and order and rule of law are not apparent however moral, or value frameworks are not evident when this is the case.

LAW AND ORDER VS RULE OF LAW

It is important to define the concepts law and order and rule of law to reveal how each construct social order and because the two notions are often conflated. The concepts have an opposing, asymmetrical relationship characterized by adverse methods and unalike social order types (Cheesman 2014). The core difference between the two concepts is that law and order makes order by eliminating restlessness that may involve arbitrary methods (Cheesman 2014). Contrastingly, the rule of law is concerned with ridding arbitrariness, it does not aim to eliminate disorder rather it is characterised by an inherent type of order and thereby is orderly (Cheesman 2014). The concepts will now be defined separately to further clarify how each concept constructs social order differently. 

Law and order creates social order via exogenously imposed discipline and is mainly concerned with ridding restlessness via particularistic injunctions delivered administratively (Cheesman 2014). Thereby law and order “entails a mode of association whereby people are subdued so that they might be protected” (Cheesman 2014:111) When law and order is present, discipline is obtained via utilizing state’s forces and the concomitant compliance of the target population (Cheesman 2014). Domination via a superordinate-subordinate political relationship of some sort is a necessity and desirable so that order is obtained (Cheesman 2014). Thereby law and order is a condition of supervision, instruction, prescription and notification (Cheesman 2014). Law and order privileges administrative institutions and to maintain law and order, authoritative institutions act upon specific injunctions to intervene directly in people’s lives (Cheesman 2014). Under law and order restlessness may be eliminated through non-arbitrary or arbitrary means to achieve social order (Cheesman 2014).

Conversely, rule of law is an ideal for what law ought to be with a central concern of ridding arbitrariness, thus it is inherently orderly and creates social order. Rule of law is not necessarily what law is. Rule of law reliesprimarily on general rules to maintain social order (Cheesman 2014). It emphasises the role of juridical institutions however, discipline in rule of law is an internal feature of political relations, it is not an imposed but rather characteristic (Cheesman 2014). Under the rule of law ideal, public adjudication according to general rules guides conduct to enable people to make decision on their own accord (Cheesman 2014).

The rule of law is founded upon moral elements which make it orderly. This is illustrated by Lon Fuller’s eight moral principles that construct the ideal legal system (Fuller 1969). Fuller’s principles are: that there must be rules, these rules must be available publicly, prospective, understandable, consistent, possible to perform, sufficiently stable so citizens may orient their actions by them, and administered in ways congruent with their terms (Fuller 1969). Fuller admits these principles are not easy to achieve, rather they makeup a framework for an ideal legal system; they are what law ought to be (Fuller 1969). Fuller’s system based on morals reflects rule of law as the principles do not provide opportunity for arbitrary power. This is exemplified by Fuller’s explanation that Hitler’s arbitrary power which enforced unpublished laws and retroactive laws clashes with the moral principles of promulgation and prospective laws (Fuller 1969). Fuller’s moral framework is thereby parallel with the rule of law’s central concern of ridding arbitrary power. Moreover, the eight moral principles fall under the concept of the rule of law as they are idealistic, general rules for the maintenance of social order and thereby are inherently orderly. Conclusively, Fuller’s eight moral principles exhibit rule of law and how moral elements make the concept orderly.

Martin Krygier further demonstrates that rule of law is constructed by moral elements which make it orderly. Krygier illustrates this via his approach which defines thin and thick accounts of the rule of law (Krygier 2015). The thin approach refers to conceiving of the rule of law through formal properties of laws and legal institutions which often adopt or extend Fuller’s moral principles (Krygier 2015). The thick approach to rule of law requires substantive elements from a larger vision of a good society and polity to be present and through which responds to values deeply held by society, like human rights (Krygier 2015). This conception of the rule of law looks beyond abuses of power to societal values founded on moral elements that guide social order (Krygier 2015). Thereby Krygier’s thin and thick accounts of the rule of law embody moral elements that make the concept inherently orderly.

LAW AND ORDER MAKES ORDER IN LOCAL SETTINGS

Didier Fassin’s approach to law illustrates how law and order makes social order in local settings. Fassin examines how police impose law and order in Paris, France and argues social order is created via police practices which are built on a moral framework (Fassin 2015). However, Fassin reveals this social order is sometimes constructed by police practices that involve police discretion to either follow laws established by the government which can be repressive, or to follow the rule of law (Fassin 2015). Fassin claims police tend to be more committed to law and order over the rule of law in interest of keeping their jobs (Fassin 2015). Because of this the social order created by police imposition of law and order in Paris incorporates justified repression (Fassin 2015). Fassin exemplifies this via describing heavy policing that takes place in poor neighbourhoods consisting mainly of families of immigrant origin and police presence is justified as the areas have been deemed tough neighbourhoods by the government and because security has been deemed a political priority (Fassin 2015). Conclusively, Fassin illustrates that even though elements of arbitrary power are apparent, law and order imposed by police in the local setting of Paris makes social order.

