(2001) Social & Legal Studies 10(1): 5-22

LEGAL INFORMALISM,

POWER AND LIBERAL GOVERNANCE

 

ROBERT VAN KRIEKENUniversity of Sydney, Australia

 Abstract

Although critiques of legal formalism have been re-thought 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 utilised by studies of 'informal' or 'popular' justice. It briefly outlines the ideas and practices encompassed by the concept of informal justice, identifies the critique of legal informalism as an extension of state power and control as well as the counter-critiques which 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.

 Introduction

It is not necessary to accept the enthusiastic and uncritical rhetoric of idealistic advocates for the various forms of 'informal justice'  (1)  to see that there is at least some informal dimension to any legal figuration or field,  (2)  and that current developments in the field of legal informalism might tell us something interesting, of a more general nature, about law, lawyers and justice in contemporary society. At the very least we can observe that there are in any case always informal aspects of

supposedly formal legal processes, and that formal law is not the only realm in which questions of power, authority, coercion and justice are at issue (Auerbach 1983; Ehrlich 1979; 122; Ellickson 1991; Henry 1983; Matthews 1988: 2-4; Merry 1988; Nader 1984).

The field of 'informal justice' proper, however, is constituted by the organised efforts to bridge and link the realm of formalised legal ideas and procedures with extra-legal forms of social ordering, often within a framework of attempting to modify the workings of power relations. After a brief outline of the ideas and practices which the concept 'informal justice' is generally used to encompass, this essay will identify the main elements of the various critiques of legal informalism as it has developed in Western countries since the 1970s, discuss the shortcomings of those critiques as well as the potential contribution of an understanding of power organised around Foucault's conception of 'government', and conclude with some observations on where that particular approach to informal justice might take us in the future.

My overall argument will be that the deep-seated difficulties which still seem to constrain legal theory in relation to legal informalism include a resistance to seeing power as operating outside the state, and a reluctance to give up the liberal distinction between the 'the state' as the primary site of power and either 'the individual' or 'the community' as opposing wellsprings of 'freedom'.The challenges which appear still to face the understanding of informal justice in legal theory are thus, first, to cease seeing power as radiating outwards from some 'thing' called 'the state' and, second, to move beyond the opposition of liberty to 'state power', towards a more complex and nuanced understanding of the ways in which law and government work throughindividual and community 'freedom', rather than against them.

 

What is 'Informal Justice'?

The idea of developed dispute-processing mechanisms outside or prior to formal legal procedures and litigation is not particularly new. Garth, for example, refers to the emergence in France of the justice of the peace (juge de paix) after 1790, out of the hostility to the established judiciary following the French Revolution, which in turn provided a model for the subsequent Prussian Schiedsmann (mediator) early in the 19th century (Garth 1982: 193-4).

In relation to the USA, Christine Harrington emphasised the hostility to legal formalism found in Roscoe Pound's sociological jurisprudence, not to mention the difficulties which commercial clients had with the way the courts dealt with their claims and disputes around the turn of the century. Although it was more an argument

for a different, more efficient kind of formality in law than a push for informalism, there was often talk of a 'crisis of the courts', and Frederick Taylor's 'scientific management' was seen as a source of ideas to develop a more 'business-like' approach to law, so that Harrington concluded that 'it is apparent that dispute processes premised upon a hostility to formality play a significant role in the judicial management strategies of the twentieth century' (1982: 35-63). The Children's Court also arose out of a critique of formal legality, as did the courts dealing with domestic relations, small claims and conciliation were regarded as 'socialized courts', in the sense that they operated more in terms of concepts such as prevention, education, diagnosis and cure (1982: 51). Informal justice can thus be understood in terms of Weber's opposition between ends and means, and between formal and substantive rationality - that is, as a response to those situations and issues where the substantive ends of conflict management/resolution are perceived as not being achieved through the means of formally rational legal procedures.

