Bringing Politics into Hayek and Schmitt’s Sublime Conception of Law

The last post finished with some sketches of positions in legal theory. The Hayek-Schmitt position in which Law is above Legislation (Laws emerging from social consensus about basic rules of justice is above the changeable often administrative concerns of a sovereign political body in its legislative acts) seems closest to a traditionalist natural law theory, usually traced back to Thomas Aquinas, and most associated amongst current writers on law with John Finnis. Hayek himself notes that his view of law might be taken for natural law theory, but complains that tradition is too rigid. There are two notable things about Hayek’s comments: 1. he does not completely distinguish himself from natural law tradition; 2. he emphasises the need for openness in legal institutions. So perhaps Hayek’s position is one of natural law modified to tae account of the evolution and Law, and by evolution of generally accepted principles of justice.

This can sound like Ronald Dworkin or even Jürgen Habermas. Dworkin (who died very recently) was a left liberal committed to centrally designed schemes of income redistribution, in the context of a large public sector and a highly regulated economy, so not in line with Hayek’s thinking. Habermas might seem even worse from a Hayekian point of view since he emerged from the Marxist Frankfurt School, but in reality his thought fits more with an egalitarian liberal way of thinking than with Marxism of any kind, except for ‘revisionist’ forms which in effect turn Marxist gaols into ideals pursued through political liberalism rather than class struggle, and which are general ethical goals rather than concrete proposals for social reinvention. Both Dworkin and Habermas think of law as formulated, revised and interpreted through an evolving political consensus, which they expect to have an increasingly egalitarian impetus.

The consensual-rationalist way this is framed leaves their theories ill equipped, or so I contend, to deal with individual and social action which does not fit in with their hopes for an egalitarian society based on rational reflection about how to increase individual autonomy through increasing equality. What they have  difficulty in dealing with individualistic action and resistance to state promotion of equality in a society integrated under state guidance. Anti-tax, deregulatory, state shrinking movements look like irrational populism to those of a Dworkin-Habermas frame of mind. The wish to preserve one’s property from increasing state demands to treat private  property as a bit of a public sum of welfare, which the state can dispose of if it so wishes, seems irrationally selfish within that framework, as does the wish of business to reduce regulatory burdens, or  any individual inclination to resist state led attempts to mould individual choices.

The Hayekian approach to social knowledge, on the model of economic action, as dispersed between all actors  and as something that never be aggregated as a guide to state action, does far better as a way of thinking about the ways that political attitudes may emerge from the constant reinvention of the economy and society. It suggests that irrationality comes more from state attempts to define maximum welfare for everyone than from individual resistance to such state activity. It is not that Habermas, Dworkin and the like are completely unaware of such issues, or the need to accommodate them, but that their way of thinking just does not allow for much weight for such considerations, which are always likely to be regard as secondary phenomena.

I outlined major legal theories in the last post. Though I mentioned Critical Legal Studies as the most left leaning stream, and as even disdained by those of other political leaning, at its best and least politically gestural, CLS provides a better fit for Hayek’s understanding of markets as decentralised, self-innovating and challenging to all attempts at top down control. It provides a better fit than Hayek’s own inclination to Law as an institution looming over the economy as the highest representative of mores and shared principles of justice. This elevation of Law to sublime and monumental status can be too easily taken up in the Carl Schmitt tendency to ultra-conservative sacramentalisation of the Order of orders in society, embedded in nationalist and traditional religious ways of thinking.

The CLS approach, like connected work in political and social theory, does draw on thinkers like Max Weber and Hannah Arendt who certainly do not belong on the Marxist or post-Marxist left. Michel Foucault is a frequent reference. I’ve discussed Foucault’s thought, including its political implications, in a large number of previous posts, so I will not go over that again. I will just note that Foucault is often brought together with Weber and Arendt as a theorist of political and social community in the modern world. Framing those three with regard to Hayek and market liberal thought could bring considerable benefits, and would frequently just very obviously be closer to their world view.

As far as CLS takes a position on the standard distinctions in legal theory it leans towards positivism-realism rather than natural law in its more evolutionary or more conservative forms. CLS does this because concern with politics leads it to consider law as expression of power. At its best CLS brings an appreciation of political conflict to positivism-realism correcting a tendency to a reductive view of the role of political power. From this point of view, CLS may bridge the gap between positivism-realism and the more evolutionary forms of natural law, with regard to a concrete detailed investigation of politics, and of political conflict.

Political Foundations of Law: Hayek, Schmitt and Law above Politics

A number of recent posts have considered the claim in both Carl Schmitt and Friedrich Hayek that Law properly speaking is something distinct from, and above Legislation. That is law emerges from consensual rules of justice in a community while legislation is created and imposed by the political sovereign. The modern elected assembly, at the heart of liberal democracy, may rest on votes cast by citizens, but is involved in an increasing proliferation of Legislation which is not required by Law, and may even undermine it. In some respects there is a wish to replace he political process with the juridical process of interpreting and apply Law. That is far from the complete story of the thought of Hayek and Schmitt,but there is a pull in that direction which may come into conflict with some of their ways of thinking about politics, and any attempt at a well grounded political theory.

