Abstract
A brief analysis of the mapping out, as begun in Chapter Two, of the different contemporary legal theories and their positions regarding the question of law and politics is presented in this final chapter. Whether there is only a unique platform where the debate concerning law and politics takes place or whether different theories actually operate on different levels when speaking of law and politics issues will be first addressed.
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References
See, e.g., Savigny, System of the Modern Roman Law 31–40 (1979) [reprint 1867]; and James Coolidge Carter, The Ideal and the Actual in the Law, 24 Am. L. Rev. 756–759, 772–775. See also Mathias Reiman, The Historical School against Codification: Savigny, Carter, and the Defeat of the New York Civil Code, 37 Am. J. Comp. L. 97–107 (1989).
See, e.g., Richard L. Abel, Ideology and Community in the First Wave of Critical Legal Studies. By Richard W. Bauman, 30 J. L. & Soc’y 605 (2003).
Bix, Jurisprudence, supra at 33 [italics added].
As pointed out by Cotterrell, “Austin’s idea of law as an expression of political power has been replaced in both [Kelsen and Hart’s] theories with the idea of law as a relatively self-contained system of rules or norms.” Cotterrell, The Politics of Jurisprudence, supra at 106. But see Posner, The Problems of Jurisprudence, supra at 24: “Most though not all legal positivists are skeptical about the claim that law is objective and autonomous.”
As to the overlapping among legal realism and critical legal theories, see, e.g., Note, ‘Round and ‘Round the Bramble Bush, supra at 1676–1679; and James Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133 U. Pa. L. Rev. 691–708 (1985).
See, e.g., Summers, Instrumentalism and American Legal Theory, supra at 20, 176–190. Summers points out how legal positivistic patterns are clearly traceable in the work of some of the American legal realists, although legal realism, and pragmatic instrumentalism in general, remain an alternative way to conceive the legal phenomenon. See also Waldron, “Transcendental Nonsense” and System of Law, 100 Col. L. Rev. 31 (2000); Leiter, Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis, supra at 355–356; and Leiter, Legal Realism and Legal Positivism Reconsidered, supra at 300–301. See also id. at 271–274 (where the theoretical relations between CLS and American legal realism are devaluated).
See Alan Hunt, The Politics of Law and the Law of Politics, in Law and Power: Critical And Socio-Legal Essays 51–53 (K. Tuori et. al. eds., 1997), speaking of a “law is politics” thesis.
See, e.g., Llewellyn, On Reading and Using the Newer Jurisprudence, supra at 593–594 and his idea of the judges as not “free to be arbitrary” but nevertheless “free to some real degree to be just and wise” [italics in the original]. See also Olivecrona, Law as Fact (1971), supra at 111: “The black figures on paper representing letters remain the same; but the ideas evoked in the minds of readers are conditioned by the vastly different situations at different times.”
See, e.g., Raz, On The Autonomy of Legal Reasoning, supra at 324. Raz embraces a “weak thesis” of the autonomy of legal reasoning from the moral reasoning, i.e. an autonomy operating only when “morality runs out.”
See, e.g., Kelsen, General Theory of Law and State, supra at Chapter 4; or Kelsen, Foundations of Democracy, Lxvi Ethics 86–94 (1955). See also Adolf Merkl, Hans Kelsen als Verfassungspolitiker, 60 Juristische Blätter 385–387 (1931).
Ross, On Law and Justice, supra at 329. See, e.g., Kelsen, Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution, 4 J. Politics 184–188 (1942).
See, e.g., Klare, The Politics of Duncan Kennedy’s Critique, supra at 1078–1079; Kimberlé Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1381–1387 (1988), where the author proposes a “pragmatic use” of legal rights; and Lyons, Justification and Judicial Responsibility, 72 Cal. L. Rev. 188 (1984), admitting that the insertion of values into the legal world does not happen per se but somehow has to be “required by law” itself.
