Law and Politics Mauro Zamboni Law and Politics A Dilemma for Contemporary Legal Theory 123 MauroZamboni AssociateProfessor FacultyofLaw StockholmUniversity 10691Stockholm Sweden ISBN 978-3-540-73925-8 e-ISBN 978-3-540-73926-5 DOI 10.1007/978-3-540-73926-5 LibraryofCongressControlNumber:2007937663 (cid:2)c 2008Springer-VerlagBerlinHeidelberg Thisworkissubjecttocopyright.Allrightsarereserved,whetherthewholeorpartofthematerialis concerned,specificallytherightsoftranslation,reprinting,reuseofillustrations,recitation,broadcasting, reproductiononmicrofilmorinanyotherway,andstorageindatabanks.Duplicationofthispublication orpartsthereofispermittedonlyundertheprovisionsoftheGermanCopyrightLawofSeptember9, 1965,initscurrentversion,andpermissionforusemustalwaysbeobtainedfromSpringer.Violations areliabletoprosecutionundertheGermanCopyrightLaw. Theuseofgeneraldescriptivenames,registerednames,trademarks,etc.inthispublicationdoesnotimply, evenintheabsenceofaspecificstatement,thatsuchnamesareexemptfromtherelevantprotectivelaws andregulationsandthereforefreeforgeneraluse. Production:LE-TEXJelonek,Schmidt&VöcklerGbR,Leipzig Coverdesign:WMXDesignGmbH,Heidelberg Printedonacid-freepaper 987654321 springer.com Preface This work started as a preliminary step in a larger project aiming to discuss and build a legal theoretical model to help lawyers better understand the policy aspects of the relations between law and politics. At the very beginning I soon realized how extremely diversified the positions of the legal scholars as to these relations were. This book aims at being nothing more than a descriptive tool for both legal theoreticians and legal scholars in general with which to organize the various contemporary legal theories into different ideal-typical ways in order to portray the relations between law and politics. It absolutely does not pretend to be the final words on this issue; just the opposite, this work simply aims at proposing a descriptive starting point from which to begin to consider and critically evaluate contemporary legal theories and their ideas as to the issue on law and politics Before starting, I would like to thank Laura Carlson, Jes Bjarup, Brian Bix, and David Wood for reading the entirety of the manuscript and providing me with invaluable comments along the way. I am also deeply indebted to Bruce Anderson, Reza Banakar, Åke Frändberg, and Kaarlo Tuori for taking their time to read the manuscript and giving me insightful and valued comments. Roger Cotterrell, Fredric Korling, and Jori Munukka also gave me very helpful comments on earlier drafts of this work for which I am very grateful. Last, but not least, to Tiziana and Nicole, for always being there, to whom this book is dedicated. August 2007 Mauro Zamboni Table of Contents Introduction...........................................................................................................1 Chapter 1. A Methodology of Analysis and Certain Key-concepts...................3 1. A Methodology of Analysis...........................................................................3 1.1 Law and Politics (Static Aspect)..............................................................5 1.2 Law-making and Political Order (Dynamic Aspect)................................7 1.3 Legal Discipline and Political Material (Epistemological Aspect)..........8 2. Using an Ideal-typology for Legal Theories..................................................9 3. Limits of the Methodology..........................................................................12 4. Certain Key-concepts...................................................................................16 5. Conclusion...................................................................................................18 Chapter 2. The Autonomous Model...................................................................19 1. Autonomy of the Legal Phenomenon Towards Politics...............................19 2. The Rigidity of Law.....................................................................................22 2.1 Kelsen’s Law and Politics.....................................................................23 2.2 Hart and the Autonomy of Law.............................................................26 3. The Closed Law-making to the Political Order...........................................30 3.1 The Basic Norm and the Political Order...............................................32 3.2 Rule of Recognition and Law-making...................................................35 4. The Ideal of a “Pure” Legal Discipline........................................................39 4.1 Kelsen’s Pure Theory of Law................................................................41 4.2 Analytical Jurisprudence and the Political Material..............................44 5. Conclusion...................................................................................................46 Chapter 3. The Embedded Model......................................................................49 1. “Law is Politics”..........................................................................................49 