Abstract
Autore:
Pepe Anna Maria
Titolo:
"Diritto e politica: possibili interazioni"
This article attempts to provide an outline of the possible relations between law and politics, mostly from a philosophical perspective. That means to analyze different ways of viewing how and to what extent the legal phenomenon relates to the political one. In particular, I distinguish two fundamental views. The first one considers law and politics in terms of specific and autonomous spheres, as it is outlined by the Henri Bracton’s medieval doctrine: «gubernaculum» is the sphere of Government, within which the king was “absolute”; and «iurisdictio» is the sphere of Right, over which the king had no power. The second view, instead, reduces politics to law, or vice versa. The first reductionism is best exemplified by the Hans Kelsen’s “pure theory of law”, that tries to depoliticize the discipline and the political system. The second one is propounded by realist scholars, such as Machiavelli and Weber, which claim the Hobbes’ famous axiom: “authority, not truth makes the law”. They also argue that law, as a product of political power, can’t efficiently limit that power.
Julien Freund essentially subscribes the realist thesis, but in his own way. Inspired by Weber and Schmitt, he reconnects the legal phenomenon to a «political will», to a sovereign decision. But, in his plausible view, law also presupposes ethics, since “law appears as there is a political will to organize society in the fairest way possible”. Defined as a “dialectics between politics and morality”, law is not reduced to be a mere instrument of political power.