See, e.g., Wendy Brown & Janet Halley, Introduction, in Left Legalism/Left Critique 33 (W. Brown & J. Halley eds., 2002), in particular as to the role a critical legal theory can have in shaping the political agenda.
See, e.g., Ronald J. Colombo, Buy, Sell, or Hold? Analyst Fraud from Economic and Natural Law Perspectives, 07-7 Hofstra U. Legal Stud. Res. Papers 40–45, 58–61 (2007).
See, e.g., Edward L. Rubin, The Practice and Discourse of Legal Scholarship, 86 Mich. L. Rev. 1862 (1988), where the author points out the common agenda of a (radical) transformative project for both CLS and Law and Economics; and Charles K. Rowley, Wealth Maximization in Normative Law and Economics: A Social Choice Analysis, 6 Geo. Mason L. Rev. 995 (1998).
See Ward, Law, Philosophy And National Socialism, supra at 11–13. See also Fuller, The Morality of Law, supra at 202–204. Compare Varga, Logic of Law and Judicial Activity: A Gap Between Ideals, Reality and Future Perspectives, in Varga, Law And Philosophy, supra at 272 (speaking of Vyschinsky’s “socialist normativism”).
See Gordon, Critical Legal Histories, supra at 101. See also Gordon, ‘Of Law and the River,’ and of Nihilism and Academic Freedom, 35 J. Legal Educ. 14 (1985); and Luhmann, Law as a Social System, supra at 364. See, e.g., Kennedy’s appeal to judges to transform into law (with their decisions) the value of substantive justice, Form and Substance in Private Law Adjudication, supra at 1777. But see Hutchinson & Monahan, Law, Politics, and the Critical Legal Scholars, supra at 243–244.
Cotterrell, The Politics of Jurisprudence, supra at 18.
See Friedman, Introduction, 4 Theoretical Inquiries in Law 446 (2003). For a theoretical debate on this tendency of the increasing “juridification” of the community’s life under the Welfare state, see also Habermas, Law as Medium and Law as Institution, in Dilemmas of Law in the Welfare State, supra at 203–220; and Teubner, Juridification-Concepts, Aspects, Limits, Solutions, in Juridification of Social Spheres: A Comparative Analysis in the Areas of Labor, Corporate, Anti-Trust and Social Welfare 3–4 (G. Teubner ed., 1987). For the more practical impacts of juridification on different areas of law, see, e.g., Eric W. Orts, Reflexive Environmental Law, 98 Nw. U. L. Rev. 1227–1320 (1995); or Renèe Römkens, Law as Trojan Horse: Unintended Consequences of Right-Bases Interventions to Support Battered Women, 13 Yale J. L. & Feminism 265–291 (2001).
Teubner, The Transformation of Law in the Welfare State, in Dilemmas of Law in the Welfare State, supra at 6–7. See also Friedman, Legal Culture and the Welfare State, in Dilemmas of Law in the Welfare State, supra at 13–27; and Teubner, Law as an Autopoietic System 65 (Z. Bankowski ed., 1993).
See, e.g., Philippe Nonet & Philip Selznick, Law and Society in Transition: Toward Responsive Law 95 (1978); or Luhmann, Law as a Social System, supra at Ch. 9, though here the author takes into consideration not only the merging of law into the political discourse, but also its overlapping with (and dependency from) the discourse developed by scientific experts and knowledge.
See Weber, Economy and Society, supra at 654–658.
See Teubner, The King’s Many Bodies: The Self-Deconstruction of Law’s Hierarchy, 31 Law & Soc. Rev. 769–770 (1997).
Luhmann, A Sociological Theory of Law, supra at 224 [italics in the text].
See Posner, The Decline of Law as an Autonomous Discipline: 1962–1987, 100 Harv. L. Rev. 766–767, 773–774 (1987); and, as an actual example of such flexibility, Robert Glicksman & Christopher H. Schroeder, EPA and the Courts: Twenty Years of Law and Politics, 54 Law & Contemp. Probs. 250 (1991).
