Law and order as asymmetrical opposite to the rule of law

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Law and order as asymmetrical opposite to the rule of law
  Hague Journal on the Rule of Law Additional services for Hague Journal on the Rule of Law: Email alerts: Click hereSubscriptions: Click hereCommercial reprints: Click hereTerms of use : Click here Law and Order as Asymmetrical Opposite to theRule of Law Nick Cheesman Hague Journal on the Rule of Law / Volume 6 / Issue 01 / January 2014, pp 96 - 114DOI: 10.1017/S1876404514001031, Published online: 06 March 2014 Link to this article: How to cite this article: Nick Cheesman (2014). Law and Order as Asymmetrical Opposite to the Rule of Law .Hague Journal on the Rule of Law, 6, pp 96-114 doi:10.1017/S1876404514001031 Request Permissions : Click here Downloaded from, IP address: on 07 Mar 2014 Downloaded: 07 Mar 2014IP address: 96 Nick CheesmanHJRL 6 (2014) Law and Order as Asymmetrical Opposite to the Rule of Law  Nick Cheesman*  Although law and order is often con fl ated with the rule of law, the two concepts are asymmetrically opposed. Asymmetrical opposites do not occupy poles on a scale of shared values. One is not a negative of the other, as rule of men tradi-tionally has been to the rule of law. Nor does one occupy part of a continuum extending down from the other, like rule by law in relation to the rule-of-law ideal.  ey are not symmetrically related.  ey are opposed because their speci fi c contents are adverse. Whereas the rule of law is characteristically concerned with eliminating arbitrariness through general rules applied juridically, law and order is primarily concerned with eliminating restlessness through particularistic injunc-tions delivered administratively. Di ff  erent values inhere to each.  eir opposition is in principle. Consequently, they cannot be con fl ated without obfuscating their distinctive qualities, thereby casting doubt on the meaning of the rule of law as a political ideal. I 󰁮󰁴󰁲󰁯󰁤󰁵󰁣󰁴󰁩󰁯󰁮 Law and order is often conjoined with the rule of law. We fi nd the two con fl ated in popular culture, such as when the president in an American television series stresses that while invading a make-believe part of Africa ‘our priority is to main-tain order in the streets. People need to see that their country is being governed Hague Journal on the Rule of Law, 6 : 96–114, 2014 © 2014 T  .  M  . C  . A SSER   P  RESS   and Contributors doi:10.1017/S1876404514001031* Research Fellow, Department of Political & Social Change, Australian National University, Canberra. My thanks to Martin Krygier, Terry Halliday, Dan Slater and Tom Ginsburg for read-ing and commenting on various iterations of this article, and to Reuban Balasubramaniam for email exchanges on the topic. Special thanks to Basil Fernando for the many thought-provoking exchanges we have had on the rule of law, and also to colleagues at the Regulatory Institutions Network, Australian National University, for their observations at a seminar in 2013 on the arti-cle’s themes. Lastly, I am indebted to the Journal’s editors; to Ronald Janse, for his role in getting the paper from fi rst submission to publication, and to two conscientious reviewers for their keen insights and recommendations: where I have adopted their advice, the article is much improved for it; where not, I am better aware of some objections it is likely to encounter. Downloaded: 07 Mar 2014IP address: 97 Law and Order as Asymmetrical Opposite to the Rule of Law  under the rule of law’. 1  In this statement, fi ction does resemble fact, even if the fact is, I argue, itself fi ction. Law and order is among the rule-of-law types active in the United Nations system today. 2    e mandates of international missions tend to link the rule of law with law and order, despite the promotion of the one often running contrary to the goals of the other. 3  Scholarly and professional research also brackets law and order with the rule of law. Some studies equate the restoration of law and order after con fl ict, and inter-nal security – which can mean anything, depending upon what we identify as the referent object of security – with the rule of law. 4  Another by graduate students at Princeton University links the ‘establishment of public order and the rule of law’ to criminality, terrorism and institutional underdevelopment. 