Peace,Order,Civil Order

Abstract

In this paper, I will explore some different ways of thinking about order and the criminal law. I focus on three related concepts: peace, order and civil order. I will explore the similarities and differences between them and look, in particular, at how they relate to different understandings and histories of the institutions of criminal justice. I argue that the concept of ‘civil order’ has the potential to open up new theoretical perspectives on criminal law theory.

Introduction: Law and Order

In contemporary politics, Law and Order (always capitalised) has justly acquired a bad name. It is seen as the particular domain of populists and the term is commonly used as a shorthand for repressive penal policies. ‘Law and Order’ politics calls for more police, harsher punishments and tougher prisons against the backdrop of claims about failing or disintegrating social order. It is not always clear what kind of order is being demanded in the place of breakdown (the absence of crime? Respect for authority?), but it tends to be presented in conservative terms as restoring something that has been lost. It is also clear that law is in the service of order. Law is an instrument for the maintenance of order; and order will only be restored if the law is ‘properly’ enforced (Hall, 1980). Ironically, this understanding of Law and Order is then sometimes contrasted with the view that law and order might be in tension with each other. Law offers protections to accused persons in the form of human and procedural rights which can mean that ‘criminals’ might get off on ‘technicalities’ or that the law might hamper the efforts of criminal justice professionals, such as the police (see Packer (1968) on models of crime control and due process). On this view, order is something that is perhaps independent of law – something that might be achieved if only lawyers did not interfere – even if, once again, the kind of order that is to be protected is not clearly articulated.

This raises (at least) two important questions. First, what do we mean when we talk about order, and second what is the relationship between order and law, and between order and criminal law in particular. In this paper, I explore some different ways of thinking about order and the criminal law. I focus on three related concepts that are encountered in discussions of common law systems: peace, order and civil order. I will explore the similarities and differences between them and look, in particular, at how they relate to different understandings and histories of the institutions of criminal law and justice. In doing this, I want to show that it is necessary to place a greater focus on order (and cognate terms such as peace) – how it is produced and how it is related to law, as well as to argue that it is important to conceive of order in more positive terms – not simply the absence of disorder. One way of doing this, I shall argue, is to think about ‘civil order’ as a particular kind of institutional order, in order to raise questions about different kinds of order and their relationship to law.

Peace

In general terms, peace is usually understood as the absence of war, conflict or disorder. ¹ In political theory, peace in this sense is often seen as a precondition for social life: first, it is necessary to establish peace, then it is possible to live together in a form of political community. In liberal political theory, social peace is a kind of minimum threshold for social life, the backdrop against which individuals can pursue their own ends. The classic statement of this kind of position can be found in the work of Thomas Hobbes who famously saw the state of nature as a state of war of all against all (Hobbes, 1968; Oakeshott, 1975). For Hobbes, the only way to secure order and enter the civil state was for each individual person to surrender some part of their natural liberty to the sovereign to establish conditions of security – and so end the war. For Hobbes, then, peace was both a condition for, and an outcome of, the establishment of civil government. This requires the curtailment of individual liberty and the establishment of sovereign rule, but it is striking that, once established, the state of peace is rarely analysed, beyond the assumption that it means security against attack by others and that the role of the sovereign is to secure peace by preventing such attacks. Civil society is peaceful, and there is little exploration of the question of what this peace consists in, or how it has been secured or is being maintained.

A version of this kind of argument can be found in some criminal law theory, where it is argued that one of the aims of punishment is to secure peace. Roxin, for example, argues that punishment is not only justified in terms of retribution because just punishment also performs a social function – described as a commitment to the maintenance of social order or, alternatively, social peace (Roxin, 2014). It is not entirely clear what this claim means. One possibility is that the imposition of state punishment is intended to satisfy the victim of a crime and so stop them from taking the law into their own hands – or to prevent vigilantism. This (if true) would thus prevent disorder of a certain kind, but it is less clear in what sense the resulting order can properly be described as a form of peace. It is, once again, a negative framing – the absence of disorder. Such an account, moreover, is very narrowly focused on the interpersonal relations between the victim (or the family of the victim) and the offender and so tells us little about the conditions of social peace more generally. Alternatively, this kind of claim might be understood in terms of punishment symbolically reinstating a pre-existing order or peace (Durkheim, 2017; Garland, 1990: ch.3). However, while this appeals to the social function of punishment, it assumes the existence of a pre-existing order or peace which might be restored through punishment, rather than demonstrating how punishment might in fact perform this function. In both versions, this is a negative understanding of peace as the prevention of further disorder, and it is unclear what the underlying peace consists in, or how it is sustained. The question that this raises is that of how we might elaborate an account of these social aims of punishment that gives greater substance to the underpinning idea of social peace, or order.

