DR. MIRO CERAR
ABSTRACT: This article examines some basic characteristics of the relationship between national and international law and politics. The law functions in relation to politics in three basic aspects, namely as a goal, a means, or an obstacle. First, politics can define certain predominantly legal values or institutions as its goal. In this case the political understanding of these values or institutions becomes almost identical to an authentic legal understanding of the same values or institutions. Second, politics can comprehend the law merely as a means for the fulfillment of certain political interests. In this case politics is neutral in
its attitude toward the law. Finally, politics can interpret law as an obstacle on the way toward the realization of certain political goals. In this situation either politics prevails over law, or vice versa. In the first case politics effectuates its solutions at the expense of the rule of law, while in the second case the autonomy of law is preserved through the decisions of the highest courts or by other actions taken by lawyers, intellectuals, associations, organizations, and the public in order to stop illicit acts of political actors. Law and politics create their own particular pictures of reality. Sometimes those pictures overlap, sometimes they differ. Yet, there is something that the law should never include in its sphere; namely, the differentiation of adversaries according to a purely political criterion. This leads to a strict separation between “ours” and “yours”, or, in its most radical expression, to a strict separation between friend and enemy. When the latter occurs, politics inevitably prevails
over the law, and reduces or damages the autonomy of the rule of law.
This article examines some basic characteristics of the relationship between national and international law l and politics. The subject is obviousiy much iuu cumpiex io be deait wiih in aii possibie aspects here; however, some fundamental issues of theoretical and practical, importance are presented with special emphasis. For example, there is an argument to be made that certain checks and balances between law and politics are critical for the relatively peaceful and value-positive (constructive) development of mankind and democratically organized societies. The relatively high level of the autonomy of modern law2 is
one of the most significant factors that define the limits of politics and thus contributes to the constructive development of different societies.
II. STARTING POINT PERSPECTIVES ON THE RELATIONSHIP BETWEEN POLITICS AND LAW
Law and politics as social phenomena are two emanations of the same entity (a monistic ontological conception), regarding which their separate existence is only a consequence of a human dualistic or pluralistic perception of the world (a dualistic ontological conception). Furthermore, the difference between law and politics is, from a deeper ontological perspective, in fact only illusory, for reason of which also in the fields of legal and political theory and philosophy there are conclusions regarding the partial or complete overlapping of law and politics, sometimes even the equating of the two that raises a crucial
question of how both notions are defined. Regardless of such findings, the distinction (i.e. consciously persisting in a distinction) between law and politics at the current level of human development is necessary and indispensable.
With politics, it is necessary to distinguish three fundamental dimensions: the institutional dimension, the normative dimension, and the process-related dimension. The institutional dimension is expressed by the term polity and entails the operation of various regulated state and non-state institutions like political parties, social movements, public media, the legislature, and the government. The normative dimension is expressed by the term policy and entails the creation of normative ideas or ideals that define basic societal values and objectives geared towards a practical realization of such. Lastly, the process-related dimension is expressed by the term politics, which is expressed in the formation of the political will through the implementation of the social power and authority and built up through conflict and consensus. If we attempt to concisely analyze the law through the above mentioned three dimensions, we can see that from an institutional perspective, the law is expressed primarily through two factors: the establishment of specific state bodies legitimized by means of their specific professional legal structure and functioning (e.g., the courts and the state prosecutor’s office), and non-state institutions where the attorneyship belongs. From the normative perspective, the law is the creation of general and individual legal norms. From the process-related perspective, the law appears by means of various procedures like the legislative or criminal procedures where legal solutions are formed through the functioning of state bodies and individuals.
In this text, I will discuss politics in its broadest meaning, primarily encompassing the process-related sense, which also includes various policies and polities. I will define law as the binding value-normative system established and carried out by, the state in national law and carried out by international organizations and institutions in international law, which are intended for the establishment and maintenance of a balance between justice and order and solving and preventing pressing
societal and international conflicts.
The relation between politics and law has both a progressive function and a safeguarding function. Law and politics, separately or together, both encourage and suppress the development of societal relations, while they both also function to bring about justice and order. The essence of their “separate and connected” but not integral existence is to help set each other’s borders. These borders prevent excessive one-sidedness in politics or the law, similar to a “checks and balances” mechanism. In
actuality, all legal institutes are a partial reflection of individual or collective political decisions at a certain time and in a certain
environment, which have assumed a legal form and nature. This is true in systems where the main rule-framer is an extremely politically legitimized body (e.g. the parliament as legislature) and also in systems where judicial-precedent law has a strong influence because even the most autonomous judiciary is always determined by some sort of political influence.4 Legal institutes, however, have a reverse influence on politics in that they limit and direct politics as part of a wider legal awareness, or specific legal ideology.
In a mutual relationship, politics and law do not have constantly determined roles, since in different periods they can be, either in agreement or in opposition, socially progressive or conservative, or even reactionary. But, it must be stressed that for law an especially emphasized conservative functionS is characteristic and important, despite the fact that it can sometimes function in a developmentally progressive or creative manner. This doesn’t suggest that law cannot be successful in promoting new societal relations but it does suggest that only from the aspect of legal policy, this should not be exaggerated. Most often, but not always, it is better to encourage those mechanisms through which the legal order reacts quickly and effectively to the emerging
social circumstances and prevents the possibility of one-sidedness or exaggerated aspirations of politics.
It is an immanent characteristic of every law that it is also the means of certain politics.6 However, law is never a pure form through which political content would be realized, since it is in the very nature of law to be relatively autonomous or independent.7 Politics cannot exist without the law, since the law forms it and keeps it within certain limits that are dictated above all by the ideas of justice and social order. But, law could not exist without politics, since politics gives law its driving force and its “rough content” or substance, which law then adapts to its autonomous framework and develops its final form, expressing it in a specific normative manner. Thus, one of the most demanding tasks of every society is to continuously attempt to establish and maintain an appropriate balance between politics and law. This relationship is completely different in an authoritarian or totalitarian state as compared to a democratic state based on the rule of law. This is because in an authoritarian or totalitarian state, the “legal policy” is a subordinate to the “political policy.” This is in contrast to a democratic state where there is a dynamic, partner-competitor relationship between the two policies where sometimes politics prevails and other times the law prevails.
In democratic orders, modern law and politics, as a general rule, intensively confront one another in legislative and other parliamentary procedures. This is where the influence of politics on law is the strongest. Nevertheless, modern law maintains a great amount of autonomy. This autonomy is achieved through: the fact that interest groups never fully determine the decisions of a pluralistic legislative body or could direct such body exclusively according to political preferences; substantive and procedural legal rules, which to a large degree determine the limiting framework where the legislature operates and creates certain parliamentary practice (routine), which it is difficult to depart from (the predominance of legal formalism); and the
independent judiciary that limits excessive political aspirations and places them within the legal limits of functioning. 8 What is especially important today in many countries is the role of constitutional courts. These courts, as a general rule, routinely interfere with the politically conditioned and interwoven activities of the legislative and executive branches of power, and therefore their decisions are naturally more or less politically colored. Finally, a certain level of legal awareness can be
added to all this. Legal awareness always develops in political actors and directs them as an internal commitment to observing fundamental legal values and the existing law.