From Law to Popular Justice: Beyond Antinomialism
| Published date | 01 September 1996 |
| Author | Alan Norrie |
| DOI | 10.1177/096466399600500306 |
| Date | 01 September 1996 |
| Subject Matter | Articles |
FROM LAW TO POPULAR
JUSTICE: BEYOND
ANTINOMIALISM
ALAN
NORRIE
Queen Mary and Westfield College, University of London
POPULAR JUSTICE: IN SEARCH OF A CONCEPT
HIS
ARTICLE is prompted by what I see as a long-standing failure to
provide an adequate conceptualization of popular justice in the soci-
JL ology of law. Boaventura de Sousa Santos has written of community
(or popular) justice, alongside legal pluralism, as part of the core debate in the
sociology of law, but he notes the plasticity and increasing vagueness of these
terms such that ’the core debate is increasingly a debate about what is being
debated’ (de Sousa Santos, 1992: 132). He further notes the relative failure to
emphasize the challenge that community justice and legal pluralism make to
liberal political and legal theory, and a related tendency to take the state and
law, understood as an autonomous process, for granted. My argument will be,
somewhat inverting this latter point, that the failure to achieve a more precise
conceptualization of popular justice is itself linked to the failure to challenge
liberal theory and the idea of law as an autonomous institution. Until we inter-
rogate a certain way of understanding law, we will not understand popular or
community justice. The latter terms cover a number of differentiated and
specific phenomena in practice, but what governs their possibility in the soci-
ology of law is the conceptual relationship that is established between them
and a liberal conception of law as autonomous and formal. If we challenge the
concepts of liberal legality, moving in a sense from law to popular justice, we
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will find a more adequate way of talking about the latter. If we do not do so,
our comparative understanding of different regulatory systems will remain
forever imprecise.
The conceptual failure at the heart of popular justice has different aspects
and has a Foucaultian as well as a Weberian form. It is the latter, however, that
is the more important in terms of the influence it has had on the popular justice
debate. The central problem is a falsely dichotomizing tendency that I term
antinomialism,1 which has its main expression in the formal/informal oppo-
sition in Weber’s sociology of law, but which ramifies into a series of
dichotomies which include form and substance, the legal (or bureaucratic) and
the popular, the indigenous and the statal, the local and the national, the
rational and the irrational, and the individual and the social. My argument will
be that antinomialism places western law on an imperialist pedestal and sets
popular justice up to fail. There is a need to cut western law down to size
(which is not the same thing as dismissing it either theoretically or politically)
and to give popular justice its due by developing a legal methodology which
can explain what western law and popular justice have in common as differ-
ently constituted juridical modes. That methodology, I argue, should be
dialectical, in a sense that has not been employed before in legal theory. This
gives rise to the idea of ’dialectically constituted architectonics of law and
justice’, in a way to be explored further on. The argument will be that a criti-
cal analysis of legal formalism can constitute the basis for constructing such a
methodology, which is then applied, albeit briefly, to a particular instance of
popular justice. While the bulk of the article is therefore focused on western
law, its target is a western conception of such law’s ’Other’, as importantly
formulated by Weber (and also Foucault mutatis mutandis) as supposedly
irrational, informal, popular justice. Its aim is to rescue popular justice as a
phenomenon from the morass of false dichotomies which render it theoretic-
ally incomprehensible, and also politically unattractive.
I begin by illustrating incomprehensibility. In their book on community
mediation in the United States, Merry and Milner write that popular justice
is ’less inclined to rely on legal forms of discourse and more on the discourse
of the world outside the legal system’, but they also say that ’many of the pro-
cedures, symbols, rituals, and forms of language used in popular justice derive
from state law’ (Merry and Milner,1993: 4-5). They write that popular justice
’provides a stark contrast to the violence and coercion of law’, yet also that it
’does not necessarily produce a non-violent justice’ (p. 7). They claim that
popular justice does not ’typically challenge the hegemony of state law’, but
also that it ’confronts the legal system with a persistent critique’ (p. 9).
