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.

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.

The Political aspect of the Law-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. The law over legislation claim makes a distinction between: what comes from the will of the political sovereign and what comes from the shared values of a society.  A major issue here is where is that moment of law before legislation or edicts of power? Is not ‘law’ always embedded in political power? Power exercised by judges, and maybe juries, and which is relatively independent of the persons who have governmental power at that moment, but it is still a form of power. The law over legislation claim was directed against the danger of the degeneration of an apparent state of law into a state of the edicts of government, in which any edict is considered a law if it is passed by a national assembly, with some superficial adherence to principles of universality and recognisability. Some discussion of the problem can be found in those who are not adherents of the law over legislation thesis. Examples include Jürgen Habermas and Michel Foucault. For Habermas , the welfare state does tend to become an administrative state outside the real control of law and the national assembly (1986, 225; 232; 235, 241; 242; 250) though Habermas approves of egalitarian welfarism as a foundation for politics, and seeks ways of incorporating the regulation of welfare in law as a whole. For Foucault, Medieval juridification undermined the art of self government as known in antiquity (Hermeneutics of the Self, Wrong-Doing, Truth-Telling). Government of the self becomes tutelage of the Church, with regard to conscience, which itself becomes a source of ‘disciplinarity’ (Discipline and Punish), Foucault’s way of understanding the administered nature of modern life. Foucault is also far from the more conservative aspects of the law over legislation argument, though he is less associated with a a consensual welfarist egalitarian rationalist position than Habermas.

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.         Laws have to be ordered, systematise and harmonised and this is work done by sovereign bodies, therefore on the basis of political will.We can see historically that law may change dramatically as a result of invasion and forcible changes in the identity of the sovereign, what Hobbes calls ‘commonwealth by acquisition’. 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, where unwritten law is associated with the Heroic Age, which is Vico’s way of referring to the aristocratic domination found in societies like the Bronze Age Mycenaean Greeks depicted by Homer. Fundamental issues of debt and property rights were the source of constant political conflict in antiquity. It is an issue long discussed with reference to the late Roman Republic and which was part of the making and execution of law in that time. 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 politics entering law, 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. Attitudes to property which put inheritable land holdings at the centre may need substantial adaptation to a world of rising and declining industrial enterprises. 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.  The law-legislation distinction is very valuable as a diagnostic tool in certain circumstances, but taken beyond that impedes an understanding of the relation between politics and law, including that way different legal forms interact with political forms.

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.

