Adam Smith on Justice and the State

I’m currently doing some work on Adam Smith for a couple of conference papers in the early part of this summer. This includes quick reading (often re-reading) of just about everything by Smith and more considered reading of the most significant passages for my current purpose, which are Smith on distributive justice and Smith on colonies. This post, and maybe another one, pick up on what is in Smith lectures in belles lettres, history of philosophy and science, rhetoric and at greatest length on jurisprudence. That is a rather dis0rganised body, or work, in that it is acquainting students with a series of key points, rather than presenting exposition of theories,  and it is correspondingly difficult to say anything very organised about it. The books Smith published, The Theory of Moral Sentiments and An Inquiry into the Nature and Causes of the Wealth of Nations, provide their own focus.

Without any attempts at referencing I will go through some thoughts that come out those lecture materials.

On Colonialism.

Smith refer to the greatness of Ancient Greek culture, emerging initially in the colonies rather than the homeland. He is particularly aware of the Greek philosophers from Ionia (western Anatolia) and Greater Greece (Sicily and southern Italy). He refers to the greatness of Athenian culture as arising during the conflict with the Persians, and certainly most of what we think is great about Ancient Athens comes from the period after the Greco-Persian wars. It does not seem to me that Smith explains why, but the implication is that conflict creates culture while comfort does not. This would fit in oddly with a Scottish Enlightenment view of history in which the world is divided between fierce poor warrior nations and nations which combine wealth and culture, and there isa cycle in which poor fierce nations conquer wealthy cultured nations, become cultured and wealthy, and then become conquered. The point may be that greatness of culture comes from some kind of confrontation and tension. The Greeks of the colonies of western Anatolia, Sicily and souther Italy, have awareness of neighbouring peoples who even in the most peaceful circumstances speak different languages, worship different gods, have different cultures and who will co-exist with Greeks in some spirit of mutual suspicion. The tension could be complicate and further intensified by coalitions between Greeks and non-Greeks against other Greeks. Cultural greatness requires some level of commercial wealth and luxurious living, but with some great tension so that cultural sophistication reaches levels of greatness. A tension that is difficult to maintain long term since there is either cultural retrogression or stagnation in which culture becomes mediocre, and there is a conquest by a fierce poor nation. The issue of colonialism, or empire, intrudes here since luxurious weakness is associated with colonialism and the wealth that moves from colonies to the centre.

Colonialism interacts with the self-government of Greek city states in ways which restrict the citizen body in those states. Self-government is paid for by slavery and the wealth that comes from colonies, since that wealth is what enables citizens beyond the aristocracy to participate in decision making, because they can have leisure and receive attendance fees from the state. That itself reinforces a spirit of mistrust of new citizens, since they increase the expense of maintaining the political system, they compete for the resources available from slavery and colonialism, and generally make the trust between people who know each other in the Greek style of permanent participatory democracy. Rome provides a different model from Greece, since it incorporates neighbouring territories into the states, and settles surplus population, particularly military veterans, in those territories. That creates a model of colonialism where colonies are integrated with the originating state rather than the very loose bonds which existed between Greek colonies scattered over the Mediterranean and Black sea, and states back in Greece itself. The Roman model allowed new citizens, particularly in the city of Rome, since poverty was resolved through more direct relations with colonies and there was less emphasis on direct democracy. As Smith notes, the Romans tended to delegate democratic powers to the Senate and then to the Emperor.

Distributive Justice

Colonialism is an issue deeply lined with distributive justice then. The two kinds of colonialism include different kinds of distributive justice to maintain the state, and prevent it breaking up between factions based on wealth and poverty. Rome does this better than Ancient Greece, at least in the sense of maintaining the state and making it more powerful in relation to other states. The large amount of slavery in Italy however creates the basis for servile revolution and tends to reduce citizens to debt related slavery. That is, the large amount of slavery undercuts demand for free labour, leading peasant and urban labourers into great debts with the aristocracy, leaving the increasing possibility of enslavement as compensation to creditors.

