The distinction between “political” and “legal” is particularly difficult because the scope, purpose, and assumptions of one and the other are the same, or similar, or, at least in part, coincident.
If, for example, one asks “what is the purpose of politics?” the prevailing answer is the “common good,” understood as security (and protection) from (internal and external) threats, as (internal) concord, and as well-being. If one asks the same question for the law, the prevailing answer will be to justly and surely regulate social relations; which coincides, in part, with the “common good” understood as concord in the community, given the need for rules on the one hand, and for them to be shared and accepted (predominantly) by the members on the other.
If, likewise, we start from the ambit, while the “social” character of politics is taken for granted, that of the law, it has given some problems: this does not detract from the fact that for a legal norm or command to exist there must always be a society, though of only two people. A norm that, like the moral norm, is only internal and has the individual and God (or conscience) as subjects, is not juridical. Further, it is juridical only if it is concretely enforceable (and violable); and—at least to some extent—enforced.
Which leads to the other problem of the effectiveness of the law, which necessitates the use of coercion, that is, force, itself a (typical) means of politics. And thus, it could go on for a long time.
On the other hand, there are the differences and irreducibility of one to the other.
An example for the enduring relevance (and rightly so) of an essential difference is the one made by Max Weber about the different attitude of the politician and the official: “To take a stand, to be passionate—ira et stadium—is the politician’s element, and above all the element of the political leader. His conduct is subject to quite a different, indeed, exactly the opposite, principle of responsibility from that of the civil servant. The honor of the civil servant is vested in his ability to execute conscientiously the order of the superior authorities, exactly as if the order agreed with his own conviction. This holds even if the order appears wrong to him and if, despite the civil servant’s remonstrances, the authority insists on the order. Without this moral discipline and self-denial, in the highest sense, the whole apparatus would fall to pieces. The honor of the political leader, of the leading statesman, however, lies precisely in an exclusive personal responsibility for what he does, a responsibility he cannot and must not reject or transfer. It is in the nature of officials of high moral standing to be poor politicians, and above all, in the political sense of the word, to be irresponsible politicians. In this sense, they are politicians of low moral standing…”
In this passage the distinction is formulated between the political attitude and function (which is to give commands) and that of the official (of the bureaucracy) which is to execute them. That being said, in order to understand and demarcate the different spheres of the political and the legal, it is necessary to identify the points of contact, as well as the differences between them.
As for those, the first is given by the character and social sphere in which they are necessarily carried out. As mentioned, the rule ubi societas ibi ius applies, as does the specular ubi ius ibi societas. The assumption of the sociality of the legal, as well as the political, is evident. As has been written, even on Robinson Crusoe’s island, the law came into being only with the presence of Friday: before that it would have been absurd. For politics (and the political) no one, to our knowledge, has ever questioned the presupposition of the social rapport (relation), since politics is always the activity of human groups.
Another common character is that of the preservation of society; a given also, for the most part, taken for granted for politics, somewhat less so for the “legal.” In reality if the law carries within itself, more prominently than politics, the idea of justice (with the extreme consequence, expressed in the saying, fiat justitia pereat mundus) it is also true that for a legal command (norm) to be (mostly) enforceable (hence effective) it is necessary for it to be shared, at least in prevalence, in society: a certain degree of concord must support it. More generally, it must be remembered how one of the prevailing conceptions of the law is that it is a social technique: a good “technique” must achieve the specific and assigned purpose of preserving society. Only commands on which a large proportion of associates agree are likely to be executed with a minimum of force and a maximum of consensus. And the same argument, mutatis mutandis, applies to welfare: the “good” technique must achieve goals of “good” (i.e., effective and positive) management.
As for the points of difference, the main one is the autonomous character of the political, which is contrasted with the heteronomous character of the legal. It is necessary to clarify these concepts, and the relationship between the autonomy of the political and the heteronomy of the legal.
First, the autonomy of politics (and the political) should be understood not only in the traditional sense, as independence from moral (and legal) precepts, but also in the literal sense, of that which gives goals, rules, to itself; that is, in the positive sense, before the negative sense, of possibility/ability of before freedom from. Valid for politics (and the political) is Spinoza’s consideration that the limits and rules to be observed by the state are those of nature and not of civil laws, and that being autonomous consists for man in being “able to reject all violence, to demand in his own judgment compensation for the harm he has suffered, and, in a word, to live at his own pleasure (Political Treatise, II.9);” and for states, being “together are to be considered as a man in the state of nature” (Political Treatise, VII, 22.), the situation is the same. Hence the character of politics is to be autonomous, in the sense of giving law: either to subjects, (in and with) peace, or, to (possible) enemies in (and with) war. The connection that the Roman spirit had identified between hostis and auctoritas and expressed in the Twelve Tables—adversus hostem aeterna auctoritas—can be explained thus.
