Thoughts largely inspired by work I did on law and political form in Carl Schmitt and Friedrich Hayek a while back and I was going over today. There are other points of reference (Foucault, Derrida, Nietzsche, etc.) but I won’t deal with all that today, I’ll sketch out a position.
The issue is that politics operates within law, or at least that is what is understood by political philosophy. Some political philosophy refers to some condition beyond existing legality, but in a distinctly vague manner, which takes its point of departure from existing and past forms of legality. There is a form of political theory tied up with law, broadly speaking, contract theory in which the central issue is justification of the state, in terms which refer to the reasons for law, and respect for law, though maybe embedded in broader considerations of rationality and ethics. The other forms of political theory still bring law into a basic place, often with reference to ‘natural law’, that is law as known to human reason independently of state law.
This is all inevitable, no one denies the necessity for law (with the possible exception of some purist utopian moments), even anarchists are arguing that law does not require the state. The point is the tendency to see political judgement as something that can be fixed by law, or should at least always refer to law. There is some good reason for this, it would not be a good idea to demand politics without legal restraints. However, politics cannot be the same as determining legality. No one is going to deny that politicians are doing something different from judges and juries, but there is an enormous pull towards seeing political action as ideally a form of legal judgement. We can see this in political theory; and we can see it in the role that constitutionalism, demands for judicial review and quasi-judicial public committees play in more everyday aspects of politics.
However, consideration of the role of law tends to lead into a desire for something more than the aggregate of laws currently on the statute books. We can see this in the theoretical interest in the super law of the contract, natural law, or some other even more sparse basic principle of judgement. Returning to the starting point of this post, both Hayek and Schmitt were concerned with a distinction between: law which arises in a relatively spontaneous way from the undesigned orders of society; legislation which is the changeable product of political sovereignty and is formed by a political will. More everyday forms of this search for super law include political interests in a return to an old constitution, the creation of a new constitution, the implementation of God’s law, subjection of the state to judicial authority etc.
The trouble with all these enthusiasms for the role of (super-)law is that political sovereignty is always a matter of power, power exercised by a particular will to serve particular interests. If law could provide the answer to everything that government deals with then evidently there would be no need for politics. Is there some ideal moment in politics in which government would act like a judge, group of judges or judges plus jury? No, because there is no legal answer to all the sources of politics. The sources include conflicts over economic resources, political power, and conflicts of interest which are restrained by law, not finally resolved.
There has never been some perfect state of law, to which politics could add nothing. There have been many ways of trying to present law in this way, to present law as the immaculate product of a great political leader, a religious prophet or the sacred venerable traditions of a community. The difference between that idealisation of law and the reality of struggle over the creation, validity and meaning of laws in all their forms, often disguised in sacralised forms, is where politics has its place. The ideal law is abstracted from historical processes; the narrow self-interested struggle is itself below the political threshold of action that affects a whole community, and claims to act on behalf of that community. Both aspects of legality are present in political action, but neither can be separated out from each other, or from political action. In some ways politics encompasses it all, but it is an unavoidable necessity that politics cannot be defined or understood as either. The attempt at a paradoxical union might get us some of the way to politics, but not the whole way.
In the end, we know politics is different from law, because in the end law can only be enforced because of political will, and that effective political will can and will suspend some if not all aspects of law, in times of war and other forms of crisis. Those who follow the ideal of politics as based on super-law tend to find this shocking, but that has never stopped politics from working like that, even a little like that in the most stable states in the most peaceful conditions. Or are we supposed to believe that political arguments and political forces have no effect on judicial institutions? Some people do try very hard to believe this, but they are mistaking an ideal for a concrete possibility. Of course no one doubts that there is a distinction, some people are evidently still pulling very hard in that direction. People who also expect political and legal institutions to suit their own interests, and their own point of view about what is good.