The term political law refers to a growing branch of the study of the state and of governing that (1) compiles all the legal and other types of instruments dealing with the structure of the state and the processes of governing besides the constitution itself; (2) examines the interactions among law, public policy and administration, and politics; and (3) investigates the influence and impact of law on the other forces at work in democratic governing. Political law transcends the intellectual boundary between law and political science and draws on both social disciplines. In a related context, political law describes the area of practice of some law firms addressing legal matters pertaining to statecraft.
Political Law Relationship to Other Fields
Political law is intrinsically linked, first, to constitutional law and administrative law. In another direction, political law clearly ties to political science and to public policy and administration. While it is related to these fields, it is conceived of as a self-standing, interdisciplinary, and comparative field of study of democratic governing—distinct from each of these sources.
Democracy is more than a system in which citizens elect their government through free and fair elections; rather, it is best understood as an entire regime of government in which public institutions are established and function on the basis of rules for the public interest. The most fundamental type of such rules is the law; thus, the cornerstone of democratic governing is constitutionalism and the rule of law. In democracy, every component of governing includes a legal aspect and law is an indispensable factor. In a modern state however, laws are not the only types of rules. Other rules emanate from public policy and administration; these are often based on the use of authority or discretion allowed by law. Yet other rules arise from politics and deal with the use of power allowed by law. The various types of rules are set out in instruments of governing and constantly interact.
Law, public policy and administration, and political science or politics all look at the state and at governing from within their respective fields. The essence of political law is that it analyzes the relationship among legality, discretion, and power through the use of the governing instruments emanating from each. Following developments over the last few decades, a number of academics have addressed the trends of the increasing legalization and judicialization of politics and the politicization of law, but most have continued to view law and politics as separate and parallel societal forces. Because the study of law and politics no longer seems adequate to address the social phenomenon, some scholars, including Canadian Gregory Tardi and American David H. Rosenbloom, have proposed political law as a new manner to look at the legal aspects of the state and governing. As governing comprises the selection and use of legal, policy, and political instruments, the approach now taken in political law thus goes beyond treatments of law and politics. Thus, a unified, integrated perspective on statecraft contributes to knowledge of the democratic state. The aim of political law is analysis leading to better understanding of the rule of law and of the role of law in democratic governing; it is not to propose a particular ideology.
The need for political law arises, first, from the incomplete vision that law, public administration, and political science each offer for statecraft. It is also meant, specifically, to address the difficulty in understanding democratic governing, arising from politically motivated challenges to the rule of law. One of the fundamental issues at stake is that democracy is flawed if it relies on political will to the detriment of the rule of law. In the context of such discourse, political law aims to shed light on the importance of the legal aspects of government and governing.
Political Law Compilation
The first necessary step in the study of political law is establishing its contents and parameters. While the traditional subject matter of constitutional law is well-known, the survey of legal instruments, other than the constitution itself, that deal with governing is far less common. In a modern state, the plethora of such instruments consistently increases in number and complexity. Study, analysis, and comprehension of the law of democratic governing requires not only that the relevant laws, regulations, orders, and jurisprudence be catalogued, but also that they are ordered in a way that is useful for looking at the structure and functioning of the state.
The legal elements of democratic governing can thus be enumerated in the following broad categories so as to subsequently enable study of their interaction, influence, and impact:
- defining the legal components of democracy;
- creating a legal framework for the electoral system and process;
- balancing law and politics in the legislature as a branch of government and in the legislative process;
- applying the general law to legislative institutions, and integrating the general law and the legal rules specific to legislative institutions;
- choosing legal or other instruments for governing;
- accommodating the law with other types of instruments to manage the executive branch of government;
- enforcing the law through legal means of electoral, political, or policy promises;
- determining whether and when the use of judicial process, litigation, prosecution, or judicial inquiry is warranted and appropriate;
- relative weighting of legal, policy, and political influences in staffing the judicial branch of government, in adjudicating judicial disputes public governing issues, and in prosecutions involving political issues;
- combining law, public policy and administration, and politics in the constant reform of government institutions and process.