Montaigne, Hayek and Schmitt on Law

The last post suggested looking at the distinction in Friedrich Hayek and Carl Schmitt between Law and Legislation, and the accompanying claim that Law should be placed above Legislation; and suggested that the claims could be usefully looked at in the context of that legal and political theory which emphasises political contestation. The Law over Legislation claim in Hayek and Schmitt involves some anti-political elements, which undermine their best thought about politics, and that can best be corrected by using that legal theory current, Critical Legal Studies, which seems most remote from their way of thinking. To put it rather crudely, the right wing of Critical Legal Studies overlaps with the left wing of Hayek-Schmitt interpretation. The ‘right wing’ of CLS includes most obviously Max Weber and Hannah Arendt. As I pointed out in the last post, this fits with a reading of Foucault which has appeared in various posts over time, though Foucault is of course a major figure of reference for the ‘left wing’ of CLS. I will add to Foucault, another figure generally placed in  avery left leaning context, Jacques Derrida. Derrida’s contribution to legal theory is most associated with his long paper ‘Force of Law: “The Mystical Foundation of Authority”‘. The idea of the mystical foundation goes back to Blaise Pascal and then to Michel Montaigne. Pascal’s Pensées has close relationship with Montaigne’s Essays, often paraphrasing and transforming passages. Derrida notes such an occasion when Pascal discusses the lack of foundation for law. Pascal refers to the arbitrariness of law, so that it is different on one side of the river from another, where the river coincides with a national frontier. State law has no foundations except in the force that the state can use to enforce law. That arbitrariness itself leads us to perceive the role of the mystical, that is of divine authority. The only real law is the law that comes from God, since that is the only law that can be absolute and free from the arbitrariness of state law. This line of thought is not put forward by Pascal as legal theory, or jurisprudence in the normal sense. Pascal does not mean to deny the authority of human laws, or the need for judges to follow the rules of the legal institution to which they belong. The argument is more designed to lead us to thoughts of the greatness God in comparison to fallen humanity, which has lost something Godlike in itself. Nevertheless Pascal’s thoughts do relate to political and legal thought, corresponding with the weakening of a belief in the unity of human, divine and natural sources of law. Pascal’s discussion draws on Montaigne’s essay on ‘Experience’ which reflects on Montaigne’s time as a judge in Bordeaux. The law cannot be just in his account, as there is always conflict between general judicial principles and the context of any individual case. Montaigne notes the need for consistency in judgement, and the following of previous judgements. Concerns with the stability of the institution of law, and the unity of legal principles place barriers ,n the way of fully accommodating the particular facts of particular cases. The consequence is that the judge has to knowingly make unjust judgements. These tend to particularly affect the poor and lowly who are always treated badly by institutions. As with other sceptical moments in his considerations of the mores, ethics and law of the society in which he lives, Montaigne is more inclined to melancholic resignation than radical change. His own writing might be regarded as an attempt to spread greater sympathy for the unfortunate, and awareness of the harsh consequences for individuals of the operation of power; and it had some success from that point of view, forming a major part of the growing cultural emphasis on human sentiments directed at all individuals since then. We should also consider the possibility of a more radical political reading of Montaigne. His Essays discuss his friend Etienne de La Boétie, who died young, and is most famous as the essay on voluntary servitude, that is on the willingness of the many to serve one man who has power. La Boétie advocates rebellion in contrast with the apparently conservative and moderate Montaigne. Montaigne says that he considered including La Boétie’s essay in his own Essays, but did not do so because it might be misunderstood as a challenge to royal state authority of the time. This does at least raise the possibility that Montaigne is repressing his own more  radical thoughts out of fear of royal censorship, rather than expressing a deep going moderation and respect for authority at that time. These reflections on the contradictory  and unjust  nature of law in Montaigne, suggest a starting point for Derrida and Foucault’s thoughts on similar lines, and suggests that such a way of thinking cannot be limited to left wing anti-capitalist thought. Both Foucault and Derrida have brief, but significant moments of identification with Montaigne: for Derrida that is in relation to the interpretation of interpretation which Montaigne sees as an endless necessity in the discussion of legal and sacred texts; for Foucault that is in relation to awareness of the possibilities of the stylisation of life, and the nature of the self as self-relating. So we can apply to Hayek and Schmitt, those two great believes in the unity, authority and continuity of Law, the scepticism of the Renaissance humanist with regard to those claims about law, and contextualise CLS in that way.

Bringing Politics into Hayek and Schmitt’s Sublime Conception of Law

The last post finished with some sketches of positions in legal theory. The Hayek-Schmitt position in which Law is above Legislation (Laws emerging from social consensus about basic rules of justice is above the changeable often administrative concerns of a sovereign political body in its legislative acts) seems closest to a traditionalist natural law theory, usually traced back to Thomas Aquinas, and most associated amongst current writers on law with John Finnis. Hayek himself notes that his view of law might be taken for natural law theory, but complains that tradition is too rigid. There are two notable things about Hayek’s comments: 1. he does not completely distinguish himself from natural law tradition; 2. he emphasises the need for openness in legal institutions. So perhaps Hayek’s position is one of natural law modified to tae account of the evolution and Law, and by evolution of generally accepted principles of justice.

This can sound like Ronald Dworkin or even Jürgen Habermas. Dworkin (who died very recently) was a left liberal committed to centrally designed schemes of income redistribution, in the context of a large public sector and a highly regulated economy, so not in line with Hayek’s thinking. Habermas might seem even worse from a Hayekian point of view since he emerged from the Marxist Frankfurt School, but in reality his thought fits more with an egalitarian liberal way of thinking than with Marxism of any kind, except for ‘revisionist’ forms which in effect turn Marxist gaols into ideals pursued through political liberalism rather than class struggle, and which are general ethical goals rather than concrete proposals for social reinvention. Both Dworkin and Habermas think of law as formulated, revised and interpreted through an evolving political consensus, which they expect to have an increasingly egalitarian impetus.

