Legal Informalism, Power and Liberal Governance

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 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.