Smith’s view of distributive justice early on in Lectures on Jurisprudence, where he invokes Aristotle and Grotius to discuss the distinction between commutative justice and distributive justice. Commutative justice refers to what cannot be taken from us or attacked, because it rightly belongs to us, or is part of us. It is a very strong form of justice relative to distributive justice. Commutative justice is enforced through the state legal system, distributive justice is a matter or morally preferably outcomes in which we prefer to see wealth going to those in need rather than those who already have many luxuries. Smith never directly says that all distributive  justice should become a voluntary matter never enforced by the state, though that might seem to follow. He also refers, as we have seen, to the relation between politics and issues of ideals of distribution, the inevitability of the ways that the state tries to maintain itself though distributive strategies. Smith may think that distributive justice is in a middle position between the institutions of criminal justice which enforce commutative justice (strictly speaking) and the purely individual voluntary nature of charitable giving. Distributive justice is something pursued by the state for the sake of social peace, and the maintaining of itself, as a precondition for social existence, but not a matter of absolute justice.

Arendt, Equality and Justice. Ancient and Modern

Some thoughts about Arendt and distributive justice as a I prepare for a conference paper on that topic (Pluralism and Conflict: Distributive Justice Beyond Rawls and Consensus, Fatih University, Istanbul, 6th to 8th June, 2013). Mostly drawing on The Human Condition and ‘Introduction into Politics’ (published in The Promise of Politics) with regard to the historical development of political concepts.

Amongst other things, Arendt shows the broad history and conceptual transformation which led from an Ancient Greek understanding of equality and inequality in justice to modern assumptions regarding those issues. One small but significant point struck me in recent reading, which is the a reference to Ancient Rome as the most political of communities. Arendt is sometimes seen as nostalgic for Ancient Athens, and as preferring Athens over Rome as the model of republicanism. The most well known advocate of republican political theory in normative theory/analytic philosophy, Philip Pettit offers Rome as the model, and suggests (briefly) of Arendt that her form of republicanism is nostalgic for Athens, with the implication that the nostalgia is itself a bad thing, though we might think of Pettit as nostalgic for Rome. The other criticism form Pettit in his very brief references to Arendt is that she belongs to a less liberal version of republicanism than that of Rome, which enforces conformity and participation,  so is more ‘political’, something that Pettit refers to as civic republicanism. We can see that Arendt did not make an opposition between Athens and Rome in the way that Pettit does, though she certainly does note some differences.

Arendt contributes to an already well established interest in law as fundamental to the difference between Athens and Rome. We can see such a suggestion in the ultimate philosophical synthesiser of history, Hegel. The way Arendt understands the difference is that Greek law is a form of divine authority over humans, while Roman law is about contractual relations between individuals and at the basis of political institutions. That is a distinction that suits the idea that Rome was the most political of communities, since it is the possibility of freely held relationships, which is the meaning of politics in the ancient world. That is Arendt refers to politics as the realm of freedom, as distinct from necessity. The work at issue, is most obviously slave labour. Arendt notes ancient distinctions between slaves (presumably by birth) and conquered peoples who become slaves. That separation of freedom from work includes the work of free labourers, on the whole. Ancient democracies, including Rome though that democracy was rather rigged to the benefit of the aristocracy, gave political rights to free labourers but never lost the disdain for labourers. Both Plato and Aristotle assume that political leadership should be in the hands of an elite not concerned with work or money making, and even regard politics itself as non-serious and secondary compared with philosophy, an inevitably elite pursuit. Arendt does allow for the political vision of human life in Plato and Aristotle, but also makes us pay attention to the opposite drive in their thought, the thought that the polity is something for the philosopher to ignore as far as possible.

The political realm in antiquity was the realm of a kind of freedom which could not belong to everyone, as some have to labour, including the labour done by slaves. The political sphere was one of equality, but qualified by aristocratic suspicion of free labourers, an equality of liberty from coercion by a tyrant in every case, but ambiguous about how far those free relations could extend amongst the population. The sphere of the home was a place of non-freedom. Men ruled the home and themselves only became part of something where there was freedom on leaving the home to participate in public affairs. The suggestion is that even the male patriarchal ruler of the home was preoccupied there with business which had nothing to with freedom, managing the family, slaves and the wealth/property of the family.

