Law’s current goal is mostly around securing individual right and individual freedom. It might be said that it’s about delivering justice, but justice is a broad and disputed concept, and can mean different things from different underlying values and worldviews. Justice as usually meant in the neoliberal sense is about individual right and individual freedom: a certain idea of what should be delivered and provided for individuals, whether that’s protecting an individual person’s sphere of freedom from others or about punishing those who deserve punishing.
Describing law’s goal is complicated. It has many goals, depending on what frame or for what purpose we are asking the question, and who is using it. It is a thick concept which can be looked at in different depths, or in different frames. We could describe law in terms of rules and norms that govern action and interaction, and a process of dispute resolution, or we could describe it from a more zoomed out perspective, as a social system which seeks to achieve achieve stability and order.
We should also remember that, as a tool, law can be used to different ends: it can be used by authoritarian regimes to oppress, control and exploit; it can be used by a western liberal democracy to try and create a certain type of condition or society; or it can be used in more transformative ways too. It is a system which those who control it to ossify existing social conditions, whether that’s political relations, economic relations, social relations, moral norms, or something else. Yet, at the same time, it can also be used to bring about social change, to progress, to transform and liberate. It depends on who is using it and how it is used.
In western liberal democracies, law is used as a way of securing individual right and freedom. In this conception, law helps create the conditions for private sphere activity, economic activity, cultural and political activity to all happen in their respective domains.
In the interconnected approach, we can see that these different domains are all interwoven, not distinct spheres of activity. Politics, economics, culture and the ‘private sphere’ are all interwoven in the web of relations we live in, not distinct domains, and in this relational approach law should have a different goal.
To a Better Future
Historically, western liberal democracies were a positive development from authoritarian rule, but in my view, they are not the end result. The current state of affairs is not – or perhaps was not – the end of history. Liberalism helped realise a better, more equal and more free world compared to what came before it, but it did not do all that much to challenge existing distribution and concentrations of power. (I will write more on this in a separate post about conceptions of freedom).
We should think about better ways of living and work towards realising a better world. This is as important as ever, a continuation of radical thinking and acting, and it is vital that we do this alongside opposing evil and defending the status quo from slipping backwards. The Interconnected Law project came from my thinking about how our legal systems should be – that as well as defending liberal democracy from attacks and degradation from the right, which are working, we must also thinking about where we need to go and how law can help us get there.
Law as a Catalyst
In the relational conception, we see that society is not an aggregation of individuals but a dense network of relationships that individuals live in and among. Once we recognise this, it follows that law should not only work to secure individual right and individual freedom. Instead, it should focus on the network of relationships which make up our society and aim to positively transform these.
Law should work like frames, trellis and compost do in gardens. It should create structures and nudges for people and their relations to grow in a positive and harmonious way. It should also seek out toxic and exploitative relationships and transform these to be uplifting and positive relationships.
Law should work to influence interpersonal relationships to make them more positive; work to transform social injustices; create a state which supports everyone in realising their human rights instead of a formal, liberal freedom; recognise and reduce the possibilities for exploitative and abusive relations; and work to ensure that our relationships with the rest of Nature are harmonious and sustainable instead of (self-)destructive.
Law cannot do this alone – this must also be part of a political project that seeks to transform society. It must also come alongside political, social, economic, cultural and ecological change. But these are, of course, all interconnected.
This is not a Totalising Project
There is a general view of law that it should stay in its box – that it should stay away from interfering in private life, or in political matters, or social or cultural issues. It might come across that my proposal is that law should colonise all aspects of human activity, either stifling it with legal bureaucracy or extending state power to control law. My description of law and what law should be doing might come across either as utopian approach to law or a dangerously totalising approach. I will address these two in reverse order as a way of further explaining what I mean.
Firstly, I am not proposing law do anything different, Law already has influence over almost all aspects of human activity and freedom; it does not somehow occupy a domain which is unrelated to social issues, political issues, economics and so on. My point is that we should recognise that.
Secondly, in terms of laws effects, this largely depends on who has the power, who is controlling and shaping the legal and political system and the laws. Law certainly can totalise and colonise if that is what those with the power use it for. We therefore also need a political movement which challenges existing power and seeks to transform our society to be far more equal, to democratise not only our participation in politics but also to democratise our economy, our society, our culture, and every aspect of freedom and power. The goal I think that law should have is about using law as part of a broader political project.
Thirdly, you are probably seeing this argument in the context of a neoliberal worldview – given that it is hegemonic, it would be hard not to. In that worldview, freedom is when people and ‘the economy’ are left alone by the state, against an idea of socialism or communism in which the state was heavily involved. The way I describe law’s project might seem like I am advocating a massive expansion of state power, which is understandable because law and the state are closely connected.
This neoliberal understanding of freedom and the state is mistaken. It is a poor understanding of about freedom which cares only about people ‘being left alone’ instead of providing the conditions within which people can be truly free. In the mythos of the ‘free market’ in which private entities are free to interact as they wish, it pretends that the state does not exist. Yet the state does exist: it creates the conditions that mean that private corporations are not robbed or blackmailed by mobster overlords, and facilitates the systems of exchange and business that allow it to operate.
My vision for law is not an expansion of state power, but to use law to democratise power and distribute it more fairly and equally. Whereas the neoliberal ‘free market v state’ worldview posits the two options as being a private corporation or a state-run enterprise, the truly democratic version would be a democratically run enterprise, controlled by workers and society at large. This is a radical challenge to the notion of private enterprise, and will have to be expanded on in its own article at a later date, but hopefully serves to answer the concern that this view of law is a dangerous, totalising one.
Law that helps us Grow Better
Finally, I have a different, or perhaps fuller, understanding of law in mind. Law is not neutral, technical or bureaucratic, even if our current conception of it is. Law has roots in politics and society, and it also constitutes and reproduces these. It produces shade which harmful social conditions can develop in, and it provides a habitat for some positive social conditions to flourish.
My aim is not that law should control everything, but that law should use the influence that it has over all aspects of our society and all relationships in it. Law should work to support social change, but when transformation is done, law should fade into the background or wither away.
I see law in this regard as something like a parent, teacher, coach, therapist or mentor who helps a child (or adult) to understand the world and themselves and how they should act in it. Such a figure – or collection of such relationships – can help people to bloom and fly gloriously, and then fade into the background. Or, if this nurturance is not provided, it can leave people navigating a difficult world on their own, or worse, leaving them (or making them) a vicious and horrible person who harms others.
Much of law’s power is this softer power, gently and subtly influencing how we see ourselves and each other, and our social norms. It can help us to respect each other, or it can teach us to punish each other. Law also, of course, has strong coercive power, where it will explicitly rule on something and act strongly, with violence, fines, imprisonment or other sanctions, when these norms are transgressed.
These two are interlinked: law does not have the capacity to enforce everything, and and it relies largely on the softer influence for legal norms to be followed. It constitutes the way we see the world, reinforcing morality and structuring social relations to function without much influence. Whether it is because people follow law because it is right to do so, or because people are acting in the shadow of fear of law’s strong coercive power, law is only ever meant to be a last resort in the background which steps in when everything else has failed, whether it acts as a carer for someone in need or a punisher for someone who steps out of line.
Law must be part of any transformative political project, even though currently most positive political projects say little about it. It should seek out relationships which are unjust and transform them to be more just. Law’s strong coercive powers should be used to act against abuse, violence, exploitation and destruction, while its softer influence should be used to nurture and empower harmonious relations of all types, and when a better world is realised, it can fade into the background.