A more radical account of the relationship between peace and state power is provided by Neocleous who focuses on the process – pacification or securing peace – rather than the condition of ‘peace’ as such (Neocleous, 2011). For Neocleous, pacification should be understood as the process by means of which social order is ‘fabricated’, breaking down more traditional social structures in order to create a social order which is functional to a particular (capitalist) regime of accumulation (Foucault, 2008; Neocleous, 2000). Pacification is thus a form of violence, the ‘conjunction of war and peace’ in which the state frames existing social relations as a form of war or conflict (a state of insecurity) in order to justify intervention in the name of peace (or security). For Neocleous, the institution of the state does not end war, as the traditional liberal account would argue, but rather maintains it in order to justify further social intervention. And while many of Neocleous’ examples are drawn from counter-insurgency manuals which deal with situations of overt conflict, he sees the mechanisms of pacification as continuous with the forms of police or securitisation in capitalist society. I will return to this below, but for now want to note the focus on pacification as a process rather than peace as a condition – and that this approach consequently sees peace as something that is constructed or made rather than being a condition that is simply assumed to exist in the absence of war (Benton, 2024). This tension between peace as a condition and peace-making as a process can also be found in the concept of the King's peace, which is central to conceptions of legal order in the common law.

The King's Peace

The King's peace is a term which is widely used in common law systems and so it can help us to see how the concept of peace has been linked to particular forms of legal order. As a concept, it has been used to describe, on the one hand, a state or condition of peace which can be threatened or disturbed in various ways and, on the other, a process of ‘peace’-making or institution building (Wall, 2021). While these different dimensions overlap – it is the breaking of the ‘peace’ which is used to justify the existence of ‘peace-making’ institutions – it is useful to distinguish them for analytical purposes, and I shall look at each of them in turn.

The origins of the King's peace lie in Anglo-Saxon rules about the protection of the King's household or court (Allen, 1953; Pollock, 1899). The ‘peace’ was something that attached to the person of the King and those in his household or under his protection. In practice, this meant that acts which breached that peace (as opposed to a more local peace) could be punished in the Royal courts or that individuals could be ‘bound over’ to keep the peace (not to pursue private remedies or disputes) (Feldman, 1988). The kinds of acts that fell within the jurisdiction of the Royal courts were be determined by a range of different factors: the level of seriousness (e.g., murder or maiming); where the acts were carried out (on the King's highways, in the King's court and so on); or even the time of year (e.g., around certain holidays). This authority, or peace, existed alongside the competing authority of other lords or landholders who maintained and protected the peace of their households. In the words of Allen:

There was not yet any established, comprehensive peace of the whole realm. While we think of wrongdoing as a breach of the peace, our ancestors thought of it as a breach of a peace. (Allen, 1953: 10 emphasis in original)

Over time, this more personal conception of the King's peace was extended to cover the whole of the kingdom as the sovereign gradually asserted his authority over other, lesser, jurisdictions as they were subsumed within a central structure of courts and government. Lying behind this development, then, there is also an account of the development of civil government as a process of ‘pacification’. The early Saxon rulers were ‘warlords’ and as they became ‘kings’, this was accompanied by a new style of rule, based less on war and conquest and more on governance through law by officers – justices – of the peace (Feldman, 1988: 107). ² The King's peace stood above, and apart from, other more local jurisdictions, and plaintiffs or petitioners could appeal to Royal justice to resolve local grievances or conflicts. The ‘peace’ was initially established by conquest then by means of the grant of administrative and judicial powers. In this way, different individual or localised conceptions of peace were brought together into an idea of the common or shared peace under law and guaranteed by the sovereign (Wall, 2021: ch.6). The King's peace came to be seen as a kind of natural order bringing together the people of England as equals under sovereign rule.

