Political Theory and the Law-Legislation Distinction

Law has a dual nature in that is stands above politics and is established through politics. The hope that law can constitute, stand above, and limit political power, is long enduring. That hope begins with a view of law as something divine and in a linked sense deeply rooted in natural order. The sense that political sovereignty should be constrained by such law is expressed in Ancient Greek tragedy, most famously in Antigone. What we also see in Antigone is the role of political will in the constraining of the kind of sovereignty abused by Creon. The play shows Creon first resisting and then conceding the need to listen to other voices in the city, in practice as well as according to the kind of declarations he makes early in the play. Creon acts arbitrarily from the power that political sovereignty gives him, and is restrained by a process which mixes violent human reactions and the likelihood of punishment from the divine. The evolution of Creon towards good king who rules in line with advice, and with the wishes of his people, is itself a process of political reform which leaves the possibility that any politically sovereign individual, or any citizen assembly, might act outside the law given by nature, and by the gods. Ancient ideas of politea and  res publica in political theory, and the constitutional state experiments of antiquity.

The problem remains and adopts new forms with the rise of modern law making elected assemblies, which legislate at a rate and with regard to detail, beyond anything that happened in  antiquity. Eighteenth century thinkers about politics and law, like Rousseau and Montesquieu assumed that law should be simple, limited in amount, and largely unchanging. Hume and Smith thought of law evolving gradually over history in line with changing moral sentiments and social realities. In practice the societies most obviously influenced by such thought expanded the amount of legislative innovation, and took it into unforeseen levels of detail and complexity. This process can be seen as part of the tension between the law as it has existed with a community over time in line with shared customs, and law as innovation imposed on society by majorities in representative bodies which did not reflect any popular will. Some awareness of this can be seen in the Enlightenment, and carries on in to the nineteenth century, when both Marx and Nietzsche noted a struggle between new statue laws and old customs.

The rise of legal positivism, which places the authority for laws firmly in the hands of the political body with makes new laws, is part of that process. John Austin could not have written what he did earlier, drawing as he did on a pre-history of interest in sovereignty which includes early modern republicanism in Machiavelli and Harrington, and contractual theory from Grotius, and theories of civil society in the Scottish Enlightenment. Positivism is not just the expression of  belief that law originates with the political sovereign, but of the breakdown of any belief in the super historical permanence of law, and its origin in a world transcending this one.

Natural law theory of a kind can be found in the growth of normative theory since Rawls. This gives a place to the political process as that which finds the most rational and just set of laws. However, this is political process modelled on an ideal situation in which individuals are able to make purely rational choices about the best principles of liberty and justice. There is still a wish to find the super historical historical and the transcending level of existence at the origins of law. Positivism has developed in the direction of a Realist account of law as what the community has agreed is the law, which also rests on a rationalisation that undermines any idea of political contestation.

What jurisprudence is often concerned with is how law is interpreted rather than how it is made, which explains the emphasis to some degree on interpretative questions that are not obviously connected with the sphere of politics. This very necessary in a pragmatic way, but then it tends to provide the basis of a kind of political theory which reduces to moral principles and rational procedures, that is a depoliticised political theory. This is the problem in Rawls, and though he attempted to account for the less ahistorical and less rational-moral part of politics, in Political Liberalism and The Law of Peoples, he uses the terms ‘public reason’ and ‘ideal theory,’ which bring back the abstractness of A Theory of Justice. 

The law-legislation distinction in Hayek and Schmitt is another version of that drive to find a place of evaluation outside mere politics for political and legal theory. It goes against Schmitt’s vivid sense of politics as existential struggle;  and Hayek’s criticisms of the idea of any kind of unified summary of all the knowledge dispersed amongst social actors. Both have difficulty with the idea that law and political institutions in their foundations are conditioned by the kind of conflicts, uncertainties, as well as tensions between general principles and specific acts. Their law-legislation distinction is valuable but inadequate for understanding the bases of law and of political forms; and the duality of law between absolute principle and changeable rule.

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