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10 Soc. & Legal Stud. 5 (2001)

handle is hein.journals/solestu10 and id is 1 raw text is: LEGAL INFORMALISM, POWER AND LIBERAL GOVERNANCE ROBERT VAN KRIEKEN University of Sydney, Australia ABSTRACT 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 continu- ing 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 govern- ment work through individual and community 'freedom', rather than against them. I conclude with some comments on the kind of research agenda concerning legal infor- malism encouraged by Foucault's conceptions of power, government and freedom. INTRODUCTION T 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, auth- ority, coercion and justice are at issue (Auerbach, 1983; Ehrlich, 1979: 122; Ellickson, 1991; Henry, 1983; Matthews, 1988: 2-4; Merry, 1988; Nader, 1984). SOCIAL & LEGAL STUDIES 0964 6639 (200103) 10:1 Copyright © 2001 SAGE Publications, London, Thousand Oaks, CA and New Delhi, Vol. 10(1), 5-22; 016320