Ralf Michaels —
The struggle over Judge Kavanaugh’s nomination for the US Supreme Court and the subsequent horrible spectacle of the Senate hearings brought about a “genuine question” by a leading economist, Dani Rodrik: “how do we prevent ‘the Supreme Court has always been political’ argument from morphing into ‘judicial independence and the rule of law are political charades’? Asking for friends in Hungary, Turkey, Poland, etc..” Several authors on this blog (here, here, and here) have given excellent answers to the question, insofar as it affects the United States.
They have been less sure, however, about what to do with the perspective of Rodrik’s “friends in Hungary, Turkey, Poland, etc..”
I am not sure about that perspective either— I am not an expert on those countries and their laws and politics. But I am sure their perspective is different, and Rodrik’s challenge to put US developments in a broader context can be extremely instructive not just for his friends elsewhere but also, perhaps even primarily, for his friends here. We in the United States have a tendency to discuss global problems—the rise of populism, the politicization of courts—as though they were the same as our domestic problems, or as though the rest of the world would invariably adopt our solutions. By contrast, a global (or comparative) perspective helps us realize the contingencies in our US situation. Struggles are always concrete and contextual, even if the terms that we use are ostentatiously abstract and general.
Two such terms are law and politics. The idea that law is “politics by other means,” a finding emerging from a particular strand of American legal realism, strikes me as universally true in one sense—legal decisions everywhere concern issues of political concern writ large. But it is very specific to the US in another—law is really nothing more than politics. Tocqueville, who may have formulated the first version of the idea (“scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question”) formulated it as an American peculiarity, something that distinguishes it from other countries. And indeed, the specific conflation of politics and law that we observe in the US, with courts as the high priests of both, is not to be found anywhere else I know of.
Conflation goes both ways. Although we today like to think of law as a mere subset of politics, for Tocqueville, the hierarchy went the other way: “judicial language becomes, in a way, the common language; so the spirit of the jurist, born inside the schools and courtrooms, spreads little by little beyond their confines; it infiltrates all of society, so to speak; it descends to the lowest ranks, and the entire people finishes by acquiring a part of the habits and tastes of the magistrate.” And indeed, what we are seeing in the nomination process is not merely a politicization of the judiciary, but also a judicialization of a political appointment process. The Kavanaugh hearings before the Judiciary Committee were turned into a trial (though it was unclear which of the two witnesses was the accused), with a prosecutor as “female assistant,” with a (wholly inadequate) emphasis on a presumption of innocence borrowed from criminal procedure, with a (largely irrelevant) focus on perjury borrowed from criminal law, with a complaint about untimeliness of allegations being brought forward (as though procedural defaults were appropriate in the determination whether a candidate is fit for office) and with two sides of the committee serving as parties and judges at the same time.
Amy Kapczynski, on this site, attempts to untangle the law/politics relation in what strikes me as a very promising way. Even if law is really politics, she says, it comes with specific requirements, in a specific form. Courts are required to give (legal) reasons for their decisions that are different from those that politicians give. “‘I won’t vote for him, he’s a Democrat’ is not a wrong reason in an election, or in the Senate. But it is a wrong reason in a courtroom. And if it is not, it seems to me, we have lost something important to a democracy.” In this argument, the difference between politics and law is then not one of the topics that are treated, or the criteria going into a decision, or indeed the practical relevance, or even the institution, but instead the language with which a decision is reached.
This idea—that the difference between law and politics is a difference in language—lies at the heart of Niklas Luhmann’s systems theory. Luhmann suggested that society must be understood as a communication system. As such, it is differentiated into different subsystems, among them the political system and the legal system, but also, for example, the religious system, the scientific system, and so on. Each subsystem is characterized by the ultimate binary code that it uses for its internal differentiation. In law, that is the code of legal/illegal; in politics it is government/opposition. Institutions like the Supreme Court play a role in both systems: in this sense, the courts are always, of course, also political. But the communicative systems are distinct, even though they observe each other and can respond to observations, and the court functions only as a structural coupling of the two.
In this view, law and politics are separate. They speak to each other, but neither has priority over the other. Neither law nor politics is more rational than the other—they simply use different rationalities. Neither system is neutral—each decides according to its own code. And, insofar perhaps against Kapczynski, neither system is universal—each decides only within its own space and leaves important decisions to other subsystems.
Now, Luhmann formulated his insight of differentiation between law and politics as an evolutionary achievement of modern society in general. But it is not clear that his findings, developed in post-war Germany, apply to the United States, that law and politics are as differentiated here as they are elsewhere. In many European countries, the idea that law is distinct from politics, has more traction than it does in the United States, is less a conservative trope that nobody believes in than it is here. The dual question is of course whether Europeans who believe this are just naïve about reality, and whether an open acknowledgment of the primacy of politics would not actually be superior.
