To state that the “law is inherently political” is to propose a confounding moral dilemma. The law must be grounded in neutrality and impartiality, while politics, on the other hand, aims to be a more flexible and adaptable societal force. The convergence of these two spheres presents a volatile yet necessary moral hazard. In Jean-Paul Sartre’s infamous dirty hands problem he posits an interesting notion, that of the necessity of immoral actions when assuming a political role, especially when aiming to serve a greater good. In 1942 the United States conducted “Operation Underworld” where they received the aid of the Italian and Jewish Mafias in their WW2 efforts. These collaborations were instrumental for the US’s domestic defense strategy during the world war, and yet fundamentally undermined the US principle of justice pertaining to impartiality. What happens when this interjection of political ideologies and individually perceived “greater goods” hides behind the guise of legal neutrality and objectivity? Is the politicization of the law an unnatural phenomenon or a natural one? Is it an impermissible wrong or does it hold instrumental value?  It’s no question that in times of war what we deem permissible for the protection of peace expands, but at what point does this permissibility halt? The law bridges the gap between morality and justice, and while politics can bear moral complexities that deal with necessary wrongs, such as receiving aid from the Mafia for the sake of national security, justice remains rigid and self-aware of the perceived legitimacy it is contingent on. To say this line is drawn at the law would be a gross deviation from the actual structures of western liberal democratic justice systems and their entanglement with political spheres.  Consequently,  the question of where this line ought to be drawn presents a more pertinent study. This essay will delve into the mechanisms which politicize the law, the philosophical foundations for these legal apparatus, as well as discuss the historical implications of the relationship between law and politics. 

 

If the law is inherently political, then an important question that we must ask ourselves is how? What are the mechanisms through which the law can be politicized? The Minister of Justice of Canada is responsible for seeing that matters of public affairs and administrative justice remain in accordance with the law. Conversely, the Attorney General is responsible for litigating on behalf of the crown and acts as the chief legal advisor. In the United Kingdom, these two roles are separate and held by two different individuals, such that the Minister of Justice is a partisan member of cabinet, while the Attorney General is bound first and foremost to the law. However, in Canada, these roles are held by the very same person, David Lametti. This dual role underscores the law’s political dimension in the complications which arise from the conflicting natures of law and politics. In 2011 one of the biggest employers in Canada, SNC-Lavalin was being litigated by the Attorney general, Wilson-Raybould, on charges of fraud and corruption after having bribed the Libyan government for oil contracts. While the Shawcross Doctrine affords the Attorney General the final decision to prosecute, the duality of roles introduces political pressures on this decision. Prime Minister Trudeau’s administration pressured Raybould to favor her political role as Minister of Justice and place more weight on the protection of jobs that Lavalin provides. Her refusal to do so ultimately resulted in her resignation from the roles of Attorney General and Minister of Justice. Legal decisions hold political implications, whether that decision is to prosecute a company whose financial health is intertwined with that of the economy and the employment market, or whether the decision is on the constitutionality of LGBTQ marriage, or even on the legality of segregation laws. Western democracies are characterized by their civil societies, thus, wherever lies political implication, will also lie in political interests that initiate pressure for or against those implications. How do these pressures figure themselves into the law? 

 

The way political pressures figure themselves into the law can be illustrated through the crucial distinction between the United States and the Canadian legal systems in their approaches to judicial appointment. While countries like Canada strictly appoint judges, many states in the US hold partisan elections, and appointments are overtly politically motivated. US Supreme Court judges for instance, are appointed by the president, and oftentimes these judges are appointed based on their alignment with the president’s platform. President Trump nominated Brett Kavanaugh for the position of Supreme Court judge with the express intent of shifting the court’s jurisprudence rightwards since Kavanaugh’s conservative stances on topics such as abortion closely parallel those of the right-leaning Republican president. This appointment system provides an avenue for political interests to influence the shape the law takes. Sebastian Marotta, a legal academic at Georgetown, brings up a principal obstacle to the US adoption of the Canadian model for resolving Gerrymandering, which was the partisan bias of American judges given their election on the basis of a Democratic or Republican platform. One could argue, however, that surely the interjection of political bias is limited in its influence on the law, how many cases in a docquet truly evoke a political bias? At the core of western liberal democracies lies a fundamental assumption, the aim to protect the socio-political freedoms of individuals, so naturally when the extent of protection is in question, these questions are going to have their day in court.

