Anna Lukina (University of Cambridge, Faculty of Law) have posted The Paradox of Evil Law (Research Handbook on the Politics of Constitutional Law (Mark Tushnet & Dimitry Kochenov eds.), Edward Elgar, Forthcoming) on SSRN. Here is the abstract:
When it comes to law, according to Fuller, ‘coherence and goodness have more affinity than coherence and evil’. The demands of ‘coherence’, or, as Fuller calls it, the Rule of Law, seem to put inconvenient fetters on an immoral regime’s reach. As a result, imagining a regime that is morally iniquitous yet relies on the legal form seems rather difficult, if not outright impossible. But history shows us that, within such regimes, evil and the rule of law can co-exist. In this chapter, I describe how this unholy alliance between evil and law is forged. In doing so, I will situate my discussion within the famous debate between Simmonds and Kramer on the topic. Firstly, I make a negative case against Simmonds’ position that evil regimes will be hindered by the Rule of Law as extra-legal violence is better at preventing dissent than violence cabined by legal rules. I claim that prevention of dissent, as well as other goals of evil regimes, are best served by law. Secondly, I expand on this thesis by making a positive case for Kramer’s position. I argue that law might help evil regimes via legal techniques necessary for any regime, evil or good: coercion (or ‘incentive-seeking regularity’) and coordination as identified by Kramer, and, additionally, legitimation, education, and identity building. In exploring these ideas, I draw upon two paradigmatic examples of evil legal systems – Nazi Germany and the Stalinist Soviet Union.