Overview of Law and Politics the Study of Law and Politics
Abstract and Keywords
This book deals with the interdisciplinary connections of the study of law and politics. It discusses jurisprudence and the philosophy of law, constitutional law, politics and theory, judicial politics, and law and society. The book reviews three prominent traditions in the empirical analysis of law and politics and, indeed, politics more broadly: judicial behavior, strategic action, and historical institutionalism. It also focuses on questions of law and courts in a global context and on how law constitutes and orders political and social relationships. Moreover, the book: examines how courts, politics, and society have intersected in the United States; reviews several recent interdisciplinary movements in the study of law and politics and how they intersect with and are of interest to political science; and offers personal perspectives on how the study of law and politics has developed over the past generation, and where it might be headed in the next.
Law is one of the central products of politics and the prize over which many political struggles are waged. The early American jurist James Wilson observed that law is the “great sinew of government” (Wilson 1896, 1, 314). It is the principal instrument by which the government exerts its will on society, and as such it might be thought to lie (at least indirectly) close to the heart of the study of politics. But law is also the means by which the government organizes itself. It is law in this second mode, sometimes called public law, that has attracted independent attention. Here law is not only the product of politics but also constitutive of politics.
The study of law and politics is a varied and multidisciplinary enterprise. From its starting point in political science of studying constitutional and administrative law, the field soon added courts, lawyers, and related legal actors to its purview. And the substantive scope of the field is broader now than it has ever been. Although the US Supreme Court has always been the center of gravity within the field in American political science, the politics of law and courts in the international arena (p. 242) and in other countries is receiving growing attention, and thriving communities of scholars continue to explore other aspects of law and courts beyond constitutional courts and peak appellate tribunals. The interdisciplinary connections of the study of law and politics have varied over time; but, like the discipline of political science, the field of law and courts has readily borrowed concepts and methods from other disciplines. Active scholarly communities concerned with various aspects of law and politics in various disciplines make this a particularly good time for cross-disciplinary conversations among those in political science, and those in the humanities, the other social sciences, and the law schools.
With increasing diversity comes specialization, and there is always the danger that specialist scholars who are broadly concerned with law and politics will nonetheless find themselves sitting at Gabriel Almond’s (1990) “separate tables,” having separate conversations and missing some of the productive cross-fertilization that can take place across the field as a whole. The range of scholars working in the field do not always talk effectively to one another. The field is fragmented along various cross-cutting fissures, including substantive area of interest, particular research question, and favored methodology. Too often, we have forgone productive exchanges across those boundaries as scholars focused on their own close-knit intellectual communities and ignored, or viewed with wary skepticism, the efforts of those working on related issues but on the other side of one of these divides.
Our starting point, however, is with the study of law and politics, or the political analysis of law and courts. Law, as an autonomous field of study as taught in schools of law, is centrally concerned with the substance of law and the practices of legal professionals. For the professional craft of law, the politics of law can often be bracketed. For scholars concerned with law and politics, it is the professional craft of law that is bracketed. We need not deny that legal reasoning and skill are real and matter in the determination and application of the law and in the actions of legal institutions. But the starting point for the study of law and politics is that politics is also important and that considerable analytical and empirical leverage over our understanding of law and legal institutions can be gained by placing politics in the foreground.
1 The Development of the Study of Law and Politics
The study of law and politics held a prominent place within the discipline of political science as academic disciplines and departments developed in the late nineteenth century. It was the narrow professionalism of the law school that spurred Columbia University in 1880 to create a separate School of Political Science, the progenitor of (p. 243) the discipline, under John Burgess. The school was to develop and teach a “science of jurisprudence” that would provide better preparation for the new federal civil service. Within the school, a distinct Department of Public Law and Jurisprudence quickly emerged and was only decades later renamed the Department of Political Science. The first dissertations in political science, reflecting the strength of its faculty and the fact that most of its students had first passed through the law school, were dominated by constitutional and legal history (Hoxie et al. 1955; Somit and Tanenhaus 1967).