The consensual-rationalist way this is framed leaves their theories ill equipped, or so I contend, to deal with individual and social action which does not fit in with their hopes for an egalitarian society based on rational reflection about how to increase individual autonomy through increasing equality. What they have  difficulty in dealing with individualistic action and resistance to state promotion of equality in a society integrated under state guidance. Anti-tax, deregulatory, state shrinking movements look like irrational populism to those of a Dworkin-Habermas frame of mind. The wish to preserve one’s property from increasing state demands to treat private  property as a bit of a public sum of welfare, which the state can dispose of if it so wishes, seems irrationally selfish within that framework, as does the wish of business to reduce regulatory burdens, or  any individual inclination to resist state led attempts to mould individual choices.

The Hayekian approach to social knowledge, on the model of economic action, as dispersed between all actors  and as something that never be aggregated as a guide to state action, does far better as a way of thinking about the ways that political attitudes may emerge from the constant reinvention of the economy and society. It suggests that irrationality comes more from state attempts to define maximum welfare for everyone than from individual resistance to such state activity. It is not that Habermas, Dworkin and the like are completely unaware of such issues, or the need to accommodate them, but that their way of thinking just does not allow for much weight for such considerations, which are always likely to be regard as secondary phenomena.

I outlined major legal theories in the last post. Though I mentioned Critical Legal Studies as the most left leaning stream, and as even disdained by those of other political leaning, at its best and least politically gestural, CLS provides a better fit for Hayek’s understanding of markets as decentralised, self-innovating and challenging to all attempts at top down control. It provides a better fit than Hayek’s own inclination to Law as an institution looming over the economy as the highest representative of mores and shared principles of justice. This elevation of Law to sublime and monumental status can be too easily taken up in the Carl Schmitt tendency to ultra-conservative sacramentalisation of the Order of orders in society, embedded in nationalist and traditional religious ways of thinking.

The CLS approach, like connected work in political and social theory, does draw on thinkers like Max Weber and Hannah Arendt who certainly do not belong on the Marxist or post-Marxist left. Michel Foucault is a frequent reference. I’ve discussed Foucault’s thought, including its political implications, in a large number of previous posts, so I will not go over that again. I will just note that Foucault is often brought together with Weber and Arendt as a theorist of political and social community in the modern world. Framing those three with regard to Hayek and market liberal thought could bring considerable benefits, and would frequently just very obviously be closer to their world view.

As far as CLS takes a position on the standard distinctions in legal theory it leans towards positivism-realism rather than natural law in its more evolutionary or more conservative forms. CLS does this because concern with politics leads it to consider law as expression of power. At its best CLS brings an appreciation of political conflict to positivism-realism correcting a tendency to a reductive view of the role of political power. From this point of view, CLS may bridge the gap between positivism-realism and the more evolutionary forms of natural law, with regard to a concrete detailed investigation of politics, and of political conflict.

Hayek and Schmitt on Law and Politics

The law over legislation claim that I’ve been discussing in some recent posts refer to attitudes to politic. Very briefly recapitulating, Friedrich Hayek and Carl Schmitt both argued that legislation passed by representative assemblies largely and increasingly has the real nature of an edict, as opposed to law which may be turned into statute form by a representative assembly but refers back to consensual communal standards of justice and essentially follows from them, rather than innovating. This has an anti-political dimension, though it cannot be said that Schmitt and Hayek are always anti-political. Schmitt in particular is fascinated by politics as existential struggle in one of his most famous texts, The Concept of the Political, though that does leave open the question of which aspects of Schmitt’s thought should be given priority, since he often leans towards a more pre-political world of orders within society that have their own principles of organisation.

There is no equivalent in Hayek of the existential account in Schmitt of politics as a struggle between friend and enemy, but much of what he says can be seen as guided by the wish to reassert the primacy of political institutions over the activities and interests of the state administrative apparatus. Hayek sometimes lied to describe himself as a Whig, or Old Whig, a reference to the group in 17th,18th and early 19th century British politics most inclined to Parliamentary rule, commercial society, limits on the power of the monarchy and the state church, and a general belief that political institutions rest on a contract with the people rather than a duty of the obedience of the people to established institutions. Hayek never really gets into explicit definitions and discussions of Whiggism, but the last sentence summarises those aspects of Whiggism closest to Hayek’s own way of thinking.