That leaves the questions of what Law is in relation to politics and what Legislation is in relation to politics, as well as how far we should maintain the Law- Legislation distinction. The idea of a pre-political consensus about property rights, which is at the heart of their legal thought, is highly questionable. The existence of conflict between groups supporting different constitutions with different ideas about property rights is evident in Plato and Aristotle. Particularly for Aristotle, who does not consider anything like the ideal state of Plato run by propertyless philosopher guardians, the political form of the constitution is linked with property distribution, with a preference towards an aristocracy which is separated from the mass of the poor people of a state, but does not value money itself and does not have large differences in property ownership within itself. If property ownership, and separation between the discrete property of individuals, is at the basis of law, it is also at the basis of politics, which is always there. Rather awkwardly for the Hayek and Schmitt emphasis on individualised private property, early human history includes communal property which comes into conflict with individualised property rights regimes in later human societies.

We cannot have  any kind of political system without judicial institutions and considerations of how far popular will, can and  and should, influence  the laws of that community. Reasoning about the basic political principles of a community tends to be intertwined with questions of law. That can be seen very clearly in early modern contractual thought from Grotius to Rousseau, where the questions of what laws should exist are questions, of political rules and rules of property rights. We cannot have Law without assumptions about property rights and distribution which are matters of political contestation. We might hope that the existence of property rights is a matter of very broad political consensus, but we cannot hope to take the whole issue out of the sphere of politics, which is what Hayek and Schmitt sometimes try to do. In Schmitt there is a wish for a pre-political order of social orders, implying a society which is very communitarian as a whole and in sub-communities, where the boundaries between communities are fixed and exist in a hierarchy. This is well known in German ultra-conservative thought as the state of estates. Hayek certainly does not advocate such an ordered community of communities, but he does have a preference for gradual evolution in which there is little challenged to existing institutions and orders, and in which legal institutions are a core of a persistent ordering.

There are ways of understanding law (or Law) as political in some aspect. Positivism is one way since it begins with the understanding that law is the command of the sovereign. The later evolution of Positivism, including the appearance of Realism, suggest that we look at law with regard to the community understanding of how it should be interpreted and applied. The most obvious alternative to this is the Ronald Dworkin style of evolving interpretation of laws, which he explains in a literary critical way. This is more focused on ideal than the Positivist-Realist current which is concerned with how law is interpreted in practice, not what the best possible way of interpreting law is. The Positivist-Realist current starts in a  more political way than the Ideal Justice stream, which might be understood as a form of natural law tradition, but the Ideal Justice stream leads us into more political questions of what  values guide understanding and application of law. The Ideal Justice stream might have roots in Natural Law theory, but Natural Law continues to exist as a  conservative way of understanding law as based on unchanging basic Law. There is also the Critical Legal Studies approach which has influence, but is disdained by most followers of the other legal schools, as being too crudely political. CLS itself covers a wide range of approaches though, including work which is just as much concerned with the internal coherence problem of law, or the general cultural context of law, as with political denunciation. Further consideration of these issues ail have to continue in a future post.

Antigone: Sacrifice and Justice

The last of Sophocles’ Theban Plays  is Antigone, which was not written as part of the same set as Oedipus the King or Oedipus at Colonus, but is a good fit. Antigone is one of two daughters of Oedipus who comes into conflict with Creon, the brother of Oedipus’ wife (and mother) Jocasta. Her two brothers Polyneices and Eteocles have fought over the rule of Thebes, which led Polyneices to besiege the city to take it from Eteocles. Both die in the battle, but Creon who now takes power, has very different ideas about what it to be done wit the corpses of the two brothers. Eteocles was ruling the city, was therefore guarding it against Polyneices, and Eteocles orders an honourable funeral for him. Since Polyneices was the invader of the city, he is counted as an enemy by Creon, who commands that the body of Polyneices should be left on the battlefield, unburied and unmourned. The idea produces complete horror for Antigone,whose sister Ismeme is also horrified but less willing to take action though in the end wishing to share Antigone’s sacrifice.

Antigone takes the decision to resist Creon, and insists on burying Polyneices. The act is something that brings her into a sharp conflict between familial duty based  on divine law, and the commands of the sovereign. Leaving Polyneices unburied means that he becomes part of nature, as vultures and wild dogs will feed on him. There is an exclusion from human community and for Antigone a horror at the thought of her brother’s body decaying in the wild. Antigone is not yet married, and is clearly not at all experienced in intimate relations, as would have been expected of a woman of her standing. She is the daughter of incest, and there is a hint of improper desire in her attitude to her brother’s body.

Her repeated disobedience to Creon leads to entombment while still live, so that she becomes someone on the border of life and death. Oedipus crossed boundaries, killing  a man at the crossroads in the woods outside Thebes, the challenged and defeated the Sphinx, he became king in a city where he had no hereditary right, he found he had confused mother and wife, lost his sight, and went into the wilderness . Antigone challenged Creon, twice tried to bring her dead brother from the desecrating wilderness to ceremonial burial, and was placed between life and death. Antigone’s punishment leads to her suicide by angling in the tomb, paralleling the death of her mother after finding she has married her son. The death of Antigone leads to two further deaths, as her fiancé Haemon commits suicide after finding Antigone’s dead body in the tomb. Haemon is the son of Creon, and his death leads to the suicide of his mother Euydice.