In general terms it is fair to say, however, that such critiques of formalism tended largely to produce a more differentiated legal figuration without having much impact on formal legal processes themselves. As Harrington put it, 'criticism of the socialized courts after 1940 focuses on the fact that they were appendages of traditional judicial institutions rather than genuine alternatives to the adversarial process', and that 'the socialized courts did not complement a unified lower court but rather increased the organizational complexity' (1982: 58). The development of the welfare state as well as a more critical attitude towards the state in the 1960s, however, laid the foundations for a new 'wave' of legal informalism from the 1970s onwards, in a range of fields including family, criminal, administrative, commercial, discrimination and equal opportunity law. In the Australian context, for example, the primary stimuli for the development of various forms of informal justice have been the provisions of the Family Court, State governments' concern for 'community justice' since the late 1970s, the impetus towards legal informalism in the commercial sphere, and the appeal of informalism in criminal law in providing a more effective mode of social reintegration (Astor & Chinkin 1992: 7-11).

There are a variety of ways of conceptualising the field of post-1970s legal informalism; Richard Abel, for example, defined informal justice as encompassing legal institutions which are 'nonbureaucratic in structure and relatively undifferentiated from the larger society, minimize the use of professionals, and eschew official law in favor of substantive and procedural norms that are vague, unwritten, commensensical, flexible, ad hoc, and particularistic' (Abel 1982a: 2). Silbey and Sarat (1989), on their part, make a threefold distinction among the groups advocating new forms of dispute processing, the establishment Bar and legal elites, the 'access to justice' movement, and 'improved quality of law' proponents. However,

here I would like to use Harrington and Merry's (1988) typology of three different, albeit related, projects in community mediation which also captures the full range of informal justice initiatives: the delivery of dispute resolution services, social transformation, and personal growth.

Within this framework, the first central foundation of legal informalism is a pragmatic concern to improve the delivery of legal services, to 'let the forum fit the fuss', promising to relieve court congestion, decrease costs, improve access to legal dispute processing, and is consistent with the earlier critiques of legal formalism. The second is more characteristic of the post-World War II period, expressing a 'hope that society could be restructured through new forms of popular justice' (Harrington & Merry 1988: 715). This aspiration was manifested, argue Harrington and Merry, in support for 'community mediation completely independent of the judicial system, with its authority based on the local neighbourhood rather than on the state' (1988: 715). The third foundation is a project of individual empowerment, in which legal informalism is meant to permit individuals 'to take greater control over their own lives, enhances their personal skills in dealing with conflict, and endows them with techniques they can apply to other situations' (1988: 715). Mediation, we are told, will make us better, happier and freer people.

All three 'projects' overlap and interlink with each other, so that the distinctions are more analytic than real. In particular, suggest Harrington and Merry, all three are bound together by a shared focus on the dual concern for (a) the production of consent within, and consensus among disputants, as well as between disputants and formal legal institutions, organised around (b) the neutrality or detachment of the mediator. The consent of disputants, both to the process itself and its outcome, is seen as central to its efficacy and to its supposed superiority over formal legal processes, even where participation has in fact been mandated by the court. 'Consent,' comment Harrington and Merry, is now 'talked about as embedded in the mediation interaction and decision-making process and not necessary at the point of referral to a mediation program' (1988: 721).  (3)  The selection process for mediators, in turn, favours those who best maintain a resolutely detached stance towards disputants, which has an overall professionalisation effect arising from the fact that it tends to be 'people with a higher education and professional training for whom the detached stance is a learned professional demeanour and approach' (1988: 730).

Using the concept 'popular' rather than 'informal' justice, Peter Fitzpatrick proposes that it can be understood as 'a mythology accommodating a conflict' in which the alienated realm of formal law is set against 'the more spontaneous, nature-like, intrinsically human characteristics of popular justice' (1992: 199). The state is 'great figure of opposition and rejection' and 'alternative' justice is understood as organised

around either its opposition to 'the formalized and centralized power of the state', or the mapping of its boundaries and limitations (1992: 200). However, argues Fitzpatrick, closer scrutiny uncovers 'compatibilities, even similarities between it and these formal modes of regulation', and he suggests that 'there is point to seeing popular justice as both opposed and integral to the formal' (1992: 199-200). This takes us to the essence of the critique to which legal informalism itself has been subjected since the early 1980s.

 Informalism as 'social control'

By the late 1970s it was clear that legal informalism was not going to deliver anyone to what they might regard as the promised land. In Roger Matthews' summary of the rising disillusion - among legal theorists, at least - with informal justice, he drew attention to the fact that the formal legal apparatus, had in fact expanded, and between 1950 and 1980 the number of lawyers had doubled; rather than a process of deprofessionalisation, an expanding array of professionals had simply been supplemented with another layer of para-professionals; law had become more rather than less complex, opaque and expensive (Matthews 1988: 9). The main lines of criticism centred on the notion of legal informalism being a Trojan Horse for ever more cunning state penetration of social life, an ever widening net of social control, and Matthews identified this critique's core concerns as: double tracking, ineffectiveness, relegitimation of law and the expansion of social control.