This has generally been seen, by historians of the King's peace, as a benign pacifying process, with the spread of Royal justice bringing peace to those who lived under it, but this narrative has been contested. In a recent book, Ford has shown that the idea of the King's peace was an important mechanism in the spread of British imperial power, used as a means of asserting the jurisdiction of the British crown in particular locations or over particular peoples (Ford, 2021). In particular, Ford shows how military intervention was repeatedly authorised across the empire between 1760 and 1830 in the name of restoring the King's peace. The ‘peace’ that was established in this ‘epochal transformation’ of imperial order was based on autocratic rule from the imperial centre, backed by military power (Ford, 2021: 218). And far from bringing legal equality, imperial government was increasingly based on distinctions between different subject groups according to status and race. The King's peace on Ford's telling is one-sided – a particular idea of what peace means that is violent and racist, that was imposed on particular subject communities or groups. Thus, as Wall concludes: ‘the peace … names the sense of control of territory, the exclusion of counter-powers and the ability of the sovereign apparatus to demand allegiance of its populace’ (Wall, 2021: 72).

If this shows different aspects of pacification and institution-building in the name of the King's peace, it also makes it clear that there is no single or simple understanding of the kind of peace that is being established. The King's peace is a mechanism that allows for the assertion of jurisdiction, but the ‘peace’ that is being established and re-established is contested. On one kind of reading, the peace can be understood merely as the absence of disorder – or at least of the existence of authoritative mechanisms for responding to disorder – but the peace thus established may be more or less inclusive or civil. Thus, for Sir John Davis, writing in 1620, the peace was the source of prosperity:

The public peace is the cause that your fruitful fields are so well manured, your barren wastes converted, your herds and flocks increased, your cities and towns enlarged, trade and traffic by sea and land freely entertained, and all the commodities of the earth improved. (Quoted in Kesselring, 2019: 8)

Yet if this was one version of civil peace and its consequences, there might also be forms of ‘uncivil’ peace. Ford points to the peace ‘built on greed, domination, and violence’ in Jamaica in 1795 as martial law was imposed by the British to suppress a slave rebellion (Ford, 2021: 136). We should thus qualify Wall's argument that the King's peace should be understood as an ‘affective order’, that is to say an atmosphere or normative way of being (Wall, 2021: ch.6). ³ This might be true of certain kinds of orders at particular times – or rather it might reflect the self-understanding of a particular order as possessing a kind of natural authority. This is particularly the case perhaps for the English common law, where over time lines have become blurred between institutions, authority and conceptions of peace, and where it is easy for certain classes or ethnic groups to conflate their understanding of peace with peace as such because of their place within a particular social order. However, at other places or times, this sense of order might be contested and the mechanisms of pacification more visible. It is thus also important always to ask what kind of peace exists and whose interests it serves.

The King's Peace and the Criminal Law

These often rather abstract claims about the peace take on a more definite shape when considered specifically in relation to the criminal law. For the criminal law, claims about the King's peace operate at two levels. On the one hand, there are general claims that all breaches of the criminal law can be understood as crimes against the King's peace. Thus, for Sir William Blackstone writing in 1765:

All offenses are either against the king's peace, or his crown and dignity; and are so laid in every indictment. For, though in their consequences they generally seem (except in the case of treason and a very few others) to be rather offenses against the kingdom than the king; yet, as the public, which is an invisible body, has delegated all its power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offenses against him, to whom they are so delegated by the public. (Blackstone, 1765: I, ch.7 at 259) ⁴

Likewise, Sir James Fitzjames Stephen, in his history of the English criminal law, published in 1883, pointed out that:

Every crime is to a greater or less extent a breach of the peace, but some tend merely to break it as against some particular person or small number of persons, whereas others interfere with it on a wider scale, either by acts which strike at the State itself, the established order of Government, or by acts which affect or tend to affect the tranquillity of a considerable number of persons, or an extensive local area. (Stephen, 1883: I, 241)

While Blackstone's account is more abstract, and Stephen is focused on the kind, or scale, of infraction, what they have in common is a largely formal understanding of the peace. The peace is something that is guaranteed by the sovereign, and the subject matter of criminal law is understood in terms of breaches of that peace. ⁵

