TY - JOUR
T1 - The rule of law and the limits of anarchy
AU - Pavel, Carmen E.
N1 - Publisher Copyright:
Copyright © The Author(s), 2021. Published by Cambridge University Press.
Copyright:
Copyright 2021 Elsevier B.V., All rights reserved.
PY - 2021/3
Y1 - 2021/3
N2 - Anarchy is often contrasted with law, order, or security. But anarchist societies, by which I mean societies that lack a monopoly of coercive force, need not be lawless. They can develop sophisticated legal systems that regulate the behavior of their members and protect their rights. International law, market anarchism, and other models of anarchism such as the one proposed by Chandran Kukathas already exhibit or could plausibly exhibit complex legal rules and institutions. I will show that insofar as these models rely on consent, they all share similar structural flaws, namely, that they cannot meet basic rule-of-law values such as equality before the law and access to legal remedies for wrongs that embody and respect individual moral equality, even minimally conceived. The implication of this argument is not to vindicate state-based legal systems. Rather it is to show that legal systems, state-based or not, must have a strong nonconsensual, coercive element: the process of making, applying, and enforcing law must, to some extent, be severed from consent if law is to perform its function of providing for minimal justice.
AB - Anarchy is often contrasted with law, order, or security. But anarchist societies, by which I mean societies that lack a monopoly of coercive force, need not be lawless. They can develop sophisticated legal systems that regulate the behavior of their members and protect their rights. International law, market anarchism, and other models of anarchism such as the one proposed by Chandran Kukathas already exhibit or could plausibly exhibit complex legal rules and institutions. I will show that insofar as these models rely on consent, they all share similar structural flaws, namely, that they cannot meet basic rule-of-law values such as equality before the law and access to legal remedies for wrongs that embody and respect individual moral equality, even minimally conceived. The implication of this argument is not to vindicate state-based legal systems. Rather it is to show that legal systems, state-based or not, must have a strong nonconsensual, coercive element: the process of making, applying, and enforcing law must, to some extent, be severed from consent if law is to perform its function of providing for minimal justice.
UR - http://www.scopus.com/inward/record.url?scp=85108061471&partnerID=8YFLogxK
U2 - 10.1017/S1352325221000045
DO - 10.1017/S1352325221000045
M3 - Article
AN - SCOPUS:85108061471
SN - 1352-3252
VL - 27
SP - 70
EP - 95
JO - LEGAL THEORY
JF - LEGAL THEORY
IS - 1
ER -