Creon’s command to leave the body of Polyneices unmourned, and his determination to enforce this command on his niece, leads to the death of his niece, his son and his wife. The death of his son follows Creon’s retreat from his wishes to enforce his commands absolutely. Like Oedipus, he comes in conflict with the prophet Tiresias. Tireseas exposes Creon’s claim to just kingship when he provokes anger. This follows, as with Oedipus’ earlier anger against Creon, Creon’s anger and conflict in relation to Antigone, Ismeme (the other daughter of Oedipus) and Haemon. Unlike Oedipus though, Creon does give way to the advice of Tiresias, who predicts disaster for the city otherwise. He gives way to that advice and voice of the chorus, standing for the people of Thebes. His initial stance is to claim to listen to the people, but to insist on the absolute authority of his own commands.

In the play he progresses to a more real willingness to listen to other voices, and does not arrive at anything like the total downfall of Oedipus. However, that evolution of his understanding that his power is best used when not exercised t the most extreme limit follows three deaths which leave him isolated as king in that his closest family members have gone, because of his tendencies to autocracy. An autocratic tendency focused on his attempt to deny the most basic relation of the community to death, and of family members to keep dead members within the community after death, through the proper ceremonies. A way of regulating the relation between life and death that is about the relation with the gods, which is a way of summing up the community’s relations with death, nature, its outside in various forms, internal divisions, and its enduring nature despite death and change. Antigone is named after the central female character for good reasons, but it is the story of how a male ruler who learns to understand that power is better exercised within limits, through a most devastating series of personal losses and challenges to his authority.

The play Antigone has two points of concentration: the sacrificial death of Antigone; the melancholic survival of Creon. Sacrificial death of a woman who might challenge male power is inevitable in Greek tragedy, its values are those of a very patriarchal society. The plays expose a deep ambiguity in which it is recognised that women can be agents of justice and possessed of the capacity to criticise power gone beyond measure. Creon can only be a good ruler after learning from Antigone, becoming her in some way. He placed her alive in a tomb, which might serve as a metaphor for her relation to his kingship.

Hayek and Schmitt on Law and Politics

The law over legislation claim that I’ve been discussing in some recent posts refer to attitudes to politic. Very briefly recapitulating, Friedrich Hayek and Carl Schmitt both argued that legislation passed by representative assemblies largely and increasingly has the real nature of an edict, as opposed to law which may be turned into statute form by a representative assembly but refers back to consensual communal standards of justice and essentially follows from them, rather than innovating. This has an anti-political dimension, though it cannot be said that Schmitt and Hayek are always anti-political. Schmitt in particular is fascinated by politics as existential struggle in one of his most famous texts, The Concept of the Political, though that does leave open the question of which aspects of Schmitt’s thought should be given priority, since he often leans towards a more pre-political world of orders within society that have their own principles of organisation.

There is no equivalent in Hayek of the existential account in Schmitt of politics as a struggle between friend and enemy, but much of what he says can be seen as guided by the wish to reassert the primacy of political institutions over the activities and interests of the state administrative apparatus. Hayek sometimes lied to describe himself as a Whig, or Old Whig, a reference to the group in 17th,18th and early 19th century British politics most inclined to Parliamentary rule, commercial society, limits on the power of the monarchy and the state church, and a general belief that political institutions rest on a contract with the people rather than a duty of the obedience of the people to established institutions. Hayek never really gets into explicit definitions and discussions of Whiggism, but the last sentence summarises those aspects of Whiggism closest to Hayek’s own way of thinking.

Schmitt also shows some respect for liberal parliamentary bourgeois politics, particularly with regard to the separation mid 19th century liberalism made between the state and the economy. However, Schmitt is always suspicious of representative institutions as places of endless dialogue and debate, which can never be decisive, and which cannot be fully democratic in their basis. With regard to the last point, Schmitt argues that parliamentary debates never correspond closely to public opinion, and that elected assemblies lack the kind of direct identity with the people as a whole that more presidential, monarchical, dictatorial or plebiscatory forms of government. Schmitt’s assumptions that a Caesarist or Fascist leader could have more ‘democratic’ legitimacy than an elected assembly is at odds with the progress of representative democracy  since the end of World War Two, and even more since the 1989 collapse of communist states, but should not simply be ignored. To some degree, Max Weber showed how to take up those points in Schmitt within a liberal democratic framework, in his long 1919 essay on ‘The Profession and Vocation of Politics’, and that was before most of Schmitt’s own work.

Again the less liberal aspect of Schmitt’s thought, in this case, democratic identity, formation of a popular will through identification with an autocrat, is constrained by a concern with Law, and with the orders of social existence which are closely intertwined with the existence of Law, and which Schmitt thinks of itself as emerging with notions of property and division of property. This is sometimes expressed in a form of international relations realism which regards international law as the instrument of real state power, and the power relations between different states. This changes with changes of power and might seem difficult to reconcile with his notion of Law. There can be reconciliation around the historical changes in social order, and the orders of society, which Schmitt thinks Law encodes.

Hayek’s thought is much less tied to notions of power, and with regard to Law the focus is on Law as something free from the taint of power interests, or particularistic interests of any kind. As I’ve tried to suggest in some of these posts, there may be a problem for Hayek, or the interpretation of Hayek, with regard to whether the evolution of Law is largely at the national state level, or whether it is essentially dispersed between localised forms of Law. Hayek seems to lean towards the first, but seems open to being taken up by those who wish for a polyarchy of legal regimes. There is also ambiguity in deciding how to interpret Hayek between: Law as very self contained  principles of  justice; and Law as something that evolves in relation to economic and social change, finding the best way of structuring social relations according the generally held principles of justice at that moment.