The concept of double-tracking refers to the fact that instead of operating as an alternative to formal procedures of dispute-processing, what appeared to have happened is that informal justice simply augmented formal processes and structures. New clientele were being dealt with by the informal processes, so that 'a central paradox of the movement towards informal justice was that it succeeded in formalizing the informal' (Matthews 1988: 10). They dealt mostly with 'interpersonal conflicts, consumer complaints, and public order offences', and the majority of disputants were black and female, attracting the criticism that informal processes seemed to be generating a 'second-class' set of legal procedures. For Dezalay, this contrast between 'high' and 'low' justice is a central feature of law in liberal class-divided societies, and the ongoing cohabitation of the two forms of law an essential elements of the continuing legitimacy of law (1994: 156).

The supposed effectiveness of informal mediation was also questionable, with many disputants expressing dissatisfaction with the outcomes, particularly in emotionally charged areas such as divorce and family violence, and where there is a clear power imbalance, such as between tenants and landlords. As Matthews puts it, 'informal courts can, behind a mask of neutrality, serve to enforce the existing inequalities and

produce 'compromises' which will invariably favour the more powerful' (1988: 12).  (4)  Many of the critiques of the effectiveness of informal justice boil down, then, to the observation that informal forms of conflict management are relatively unlikely to escape their captivity to existing power relations along lines of gender, race, class, ethnicity (Garth 1982: 205), and that the full coercive 'violence' of formal legal procedures are required to counter those power relations.

The question of relegitimation, argues Matthews, has the following dimensions. First, the turn to informal justice as a 'problem solving' move constructs a view of defects in law as emerging from overload or inefficiency, rather than more fundamental concerns. Second, there is the ideological effect of creating an apparent social bond between disputants with underlying conflicts of interest, such as retailers and consumers, landlords and tenants, government agencies and their 'clients'. Finally, informal justice can have the effect of displacing an engagement with fundamental social inequalities and 'wider processes of exploitation and domination' onto an illusory hope that informal legal processes can actually address those problems.

The heart of this critique of legal informalism, however, was the argument concerning its role in the expansion of state social control, which probably reached its apogee in Richard Abel's writings. Posing the rhetorical question, 'Is the ambit of state control contracting or expanding?', Abel came down resoundingly on the side of arguing that informal justice is essentially about the expansion of state-centred social control, disguised by the 'carefully cultivated' illusion of non-coerciveness (1982a: 6). Demonstrating the infinite plasticity of left-functionalist analysis, Abel shows how both the expansion and contraction of legal informalism, both formal and informal forms of dispute processing, serve the interests of capital and class domination. But, since he was still attached to the ideal of 'liberation', Abel was forced to conclude that informalism does still 'express values that deservedly elicit broad allegiance' (1982b: 310), and identified an underlying 'potential' which might be brought to the surface and realized only if legal informalism is linked to broader political and social movements. 'Informalism,' wrote Abel, 'is not an end in itself, but it can be a very important means in the struggle for justice' (1982a: 13).

This last-ditch lunge at a possible basis for optimism about the socially transformative potential of legal informalism was not entirely convincing, however, not least because the underlying points which had been made about the interrelationships between formal and informal legal processes were essentially accurate. As Dezalay has argued, the ongoing interplay between formal and informal law is the outcome of 'a professional field which has two contradictory logics permanently running through it', the first being one of expanding and diversifying 'the market of legal goods and services', the second being one of 'hierarchical closure of the field' to maintain the

value of legal goods and services, through 'strict control over the production of these producers and of the competence specific to them: the handling of form and legal technique' (1994: 161). The most significant impetus for informal justice initiatives does indeed continue to come from the legal profession itself, the judiciary, and various Government agencies, so in this sense the 'social control' critics' perception of the bulk of legal informalism as originating from formal law, authorities and governing agencies is largely correct.

