Elements of Law 3.0 Notes of Readings: II-A (Hierarchies of Law and Governance: Sources and Uses--The State and Its Apparatus)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we consider the first part of section II of the materials:  II. Hierarchies of Law and Governance: Sources and Uses--The State and Its Apparatus.   Comments and discussion most welcome.

 The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

 II. Hierarchies of Law and Governance: Sources and Uses--The State and Its Apparatus.

Reading Notes for:

--John Locke, Second Treatise on Government (Thomas P. Pearson, ed., New York: MacMillan 1952) Chapter XI (Of the Extent of the Legislative Power).

--Carl Schmitt, Legality and Legitimacy 18 (Jeffrey Seitzer trans., Duke U. Press 2004) (1932). READ pp. 17-26.

--Larry Catá Backer, Reifying Law: Understanding Law Beyond the State, 26(3) Penn State International Law Review 521 (2008). READ PARTS I & II (pp. 521-46 of the published version); Available http://www.backerinlaw.com/Site/wp-content/uploads/2013/02/Reifying-Law.pdf.

We have spent the first part of this course examining the scope and meaning of law for contemporary lawyers. The answer to the question--What is law?--has produced a "lawyer's answer": it depends.  We have come to understand that variations on the simple answer--law is the manifestation of justice--merely provide a gateway to more profound questions.  Among these, the most important for the first year student of law touch on the connection between the form of law, its substance, and the culture of its function (its "Rechtssoziologie" or sociology of law; the way that culture shapes the relationships among courts, government, society and claimants).  The student was introduced to the basic forms of U.S. law--common law, statute, administrative regulation--and the ways in which each is distinguished from the others in terms of their operational premises, development and operationalization through courts, legislatures, and regulatory agencies.  We ended by considering the most current movements in the development of legal forms (and the form of their underlying substance).  If administrative regulations could detach the function of law from its form, might this functional law be detachable from the state? The answer could be found in the progression from the view of social norms as a dependent variable in the operation of law to its transformation as functional law available to state and non-state actors.

With these materials we turn our attention from a consideration of law as a set of autonomous and self-referencing concepts, to law contextualized within the modern state, and particularly within the United States. The central issue students will consider with these readings introduce a core tension in the construction of a government for states.  This tension arises from two distinct ways of looking at the relationship between government and law in the West.  On the one hand, law has been understood as an instrument of the state and the government established with the delegated authority (from the people) with authority to enact it (in whatever form permitted).  Under this view, law is understood as the product of the national will which can only be legitimately expressed as law when law making is asserted directly by the people or (more often) by the people's representatives constituted as the government of the territory over which the state has the power to impose its rules. On the other hand, law has been understood as related to but autonomous of the state and the government established to administer its territory. It is understood either as a reflection of the common beliefs and traditions of the people who are sovereign within the national territory or otherwise reflect the implementation of higher norms, usually understood as extrinsic to the state and its people (e.g., natural, moral, rationalist or international public) norms.

This is a tension that remains central to the ideology of the state, and as part of that ideology, the foundation of the way in which individuals  approach their relationship to the state (and to law).   Under the instrumental view, it sometimes follows that the fundamental question of government is the manner in which it may be used to provide for the welfare of the people, and the expectation is that the government will serve as the source and protector of people's welfare. Law then memorializes the range of protection of individual rights in law through the state.  This is a view that finds expression in its modern form first in the works of Jean Jacques Rousseau (especially his Social Contract or Principles of Political Right (original Du Contrat Social) (1762)) and then in the work of Carl Schmidtt, which the student has been asked to read.

Laws are, properly speaking, only the conditions of civil association. The people, being subject to the laws, ought to be their author: the conditions of the society ought to be regulated solely by those who come together to form it. . . . Of itself the people wills always the good, but of itself it by no means always sees it. The general will is always in the right, but the judgment which guides it is not always enlightened. It must be got to see objects as they are, and sometimes as they ought to appear to it; it must be shown the good road it is in search of, secured from the seductive influences of individual wills, taught to see times and spaces as a series, and made to weigh the attractions of present and sensible advantages against the danger of distant and hidden evils. The individuals see the good they reject; the public wills the good it does not see. All stand equally in need of guidance. The former must be compelled to bring their wills into conformity with their reason; the latter must be taught to know what it wills. If that is done, public enlightenment leads to the union of understanding and will in the social body: the parts are made to work exactly together, and the whole is raised to its highest power. This makes a legislator necessary. (Jean Jacques Rousseau, The Social Contract, Bk II,  § 6 Law).