As the discipline developed internally, the study of law and politics, although prominent, became a distinct specialty within political science. The 1915 report of an American Political Science Association (APSA) committee on college instruction was chaired by Charles Grove Haines (1915, 356–7), one of the leading constitutional scholars of the period, and five of its twelve recommended core courses were on legal subjects (with a sixth dedicated to judicial administration and organization). Despite this endorsement, recommended courses such as commercial law and Roman law did not survive long in political science departments; and international law was soon crowded out by international relations, just as administrative law already had been by public administration. Constitutional law and jurisprudence became the core of the study of law and politics in political science, with legislation, administrative reports, and other legal materials the raw material of political science generally and other substantive areas of law being either absorbed into broader fields within the discipline or left entirely to the law schools.
The leading public law scholars prior to the Second World War were primarily constitutional scholars, often with an emphasis on history. With law schools by and large continuing to leave constitutional law in relative neglect, Edward Corwin, Charles Grove Haines, Thomas Reed Powell, and Robert E. Cushman were the leading constitutional scholars of their day, as well as leaders within the discipline (each served as president of the APSA). From 1917 to 1961, the association’s flagship journal, the American Political Science Review (APSR), published an annual overview of the constitutional decisions of the US Supreme Court, written by Cushman during much of that period, often supplemented with a separate review of state constitutional law decisions.
Their constitutional scholarship and teaching was simultaneously realist and normative in its sensibilities. As Corwin (1929, 592) understood it, the purpose of political science was to cultivate an understanding of “the true ends of the state and how best they may be achieved.” A 1922 APSR article on constitutional law teaching reported that law school classes in constitutional law were generally regarded as too technical and too focused on litigation to be suitable to the training of graduate students, who required a better grasp of the “historical, philosophical, and comparative aspects of the subject” and how “fundamental principles” of American constitutionalism evolved over time. The undergraduate classes in constitutional law brought political action and behavior to the political science curriculum. The formal and descriptive character of courses in American and comparative government might be the starting point for understanding American politics, but constitutional law was the class in (p. 244) which students could see how principles, beliefs, actors, and social conditions interacted and developed; and a “problem method” of instruction could teach students the valuable skill of how to draft legislation that could address a given social problem while adhering to constitutional limitations (Hall 1922). In the context of a formal, “old institutionalist” curriculum and scholarship that characterized the discipline, constitutional law introduced realism and action.
Constitutional scholarship of this sort continued in political science after the Second World War, but under increasing competitive pressure. A new generation of constitutional lawyers in the law schools was more prominent and more sophisticated than their predecessors. The Harvard Law Review began to provide an annual review of the Supreme Court’s decisions, with a focus on constitutional law. The foreword to that issue became a prominent platform for constitutional law professors to speak to the Court, as well as to the legal profession and academia. The University of Chicago Law School created its own annual Supreme Court Review, featuring constitutional law professors. The summary offered by the American Political Science Review had long lost its preeminence before it was dropped from the journal. Political scientists such as Carl Swisher, Alpheus Mason, David Fellman, and John Roche continued this humanistic tradition of constitutional studies well into the 1960s, but their successors were fewer and increasingly marginal to the discipline.1 Others such as Martin Diamond, Herbert Storing, Walter Berns, and again Alpheus Mason drifted further into political theory and American political thought. It is telling that in a 1958 volume on the state of the discipline, two prominent constitutional scholars, Robert McCloskey (1958) and Carl Friedrich (1958), were invited to discuss “political theory” rather than public law.2
Within the discipline, the study of law and politics was generally shifting away from constitutional law and thought and toward judicial politics. Although there were some tentative earlier efforts to pursue quantitative studies of judicial behavior and to consider the political and social influences on judicial decision-making, C. Herman Pritchett (1948; 1954) pushed the field in a significant new direction with his statistical studies of voting behavior on the Supreme Court in the 1930s and 1940s (Murphy and Tanenhaus 1972, 17–20). Pritchett’s studies reflected a new methodological and analytical sensibility within the discipline, but they also reflected a new reality on the Supreme Court. Counting votes both became analytically meaningful and took on a new urgency as a political puzzle in the 1930s and 1940s when dissenting and concurring opinions first became routine. But statistical analyses of voting behavior did not wholly define the new movement within the field. With a different methodological and conceptual approach, Jack Peltason (1955; 1961) likewise sought to open the field up by looking beyond constitutional decisions and the Supreme Court and (p. 245) focusing more broadly on the judicial process as it related the courts as policy-makers and administrators to one another, the broader political system, and the relevant political environment. These emerging works in judicial politics had in common a single-minded focus on the political behavior of judges and those with whom they interacted, analyzed as other political actors might be analyzed and largely stripped of substantive legal content, historical development, or philosophical implication. For Corwin, Haines, and their humanistic successors, the study of law and politics was concerned with marrying an understanding and appreciation of the substance of the law with an understanding of the process by which law developed over time. For the behavioralists who emerged in the postwar period, developing an understanding of the process by which law was created and implemented was a sufficient scholarly task.