One example is the use of Roman law in 13–14th centuries by jurists loyal to the emperor and other secular authorities as against the legal foundation of the pope’s authority. See Sabine, A History of Political Theory, supra at 277–280; and Quentin Skinner, The Foundations of Modern Political Thought. Vol. One: The Renaissance 12–22 (1978).
Weber, Economy and Society, supra at 37 [italics in the text]. As a result, “ [l]aw has now come to be recognised as an agency of power; an instrument of government.” Cotterrell, The Sociology of Law: An Introduction 44 (2nd ed., 1992). See also Habermas, Between Facts and Norms, supra at 171.
“Every law... in order to be valid, necessarily ultimately requires a prior political decision, taken by an existing political power or authority. Every existing political unit finds its value and its ‘justification of being’ not in the justice or in the fitness into norms, but in its own existence. That which exists as a political entity is, from a legal point of view, worthy of existing.” Carl Schmitt, Verfassungslehre 22 (1928) [translated from the German by this author].
David L. Anderson, When Restraint Requires Activism: Partisan Gerrymandering and the Status Quo Ante, 42 Sta. L. Rev. 1570 (1990). For Robert H. Bork, The Tempting of America: The Political Seduction of the Law 3 (1990), the politicization of the law occurs when the law becomes “a tame instrument of a particular political thrust.” See also, for a more articulated definition of the term “activism,” Tushnet, Comment on Cox, 47 Md. L. Rev. 147–153 (1987); and Greg Jones, Proper Judicial Activism, 14 Regent U. L. Rev. 142–145 (2002).
As strikingly expressed by Duxbury, judicial activism implies that “for every Brown there is likely to be a Lochner.” Duxbury, The Theory and History of American Law and Politics, supra at 252 [italics in the text]. See also Frank H. Easterbrook, Do Liberals and Conservatives Differ in Judicial Activism?, 73 U. Colo. L. Rev. 1405 (2002). But see John Ferejohn, Judicializing Politics, Politicizing Law, 65 Law & Contemp. Probs. 49, 55–57 (2002).
Cotterrell, Law’s Community, supra at 12. See Summers, Law as a Type of “Machine” Technology, in Summers, Essays in Legal Theory, supra at 49, pointing out the autonomous character of the law and its capacity to not only “escape” from politics but also to somehow dominate and direct it. See also Raz, The Inner Logic of Law, in Raz, Ethics in the Public Domain, supra at 236–237, on the judicial law-making powers as ultimately directed by the law itself, i.e. the law as determining the mechanisms of its own creation.
Weber, Economy and Society, supra at 895.
See, e.g., Luhmann, Law as a Social System, supra at 366, 411–412; and Habermas, Between Facts and Norms, supra at 430.
See, e.g., Teubner, The King’s Many Bodies, supra at 770: “Technical standardization and professional self-regulation have developed similar tendencies toward worldwide coordination with minimal intervention of official international politics.”
See, e.g., Alan Watson, Roman Law & Comparative Law 104 (1991).
See Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings L. J. 835–836 (1987); Hunt, The Politics of Law and the Law of Politics, supra at 82–83; Luhmann, Law as a Social System, supra at 421–422; and Luhmann, Closure and Openness, supra at 346. See, e.g., Teubner, The King’s Many Bodies, supra at 783, where the author points out the “self-destruction of political power” as somehow both cause and effect of the parallel “self destruction of law’ hierarchy.”
See, e.g., Robert C. Ellickson, Taming Leviathan: Will the Centralizing Tide of the Twentieth Century Continue into the Twenty-first?, 74 So. Cal. L. Rev. 101 (2000); Andrew D. Abbot, The System of Professions: An Essay on the Division of Expert Labor 248–254 (1988); and Edward Vink & Edward Veitch, Curricular Reform in Canada, 28 J. Legal Ed. 438–445 (1977).