5    e list could go on and on: drug eradication e ff  orts, the arming of police o ffi cers, programmes to combat human tra  ffi cking and myriad other activities today give the rule of law a meaning that in some settings is practically indistinguishable from law and or-der. 6  e con fl ation of the rule of law with law and order, although not new, has become commonplace for at least two main reasons. One reason is that as the rule of law has become an all-encompassing global good, an international hurrah term, as Martin Krygier has put it, 7  it has eclipsed other political ideals.  e rule of law is arguably the   preeminent legitimating political ideal in the world today, even though the meaning of the ideal is often contested, and for some pessimists, ir-retrievably lost. 8  Another reason for the con fl ating of the rule of law with law and order is that as the rule of law’s stature has grown, it has also subsumed other 1  Episode 1, Twenty-Four  , dir. John Cassar, perf. Kiefer Sutherland, Twentieth Century Fox, 2009. 2  Jeremy Matam Farrall, United Nations Sanctions and the Rule of Law   2007, p. 33. Richard Zajac Sannerholm, ‘Looking Back, Moving Forward: UN Peace Operations and Rule of Law Assist-ance in Africa, 1989-2010’, in: 4 Hague Journal on the Rule of Law   (2012), p. 359. 3  Per Bergling et al., ‘Rule of Law and Security Sector Reform: Casual Assumptions, Unin-tended Risks and the Need for Norms’, in: 4 Hague Journal on the Rule of Law   (2012), p. 98, at p. 111. Stephen Humphreys,  eatre of the Rule of Law: Transnational Legal Intervention in  eory and Practice   2010, p. 165. 4  See for instance, Seth G. Jones et al., Establishing Law and Order after Con  fl  ict   2005. Stephan Haggard and Lydia Tiede, ‘  e Revival of the Rule of Law in the Wake of Civil War’, in: 4 Hague  Journal on the Rule of Law   (2012), p. 120. 5  Cited in Whit Mason, ‘Axioms and Unknowns’, in Whit Mason (ed.),  e Rule of Law in  Afghanistan: Missing in Inaction  2011, p. 319, at p. 319. 6  Humphreys,  eatre of the Rule of Law  , p. xvii. 7  Martin Krygier, ‘Four Puzzles about the Rule of Law: Why, What, Where? And Who Cares?’, in James E. Fleming (ed.), Getting to the Rule of Law   2011, p. 64, at p. 64. 8  Brian Z. Tamanaha, On the Rule of Law: History, Politics,  eory   2004, p. 4. Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’, in: 21 Law and Philosophy   (2002), p. 137. David Collier et al., ‘Essentially Contested Concepts: Debates and Applications’, Downloaded: 07 Mar 2014IP address: 98 Nick CheesmanHJRL 6 (2014) concepts.  e rule of law ends up not so much as a singular essentially contested concept but rather as a package of goods, along with others like equality before the law, government bound by law, human rights, security, justice, reconciliation; and, of course, law and order. 9  Now, if with Lawrence Solum we propose to think about the rule of law not as a single essentially contested concept but as a ‘set of ideals connected more by family resemblance than by unifying conceptual structure’ we may not be too concerned by all this semantic bundling up of other concepts under the rule of law’s rubric. 10  But if with Stephen Humphreys we agree that as ‘a blanket term intending to cover multiple public goods, “the rule of law” is overused, of limited analytic or descriptive value, and potentially distorting’ then we have cause for concern, and grounds for adopting di ff  erent approaches to our study of the con-cept. 11  I am inclined towards the latter view.  erefore, in this article, I propose to re-examine the rule-of-law idea by pulling out from under the blanket just one of those multiple public goods with which it is ordinarily associated, namely, law and order. I argue that law and order is not a political ideal connected to the rule of law by family resemblance at all. Rather, it is a concept with an altogether di ff  er-ent relation to the rule of law. Speci fi cally, it is a concept asymmetrically opposed to the rule of law. In the next section, I explain what I mean by asymmetrical opposition, how it di ff  ers from symmetrical opposition, and make a case for the study of concepts through their opposites. I then examine recent literature on rule by   law to illustrate a symmetrical relation to the rule of law, one with, I argue, limited analytic util-ity. Subsequently, I posit that law and order is asymmetrically opposed to the rule of law. Law and order is neither consonant with the rule of law, nor a negative of the rule-of-law ideal. It is a concept with its own contents, distinctive from – and in certain respects adverse to – the rule of law. I conclude with some comments on the implications of this reconceptualization for research on the rule of law as an idea and in practice. in: 11  Journal of Political Ideologies   (2006), p. 211. Judith N. Shklar, ‘Political  eory and the Rule of Law’, in Stanley Ho ff  mann (ed.), Political  ought and Political  inkers   1998, p. 21.  