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.


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