Law and Politics
From IVR encyclopedie
During recent centuries, much attention has been specifically devoted within the legal discipline to explaining the interrelationship of legal and political phenomena.1 This attempt at positioning the law with respect to the political realm, however, is far from being settled around generally accepted propositions. When “politics” is perceived as the identification of a complex of values (of an economic, social or moral nature) chosen to be implemented by the public authoritative apparatus into the community using law-making, most contemporary legal scholars are inclined to depict the law either as being structurally affected by politics or as being ultimately shaped by its internal rationality. It is then possible to detect two ideal-typical answers as to the question of whether the political substance or message which the law always carries also affects the structures and forms of the law itself: there exists either a rigidity of the law, i.e. the law tends to keep the same forms and mechanisms regardless of the content; or, alternatively, a flexibility of the law, i.e. law tends to adapt its forms and nature according to the political substances it carries.2 The American and Scandinavian Realists offer a third alternative to these two ideal-typical depictions, a partial rigidity of the law to the political substance it carries.
II. The law's rigidity towards politics
According to the first of these ideal-typical answers to the question of how the law and politics are related, the law is depicted as structurally rigid towards politics. Legal positivism as espoused by Hans Kelsen, Herbert L. A. Hart’s analytical jurisprudence, and Niklas Luhmann’s autopoietic approach to the law can be ascribed to this ideal-typical answer. Even the recent developments within legal positivism, in particular in the inclusive direction, do not significantly affect this idea as embraced here. Both the inclusive and exclusive legal positivisms remain anchored in the general legal positivistic idea that the law is something per se different from the political phenomenon and the kind of moral, economic or cultural values that the latter expresses.3 This embracing of an idea of rigidity of the law does not mean that legal positivism and analytical jurisprudence claim the absence of any contact between the two different orders. Neither Kelsen nor Hart deny the fact that law, in particular in this contemporary age, is mostly produced by political actors, i.e. by institutional subjects whose primary goal is to see their values implemented into a community. For both Kelsen and Hart, the law certainly is open to receiving contributions to its content from the surrounding political world in terms of values. However, the structures of the law (either in terms of Sollen or of legal language) still tend to be rigid, i.e. to remain the same no matter the values that enter.4 For example, the leading figure of exclusive (or ‘hard’) legal positivism, Joseph Raz, states that, in the end, “the law consists of authoritative positivist considerations enforceable by courts.”5 Raz then brings the ontologies of all constitutive elements of what law is, namely legal authority, legal consideration and legal courts, back under the shadow of the legal world. Even the most temperate version of the current legal positivistic movement, the institutional theory, begins with the assumption of structural diversity between the law and the world of values.6 It is even fully possible for Hart, who openly acknowledges that legal rules are a specific kind of social rules grounded upon social practices and common values (“minimum content of natural law”), to identify legal concepts and categories in terms of rules and standards by making reference to the legal linguistic structure and complex as it appears to the legal actors, without making reference to any political elements that may lie behind (or outside) such language. This does not mean that according to Hart, the legal and political phenomena are totally separate. He simply stresses the fact that the legal system, even if surrounded by a social context, is still rigid towards the values the latter produces. The legal system is a specific phenomenon, whose hard-core, namely the legal rules shaped in legal language, is affected by the different value-environments, but only in terms of the content of the messages such rules transmit to the community (e.g. behavior f instead of e), not in the way such messages are actually transmitted (e.g. with legal rights and legal obligations).7
III. The law's flexibility towards politics
