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“Legal Informalism, Power and Liberal Governance”

van Krieken, Robert
June 4, 2015

Source: (2001) Social & Legal Studies. 10(1), 5–22.

Although critiques of legal formalism have been rethought over recent years to
produce a ‘new informalism’ in legal theory which draws on Michel Foucault’s
approach to power, this essay examines the ways in which there are still a variety of
problems in the understanding of power, social control and freedom utilized by
studies of ‘informal’ or ‘popular’ justice. It briefly outlines the ideas and practices
encompassed by the concept of informal justice, and identifies the critique of legal
informalism as an extension of state power and control as well as the counter-critiques
that underlie the ‘new informalism’. I then go on to argue that the problems continuing
to face the understanding of informal justice in legal theory include going beyond
seeing power as radiating outwards from some ‘thing’ called ‘the state’, as well as
beyond the opposition of individual and community liberty to ‘state power’, towards
a more complex and nuanced understanding of the ways in which law and government
work through individual and community ‘freedom’, rather than against them. I
conclude with some comments on the kind of research agenda concerning legal informalism
encouraged by Foucault’s conceptions of power, government and freedom.


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