Governing Subjects

An Introduction to the Study of Politics

Isaac D. Balbus

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9780415998895
• eBook ISBN: 9781135838898
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

This introduction to the study of politics explores the multiple meanings of "governance" as well as the several senses of what it means to be a "subject." It takes the reader on a journey through and across the domains of law and institutions, markets and power, and culture and identity, and shows how the understanding of any one of these domains demands an understanding of them all. The path through these related regions is marked by regular encounters with leading and competing thinkers—from the expected, such as James Madison, Robert Dahl, Michel Foucault, and Adam Smith, to the unexpected, such as Joseph Raz, Lisa Disch, Doug Henwood, and Joan Scott—that encourage the reader to evaluate their arguments for their internal coherence and explanatory power. Governing Subjects is at once a holistic and critical introduction to the study of politics.

Part 1

LAW AND INSTITUTIONS

1

LAW AND THE RULE OF LAW

The subject of this chapter is the nature of law and thus the meaning of the rule of law. The question, in other words, is what is law? But why should we care about this question? One answer—a relatively shallow one—is that political scientists have always included the study of law making, law application, and law adjudication—the activities of legislators, administrators, and judges—within the scope of their discipline. This answer is shallow because it begs the question of whether the discipline of political science as traditionally constituted should exist in the first place. But there is a more important answer, which is that, as individuals who are expected to obey the law and as citizens who are expected to make the law (if only indirectly through representatives whom we elect), all of us—even people with no particular interest in the discipline of political science—ought to know what it is that we are supposed to both obey and create. What is it, exactly, that obliges us to obey the law? What, if anything, distinguishes legal obligation from other forms of obligation to which we routinely submit—for example the obligation to keep a promise, the obligation to care for a sick relative, or the obligation not to lie? How do we determine whether those who are charged with the responsibility of making laws in our name are properly discharging their responsibility, and therefore deserve our support, or are acting unlawfully and therefore should be called to account? It would seem, then, that we need to answer the question “What is law?” if we want to be responsible individuals and responsible citizens.

One answer with a distinguished if dubious pedigree is that the law is nothing but the command of the sovereign. This is the answer given in the middle of the seventeenth century by the great English political theorist Thomas Hobbes, who argues in his master work Leviathan that individuals by nature seek ever greater power over others and that an all-powerful ruler—either a single man or a body of men—is therefore necessary to prevent individuals from living in constant fear of death at the hands of other individuals. The ruler must, in other words, be sufficiently powerful to be able to persuade individuals that the costs of aggressively, violently imposing their will on others outweigh the benefits because doing so would lead to swift and severe punishment at the hands of the ruler. Hobbes assumes, then, that given what he takes to be the aggressive nature of human beings¹ the only thing that will oblige them to obey the law is fear of punishment, and that this fear of punishment will be sufficiently intense only if the sovereign is not constrained by the law but is rather its exclusive source.

This essentially Hobbesian concept of law is taken over almost two hundred years later in the work of John Austin, who defines a legal system as “a situation in which the majority of a social group habitually obey the orders backed by threats of the sovereign person or persons, who themselves habitually obey no one.”² For Austin, then—as he puts it—“command and duty are correlative terms”³: my duty to obey the command of the ruler extends no further than, is exhausted by, my desire to avoid the “evil”—the punishment—that would follow if I disobeyed it. As many have pointed out, this means that Austin is unable to distinguish the situation of legal obligation from the situation of being obliged to hand over my money to a gunman who commands that I hand it over.⁴ But this reduction of legal obligation to coercion ignores the fact that people may obey the law for a variety of different motives, and often do so even when the chances of being punished for violating it are slight, or even nonexistent. Some people obey the law because they believe it is right to do so even if they judge that the chances of being caught if they break it are extremely remote.⁵ Some governments—not all, as we have all-too-recently discovered—obey international law even if, as effectively remains the case, there is no sovereign body capable of enforcing it. The command theory of law cannot explain why this is the case.

