Is Law Political?

¶ … law and politics and demonstrate what the difference is, if any, between law and politics. The difference between law and politics has been debated among those to who are referred to as "purists," which are those who hold as a belief that "law" and "politics" have nothing to do one with the other and those which are referred to as "legalists" would adhere to the belief that there is absolutely no difference between law and politics.

The first obvious step of discovery is to examine the definition of each of these subjects. The definition given for law is as follows: rule established by government. 2. legal profession police 4. rule of natural phenomena. Next to discover the definition for politics which, is listed as follows: Politics: n 1. Theory and conduct of government 2. Political affairs and methods.

At first glance it does seem that the two indeed are the same, and surely there cannot be a valid denial that the two are very closely related, however, can law and politics be truthfully stated to be one in the same? What Others Have to Say According to the Centre for Law, Politics and Culture, law and politics are closely related but yet not the same as is evidenced by the following statement: The confluence of Law, Politics and Culture cannot be avoided in most approaches to studying the mainstream media, which are simultaneously powerful and highly regulated institutions and systems of cultural representations." Michael C.

Dorf, an attorney, stated the following in his article entitled, "Is There a Distinction between Law and Politics? Yes and the Bush V. Gore Decision Proves It": Of course, many issues that are hotly debated in the political arena also become legal issues for resolution by judges - and many of the arguments made in the political forum are also made in the judicial forum. Yet it hardly follows from this overlap that every judicial decision is simply a political one.

Judges are bound by legal texts and their own prior precedents to a degree that political actors are not. And crucially, judges have an obligation to explain their results as the product of legal judgment.

Thus, law and politics are neither completely distinct nor indistinguishable." There are those who will invariably argue that the decision of a judge is one that is many times made on a whim which may be determined by the state of his familial relations, his satisfaction with his breakfast and many other irrelevant issues to the process of law.

Indeed, as pointed out by Michael Dorf, the judge is bound by legal statutes and codes and his decision must fall within the scope of the written laws and to these is he bound unless, as does happen, an injustice is found within the scope of the law and then his decision is the creation of what is referred to as "case law" and is subject to judicial review.

The fact is that no judge wants his ruling overturned by a judge higher up and will adhere to written and precedent law faithfully to avoid his decision being overturned by a higher court. Furthermore, the judge is bound by precedent, or the previous decisions handed down by himself or another judge. To think that a judge can on whim or tangent rewrite the basis for judicial decision is incredulous, however, to think that it never happens is thinking unrealistically.

The following has also been stated on the subject: Where legal realism had emphasized the indeterminacy and potential arbitrariness of judicial decision-making, critical legal studies focused on politics. The "crits," as they were known, reveled in demonstrating how throughout American history, judges had resolved ambiguities in the law by rendering decisions that served the interest of the dominant social class - or, at least, the political values held by the particular judges on the bench.

Without a doubt, there have been cases of favoritism displayed toward members of the upper sector of society wherein the judgment rendered by a member of the judicial system was flagrantly inconsistent brushing aside both code and case law and to think that this never occurs is also thinking unrealistically. II. Another Viewpoint: In a recent essay entitled "Against the New Liberalism" the following was stated by the author: They (the Americans) are abstract individualists; we (the British) are sensitive to historical situatedness.

They are too professionalized and removed from political reality; we-in the guise of Smith, Hume and Mill -- are more eclectic (not only political philosophers but "also political economists, historians and social theorists") and are anxious to understand the deeper significance of major political developments. They are idealists and rationalists; we know that the world of politics is always touched by struggled and war in sum Americans prefer law to politics..." Perhaps the author has a point in what is being stated.

It is true that Americans are somewhat of idealists in the realm of law and politics, but then isn't that what our forefathers took a long journey across the ocean toward this new and wild land in search of? Indeed those individual, case by case, and fact by fact "ideals" were rooted in the very essence of the law within America.

In fact, in spite of the difficulties which have been faced by this country since 1776 at the signing of the Constitution in Philadelphia the law has remained, at least in ideal form, a completely separate entity from that which we call politics. Indeed, the very escape from politics and all that is entailed within the political world is the very backbone of what we call the law in the United States.

United States "law" was woven from the very fabric of the ideals of justice which is at the very roots and foundation of the beliefs in America and is depicted through the halls of justice by the balanced scales. In other words, there is no way within the scope of the Constitution to truthfully say that law and politics are one in the same, without rendering everything that the Constitution of the United States stands for as invalid.

Politics is the human mechanism that is most assuredly "related" to law, without a doubt is an influencing factor of law, but to state that politics and law are one in the same wipes away over 200 years of historical precedent in the United States court system that upholds it to be "self evident that all men are created equal." If indeed, we are to believe that this statement is true, that all men "are" created.