In both Hayek and Sschmitt there is a lot of discussion of politics, but a great tension between: an apolitical view of a self-ordering society expressed in Law, and a more contingent view of Law as something that emerges from social processes including those of the political sphere. A post coming soon will reflect further on how we might get to a proper account of the place of political forms from discussion of Law, legislation and politics in Hayek.

Oedipus at Colonus: Outcast and Prophet

Oedipus at Colonus is the second of Sophocles’ Theban plays, though it was not written as the sequel to Oedipus the King/Tyrant which is the first Theban play. The three ‘Theban Plays’ (the third of which is Antigone) were written for separate groupings of plays, and the other plays in the groupings have been lost. Oedipus at Colonus was performed before Oedipus the King/Tyrant. It is not surprising that the Theban Plays are often taken as a trilogy, since they do fit together fairly neatly and Sophocles must have been kept to a very consistent version of the stories of Thebes under Laius, Oedipus and Creon across various writings and performances. There are a great many other version of these stores in myth and in drama, which we will not go into, bıt the reader of Greek tragedies should be aware of the flexibility of Greek myths and the many different versions.

Oedipus at Colonus is the Athenian play in the Theban Plays, since Colonus itself was part of Athens, and is still a recognised district of the city. In Ancient time it was outside the walls but not very far. The play gives the impression of being a bit further away than in Sophocles’s own time. A recognition possibly that Athens was smaller in the deep past, since these plays along with Homer refer to the Mycenaean Greek world 800 years before Golden Age Athens. The play reinforces the sacredness of Athens by making Colonus a sacred place, suitable for the death of Oedipus who has become sacral rather than polluted in this play. The play has a big streak of Athenian propaganda running through, just as Shakespeare’s plays were conditioned by Tudor and Jacobean state propaganda. Oedipus, the fallen King of Thebes, turned prophetic figure and innocent victim finds justice and protection in Athens, where Thebans still try to reach him and persecute him. First Creon appears using force against Oedipus’ daughters Ismeme and Antigone in an an attempt to induce Oedipus to return to Thebes. Oedipus recognises immediately that Creon only wants him to go back to Thebes for his own reasons of the strategies of power. King Theseus of Athens, who appeared earlier offering protection to Oedipus, returns just in time from worshipping Poseidon to rescue Oedipus. A stranger arrives a bit later, who turns out to be Oedipus’ son Eteocoles, seeking help in his struggle with his brother Polyneices and with Creon. It is Theseus who persuades Oedipus to talk to Eteocles, emphasising the role of the Athenian ruler as a judge and wise guide to all the Greeks. Oedipus refuses to assist Eteocles and curses the city. This is part of a complete abandonment of Thebes and a acceptance of Athens as his real homeland. However, his daughters are prepared to return to Thebes after the ‘death’ of Oedipus, so returning to the curse made by their father.

Oedipus’ death at the end of the play is not a cşear case of death, as no one sees him die and his body disappears. One suggested possibility is that he has been allowed to pass to the world of the death without pain, a rather modest favour from the gods, since the world of the dead is itself a very gloomy place of ghostly semi-conscious existence. There is some play with the possibility that  Oedipus has been taken by the gods to their own world, which can happen in Greek mythology. There is no direct suggestion that this happened, but it’s possibility is allowed. In any case, Oedipus has moved from King-Tyrant to something more like Tiresias, the blind prophet persecuted by Oedipus in Oedipus Tyrannus when he claims that Oedipus has murdered his father and married his mother. Oedipus blinded himself at the end of Oedipus Tyrannus, linking him with Tiresias. As with Tireseas there is some play with the other forms of perception he has, though less with prophetic qualities. We learn that Oedipus sees with his ears, so that the use of language is emphasised over vision. A way of thinking which has an interesting relation with drama as a form.

Oedipus in some way passes on the sacral power of the Theban monarchy by telling Theseus a secret before his death, or disappearance. The content of the secret is not revealed to the audience, but we do learn that the secret protects Athens from future Theban kings. The protection of Oedipus by Theseus is very surprising for Creon, who states that Oedipus is polluted and therefore unworthy of sacred places in Athens. Theseus shows himself to be a better provider of hospitality than Creon, so reinforcing the idea of Athens as the moral leader and therefore the judge of Greece. Oedipus himself argues that he is the innocent victim of fate and a curse on the house of the Kings of Thebes.He regards all his polluting acts as accidents with no blame for himself. This is open to question, his murder of Laius is surely motivated  by his excessive anger at being challenged at the crossroads outside Thebes. Athens enables him to move from polluted refugee to wise man close to the gods.

Oedipus Tyrannus: Political and Individual Disintegration

The transliterated Greek title of Sophocles famous play is given, because it is important to be aware that the meaning of kingship is at stake, and that Oedipus is defined as the less legitimate kind of king, tyrannus rather than basilieus. The very negative meaning tyrant has now was not so clear for the Ancient Greeks, though the word was certainly used in a negative way. Plato and Aristotle certainly gave a negative meaning to tyrant as opposed to the king who rules through moderation and justice. However, Plato tried to educate the tyrant of Syracuse Dionysius II, in becoming a proper philosopher-king, and other tyrants attended Plato’s school the academy. Of course, Plato’s intentions in contacts with such people was to persuade them to abandon tyrannical behaviour, I can’t see any reason to think that Plato wanted them to give up the power they had.