See Luhmann, A Sociological Theory of Law, supra at 159–160.
See, e.g., Weber, Economy and Society, supra at 775–776, 789–792, 856.
See Teubner, How the Law Thinks: Toward a Constructivist Epistemology of Law, 23 L. & Soc’y Rev. 745 (1989). In particular, Teubner points out how contemporary legal phenomenon is characterized by the simultaneity of two communicative events, internal (because the legal discourse has its inner logic) and external (because legal discourse is always part of a larger game). The Marxist sociology of law has resolved this tension by denying the existence of a conflict between systems, the law being only a part of the general social system. See, e.g., Isaac D. Balbus, Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law, 11 L. & Soc’y Rev. 585 (1977). Compare Varga, Law as a Social Issue, in Varga, Law and Philosophy, supra at 462; and Luhmann, Law as a Social System, supra at 422.
See Freeman, Lloyd’s Introduction to Jurisprudence, supra at 1047. But see Raz, Government by Consent, in Raz, Ethics on the Public Domain, supra at 339–340.
See, e.g., Gordon, A New Role For Lawyers? The Corporate Counselor after Enron, 35 Conn. L. Rev. 1211 (2003); and Mary Ruggie, The Paradox of Liberal Intervention: Health Policy and the American Welfare State, 97 Am. J. Soc. 927–940 (1992).
Luhmann, The Self-Reproduction of Law and its Limits, in Dilemmas of Law in the Welfare State, supra at 120–121 [italics in the text]. See also Luhmann, Law as a Social System, supra at 272. Similarly, Posner states: “[e]ven a decision to make law more political... is a decision within law-a decision about the kind of law the dominant groups in society want-rather than a decision to shrink law domain.” Posner, The Problems of Jurisprudence, supra at 225–226.
Cotterrell, Law’s Community, supra at 299. See also Summers, Law as a Type of “Machine” Technology, supra at 52.
See Cotterrell, Law’s Community, p. 8–9.
See Hunt, The Politics of Law and the Law of Politics, supra at 51–56. According to him, there is a “common tendency to construct some taken-for-granted opposition or displacement between law and politics,” id. at 56.
See, e.g., Summers, My Philosophy of Law, in Summers, Essays in Legal Theory 99–108 (2000). In particular, Summers points out the central position the formal features of law play in the process of transforming various values during the creation (and implementation) of a statute.
See Cotterrell, Law’s Community, supra at 165–166, 317–320, in particular referring to Franz Neumann’s book ‘The Rule of Law.’ This dyadic way of solving the law and politics dilemma can also be seen from a different perspective: by looking to whether the legal theories focus more on the normative functions or on the social functions of law. See Raz, On The Functions of Law, in Oxford Essays in Jurisprudence (Second Series), supra at 280–288.
See Cotterrell, Why Must Legal Ideas Be Interpreted Sociologically? 25 J. L. & Soc’y 181 (1998).
Bourdieu, The Force of Law, supra at 841. Bourdieu more generally recognizes the simultaneous operation of these two factors as constitutive of the juridical field. See id. at 816.
See Cotterrell, Law’s Community, supra at 277–278, 319. See, e.g., Habermas, Between Facts and Norms, supra at 152. Compare Tuori, Self-Description And Ex ternal Description Of The Law, 2 No Foundations: J. Extreme Legal Positivism 37–38 (2006).
Cotterrell, Law’s Community, supra at 319 [italics in the text]. See also the basic idea behind the “reflexive law” as described by Teubner, Substantive and Reflexive Elements in Modern Law, 17 L. & Soc’y Rev. 245 (1983).
Hart, Postscript, supra at 239. See also Hart, Problems of the Philosophy of Law, supra at 103–105; Maccormick, H. L. A. Hart, supra at 37–40; Raz, Two views of the Nature of the Theory of Law, supra at 30–31 (as to the aim of jurisprudence in general to provide “interpretative explanations”); and, more or less reaching the same conclusion, Summers, On Identifying and Reconstructing a General Legal Theory, supra at 1024–1025.