9  Markus Schultze-Kraft, ‘Security and the Rule of Law in Colombia and Guatemala: Priorities, Trade-O ff  s and Interdependencies’, in: 4 Hague Journal on the Rule of Law   (2012), p. 135, at p. 136. Doug Porter et al., ‘  e Justice-Security-Development Nexus:  eory and Practice in Fragile and Con fl ict-A  ff  ected States’, in: 5 Hague Journal on the Rule of Law   (2013), p. 310, at p. 314. 10  Lawrence B. Solum, ‘Equity and the Rule of Law’, in Ian Shapiro (ed.),  e Rule of Law   1994, p. 120, at p. 121. 11  Humphreys,  eatre of the Rule of Law  , p. xxv. Downloaded: 07 Mar 2014IP address: 99 Law and Order as Asymmetrical Opposite to the Rule of Law  S 󰁴󰁵󰁤󰁹    󰁯󰁦  C 󰁯󰁮󰁣󰁥󰁰󰁴󰁳   󰁴󰁨󰁲󰁯󰁵󰁧󰁨  A  󰁳󰁹󰁭󰁭󰁥󰁴󰁲󰁩󰁣󰁡󰁬  O 󰁰󰁰󰁯󰁳󰁩󰁴󰁥󰁳 Carl Schmitt once wrote that the rule of law is conceptually empty ‘if it does not receive its actual sense through a certain opposition’. 12  Schmitt believed that the rule of law needed to be juxtaposed with some other principle or principles of government to have a meaning of its own. 13  I think that in this respect Schmitt  was correct, and that his observation points to a lacuna in contemporary work on the rule of law that has in part motivated this article, namely, the lack of debate around concepts opposed to the rule of law: not concepts on the same scale of practices, di ff  erent in degree, but concepts that are di ff  erent in kind.In agreeing with Schmitt that the rule of law should obtain its actual sense through a ‘certain opposition’, I am not being so crude as to imply that a wide range of ideas and practices do not exist that can be classed as the rule of law, nor that only through opposing concepts, or asymmetrical ones, can the rule of law be made intelligible. Gottfried Dietze once correctly observed that the struggle for law is not reducible to absolute values. 14  Dietze was concerned to traverse and map out the distance between two very di ff  erent conceptions of the rule of law in an era dominated by ideological clashes. But if in his time the ground between concepts needed to be opened up and better explored, today we face a di ff  erent problem, one in which the rule of law suffers from too much ‘conceptual stretching’. 15  Put another way, whereas Gary Goertz has emphasised the need for students of concepts to study the grey zone between polar opposites – as well as the negative ends of conceptual continua – I think that debate about rule of law currently su ff  ers from too much grey, and an absence not only of concern for what constitutes ‘black’ on its scale, but what other colours exist on a much wider spectrum of political concepts that are at present concealed by the fog of greyness. 16  e opposing of concepts in the study of politics enables scholars to make powerful arguments about ideas and institutions. We fi nd in the work of Judith 12  Carl Schmitt, Constitutional  eory   2008, p. 181. 13  Schmitt was of course not writing of the rule of law in the Anglo-American tradition but of its continental counterpart. Scholars di ff  er on the extent to which the two traditions share fea-tures. I assume for the purposes of this article that the two have in common certain core concerns  with non-arbitrariness and predictability of state action. For a discussion of the two, see Gian-luigi Palombella, ‘  e Rule of Law as an Institutional Ideal’, in Leonardo Morlino and Gianluigi Palombella (eds.),  Rule of Law and Democracy: Inquiries into Internal and External Issues   2010, p. 3, at pp. 11-26. See also N.W. Barber, ‘  e Rechtsstaat and the Rule of Law’, in: 53 University of Toronto Law Journal   (2003), p. 443. 14  Gottfried Dietze, Two Concepts of the Rule of Law   1973, p. 12. 15  Giovanni Sartori, ‘Concept Misinformation in Comparative Politics’, in: 64  American Politi-cal Science Review   (1970), p. 1033, at p. 1034. 16  Gary Goertz, Social Science Concepts: A User’s Guide 2006, pp. 33-35.
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