by Joseph Markus
The troubled confluence of law and politics has been in the news this week and last, with the US Supreme Court holding three days of hearings over whether or not to annul ‘Obamacare’.
In some respects, the law is an innately conservative device, but in many others, particularly under the rubric of human rights, it can embody the potential for social change, a radical potency. The common law process—of adjudication and argumentation—bears this out, allowing the law to gradually shift.
When legislation is constructed, the law can shift to a much greater degree, and I think this is what Sarah Walker was mainly talking about in her recent post on gay marriage. In her piece she surveyed the question of whether society follows law, or vice versa. Something she didn’t address was legal argument in the courts and elsewhere. This is my focus.
The interesting part of the question, at least for me, was the way it sought to separate ‘the law’ from ‘the society’. In truth I don’t think they can ever really be coherently pulled apart. There must, in my view, be some synergism between those entities.
As partial illustration: the old maxim once applied to war by Carl von Clausewitz, that “war is the continuation of Politik by other means”, can equally apply to the idea of law.
Remember, first, that law is a vocabulary of considerable power and that, much as with Foucault’s exploration of the genealogy of the sciences, to ‘speak’ in that highly-specialised language is to be able to wield that power.
To provide an example I can take up one more word used by Sarah. That word is ‘jurisprudence’. The word commonly denotes the philosophy of law, and it represents a taxonomy which seems to suggest that the process of thinking about law is one that is separate from other philosophies. It carries with it its own concepts and authors, all under its own name. This is in contrast to the majority of other social sciences which demonstrate how people interact with others and with rules. The difference in treatment indicates that law is an elevated discipline; it is an idea which carries with it much history and tradition, and it is an idea that encourages adherents to drop critical scrutiny (‘the law is the law’).
The effect of this is rather simple. Jurisprudence denies to any external philosophy the power of critique: law is portrayed as a hopelessly introverted and self-supporting discipline.
This is the ‘war’ and it is what lawyers do par excellence: that is, the presentation of highly-formalised arguments, wrapped in axiomatic, powerful, and ‘legal’ reasoning.
One obvious problem with this, however, is that ‘the law’ is never a strictly self-contained web of meaning. It must seek input from other sources as, necessarily, it is both semantically and conceptually incomplete (though the reach of this insight varies according to the law in question: a human right is usually more indeterminate than, for instance, a tax statute). Take, as an example, the concept and word-grouping ‘private life’: quite how far one takes the meaning of that phrase is debatable, but it seems correct to say that matters other than law—we can call them, here, ‘politics’ or ‘policy’—will come into that debate.
To put it another way: if law were based entirely on a self-contained, a priori net of postulates, as a matter of clear logic it wouldn’t be possible for that law ever to change to meet new or un-envisaged sets of circumstances (to adapt), or to change to reflect altered currents of social thought (to grow). The fact that it does adapt and grow is evidence that something other than law is at play in at least a few cases. Admittedly a Parliament can change the law, but this won’t affect the indeterminacy problem. (Remember, too, that EU and international/European human rights laws constrain and, at times, shape debates within Parliament; so the relevance of legal argument can extend even this far.)
Here, then, is the ‘Politik by other means’.
The argument is not a normative, but rather a descriptive, one. This is how law must work; as such, it should be always be assessed in a socio-political frame. I’m not saying anything yet about whether this is a good or bad thing (the subject of many more posts). It tends to be the case, as with all things, that law simultaneously can be the subject of abuse and of utopian vision (and, similarly, dreams can always turn sour). From ideology to utopia—and everything inbetween—the key is how it is used, and this (contrary to entry-level ‘ethics’ classes given to trainee lawyers) is the unique responsibility of the lawyer.