DR. MIRO CERAR
V. DIFFERENCES BETWEEN THE LAW AND POLITICS
In general, it can be concluded that law and politics are similar in their general normative orientation towards ordering societal relations. Within this framework, their search for an appropriate or just distribution ofsocial statuses and goods depend on the standpoints of the given ruling elite at the level of political and legal decision making. Law and politics are similar in that both resort to certain ideological definitions of their value-related objectives, which are at the highest abstract level often even identical. Within the framework of democracy, for example, the state based on the rule of law, constitutionality and legality, human rights and justice. However, in the process of concretization they often grow increasingly different. In concrete cases, the law often applies the principle of the state based on the rule of law, the principle of justice, or a certain human right differently than politics. Besides this, there also exist specific political values, which essentially differ from legal values (e.g. the value of affiliation or loyalty to a certain political orientation).
From here onwards, we are already faced with numerous differences between the law and politics, of which only the most fundamental will be concisely treated in the following sections. With regard to this, in perceiving these differences, it is necessary to take into consideration that these are by nature relative and based only on the criterion of predominance. 27 On the other hand, we must be aware that the law, as well as politics, are each by themselves integral units of all their components. This is why the definitions of individual differences appear from this aspect as only partially reliable or just as illustrative, since the elimination of individual components from their integral units necessarily modifies their characteristics. It must also be taken into consideration that these differences or differentiating criteria can, in different cases, appear unconvincing since in certain situations or in its individual spheres, politics can assume some characteristics of the law, and vice versa.
Politics institutionally comes into existence within the framework of largely political state bodies (e.g. the government and parliament) or within the framework of largely politically oriented and functioning social groups (e.g., political interest groups). The law comes into existence on an institutional level within the domain of the above mentioned political state bodies, and in the domain of the third branch of power, i.e. the judiciary, and in the broader sense in all institutions of the judicial system. Politics is expressed through political documents and activities (political declarations, party programs, activist field work, etc.), as well as through legal acts (by adopting the constitution, laws, decrees, codes of rules, etc.). The law is most authentically expressed above all in the interpretation and application of legal acts by judicial institutions and through the theoretical ideas and practical activities of lawyers as a special professional class.
In politics interest and power have a greater role and legitimacy than in law. In law, as a general rule, power is replaced with the concept of jurisdiction, and interest by the concept of legal evaluation, although legal activity at least indirectly reflects certain sociaUpolitical interests and in its structure it is imbued also with relations of power. Social and political interests are to a large degree implied already in general legal acts, in accordance with which courts, for example, adopt decisions.
Through their legal activities, courts can naturally also implement their own interests. In law however, the element of power does not appear as it does in politics, where the question of power is connected with the aspiration for predominance over other political (and partly also nonpolitical) ideologies and subjects. In law power appears for example through the authority of the higher judicial and other legal bodies which by their explanations and decisions de facto or de iure prevail over the decisions of the lower judicial and other bodies, and above all also through the institutionalized power of the judiciary in comparison with other authorities and SUbjects. In their psychological-political perception of other subjects, political subjects as a general rule establish extremely polarized relationships, namely in the categories “ours – theirs,” or in the sense “whoever is not with us, is against us.” In democratic systems, individual political subject, like political parties or their individual members, often hide such an exclusionary perception from the pUblic. In autocratic or totalitarian systems (or in political subjects with totalitarian tendencies) such an attitude or perception of differentness is always expressed publicly (naturally, only by those holding power). In its extreme form, this aspect of political perception is expressed by Schmitt’s well-known differentiation between friend and enemy.28 On the other hand, polarizations are also characteristic of typical legal procedures that appear due to the different views and interests of individual parties in legal procedures. However, these polarizations, as a general rule, do not
have a “higher” interest or direct ideological background. Moreover, these polarizations, in comparison with political ones, generally do not have the function of fighting for political power.
In its normative structure and actual functioning, politics is more adaptable and flexible than law. A political decision or political agreement can be, content wise, much more diverse and nuanced than is generally true for decisions or agreements in legal forms (e.g. judgments or contracts). At the same time, politics has a much broader field of functioning at its disposal. In comparison with the law, politics is not confined by the framework of the set legal norms, but can, to a greater degree than law and in a more diverse manner, spread to other valuenormative spheres (e.g., the field of religion, morals, the economy,
customs, etc.). Accordingly, politics is also more flexible in seeking compromises between different ideological, interest, or normative premises. The law is also in this respect more rigid and can implement compromise only where the legal system dictates or allows, for example, a “compromise” between aggravating and mitigating circumstances in criminal cases, or a compromise between the principle of legal equality and the social state with regard to their connected explanation and use.
By its nature and practical functioning, politics is considerably less predictable and reliable than law. With a little irony, we can seek and find the confirmation of this in many political promises and predictions. Conversely, legal actions are fairly precisely determined by published legal acts, which can be changed only in accordance with previously envisaged and, as a general rule, public procedures. In contrast, political activity, especially in its part that legitimately extends beyond the sphere of law, is determined more loosely and is not subject to reliable timebased conditions and limitations. Furthermore, the share of political guidelines actually determined and political norms are determined by political actors and are not entirely transparently accessible to the public.
Politics and the law differ to a considerable degree regarding sanctions, although they partly also overlap in this field. On one hand, the law itself prescribes certain sanctions for politically unsuccessful actions, like a change of government as a consequence of a constructive vote of no confidence in the government. On the other hand, legal and political incorrectness can be simultaneously penalized in a legal manner, like imprisonment in the event of abusing a position of authority. Naturally,
there exist specific political sanctions that the law is not familiar with, for example, spontaneous or organized criticism, the demand for someone’s resignation, or not electing someone. Sanctions also exists that cannot be directly connected with political mistakes (e.g., a fine for a traffic violation). In law, it is only possible to pronounce a sanction in accordance with a legal procedure carried out prior to that, while in politics a sanction can also be imposed without such a procedure (e.g.
criticism or a boycott).
At this point, the difference between the law and politics stemming from their different perception of the relationship between rights and duties must be mentioned. Since both belong to the field of defining rights and duties, law and politics can be similar in this respect. However, the correlational imperative – attributive consciousness is primarily the domain of legal thinking and functioning, since only the law very clearly and consistently strives for the establishment of a proportionate correlation between rights and duties. At the starting level of the comparison between law and politics, it can be seen that political actors strive for an unlimited right to implement their own political ideology. The law in a democratic political system determines those limits that a particular political ideology is not allowed to exceed, since by doing such it would excessively or inadmissibly limit the space for the implementation of other admissible political ideologies, or it would inadmissibly interfere with the basic rights of individuals, or impede the fundamental constitutional values of society. On other levels of political functioning, political actors strive in their consciousness and actions for the maximum utilization of functioning space allowed by the legally defined rights and freedoms. In this respect, the law is considerably more balanced since it, corre1ationally and proportionally places equal weight and importance on rights and duties. In addition the law protects the fundamental human rights of individuals in relation to political authorities.
This presentation certainly does not encompass all possible differences between the law and politics. It is clear that these differences can also be relativized (or absolutized) in many respects. Nevertheless, such a presentation can be beneficial from many aspects because it calls attention to the fact that the law and politics are different due to their different value-related starting points.