RULE OF LAW IN GLOBAL SETTINGS

Social order is also made by rule of law in global settings. This is illustrated by the work of Boaventura Santos and Sally Merry which portrays how human rights (a facet of the rule of law) are orderly in a global setting. Santos presents an idealistic set of rules for how human rights should be conceptualized and practiced around the world (Santos 1997). Santos states that because not all cultures interpret human rights the same way, human rights need to be a cosmopolitan process rather than a globalized localism (Santos 1997). More specifically Santos suggests that a collective, interactive, inter-subjective and networked approach to the concept of human rights is capable of creating multicultural forms of human rights that would be unique and appropriate to differing local settings (Santos 1997). This contrasts the universalized Western approach to human rights currently pushed around the world that Santos deems as inappropriate to various local conditions (Santos 1997). Merry’s work parallels Santos’ notions however focuses on women’s rights against violence (Merry 2006). Merry concludes that human rights have to be tailored to the local context and resonant with the local culture to be accepted (Merry 2006) Conclusively, both Santos and Merry present idealistic rulesets which aim to create human rights social order around the world. Thus, Santos and Merry illustrate how social order is made by rule of law in global settings.

SOCIAL ORDER OBTAINED WITHOUT LAW AND ORDER OR RULE OF LAW

It has been demonstrated that social order is made via law and order and rule of law, however social order can still exist when law and order or rule of law is not present. This is demonstrated through Lee Ann Fujii’s notion that performative social order exists in scenarios of extralegal violence (Fujii 2013). Extralegal violence refers to “acts committed face-to-face that transgress shared norms and beliefs about appropriate treatment of the living as well as the dead” (Fujii 2013:411) Fujii looks at brutal scenarios such the My Lai Massacre during which law and order and rule of law are not applicable. This is exemplified by the massacre which involved a large group of seemingly normal American soldiers whom without instruction engaged in extralegal violence in the form of mass killing of babies, defenseless people, rape, mutilation and humiliation (Fujii 2013). Fujii argued that situations of extralegal violence demonstrated social order that mimicked that of carnival, spectacle and one-man show performances (Fujii 2013). Fujii explained that the My Lai Massacre mimicked the social order of a carnival in which multiple scenes of revelry and inversion occurred at the same time (Fujii 2013). Attention was dispersed and fragmented just as it is during a carnival (Fujii 2013). Thereby, Fujji’s performative approach illustrates that law and order and rule of law do not need to be apparent for social order to exist. However, when neither exist a moral framework or value system is not apparent.

 This essay has exemplified that although the rule of law and law and order make social order in both local and global settings, social order still exists when neither rule of law or law and order is present. This argument has been justified by defining the concepts of law and order and rule of law and revealing how both concepts create social order in both global and local settings. Moreover, the argument was supported by explaining how social order is apparent in events of extralegal violence. However, although social order did remain when law and order and rule of law did not exist, moral and value frameworks did dissolve.

References

  • Cheeman, Nick. 2014. “Law and Order as Asymmetrical Opposite to the Rule of Law.” Hague Journal on the Rule of Law. 6(01):96-114
  • Fassin, Didier. 2015. At the Heart of the State: The Moral World of Institutions. Pluto Press.
  • Fujii, Lee Ann. "The puzzle of extra-lethal violence." Perspectives on Politics 11(2):410-426.
  • Fuller, Lon L. 1969. The Morality that Makes Law Possible. Revised Edition. New Haven and London: Yale University Press.
  • Krygier, Martin. 2015. ‘Rule of Law (and Rechtstaat)” International Encyclopedia of the Social & Behavioral Sciences, (2nd edition) ed. J.D. Wright. Oxford: Elsevier.780 787.
  • Merry, Sally Engle. "Transnational human rights and local activism: Mapping the middle." American anthropologist 108(1):38-51.
  • Santos, Boaventura de Sousa. 1997.  "Law: A map of misreading. Toward a postmodern conception of law." Journal of Law and Society 14 (3): 1-15.

 

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