Schmitt also shows some respect for liberal parliamentary bourgeois politics, particularly with regard to the separation mid 19th century liberalism made between the state and the economy. However, Schmitt is always suspicious of representative institutions as places of endless dialogue and debate, which can never be decisive, and which cannot be fully democratic in their basis. With regard to the last point, Schmitt argues that parliamentary debates never correspond closely to public opinion, and that elected assemblies lack the kind of direct identity with the people as a whole that more presidential, monarchical, dictatorial or plebiscatory forms of government. Schmitt’s assumptions that a Caesarist or Fascist leader could have more ‘democratic’ legitimacy than an elected assembly is at odds with the progress of representative democracy  since the end of World War Two, and even more since the 1989 collapse of communist states, but should not simply be ignored. To some degree, Max Weber showed how to take up those points in Schmitt within a liberal democratic framework, in his long 1919 essay on ‘The Profession and Vocation of Politics’, and that was before most of Schmitt’s own work.

Again the less liberal aspect of Schmitt’s thought, in this case, democratic identity, formation of a popular will through identification with an autocrat, is constrained by a concern with Law, and with the orders of social existence which are closely intertwined with the existence of Law, and which Schmitt thinks of itself as emerging with notions of property and division of property. This is sometimes expressed in a form of international relations realism which regards international law as the instrument of real state power, and the power relations between different states. This changes with changes of power and might seem difficult to reconcile with his notion of Law. There can be reconciliation around the historical changes in social order, and the orders of society, which Schmitt thinks Law encodes.

Hayek’s thought is much less tied to notions of power, and with regard to Law the focus is on Law as something free from the taint of power interests, or particularistic interests of any kind. As I’ve tried to suggest in some of these posts, there may be a problem for Hayek, or the interpretation of Hayek, with regard to whether the evolution of Law is largely at the national state level, or whether it is essentially dispersed between localised forms of Law. Hayek seems to lean towards the first, but seems open to being taken up by those who wish for a polyarchy of legal regimes. There is also ambiguity in deciding how to interpret Hayek between: Law as very self contained  principles of  justice; and Law as something that evolves in relation to economic and social change, finding the best way of structuring social relations according the generally held principles of justice at that moment.

In both Hayek and Sschmitt there is a lot of discussion of politics, but a great tension between: an apolitical view of a self-ordering society expressed in Law, and a more contingent view of Law as something that emerges from social processes including those of the political sphere. A post coming soon will reflect further on how we might get to a proper account of the place of political forms from discussion of Law, legislation and politics in Hayek.

Law over Legislation: The Ambiguities of Law

This is the the 4th in a series of post on the law over legislation claim, defined in the first post. The law over legislation claim appears in very political contexts, but is the expression of an anti-political perspective. Perhaps it could be said the law over legislation claim expresses the wish to find some non-political framing for politics, or some non political centre. Some way in which politics is grounded in the non-political. There are some laudable impulses behind this. There must be some limits to politics, in the senses both that there must be some limits to the powers of the political sovereign and some limits to seeing politics in every action and every choice. In particular, law provides some way in which actions of the political sovereign are checked and supervised, and some public criteria are  established for assessing political actions. There cannot be any absolute framing or distancing of politics though. Law can only be relatively distinct, and must contain some legislative element. Law is only fully recognisable and applicable there there is legislation stemming from political institutions. Community standards of justice are too vague to be the basis of well defined law. There are forms of community justice standards which might be clear, but customary law is itself the product of politics and subject to political condition. It does not exist in complete isolation from the political world. Once law is defined and interpreted by judges it has definitely reached the thresh hold of political consciousness and becomes  a matter of political debate which leads to legislation. The more law is institutionalised the more likely it is that it will become subject to legislation, and the more likely it is that legislation had a role in the development of that law. Medieval law becomes entrenched through what Foucault calls ‘juridification’, that is the spread of Roman or Civil law and juristic discussion of laws.