At the same time, the peace is now understood more specifically as relating to crimes against public order. Glanville Williams thus argues that ‘[e]very crime is a breach of the royal peace, but the notion of crimes involving a breach of the peace is a specific one’ (Williams, 1953: 561). The recognition of this distinction corresponds with emergence of public order as a sub-category of modern criminal law. Public order as a legal category is not well defined. It is a category which contains crimes which range from the very minor (disorderly conduct, breach of the peace, public nuisance etc.), to crimes which police certain forms of political engagement (marches, demonstrations, protests etc.), while also including some more serious crimes which challenge political order directly such as riot or sedition (Brownlie, 1968; Williams, 1967). ⁶ While the reform of public order law in 1986 brought a degree of formalisation to this area of law, it is still unusually open-ended (especially in relation to minor offences). The meanings of public nuisance or disorderly conduct are shaped by police responses to what they see as threats to public tranquillity (Spencer, 1989). ⁷ Although the term ‘tranquillity’ is often referred to in this area, it is rarely defined. Lord Scarman, for example, in his report on the 1981 Brixton riots, suggested that ‘in a civilised society, normality is a state of public tranquillity, and went on to define the “Queen's Peace” as the maintenance of “the normal state of society”’ (Scarman Report para.4.57). This, in turn, is often seen as unreasonable interferences ‘with traffic, trade and the day-to-day activities of ordinary citizens’ (Williams, 1967: 10). Public disorder is thus seen as a departure from a state of normality which the police should prevent by enforcing the law. This points to the central role of police as ‘primary definers’ of public order, as well as the fact that public order is less a state than an ongoing process of ordering (Channing, 2017; Hall et al., 1977: ch.3).

Overall, then, we can see that public peace or order has an ambiguous or liminal character. Peace is seen as the foundation of law, but ‘peace’ gradually comes to be framed as a question of criminal law because there are few direct challenges to sovereign peace as such. The enforcement of public order remains as residual power. It is an area of law which is still framed in terms of the King's Peace, though its open-ended character means that it is best analysed as a process of pacification or ordering rather than being conceived of as a kind of pre-existing normative order, the elements of which are precisely defined and protected by the criminal law. ⁸ At one level, it refers to a state of normality or tranquillity which can be breached by minor infractions or forms of disorderly or anti-social conduct. But at the same time, it can connote much more serious dangers – the breakdown of public order or a way of life as a kind of threat to the state. The former can readily be seen as a crime; the latter, in challenging the source of order itself, seems much more fundamental.

Order

Discussions of order (or social order) have much in common with discussions of peace. Order is often seen as a baseline condition for the creation of other social institutions, and as such is taken for granted rather than analysed. Order is often recognised by its absence (or defined by disorder), rather than explaining what it consists of in more positive terms. Order is often understood in institutional terms – that is to say that the existence of certain institutions is taken as a proxy for order. And it is often unclear whether order is being discussed in macro- or micro-terms – that is to say the difference between discussions of different types of social, political or economic order (a liberal order, an authoritarian order or a market society) or orderliness in a particular location or community. As with the concept of peace, the content of the order or processes of ordering are neglected. However, rather than rehearse such points again, I want to make a few additional points.

In his classic analysis of social order, Wrong defines order as ‘the predictability of human conduct on the basis of common and stable expectations’ (Wrong, 1994: 7). This points to two central features of order. The first is that it is social, relying on inter-personal judgments or expectations: order depends on knowing what other people, who may be strangers, are likely to do in any given situation and adjusting your conduct to theirs (and expecting them to adjust their conduct accordingly). The second is that it is about expectations of the conduct of others: such expectations might be defeated in any given situation, but what is important is that the expectation can remain stable even in the face of this. This stability of expectations might be secured by means of the existence of rules or sanctions or by some other means. These two features are hugely important, but they are also very general. This account does not say anything about the basis of such predictability or stability: order might be based on fear or alternatively on a form of strong mutual trust – or some combination of these or other factors. Equally, it is silent about the role that institutions might play in securing expectations. Uniformities of conduct might be generated by compliance with a system of rules enforced by a strong central authority; or alternatively, there may be few rules and little by way of means of enforcement. Social order may be formal and highly structured or informal and ‘disorderly’. A system of bloodfeud, for example, might look disorderly in that it appears to licence revenge killings, but may in fact be based on clear shared norms about what kinds of killings are permissible or how the feud might be brought to an end (Roberts, 1979). There are thus many potential types of social order which may or may not entail rules or institutional structures such as the state (Farmer, 2016: ch.2). The existence of social order, in the sense of settled norms of conduct, thus does not necessarily entail the existence of law or legal institutions.