2. A Flexible Law............................................................................................50 2.1 Finnis’ Reasonability and the Common Good.......................................51 2.2 Law and Politics for CLS Movement....................................................54 2.3 The Political for Law and Economics...................................................57 3. Law-making Means Politics-making...........................................................61 3.1 Law-making in the Natural Law Theory...............................................63 3.2 CLS and the Politicization of Legal Reasoning.....................................66 3.3 Law and Economics’ Law-making........................................................69 VIII Table of Contents 4. A Mixed Legal Discipline for a Mixed Law................................................72 4.1 Natural Law Theory and Political Material...........................................74 4.2 Legal Discipline According to CLS......................................................76 4.3 A Legal Discipline Mixed with Economics..........................................78 5. Conclusion...................................................................................................80 Chapter 4. The Intersecting Model....................................................................83 1. The “Modernity” of Legal Realisms............................................................84 2. Law and Politics..........................................................................................86 3. Partial Rigidity of the Law Towards Politics...............................................88 3.1 Politics, Law and American Legal Realism..........................................90 3.2 Scandinavian Legal Realism and the Partial Rigidity of Law...............95 4. The Open Law-making..............................................................................100 4.1 American Legal Realism and Law-making.........................................101 4.2 Law-making and the Scandinavian Legal Realism.............................106 5. The Legal Realistic Discipline...................................................................110 5.1 The Legal Discipline for American Legal Realism.............................113 5.2 Scandinavian Legal Realism and the Legal Discipline.......................119 6. Conclusion.................................................................................................123 Chapter 5. Contemporary Legal Theory and the Dilemma of Law..............125 1. “The” Law and Politics Debate?................................................................125 2. Common Points Among the Three Models................................................127 3. Dilemma of Law as a Dilemma for Contemporary Legal Theory?...........131 3.1 The Politicization of Contemporary Law............................................132 3.2 The Specialization of Contemporary Law...........................................134 3.3 Dilemma of Law and Contemporary Legal Theory............................136 4. Summary....................................................................................................139 5. What’s Next?.............................................................................................141 Bibliography.......................................................................................................147 Introduction The central position politics and the political discourse occupy in the modern legal theoretical discussion has been summarized as that: “Virtually all of modern jurisprudence rests on a distinction between legal reasoning and politics. Legal analysis and reasoning, on the one end, and political argument or philoso- phy, on the other, are thought to be recognizably distinct discursive practices.”1 However, the absence or presence of any general connection between law and pol- itics and how this has been mirrored in legal theory obviously is not simply a re- cent phenomenon. Niccolò Machiavelli and Thomas Hobbes stand out clearly for their early lucid and penetrating analyses of the law-politics issues in early modern times.2 From the very birth of the nation state, and particularly after its transforma- tion into the modern welfare state, attention has been specifically devoted to ex- plaining the interrelationship of the legal and political phenomena. This theoretical interest has its roots in the fact as pointed out by Jürgen Habermas, that the very “complex of law and political power characterizes the transition from societies or- ganized by kinship to those early societies already organized around states.”3 Closer to the present, Friedrich Carl von Savigny has a central position in par- ticular among legal scholars attempting to draw a conceptual line between law and politics. According to Savigny, the law elaborated by jurists is indeed formed by two interacting elements: the political element, i.e. the one connecting the law to the feelings of the social community, and the technical element, i.e. the one living its own separate life.4 Despite all this attention, the issue of positioning the law with respect to the po- litical realm is far from being settled around generally accepted propositions. Just the opposite is the case, as the distances between opinions as to issues of law and 1 Karl Klare, The Politics of Duncan Kennedy’s Critique, 22 CARDOZO L. REV. 1076 (2001). 