Though the idea of Law as opposed to Legislation is presented ad descriptive and historical, it is really hard to understand it in those terms. It really exist as something like a heuristic device, or what Max Weber called an ideal type, that is an ideal state of affairs which cannot be found in reality but may guide analysis or actions. ‘Ideal’ has two senses which are relevant here. Ideal as in an ideal goal of action, a moral or political goal; ideal as in a pure concept. It is not possible to view Law as just a value free ideal concept of analysis, particularly as the use of Law in this opposed to, and above, Legislation, particularly as those relying on the distinction are advocates of law. It is both action orienting ideal and object of nostalgia, the only paradise for the sane, the lost paradise (Samuel Beckett says something like this in his short book on Proust). That is rather one sided, the other more stimulating side is that Law serves a as means of critique of Legislation which does not match basic standards of justice, including cases in which extends the size of the state, and the scope of its activity, without genuine benefit to the general welfare. Notions of justice and notions of general welfare are not necessarily the same, but presumably everyone wants to try to alit them as far as possible. That critical aspect of Law could be just as well served  by notions of Justice and to some degree the insistence on Law as the goal risks a distraction from the task of discussing justice, and related notions like welfare and liberty.

The idealisation of Law also risks confusing at least two different forms of Law. Law as customary Law, and Law as institutionalised Law according to proper procedures and traditions. These two can come into conflict. The most famous conflicts between customary law and institutionalised law in European history are around the movement from to customary rights of Medieval peasants to collective use of common land and forests for grazing and firewood to the strict application of individual property rights, reserving rights of usage to owners, as part of changes in farming and forestry. The most famous example within that process of late Medieval and Early Modern Europe is the enclosure of land in England, so that it could be used for sheep farming. This could also include removing peasants, their dwellings and entire land usage. Something like this carried on until the 19th century Scottish enclosures. No doubt judges at state law courts were disposed to see the law in the same way as big landowners, but I am not aware of much reason to think judges and juries (which have always given ordinary ‘freemen’, then citizens, a say in English law courts) completely ignored the law as it existed. Courts operating in ways sanctioned over time, with judges following correct procedures, did away with customary law below the horizon of institutional law. Another way of thinking about this is that marriage and divorce were to some degree self-regulating for lower class rural people until 19th century England. This gains famous literary expression in Thomas Hardy’s novel The Mayor of Casterbridge, in which Thomas Henchard sells his wife at the beginning of the novel before becoming mayor. According to  ‘Wife Sales’ by Leeson, Boettke and Lemke this was a recognised procedure for ending a marriage, usually with a lover or admirer of the wife ready to ‘buy’ her, and was considered binding by all involved, though it certainly had no force in statute law, in institutionalised law that is. These are not the kinds of example the advocates of Law over Legislation were interested in, though the paper just cited certainly reflects the influence of Friedrich Hayek, one of the two main advocates of the Law over Legislation claim. There is a tension between Hayek’s celebration of Law which is essentially as a unitary body well above the horizon of perception for the state, and his economic epistemology which refers to the dispersal of value and knowledge between individuals, and which is more suggestive of an informal institutional approach to non-state law.

Law over Legislation: Foucault and Habermas

This post refers back to the last post, and particularly the post before that which is inaugurated this sequence of posts on law over legislation. The last paragraph of that first post refers to Jürgen Habermas and Michel Foucault, referring to the need to detail further what is briefly in that paragraph.

The issue is whether we can talk about law as something distinct from, and superior to, legislation. That idea has precedents in distinctions made between customary law and statute law, or between the recognised laws of a community and the commands of whoever has political power. An awareness of such distinctions, and the deep tension associated with such distinctions, goes back at least to the tragedies of Golden Age Athens. As I am discussing those Attic tragedies in a series of 9 weekly posts, which refer to my teaching, I will not go into that here. I will pick up on Foucault on this point, going back to issues I was posting about quite intensely at some periods last year. Use the search function in this blog to find those posts, I prefer to rely on readers doing that than digging around for large numbers of links to incorporate into my post.

