After Government? On Representing Law Without the State
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00526.x |
| Date | 01 January 2005 |
| Author | Simon Roberts |
| Published date | 01 January 2005 |
THE
MODERN LAW REVIEW
Volume 68 January 2005 No 1
After Government?
On Representing LawWithout the State
Simon Roberts
n
For the greater part of the 20thce ntury, representationsof law as state law weredomina nti nthe
legal scholarship of the West. But over the last thirty years sustained attempts have been made,
notably under the self-conscious banner of legal pluralism, to loosen the conceptual bonds
between law and government. Early on,acephalous societies i nformerly colonial territories and
local groupings within the metropolis were represented as legal orders. Latterly, as attention
shifted to orderings at regional and global level beyondthe nation state,attempts have been made
to delineate a general jurisprudence. It is argued herethat these conceptual revisions have for the
most part been problematic, made in the face of strong evidence li nking the cultural assemblage
we havecome to call law with projects of government.The lecture concludes with a plea that we
should be verycautious in representing what are essentially negotiatedorders, whether at local or
global level,as legal orders; these remain signi¢cantly di¡erent from those at the level of the state.
Today, under an o nslaughtof jural discourse and institutional des ign, the distinctive rationalities
and values of negotiatedorder, while arguablyde serving to be celebrated, are e¡ectivelye¡aced.
In the opening chapter of his great work on the sociology of law, Eugen Ehrlich
uttered a now famous lament for ‘the tragic fate of juristic science’in its focus on
the rules followed in judicial decisions and its devotion‘exclusively to state law’.
1
Ehrlich’s identi¢cation of state law as the central focus of legal scholarship could
have been generalised right across ‘the West’ at that time; and he might have gone
further - subject to one important quali¢cation, there was no other kind of law.
This quali¢cation arises from the long-time presence, alongside and underlying
state law, of another hierarchy. In the West there was ‘the close and complex rela-
tionship between the rise of Christianity and the emergence of certain deep pre-
suppositions about the nature and roleof law.’
2
The closeness ofthis relationship is
n
Law Department, London School of Economics and Political Science.This is a revised text of the
thirty-third Chorley Lecture, given at the London School of Economics and Political Science on 9
th
June,20 04. I am grateful to Maurice Bloch, John Comaro¡,TimMurphyand the lateIsaac Schapera for
conversations over many years around the questions discussed here. NicolaLacey, Martin Loughlin,
David Nelken, Maria n Roberts, Declan Roche and William Twining made invaluable comments on
earlier drafts of this text.
1 E. Ehrlich, Grundlegungder Soziologie des Rechts (1913); Fundamental Principles of the Sociology ofLaw,
tran.W. Moll (Cambridge,Mass: Harvard UP, 1936),13.
2 W.T. Murphy,The Oldest Social Science? Con¢gurations of Law and Modernity, (Oxford: Clarendon
Press,1997),8.
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(1)MLR 1^24
directly re£ected in the unselfconscious way in which lawyers have recognised
elements of the Judeo-Christian cosmology as ‘law’ and their readiness to speak
of the lawof God and the law of the King as twin components in a closed set. In
both contexts, the paradigmatic markers of jural identity were the legislator and
the judge, with their respective discursive formulations.
Locally, this understanding of law’s nature and implication with government
had been dominant in England for a long time. In the modern period, Austin
articulated much of it, notably the element of command, in the early 1830s;
3
Maine ¢lled in the rest a bit later, particularly through his shift of focus to the
judge.
4
Here too we should not be startled to ¢nd the following matter-of-fact
statement on the openi ng page of a deliberately prosaic work about the common
law by a procedure specialist, published by Sweet & Maxwell in 1911: ‘There
are two kinds of law ^ the lawof God and the law of the State.There is no other
kind of law.’
5
So far as the latter was concerned, while its origins might be repre-
sented as lying ‘below’ in the immemorial traditions of the common law, subse-
quent growth was accounted for in the aspirations and practices of self-conscious
government.There waspretty generalagreement that law developed as an instru-
ment of rule in the context of kingship and matured with the process of state
formation.
Of course, the picture was never quite as simple or clear-cut as that. First, there
was the whole clouded question of how to characterise the negotiated order pre-
vailing between nation states. Here it has long been conventional to speak of that
as ‘international law’. Again, if you look at instruments like the British Central
Africa Order in Council of 1902, which formalised arrangements in the Nyasa-
land Protectorate, you will see references to what was there called ‘native law’.
6
This labelling was subsequently taken as a licence across quite wide areas of
anthropological andlegal scholarship, to speak even of local acephalous orderings
in the colonial world as ‘law’.
But all that now seems long ago. Forduring the second half of the 20
th
century,
this scarcely quali¢ed view of law as ‘state law’lost ground to much more expan-
sive formulations: law became increasingly seen as somehow ‘everywhere’ in the
social world,
7
present even in the simplest aggregations; it was not necessarily
linked to self-conscious regulatory activity; the nation state itself was now
depicted as consisting of multiple, interpenetrating ‘legalities’;
8
the local, purpo-
sive orderings of non-state actors (‘private ordering’) were also represented as law
3 J.Austin,The ProvinceofJurisprudenceDetermined(1832),W. E. Rumbleed. (Cambridge: Cambridge
UP, 1995).
4 H. S.Maine, Ancient Law (London: Murray, 1861).
5 W. B.Odgers,The Common Law of England, (London:Sweet & Maxwell, 1911),1.
6 Article 20.
7 Symptomatic of this sh ift were the inclusive words with which Niklas Luhmann opened his
Rechtssoziol ogie of 1972:‘All collective human li fe is directly or indirectly shaped by law. Law is,
like knowledge,an essential and al l-pervasivefact of the human condition’.English trans. ASocio-
logicalTheory of Law (London: Routledge & Kegan Paul,1985),1.
8InToward a NewCommon Sense:Law, Scienceand Politicsin ParadigmaticTransition (London: Routledge,
1995), Boaventura de Sousa Santos, notes that beyondstate law,di stinctivein bei ng‘the only self-
re£exive legal form, that is the only legal form that thinks of itself as law’, lies ‘a great variety of
legal orders circulating in society’ (429).
After Government? On Representing LawWithout the State
2rThe Modern LawReview Limited 2005
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