The problem lies elsewhere, in the need for a more sophisticated understanding of the social forces behind informal justice, and in a movement beyond simple oppositions like conservative/liberating, formal/informal, expanding/contracting state control. As Nikolas Rose argued in relation to the 'social control' critiques of informalism in family law,

there is little empirical evidence for such linkages between strategies of the state, interests in control and the establishment and operation of regulatory systems.....social control....must 'explain away' not only the varied ethical, political and technical motives of social reformers, but also the subjective commitments of the individuals involved to the values and practices which 'control' them'. (1987: 72)

Above all, suggests Matthews, 'we need a more elaborate analysis of power and social control' (1988: 18).  (5)

In pursuit of a 'new informalism' grounded in an improved theory of power, some commentators have turned to the work of Michel Foucault, particularly his arguments that power should be seen as productive as well as repressive (which should mean that 'expanding state power' is not necessarily a problem), and as not reducible to the interests of one particular group or class. For Matthews, the implications of this understanding of power were that informalism constitutes 'a form of 'governmentality' involving a change in the distribution and organization of power', that this new form of power is based neither in the state nor in civil society, but 'represents a site for the expression of the individuality of the subject and provides a basis for a more thorough individualizing process', and that informal justice is a 'site of struggle', a 'point of resistance...against forms of power which deny the individuality of the subject' (1988: 19). This 'new informalism' does not, however, take us very much further, because it engages only lightly with Foucault's arguments concerning power, subjectivity and government, or indeed any other effective theoretical position on power. For example, the reference to 'governmentality' is not explained, so we have no real sense of how that concept is meant to apply to legal informalism. It is also not entirely correct to present Foucault as seeing power as simply 'denying the individuality of the subject'; although some of his writings may have supported that interpretation, on balance it is

fairer to say that he regarded power as working precisely through 'the individuality of the subject'.

A good indicator of the rather incoherent dead-end in which the debate on informalism currently finds itself is the fact that Merry (1992) continues to retain an opposition between 'the state' and local, community or individual 'empowerment'', exactly the mythic opposition which we began with in Fitzpatrick's observations. Harrington also declares that instead of being concerned with 'whether community mediation movements are autonomous from state control or not', she is more interested in the entirely different question of legal informalism's 'simultaneous struggle for autonomy from the state and dependence on it for both legitimacy and clients' (1992: 177). In other words, we circle back to the combination of autonomy from, and dependence on, the state. With his reliance on concepts like 'state law', Fitzpatrick also ends up reproducing the 'social control' arguments and the equation of 'power' with 'the state', especially when he concludes that 'the categories of the informal and the popular secured the integrity and efficacy of state law and other sites of power usually considered as formal' (1992a: 213).

Although Matthews is right, then, to say that the essential problem was to develop a more effective theory of power and social control, the problem is that such an improved conception of power has not yet emerged within the debates on informal justice, and it is necessary not only to understand retrospectively the workings of informal justice in the 1970s and 1980s, but also to grasp what is specific and novel about current informal justice initiatives in the 1990s. What remains problematic is the continuing presumption that the stance of disputants is inherently one of 'resistance', that relations characterizing informal justice are necessarily ones of 'domination', leaving a yearning for freedom and individuality - exactly what liberal forms of governance tap into so successfully - as the only basis for critical analysis .

Foucault on Power, Government and Freedom

This is not the place for a detailed discussion of Foucault's understanding of power and its relation to other approaches (Barnes 1988; Clegg 1989; Hindess 1996; Miller 1987), but it is useful briefly to sketch the outline of two issues that are particularly relevant to the analysis of informal justice: the question of the relationships between, first, the state and power and, second, power and individual or community 'freedom'. Both the advocacy and the critiques of legal informalism are at least implicitly organised around particular positions on both these questions, and a more detailed explicit engagement with them will better equip us to understand the workings of informal justice more adequately.

One of the key changes which has taken place in theories of power over the last few decades or so has been the increased willingness to see power in liberal societies as extending beyond the state, and as residing in the relationships binding us to each other in civil society as much as in the relations of overt governance, law and domination. Foucault's work has played a large role in that conceptual shift, although not simply because he was the first to think of it; Marx, for example, argued that 'only political superstition believes at the present time that civil life must be held together by the State, when in reality the State is upheld by civil life' (1975: 121). In his debate with Chomsky, Foucault put it as follows:

...it is the custom, at least in European society, to consider that power is localized in the hands of the government and that it is exercised through a certain number of particular institutions, such as the administration, the police, the army, and the apparatuses of the state...But I believe that political power also exercises itself through the mediation of a certain number of institutions which look as is they have nothing in common with political power, and as if they are independent of it, while they are not. (Chomsky & Foucault 1997: 130)

In distinguishing between two overall historical developments in Western social and political life: an increasing centralisation of political power in the state, and a corresponding emergence of technologies and techniques of power oriented towards individuals, Foucault's emphasis was on the latter, because he felt that concentration on the state as a central source of power had led to a neglect of the finer networks of power that have spread beyond the state throughout the social body.