2 See, e.g., MACHIAVELLI, THE PRINCE Ch. V, Ch. XII (J. M. Dent and Sons 1908) [reprint 1532]; and HOBBES, LEVIATHAN Ch. XXVI (Penguin Books 1985) [reprint 1660]. 3 HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 137 (1998). See also NIKLAS LUHMANN, LAW AS A SOCIAL SYSTEM 263 (2004). 4 For Savigny, however, the role played by political actors in the process of creating legal norms is starkly limited, in particular in comparison to the one played by legal scholars. See SAVIGNY, VOM BERUF UNSERER ZEIT FÜR GESETZGEBUNG UND RECHTSWISSEN- SCHAFT 12-14 (1814). 2 Introduction politics have increased considerably over time, in particular after the birth of wel- fare state and its dissemination in the Western part of the world.5 The objective of this work is to reconstruct and to classify, according to ideal- typical models, the different positions taken by the major contemporary legal theo- ries as to whether and how law relates to politics. This reconstruction and classifi- cation is done with the purpose of determining whether these major legal theories, though reaching different conclusions, have some common points of departure as to the “law and politics” issue. After presenting the methodological and terminological apparatus used in this work in Chapter One, the relationship between law and politics as based on this structure will be explored as considered and interpreted by the major contempo- rary schools or movements of legal theory. The approaches of the different legal theoretical streams are classified according to their responses to the following is- sues: How these contemporary legal scholars view the law in relation to politics (the static aspect); how the law-making relates to the political order (the dynamic aspect); and the degree of the relation of the legal discipline to the political mate- rial (the epistemological aspect). Three ideal-typical models are proposed based on the answers given to these questions by the legal theories: the autonomous model (Chapter Two), the embed- ded model (Chapter Three), and the intersecting model (Chapter Four). These pro- vide an ideal-typical classification of the different ways the legal and political phenomena’s relations work for the various contemporary legal theories. According to the autonomous model, the relations between law and politics are depicted as between two connected but still autonomous phenomena. Legal posi- tivism (as espoused by Hans Kelsen) and Herbert L. A. Hart’s analytical jurispru- dence will be ascribed to this ideal-typical model. The “embedded model” is the ideal-type better representing the law-politics relations as portrayed by movements such as Critical Legal Studies (hereinafter “CLS”), Law and Economics, and John Finnis’ natural law theory. These theories are viewed as depicting the law-politics relations as one (law) embedded into the other (politics). In Chapter Four, the American and Scandinavian legal realisms are presented as representatives of a third ideal-typical model, designated as “intersecting,” as law and politics within these theories are two intersecting phenomena. Chapter Five ends with a brief dis- cussion as to how these three models, and the legal theories encompassed therein, share a common ground. Each mirrors the peculiar situation of modern law: law and politics tend to keep the features of being two different phenomena as well as of presenting regions of interaction, although with differences as to extent and in- tensity. 5 See, e.g., Neil Duxbury, The Theory and History of American Law and Politics, 13 OX- FORD J. LEGAL STUD. 249 (1993): “It seems, during this century, that there has been no question more troubling to American academic lawyers than that of whether or not judges are ever entitled to adjudicate politically.” Chapter 1. A Methodology of Analysis and Certain Key-concepts As the title indicates, this work is an investigation of the positions as to the rela- tions between law and politics as taken by contemporary legal theories. Before commencing the actual investigation, a clarification of the methodology adopted here for tackling and systematizing the positions of contemporary legal theories on the issue of law and politics relations needs to be provided. This necessity stems in particular from the fact that it is quite alien in legal theory to use, as done in this work, an ideal-type methodology to penetrate the complex reality represented by more than 100 years of legal-theoretical discussions as to the issue of the law and politics. As with any method employed for categorization, the methodology used in this work also has its limits. These are specifically noted here, in particular those limi- tations resulting from using ideal-typical models to group apparently very differ- ent legal theories. Moreover, the meanings of different key-concepts (e.g. politics, political order) used throughout the work are specified below. 