Many civil law states in Europe, and Marxist Leninist states have embraced a form of this approach (e.g., Constitution of the People's Republic of China 1982). But no in the contemporary world it might be hard to provide an example of a state that has embraced a pure form of this approach. Indeed under modern constitutionalist principles even states that are inclined to this approach will also seek to constrain the government in which they have invested much faith and power. We will see an example in the German Basic Law as it sought to create structural constraints to avoid the constitutional excesses of the Nazi period. And the governing ideology of the state may also serve as a constraint, however well applied. (e.g., Constitution of the People's Republic of China 1982; Backer, Larry Catá, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese Constitutionalism. Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006).

The readings from  Carl Schmitt, Legality and Legitimacy 17-26 (Jeffrey Seitzer trans., Duke U. Press 2004) (1932) nicely illustrate this approach. In our readings Schmitt considers the legislative state and the concept of law.  He starts by considering the rise of the great legislative states of the 19th century and principally the Deutches Reich. Such legislative states embrace a formalist organizational framework grounded in legislative consent as the basis for the validity of law.  These formal concepts, Schmitt argues "are essentially political concepts For this reason, it was the decisive triumph of the legislature that law appeared essentially in the form of statutes and that positive law was in essence statutory law." (Schmitt, supra17).  There was a consequence for the customary law which had been a foundation of medieval conceptions of law: "the acceptability of customary law is denied where one fears it could damage the trust in the legislator so central to the legislative state." (Ibid). Indeed, and in an insight powerfully relevant to the relationship between statutory and common law in the U.S., Schmitt proposed that "the recognition of customary law always means a limitation on the parliamentary lawmaker to the benefit of other organs, especially, of course, the judiciary." (Ibid., 17-18).

In the legislative state, legal science is easily reducible to a simple equation--Law EQUALS statute; Statute EQUALS the state regulation  that comes about with the participation of the legislative assembly EQUALS law.  (Ibid., 18).  The "rule of law" and a principle of legality, central to 19th and  20th century legal theory, then, is dependent on the role of the legislature; "law in statutory form is the state" and "the state is law in statutory form." (Ibid).  It follows that the citizen has a duty to obey the law as a self referencing command--she must effectively obey herself when she (abstracted as part of the body of the state) is the sole source of the law: "only through the law in statutory form is the right to resistance eliminated." (Ibid).  Put a different way, Schmitt suggests rule of law as a set of fundamental equivalences: "The preexisting and presumed congruence and harmony of law and statute, justice and legality, substance and process dominated every detail of the legal thinking of the legislative state." (Ibid, 19).  With echoes of the Institutes Book I (Ibid, 19), Schmitt suggests that the legislative state avoids tyranny only through the development of trust built primarily upon the ability of process to ensure that law remains a manifestation of justice. Consequently, the "law-state" (Rechtssaat) is essentially a process-state.  Thus a system that places all trust in its all powerful legislators can avoid arbitrary governance if it is "dominated entirely by the presumptions of the already noted trust, which first leads to the congruence of justice and formal law." (Ibid., 20).  But such law might also have a substantive element in the form of legal principles as determination of "what should be right for everyone" and as a set of manged interferences with the freedom and property of citizens (Ibid., 21).

Yet Schmitt argues both protect against tyranny only if one adheres to the idea that by definition the legislator cannot legislate  anything but right (because the legislator is essentially regulating the abstracted incarnation of the aggregate of the collective self --the population (Foucault) , the people (Rousseau) (Ibid., 23). "In a democracy, law is the momentary will of the people present at the time, that is to say, in practical terms, the will of the transient majority of the voting citizenry;  lex est, quod populus jubet [law is what the people order and establish]" (Ibid., 24; quoting Gaius from the Institutes Bk 1. Tit. 2. P.3.). But he notes that this set of presuppositions and potential circularities can work only where the legislative state is supported (with a nod to Rouseau) by a foundational presupposition of a "homogenous people" that are "good" and that thus posits sufficient will to support trust and process  exercised through the representative legislature where the "will of the parliament is identified with that of the people" (Ibid, 24). It is only in this state that the formal concept of law can be coherently conceived.