We cannot understand contemporary liberal societies, Foucault argued, unless we closely examine not the state, corporations, 'the law' or the ruling class, not the working class or 'the people', but hospitals, schools, prisons, armies, factories; and patients, children, criminals, conscripts, workers. He argued for a closer examination of the real location of the everyday exercise of power in seemingly mundane, informal and ordinary practices and agencies. 'Instead of privileging law as a manifestation of power,' he wrote, 'it would be better to try and identify the different techniques of constraint that brings it into play' (1997a: 59).

Second, although he did often construct the working of power throughout society as constituting processes of violence and domination,  (6)  in his later work he placed more emphasis on the way in which power working precisely through the autonomy and freedom of individual subjects, so that a relationship of power, is a form of action which does not act directly on individuals, but indirectly on their present and potential future actions. Power thus depends both on the recognition of those over whom power is exercised as possessing agency, and the on opening up of 'a whole field of responses, reactions, results, and possible inventions' (1982: 220).

The concepts 'government' and 'governmentality' were used by Foucault to try and capture this linkage of power with freedom peculiar to liberalism. As Barry Hindess puts it, 'the liberal rationality of government regards the liberty of its subjects as an indispensable element of government itself' (Hindess 1996: 128). 'Government' in this sense is 'not a way to force people to do what the governor wants; it is always a versatile equilibrium, with complementarity and conflicts between techniques which assure coercion and processes through which the self is constructed or modified by himself' (Foucault 1993: 204). Liberal governance concerns the structuring of 'the possible field of action of others', and liberal political power, argued Foucault, 'is exercised only over free subjects, and only insofar as they are free'.

By this we mean individual or collective subjects who are faced with a field of possibilities in which several ways of behaving, several reactions and diverse comportments may be realized....In this game freedom may well appear as the condition for the exercise of power (at the same time its precondition, since freedom must exist for power to be exerted, and also its permanent support, since without the possibility of recalcitrance, power would be equivalent to a physical determination). (1982: 221)The form of government characteristic of liberalism thus presumes rather than undermines both freedom and resistance, and works through freely chosen human agency, by coordinating, linking, setting frameworks, establishing rules of action (Rose 1999). The basic foundation of this understanding of the exercise of authority was less a concern with individual 'liberty' as a free-standing right or value sui generis, and more an argument among liberal political economists concerning the limited effectiveness of direct governance in the sense of control and domination. As Adam Smith wrote in The Wealth of Nations, 'the law ought always to trust people with the care of their own interest, as in their local situations they must generally be able to judge better of it than the legislator can do' (1904, IV.v: 32) At the center of liberal thought and political practice is that idea that good governance depends on the active participation of the governed in their own government, even their resistance, since "the participation of the governed in the formulation of the law, in a parliamentary system, constitutes the most effective system of governmental economy' (Foucault 1997b: 77).  (7)

Legal Informalism and Liberal Governance

Does an approach to power informed by these arguments respond to all of the problems characterizing the criticisms of legal informalism organized around the concept of 'social control'? Not necessarily. For example, in arguing against the idea of 'the state operating in Orwellian guises over primordial individuals, or, conversely, to see a domain of individual voluntarism devoid of relations to the state', George

Pavlich (1996) proposes that we should instead see community mediation as among a range of practices of governance that 'aim to nurture and create the very entities on which the modern, liberal (and increasingly post modern, neo-liberal) state has come to rely: the semblance of a fixed, individual self located within a community' (1996: 728).

