Category Archives: Criminal Law

The trouble with law and order

By guest blogger Nick Cheesman

What is law and order? How does it differ from the rule of law? And what are the implications of the difference between the two for our understanding of how and why political and legal institutions act as they do? These questions have a new salience for Americans since the Trump presidency began in January 2017, promising a “law and order administration.” Of course, the United States has had more than its share of self-professed law-and-order administrations, and although today’s is unorthodox, it has its antecedents. Be that as it may, Trump’s aggressive posturing presents Americans with an opportunity to go beyond the usual understandings of law and order, and to ask more critical questions about this concept’s place in the country’s political and legal imagination.

In a book published in 2015, Opposing the Rule of Law, I argued that law and order is neither a fellow traveler with the rule of law, nor one among a package of goods that constitute it, as is conventionally assumed, but is its asymmetrical opposite. That is to say, the two oppose each other, although they do not occupy points at the far ends of a scale of identical values. They are not precisely contrasted, as in the rather worn out dichotomy between the rule of law and the rule of men, but are hostile to one another, each by virtue of its own distinctive contents.

I made this argument by asking what we can learn about the rule of law from study of a place where it is absent. My research site was Myanmar, or Burma: a country where conditions were unlike those of the United States in almost every way. During the 2000s and early 2010s, I documented the activities of courts, police and administrators there as they labored under a military junta. These institutions undoubtedly had a very different reading on law and order from their American counterparts, and at the time I gave little thought to the US. As an interpretive scholar of contemporary Southeast Asia I wanted to write an account of Myanmar on its own terms. The book’s findings seemed pertinent to nearby countries with shared legal traditions, or similar experiences of politically active armies. By contrast, the language and practices of law and order on the other side of the Pacific struck me as distant and foreign.

Nevertheless, study of political and legal ideas in any particular setting inevitably presents opportunities to identify elements that might help in our understanding of times and places that were not in mind during the course of research. In my case, having combined empirical methodologies so as to address theoretically informed questions (see Suchman and Mertz 2010), I embarked on a more protracted and generalized inquiry into the conceptual relation between law and order and the rule of law than I had originally intended—one that, through dialogue with colleagues from around the world, made me think harder about how the relation might travel. And without aiming to force research findings into places where they do not have purchase, I now think that the relation I sketched might provoke conversation about how law and order animates practices elsewhere—perhaps even in the United States under the Trump administration.

Law and order, to continue with the argument, differs from the rule of law in four primary ways. First, the rule of law rests on the idea that general rules maintain order, whereas law and order depends on particularistic commands and directives, in response to exigencies. Second, the former emphasizes the role of judicial institutions, whereas the latter privileges administrative ones. Third, under the rule-of-law ideal, public adjudication according to general rules guides conduct so that people can make decisions of their own accord. To maintain law and order, by contrast, authoritative institutions act on specific injunctions to intervene directly into people’s lives. Fourth, whereas under the rule of law, discipline ideally is an endogenous feature of political relations—characteristic of those relations; not imposed on them—law and order entails the exogenous imposition of discipline.

If the rule of law aims to minimize arbitrariness, then law and order has as its primary concern non-restlessness. Its ultimate object is quietude. Law and order conceives of a mode of association whereby essentially administrative mechanisms quieten people. Some kind of subordination is necessarily present in the idea of law and order. Quietude does not happen of its own accord. Somebody must quieten someone else. The trouble with law and order, then, is that it reveals in itself an essential affiliation with inequality—not only in fact, but also, in contrast to the rule of law, in principle.

None of this is to imply that practices animated both by law and order and the rule of law do not get entangled—that conditions can be indicative only of the one or the other. Obviously, order emerges from an admixture of arrangements, some coordinated and others coercive, some from below and others from above. But it does not follow that the ideas animating practices are consonant. On the contrary, it is precisely because of the oppositional relation between law and order and the rule of law that where both ideas are active, as in the United States today, we observe tension, conflict and inconsistency.

Americans responding to the dangers posed by the Trump administration are working in very different circumstances from those encountered by Burmese who resisted demands for law and order under military dictatorship. Trump represents an unusual threat, but people in the United States have deep reservoirs holding rule-of-law traditions from which to draw, and public institutions that afford them opportunities to fight back, however imperfectly. The stream of demonstrations since the presidential inauguration, associational actions in support of immigrants’ rights, bold journalism, and interventions through the courts all stand in evidence.

But the current administration has resources to draw on in pursuit of its anti-rule of law agenda too. Among them, the most obvious ones include the proliferating regulations to manage and intervene directly and capriciously into the lives of millions of people living in a condition of carceral citizenship (see Miller and Alexander 2016), with literally thousands of potential collateral consequences for anyone having a criminal record; the functioning of lower courts as administrative clearing houses through plea bargaining in lieu of trial—a practice that John Langbein (1978) compared with the early modern procedures for judicial torture—and the targeting of entire communities as inherently disorderly and requiring constant surveillance and intervention to contain the threat they allegedly pose to the body politic.

The iniquity of these practices, and their detrimental consequences not only for the rule of law but also for American democracy, is manifest. But the point here is that whereas these practices if observed through a rule-of-law lens give cause for concern, from a law-and-order angle they are unproblematic. The piling up of measures to intervene coercively and arbitrarily into people’s daily lives, overwhelmingly administrative rather than judicial methods for addressing crime, and exogenous imposition of discipline on populations that, it is assumed, will not become orderly of their own accord—an assumption that is adopted into policy even when it is theoretically unsound and empirically groundless (see Harcourt 2005)—are the stuff not of the rule of law but of law and order.

The new administration’s pivot towards the police and other internal security forces, attributing of lawlessness to immigrants, and targeting of “the rioter, the looter, or the violent disrupter” as categories for invention and intervention are all consistent with the logic of law and order. So too are Trump’s invectives against the judiciary following efforts through the courts to obstruct his anti-Muslim program: from a law-and-order standpoint, judges are supposed to work cooperatively with the executive. They should not needlessly obstruct it. The notion that courts ought to temper the exercise of executive power (see Krygier 2015) holds little water for the advocate of law and order. Such thinking invites vulnerability and danger, not the safety and security promised by the Trump administration to those people deserving of it, in exchange for acquiescence to the law-and-order agenda.

The lesson I drew from research in Southeast Asia is that if the practices and verbiage of institutions and officeholders animated by law and order are studied according to rule-of-law criteria then they are liable to be misunderstood. Law and order is not a companion of the rule of law. It is its opponent. Politicians and office bearers motivated to act on a law-and-order agenda are not climbing the same ladder as their counterparts who hold to the values of the rule of law. They are on a different ladder altogether. To understand what they are doing—and to design strategies to respond—law-and-order partisans need to be studied and interpreted on their own terms. Rendered intelligible, they are easier to confront both intellectually and politically. And in America today, it seems to me, to make sense of law and order ought not just be a top priority for scholarly inquiry, but also a matter of no small political urgency.

Nick Cheesman is a Fellow at the Australian National University and in 2016-17 a Member at the Institute for Advanced Study, Princeton. This text is adapted from a talk delivered in the After Hours Conversations series at the IAS.