Going back to 6th century Athens, the tyrant Peisistratos seized power, using it against the aristocracy. He appears to have had the ability tı converse with the lower class Athenians and is treated with some respect by ancient writers, who usually leaned towards the aristocratic in politics. There is a case for saying that he forced through political and social changes which allowed the flourishing of democracy and individual liberty in 5th century Athens. Peisistratus is perhaps relevant to Sophocles’s play, it is at least worth thinking about how that might work.  The dominating figure of 5th century Athenian democracy, Pericles is also worth thinking about here, and scholars have done so. Pericles died in a plague in the city of Athens during the Peloponnesian War with Sparta, which does suggest a possible parallel with Oedipus who experiences plague in Thebes. He does not die of the plague, but his attempt to end it, by looking for the murderer of King Laius ends in self-blinding and exile, when he realises that he murdered Laius, that Laius was his father, and that he has married his own mother. None of these horrors apply to Pericles, but he was a kind of elected king.

Unlike the more traditional form of elected king who was appointed for life, Pericles had to stand for his office (of military commander in theory, political leader in practice) every year. Nevertheless he could be taken as a king-tyrant like figure in his power. That his power rested on his personal abilities and public charisma makes him like the tyrant in the meaning of the man who seizes power, the term is also applied to the descendants of such a person who hold power after him, or more traditionally established kings who behave badly. Pericles was in some ways like Oedipus, as the seeker of knowledge. He had a very educated (and aristocratic) background, his friends included the philosopher Anaxagoras, and his power rested on his intelligence, as part of his general force of personality. Oedipus came to power in Thebes, as an apparent foreigner, because he overcame the riddling sphinx, and is then destroyed by the search for knowledge of who killed Laius.

After a rather long detour through possible personal and political references in Oedipus Tyrannus, we should consider the play, which amongst other things is concerned with what kind of ruler Oedipus was. The presentation switched between the leader who listens to the people and is their representative in the opening of the play to the paranoiac tyrant who thinks the Prophet Tiresias is conspiring with Oedipus’ brother in law Creon to overthrow him. Oedipus is even identified as a tyrant by the chorus during these conflicts. He threatens torture and cannot listen to inconvenient opinions without accusations of sedition. When he does fall Creon does become king, and himself seems a bit of a tyrant, ordering Oedipus to hurry up towards his exile and ordering him to leave his children behind. Oedipus has become revealed as something monstrous, an anti-human who cannot live in the city. That status comes from being the exile who was offered a throne he did not inherit, and who found himself to be a native who had the right of inheritance to the throne. That discovery can only come with the knowledge that condemns him to be an outcast monster. In the opening scene, the Thebans are identified by Oedipus as descendants of Cadmus, not knowing that he is one of them. That already introduces the theme of incest, it is the city where every generation has intermarried, reflecting the general greek unwillingness to accept foreigners as citizens, or even the children of marriage between a foreigner and a citizen. The right of inheritance self-destructs in the play, through the outsider discovering he is legitimate heir, which brings the whole idea of kingship into question. All notions of political authority and citizenship disintegrate, more so than the ending in which power has passed smoothly to Creon suggests.

Law over Legislation: The Ambiguities of Law

This is the the 4th in a series of post on the law over legislation claim, defined in the first post. The law over legislation claim appears in very political contexts, but is the expression of an anti-political perspective. Perhaps it could be said the law over legislation claim expresses the wish to find some non-political framing for politics, or some non political centre. Some way in which politics is grounded in the non-political. There are some laudable impulses behind this. There must be some limits to politics, in the senses both that there must be some limits to the powers of the political sovereign and some limits to seeing politics in every action and every choice. In particular, law provides some way in which actions of the political sovereign are checked and supervised, and some public criteria are  established for assessing political actions. There cannot be any absolute framing or distancing of politics though. Law can only be relatively distinct, and must contain some legislative element. Law is only fully recognisable and applicable there there is legislation stemming from political institutions. Community standards of justice are too vague to be the basis of well defined law. There are forms of community justice standards which might be clear, but customary law is itself the product of politics and subject to political condition. It does not exist in complete isolation from the political world. Once law is defined and interpreted by judges it has definitely reached the thresh hold of political consciousness and becomes  a matter of political debate which leads to legislation. The more law is institutionalised the more likely it is that it will become subject to legislation, and the more likely it is that legislation had a role in the development of that law. Medieval law becomes entrenched through what Foucault calls ‘juridification’, that is the spread of Roman or Civil law and juristic discussion of laws.

Though the idea of Law as opposed to Legislation is presented ad descriptive and historical, it is really hard to understand it in those terms. It really exist as something like a heuristic device, or what Max Weber called an ideal type, that is an ideal state of affairs which cannot be found in reality but may guide analysis or actions. ‘Ideal’ has two senses which are relevant here. Ideal as in an ideal goal of action, a moral or political goal; ideal as in a pure concept. It is not possible to view Law as just a value free ideal concept of analysis, particularly as the use of Law in this opposed to, and above, Legislation, particularly as those relying on the distinction are advocates of law. It is both action orienting ideal and object of nostalgia, the only paradise for the sane, the lost paradise (Samuel Beckett says something like this in his short book on Proust). That is rather one sided, the other more stimulating side is that Law serves a as means of critique of Legislation which does not match basic standards of justice, including cases in which extends the size of the state, and the scope of its activity, without genuine benefit to the general welfare. Notions of justice and notions of general welfare are not necessarily the same, but presumably everyone wants to try to alit them as far as possible. That critical aspect of Law could be just as well served  by notions of Justice and to some degree the insistence on Law as the goal risks a distraction from the task of discussing justice, and related notions like welfare and liberty.

