Chapter 3- Our Guiding Principles

Collective governance

The state is far from the only source of normativity. But the fact that democratic states must act in accordance with the law and that most public policies come in the form of legislative texts, produces a kind of short-circuit whereby the source of law and the state appear as one.  

Yet, as Professor MacDonald rightly points out, if the actions of the state are subject to the rule of law, the legal sphere is not limited to the State. In all known societies, rules have always been established for the governance of the self and of collective relations. They are implicit or explicit, formal or informal, all-encompassing or limited in their application, codified or recorded in the collective memory, extensive or limited to certain spheres of activity. In every case, whatever the nature or specific form of the rules, they serve to express for members of the community the conditions of collective life. They deal with marriage and parenthood, the ways in which one respects the life and property of others, as well as the connections to the invisible and the beyond. They take the form of prescriptions and bans, are implemented by the bishop or the mullah, by the king or his representative, or by the judge. Much as we might like to believe, we in modern times have not invented the codification of laws because the first legal code goes back to Hammurabi, the King of Babylon. In Roman law, Justinien was the first to suggest a code of laws, not to mention the Ten Commandments “handed down” to Moses. 

In this sense, we agree with Professor MacDonald as concerns legal pluralism, according to which there are multiple sources of normativity and therefore of rules of action that are not exhausted by formal legislation. This is the distinction between law and “juridicity”. As we mentioned above, juridicity can be derived as much from the family as from business, from school as from the trade union, from political parties as from religion. In this sense, juridicity “is the business of subjecting action to rules-based governance”.[1][10]

Juridicity, of course, co-exists with other ways of governing individual and community actions: the brute exercise of power and war are examples of other forms. One of the main differences, however, between juridicity and other forms comes from the nature and the origin of its legitimacy. The establishment of legal rules of action involves a form of consent, if not of active participation, in the development and implementation of the rule, qualities that are not needed nor sought out in the case of domination by a tyrant or an occupying army.

The development of a formal juridicity, in the form of legal texts passed by legislative assemblies prescribing both objective and subjective rights, is at the very heart of modernity. It is in fact around these kinds of issues that the more specific question of the role of the State arises: when and to what extent should formal legal rules be developed, and how should they be enforced?

Modern societies are unique in that they have, amongst other things, given precedence to the formal rule of law over other sources of juridicity as regards the governance of social relationships, established the need for these formal laws to be adopted and implemented by legislative and executive arms of the State, and set up arbitration systems in the form of courts of law born of the State but having an arm’s length relationship with the former two. 

This formality of the law, or to be more precise, the legal normativity found in the legislative texts passed by the State, in no way signifies the disappearance of the other forms of normativity. Here Professor MacDonald gives us a relevant example of this:

For example, activity that the official criminal law sanctions and stigmatizes may be rewarded and valued in certain other normative communities. In socio-economically impoverished neighbourhoods where economic opportunities are limited, the manufacture and sale of illicit drugs may be an attractive means of escaping poverty. For those who are successful in the enterprise, the consequent advancement in social standing may more than offset the potential harms visited by criminal sanctions. Similarly, in an international context, in countries where the raising of traditional crops which are capable of being converted into illicit drugs is an indigenous cultural activity, and where conditions of poverty are such that the attendant economic benefits are necessary for subsistence, the criminal law (whether domestic or international) has little purchase. [2][11]

In other words, juridicity is not exhausted in the formal law, and the role of the State is not limited to the processes of passing, enforcing and arbitrating formal legislation.