Thus, character of politics (and the politician) is not to recognize laws (commands) other than those that (the community) chooses to give itself; if one obeys the commands of others, it means one is in a pathological situation. Like that of a protected state versus the protecting power.
Conversely, the “juridical” is unthinkable except within a framework of heteronomy: Autonomous is, in man, or can be, the conscience (moral or religious); but the command, the juridical norm, never. The most that can be done to increase the degree of “autonomy” is to participate in the formation of public norms (commands), as advocated by Hobbes and Rousseau. But even in a democracy as close to the “ideal type” of democracy as possible, the subject who commands (i.e., the assembly of citizens) is distinct from the “commanded”—thus as Hobbes wrote—there “passeth no covenant, between the sovereign and any subject” (De corpore politico, XXI, 2).
Thus, if autonomy is connoted by the political—understood as an attribute of collective unity (obviously not of the individual)—heteronomy is of the legal.
In this sense Kant’s principle that “the sovereign has only rights against his subjects and no duites (that he can be coerced to fulfill), (The Metaphysics and Morals, p. 95),” fully expresses both the heteronomy of the juridical and the autonomy of the political, obviously in relation to the modern state. Having only rights and no duties means both being able to give commands (laws) and (in an emergency) not having to comply with any (not even those autonomously assumed). Moreover, that coactive in parentheses indicates precisely legal obligation and duty, i.e., enforceable by resorting to force (that the sovereign has duties of other kinds—not legal—is conceivable and argued, with reason, by many). Thus, on the one hand the law, even that produced by private autonomy, rests in every case on a political decision and will (even to allow and support autonomy; that is, it is a rare example of heteronomous autonomy); on the other hand, the political, that is, the essential character of sovereign power is to be free from all legal conditioning and limitations.
The “heteronomous” character of the law, with regard to legal decision, also results from the structure of the same, which is based on the authorization/application of commands (norms) that have already been decided (elsewhere); so that a measure or judgment can be reviewed and qualified as valid (or invalid) on the basis of a check of conformity with respect to the norm or commands that support them. This is so whether these have normative content (as is, for the most part, the case in the modern state) or consist of mere commands (i.e., lacking generality and/or abstractness). A policy decision is, conversely, not reviewable with respect to a norm. While a ruling is good (valid) if the Judge has correctly applied existing law, the policy measure is good insofar as it is congruous in resolving a situation, at the limit breaking the law, including constitutional norms. While the above saying, fiat justitia pereat mundus (meaning by justitia the applicable law) applies to the Judge, the other salus populi suprema lex applies to politics (Hobbes writes that law, duty and profit of the Sovereign “are one and the same thing, contained in the sentence, Salus populi suprema lex,” De corpore politico, XXVIII, p. 177). And the salvation of the state is not properly a matter of the law, let alone of norms.
The same thesis was espoused by Thomasius and Kant regarding the distinction between the law and morality. For the former, all law consists of external and not internal commands; Kant then argues that “The pure agreement and disagreement of an action with the law, he says, without regard to the motive of the action itself, is called legality (conformity to the law) while when the idea of duty, derived from the law, is at the same time motive of the action one has morality (moral doctrine). Duties imposed by legal legislation can only be external duties, because this legislation does not require that the idea of duty, which is wholly internal, be in itself a determining motive of the agent’s will, and since it needs motives appropriate to its laws, it can only admit external motives. Moral legislation, on the other hand, although it erects internal actions to duties as well, does not exclude external actions for this reason, but refers in general to everything that is duty.” Hence it follows that “to the right is thus immediately connected, according to the principle of contradiction, the power to compel the one who undermines it,” and “a narrow right can therefore only be called that which is completely external;” whereby “it right rests solely on the principle of the possibility of an external compulsion which may consist with the freedom of everyone according to general laws.”