In her understanding of antiquity, Arendt sees wealth as something separate from property. Property was not separable from the family and was essential to political elite status. Wealth refers to all the things owned by the family, and its income which be lost. That idea of the permanence of property was essential to how the ancients thought of what was proper to a governing class, and that assumption lingered into the 19th century, when capitalism undermined the idea that any kind of property could be separated from the world of exchange where it acquired a contingent status in relation to the owning family. The non-poliitcal sphere of household family affairs became the basis of polities, which moved away form discussion of matters of purely public interest to maximisation of everyone’s wealth. Equality and justice moved from being questions largely for the elite class in its awareness of itself, to the main concerns of politics in promoting the welfare of all.

Civic Dialogue and Irrational Desire in Euripides’ Orestes

Euripides tells a story of the murder of Clytemnestra by her son Orestes, which Aeschylus had already dealt with in the Oresteia.  There are  major variations in Euripides’ telling.  In both stories Agamemnon is murdered by his wife Clytemnestra after his return from the Trojan War, their son Orestes murders her with the help of their daughter, Electra.  What Euripides most obviously adds is a story about Menelaus and Helen (of Troy).  As Homer explains in The Iliad (the story of Ilium, the Greek name for Troy which is a Roman word), the Trojan War began because the Trojan Prince Paris seduced Helen, wife of the Spartan King Menelaus, and took her to Troy.  Menelaus’ brother King of Argos (Mycenae) assembles an army of all the Greek states.  After 10 years Troy falls, Menelaus takes Helen back as his wife, and all the surviving Greek leaders and soldiers return to Greece.   Homer’s story may have a historical basis in a Greek assault, towards the end of the Bronze/Mycenaean Age, just before a Mediterranean Dark Age,  on now the ruined city in Hısarlık, western Anatolia, which is possibly the city known to the Hittites as Wilusa, but it is impossible to know this for sure.

According to Euripides, Menelaus sends Helen ahead of him by ship, at the end of the journey back from Troy, by night because she is so widely hated.  She is hated because her adultery with Paris (and adultery was a serious crime for the Ancient Greeks) lead to the deaths of thousands of Greeks.  The suggestion is that women in particular hate her because of the deaths of husbands and sons, with the implication that jealously of her famous beauty is also a factor. Orestes has murdered his mother in cooperation with Electra.  He is in a state of what we now think of as mental breakdown, though Euripides describes it as visions of the supernatural.  What Orestes sees are the Furies, the ugly looking semi-divinities which pursue revenge justice, and are understood to be female.  Orestes even mistakes Electra for one of the Furies.  Orestes comes under pressure from two directions.  Firstly, he is hated in Argos for murdering his mother.  Though Clytemnestra murdered King Agamemnon, for Orestes to kill hİs mother is to pollute himself and go against ideas of divine and Greek law.  Secondly, the return of Helen intensifies his frenzy to kill evil women.  Electra also hates Helen.  Se helps Helen to pass on a funeral offering for Clytemnestra, which includes some of Helen’s hair.  Electra is outraged by what she sees as Helen’s vanity in only cutting the end of some of her hair, so that her beauty is not impaired.  Orestes has an encounter with Tyndareos, father of both Helen and Clytemnestra.  He is deeply angry with Orestes, and condemns Menelaus for having friendly relations with Orestes despite the murder of  Clytemnestra.  Orestes and Tyndareos have an argument, which partly revolves around the idea of Orestes speaking his mind fully, which could be taken as a reference to the value of free public speaking, which Euripides emphasises in connection with Athens in The Suppliant Women (see two posts back).  The argument establishes that Tyndareos regards Orestes as a criminal, and that Orestes thinks he was right to kill his mother.  This is a moment of free speaking which does not resolve anything or lead to a political solution.

Tyndareos and the common people of Argos want Orestes executed.  Euripides represents the opinions of the common people in a negative way despite his apparent respect for free speaking citizens. There may be an implicit criticism of Athenian democracy here.  The people are shown to speak out of anger and manipulation, rather than well formed judgement.  Though the aristocratic and royal characters do not appear very rational either.  Orestes is faced with mob justice, the divine vengeance of the Furies, and the possibility of more normal forms of legal condemnation.  This drives him further into a frenzy in which he consider joint suicide with Electra, and wants to kill Helen.  He succeeds in trapping Helen and nearly kills, but she suddenly disappears.  In his continuing frenzy Orestes grabs a Phrygian man, that is a man from a people who lived in western Anatolia, who has come back with the Greeks from the Trojan War.  This results in a grotesque parody of the sort of free speaking Orestes had engaged in with Tyndareos, and which was associated with Athenian democracy.  Orestes forces the man to speak his mind, but of course the man is frightened that Orestes will kill him if he says the wrong thing.  So he says what he thinks Orestes wants to hear, denouncing Helen, and so on, and Orestes realises the mans just says what he thinks Orestes wants to hear, which makes Orestes even more frenzied.