This method of classification deliberately varies from the traditional categorization of subject matters (e.g., torts or obligations, contracts, property and civil status) in the study of law and is more suitably adapted for an interdisciplinary study of the state. These categories are thus more closely akin to a political science perspective on legislative, executive, and judicial functions of the state.
Bearing in mind that the legal instruments are not the only authoritative ones setting the norms, terms, and conditions of governing, an even more comprehensive survey could, to the extent possible, also comprise policy and administrative instruments such as governmental institutions’ policies, guidelines, directives, and programs; as well as political instruments, such as government’s annual or sessional declarations of intent; the budget; legislative branch committees or governmental commissions’ recommendations; and political parties’ constitutions, platforms, and resolutions.
Compilation enables comparison and contrast of the characteristics proper to each type of instrument of governance. The ground for such comparison is the binding nature of each type of instrument. As their title indicates, legal instruments have the force of law and are therefore inherently binding. They entail necessary compliance, enforcement, and sanction in case of breach. Most important, legal instruments apply generally, as they impact the governors and the governed alike.
By contrast, policy and administrative instruments apply more particularly. Public institutions, rather than the legislature, determine these rules, designed to affect their own internal functioning and conduct. They are meant to be binding, but on a different basis, with different methods of compliance, enforcement, and sanction. Applying policy and administrative rules can be characterized as more limited than that of legal ones; they are subordinate to the law.
The political aspect of democratic governing is also not based solely on expediency. It also comprises rules and instruments, albeit more flexible and fluid than those of a legal or policy and administrative nature. The binding characteristic of political rules and the instruments that contain them is based on the use of power. It is therefore least binding of all. The essence of democracy still requires, however, that political instruments be subject to law.
Compiling instruments is also useful for mapping the evolution of issues over time. As topics arise in the public life of democratic states, they are often initially dealt with through politics, gradually becoming the subject matter of policy instruments and eventually becoming enshrined in legislation. For example, rules of ethics for public servants and parliamentarians often emerge first as policy admonitions to address individual circumstances. Over the course of time, sets of ever more complete and binding guidelines evolve, which eventually become formally legislated.
Political Law Interaction
Within the parameters of political law, one of the fundamental questions concerns the interaction among legal, policy and administrative, and political influences in democratic governing: How do law, public policy and administration, and politics interact in the work of legislators, elected public officials, and appointed public servants? A certain number of criteria come into play in the attempt to respond to this question.
Based on the doctrine of the rule of law, the most important criteria in the analysis of this interaction are the objective ones. The constitution, the laws, regulations, orders, and jurisprudence are independent of politics, inherently applicable and determinative of the issues they rule. Legality should therefore be given primary consideration. Whatever the permutations of any fact pattern, the adage that ignorance of the law is no excuse always applies. In democracy, all those in public life are deemed to be aware of, and knowledgeable about, legal rules and instruments, even if only through the advice of counsel. There can be no democracy without legality.
Criteria are also necessary to take account of the characteristics of public policy and administration, and political rules and instruments. This includes examining whether other rules and instruments, less binding than legal ones, exist to deal with the issue at hand. If they do, the interaction among the various types of rules is greatly affected by whether the relevant instruments of different types are complementary or conflicting.
While the professional obligation of everyone involved in public affairs is alternatively defined as “life, liberty, and the pursuit of happiness” in the United States or as “peace, order, and good government” in Canada, every individual undertakes one’s own tasks in the public domain on the basis of a personal background. Subjective criteria therefore also play a large role in the interaction of the instruments as applied and administered. The most prominent factors include personal beliefs and political ideology, education, profession and professionalism, secularism, attitudes vis-à-vis the state and democracy in general and for any particular issue. Even when a legislator or an official objectively accepts the primacy of law, these subjective personal influences affect the individual in determining whether and how to interpret, weigh, and apply the law. One of the aims of pure democracy is to restrict the importance of subjectivity in public decision making, but such subjective criteria cannot be eliminated from human nature.