From this it follows that the rules (laws) of politics, that is, those against which the appropriateness of political behavior (and political institutions) is assessed, have as a common feature precisely that of not being juridical; that is, of not being able to appreciate (and coerce) those behaviors with respect to rules of law (particularly positive law, or to, depending on the meaning one gives to the latter, natural law). One may or may not agree with Hobbes’ view that “natural law is, to define it, a dictate of right reason as to what is to be done or not done in order to preserve, as long as possible, life and limbs,” from which it follows that the relevant behaviors are true or false, and not like those, evaluated from the legal aspect (as well as the rules) lawful or unlawful, valid or invalid; or that of Spinoza, according to whom the state must observe only the rules, not of civil law, but of natural law; but it is certain that on the “effected” plane, this appears to be true.
On the other hand, if one starts precisely from the “presuppositions” of the political, as defined by Freund, it is not clear how the choice between peace and war could be formulated in terms and on the basis of legal presuppositions (preventive and general), nor whether an action should be commanded and by whom, or whether an activity should be public or private.
The first, moreover, does not depend (except partially) on one’s own will, because choosing to be an enemy of a given political unit is another unit’s decision; as for the other two assumptions to claim to codify what must be public or who must be obeyed (including the form of state) is to want to plaster history. Even if in the Enlightenment and among the revolutionaries of 1789 the conception of the legislature (and of the law, including constitutional law) destined to last was widespread, nevertheless the conviction that one generation cannot bind (eternally) future ones was equally widespread; and, on the other hand, saving them from the “legal” drift was the concept of constituent power which, in any case, stands above (and before) the Constitution itself, by the same amendable, even integrally.
The other presupposition of “legal” is, according to Freund, the relationship between permitted and forbidden. Like that between social and individual it is not exclusive to the law but common to many other areas of human activity, especially morality. However, it is the condition of (thinkability and) existence of a command, since commanding something presupposes the freedom to choose and thus the prohibition of something else. Neither in a society in which everything is permitted, nor in one in which impossible things are commanded (ad impossibilia nemo tenetur) is an executable command (in general) conceivable, and therefore neither is a legal rule. Certainly, a society whose Grundnorm consists in “everything is permitted” is conceivable, but this, as well as never seen in history, would not need the law, understood as an apparatus of coercion (hence institution), since it would not be possible to compel anything. Such a society, without institutions and prohibitions, is ultimately the exact representation of the Hobbesian state of nature.
It follows from the above that the essential character of the rules of politics is precisely that they are not legal, that is, susceptible to external command and coercion. It could be argued that politics has no rules (laws); but this consideration is not supportable. In fact, politics has the rules it wants to observe (this is the first face of the autonomy of the politician); the other consists of those rules that determine its end (the Hobbesian salus rei publicae suprema lex); or the “technical” rules for the protection of the community and the exercise of power. Philosophy and political thought have elaborated many of them. From the one (De Benoist) of reducing the number of enemies, which has had the most varied formulations and expressions throughout history (from the Roman divide-and-rule to the “never war on two fronts” of the Germanic HQ of the last century). Machiavelli, but also Hobbes and Spinoza have indicated several—whose common (prevailing) connotation is to depend on the purpose of political activity. That is, on the protection of communal existence and the order it ensures, to which they are instrumental as means to the end.
The other character of the “political” and its rules is to be “superordinate” to the “legal” (and its norms). This is not only because of sovereignty—a key concept because it is the junction point between politics and the law—and which has (also) the function of guaranteeing/protecting order through the exercise/discipline of coercion; and not only because the purpose of politics, in the case of emergency (and sometimes not only in that) prevails over that of the law (justice, or rather equity), so that, as Jhering wrote “force will sacrifice law to save life,” i.e., according to Santi Romano, necessity is the source of law; but also because in following legal (or, in a different respect, moral) rules rather than those of “reason of state,” a community prepares, as Machiavelli wrote for The Prince “more quickly ruin than its preservation.”
If, for example, the Western powers had militarily come to the aid of Finland, which was attacked in 1939 by the Soviet Union (as demanded by much of the public), they would have had international law on their side (the Geneva Protocol of 1924 condemned war of aggression, and the war on Finland was such) but would have made a very bad political choice—both because, in addition to the war with Hitler, they would have found themselves in another one with Stalin, and because they would have consolidated the recent (and tenuous) alliance between their enemies. Quoting Odilon Barrot, since sometimes la legalité nous tue, in order not to die one must “break” or “derogate” from legality.
On the other hand, it is precisely the positive law, with its large casuistry of derogations and exceptions to constitutional and ordinary law that demonstrates the character and structure of this relationship: constitutional ruptures, states of exception, states of necessity, derogations and extenuating circumstances to criminal legislation.