This is a useful argument, highlighting the need to reflect on the variable nature of the subjects of liberalism, and the contribution that all forms of law make to the assemblage of certain types of liberal subjects rather than merely reflecting a 'natural' form of liberal subjectivity. However, instead of genuinely abandoning the 'social control' perspective, Pavlich's particular formulation looks uncomfortably like its extension into the realm of subjective identity, an elaboration of the social control being exercised to include the 'creation' of 'nondisputing self-identities who take with them a life-skill: the ability to 'mediate' their own definitions of the self within the 'community' to avoid conflicts arising in the future' (Pavlich 1996: 727).  (8)

Current legal theory on informal justice thus seems to take on board one aspect of Foucault's approach to power - its extension beyond the state, and the need to think of power relations more broadly in terms of programmes of government which include the state without necessarily originating within it. In this respect, Pavlich's analysis is useful and significant: the 'person' which liberal legal theory presumes can indeed be seen being formed within informal justice processes. However, Pavlich concludes with a plea for a form community justice which does more than try 'to shackle our very self-aspirations to the yokes of an intangible but consequential community order' (1997a: 730). It seems that the possibility of an underlying linkage between power and freedom remains too much of challenge to the liberal opposition between law/state/power on the one hand, and informalism/individual/freedom on the other. As David Garland (1997) points out, Foucault's position here is really not very dissimilar from many of mainstream sociology's central propositions, suggesting that the problem with our approach to power extends beyond our understanding of Foucault (see van Krieken 1991 on social control more generally).

In responding to this challenge more effectively, the work done by Peter Miller and Nikolas Rose on developing Foucault's conception of government provides some useful illustrations of the broader range of elements which are assembled within liberal governance generally. These illustrations in turn generate conceptual resources which we can draw on in order to tell us more about how to understand the creation of 'non-disputing selves' within legal informalism.  (9)  For example, Miller and Rose emphasis that liberal government concerns the 'forging of alignment between the personal projects of citizens and images of the social order' (Miller & Rose 1988: 172). Governmental rationality is characterized by mechanisms by which 'a child, a

family, an economy, a community....can be shaped and guided in order to produce desirable objectives whilst at the same time respecting its autonomy' (Rose 1993: 290). The relationship between public and private spheres, then, is not necessarily antagonistic. Social institutions such as law also operate 'by releasing the psychological strivings of individuals for autonomy and creativity... capitalizing upon the motivations and aspirations of its inhabitants' (Miller & Rose 1990: 26).

Central to this 'alignment' process is the development of shared modes of perception, cognitive orientations, forms of explanation and vocabularies, which help establish flexible forms of coordinated association between a variety of individual, group and organizational actors while each of them retains their formal autonomy. Expertise and knowledge consequently has a central place in liberal governmentality, both because of the contribution knowledge makes to the ability to establish such coordinated associations, and because expertise serves as a central nodal point around which perceptions and explanations can be organized. Experts provide the language, conceptual apparatuses and forms of explanation and argument that make conflict, crime, illness, poverty, economic boom and decline knowable and manageable, as well as simultaneously translating the apparently 'private troubles' of individuals and communities into 'public issues', enabling them to more operate more successfully in their power negotiations with 'larger' actors within political, economic and legal fields (Miller & Rose 1990: 19). 'Empowerment', the encouragement of active self responsibility of individuals and communities, then, is precisely one of focal points of liberal governance, constituting 'a range of interventions to transmit, under tutelage, certain professionally ratified mental, ethical and practical techniques for active self-management' (Rose 1996a: 348)

Moreover, although organised around projects of governance, liberal society is not in practice perfectly governed; indeed, liberalism is characterised by a constant striving to avoid such a condition. Living in a world of programmes does not, argue Rose and Miller, mean that the world is programmed. 'We do not live in a governed world so much as a world traversed by the 'will to govern', fuelled by the constant registration of "failure", the discrepancy between ambition and outcome, and the constant injunction to do better next time' (Rose & Miller 1992: 191). Precisely because of the means by which liberal governmentality operates, it both relies on chance, contingency, conjuncture for the 'alignment' and coordination of individual, community and institutional strategies, projects and desires, and constantly questions its own authority. As Rose put it, 'a key characteristic of liberalism....is its permanent suspicion of the authority of authorities: a requirement that authority justify its powers at least in part in terms of the ethical qualities demanded of those who would hold positions of power' (1994: 371).