All this said, in complex modern societies where we are interacting with strangers and where technological developments in, for example, transport and communication extend relations in space and time, it is clear that the state (or comparable institutions) must play a significant role in securing and enforcing order not only by setting standards and regulating certain activities but also by managing and legitimating expectations. I want to make some brief comments about this before turning to the relationship between order and the criminal law. In general terms it is assumed in accounts such as Wrong's that the problem of order is one of co-ordinating between individuals – specifically those who are assumed to be capable of acting in conformity to social or legal norms and being held responsible for breaches of those norms. Individuals are autonomous and will pursue their own ends or interests, constrained only by the interests of others. The problem of co-ordination is thus seen as having two dimensions. On the one hand, there is the need to establish and maintain institutions and norms which provide a framework within which individuals can pursue their own interests without leading to social disintegration or the breakdown of forms of mutual trust. On the other hand, there is the need to ensure that individuals are responsible in the proper ways – that they can be made to understand their responsibilities and duties in different areas of social life. In both of these senses, it is clear that social order is not something that arises ‘naturally’, but is constructed or fabricated and that institutions play a mediating role. ⁹ This, then, is different from the account of peace or order in classical political theory discussed above where, although political society is artificial it is constructed with the end of establishing peace (or ending war). In place of this, we have to understand social life as a continual process of ordering, mediated by institutions such as the state and the market. ¹⁰

It is not perhaps necessary to any given condition of order that there be criminal laws or punishment – in the sense of a system of general norms enforced by a central state apparatus. However, Reiner has argued that crime only becomes a meaningful concept in minimally ordered societies, which have achieved a certain degree of social complexity:

Crime connotes an intermediate level of threat to norms shared within a fundamentally settled order. ‘Trivial’ nuisances are problematically conceived of as crime, as are massive occurrences of violence and destruction in war at the other end of the scale. (Reiner, 2016: 3 emphasis in original)

And:

Specialized criminal law institutions emerge only in relatively complex societies, but they are not a straightforward reflex of a burgeoning division of labour. They develop hand in hand with social and economic inequality and hierarchies of power. They are means for the emergence and protection of more centralized and dominant class and state systems. (Reiner, 2016: 17–18)

This suggests that for criminal law, there must be some shared norms or expectations. An ‘intermediate’ threat (crime) is then one that breaches those norms in a certain way without necessarily challenging the system of norms, or the social or political order itself, in some more fundamental way (cf. Stephen, 1883: I, 241–242). It also, as Reiner points out, helps to explain why it is controversial to criminalise minor forms of public disorder or forms of anti-social behaviour because they are not sufficiently serious to count as ‘intermediate’ threats (Reiner, 2016; Ristroph, 2020). This, of course, still leaves open a number of important questions about the content of those shared norms, what it means to say that they are shared, and the level of threat that would be counted as ‘intermediate’ in any given social order. As an approach, though, this focus on shared norms and the intermediate level of threat clarifies the broad relationship between law and order and the role that criminal law as an institution plays in this process of ordering in certain kinds of societies (Farmer, 2016: 43–45). However, it is also necessary to recognise that criminal law may contribute to that ordering in different ways. Criminal law – or particular criminal laws – can be and often are repressive. They may be accepted by a large proportion of a particular community, or they may be regarded as serving particular sectional interests and lack widespread legitimacy. The same law may be widely accepted by one group but enforced in a repressive way against another part of the community. This is to say that to acknowledge that criminal law contributes to this process of ordering is not to make any particular claim about the way that it does so or the legitimacy of the criminal law. In order, then, to understand this relationship between the legitimacy of the criminal law and the process of ordering it is necessary to think in terms of civil order.