In the lead chapter, Sally Merry argues that popular justice may involve a
’counterlegal order’ arising from ’spontaneous acts of collective judging and
violence’ (Merry and Milner, 1993: 31), but she also characterizes it as a
’judicial institution located on the boundary between local ordering and state
law’ (p. 32). She characterizes popular justice culturally (i.e. in the way it is
represented) as similar to indigenous or local ordering, but practically as
homologous to state law (p. 35). Yet her four-part typology of popular justice
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forms identifies two types (the reformist and the socialist) that are ’more
closely tied to state law than to indigenous law’ (p. 45), and two types (the
communitarian and the anarchic) that are closer to indigenous ordering (pp.
45-9). Within this typology, the experience of Papua New Guinea is repre-
sented as falling under both the ’statal’ reformist form and the ’local’ com-
munitarian form. Merry concludes that ’by and large, popular justice tends to
reinforce and entrench relations of power rather than to transform them’, but
she also claims that ’the argument that informal justice is an expansion of state
control by nonstate means is only one side of the story’ (p. 61).
Merry and Milner may claim that the ambiguities in their approach result
from the ambiguous character of the phenomena they seek to represent, but
it is surely the test of a theoretical method that it can adequately locate in ana-
lytical terms the phenomena it is used to investigate. It should explain rather
than simply embody or reflect ambiguities. In the authors’ account, popular
justice is trapped on a borderline between the statal and the local, forcing it to
look both ways at once, but that borderline is a theoretical construct, and it
needs interrogation and critique if we are to understand the phenomena under
investigation.
At its heart, the theoretical problem is one of reconciling a dominant con-
structivist/structuralist approach with a necessary residual emphasis on
agency.2 Popular justice is primarily conceived within the dominant structures
of law and state, but such an approach fails to make space for conflict and
change and, therefore, has to be supplemented with reference to struggle and
opposition from beyond the law and state. However, because of the domi-
nance of the constructivist approach, such a supplement can only take the
form of a primary, essentially unconditioned, moment of agency. Thus while
popular justice is essentially parastatal, a space must also be granted for it to
be ’local’ or ’indigenous’. Yet these latter ’terms of innocence’ can hardly in
truth be said to have a real historical point of reference, and so they are quickly
returned into the web of construction that predominates. Popular justice is
either inchoate or given form by returning it into the arms of what it sup-
posedly is not: the legal, the formal rational, the bureaucratic, the statal.
There is a general antinomial problem in the analysis of popular justice,
which is well expressed by Fitzpatrick in a paper he prefaces with the chal-
lenge of William Blake: ’Unorganised innocence: an impossibility’ (Fitz-
patrick, 1992). It seems to me that all the antinomial terms I have described
are variations on the theme so neatly skewered by this Blakean epigram. In
this article, my focus will be on the form of the antinomy that has been most
central to the popular justice debate: the dichotomy between the formal and
informal. I shall take this dichotomy to be central to Weber and the product
of the neo-Kantian, essentially juridical, world-view that informs his work
(Norrie, 1993a) and that, therefore, informs the popular justice debate. Since
Weber’s view of law is fundamentally skewed, any view of popular justice that
starts out from it will also be skewed. I argue that a Weberian conception of
law and legal formalism generates a correlative antinomial conception of infor-
malism, and it is this that lies at the heart of the problem of popular justice.3
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My argument will be that in order to conceptualize adequately the idea of
popular or informal justice, we need to develop a methodology that can dis-
place the concepts of formal law and justice that govern our thinking on
popular justice. The failure to understand informalism stems from a prior
failure to understand legal formalism.
What is to be put in the place of this antinomial problematic? One possi-
bility is Foucault. Fitzpatrick’s Foucault-influenced account (Fitzpatrick,
1987, 1992a) should be read as a criticism of one dominant conception of
popular justice rather than a rejection of its possibility tout court, for he ulti-
mately wishes to affirm the possibility of alternative legalities. But there are
grounds for arguing, as I will in the next section, that the Foucaultian posi-
tion on which he draws does not possess the theoretical resources with which
to explain the phenomenon either. The use of...
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