As well as identifying the ways in which legal informalism constructs particular juridical subjects, then, we can also reflect in a extended way on the varying permutations in the ways in which the various elements of liberal governance are assembled under particular social and historical conditions, leading us to pose different sets of empirical and conceptual questions. For example, we would be steered away from inquiring into the possibility of a type of informal justice which 'genuinely' realized individual and community demands of the law, and instead examine the various ways in which different sets of individual, organisational and community aspirations are linked and aligned to those of lawyers, the judiciary and governing agencies. Instead of seeing the relationship between different professional groups and their corresponding bodies of knowledge as a one of simple competition and a striving for dominance, it may be more accurate to approach the field of informal justice in terms of alliances between different forms of legal and non-legal expertise, producing a completely new form of legal imagination rather than achieving the dominance of law over other forms of knowledge. It may not, as commentators like Fineman (1988) and Cobb (1997) suggest, be a matter of a choice between a legal discourse of 'rights' and a social work discourse of 'needs', but more of a knowledge configuration where the two are welded together. As Susan White points out in relation to the field of child welfare, competing concepts and modes of perception from developmental psychology are rendered 'compatible with the pursuit of certainty and culpability associated with the juridical field' (1998: 275), producing a form of knowledge 'best understood as a complex amalgam of legal and scientific knowledge, with neither framework being a priori preferred' (1998: 288; see also Boulle 1996: 34). The 'permanent criticism' of formal legality pursued by successive generations of proponents of legal informalism should also be regarded as entirely consistent with liberal governance in a more general sense, rather than any sort of attack of its foundations. However, rather than leading us to then dismiss all critique of formal legality as being of no consequence at all, this argument can instead promote a more focused search for those forms of critique which might contribute to the forging of different relationships among individuals and communities and with governing authorities - the pursuit of justice - by doing something beyond extending and differentiating the legal field, perhaps and remaining conscious of the ongoing connections between power and freedom.

Conclusion

In the pursuit of supposedly power-free 'liberation', suggested Foucault, 'one runs the risk of falling back on the idea that there exists a human nature or base that...has been concealed, alienated, or imprisoned in and by mechanisms of repression' (1997c: 282), a human nature which is meant to exist in a power-free state once liberation is achieved. But such a hope merely conceals that fact that relations of power

characterize all sociability, and ends up rendering their operation in a 'liberated' condition even less accessible to analysis and critique.  (10)  This is why Foucault emphasized 'practices of freedom' over 'processes of liberation'; the latter, he wrote, 'indeed have their place, but they do not seem to me to be capable by themselves of defining all the practical forms of freedom' (1997c: 283).(11) The question, from this perspective, is thus not hoping to create the possibility for 'liberation' from the state, government, power or law, but of comprehending how freedom and liberty are mobilized by strategies, techniques and programmes of government, in alliance with our own aspirations, hopes and desires, either as individuals or formed into communities of various sorts, real, imagined and virtual. This is not to say that 'practices of freedom' are not worth pursuing, but that such a pursuit is undermined by the hope that such practices can operate outside power relations, outside government, outside law.

What might be the point of such an understanding? Well, not more searching for true liberation or freedom. My concluding proposal is for approaching informal justice not in terms of pursuit of community liberation or individual freedom, but as a 'symbolic project', in which lawyers take a central, but not the only place, a narrative construction of an 'imagined community', in which conflict, its pathways (resolution, management) and the interrelationships of the various actors involved in its management are configured in particular ways. It is striking, for example, that the discourse surrounding informal justice seems to be almost entirely a legal one, in the sense of being conducted by the legal profession (Roberts 1994; Silbey & Sarat 1989). In the name of 'de-legalizing' dispute processing, law and lawyers actually place themselves even more centrally within processes of conflict management. Informal justice constitutes a particular vocabulary for understanding the whole legal figuration as well as the boundaries which can/should be drawn around its various elements, fields or dimensions. As Yves Dezalay puts it, the dual structure of formal/informal law 'allows for change in the continuity of things, a cardinal virtue of the legal field, because it reinforces belief in the law' (1994: 165).