Hence, Santi Romano correctly held, in the passage quoted above, that even in case it is forbidden to make use of exceptional powers, necessity legitimizes the violation of existing right (or rather law).
In other words, in every order (that is viable) there is a “general clause” (even if unwritten, even if prohibited) by virtue of which the protection of (collective) existence prevails over legality. Coinciding, according to Santi Romano, the concept of institution with that of order, this clause is juridical, because it is constitutive-conservative of collective existence. Together with sovereignty—and from an objective standpoint—it is the connecting point between the end of the political and the purpose of the law. It follows from this that the political institution (in modernity, and par excellence, the state) has the task of bringing together the demands of politics and law, sein and sollen. Precisely in institutionalist (legal) thought, and in the concept of institution, this is felt most sharply; according to Hauriou “power is a free energy of the will that takes on the enterprise of governing a human group through the creation of order and law.” Thus, in the beginning, there is power; this creates order through institution; power (and government) in fact is thus transformed into power (and government) in the law. The relationship between power, order through the law (i.e., the institution) and coutumier consent means that the institution must take into account both power and consent and order, and thus the “two” poles, political and legal.
The relationship of “superordination” or “decisiveness” between politics and the law, and of the prevalence-precedence of the former over the latter, to which Hauriou’s thesis on power and order has brought us closer, is particularly evident in the moment of foundation (or re-foundation) of the institution, and, in particular, of the institution-state.
Santi Romano has been very attentive to this, both in his early and later writings; the same problem is, however, usually neglected by jurists, partly with the extenuating circumstance that the jurist interprets the law that is, and does not investigate the genetic moment of the institution. But the very latter shows the essence and modes of the relationship: Sieyès’s theory of constituent power comforts him (and is its clearest expression). Sieyès bases it on three distinguishing features of such power: the first negative, of being freed from all forms, “une nation est indèpendente de toute forme.” In contrast to constituted powers, which are bound by legality (“il n’est legal qu’autant qu’il est fidèle aux lois qui lui ont été imposées“), the national will (i.e., constituent power) “au contraire n’a besoin que de sa réalité pour être toujours lègale, elle est l’origine de toute lègalité.”
The nation is not subject to a constitution, and cannot (nor should) be; not only is it independent of all forms, but it needs no legal justification (support). In it, reality and legality coincide: the latter is the development-emanation of the former. Lastly, “De quelque manière qu’une nation veuille, il suffit qu’elle veuille: toutes les formes sont bonnes, et sa volonté est toujours la loi supreme;” whereby it is it that determines (and institutes) the form(s) in which the institution will be organized and articulated. The politician thus does not have a given form, but is the creator of (his own) form. The fact that this form(s) is viable (i.e., effective, capable of causing command to be exercised with success and consensus) is due to the degree to which it is accepted by the consociates, which is expressed in essentially political (and “factual”) categories (and concepts), such as authority and legitimacy. Thus the “political” and the political will (both of the “creator” of the order and of the governed) is the Archimedean point of the (state) legal order: by taking away, modifying, or replacing that, it changes this; whereas the reverse is not true; for the change of one, or several (even most) norms, nor that of institutions, changes the constitution (understood in the Schmittian sense of fundamental decisions about the modes and forms of political existence), much less constituent power.
In this regard, it should be recalled how many jurists have noted that there are original and derivative institutions. The former are “those in which a legal order is embodied which is not posited by other institutions and which is therefore, as to its source, independent. Conversely, there are derived institutions, whose order is, that is, established by another institution, which thus asserts, in this respect, its superiority over the first, which thus remains subordinate to it;” just as the state has, according to Rudolf Smend, the character that “its functioning is not maintained by an engine or judge external to its structure, is not supported by a heteronomous cause or guarantee, but is integrated, through objective legislativeness with respect to value, exclusively in a system of integration gravitating on itself.” whereby “in a sense quite different from the constitution of an association, the written constitution of a state can therefore only stimulate and limit that constitutional life which gravitates on itself and which cannot be guaranteed heteronomously.” In sum, the political (and original) character of the state institution means that it is the political—and sovereign—power inherent in it that guarantees unity, stability and enforcement of law; for others, it is a power external to the institution (i.e., mostly another institution), precisely because it lacks sovereignty.
One could with a bold comparison, adapt to the law Gödel’s incompleteness theorem, for which there are points that the system cannot decide or prove independently. Conversely, the political, as Sieyès wrote in the passage quoted above, has no need for legitimacy or to conform to a legal norm or procedure.