Works on the political behavior of judges and associated actors proliferated in the 1960s and soon dominated the field (Pritchett 1968; Schubert 1966). Among others, Pritchett and Walter Murphy gave close study to the rising hostility in Congress to the federal judiciary and its decisions. David Danelski, Sheldon Goldman, and Joel Grossman unpacked the judicial recruitment and selection process. Martin Shapiro resuscitated administrative law and the policy-making role of the courts outside of constitutional law. Walter Murphy, Alpheus Mason, and J. Woodward Howard uncovered the internal operations of the courts. Clement Vose focused attention on litigants and the relevance of interest groups to the judiciary. In-depth studies of the implementation of and compliance with judicial decisions were undertaken. Glendon Schubert, Harold Spaeth, Sidney Ulmer, and a host of others followed directly on Pritchett and built sophisticated statistical analyses of judicial voting behavior. Several scholars made tentative efforts at public opinion research and comparative analysis. Although the use of statistical techniques received the most attention and was the most controversial—sparking debates between its practitioners and some humanists over whether “jurimetrics” provided valuable new insights into how the Court worked—the methodologies employed were varied and included archival research, judicial biographies, field studies, game theory, and more. This new wave of research ushered in a range of new methodological approaches that had not been common in the earlier scholarship, but what were equally notable were the types of focused questions being asked about many aspects of the judicial process. Broader syntheses that may have taken note of judicial selection or interest groups when examining an area of law gave way to detailed studies examining how those particular aspects of the judicial process worked and what consequences they might have.
Subsequent movements have deepened and broadened these currents in the study of law and politics in political science. The interdisciplinary law-and-society movement reinforced the behavioralist turn in political science but added a greater interest in the operation of law and courts closest to the ground—criminal justice, the operation of the trial courts, juries, dispute resolution, the behavior of lawyers, the informal penetration of law into the social, economic, and cultural spheres—and fostered new conversations about law and politics across (p. 246) the social sciences. In focusing on law as it is embedded in society, sociolegal scholars have attacked such problems as the nature of disputing, including how individuals recognize that they have a legal claim, decide whether to pursue that claim, and achieve success in addressing their injuries or changing policy (Mather 2008).
The empirical study of tribunals and law in the international arena and outside the United States has grown rapidly in recent years, fostering connections between the study of law and courts and the study of comparative politics and international relations. Law and courts have assumed new importance in both areas. International law and courts have gained increased prominence in recent decades, leading scholars to examine the forces that drive such institutions and the impact that they have on national and private actors. Courts have also become increasingly important in a large number of established and newly emergent democracies, and even in some non-democratic regimes. Many of these cases raise similar questions to those that can and have been explored in the American context. Perhaps more interesting, however, is the fact that many of these cases raise new puzzles about how law and courts fit into their political and social environments that either do not exist in the American context or cannot be readily examined in the American case. The struggle to establish independent judiciaries and the rule of law in countries undergoing democratization and economic development pose unique challenges and suggest a range of distinctive research questions and evidence to be examined (Chavez 2008; Ginsburg 2008; Vanberg 2008).
