Citation

Hirst P. Br. J. Criminol. 2000; 40(2): 279-295.

Copyright

(Copyright © 2000, Centre for Crime and Justice Studies, Publisher Oxford University Press)

DOI

10.1093/bjc/40.2.279

PMID

unavailable

Abstract

As we enter the twenty-first century it is appropriate to question whether social control through the legal order and institutionalized policing is effective and appropriate. As national societies have attempted to control and to protect against a wider range of contingencies, arising from a more complex division of labour, from changing social standards leading to higher expectations of health and welfare, and from new contingencies such as the threats of environmental pollution or the need to regulate information technology, so they have produced more and more elaborate laws. What Carl Schmitt called motorized legislation' has become a reality. It threatens the rule of law because the sheer volume of laws, their complexity and interconnection, and their constantly changing nature make the application of rules uncertain and knowledge of them, even by specialist lawyers, doubtful. Laws and subsidiary regulations cover kilometres of shelf space, and the operation of law becomes ever costlier--so much so that major companies are writing arbitration clauses into their contracts. At the same time most western societies have become more and more heterogeneous. In major cities diverse ethnic and lifestyle groups lead separate lives. Rules for one group about acceptable conduct will seldom entirely agree with another's--Born Again Christians and gays are unlikely to agree, for example. Outside of a thin core of public morality--almost everyone will agree that murder, theft and fraud are crimes--groups would be better off setting and policing their own standards. Citizens would have to accept that different rules applied to different communities with informal self-regulation and arbitration. Basing modern societies on communities of choice, democratically self-governing, would reduce the load of central inspection and rule making. This would both check rule proliferation and allow different groups to follow their own affairs. Laws could be simplified and, applied to a thinner core of common social life, could be more effective. Far from undermining formal law, community self-regulation could restore public confidence in it and by reducing the scale and scope of common rule-making and policing, make both more effective. Basing societies around plural self-governing communities of choice would enable individuals to exercise the option of doing things differently, but also offer the constraint of exit over excessive community regulation, since such obligations would be voluntary. Greater community self-control would tend to reduce inter-community friction, because individuals would not feel threatened that they would be the subject of legislation in matters of morals and lifestyles by artificial political majorities. The political doctrine for such a system of groups or community self-governance is called associationalism or associative democracy. Allied with the organization of public services and welfare on an associationalist model, community self-governance would strengthen the roots of modern social organization and make a virtue of increasing moral and value pluralism.