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.

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