The Nature of Law

As I tell my students, one of the central questions in political philosophy is whether politics is ultimately about justice or power. This debate is one way to describe the arc of the field from its earliest core texts to some of its most prominent postmodern figures. “What is justice?” is the animating question for Socrates’s discussions in Plato’s Republic, and the quest to define justice is at the heart of understanding politics. About two and a half millennia later, riffing on Carl von Clausewitz, Michel Foucault observed that, while “It may be that war as strategy is a continuation of politics,” “it must not be forgotten that ‘politics’ has been conceived as a continuation, if not exactly and directly of war, at least of the military model as a fundamental means of preventing civil disorder.” Foucault’s position is that all laws (and not just laws) are a form of subjugation of one group by another.

But we do not need to reach across the ages to find this dichotomy. On the contrary, Socrates’s most adamant foil in the Republic is Thrasymachus, who contends that justice “is nothing other than the advantage of the stronger.” Thrasymachus serves as Socrates’s most significant opponent precisely because he represents a polar-opposite approach to justice, essentially reducing “justice” to power, much like Thucydides has the Athenians do in the Melian Dialogue with their “might makes right” stance.

This division between competing interpretations of politics is absolutely critical because it determines whether political competition is about advancing different visions of the common good or merely about seeking to dominate the rest, whether through strength of numbers in a democracy or otherwise. If politics is about justice, then even when we disagree–even when we disagree passionately and even when we disagree all the way down—we believe we are working for the good of all, however imperfectly. Ideally, this also tames politics if all sides are and see each other as enacting some vision of the common good. Moreover, law’s connection to the common good serves as a check on those advancing an agenda in good faith because it demands an account of how that agenda contemplates the good of all. For this reason, grasping the connection to the common good teaches us that we owe each other reasons—reasons rooted in a final appeal to justice—for the restrictions we impose upon each other through the law. If politics is about power, then it just comes down to defeating or being defeated. Reasons are nice, but they are not an essential ingredient in deciding who rules or what the rules are.

(excerpted from conclusion)