I have doubts. For one, the idea that law is “really” politics by other means, that legal decisions are not “merely” technical but primarily political, always struck me as problematic. The suggestion that ‘politics’ is in some way more real than ‘law’ seems to me unproven. (Marx, for example, thought that economics, not politics, provided the real structure of society, but the same problem arises.) If everything is “really” politics, then calling something politics no longer has any differentiating function. And if the political system has to respond to every problem in society, it is both overburdened—it cannot leave any decisions to any other subsystem—and has too much power.
Of course, the separation of law and politics has long represented a concern for leftist causes. The idea of a legal system that is somehow autonomous from the political system has always been suspicious for a progressive left that saw law and courts as conservative bulwarks against radical change. Indeed, Luhmann himself was criticized as conservative when he opposed Jürgen Habermas and by extension the leftist movement in 1960s and 1970s Germany. But radical change, as we are observing now, is not always, perhaps not even most often, progressive, and a pluralism of communicative systems may be attractive to a sobered left. Luhmann’s theory was influenced by his experience with the totalitarianism of the Third Reich (an experience Americans lack), in which the ultimate binary Code for every societal question was Schmitt’s friend/enemy dichotomy. Socialist countries similarly posited a primacy of politics over law and consequently disempowered the courts. Students of Luhmann used his theory against the primacy of economics as suggested by neoliberalism. They may find it attractive against the primacy of rightwing and populist politics.
After all, the current reality, with its existing primacy of politics, is the opposite of the leftist dream of politics. What we have is a double impoverishment of discourse: the impoverished idea of law as being merely politics, and the impoverished idea of politics as being merely party politics. The first is the impoverishment of public debate, in which every issue is openly discussed as a political one, without deference to the autonomy of other subsystems. This is true not only for law but also for other subsystems—science (your position on climate change is determined by your political affiliation), religion (what the Bible says about refugees depends on your views on the Trump administration policies), economics (same), and so on.
But the second impoverishment, maybe even worse than the first, is the impoverishment of politics itself. Our current political debate feels incredibly impoverished: it follows completely Luhmann’s code of government/opposition, and it does so in a clear, and openly expressed, mode of “winner takes all.” All decisions are political, and the criterion to decide them is to look to who is in power. This is the opposite of the leftist dream of a richer and more pluralistic politics, and not only because those in power are on the right; a leftist takeover of all politics, as we saw in socialist countries, was not preferable. Indeed, formerly socialist countries—Hungary, Poland—are among the countries for which Rodrik fears, and rightly so. There, the effective takeover of the courts by the ruling party may reflect historical experiences from the socialist past, now utilized for a right wing project. (The Turkish situation seems slightly different to me, but I am not an expert.)
A richer debate might need to create a richer sense of politics, but I think it would also benefit from a stronger differentiation and a correlating functioning of checks and balances, which is failing in the United States because the dominance of party politics is not accounted for in the Constitution. What could be done in favor of a stronger differentiation of law and politics? Some useful steps would concern institutional and procedural changes, and comparative law could provide many models—giving up on lifetime tenure, depoliticizing the nomination and appointment process (for example by giving the Bar Association, or representatives of the judiciary, a bigger role). Comparative law would allow us to study the impact of such procedures empirically. (I fear, comparative law would also demonstrate that the politicization of the judiciary is a global tendency in authoritarian regimes, be it judicial appointments in Poland, refusal of compliance in Hungary, or other developments.
But the bigger step might be a change of discourse—especially if we follow Luhmann and understand society as communication. Can we argue law as though it were not “really” about politics? I think we could, and in fact we can learn from other countries. Mitch Lasser has demonstrated that the highest courts in France do not in fact believe that a correct legal decision follows directly from a legal text (as the stereotypical view of the civil law has it). They consider the same factors of politics, economics, culture, etc., as do their American counterparts. The difference is that they do not put them into the decisions. The House of Lords has suggested that the declaratory theory—the Blackstonian idea that judges find law and do not make it—is of course a fiction but a valuable one; it forces judges to find arguments within the law, and invites specific criticism when they do not do that. Karen Knop, Annelise Riles and I have argued that the technical language of the law, precisely because of the fiction that it is not also political, enables the actual resolution of otherwise irresoluble differences.
In many ways, differentiation of systems picks up where the Constitution fails: the role of the separation of powers is adopted by the differentiation of societal subsystems, and the idea of checks and balances is adopted by the mutual observation between these subsystems. Compared to that, the leftist subjugation of law under politics seems to me to be just as dangerous as the rightist claim of subjugating politics under law is fake. In my ideal world, the courts do not stand “above” politics, but neither do they stand below it. Instead, they stand side by side, mutually observing each other, mutually influencing each other. Our struggles for justice ought to take place in each of these fields—law, politics, economics—in the respective rationalities and languages of these fields. Leftists have far far more to contribute to each of these discourses than the reduction of every issue to politics.
Ralf Michaels is the Arthur Larson Professor of Law at Duke Law School.