Menelaus arrives and Orestes grabs Hermione, the daughter of Helen and Menelaus, threatening to kill her.  Since Helen just disappeared (Menelaus thins Orestes has killed her and wants the body to bury), Orestes wants to use up his anger on the nearest thing.  He wants to destroy all wicked women and seems to regard women as largely wicked.  This is an extreme version of  general Greek attitudes, according to which women were inferior, irrational, and willing to betray.  His threat to kill Hermione contains an echo of Agamemnon killing his daughter Iphigenia, to win favour from the gods.  Orestes also threatens to burn down the royal palace in Argos. The god Apollo appears suddenly in order to resolve the situation.  He reveals that Helen was swept away by divine influence from murder by Orestes, so that she can live with dead heroes in a kind of Greek heaven.  He tells Menelaus that Helen cannot continue her previous life, because her beauty is so dangerous, serving the gods as an instrument to promote war between Greeks and Trojans, something they want because they wish to reduce the number of humans.   Apollo’s argument opposes Orestes’ view that Helen is an evil woman with the view that she is just one of the victims of a beauty which surpasses that of normal humans.  Apollo tells Menelaus to find another wife and escape from the cycle of disasters associated with Helen.  Apollo  tells Orestes that he will have to go into exile in a place called Parrhasia, which is the Greek word of free speaking.  So the suggestion is that Orestes is the victim of his tendency to speak too freely, to fail to exercise moderation in his use of free speaking, and to be dominated by uncontrolled emotions.  Apollo tells Orestes that after one year, he will  have to go trial in Athen, on the Mount of Ares, the hill associated with the god of war, and with the historically real court of Areopagus.  Apollo tells Orestes he will be acquitted after the Furies have presented their case.  He will then marry Hermione (who Orestes was just threatening to kill) and become King of Argos.  He tells Menelaus that he can only be King of Sparta, and not take Argos as compensation for losing Helen.  Apollo appears to have ended the war of the gods against the House of Atreus which led to the cycle of killings.  His intervention makes Athens the centre and judge of the Greek world, and suggests that Sparta does  not have the right to dominate Greece, all very relevant to relations between Greek states in the time of Euripides.

Apollo appears in a more positive role than in Ion, where he has become the evasive dissembling and rapist god. His role as giver of order, particularly the Athenian domination of the Hellenic order is still present, and with much less unfavourable context. We seem to have a much more straight forward celebration of divinity and civic life, though based on the overcoming of very extreme tensions. Women are present in two aspects: the dangerous excess of attraction on the side of Helen; as safe women who can be married without danger. There is an implied anxiety about sexuality and desire, that it might become to dominating over a man, leading him to treat a woman as a goddess, or be bewitched by her like a sorceress, possibilities both explored by Homer in The Odyssey. Euripides ideas about proper civic dialogue seem great from the point of view of any kind of liberal, republican, or democratic theory, but are embedded in a much disturbing struggle with desires and fears, which have a nonhuman force.


The Dualities of Law and Political Sovereignty in Hayek and Schmitt

Continuing a discussion from the post before last

Political sovereignty has the duality of the continuity of sovereign power, and the singularity of sovereign power, which can be understood from the discussion of law and legislation in Schmitt and Hayek. Their preference for law, and a tendency to think of sovereignty as arbitrary where it is not constrained by law, limits their exploration of political institutions and forms even though they have a great deal to say about such topics. What is said is oriented by a tendency to think of politics as pulled between two non-political or pre-political poles: ideal law and the violence of sovereignty. This is not just a complete gap for either Hayek or Schmitt, but there is a notable constraint. The constraint still allows the reader to use their analyses to consider political institutions, as formed by the tensions between law and legislation; regular sovereignty and absolute sovereignty.