1. A Methodology of Analysis The law currently is subjected to a system of forces towing it in opposite direc- tions, affecting the very nature of the legal phenomenon. This specific feature of contemporary law is further discussed in Chapter Five, but for the moment, it is sufficient to point out how that one of these forces pulls the law into the hands of politicians (politicization of the law) while the other pulls the law away from the political world instead due to the law becoming more and more complex and spe- cialized (specialization of the law).1 The very fact that these contemporary tensions stretch the law towards and, at the same time, away from politics, affects the work of legal scholars.2 As pointed 1 As to how these forces concretely operate, for instance, with respect to constitutional law, see Christoph Möllers, The politics of law and the law of politics: two constitutional traditions in Europe, in DEVELOPING A CONSTITUTION FOR EUROPE 129-139 (E. O. Erik- sen et al. eds., 2004). 2 See, e.g., Joseph Raz, Disagreement in Politics, 43 AM. J. JURIS. 26 (1998); and KAARLO TUORI, CRITICAL LEGAL POSITIVISM 283 (2002) and his idea of “dual citizenship of legal science.” See also HABERMAS, BETWEEN FACTS AND NORMS, supra at 388-390. 4 Chapter 1. A Methodology of Analysis and Certain Key-concepts out by Duxbury, “the political nature of law represents a fundamental – if not the fundamental – problem of modern jurisprudence.”3 The focus of this work is the actual investigation and mapping out of the main contemporary legal theories according to the answers they provide as to whether and how legal and political phenomena relate. It is necessary here, however, to ex- amine the methodology used in tackling the difficult and complex issue of how the different contemporary legal theories have positioned themselves in the debate concerning the relations between law and politics. The perspective investigated in establishing a divisive line among the different theories is internal. “Internal” in this work has a very broad meaning, primarily taking into consideration how legal scholars think (i.e. that which is demonstrated in their theoretical constructions) law is related to politics. Using Hartian termi- nology freely, one could claim that the criterion here is “the internal perspective” taking into consideration the phenomenon of how legal theories perceive the law- politics relations from the point of view of an internal observer (the legal theories themselves) instead of an external one.4 This choice in favor of an analysis from an internal perspective, for example, permits the exclusion of a more sociological approach as to considering the ideas or theoretical constructions of legal scholars as products of certain political and social environments. The question of why legal scholars think in terms of law and politics (i.e. the sociological, political or moral background they have) then is not addressed here.5 The adoption of an internal perspective however does not imply the exclusion from the analysis of the contemporary legal theories embracing a sociological or quasi-sociological position (i.e. the one of the external observer) as to the relation- ship between law and politics (e.g. certain representatives of the legal realisms). The sociological contributions such theories give to the debate as to law and poli- tics, i.e. in pointing out the law in terms of human behaviors regulated by legal norms, can be measured as one of the internal point of views legal scholars have of the phenomenon. In other words, this work retains its normative perspective as it investigates quasi-sociological legal theories and the external observer’s per- spective of the law from the inside, but without necessarily sharing the perspective as to the law as a sociological phenomenon.6 3 Duxbury, The Theory and History of American Law and Politics, supra at 270. 4 See HERBERT L. A. HART, THE CONCEPT OF LAW 55-56 (1961). See also Stephen R. Per- ry, Hart on Social Rules and the Foundations of Law: Liberating the Internal Point of View, 75 FORDHAM L. REV. 1171-1775 (2006). 5 See Max Weber, Some Categories of Interpretative Sociology, 22 SOC. Q. 158 (1981). An example of how the sociology of law examines legal ideas as the product of a certain environment can be found in Roger Cotterrell’s book, THE POLITICS OF JURISPRUDENCE: A CRITICAL INTRODUCTION TO LEGAL PHILOSOPHY 13-19 (2nd ed., 2003). Consequently, the effects on the legal culture by the stratification among the different legal actors are also ignored in this work. See, e.g., WILLIAM M. EVAN, SOCIAL STRUCTURE AND LAW. THEORETICAL AND EMPIRICAL PERSPECTIVES 79-82 (1990); and COTTERRELL, THE SOCIO- LOGY OF LAW: AN INTRODUCTION 184-187 (2nd ed., 1992). 6 A similar operation, but in the opposite manner, is conducted by Cotterrell. He ap- proaches and exhibits from a sociological perspective not only the quasi-sociological le-