Politics and law have long entertained close but fraught relations. I define politics here as society’s deliberations and decisions in response to the particular problems or crises it encounters. An appropriate course of action has to be formulated to deal with each specific situation—one that tallies, of course, with the main goals of that social order: its preservation and the furtherance of its own values and interests. Law, on the other hand—defined as the commandment that prescribes or prohibits certain modes of behaviour, under threat of sanction—aspires to be as general and as constant as possible, to apply equally to all members of society, to endure. Emergency legislation, rushed through in response to circumstances, always has a bad name. Law discounts individual particularities and the uniqueness of any given situation. To act under its aegis is to apply a norm, to subsume a particular case under a general rule.
Thus defined, politics and law represent two modes—both antagonistic and complementary—of governing society. Antagonistic, because politics is the improvisation of a riposte to a specific, unforeseen event, whereas law, aiming to establish uniform standards of behaviour and social stability, submits action to pre-ordained rules. Politics and law therefore oppose each other as singular versus general, innovation versus the application of set forms. The two are nevertheless complementary, since their relationship is one of mutual dependence. Law encases and constrains politics—at least in the case of those regimes that have some respect for legal conventions and rights; but it is politics that makes the law and, as the case demands, remakes it. The adoption of a new law is one of the responses that politics can make to an event. Neither law nor politics can pretend, therefore, to a monopoly over society. A social order run solely according to existing laws would either be one in which all eventualities had been foreseen and government could restrict itself to administration; or one that condemned itself to be wrongfooted by every external development. Conversely, a society wholly without law would be either anarchic or despotic; in either case it would be subject to permanent instability, totally unpredictable for its members and its neighbours, rapidly becoming intolerable for both. Like hostile brothers, politics and law are both implacable and inseparable. The problem, then, is to allow each its proper part in government, to trace a line of demarcation between them that will permit us to distinguish what should pertain to each, in any given case. A difficult task, as the ‘objective’ characteristics of the situation are not the only issues at stake: a predisposition towards change or conservation, equality or difference, will incline a society to privilege either politics or law.
The antiquity of the debate is well established. In classical discussions on the limits and insufficiencies of law the sovereign’s refined intelligence, capable of devising a specific solution for each particular problem, was considered far preferable to the coarse brutality of legislation, which applied identical treatment to such a varying range of individuals and situations. As I have tried to demonstrate elsewhere, this critique of law is one of the rare instances where Plato, in The Statesman, is in agreement with his Sophist enemies. Thucydides expresses himself on the question in his customary roundabout manner: the eulogy to law, in the face of those ‘superior spirits’ who think themselves above it, is entrusted to the demagogue Cleon. The intention in this essay, however, is not to present the debate in its entirety or trace each stage of its development; but rather, focusing on the modern period, historically defined—that is, from the sixteenth to the eighteenth centuries—to look at four ‘snapshots’ of the discussion through the work of four different authors, in the hope of identifying some of its essential features.
First snapshot: Machiavelli. The hegemonic thought of the Middle Ages kept politics within very narrow limits, obliging it to respect both the divine will—as interpreted and transmitted by the Church—and the natural and social order, determined by celestial authority. Machiavelli’s great innovation, of course, was to free politics from the yoke of religion. His starting point was the proposition that the existence of law and morality supposes the existence and preservation of the state, within whose shelter they find a space to operate and regulate human affairs. Outside the state, or prior to its birth, neither law nor morality can exist; its founders will therefore be unconstrained by these two factors, and, in the absence of law, it is politics that dominates the entire terrain. If the creation of the state is the Prince’s privileged task, it follows that he must dedicate himself to politics, above all else.
This vital link between the Prince and politics does not cease with the state’s foundation. He remains its guardian in the face of multiple threats, whether internal—conspiracies, sedition—or external: invasions and wars. Moreover, the state is doomed to corruption and decline, and is therefore compelled to undergo a periodic regeneration (every ten years, Machiavelli advises) which amounts to a virtual re-founding. Throughout this period, and in face of every danger, the Prince finds himself in the same situation as before the state was established; its defence is to be assured by all the means at his disposal, even illegal ones, since if it falls, law too will disappear. Hence the formulation of those maxims that have given Machiavellianism its diabolical name. The Prince alone must retain all power and may resort to any means, even murder, to protect his monopoly; he must be both beast and man, and able to imitate the fox as well as the lion; he must know how to feign and betray trust, how to identify and instigate effective cruelty. His only obligation to obey the laws is a political one: if he scorns them too openly he will attract his subjects’ hatred, so he must flout them with some circumspection. The Prince’s total liberty in this respect is justified not only by the necessity of safeguarding the state, and therefore the very possibility of law, but by the inconstancy of men and fortune to which he must be able to adapt, unfettered by legal constraints. Here the unchanging nature of the law makes it an obstacle to the necessary flexibility of politics.