The law-legislation distinction and the regular sovereignty- absolute sovereignty distinctions suggest that political and legal institutions cannot be derived from, or reduced to, pure principles of law and sovereignty. Exercises in ideal theory, engaged with projects of reduction and deduction will continue, but examination of the dualities of law and sovereignty should lead us to see that such exercises, however valuable, are limited by their formalism. The aspects of legislation and arbitrary sovereignty should not just be exiled from political theory as history, sociology of power, or empirical  politics. The ideal aspects of sovereignty law only exist as concepts in history, in political and social contexts, which condition how they are understood and which change over time. The work of the Cambridge School has deepened the understanding of the historical context of political theory over the last few decades; and overlaps to some degree with the work of Reinhart Koselleck, itself influenced by Schmitt. The importance of such work is not just in a strictly delimited field of history of political theory, or ideas, but in drawing attention to the tensions within the status of political thought as concerned with abstract concepts, and historical context, the ideal and the empirical.

We cannot hope to fully understand the theories of the political thinkers of the past, without reference to historical  context, and recognition of this interpretative reality has been increasing. We cannot isolate the political theorists of the present, or the recent past, from such consideration, at least not to form the fullest possible judgement of their work. Schmitt and Hayek provide important indications of how to bring context to political theory, particularly with regard to recognition of inner tensions around the attempted exclusion of the non-ideal and non-normative.

The way that the link between Hayek and Schmitt around the law-legislation distinction has been largely ignored by those with a sympathetic interest in Hayek’s ideas, and treated as proof of lurking authoritarianism in Hayek, and associated thinkers, by commentators of an anti-capitalist inclination, is itself part of the ambiguities. Recognising the influence, at least in one area, that Schmitt had on Hayek is discomforting on the Hayekian side, because of a strong anti-political streak which has origins in Hayek himself, though that is never his complete position, and which makes Schmitt’s emphasis in some of his most famous passages on the arbitrariness of sovereignty, deeply threatening. The anti-capitalists who ‘expose’ the Schmittian wolf in Hayek, the liberal sheep, themselves have an anti-political streak around the belief that the political sphere is an instrument of class interests, and that politics is tainted by economic domination. We cannot get beyond these exclusions and moralising condemnations, without a full appreciation of the law-legislation distinction in Hayek and Schmitt, and its impact on the understanding of political forms.

Law, Burial and Liberty in The Suppliant Women of Euripides.

Euripides deals with events that come between Oedipus at Colonus and Antigone in Sophocles’s Theban plays, and he expands on a major theme of Antigone, the links between the rights of a citizen, death in war, and the rights of female relatives to bury a male family member who died on the battlefield. There are aspects specific to Ancient Greece, but the role of burial and ceremony for the dead, and the links with the way a community is defined by war have cross historical significance. The centrality of women in providing funeral rites, particularly for battlefield deaths, their role in petitioning in the play, and the real exclusion of women from public life in the Athens of that time, bring tension in plays such as Antigone and The Suppliant Women.  The events described by Euripides follow the battle between the sons of Oedipus, Polyneices and Eteocles, for control of Thebes.  As Sophocles suggests, both sons die and Creon is left in power.  As in Antigone, women want their male relatives to be buried.  However, Antigone does not appear in The Suppliant Women, and Euripides does not refer to the women of Thebes at all.  The suppliant women are the mothers of men of soldiers from Argos who fight for Polyneices, and die in the assault on Thebes.  Creon forbids the burial of these men, just as forbids the burial of Polyneices in Antigone, bringing him into conflict with his niece, and Polyneices’ sister, Antigone.  The women of Argos have come to Athens because they cannot find anyone else to tae up their cause.  Significantly they have unsuccessfully asked for help from Sparta.  This is significant because Sparta was the most powerful state in Greece, along with Athens.  Sparta, and its allies, fought a Thirty Year War with Athens, and its allies, known as the Peloponnesian War.  Sparta was not just an alternative power source, it also offered an alternative ideology to that of the Athenian democracy, with regard to how many people would participate in politics along with liberties of speech, trade, culture and so on.