See, e.g., Maureen Cain, The Symbol Traders, in Lawyers in a Postmodern World: Translation and Transgression 15–48 (M. Cain & C. Harrington eds., 1994). But see, Dworkin, Law’s Empire, supra at 32, claiming that these types of theories (e.g. Hart’s idea of internal perspective as characterizing legal actors) falsely assumes a total agreement among legal actors as to what the law is and is not.
See Weber, Economy and Society, supra at 654–658.
See Tuori, Critical Legal Positivism, supra at 36–39.
See, e.g., Ehrlich & Posner, An Economic Analysis of Legal Rulemaking, supra at 277–280, as to the legislators; Horwitz, The Transformation of American Law 1870–1960, supra at 271, as to the legal scholars; or Frank, Courts on Trial. Myth and Reality in American Justice 147–149 (1950), as to the judges. See also Steven Vago, Law and Society 139 (6th ed. 2000), as to the overrepresentation of lawyers in the political law-making authorities.
Maccormick, H. L. A. Hart, supra at 126. See, e.g., Bojan Bugaric, Courts As Policy-Makers: Lessons From Transition, 42 Harv. Int’l L. J. 257–269, 277–279 (2001), where the author critically exposes the operating as political actors of many constitutional courts in Europe as one of the elements characterizing the globalization of law.
See, e.g., Reza Banakar, Merging Law and Sociology: Beyond the Dichotomies in Socio-Legal Research Ch. 2 (2003). See also Cotterrell, The Politics of Jurisprudence, supra at 96–98.
See generally Timothy A. O. Endicott, Law and Language, in The Oxford Handbook of Jurisprudence and Philosophy of Law 935–968 (J. Coleman & S. Shapiro eds., 2002). See also James Boyd White, Law as Language: Reading Law and Reading Lit erature, 60 Texas L. Rev. 415 (1982). See, e.g., Schauer, An Essay on Constitutional Language, 29 Ucla L. Rev. 797 n. 1 (1982); generally Finnis, Natural Law and Legal Reasoning, in Natural Law Theory: Contemporary Essays (R. P. George ed., 1992), 134–157; Hart, Definition and Theory in Jurisprudence, upra at 26–28; and Dworkin, Law’s Empire, supra at 104–108.
Peter Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric, And Legal Analysis 2 (1987).
For example, Habermas maintains the necessity of moving from the “logicosemantic” idea of legal discourse to a more “pragmatic conception” of it. See Habermas, Between Facts and Norms, supra 225–228.
See Tuori, Self-Description And External Description Of The Law, supra at 27.
See Cotterrell, Law’s Community, supra at 275–278. See also Mary Ann Glendon, Abortion and Divorce in Western Law 8–9 (1987).
Bruce A. Williams & Albert R. Matheny, Democracy, Dialogue, and Environmental Disputes: The Contested Languages of Social Regulation 29 (1995).
See Habermas, Between Facts and Norms, supra at 226–229.
See Goodrich, Legal Discourse, supra at 76–81. See also Moore, The Need for a Theory of Legal Theories, supra at 1003–1004, in particular point 3.
Goodrich, Rhetoric as Jurisprudence: An Introduction to the Politics of Legal Language, 4 Oxford J. Legal Stud. 90 (1984). See also John S. Bell, Policy Arguments in Judicial Decisions 270 (1983); and Twining, Globalisation and Legal Theory 12 (2000), stating that “one of the main jobs of jurisprudence is the critical exploration and evaluation of prevailing assumptions underlying legal discourse.”
See Dworkin, Law’s Empire, supra at 4, 11.
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(2008). Contemporary Legal Theory and the Dilemma of Law. In: Law and Politics. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-73926-5_6
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