Understanding the Relationship Between Law and Power
ITEM 4: The Thesis of the Radical Opposition Between Law and Power The thesis of the clash between law and power has given rise to two different positions:
1st Position
The first position argues that law and power represent phenomena that are essentially different and mutually exclusive. Law and power in social action often fall antagonistically; the law represents the proper social order, while power can only generate a violent and repressive social order. Thus, the mission of the law is to control power.
2nd Position
The second position maintains that, despite being two different principles of action, they are not only incompatible but are also called to be complementary in function to shape the social order. The law not only needs to exist and be effective, but it must also submit to the wills of those who claim to oppose its guidelines. Its essential nature and purpose of order and security within the social order require that the law has a power that is able to impose its mandates irresistibly. The law cannot be identified with power or be reduced to a mere reflection of it, because it is always immersed in a dialectical relationship with power, constantly in a dynamic and unstable compromise between power and the interests and requirements of incorruptible security. The Doctrine of Complementarity Between Law and Power On one hand, political power is an inevitable element for the continued cooperation of society; on the other, law is the ordering principle that regulates industrial relations and subjects the exercise of control to general social norms. Political power uses the guidelines of general and stable rules that describe how to lead people to live together and determine what is good and bad from the perspective of prevailing values in society. Thus, political power acts as a regulator of its own management, coordinating the many wills and interests to achieve the legitimacy required for society to voluntarily submit to it. Political power claims the existence of law, as this is precisely the instrument of rationalization of mandates from power. And the law calls for the support of a political power capable of guaranteeing its effectiveness. However, law is not only a construct and means of carrying out the projects of political power; its function is to organize society by having a partially autonomous guidance and ultimately imposing on the primary interests of power. The Debate on the Role of the State in the Process of Law Design and Implementation The state is the most significant historical example of the institutionalization of governance associated with the right of permanence, whose scope and depth should clarify The Issue of Conceptual Primacy. This doctrine has been questioned since antiquity: the difference or identity between law and the state, mutual influence, mutual dependence, and the primacy—chronological, logical, and ontological. The central problem is: Is the state the foundation and root of the law, or is it the law that serves as the configurator of the state? There are three basic answers:
1. Primacy of the State Over Law
This view affirms the primacy of the state against the law. The existence, scope, and effect of law are under direct state control, as it is the state that decides the existence and content of the law and has the power to impose such behavior on all recipients, including rebels.
2. Primacy of Law Over the State
This perspective advocates the rule of law against the state. The law exists before the state, as it can be thought and explained independently of the notion of state, since the idea of law inherently contains elements of human consciousness, which led to the development of evolved political organizations.
3. Identity of Law and State
This view espouses the matching or even the identity of both, based on the idea that they are two different terms for the same scientific object. The state is merely the personification of all positive law, and law is the state regulated. From these three approaches, it follows that it is difficult to think of the state without considering the law, just as it is challenging to define the law without making any reference to the state. There are two realities that have abundant convergence, both structural and functional. The Problem of Control Over the Processes of Creation and Implementation of Laws Within the relationship between law and the state, there is a particular issue that deserves more in-depth explanation: Is law an exclusive creation of the state (monism), or is it rather produced by other institutions or social powers (legal pluralism)? The starting point for the analysis of this issue arises from the identification of law with the set or system of rules created and enforced by state authority, while recognizing that although the law is mostly created by the state, The Institutional Relationship Between the State and the Law is crucial. The close correlation that exists today between law and the state is the result of the long evolution of both realities. The state is a model organization that did not materialize until the 14th and 15th centuries, and one of its characteristics was the ownership of the process of creating and applying the law, submitting to legal regulation in the exercise of its powers and becoming state law in the basic instrument of managing political activity. By the 19th century, the Rule of Law reached the fruit of a long process that set the legal and political situation in accordance with the following characteristics:
- Primacy or rule of law
- Separation of legislative, executive, and judicial powers
- Affirmation of the legal status of the state
- Recognition and guarantee of individual rights and freedoms
- Legality of actions of the administration and control of them in court
Today, for a state to be recognized as a genuine rule of law, it must meet the basic requirement of being linked and subjected to a legal order built around the recognition of the dignity of human persons.