A set of criteria closely related to subjectivity is loyalty both to democracy and to the ideal of the rule of law. Going beyond the personal considerations, a public official’s acceptance or rejection of legal goals, requirements, and norms greatly influence the interaction of law, policy and administration, and politics. Often, such acceptance, circumvention, or avoidance reflects the struggle between loyalty to a particular institution and willful adherence to democratic forces and the rule of law. This dilemma can be prevalent in institutions with a strong, self-enclosed, or hierarchical esprit de corps, such as the armed forces and the police. It may also be prevalent in processes for legally mandating disclosure of state information that may be considered detrimental or embarrassing to one’s institution. In this context, freedom of, or access to, information has become a powerful tool in supporting not only legality in government, but even more extensively, for supporting democracy itself. Custom, established practice, precedent, and administrative inertia thus act as restraints on legality.
The specific facts of any issue at hand also affect the interaction among the various types of instruments used to deal with the issue, as does the environment of the case. Observers must look at the significance of the issue to the government of the day, to the citizenry, and to the electorate. The more difficult the resolution of an issue is perceived to be by public decision makers, the greater the potential for conflict among the law, the brokerage of institutional authority, and the use of power. Similarly, the more urgent, controversial, or divisive an issue, the greater is the strain against legality and in favor of other forms of resolution.
A further set of criteria relates to public decision makers’ risk assessment. In modern democratic systems, legislative time is scarce and energy is difficult to marshal. Resort to litigation, while popular in some countries, is increasingly expensive. Resolution of issues through legal rules and instruments involves formalism and greater distinction among options than resort to policy and administrative or political ones. Moreover, the risk of noncompliance with existing legal instruments is greater than noncompliance with other types of rules. By contrast, resolving public issues and problems through rules and instruments other than law is often perceived as more flexible, alterable with time, cost-effective, and low risk (in case of breach). Accommodation and negotiation are thus often more viable alternatives than using the law.
Examining the criteria that influence the interaction of legal instruments with other types of rules and governing instruments invites additional questions that are fundamental to a better understanding of democracy. First, is law a source or a consequence of governmental decisions, or both, or sometimes one and sometimes the other, depending on circumstances? Second, is law a goal in itself in democracy, a means to an end, or both, or sometimes one and sometimes the other, depending on circumstance? The answers to these broad underlying questions are likely variable on a case-by case basis, much like applying the criteria for the interaction of types of instruments.
Influence and Impact of Political Law
Examining the interaction among law, public policy and administration, and politics enables observers to gauge the rule of law and to affirm its role as a factor in the conduct of governing. By contrast, examining the influence and impact of legality affords the opportunity to assess whether and to what extent the rule of law is actually applied in the state, or the extent to which law plays a role in governing.
What is the evidence of law’s influence and impact? In short, it is the consistent practice of democratic legality and the presence or absence of residual legal dispute. Governments, political parties, voters, and citizens all hold views on how the state should function and on various issues of public life. Most often, these views are founded on belief, ideology, experience, self-interest, and other factors, rather than on points of law. Resolving and accommodating the divergent views held by public actors in government, and in society, can often be achieved through politics and sometimes by means of instruments of public policy and administration. However, in states adhering to the rule of law, when stresses and conflicts in public society cannot be resolved by other means, the law is the last resort—thus demonstrating the importance of the rule of law as the cornerstone of democracy; the law can be seen as the final arbiter of disputes relating to governing.
In democratic states, the influence and impact of legality means that enacting legislation or rendering a final judgment in litigation is more determinative of an issue than any other form of public decision making. This does not mean that a statute or a court judgment definitively resolves every public debate and controversy. Issues of public governing evolve over time and often continue or reemerge. The use of law does mean, however, that in a democracy, at the time a decision of a legal nature is made, it is more formal and public, it is better reasoned and justified, it is more likely to be definitive and permanent, and it is perceived by the state and by the citizenry as being more resolutive than if policy and administrative or political resolutions had been achieved. The evidence of law’s influence and impact comes from systematic observation of state practice. Observers must look to see in what instances laws are enacted. On what occasions is litigation conducted to its end? More generally, by what means, how permanently, and how extensively are issues of public affairs resolved in a legally valid manner?
