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.

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