Legal informalism 'affiliates' conflict management to the expertise of lawyers, and raises a potentially endless array of questions concerning what is peculiar to contemporary forms of legal informalism which are central to the sociology of law, including: Is informal justice a new, historically specific approach to conflict, moving away from 'winning', signalled greater levels of social interdependence? What can be said about the interrelationships between different types of expertise in informal justice - law, social work, psychology, management - and how is the assembly of those forms of expertise developing? Can we see informal justice as a 'welding together' of law with the other form of social regulation? Does it make a difference whether lawyers and judges actively encourage delegalization, whether programs for

IJ operate largely from bases external to law, or constitute a project from within law? Should we approach legal informalism as the expansion and differentiation of the machinery of law within the overall context of a 'shrinking state'? Exactly what is the nature, structure and dynamics of the various forms of 'community' encouraged by informal justice? What does it mean that informal justice constructs individuals as the active agents of their own conflict resolution, their own self-governance in situations of conflict and incommensurability? Is there today a peculiar emphasis both on the active participation of individual 'clients' and on an expanded role for the expertise of lawyers-as-mediators, modifying our understanding of 'professionalisation'? In what ways does legal informalism maintain and/or destabilise the liberal state/individual opposition?

Among his comments on colonialism, Foucault put forward the concept of effet de retour, a 'return effect' from the colonial exercise of power back onto Occidental legal thought, practice and techniques; later in the sixteenth century, wrote Foucault,

one sees a return effect [effet de retour] on the juridico-political structures of the West, but it is a return of colonial practice. It should not be forgotten that colonization with its techniques and juridical and political weapons transported European models to other continents, but that this same colonization had a return effect on the mechanisms of power in the Occident, on the institutional apparatuses and techniques of power. There had been a whole series of colonial models that had been brought back to the Occident and that made it so that the Occident could traffic in something like a colonization, an internal colonialism. (cited in Stoler 1995: 75)

Even though we might regard the field of informal justice as a 'colony' or outpost of formal legal structures, there is still enormous scope for analytical effort directed at outlining the current politics and dynamics of this return effect back onto those formal legal forms, as well as the changing internal logic and principles of informalism within the field of law. But central to such analysis will be the abandonment of the essential normative conceptual opposition of power, law, state on the one hand, to freedom, informalism and civil society on the other, if we are to develop an understanding of legal informalism that equips us adequately to engage with its operation in contemporary society effectively as well as critically.

Notes

1. Other terms used include 'popular', 'negotiated', 'community' justice, 'alternative dispute resolution', 'de-legalization'.

2. The term 'legal field' comes from Pierre Bourdieu (1987), and is most usefully developed in the work of Yves Dezalay (1994). Both that concept and the term legal

'figuration' (Elias 1978: 128-33), are to be preferred to legal 'system', in order to escape the sense of unity, coherence and homogeneity which tends to accompany the idea of a 'system'. For Elias, 'figuration' is also meant to grasp the ongoing active contribution made by individual subjects to the constitution of social institutions, in contrast to concepts like 'system' or 'structure'. Either term conveys the heterogeneity of bits of legal machinery, forums, practices, and conceptual frameworks which seems more accurately to capture 'the law' as it really operates.

3. In Australia, a similar situation of 'compulsory voluntarism' is the compulsory referral to mediation in family law matters, directly contrary to the philosophy of Family Mediation Centres - Astor & Chinkin 1992: 23-24.

4. For the same point in relation to family mediation, see Alexander 1997; in relation to Aboriginal disputants, Beattie 1997.

5. I have developed a more general discussion of the problems associated with a social control perspective on power in van Krieken (1991).

6. 'It seems to me that the real political task in a society such as ours is to criticize the workings of institutions, which appear to be both neutral and independent; to criticize and attack them in such a manner that the political violence which has always exercised itself obscurely through them will be unmasked, so that one can fight against them' (Chomsky and Foucault 1997: 130).

7. Useful critical discussions of the governmentality literature are developed by David Garland (1997), Kevin Stenson (1998) and O'Malley, Weir and Shearing (1997). For a discussion of other problems in the utilization of the concept 'governmentality' and its possible linkages with Elias's work on 'civilization', see van Krieken 1996.

8. For some useful examples of the principles highlighted by Pavlich, see Boulle 1996.

9. Although, as Garland (1997) stresses, it is important not to be over-enthusiastic about the novelty of the governmentality approach, and to remain sensitive to its underlying resonances with other bodies of social science literature, despite differences in vocabulary.

10. For example, in his study of a 'free school', Maurice Punch pointed out that the attempt to construct 'power-free' institutions merely unleashes 'the immense normative power exercised by the group over the individual'. He goes on to say that such attempts, rather than realizing 'liberation', produce situations where 'social control

over the deviant may be exercised as thoroughly as in the most sophisticated police state' (1974: 323)

11. Useful discussions of this question include Hindess (1998) and Patton (1998).

 

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