This can be put another way. Americans learn from a very early age that this is supposed to be a “government of laws, not men.” This implies that the law cannot merely be anything that men decide, that the men who make the law are not “above” the law but must rather be constrained or limited by it. Thus law cannot be reduced to, equated with, the mere command of the sovereign. Consider the phrase the “rule of law,” which American political leaders celebrate and, recently, have attempted to export. If law were nothing but the command of the ruler, then this phrase would be redundant, since law would be defined in terms of rule. If the phrase has any meaning, in other words, it can only be because the law—once again—limits or is supposed to limit the commands or will of the ruler: as Joseph Raz has argued, not just any sovereign commands, but only those that are general, prospective rather than retroactive, relatively stable, etc., are consistent with the rule of law.⁶ More on this shortly. For now I want to raise the question: Why should the will of the ruler be constrained, especially if—as in the case of a democracy—the law issues or is supposed to issue from the will of the people? Why should the rule of law trump the will of the people? How can popular sovereignty—the power of the people—be reconciled with the limits on the power of the people that the law imposes?

One answer is that at one time—the time of the founding of the constitution— the people decided that there should be limits on the subsequent power of the people, that certain spheres of individual action—typically referred to as “rights”—should be exempt from popular, that is, governmental, interference or control. Thus, according to this line of reasoning, democracy or popular sovereignty and the limits of the rule of law are ultimately consistent because the people originally decided to impose those limits on themselves. But this argument only raises two closely related additional questions. First, why should subsequent generations be bound by the decisions of an earlier generation? Why should we be limited by the limits imposed by people we never knew and in whose decision we never participated? And, second, even if we could satisfactorily answer that question—even if we were to argue, for example, that the constitution gives us the right to amend the constitution and that if we choose not to we can be presumed to give our current consent to the limits it imposes on us—what authorized the founders of the constitution to create the constitution in the first place? The constitution authorizes the subsequent exercise of power, but an exercise of power was necessary in order to create the constitution. What then ultimately justifies the constitution that subsequently justifies the limits on the sovereign (power of the people)?

The answer of the legal positivist is nothing. Thus H. L. A. Hart argues that the law rests on an ultimately arbitrary basic norm or “rule of recognition,”⁷ a rule or norm that creates and legitimates the law but that cannot itself be rationally justified. Thus for the positivist there is nothing inherently moral about the rule of law: the “rights” it creates are purely conventional in the sense that they are granted by a convention—a rule of recognition—that itself has no natural or essential basis. Rights, in the language of our day, are merely “social constructions.” But this argument seems unsatisfactory, since it leads to the conclusion that the obligation to obey the law, whose immediate or proximate source is the constitution or rule of recognition, is ultimately as arbitrary as Hobbes’s or Austin’s command of the sovereign. Why should I obey the law if the convention or norm that establishes the law cannot itself be justified or legitimated?

The (modern) natural law approach to law answers this question by denying that the constitution or rule of recognition is an arbitrary social construction and arguing instead that the “rights” that it recognizes and guarantees are rights that are inherent in what, in a pre-feminist age, was called the Nature of Man. Thus the natural law theorist claims that the constitution or rule of recognition that limits the power of the people by subordinating it to the rule of law is legitimate to the extent that the rights it grants are natural rights, or what today are sometimes called universal human rights. According to the natural law tradition, then, the ultimate justification for the rule of law is natural law: human law is legitimate, is only truly law, if and when it expresses and reinforces human nature, or what are understood to be the essential purposes of human life, the enduring content of what it means to be human. Only natural law in this sense, it is argued, justifies both the binding force of the constitution on subsequent generations and the creation of that constitution in the first place.

