Civil Order, Criminal Justice, and ‘No Justice No Peace’

Virginia Public Law and Legal Theory Research Paper No. 2020-18

U. Toronto L.J., vol. 70, no. supp. 1, pp.84-101 (2020)

Posted: 21 Feb 2020 Last revised: 23 Feb 2020

See all articles by Darryl K. Brown

Darryl K. Brown

University of Virginia School of Law

Date Written: February 20, 2020

Abstract

Two kinds of recurring events – police violence and political protests – highlight some of the tensions between criminal justice administration and the idea of civil peace. Maintaining civil order is both a duty of the state and a justifying basis for state power, including criminal law power. But civil order is understood to have a normative dimension. Peace is more than merely the absence of disorder; it is order on just terms, achieved by legitimate means. That sets the stage for the paradox of the state using its order-preserving power to breach the civil order, notably through unlawful uses of force by police. Public responses to state-triggered disorder lead to a second paradox: citizens sometimes use tactical breaches of the peace as a means to call the state to account for its acts of disorder; they use unrest to restore peace. This tactic is explicit in the collective demand ‘no justice no peace’ employed throughout English-speaking democracies, a demand that often calls for greater use of criminal sanctions to repair the civil order. Beyond these two examples, this article assesses the particular difficulties of sustaining a just civil peace in ethically pluralist societies, where the constitutive values on which the legitimacy of civil order depends can be especially hotly contested. Western democracies aspire to be ethically pluralist, but strains of illiberal populism, such as those apparent now in many of those democracies, make it even harder to reach a sustainable settlement on the terms for a practice and process of just civil peace. (Contact the author for full text access; author can provide to 100 readers a URL that grants free, legal access to the article on the journal site.)

Keywords: civil law, criminal law, illiberal populism, policing, punishment

JEL Classification: K14

Suggested Citation

Brown, Darryl K., Civil Order, Criminal Justice, and ‘No Justice No Peace’ (February 20, 2020). Virginia Public Law and Legal Theory Research Paper No. 2020-18, U. Toronto L.J., vol. 70, no. supp. 1, pp.84-101 (2020), Available at SSRN: https://ssrn.com/abstract=3541932

Darryl K. Brown (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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