Historical institutionalist studies have recovered an interest in constitutional ideas and historical development and wedded it to the post-behavioralist concern with political action and the broader political system. Scholars working in this vein have been particularly interested in patterns and mechanisms of continuity and change in the American legal and constitutional systems. This work takes seriously the possibility that ideas matter within law and politics and that the ideational context within which judges and political actors operate is itself of interest and worthy of study. At the same time, historical institutionalist studies have examined how a range of political and judicial actors have sought to advance their perceived interests and commitments through legal and judicial means, respond to exercises of judicial power, and adjust to conflicting visions of legal and constitutional requirements (Smith 2008).
Game theoretic accounts of political strategy have come forth and provided new perspectives on judicial behavior and new approaches to linking courts with other political institutions. Such work has tended to emphasize the ways in which judges interact with various other actors in the political system, from legislators to litigators to other judges, and to detail the logic of those interactions. Although it is being increasingly integrated into all aspects of law and politics work, it has also brought an interdisciplinary component to the field and focused attention on questions relating to the development of doctrine and administrative law that had otherwise been overshadowed (Spiller and Gely 2008; Kornhauser 2008).
(p. 247) 2 The Structure of the Field
There is no single best way to divide up the field of law and politics. Literatures overlap, and it is possible to view those literatures at different levels of aggregation or with different points of emphasis so as to highlight commonalities or differences. Indeed, the prior discussion suggests a basic bifurcation in the field, between constitutional law and jurisprudence on the one side and judicial process and politics on the other. But this basic bifurcation better reflects the historical evolution of the field than it does the current structure of the study of law and politics. We offer below one map of the field.
2.1 Jurisprudence and the Philosophy of Law
Jurisprudence and the philosophy of the law is the oldest aspect of the study of law and politics and stands conceptually at its foundation. Particularly as it emerged from the continuing debates over the work of H. L. A. Hart (1994), jurisprudence is concerned with the basic nature of law. It has sought to identify the essential elements of law, distinguishing the realm of law from other aspects of the social order and other forms of social control. In an older tradition, jurisprudence hoped to systematize legal knowledge, extracting and refining the central principles of the law and the logical coherence of the legal system as a whole. In this mode, jurisprudence was to be an essential tool of the legal teacher, scholar, and practitioner and the starting point of a legal science. When wedded to normative commitments and theories, jurisprudence was also a tool of legal reform, identifying where the law needed to be worked pure and how best to do so.
A primary task of jurisprudence is to answer the question: What is law? It seeks to identify the common features of a legal system and clarify the logical structure of law. To do so requires distinguishing law from other normative systems of social ordering, such as custom and religion. Basic to this enquiry has been the effort to identify the conditions that would render a norm legally valid. Two well-established schools of thought have developed around these questions, with natural lawyers contending that the legal validity of a rule depends in part on its substantive morality and legal positivists arguing that legal validity is potentially independent of morality and solely a function of social convention. Related to this issue are such concerns as clarifying the nature of legal concepts such as rights and duties, identifying the kinds of reasons by which legal authority is established and legal obligations are created, and explicating the process of legal reasoning. Supplementing analytical approaches to these issues are distinctively normative jurisprudential theories, which are concerned with which legal rights and obligations are most justified, how best to reason about the law, and the like.
These predominant branches of jurisprudence have been periodically challenged by self-consciously realist theories of law that attempt to ground the basic features (p. 248) of law in social conditions. From Roscoe Pound’s sociological jurisprudence at the turn of the twentieth century (which urged judges to take greater account of the social conditions in which the law operated) onward, realist theorists have questioned whether law can be profitably analyzed in the abstract, apart from its relationship with external conditions, whether economic relations, human behavior, or something else. The linkage of legal theory with such empirical concerns has supported both critical theories aimed at subverting dominant jurisprudential models and more positive theories concerned with developing their own understandings of the law.