The point of junction (and friction) between the juridical and the political is provided by public law, by which is meant what—in other Romance languages, as well as in Italian in Romagnosi’s time—is also called “political law.” In its higher branches, but sometimes also in its lower ones, several points of junction (and conflict) between the needs of politics and legal principles and institutions can be discerned.
The very positive law (positive rights) of modern states concurs in proving how the political (and politics) are irreducible to the juridical; in particular, if one understands this essentially as a rule, as a norm applicable exactly by a judge or official. The forms of this irreducibility are various. We recall the main ones:
1) First, there is no need to have law in order to create law. This is implicit in Sieyès’ assertion that the Nation, by the mere fact of its existence is all that it wants to be; that is, that it needs no legal legitimation. This, as well as by others, is taken up (and in a sense, expanded) in the well-known thesis of Santi Romano, whereby even without legislative authorization for the use of “exceptional and extraordinary powers, these may be assumed and exercised by virtue of necessity. As is customary, indeed all the more so given its greater energy, necessity is an autonomous source of the law, superior to the law.”
2) Even without wishing to recall the protective-conservative function of political authority, which is particularly clear and evident in the ” state of exception,” not even in relationships and situations not connoted by emergency, but, in a sense, normal, the scope of the “political” coincides with the “normative.” In fact, particularly relevant acts are removed from judicial review, even in liberal democracies, where control is, conversely and usually, penetrating and general. Thus, in Italian law, political acts; in French law, actes de gouvernement are not appealable before the judge. In this regard, it has been argued that “political activity cannot be defined solely as a free activity, but a free activity because it is political,” and that acts expressing the function of government are “institutionally subtracted from any judicial review. They are subtracted by nature, not because there is Article 31 T.U. on the Council of State.”
Even in the presence of Article 113 of the Italian Constitution (which prescribes the general reviewability of administrative acts), the category of political acts has “survived” the Republican Constitution; hence, the argument that such acts are not justiciable by “nature” is reinforced.
3) Representative powers (and sometimes not only those) are immune from criminal jurisdiction. The first modern European constitution, that is, the French constitution of 1791, already provided for this (Title III, ch. I, art. 3) prescribing that courts could not interfere in the exercise of legislative power or suspend the implementation of laws: similar prescriptions, and those on the immunity of parliamentarians (of heads of state and ministers) from arrests and trials were carried over into practically all subsequent European constitutions, of first liberal and (later) democratic-liberal states; as were the exceptions to ordinary powers and forms in the case of political trials.
The decisive argument for explaining immunities (and exceptions) for certain “supreme” organs of the state is the one expounded, in the wake of a tradition of thought about (or of) the state going back to Bodin and Hobbes, by Vittorio Emanuele Orlando, in a 1933 essay. In fact, he wrote: “That among the organs whereby the State manifests its will and implements it, there is one that towers above all others, superiorem non recognoscens, and that precisely because it cannot admit a superior (for then supreme power would be transported to this other), it must be removed from all jurisdiction and becomes, for that very reason, inviolable and unaccountable, is well known” (italics are ours).
The above brief excursus I hope has served to clarify of what is political and what is legal. The interpenetration of which—in the constituted forms—creates multiple types of interaction and relations, of which positive law is the testimony; and from which the distinctive criteria are recorded.
The fact remains that the law is by nature heteronomous, and form and procedure are essential (and “given” to it; whereas the political is autonomous, is morpho-poietic, and (ultimately) does not need to observe legal procedures or legitimations to impose its will.
When one tries to forget—or belittle—such characters, there are two reasons: either one tries to use the law as a support in a political battle ( as, for example, the Leninist use of legality), cloaking oneself in the “added value” of the law, aimed—as an extra weapon—against the enemy; or one confuses legality and legitimacy, forms and procedures, subordination and coordination, being and ought-to-be, command and obedience, public and private, in a chaos, which the lack of a visible and recognized (“public”) Archimedean point makes enduring (as much as harmful). Which may be the ideological form of a polycratic moderatism, in which the moderation of words covers the particularized ends of an (irresolute and) tendentially anarchic congeries of private powers, though not always in object, mentality and function.
Teodoro Katte Klitsche de la Grange is an attorney in Rome and is the editor of the well-regarded and influential law journal Behemoth.
Featured: Study for Divine Law, by Violet Oakley; painted ca. 1917.