The main contrast in the play is between Athens and Thebes, which stands in for the Athenian/Spartan rivalry.  Athens is represented as if it was the democracy of the time the play was written.  The play refers to a largely mythical archaic past, which if it has any clear historical location would be that of Mycenaean Bronze Age Greece, represented by Homer,  attributing to Athens the characteristics of its later democracy.  The biggest distinction from Athens of the time of Euripides is that there is a king, Theseus, in the play, but he rejects the idea of absolute power, saying than citizens share power in Athens and alternate in power.    The women emphasise the freedom to speak freely in Athens, which includes the right to make requests of the most important person in Athens.  This probably reflects the origins of free speech in Athens, and other Greek states, In the right of citizens to petition kings for favours.  Over time kings declined in power and citizens’ assemblies made the decisions, becoming the places where feee speech was exercised.

The women emphasise the inferiority of women to men, and the need for women to act through men.  This is why they have to petition King Theseus.  That is the only way they can have their sons buried.  The happiness of their lives has been greatly disturbed by the loss of children, and they need the consolation of the recognition of the sons as part of human community, through the right to proper burial with appropriate ceremonies.  Theseus is at first unwilling to take up an issue concerning what happens in another Greek state, but finds that what Creon has done is against the law of the Greeks.  There was not unitary legal system of the Ancient Greeks, states had their own laws and courts.  However, Athens demanded that its courts have authority in allied states.  What partly underlies Euripides’ account of Theseus’s generosity in defending the rights of those women from Argos, is a justification of the powers that Athens exercised over its allies, which alarmed other Greek states.

Theseus assumes that there is law for all Greeks, presumably thinking of the kind of divine law that Antigone opposed to Creon’s laws, in Sophocles’ play Antigone. He is disturbed during his discussion with the women that Argos was so willing to go to war with Thebes and that the daughters of the king had married foreigners under religious advice.  Though Theseus believes there is Greek law, he also believes in the very self-contained existence of Geek states, where foreigners do not have power, and do not marry into important families.  Theseus/Euripides seeks a balance in religion, between ignoring the sacred and giving too much importance to supposedly sacred sources which argue against good judgement.  There might be an implicit criticism of the Spartans in there,as the Spartans were famously religious, and even delayed their entry into the war against Xerxes’ invasion of Greece in 480 BCE for religious regions.

All of these comments by Theseus build up the idea of Athens as the moral core of Greece, which is entitled, and even duty bound, to enforce justice throughout the Greek world.  Theseus expressed views about the correct government of Argos, and other cities.   The government should not be dominated by the very rich, who are only concerned with money, or the very poor, who are only concerned with  jealously of those with more money.  The city’s government should rest on those in the middle who are capable of good judgement. Theseus is concerned that Argos has been undermined by the over enthusiasm of its wealthy citizens for war as a chance to make money.   Theseus’s views extend to human life in general, which he says has been improved over time through writing, agriculture  the building of cities, and other fundamentals of human society.  He has an idea of the special status of humanity compared with other animals, which is maybe the source of his views about the rights of all humans, or at least all Greeks, to have certain things recognised, such as dignified burial of the dead.

A messenger comes from Thebes who represents the views of Creon.  The Theban Herald is not used to the idea that the king is not absolute.  Theseus has to explain to him that he does not have absolute power.  The Herald is shocked by this and by the idea that citizens can have a role in political decisions. Creon’s view is that there must be a strong ruler who can ignore the ignorant mob, and make wise decisions the people could not make.  At this point, it is possible that Euripides was expressing any reservation he might have himself about Athenian democracy.  Athenian writers like Plato feared that democracy led to chaotic conflict between citizens, which would collapse into tyrannical one person rule.  In taking responsibility for protecting the women of Argos, Theseus as leader of Athens is taking leadership in Greece from the most powerful state in the epics of Homer.  Something like this happens in the Oresteia of Aeschylus. The idea that Athens takes over from Argos, whose King Agamemnon was leader of the alliance of Greek states against Troy, provides a mythical foundation for Athenian domination in the Greece of that time, and for its superiority over Sparta.  The Spartan monarchy is important in Homer.  It is Menelaus who loses his wife Helen to Paris, prince of Troy, and it is his brother Agamemnon who commands the Greek forces, which probably explains why Athenian tragedians were so concerned to imagine a leading role of Athens in the archaic myth time of Greece.