The idealisation of Law also risks confusing at least two different forms of Law. Law as customary Law, and Law as institutionalised Law according to proper procedures and traditions. These two can come into conflict. The most famous conflicts between customary law and institutionalised law in European history are around the movement from to customary rights of Medieval peasants to collective use of common land and forests for grazing and firewood to the strict application of individual property rights, reserving rights of usage to owners, as part of changes in farming and forestry. The most famous example within that process of late Medieval and Early Modern Europe is the enclosure of land in England, so that it could be used for sheep farming. This could also include removing peasants, their dwellings and entire land usage. Something like this carried on until the 19th century Scottish enclosures. No doubt judges at state law courts were disposed to see the law in the same way as big landowners, but I am not aware of much reason to think judges and juries (which have always given ordinary ‘freemen’, then citizens, a say in English law courts) completely ignored the law as it existed. Courts operating in ways sanctioned over time, with judges following correct procedures, did away with customary law below the horizon of institutional law. Another way of thinking about this is that marriage and divorce were to some degree self-regulating for lower class rural people until 19th century England. This gains famous literary expression in Thomas Hardy’s novel The Mayor of Casterbridge, in which Thomas Henchard sells his wife at the beginning of the novel before becoming mayor. According to  ‘Wife Sales’ by Leeson, Boettke and Lemke this was a recognised procedure for ending a marriage, usually with a lover or admirer of the wife ready to ‘buy’ her, and was considered binding by all involved, though it certainly had no force in statute law, in institutionalised law that is. These are not the kinds of example the advocates of Law over Legislation were interested in, though the paper just cited certainly reflects the influence of Friedrich Hayek, one of the two main advocates of the Law over Legislation claim. There is a tension between Hayek’s celebration of Law which is essentially as a unitary body well above the horizon of perception for the state, and his economic epistemology which refers to the dispersal of value and knowledge between individuals, and which is more suggestive of an informal institutional approach to non-state law.

Law over Legislation: Foucault and Habermas

This post refers back to the last post, and particularly the post before that which is inaugurated this sequence of posts on law over legislation. The last paragraph of that first post refers to Jürgen Habermas and Michel Foucault, referring to the need to detail further what is briefly in that paragraph.

The issue is whether we can talk about law as something distinct from, and superior to, legislation. That idea has precedents in distinctions made between customary law and statute law, or between the recognised laws of a community and the commands of whoever has political power. An awareness of such distinctions, and the deep tension associated with such distinctions, goes back at least to the tragedies of Golden Age Athens. As I am discussing those Attic tragedies in a series of 9 weekly posts, which refer to my teaching, I will not go into that here. I will pick up on Foucault on this point, going back to issues I was posting about quite intensely at some periods last year. Use the search function in this blog to find those posts, I prefer to rely on readers doing that than digging around for large numbers of links to incorporate into my post.

Going back to those posts, but also other thoughts about Foucault, we can see that Foucault has an account, relevant to the law-legislation distinction, of the distinction between something that can be labelled care of the seşf, government of the self, aesthetics of existence, or style of living. This is not a concern with Law, but it does fit with the idea that something precedes statute law with regard to social norms, what we accept as non-institutiıonalised laws of social life, and which tend to be some part of institutions and laws, or at least some part of why we accept them. These accounts of individual conduct fit with an account of free speaking, which itself is understood in relation to equality of the right to address and assembly and equality under law, all seen as parts of democracy. These are all parts of ancient Greek democracy. Since Foucault uses the Greek terms, they should be mentioned here. Free speaking is parrhesia, equality of right to address the assembly is isegoria, quality under law is isonomia. Free speaking is used instead of free speech, because what Foucault refers to is just as much a duty to speak freely in public as a right to free speech. This brief account of Foucault on Athenian democracy brings up an obvious contrast with the law over legislation thesis, that is the value of participation in the political world in which legislation is created.

That last sentence can be qualified though. The two proponents of the law over legislation claim I am considering are Carl Schmitt and Friedrich Hayek. Some of what Schmitt wrote certainly looks like advocacy of existential struggle in the political world as necessary to full human life. The relevant texts here (sticking to the English titles only which do not always correspond exactly to the German titles) include The Concept of the Political, Crisis of Parliamentary Democracy, and Political Romanticism. Some caution is advised in approaching these texts is advised, since they are often emphasised in ways which conceal a concern with law, legislation and constitutions, which can most clearly be found in The Nomos of the Earth, Constitutional Theory, and Legality and Legitimacy.  Both sides need to be taken into account.In Hayek’s case we should note that though there is a pull towards a non-political law, emerging from the processes of legal institutions outside political control, there is also appreciation of Athenian democracy and of modern constitutional democracies, along with a commitment to  finding the best possible rules or a democracy. The Constitution of Liberty and Law, Legislation and Liberty offer ideas of how democracy and political life can be structured in ways that will endure.