Yet for Schmitt, functional disaster lies in the  construction of this set of presumptions that must exist to support the authenticity of the legislative state and the legitimacy of its delegated lawmaking power. "If the assumptions underlying the legislative state of the parliamentary-democratic  variety are no longer tenable, then closing one's eyes to the concrete constitutional situation and clinging to an absolute, 'value neutral', functionalist and formal concept of law, in order to save the system of legality, is not far off." (Ibid., 25).  The result is not collapse but instead a greater reliance on process and organizational rules and to the resort to written constitutions as constraints, not on the power of legislatures to but, but on the  form through which periodic legislative majorities could impose its will through formal law.  The problem of the legislative state, then, is essentially the problem of representation combined with the transfer of a power over law to the re-incarnated "population" of the state in its legislature; law, justice, the state then exist in an imperfect relation. 

Under the other, non-instrumental view, it sometimes follows that the fundamental question of government is the manner in its its power to affect individual autonomy may be constrained and managed.  The object of government may be to serve the people, but the suspicion of the use of government for tyranny and the individual interests of those who occupy positions within the governmental apparatus militates against extending excess authority to that entity. The fundamental idea here is to develop a higher law that protects people from government, and law is understood both to delegate authority to the state but to constrain  it as well. This is a view that finds expression in the construction of the federal Republic in the United States and underlies the work of the Federalist Papers and have their partial source in the work of John Locke, which the student has been asked to read.   The republic established for the United States tended to embrace a form of this approach.  Yet like other republics that tend toward this view in the construction of their government, there is a sometimes strong embrace of the idea of the identity between law and the state, and of the imperative of obedience to law legitimately enacted by the actions of those representatives of the people to which law making authority has been delegated. That, for example, marked the initial reticence to including a Bill of Rights in the American Federal Constitution:

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the petition of right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. ``We, the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.'' Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government. (Federalist Papers, No. 84 (Hamilton)).

Here one reads both the elaboration of a version of the traditional non-instrumental view, but here merged with a strain of the instrumental view of the state, government and law.  That sometimes uneasy jumble has tended to mark the jurisprudential ambiguities of the American Republic, it seems, form its inception.

 Like Schmitt, but several centuries earlier, John Locke also considered the problem of the legislative power and its relation to law; John Locke, Second Treatise on Government (Thomas P. Pearson, ed., New York: MacMillan 1952) Chapter XI (Of the Extent of the Legislative Power).  Locke starts from the well known notion of popular consent expressed through power delegation to a representative body. (Locke, supra, 75), but then moves in quite a different direction from Schmitt.  Where Schmitt (and Rouuseau) view all power and legitimacy flowing through and to this legislative incarnation of the popular will, Locke viewed the legislature as the nexus of power that itself must be contained by and protected against impositions on the people.

The idea of absolute legislative power is rejected.  First , the grant of legislative sovereignty is necessarily limited by the scope of the power actually transferred.  But the people may never transfer the whole of its power.  That notion is supported by reference to natural law: "nobody has an absolute arbitrary power over himself or over any other, to destroy his own life or take away the life or property of another." (Ibid., 76). And embedded within this natural law reference is a principle ultimately fundamental to American political theory, the idea that arbitrary power is inherently illegitimate. Arbitrary power is measured, in turn, by the object of its use--power may be asserted legitimately only if it is "limited to the public good of society.  It is a power that has no other end but preservation, and therefore can never have a right to destroy, enslave or designedly to impoverish the subjects." (Ibid).