The Politics and Philosophical Culture of the Law-Legislation Distinction

Another post in a long running set on the distinction between law and legislation as it appears in the work of Friedrich Hayek and Carl Schmitt. Since I’ve already explained the law-legislation distinction, I have relegated a definition and explanation, similar to material used in previous posts, to an appendix for those have not seen those post, or have strangely forgotten their deeply fascinating content.

Questions of law and questions of political form are interconnected. One aspect of this is that law defines political institutions, their distinct powers, the relations between institutions, along with the relations between individuals and those institutions. That is constitutional law, and is not all of what is discussed here, but is a large part of it. The constitutional laws are not the whole of the issue since the constitution and the political institutions are themselves embedded in the totality of laws, and the courts which apply them. Defining that is part of the business of constitutional law, but constitutional law is not exhaustive in doing so. The way the courts interpret and give effect to laws is also a matter of politics, of the assumptions  that judges bring to the law which to some degree are a matter of political context, and the assumptions that politicians have who fill the roles of law makers, government members, including those who are the political heads of the legal system. The underlying principles and pragmatic assumptions governing actions in both legal institutions and political institutions are strongly overlapping. Political theory may or may not emphasise it, but it the connection is always an issue. Examples of a strong explicit interest in the overlap include the diverse figures of Montesquieu, Michel Foucault and Ronald Dworkin. Examples of less explicit interest, where the implicit connection still has a structural role, through reference to founding principles, constitutionality, and regularity in the application of principles  include the equally diverse figures of Jean-Jacques Rousseau, Hannah Arendt and John Rawls.

The investigations of Hayek and Schmitt into the nature of law, and its relations with political sovereignty, are then concerned with a deep structural element of political theory, that is the link between particular institutions and the general laws which sustain them and depend of them for their existence as enforceable statutes. These investigations focus on the duality of law and legislation, and thereby on the duality of political institutions. One side of that duality, in association with law rather than legislation, is of social bodies, which arise from historically embedded associations and institutions of communities through the gradual accumulation and expansion of customary collective social interactions with powers over communities. The other side of that duality of political institutions, in association with legislation rather than law, is the coercive power of institutions to force both continuity and change in the patterns of social institutions and the institutions of civl society, powers which can enforce continuity and resist change, but any also enforce reform and even revolution from above in the name of general principles of justice.

Hayek and Schmitt refer to a duality of law, which is also a duality of political institutions. We can refer to the duality of evolution and decisionism in political institutions, using the vocabulary of Hayek for the first term, and the vocabulary of Schmitt for the second term, though both are concerned in their own ways with the duality. In both cases, discussion of law and legislation, is necessary to understanding their political vision, though they did not always make this clear. We can get a full picture of the achievements in political theory of Hayek and Schmitt only by considering their work on law. Since the relation of legal and political issues is very largely a relation between institutional forms of law and political power, the forms they have individually and in relation with each other, it is appropriate here to talk about law, legislation and political forms.

There is another important kind of duality in considering Hayek and Schmitt in the political theory traditions they have influenced. Hayek has most obviously influenced normative political theory, through the ways he has been taken up by major libertarian figures in that tradition such as Robert Nozick, Chandran Kukathas and Jerry Gaus. Schmitt’s influence has most obviously  been on Frankfurt Marxist, phenomenological and deconstructive political theory, along with related work in cultural theory. Important names here include Walter Benjamin, Jacques Derrida and Giorgio Agamben. The discussion of the connections between Hayek and Schmitt on questions of law, legislation and political form, is a very necessary contribution to understanding the interaction and points of share underlying concern in both the ‘analytic’ and ‘continental’ aspects of political theory.

Appendix: The law and legislation distinction.

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. A distinction is 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 it states commonly accepted principles, and so is in essence a repetition, refinement and confirmation of already existing codes of rules and punishment for breaking of rules. The law over legislation claim with regard to legislation is that legislation is an essence an edict issued by whatever institution has 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. The term for this is legislation. This term is required because ‘laws’ passed by the majority vote of an elected assembly are increasing administrative rules, which award arbitrary power to the state to administer society. These do not describe existing codes of custom and conduct, but instead involve new rules expanding the scope of state action, and the unaccountability of action to law properly speaking. The majoritarian principle in the election to national assemblies, and then in the making of legislation by that assembly, is a deviation from the consensual basis of law, and a means for coercion of the minority, which is likely to undermine law, in the proper sense of that word.