Version: v1, Published online: 1998
Retrieved June 05, 2020, from https://www.rep.routledge.com/articles/overview/law-philosophy-of/v-1
5. Law as politics
However one takes one’s stand on will against reason, or on natural law against legal positivism, most of the theoretical approaches so far considered give some way of accounting for the independent existence of law as a distinct social phenomenon. Law’s independence, at least when underpinned by an independent judiciary, has been held to promise the possibility of effective control over arbitrary state action while at the same time guaranteeing at least the justice of formal equality to citizens and the degree of predictability allegedly desired by modern rational subjects. Here we have the ‘rule of law’ ideal that demands government under the forms of law and law in the form of clearly identifiable rules (see Rule of law (Rechtsstaat); compare Dicey, A.V.; Fuller, L.L.). Yet the mere existence of some body of sacred or secular texts embodying rules of law is not enough for any socially realistic account of law, or for any politically persuasive vision of the rule of law (see Social theory and law; compare Millar, J; Renner, K.). The statute book is not self-applying or self-interpreting (compare Wróblewski, J.). To secure the rule of law it is necessary to have prospective rules published to all. But, as L.L. Fuller points out, it is necessary that they be interpreted in a reasonable and purposive way, and faithfully carried into action by the officials of the state whose rules they are. How is this to be secured?
Many schools of thought, chief among them the realists (see Legal realism) in Europe (see Olivecrona, K.; Ross, A.) and in the USA (see Holmes, O.W., Jr; Llewellyn, K.N.; Frank, J.), have stressed the widely discretionary character of legal interpretation, both in relation to the general rules of the law, and in relation to the categorization of fact-situations as subsumable under the law for one purpose or another. On inspection, ‘facts’ can turn out as elusive as ‘laws’, and the study of legal processes of proof assumes a certain urgency (see Legal evidence and inference). All in all, it is a serious and difficult question to discern what, if anything, can render decisions reasonably ‘reckonable’ given the broad discretion vested in those who interpret the law.
One form of response has been to find that law is reckonable not on the basis of the official rules and standard doctrine, but rather on the basis of the ‘situation sense’ of a judiciary with a common understanding of political and policy objectives underlying law. These insights of the ‘realists’ have been carried forward more boldly by contemporary feminist jurisprudence, one version of which finds social prejudice directing law through the biases of judges. Another version locates an inner masculinity in the legal rules themselves, even and especially at their most abstract; the asserted values of objectivity and impersonality ultimately come under question as presumptions of doubtful desirability (see Feminist jurisprudence).
Within more mainstream jurisprudence the developed response to realism has been to work out extended theories of the rule of law, acknowledging that law is more than positive rules but arguing for the existence of other mechanisms within law controlling the role of substantive elements in decision-making (see Legal reasoning and interpretation; Causation in the law). Such responses find a certain coherence within law, but by contrast the more developed critical (including critical feminist) approaches argue that there are central fractures and fault lines within the law, reflecting ultimately competing political visions of human association, often summed up as individualism versus community-values (see Critical Legal Studies). Ronald Dworkin’s argument for coherence and integrity in law evokes the idea of an interpretive community, but seems too readily to assume that for any actual legal order there can be found a single consensual interpretive project, even in principle (see Dworkin, R.; compare Legal hermeneutics).
Taking an overall view, the project of establishing the rule of law as an independent base for the critique and control of state action is put in serious doubt, since interpretation is through-and-through political; and appeals to the rule of law can themselves be moves in a political game, expressions of ideology rather than of higher values. It may be that in the end legal philosophy is faced, today as at its beginnings, with this dilemma: either legal reasoning and moral reasoning have that kind of in-principle objectivity proposed by natural law theory in its rationalist versions, or the theatre of law is simply a theatre presenting endlessly the power-play of rival wills and visions of the good. Many have sought a third way, not yet with acknowledged success.
Brown, Beverley and Neil MacCormick. Law as politics. Law, philosophy of, 1998, doi:10.4324/9780415249126-T001-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/overview/law-philosophy-of/v-1/sections/law-as-politics.
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