Second, legislative power must be constrained by what Schmitt would call legality; "the legislative or supreme authority cannot assume to itself a power to rule by extemporary, arbitrary decrees, but is bound to dispense justice and to decide the rights of the subject by promulgated standing laws, and known authorized judges." (Ibid, 77).  Third, because "the preservation of property being the end of government" (Ibid., 79), the legislative power  cannot be used to deprive an individual of her property without her consent.  Notice here a fundamental difference with Schmitt; there is a presumption here that customary arrangements both precede and survive the rise of the legislative state and that the object of the legislature is necessarily not instrumental in principal effect but passive an protective--in the way we have come to understand the common law.  Indeed, Locke argues, an assurance of this protection lies in "assemblies which are variable, whose members, upon the dissolution of the assembly, are subjects of the common law of their country, equally with the rest." (Ibid., 79). Fourth, and ironic in the circumstances of 21st century governance, Locke argues that legislatures must be limited in their authority to transfer the lawmaking power to others. (Ibid., 81). Such transfer of power creates the possibility of tyranny as there is a loss of direct connection between the people and those accountable to them.  We will see how, over the course of the last century, U.S. jurists have sought to find ways to justify this delegation to the administrative state.

The last reading, Larry Catá Backer, Reifying Law: Understanding Law Beyond the State, 26(3) Penn State International Law Review 521 (2008), attempts to put these strains of theory together for the purpose of understanding the nature of the relationship between law and the state in the United States.  That relationship remains ambiguous and in a tension that carries over from unresolved issues of governance that contributed to the English Civil War the effects of which were profound on the intellectual developments in the colonies, especially in the form of the writing of Sir Edward Coke.

-->Backer suggests the way in which the constitutional deadlock of seventeenth century England, now broadened and freed of the artificial boundaries between public and private law, reproduces itself on a global level in the twenty-first century. To that end the he explores the way in which the contested understanding of law as object or subject becomes a critical element in the management of networks of power at the international global level and in the reconstitution of legal reification in global common law and private transnational legal systems.
He argues that in the West, the relationship of law and human organization, the relationship of law and the individual, and the relationship of the individual to the organizational forms individuals embrace, has been turbulent. At various times since the seventeenth century, law has been understood as an object separate from the state and its apparatus (usually a government). In this aspect, law has been constructed as the sum of the common relationships of the people amongst themselves—it is in this sense the manifestation of the people themselves as an aggregate body. Sometimes those relationships also included the political, social and economic relations of the social order. Sometimes it did not. Sometimes, this separate organism called law was considered superior to the state, or at least to the political organs of state power. Sometimes it was viewed as on par with those organs. At the same time, and increasingly since the seventeenth century, law has been viewed as the expression of state power,or at least that of its government In this view, the state, rather than law, is understood as organic. And law is understood as serving as the instrument of the state. In those cases, law was viewed as either process or language. As a manifestation of state power, or at least of the power of the apparatus of state, law was considered a means of ordering that manifestation of power, sometimes of cloaking that manifestation. When law is said to “rule” in the West, then, it is meant to cover a large terrain of complex and inconsistent meaning. Thus, law itself serves as a veil over its own nature.n process.

Backer argues that law remains as indeterminate a force in the twenty-first century as it was in the seventeenth century in England and the United States. Law serves those communities for whose benefit, or management or perfectibility, it is deployed. Law continues to construct itself, to suit the situation, or the tastes around which consensus on the nature of its reification are developed, sustained, modified and abandoned in favor of another. Law is particularly suited to management in the post-modern. Law is both system and discipline/technique of power in the current order.  Whatever the ultimate truth of the nature of law, its reality among communities of believers has been both mutable and unstable. Law constitutes both subject and verb, a thing and a tool. It constitutes the state and it remains something apart from the state. What four hundred years of debate seems to confirm is only this: law is a powerful totem for belief systems. Control of the meaning of law is among the greatest techniques of power. On one side are those who would resist invasion of ancient or traditional rights by increasingly powerful and aggressive institutional bodies—government, religion, corporation, and society. The source of resistance is the sure belief in the power of an autonomous reified complex of law. On the other side are those institutions, which conceive themselves as representatives of the whole or complete parts of the power of those they represent. Convinced of the perfection of the authority derived from such representation, these institutions resist the imposition of checks and restraints applied in new and more restrictive ways. The source of this resistance is the sure knowledge that law is separately constituted but is passive and instrumental, to be used by legitimate authority in the construction and articulation of normative standards that exist apart from law and subordinate to the genius of the political community. And perhaps, both the struggle and its inevitable frustration, more than anything else, illuminates the autonomy, the distinct personalities, of law reified, as the great insight for the twenty-first century.