Contemporary legal thinking presents a second major ideal-typical answer to the question of how the legal world interacts with the political one: the flexible nature of law. With this, the relationship between law and politics is viewed as so frequently coinciding that it often is very difficult, but not impossible, to identify distinctive features within the legal phenomenon. Contemporary natural law theories, CLS, the School of Law and Economics, Public Choice Theory, Feministic jurisprudence, Critical Race Theory, Postmodernist approach, Legal Process, and the movement of Law and Society can be considered as endorsing a depiction of law as flexible towards politics.8 For this heterogeneous group of theories, the law becomes an integral part of a wider context, the political and moral environment in which statutes, judgments, and other legal production take place. A certain norm or category becomes fully legal, i.e. truly binding for the community, only if it fulfils certain requirements determined by this external environment. These can be requirements such as “goodness” or “justice,” or also those such as “efficiency” or “fidelity.” Law is considered by natural law theory, CLS as well as Law and Economics, as certainly playing a central role in the fulfillment of these values due to its very authoritative and obligatory nature. However, its qualification as “law” is assigned on the bases of these very moral, political, or economic values the law is to promote into the community, therefore rendering the internal structures of the law itself necessarily flexible to the changes occurring at the political, economic, and moral levels. For example, for the Chicago School of Richard Posner, the law is a word with neither a fixed conceptual nor referential meaning. The law is not a set of fixed features, pre-determined regardless of the content the political actors (in primis the legislature and the judges operating in their law-making function) intend to give it. The law, Posner argues, is an open-ended set of concepts, most of which are derived from a common set of assumptions to a certain extent “when used in sufficient density.”9 Being depicted as a complex of social and political actions, the law then becomes a part of politics intended as the environment shaping the values reproduced into the law. In particular, the idea of the law has to take into consideration the fact that, looking at human history, one can recognize the constant presence of certain given economic constructions, such as property ownership or contractual freedom, which, in order to allow the economy of a country to work properly, have to be brought to the legal surface. Claiming, as Posner does, that “[t]he logic of the law is really economics,” is a way of making the ontology of law flexible and dependent upon the changes of ideas and values occurring at the economic-political level.10The inner structure (or logic) of the complex of social actions going under the name of law tends to reflect the working of the economic and political environments in which it operates. In the case of a modern capitalist society, for example, the efficiency of the markets is translated into an efficiency criterion permeating the entirety of contract law.11
IV. The law's partial rigidity towards politics
Though it is often difficult to find common elements in the American and the Scandinavian legal realisms, their attitudes concerning the issue of law and politics bring them to the same path: the proposal of an idea of law as partially rigid towards politics. Legal realists see the law as a phenomenon whose essence eventually consists of being a specific normative phenomenon, i.e. in terms stressing the separation and rigidity of the legal structure towards the political world. As for legal positivism and analytical jurisprudence, law is conceived as a technology instrumental to politics, with its own space and its own rules.12 However, the legal realists’ theories also constantly stress the fact that the law is more than a logical and closed system of rules written on paper, more than the law-in-books. For the legal realists, the law is an empirical phenomenon, constituted by a combination of human behaviors and prevalent ideas among human beings as to what constitutes the law. The law is primarily the law-in-action.13 The legal realists then open the door to the empirical aspects of the legal phenomenon as constitutive elements of the very nature of law, an opening both to the concrete behaviors of human beings and to their socio-psychological underpinnings. As a consequence, the idea of what the law is ends up including a normative hard-core but also elements of a non-normative nature, in particular of sociological and political origins.14 For this very reason, the theories of the legal realists can generally be seen as having the idea of a partial rigidity of the law in relation to politics. For example, the rigidity of the law towards politics exists in the basic assumption by American legal realists that the law is not simply paper rules. The law also is predominantly the result of the work of the courts and their decisions in the concrete cases. This identification of the law with the decisions of the courts leads to the rejection of any ontology of the legal phenomenon that tries to establish the law’s grounds elsewhere, in particular in the value world (as done by natural law scholars). Law is rigid towards politics because the law is that which is decided by judges, and judges allow the values of the political world to enter into the law only if the values take the form of the legal concepts and categories as available or newly constructed.15 The fact that judges choose among different legal constructions, and not among different values is the point however at which American legal