Civil Order

Given the many different kinds of social order and the range of ways in which criminal law might support or sustain those orders, it is useful to think in terms of civil order such that we move the discussion away from discussing only order (or equivalent concepts such as peace) to focusing on the kind of order that is constructed – precisely the feature which, as we have seen, is often neglected in discussions of peace and order. Civil order can be understood as a particular kind of social order; it is not merely order as such. It refers not only to the existence of norms and social relations guaranteeing stability of expectations, but also to a certain kind of institutional ordering in which the burden of guaranteeing social and normative order is taken on by centralised institutions, what Roberts refers to as the ‘aspiration to “govern”’ (Roberts, 2005: 13). The distinctive feature of civil order is thus the existence of legal institutions in the sense not only of norms of conduct but also as an apparatus of rule which can regulate social relations and settle disputes by adjudicating between norms. This distinction between social and civil order is usually elided in classical political thought where, as we have seen, order is understood as the absence of war or the existence of disorder. However, if we see the key distinction as not that between order and the absence of order or between peace and war, but that between social and civil order, it is necessary to focus more closely on the nature of civil order and of the institutions that have emerged to guarantee and sustain that order. It is possible to identify four main features of legal institutions, which underpin Western ideas of civil order. ¹¹ First, there is the classical Weberian conception of the state as entailing a monopoly on the legitimate means of physical violence, both with respect to external conflicts and the internal maintenance of order (Poggi, 1978; Weber, 1948). Second, in the modern era, law has been central to the process of marking the boundaries of the modern state and maintaining its sense of identity through the establishment of rules of jurisdiction. Third, rules of social order establishing norms of social conduct are increasingly formalised in rules of general application, such that law becomes a modality of rule in the modern state, a means of governing a population of individuals. Finally, this has entailed a commitment to the rule of law and to individual liberty, as our understandings of law have come to shape the moral order of modernity such that the state comes to be bound by its own violence-limiting and rule-defining conditions. In this way, as Neil MacCormick argued, law aimed at ‘securing the civility of civil society’ (MacCormick, 2007: 293).

This understanding of the civility of civil order also offers a different approach to understanding the relationship between criminal law and civil order, focusing on the social – the civility of civil society – and arguing that criminal law should be seen in terms of its role in securing this. ¹² Thus, rather than understanding the institution of criminal law as simply maintaining the conditions of order, we should conceive of the criminal law as being directly invested in the construction of that order. This is not to downplay the importance of rights or the need to limit state action through law, but to reframe these as issues relating to the civility of civil order rather than as starting points. This puts the social rather than the individual at the core of theorising about criminal law, which law is thus to be seen from the perspective of the roles and responsibilities that it defines and how, alongside other bodies of law (such as tort, contract or welfare laws), it distributes certain social risks. Thus the civil order secured by criminal law is conceived not in terms of a moral community but as concerned with the ‘co-ordination of complex modern societies composed of a range of entities or legal persons that are responsible, in a range of different ways, for their own conduct, for the wellbeing of others, and for the maintenance of social institutions’ (Farmer, 2016: 193, 2020). Within this broad framework, co-ordination through law is subject to specific requirements and constraints, because modern law addresses citizens as responsible, autonomous, self-governing subjects.

This focus on civil order can then be seen as opening up a new kind of agenda for research – as exemplified in many ways by the range of issues addressed by the papers in this special issue (Carvalho, 2023). Central to this is the need to address the question of what makes civil order civil. This invites both normative discussion and critique. In normative terms, there are questions about the kind of order or values that might be shared in any given society – in short how we want to live and what that would mean for the criminal law. This is not just a matter of institutions, but also of culture more broadly, of how a community or communities live together. In terms of critique, it is necessary to look at the ideological functions of claims about civility or civil order – the particular configurations of selfhood, violence and law. Any claims that the criminal law is legitimate, that it embodies shared normative values, that it is enforced fairly, or that it is ‘civilised’ must be questioned. And as historians of the British Empire such as Ford have shown, the claims of a relationship between (English) criminal law and civilisation must be explored in a range of different contexts.

In conclusion, then, my claim is that to focus on civil order is to try and open up the possibility of exploring the meanings of peace and order in new ways. As I have tried to argue, too often we have seen order or peace in purely negative terms – as the absence of disorder or war. And critical theorists have perhaps shied away from investigating the concept of order because of its association with conservative values or institutions. It has been seen as something that is imposed from outside. Some order is desirable, even necessary and reflection on the concept of civil order offers a way to engage with the complex and difficult questions about what it means.