For Foucault, the idea of the right to be a citizen and to participate in political life in antiquity, is tied up with the capacity for self-government, for measure and moderation in life, which Foucault discusses as ‘care of the self’, and which he thinks allows for, even demands, capacities for self-creation and variations in that creation. That way of thinking, in which political participation does not come from an abstract right, but from recognisable forms of flourishing of the self is undermined in antiquity. Imperial Rome constrains those aspects of political life in antiquity. The focus turns inward, and that becomes shaped by Christianity which wishes to define and shape and inner self hidden from view in a way that would not have been imagined in earlier antiquity. The practices and institutions which increasing shape conscience in churches and in monasteries acquire a coercive aspect, most dramatically apparent in Crusades and the work of the Inquisition. This kind of dramatic and even cruel power is intertwined with the rise of ‘juridification’. ‘Juridification’ is a term used rather than defined by Foucault, but it can be sen to refer to the Medieval growth of interest in Roman Law as codified by Justinian, itself expressed in the growth of universities which large exist to educate students in şaw and in theology. Roman law influences both canon (church) law and state law, in the work of a growing number of trained jurists. The practices of confession, spiritual discipline and asceticism are also sen by Foucault as part of the path to ‘disciplinarity’ in modern institutions such as the prison, the army, the hospital, the school and so on. That itself feeds into the understanding of law which is not clearly tied up with political sovereignty and the right of the sovereign to exercise power in minute ways throughout society.

In Habermas, the equivalent to the law-legislation distinction can most readily be found in the account of the administration of welfare. Laws which set up public welfare programs and the apparatus to administer them draw on norms, including the norms of equality and rationality. The base norms in Habermas are something like ‘law’ and Habermas is insistent on their transcendental status, that is they are not the product of individual will and cannot be subordinated to the wishes of any individual will. For Habermas, the original political and legal sin is to creates legislation  which does not have universality transmitted from norms, and in its own structure. The consequence of applying norms of equality, in a struggle with the distorting force of differences in economic power is to create a growing state. The right place to debate the laws which constrain the state, and supervise the work of its administrative powers is the elected assembly. However, growth in state activity must lead to an amount of activity which cannot be supervised or constrained by state power. The rules and decisions of the bureaucracy become independent of the democratic process and become arbitrary in their workings, so that we end up with edicts issued by the state in the ways that officials interpret and apply those laws and rules. This is part of a broad tension in Habermas between the legitimacy of the state in its appeal to reason, reason which can be shared  by all, on one side; and the ‘steering’, that is coercive aspects of the the state on the other side.

So a full discussion of law and legislation  might be a full discussion of Hayek and Foucault, Schmitt and Habermas.

Law over Legislation and Political Form: What is Law?

This carries on from the last post.

The law over legislation claim has an anti-political impulse within it, which is that law is above politics. Legislation is held to be illegitimate, so that the law making function of any legislative assembly is restricted to law, which is apparently already in existence as what is accepted in common custom. There is not much on this account for assemblies to do, except perhaps concern themselves with refining existing law. Even that function is maybe understood as exercised  by judges who ‘discover’ law when they work out the best way to apply existing principles to new cases. This kind of account is based on a very ideal picture of law before the legislating impulse took hold in the late nineteenth century as the role of elected assemblies in deciding on laws, as well as holding government to account. Even on this ideal account, governmental bodies have always had a tendency to issue decrees, commands, which are based on the will of the political sovereign, rather than considerations of what law is and how it evolves in relation to cases.

Sovereigns may have been wary of identifying edicts with laws properly speaking in the past, recognising that pure edicts might not be very enforceable, but in practice those under their governmental authority had to regard edicts as like laws. Laws have to be ordered, systematise and harmonised and this is work done by sovereign bodies, therefore on the basis of political will. Figures like Justinian and Kanun (man of law) Suleiman (also known as Suleiman the Magnificent) in Constantinople-Istanbul, or  advisers acting in their name, have considerable discretion with regard to what law is. We can see historically that law may change dramatically as a result of invasion and forcible changes in the identity of the sovereign. The Norman Conquest of Anglo-Saxon England certainly introduced major changes into the relations between king and major land owners, the nature of criminal, and distinguished the legal position of Saxons from that of the Norman French. None  of this seems to fit with an idea of Law rather than Legislation in all human communities before the 19th century.

Law in pre-modern times had an aura of divine origins, of cosmic order and beginnings in customs assumed to have existed for time immemorial. However, there are political aspects to this. Godly origins are an ideal way of presenting the monarchy and aristocracy which conceive of themselves as godlike. Back in the 18th century Vico discussed this in the New Science. Fundamental issues of debt and property rights were the source of constant political conflict in the late Roman Republic. This might lead us to question how far we can distinguish the making of statute laws from the exercise of political will. It is a statement of the obvious that law as something that can be enforced by the state, is made by the state and that this is a political process. Since laws constrain the state and often survive changes in the identity of those with power, there is a whole sphere of constitutional law which defines the political system, and at least to some degree law refers to widely held beliefs about what actions are so wrong they should be punished, it is inevitable that law is seen as something distinct from the commands of those in power at any one time. We should not see this as making law distinct from, and outside the political process. It is a constraint on uses of power, but also a product of power.