Going back to those posts, but also other thoughts about Foucault, we can see that Foucault has an account, relevant to the law-legislation distinction, of the distinction between something that can be labelled care of the seşf, government of the self, aesthetics of existence, or style of living. This is not a concern with Law, but it does fit with the idea that something precedes statute law with regard to social norms, what we accept as non-institutiıonalised laws of social life, and which tend to be some part of institutions and laws, or at least some part of why we accept them. These accounts of individual conduct fit with an account of free speaking, which itself is understood in relation to equality of the right to address and assembly and equality under law, all seen as parts of democracy. These are all parts of ancient Greek democracy. Since Foucault uses the Greek terms, they should be mentioned here. Free speaking is parrhesia, equality of right to address the assembly is isegoria, quality under law is isonomia. Free speaking is used instead of free speech, because what Foucault refers to is just as much a duty to speak freely in public as a right to free speech. This brief account of Foucault on Athenian democracy brings up an obvious contrast with the law over legislation thesis, that is the value of participation in the political world in which legislation is created.

That last sentence can be qualified though. The two proponents of the law over legislation claim I am considering are Carl Schmitt and Friedrich Hayek. Some of what Schmitt wrote certainly looks like advocacy of existential struggle in the political world as necessary to full human life. The relevant texts here (sticking to the English titles only which do not always correspond exactly to the German titles) include The Concept of the PoliticalCrisis of Parliamentary Democracy, and Political Romanticism. Some caution is advised in approaching these texts is advised, since they are often emphasised in ways which conceal a concern with law, legislation and constitutions, which can most clearly be found in The Nomos of the Earth, Constitutional Theory, and Legality and Legitimacy.  Both sides need to be taken into account.In Hayek’s case we should note that though there is a pull towards a non-political law, emerging from the processes of legal institutions outside political control, there is also appreciation of Athenian democracy and of modern constitutional democracies, along with a commitment to  finding the best possible rules or a democracy. The Constitution of Liberty and Law, Legislation and Liberty offer ideas of how democracy and political life can be structured in ways that will endure.

For Foucault, the idea of the right to be a citizen and to participate in political life in antiquity, is tied up with the capacity for self-government, for measure and moderation in life, which Foucault discusses as ‘care of the self’, and which he thinks allows for, even demands, capacities for self-creation and variations in that creation. That way of thinking, in which political participation does not come from an abstract right, but from recognisable forms of flourishing of the self is undermined in antiquity. Imperial Rome constrains those aspects of political life in antiquity. The focus turns inward, and that becomes shaped by Christianity which wishes to define and shape and inner self hidden from view in a way that would not have been imagined in earlier antiquity. The practices and institutions which increasing shape conscience in churches and in monasteries acquire a coercive aspect, most dramatically apparent in Crusades and the work of the Inquisition. This kind of dramatic and even cruel power is intertwined with the rise of ‘juridification’. ‘Juridification’ is a term used rather than defined by Foucault, but it can be sen to refer to the Medieval growth of interest in Roman Law as codified by Justinian, itself expressed in the growth of universities which large exist to educate students in şaw and in theology. Roman law influences both canon (church) law and state law, in the work of a growing number of trained jurists. The practices of confession, spiritual discipline and asceticism are also sen by Foucault as part of the path to ‘disciplinarity’ in modern institutions such as the prison, the army, the hospital, the school and so on. That itself feeds into the understanding of law which is not clearly tied up with political sovereignty and the right of the sovereign to exercise power in minute ways throughout society.

In Habermas, the equivalent to the law-legislation distinction can most readily be found in the account of the administration of welfare. Laws which set up public welfare programs and the apparatus to administer them draw on norms, including the norms of equality and rationality. The base norms in Habermas are something like ‘law’ and Habermas is insistent on their transcendental status, that is they are not the product of individual will and cannot be subordinated to the wishes of any individual will. For Habermas, the original political and legal sin is to creates legislation  which does not have universality transmitted from norms, and in its own structure. The consequence of applying norms of equality, in a struggle with the distorting force of differences in economic power is to create a growing state. The right place to debate the laws which constrain the state, and supervise the work of its administrative powers is the elected assembly. However, growth in state activity must lead to an amount of activity which cannot be supervised or constrained by state power. The rules and decisions of the bureaucracy become independent of the democratic process and become arbitrary in their workings, so that we end up with edicts issued by the state in the ways that officials interpret and apply those laws and rules. This is part of a broad tension in Habermas between the legitimacy of the state in its appeal to reason, reason which can be shared  by all, on one side; and the ‘steering’, that is coercive aspects of the the state on the other side.

