There is a close relationship between politics and law. The realization and secularization of law is the process of legal politicization. Politics not only produces laws through the legislative process, but is also the power base of the law and exerts influence in the application of the law. The legalization of politics is the key to establishing order in the political field and effectively restraining power, but politics also retains territories that are not regulated by law. The legalization of politics forms the branch of political law. Interdisciplinary research is the research tradition of Western jurisprudence and political science, and critical law is a typical representative of the combination of legal and political science research.
The relationship between politics and law is complicated and confusing, and it is an eternal issue in social sciences. Brigham pointed out that the prepositions connecting politics and law are extremely complex. If "and" is used as the connector, that is, "politics and law" or "law and politics", politics and law are regarded as two different things, even competing and subversive opposites, but there is still a gap between the two. There is mutual correlation, and this correlation can be further explained as follows: using "的" as the connecting word, that is, "the politics of law" or "political law", and using "中的" (中的), which emphasizes mutual penetration, as the connecting word, That is, "politics in law" or "law in politics." [1] The author intends to analyze the relationship between politics and law from the perspectives of "politics in law", "political law and political law", and summarizes the cross-research results of Western jurisprudence and political science, and finally discusses the research paradigm of legal and political science .
1. Politics in law
The term "politics of law" is generally considered to have a critical connotation, that is, the law is subverted and penetrated by the corrupt role of politics. This is unwilling to mention And the formulation of sad resignation is actually based on the premise that "the law is sublimated and politics is a bad influence". [1] The author believes that politics should not be viewed simply as a negative effect of law. However, in order to avoid ambiguity and reduce misunderstandings, the more neutral term "politics in law" is used to illustrate that politics is a feature of law. part of.
(1) Realization and secularization of law
In ancient society, the authority of law comes from long-standing traditions or creations of gods. Law is not an object of human decision-making, but It is an object of cognition. Therefore, the law is not affected by politics in terms of its connotation or its effectiveness. The law is above the political ruling group. Politics is not to shape the law, but to maintain the law so that when violations occur When the situation arises, the original legal state is reestablished, politics is given power, and it has the legitimacy to require the people's obedience. This kind of eternally effective legal system presupposes a society that does not change itself, or at least presupposes that social changes are slow and there is no pressure to adapt to changes. Even in pre-modern society, legal reform was subject to the old law. It was not a modification, let alone an abolition. It was just a concretization and supplement of the old law. Therefore, the law gained normative effect based on its internal consistency with traditional law or transcendent law. , rather than based on political decisions. The religious schism in Western society in the 16th century impacted the people's belief in the divine origin of the legal order and the immutability of the legal order based on it. At the same time, the political system gradually became more complete and independent. The concept of sovereignty describes the supreme power within the country, which is not only ineffective in itself. Be bound by the law and make the law. The relationship between law and politics has undergone a complete change. Law is made by people and becomes a tool to pursue political goals. Politics transcends law and gives law its connotation and effectiveness. [2] Therefore, the realization and secularization of law are essentially the politicization of law.
(2) Political basis of law
From the perspective of legal history, the politicization of law is only a certain stage of historical evolution. However, in modern society, the politicization of law It is objective reality. The most intuitive manifestation of politics in law is the politics of the legislative process. Different people have different political opinions, and even form different political groups because of this. Society must reach certain political consciousness and enforce it at certain times and under certain circumstances. Legislation is to gather and condense political opinions. Through the main ways and channels, various political wills are expressed, collide with each other and are ultimately transformed into universally binding legal wills during the legislative process. Politics is the art of compromise, and the compromise of different political wills constitutes the internal mechanism of the operation of the legislative process. German statesman Bismarck is said to have a famous saying, "There are two things in the world, and enthusiasts should not observe their production process. One is sausage and the other is law." This is a criticism of the compromise factors in the production process of law. However, the author believes that in order to clarify the true meaning of the high-sounding words in law, it is precisely necessary to explore the game of interests in legislation without avoiding the kitchen.
Legislation is a typical political operation and the output link of law. Therefore, law is a creation and appendage of politics.
The deeper meaning of politics in law is that politics provides the power basis for law. "The God of Justice holds a scale in one hand to enforce justice, and a sword in the other to achieve justice. A sword without a scale is nothing but violence, and a scale without a sword is just justice in name only. The two are dependent on each other. The use of the power of the sword and the use of the scale The skills can be coordinated, and then the law can be fully implemented." [3] 2 Power is the sword of the God of Justice. Power provides the law with a double guarantee of psychology and violence. On the one hand, people are frightened by the sanctity of power, which leads to awe of the law. On the other hand, people are frightened by the real threat of power and have to obey the law. [4]31 Therefore, “the ‘sky of law’ does not exist independently. It is built on the pillars of politics. Without politics, the sky of law may collapse at any time.” [5]201
(3) Politics in the application of law
The political basis of law reveals the entangled relationship between law and politics in the legislative process. The principle of the rule of law requires the use of legal restrictions The absolute and arbitrary nature of power creates a separation between law and politics in the application of law. That is, after a law is passed politically and becomes effective through legislation, although politics can continue to determine the existence of the law or initiate modification or abolition, the operation of the law is separated from politics. The origin becomes independent and acquires an independent life. This institutional separation of law and politics based on the separation of powers is presupposed by the complete rationality of legislators, that is, political legislation can provide no loopholes and contradictions, precise and unambiguous language, standardize all practices, and be consistent with economic and social changes. With synchronized legal norms, the administration and the judiciary only passively apply the law without any discretion.
The theory of the dichotomy between politics and administration is a deduction of the distinction between law and politics. Goodnow pointed out that "in all government systems, there are two main or basic government functions, namely the expression of the national will." There are also separate agencies in all countries, and each separate agency spends most of its time performing one of two functions. These two functions are: Politics and Administration”. [6]12-13 However, due to the structural flaws, lack of professional knowledge, psychological disadvantages, absence and lack of rotation of the legislative body, it inevitably tends to weaken. In addition, the areas of modern state intervention continue to expand, such as the regulation of economic activities. , risk social governance, etc., policy participation and decision-making are gradually increased in the administrative process, and the politicization of administration has broken through the boundary between politics and administration.
Using so-called intelligent software to try litigation cases has become a whimsical dream or a ridiculous farce. Cognition and will are inseparably combined in the judicial process. There is no purely technical and neutral legal method. , choosing from many competing legal methods has political connotations in itself. Therefore, "the influence of the judge's pre-understanding, origin and socialization, as well as the judge's political preferences and worldview orientation are unavoidable here." [2] “Once we encounter the substitution of judiciary and law for spontaneous consent, we find in most courts a mixture of dispute resolution, social control, and legislative functions, often with administrative or general The exercise of political power is combined so that part of the work performed by courts and judges is political in nature...The functions undertaken by courts vary in different contexts from supporting the legitimacy of the regime to allocating scarce political resources or determining primary changes in social policies”.