Law and Disorder

Abstract

My object of interest here is the law of free expression, viewed from an oblique angle. The classic free speech article glosses a big pile of cases to see how well they express a particular theory of freedom, normally the glossator's own theory, and to rebuke the courts for not expressing that theory better than they do. But in addition to ideas of freedom, naturally, free speech law expresses ideas of order and disorder: of what constitutes good order and what threatens it. The idea of exploring images of order and disorder in the law came to me as I was engaged last year in trying to teach law students at Oxford a course comparing the British and American law of speech and press. Impressed from the first with how relatively authoritarian in many respects British law seems to be compared to the American, I was moved as others have been to try to pin down the differences in basic attitudes towards order and order-maintenance that seem to lie behind these legal differences. If the exploration holds any interest for American lawyers, it might do so in part because the ways in which British public law differ from American are by no means strange or novel to an American ear, but actually are entirely familiar, representing as they do a sometimes muted but ever-present conservative alter ego in Anglo- American legal culture, one that has been dominant at various points in our country's experience, that appears piecemeal in our public-order doctrine still, and even now has powerful people speaking for its revival and expansion. For even within the liberal capitalist democracies, there has rarely been anything like consensus on what good order demands. There have, rather, been conflicting ideologies of order, some of which have come to predominate at different times at the expense of the others, without ever completely displacing their rivals.