Robert Post (Yale Law School) has posted Theorizing Disagreement: Re-Conceiving the Relationship between Law and Politics (California Law Review, Forthcoming) on SSRN. Here is the abstract:
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The article theorizes disagreement in law and politics. It argues that politics is a social practice whose point is to promote the social solidarity of a polity by preserving the health and vitality of ongoing disagreement. If there is too much disagreement, adversaries become what Chantal Mouffe calls 'antagonists' who wish to exterminate each other in war. Political actors are not antagonists but instead are what Mouffe calls 'agonists:' those who, within a polity, disagree about what is to be done and about how to do it, but who nevertheless agree that they will entrust the determination of their common fate to the peaceful processes of politics. Politics is a social practice constructed to preserve relationships of agonism.
Law, by contrast, is a social practice built around the need for fostering cooperative and coordinated action. If politics presupposes disagreement, law presupposes agreement. A society employs the social practice of law when it has agreed upon what it wishes to do or when chooses to act as if it had reached an agreement. Once committed to the professional expertise of the legal system, questions cease being political in the sense of being agonistic. This contrast between law and politics explains many of the distinctive features of political and legal institutions.
The article contrasts the social facts of agreement and disagreement with the representation of these facts within the practices of law and politics. Disagreement persists in law, just as agreement continues to underlie politics. Law and politics deal with these social facts in different ways. The internal presumption of agreement that generates law often leads legal actors to ignore the political foundations of the legitimacy of legal institutions. Although we may pass from politics to law whenever we wish to act as if we had reached agreement about the meaning and implementation of a social value, we can also pass back from law to politics whenever we discover that our conclusion is misplaced and that in fact we wish to create the space for ongoing political disagreement. Law and politics should thus be conceived as distinct phases of a larger and more inclusive process of social integration by which modern heterogeneous societies produce solidarity and control.
The article contrasts this framework for understanding the law/politics distinction with the views of Herbert Wechsler and of the legal process school. Written as a tribute to Boalt Professor Philip Frickey, the article uses different approaches to the law/politics distinction as a way of illuminating a question that is central to Frickey’s work: Can judges properly consider the political consequences of their decisions insofar as these consequences adversely affect fundamental national values like the stability of the rule of law or of the American polity?