realists begin to open the structures of law and make the law more flexible, or better yet, only partially rigid towards the political world. In fact, the very act of choosing among the different legal-conceptual structures that are law, is the moment when judges are most heavily influenced by the value environment in which they are educated, live and work. It is this very idea that the law is what judges produce, and not what is in the books, that makes the American realist point out how the social and political environments in which judges operate have to be taken into consideration when dealing with the issue of what the law is. Only after this can one really understand how and why a certain rule, concept or category has been created or chosen in a judicial decision to become law.16
V. Some final words
As can be seen from the above, the results for each ideal-typical depiction of the relations between law and politics are unique, each having its own particular way of viewing how and to what extent the legal phenomenon relates to the political one. Despite these distinctions, it is still possible to find at least two common points of discussion among the different depictions. First, each of the theories covered by the three models begin their analysis from the fact that law and politics relate to each other in some fashion. That which actually characterizes their approaches, and distinguishes the models, is the degree of intensity (highest for CLS or natural law, lowest for legal positivisms and analytical jurisprudence) in the interrelationship between law and politics, not the dilemma of its presence or absence. The second common point of discussion among the different models is the consideration that law and politics, regardless of the intensity of their relations, are actually two phenomena that cannot be fully assimilated within each other. Even theories like CLS, natural law or Law and Economics still speak of two different phenomena, one called law, the other, politics. Stressing the dependency of the first to the second does not imply that they are simply two words identifying one phenomenon. These common starting positions taken by contemporary legal theories as to the issue of law and politic are actually the product of the recognition by the vast majority of contemporary legal scholars that a system of diverging forces operates within modern Western legal systems. One force pulls in the direction of concentrating the law into the hands of politicians, therefore requiring a law more structurally obedient to reasons of politics than, for example, to those of systematic legal development. The increasing complexity and number of areas the political world recognizes as its domain and therefore regulates by law in their turn cause another force to pull the law in the opposite direction. This increasing politicization of the community life encourages a development of the idea of law as rigid to the outside reality, with its own rules as monopolized by a group of legal professionals. 17 The fact that the law is subjugated to this system of two strong simultaneously opposing and pulling forces, then in turn affects the manner by which contemporary legal theories perceive the law: Law and politics always tend to be depicted as two (more or less) different phenomena, which however (with a higher or lower degree of frequency) communicate with each other.18
List of key publications
BERMAN, HAROLD J. 1983. Law and Revolution. The Formation of the Western Legal Tradition. Cambridge, MA: Harvard University Press.
CALABRESI, GUIDO, JULES COLEMAN, RONALD DWORKIN, DUNCAN KENNEDY, FRANK MICHELMAN and RICHARD POSNER. 1980. Symposium –Efficiency as a Legal Concern. Hofstra Law Review 8(3): 485-770.
COTTERRELL ROGER. 2003. The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. 2nd ed. London: lexisnexis Butterworths.
DUXBURY, NEIL. 1993. The Theory and History of American Law and Politics. Oxford Journal of Legal Studies 13: 249-270.
HABERMAS, JÜRGEN. 1998. Between Facts And Norms. Contributions to a Discourse Theory of Law and Democracy. Cambridge, MA: The MIT Press.
HART, HERBERT L. A. 1994. The Concept Of Law. 2nd ed. Ed. P. A. Bulloch and J. Raz, 238-276. Oxford: Clarendon Press.
KELSEN, HANS. Science and Politics. In H. Kelsen, What is Justice? Justice, Law, and Politics in the Mirror of Science. 350-375. Berkeley: University of California Press.
KRAMER, MATTHEW. 2000. How Moral Principles Can Enter Into The Law. Legal Theory 6(1): 83-108.
LLEWELLYN, KARL N. 1931. Some Realism about Realism. Harvard Law Review 44: 1222-1264.
RAZ, JOSEPH. 1994. Authority, Law and Morality. In J. Raz, Ethics in The Public Domain. Essays in the Morality of Law and Politics, 194-221. Oxford: Clarendon Press.
ROSS, ALF. 1958. On Law and Justice. London: Stevens & Sons.
SUMMERS, ROBERT S. 2000. Law as a Type of “Machine” Technology. In R. Summers, Essays in Legal Theory 43-54. London: Kluwer Academic Publishers.
1 See Neil Duxbury, Theory and History of American Law and Politics, 13 OXFORD JOURNAL OF LEGAL STUDIES 270 1993); and JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS. CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 152 (Cambridge, MA: The MIT Press, 1998).