But this argument only raises the question—the very thorny question—of what precisely is human nature? If true law must be consistent with and contribute to human nature, then we would need to agree on the answer to this question—what is human nature?—in order to agree about what constitutes true law. But even passing familiarity with the history of Western political thought alone reveals there is anything but consensus with respect to the question of human nature. Are people essentially rational beings, or are they essentially appetitive creatures, driven by their passions or appetites? Are they social or a-social, or even anti-social? Cooperative or competitive? Or some combination of all these attributes? Do we side with Plato, Hobbes, Rousseau, or Marx on human nature? The persistence of profound disagreements among those who follow each of these thinkers, as well as many others, suggests that agreement on what constitutes human nature is—to say the very least—very hard to come by, even within the context of a Western tradition that traces its roots back to Ancient Greece. When we recognize—as we should—that this tradition is only one among many others, the likelihood of universal agreement on human nature becomes even more remote. In short, if we need to agree on human nature in order to agree on what constitutes a genuine law, then we are unlikely to agree on what the law really is.⁸ To restate this problem in a way that ties it to the problem of the legitimation of the constitution or ultimate rule of recognition: if the constitution that justifies the rule-of-law limits on popular sovereignty can itself be justified only through a successful appeal to natural law, and what constitutes natural law is intrinsically controversial, so that the appeal to natural law is bound to fail, then it would appear that the effort to justify the rule of law must fail as well.

Are there any alternatives to the unsatisfactory either/or of positivist versus natural law approaches to the law? Positivism effectively denies any connection between the law and morality by arguing that legal obligation is, at bottom, based on norms or rules that have no intrinsic moral content. Natural law effectively collapses the distinction between law and morality by arguing that law is only truly law if it expresses and reinforces moral purposes that express and reinforce human nature. There are in fact intermediate positions, positions that argue the case for a certain connection between law and morality without— they believe—taking recourse to inherently controversial claims about human nature. The author of one of these positions is Joseph Raz, a contemporary legal theorist who argues that the rule of law possesses a “moral virtue” even if it falls far short of embodying a full-scale and complete morality, even, in fact, if it is consistent with and doesn’t discourage the existence of a number of moral evils in the society that it governed by it. To understand this claim, consider a partial list of the principles that, according to Raz, “can be derived from the basic idea of the rule of law”:

1 “All laws should be prospective, open and clear.” Prospective: a retroactive law, proscribing and penalizing some past action even though it was legal at the time it was undertaken is not a genuine law. Open: “The law must be open and adequately publicized”: individuals should be able to determine what the law is if their actions are to be guided by it. Clear: individuals cannot be guided by the law if they are uncertain of its meaning.

2 “Laws should be relatively stable.” People need to know the law for “longterm planning.” And if the laws are frequently changed people will live in “constant fear that the law has been changed since they last learnt what it was.”

3 “The making of particular laws should be guided by open, stable, clear and general rules.” General: laws must apply to general classes or categories of individuals and not single out particular individuals or make invidious distinctions among them. The generality of the law is closely related to its commitment to formal equality, that is, in David Ingram’s word, it “treat[s] everyone as equally subject to the law and equally capable of rationally abiding by it.”⁹

4 “The independence of the judiciary must be guaranteed.” Courts must apply the law rather than act for other reasons, and for them to apply the law they must be “free from extraneous pressures and independent of all authority save that of the law.”¹⁰

Raz argues that these and other principles required by and embodied in the rule of law have moral value in part because they serve to check some (but not all) forms of the arbitrary exercise of governmental power. But the most important reason “for valuing the rule of law,” he tells us, is that the rule of law “respect[s] human dignity.” It does so by providing a “stable, secure framework for one’s life and actions” that enables one to “choose styles and forms of life, to fix long-term goals and effectively direct one’s life towards them.” It thereby treats humans as “persons capable of planning and plotting their future,” and respects their dignity by “respecting their autonomy, their right to control their future.”¹¹ Raz emphasizes, however, that this minimal “moral virtue” of the law does not guarantee that the law will be used for good and just purposes. One can imagine all kinds of bad laws that are prospective, open, clear, stable, and applied to individuals by an independent judiciary. In fact Raz claims that:

a non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, s...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface and Acknowledgments
• General Introduction
• Part I Law and Institutions
• Part II Markets and Power
• Part III Culture and Identity
• Part IV Conclusion
• Glossary of Names
• Endnotes
• Bibliography
• Index