2.2 Constitutional Law, Politics, and Theory
Constitutional law is often paired with jurisprudence. The subfields share interests in the substance of law and ideas surrounding law. They also share an interest in normative aspects of law. But where jurisprudence is concerned with the conceptual underpinnings of law writ large, constitutional law is concerned with the legal and theoretical foundations of a particular, and a particular kind of, political order.
The subfield has long been concerned with constitutional law itself. In this vein, political scientists have, along with legal scholars, explored the doctrinal developments in particular areas of law. In addition, however, political scientists have been somewhat more likely to examine the intellectual history of constitutional concepts and modes of thought, the normative underpinnings of constitutional principles, the constitutional philosophies of individual justices or historical eras, and the relationship between constitutional law and broader political and social currents. Political scientists have been attracted to constitutional law as intellectual historians, normative political theorists, and social theorists, as well as legal doctrinalists.
In recent years, the study of constitutional law per se has been submerged within the broader subject of constitutional politics. Although there have been notable exceptions, constitutional law has traditionally been the particular subject area within which political scientists have explored the origin, development, and application of legal principles and the interaction of courts and judges with other institutions and actors on the political stage. Whether taking the form of individual case histories or broader analyses, the making of constitutional law can be studied like the making of other forms of public policy. Constitutional politics highlights the ways in which the creation of constitutional law is situated within a broader political, institutional, and intellectual context and the significance of actors other than judges in contributing to constitutional policy-making and implementing constitutional norms. More broadly still, understanding the design, founding, maintenance, and failure of constitutional systems requires looking far beyond courts and constitutional law.
2.3 Judicial Politics
The field within political science that studies law and politics was once widely known as “public law.” For many, it is now known as “judicial politics.” The behavioral (p. 249) revolution of the 1960s shifted the disciplinary center of gravity from the study of constitutional law and doctrine to the study of courts, judges, and company. The political process by which courts are constituted and legal decisions are made and implemented is central to the empirical research in the field (Segal 2008).
Originally, the study of the voting behavior of individual judges, in particular the justices on the Supreme Court, formed the core of the study of judicial politics: Why do judges vote as they do, as opposed to the how and the why of the reasons they give in opinions? What do the patterns of votes within the Court and other collegial courts tell us about these institutions as political actors? Now, judicial voting is but a part, albeit an important part, of the study of judicial politics. Scholars increasingly are taking a broader view, and are attempting to study the behavior of judges and courts in the political process, as just one more group or political actor among many others, including other courts and judges, executives, legislatures, interest groups, lawyers, and ordinary citizens.
An array of research questions has occupied scholarly attention within this rubric over time. Particularly prominent have been variations on the question of whether, to what degree, or how “law” matters to judicial decision-making. A particularly strong version of the political perspective would assert that judges are simply policy-makers, and, if sufficiently insulated from review or reprisal, will enact their policy preferences if given the opportunity. If so, we might expect that traditional “legal” factors such as textual language, established precedents, or judicial philosophies should have little independent significance in shaping judicial decisions, at least on courts such as the US Supreme Court. If such factors do matter, we would want to know how, under what circumstances, and with what significance. But scholars have also given attention to other concerns, including the internal decision-making processes within and between courts and the effects that various external factors such as the composition of the elected branches, the activities of interest groups, or public opinion might have on judicial decisions.
2.4 Law and Society
Law and society is not a subfield within political science, but rather an interdisciplinary enterprise that has long invited political scientists to explore a broader range of legal phenomena and to employ a broader range of methodologies. Law and society scholarship explores the reciprocal impact of law on society and of society on law—with some scholars focusing on the role of law as an instrument of social change or social control and others focusing on how social mobilization, culture, and legal consciousness determine the actual impact of law. With its roots in the legal realism scholarship of the 1950s, law and society scholarship proliferated in the 1960s with the founding of the Law and Society Association in the United States. Today the field of law and society includes a vibrant mix of scholars from political science, sociology, anthropology, history, and law who draw on a variety of methods and epistemological premisses.
