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.

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