The advocates of the law over legislation claim do not necessarily oppose any individual suggestion above about the relation of law to politics, but their  approach is to prefer an idealised law outside the contamination of politics, and to think of law as an extension of natural, or at least deeply embedded, self organising processes which do not rest on conscious design. The idealisation aspect and the self-organising process aspects are not completely compatible. The idealisation of law assumes a monolithic unchanging nature which does not not adapt to the changeable nature of self-organising processes. Self-organising economic and social processes require frameworks of rules, which do provide some stability and predictability, but also require  changes in the nature of those frameworks as the process goes though major changes of self-organisations. Laws suitable to an agrarian economy may not be suitable for an industrial economy, and those laws may not suitable for an information technology economy. Attitudes to property which put inheritable land holdings at the centre may need substantial adaptation to a world of rising and declining industrial enterprises, and attitudes to property in the latter circumstance may not not meet all the needs of economy where intellectual property in software are a major concern.  A legal order for a world of peasants and landowners may not be suitable or a word of industrial labourers and capitalist investors,  or a world of the increasing  provision of personal services and formally qualified professionals.  Changes in law has serious consequences for the beneficiaries of old laws, and creates new beneficiaries. There are inevitable struggles between these groups, who are necessarily drawn towards political ideas which happen to suit their interests. This is politics embedded deeply in law.

Law Over Legislation and Political Form: Defining and Examining a Claim about Law and Politics

There is a law-legislation distinction in Friedrich Hayek and Carl Schmitt, in which there is an argument for the value of law in comparison to legislation. I have addressed their accounts in a draft paper which can be accessed here. If at sometime this link becomes broken an online search for : law, legislation and political forms in Hayek and Schmitt in conjunction with Barry Stocker, or some abbreviated version of this, should lead to the right place. I won’t go over the different arguments in Hayek and Schmitt, the differences and similarities here. I will restrict myself to a brief definition of the general idea,and discuss that general idea in a broader context.

The basic claim under examination is that a distinction is to be made between law and legislation, with law to be accorded high value and legislation to be accorded a lower, and even negative value. We can call this the law over legislation claim.  The law over legislation claim with regard to law is that states commonly accepted principles with regard to limits on actions, and so are in essence more a description, summary and confirmation of already existing codes of restriction and punishment. The law over legislation claim with regard to legislation is that legislation is an essence an edict issued by those who have political power. Since the rise of elected law making bodies, edicts have taken the form of laws passed by consent and can therefore be easily mistaken for law properly speaking. How ‘laws’ passed by the majority vote of an elected assembly are increasing administrative rules which award arbitrary power to the state to regulate individual actions and voluntary co-operation or exchanges between individuals. These do not describe existing codes of custom and conduct, but instead involve new rules expanding the scope of stare action, and the unaccountability of action to law properly speaking.

The law over legislation claim depends on a distinction between: what comes from the will of the political sovereign and what comes from the shared values of a society. That seems close to a natural law understanding in which law comes from an objective structure of morality and justice which precedes states, and is beyond individual choices. However, the law over legislation claim was not introduced by natural law theorists. The law over legislation claim allows for an evolutionary understanding of law, or law as the product of the orders which structure society independently of legislation, apparently. Notions of Law presumably include private property, proper legal process before any punishment, protection of life, and protection from violence, but the shape of these changes over time more than would be allowed for in natural law theory, strictly speaking. A major issue here is where is that moment of law before legislation or edicts of power? Is not ‘law’ another word for political power? Power exercised by judges, and which is relatively independent of the persons who have governmental power at that moment, but it is still a form of power.

The argument for law over legislation, defined itself by way of  reaction to legal positivism, as defined by John Austin (do not confuse with J.L. Austin!), with Thomas Hobbes and Jeremy Bentham generally accepted as precursors. Though a well known  position, straight Positivism is not now a widely accepted legal philosophy. Legal realism is the most obvious continuation, or near continuation. The twentieth century criticisms of Legal Positivism from the Law point of view were directed against Hans Kelsen, who is usually regarded as one of the two big figures in Legal Realism, along with the more recent  H.L.A. Hart, who is the more widely read figure, certainly in Anglophone work. What the law over legislation claim takes as its enemy is positivism, but it is itself not the most obvious enemy of Legal Positivism which is Natural Law theory, itself a rather general term encompassing nearly all Antique and Medieval thought about law, and a large part of early modern thought on the matter. The supposed alternatives to natural law in early modern thought, such as Hobbes and Hume, could easily be seen as drawing on the natural law theory, just emphasising the role of an effective sovereign in making natural law effective in Hobbes; emphasising social, historical and psychological aspects of the institutionalisation and application of law in the case of Hume.

The law over legislation claim was directed against the danger of the degeneration of an apparent state of law into a state of the edicts of government, in which any edict is considered a law if it is passed by a national assembly, with maybe some superficial adherence to principles of universality and recognisability which are not of much relevance in practice.  Some recognition of the problem comes from those who are not adherents of the law over legislation thesis, including Jürgen Habermas and Michel Foucault. For Habermas, the welfare state does tend to become an administrative state outside the real control of law and the national assembly, though Habermas approves of egalitarian welfarism as a foundation for politics. For Foucault, Medieval juridification undermined the art of self government as known in antiquity. Government of the self becomes tutelage of the Church, with regard to conscience, which itself becomes a source of ‘disciplinarity’, Foucault’s way of understanding the administered nature of modern life. More needs to be said about this very compressed paragraph, and over concerns above, along with consequent concerns in future posts.