This portrayal of the rule of law’s impact and influence must be put in further context. If the role of law was less, and if the law did not rule with primacy over other types of instruments, what would be the alternatives? Rule of administrative fiat, rule of power, rule of ideology, rule of class, and an absence of any rule are all possible models for a state. Indeed, there are states that, in the early twenty-first century, espouse each of these ways of governing, but only rule by law provides the circumstances necessary for democracy to flourish.
States that consistently make governmental decisions on the basis of their so-called vital national interest, to the exclusion of legal norms and standards, seek to justify their actions on the basis of the doctrine of raison d’état. Democracy requires, rather, that states apply a doctrine that could be entitled raison de droit—a legal imperative, in order to retain their democratic nature. Indeed, raison de droit is the necessary requirement for there to be an état de droit. This requirement holds true whether a state espouses the doctrine of the rule of law, of état de droit, or of Rechtsstaat.
While it is incontestable that democracy requires the influence and impact of law to be greater than that of the other types of instruments, it is also important to have a wider perspective on the proper role of law in governing than the true claim of democratic theory that legality is primarily a restraint on the use of governmental power. Law is, and ought to be, perceived in a more positive fashion as a vehicle for the proper use and application of power by the state. Legality does not block the use of power; it channels it. There is greater danger for democracy in government’s nonobservance of the law than in government’s too strict adherence to the law. This also entails that law cannot displace public policy and administration or politics. It is best used by government as its most important, but not sole, type of instrument.
Accountability to Law
All those involved in governing must draw two conclusions from analyzing the interaction of law with the other types of instruments of governing, and also from examining the influence and impact of law on these instruments. The first is that as a system of rules and instruments, law differs from both policy and administration, and from politics, in that it is compulsory rather than optional. Public officials may not choose to apply the law or ignore it at will, without entailing legal consequences. The second is the general application of law. Legal rules regarding public institutions are as applicable to the state itself, to its institutions, and to its officials as are those upon citizens that aim to regulate their conduct. An integrated manner of expressing the duty of those involved in governing flows from these conclusions: as a core part of their professional mandate, all public officials owe accountability to the law.
First, this is a matter of democratic principle. Moreover, it is also a matter of quid pro quo. In current times, popular culture places great emphasis on the civil and political rights of citizens. Both within the internal logic of legal systems and in terms of political analysis of the state, it must be underscored that rights cannot exist without commensurate obligations. Thus, if citizens or voters have civic and political rights, the public officials who operate the state owe their citizens civic and political obligations commensurate to their rights.
This accountability comprises several elements. The most obvious is respect for legal rules, norms, and standards in the face of policy and administrative convenience and necessity, and in the face of political will. Furthermore, all public officials are required, either on their own or on the basis of the advice of counsel, to have some basic knowledge of those elements of the legal system that relate to their work. Likewise, in order to apply the primacy of legal instruments, they need to have sufficient awareness of, and sensitivity to, the role of law vis-à-vis other types of instruments that guide the execution of their tasks. Ideally, public officials should also voluntarily and willfully abide by established legal norms to be proactive in their compliance with the law. The fact that officials occasionally do not fulfill these requirements is one of the factors leading to litigation. A positive application of the role of law depends on a perception of legality as an organizational factor of the democratic state and for governmental action, rather than as a hindrance to the achievement of political or partisan goals. Finally, senior officials have the obligation to make their subordinates responsible to the rule of law.
As part of the notion of accountability to law, government lawyers who are bound by these obligations have an additional duty. They must integrate their legal advice into the public policy and administration plans and into the political projects devised by government, as fully as feasible.
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