2 See ROGER COTTERRELL, LAW’S COMMUNITY. LEGAL THEORY IN SOCIOLOGICAL PERSPECTIVE 165-166, 277-278 (Oxford: Clarendon Press, 1995). As to the definition of politics, see, e.g., David Kairys, Introduction, in THE POLITICS OF LAW. A PROGRESSIVE CRITIQUE 5, 14-15 (New York: Basic Books, D. Kairys ed., 3rd ed., 1998); or Joseph Raz, Rights and Individual Well-Being, in J. RAZ, ETHICS IN THE PUBLIC DOMAIN. ESSAYS IN THE MORALITY OF LAW AND POLITICS 37-40 (Oxford: Clarendon Press, 1994).
3 See, e.g., Wilfrid J. Waluchow, Authority and the Practical Difference Thesis: A Defense of Inclusive Legal Positivism, 6 LEGAL THEORY 80-81 (2000); and Raz, Authority, Law and Morality, in RAZ, ETHICS IN THE PUBLIC DOMAIN, supra at 210-219.
4 See, e.g., HERBERT L. A. HART, THE CONCEPT OF LAW 86-88, 181-182 (Oxford: Clarendon Press, 1961); and Hans Kelsen, Science and Politics, in H. KELSEN, WHAT IS JUSTICE? WHAT IS JUSTICE? JUSTICE, LAW, AND POLITICS IN THE MIRROR OF SCIENCE 372 (Berkeley, CA: University of California Press, 1957).
5 Raz, The Problem about the Nature of Law, in RAZ, ETHICS IN THE PUBLIC DOMAIN, supra at 192 [italics added].
6 See, e.g., Neil MacCormick, Institutional Normative Order: A Conception of Law, 82 CORNELL LAW REVIEW 1062 (1997).
7 See HART, THE CONCEPT OF LAW, supra at 55, 189-195. See also Hart, Postscript, in H. L. A. HART, THE CONCEPT OF LAW 240, 255 (Oxford: Clarendon Press, P. A. Bulloch and J. Raz eds., 2nd ed., 1994).
8 See, e.g., JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 148-149, 154-197, 276 (Oxford: Clarendon Press, 1980); LAWRENCE M. FRIEDMAN, THE LIMITS OF LAW: A CRITIQUE AND A PROPOSAL 8, 13 (Siegen: Center for Studies on Changing Norms and Mobility, 1986); and DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 1-11, 55-62 (Chicago: The University of Chicago Press, 1999).
9 Richard Posner, The Law and Economics Movement, 77 THE AMERICAN ECONOMIC REVIEW 2 (1987).
10 Posner, The Economic Approach to Law, 53 TEXAS LAW REVIEW 764 (1975).
11 See, e.g., Louis Kaplow & Steven Shavell, Why the Legal system is less efficient than the income tax in redistributing income, XXII JOURNAL OF LEGAL STUDIES 667-669 (1994).
12 See, e.g., KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 189 (Boston: Little, Brown & Company, 1960); and Alf Ross, Tû-tû, 70 HARVARD LAW REVIEW 818-822 (1957).
13 See Llewellyn, Some Realism about Realism, 44 HARVARD LAW REVIEW 1237, points 5 and 6 (1931); and ROSS, ON LAW AND JUSTICE 18, 34-38, 55 (London: Stevens & Sons, 1958).14 See, e.g., ROSS, TOWARDS A REALISTIC JURISPRUDENCE: A CRITICISM OF THE DUALISM IN LAW 49 (Copenhagen: Ejnar Munksgaard,.1946).
15 See Felix Cohen, The Ethical Basis of Legal Criticism, 41 YALE LAW JOURNAL 204 (1931).
16 See, e.g., Llewellyn, On Reading and Using the Newer Jurisprudence, 40 COLUMBIA LAW REVIEW 593-594 (1940).
17 See Gunther Teubner, The Transformation of Law in the Welfare State, in DILEMMAS OF LAW IN THE WELFARE STATE 6-7 (Berlin: Walter de Gruyter, G. Teubner ed., 1986); and Robert Summers, Law as a Type of “Machine” Technology, in R. SUMMERS, ESSAYS IN LEGAL THEORY 49 (London: Kluwer Academic Publishers, 2000).
18 See COTTERRELL, LAW’S COMMUNITY, supra at 317-320.