Here are two pieces I wrote in past years which were not successful in getting published. I thought I may as well upload them here, else they wouldn’t be public at all!
An Essay On the Rule of Law
This piece was written for an essay competition, the Nine Dots Prize competition. I reckoned it was worth giving it a go, as winning would be a huge boost to the idea, as well as my career and finances. I felt I had things to say about rule of law which were generally not being recognised, challenged liberal thinking and were politically important.
Summary:
The main thrust was that understanding law relationally, and in particular its role in reproducing the social order, is key to understanding the rule of law and law’s entanglement in current political crises. It answers the question on the current fragility of rule of law by saying that it is threatened not simply because the Rule of Law is inherently good and it is assailed by evil, but because of the particular legal norms which it is currently reproducing. Liberal Democracy is besieged by political attacks from far-right political movements and unchained corporate power, and so the current fragility of the rule of law due to political attacks which clash with the legal system’s attempts to reproduce Liberal Democracy.
The essay sets out my thoughts on taking a relational approach to law, law as social reproduction, how it relates to liberal democracy and current political challenges, and the possibility for contesting these with the emancipatory potential of law which would be good for both social justice and the rule of law. It concludes with some thoughts on where should we go from here? More robust rule of law itself ought not be the aim because the rule of law is not inherently good: a fragile liberal legal system is preferable to a robust authoritarian one. Recognising law as social reproduction makes clear that legal change has a significant role in any political movement towards a more just and democratic social order and can be part of driving this change forward. Therefore, we need a radical revitalisation of democracy and social justice to meet the political challenges of the early 21st Century and to consider the role law could play in this.
I didn’t put the socio-ecological dimension much in there because I had to keep PhD separate and it was less directly relevant to an essay about rule of law and democracy, but I did think it could all come together in a book called something like ‘Law, Society and Ecology’.
The Incompatibility of Law and Totalitarianism and the Inherent Morality of Law
The genesis of this article was a piece of coursework for my undergraduate degree, answering the question ‘According to Arendt, did law exist under totalitarianism? Do you agree with her views on this issue?’. After the coursework was awarded a prize, I thought that it worth expanding on and attempting to publish. I had already moved on from this topic in my work, so it was revised in stops and starts on the side over the years. The final revision was early 2023, and I submitted it (unsuccessfully) to one journal for publication.
Abstract
This article considers the incompatibility of Law and Totalitarianism and considers its implications for the inquiry into the relationship between Law and morality. The conclusion is that this incompatibility is evidence for Law having non-instrumental moral value. The first section answers the historical question of whether law existed under the totalitarian governments of Nazi Germany and Soviet Russia, based on Hannah Arendt’s accounts of these in The Origins of Totalitarianism. After concluding that law did not meaningfully exist, the article turns to their conceptual incompatibility to understand why they were not compatible. The final section considers the inherent morality of Law in light of this. Although Law can still be used by tyrannical or authoritarian regimes to great evil effect, this morality does seem to be significant enough to be incompatible with Totalitarian rule.