(p. 250) Law and society scholarship has served as an important antidote to the tendency of most political scientists interested in law and courts to focus almost exclusively on the upper echelons of the judicial hierarchy and the storied battles between high courts and other branches of government. The law and society perspective has encouraged many political scientists to turn their gaze to the local level, to explore how law is mobilized, how it is experienced, and what impact it has across society in fields as diverse as criminal law, civil rights, and business regulation. Such contributions are perhaps most obvious in studies of legal mobilization and the impact of law, where law and society scholarship has shed light on the conditions under which social movements mobilize law in pursuit of their aims and the consequences of legal actions for those who are subject to the law. Such scholarship famously includes so-called “gap” studies, which frequently document the gap between “law on the books” and “law on the ground” and the inadequate or incomplete implementation of or compliance with court decisions or legal regulations. Law and society has also encouraged a comparative perspective, with the field shifting from its roots in studies of the American legal system to embrace an increasingly wide range of scholarship on comparative and transnational sociolegal issues. Some scholars (Provine 2007) suggest a growing rift between much of political science and the field of law and society, as the latter shifts away from an interest in formal institutions of law and government and from positivist social science. Given the fruitful engagement of political science and law and society over the past half-century, the growth of any such rift would be unfortunate.
2.5 Comparative and International Law and Courts
Until recently, the subfield of comparative politics largely ignored law and politics while the subfield of law and politics largely ignored law and courts outside the USA. Today change is coming from both directions. Comparatists are taking greater interest in the politics of law and courts, and scholars in the law and politics sub-field are increasingly doing comparative work. Current scholarship builds on the work of such pioneers as Murphy and Tanenhaus (1972), Schubert and Danelski (1969), Shapiro (1981), Kommers (1989), Stone (1992), and Volcansek (1992), who set out a research agenda, calling on others to examine and compare the influence of courts on politics and the influence of politics on courts across democracies. Although most of the early work focused exclusively on the politics of constitutional courts in established democracies, more recent work has expanded in two directions. First, the transitions to democracy in the 1980s and 1990s gave birth to a host of new constitutional courts in Latin America, Eastern Europe, and Asia which have spawned a new wave of scholarly research. Second, in studying the widespread “judicialization” of politics, comparatists have moved beyond an exclusive focus on constitutional courts to examine the role of the full range of administrative and civil courts in policy-making and implementation.
(p. 251) In the study of international law, the growing dialogue between legal scholars and political scientists has generated a rich literature. The institutionalist turn in international relations theory and the proliferation of international courts and law-based regimes have drawn more and more political scientists to the study of international law and legal institutions. Meanwhile, recognizing the limits of a strictly legal analysis, legal scholars have turned to international relations theory to help explain the design, operation, and impact of international rules and legal institutions. Finally, research on themes such as the globalization of law and European legal integration tie together comparative and international approaches, examining how international institutions and networks may spread legal norms and practices across jurisdictions.
The study of law and politics is as wide-ranging and diverse as it has ever been. Scholars in the field are exploring a greater number of research questions with a wider range of methods and across a wider array of subjects related to law and courts than has ever been the case. In doing so, they have built bridges between political science and other disciplines and between the particular study of law and politics and other subfields within political science. The field has long run the risk of internal balkanization, but the opportunities for dialogue and synthesis are particularly high at this point in the development of the field.
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(1) Carl Swisher in 1960, Charles Hyneman in 1962, and Carl Friedrich in 1963 were the last constitutionalists to be honored with the APSA presidency. The last law and politics scholar to serve as APSA president was C. Herman Pritchett in 1964.
(2) Both McCloskey and Friedrich made their home at Harvard. Harvard did not hire or promote a senior law and politics scholar to replace either of them after they departed.