So a full discussion of law and legislation  might be a full discussion of Hayek and Foucault, Schmitt and Habermas.

Law Over Legislation and Political Form: Defining and Examining a Claim about Law and Politics

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. I have addressed their accounts in a draft paper which can be accessed here. If at sometime this link becomes broken an online search for : law, legislation and political forms in Hayek and Schmitt in conjunction with Barry Stocker, or some abbreviated version of this, should lead to the right place. I won’t go over the different arguments in Hayek and Schmitt, the differences and similarities here. I will restrict myself to a brief definition of the general idea,and discuss that general idea in a broader context.

The basic claim under examination is that a distinction is to be 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 states commonly accepted principles with regard to limits on actions, and so are in essence more a description, summary and confirmation of already existing codes of restriction and punishment. The law over legislation claim with regard to legislation is that legislation is an essence an edict issued by those who have 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. How ‘laws’ passed by the majority vote of an elected assembly are increasing administrative rules which award arbitrary power to the state to regulate individual actions and voluntary co-operation or exchanges between individuals. These do not describe existing codes of custom and conduct, but instead involve new rules expanding the scope of stare action, and the unaccountability of action to law properly speaking.

The law over legislation claim depends on a distinction between: what comes from the will of the political sovereign and what comes from the shared values of a society. That seems close to a natural law understanding in which law comes from an objective structure of morality and justice which precedes states, and is beyond individual choices. However, the law over legislation claim was not introduced by natural law theorists. The law over legislation claim allows for an evolutionary understanding of law, or law as the product of the orders which structure society independently of legislation, apparently. Notions of Law presumably include private property, proper legal process before any punishment, protection of life, and protection from violence, but the shape of these changes over time more than would be allowed for in natural law theory, strictly speaking. A major issue here is where is that moment of law before legislation or edicts of power? Is not ‘law’ another word for political power? Power exercised by judges, and which is relatively independent of the persons who have governmental power at that moment, but it is still a form of power.

The argument for law over legislation, defined itself by way of  reaction to legal positivism, as defined by John Austin (do not confuse with J.L. Austin!), with Thomas Hobbes and Jeremy Bentham generally accepted as precursors. Though a well known  position, straight Positivism is not now a widely accepted legal philosophy. Legal realism is the most obvious continuation, or near continuation. The twentieth century criticisms of Legal Positivism from the Law point of view were directed against Hans Kelsen, who is usually regarded as one of the two big figures in Legal Realism, along with the more recent  H.L.A. Hart, who is the more widely read figure, certainly in Anglophone work. What the law over legislation claim takes as its enemy is positivism, but it is itself not the most obvious enemy of Legal Positivism which is Natural Law theory, itself a rather general term encompassing nearly all Antique and Medieval thought about law, and a large part of early modern thought on the matter. The supposed alternatives to natural law in early modern thought, such as Hobbes and Hume, could easily be seen as drawing on the natural law theory, just emphasising the role of an effective sovereign in making natural law effective in Hobbes; emphasising social, historical and psychological aspects of the institutionalisation and application of law in the case of Hume.

The law over legislation claim was directed against the danger of the degeneration of an apparent state of law into a state of the edicts of government, in which any edict is considered a law if it is passed by a national assembly, with maybe some superficial adherence to principles of universality and recognisability which are not of much relevance in practice.  Some recognition of the problem comes from those who are not adherents of the law over legislation thesis, including Jürgen Habermas and Michel Foucault. For Habermas, the welfare state does tend to become an administrative state outside the real control of law and the national assembly, though Habermas approves of egalitarian welfarism as a foundation for politics. For Foucault, Medieval juridification undermined the art of self government as known in antiquity. Government of the self becomes tutelage of the Church, with regard to conscience, which itself becomes a source of ‘disciplinarity’, Foucault’s way of understanding the administered nature of modern life. More needs to be said about this very compressed paragraph, and over concerns above, along with consequent concerns in future posts.