 

Today’s legal world is machinated by cases of political freedoms, of social identity, and in legal systems like the US’ where the involvement of political alignment with judicial appointment has been normalized, political bias is an affluent legal force. In James B. Kelly and Christopher Manfredi’s paper on the Canadian Charter of Rights and Freedoms (2009), the relationship of the law and federalist politics is accentuated when the supreme court is described as “umpires of federalism”. Before the 1982 Charter of Rights and Freedoms, indigenous affairs and land claims were often resolved in the courts through the lens of federal or provincial jurisdictional arguments. In the 1879 indigenous land claim case Williams Lake Indian Band v Canada (2018) for example, an indigenous land claim case dating back to 1879, the question of who should bear the onus of fiduciary duty, the provincial government of British Columbia or the federal government, served as a central point of contention. In other words, everyone agreed that the land was illegally procured, but the question of legal responsibility very conveniently - or inconveniently depending on who you ask - falls in the limbo of political disagreement. This case highlights a prevalent feature of legal debates on land claims before 1982, a federalist motif that has since been replaced by that of individual rights and freedoms. The deliverance of justice is limited by the frameworks set in place by the legislative forces which underscore it. When the 1982 charter was first passed it expanded the repertoire that legal actors have access to when considering indigenous land claims by absorbing the responsibility for the rights and freedoms of these indigenous peoples. In fact, Kelly and Manfredi’s paper charges the Supreme court with a second function, the status of “guardians of the charter”. 

 

The 1982 Charter expanded the role of courts by increasing judicial oversight over legislation, as well as on cases on conflicting political freedoms .  In response to this expanse, the charter received a lot of scrutiny from the legal and academic world. If appointed individuals make political decisions rather than elected actors, aren’t we at risk of trivializing the core tenets of representative democracies? At times, this would seem a prudent objection to judicial overreach, but in certain contexts, it would be in the interest of morality and justice that these appointed judges make decisions rather than the elected individuals. In R v Lyons (1987) it is recognized by the Supreme Court of Canada that determining the penalty for particular criminal activity is a “right given to Parliament by this court”. When we’re faced with cases such as Her Majesty the Queen v D.B. (2008) where the youthful respondent challenged the legislative mechanisms of placing the onus of proving deservedness of a youth sentence on the defendant, a citizen is in dispute with the state on the subject of that same right which Parliament holds and its conflict with his freedom. This form of legal dispute between a citizen and the state over personal political freedoms is not uncommon. Rather, the entire criminal system is built on contentions of this nature. Perhaps it would be more responsible to allow the court to shape the sentencing rather than continuing to afford this “right given to Parliament by this court” (R v Lyons). In Queen v D.B. (2008) a principal point of discord was on the interpretation of parliamentary intent when balancing between “society’s safety and the reduced moral blameworthiness of youth”. Political forces in representative democracies must consider majoritarian public opinion, but when the level of society’s perceived level of safety influences how politicians determine legislation on criminal law, the implication can be subtle but volatile. In 1692 the judicial body of Massachusetts, United States, allowed their judgment of their perceived safety to dictate law by the power afforded to them by the state. Those trials were also commonly referred to as the Salem Witch Trials and ended in the litigation of over 200 suspected witches, and the execution of over 20 people. It is evident that when the power of the law is deviated by political fears, the outcomes are often disastrous. The aforementioned examples illustrate a dark and eerie picture of the political interjection in the law, however, it is essential to then question whether there is a reason these two forces are so intertwined. To understand the other side of this marriage between law and politics, we must understand why the relationship exists in the first place. 

 

Legal scholars often situate the acceptance of a common moral and legal framework when we move from a state of nature to a civil state. This state of nature is characterized by its hypothetical existence before political association under a legitimate and centralized source of legal and political authority. The idea of law and justice is initiated by the conception of the state, by the introduction of an otherwise non-existent social fabric. What is the law if not the system of justice that mediates between agents, and what is a system that mediates between agents without a social fabric to hold them accountable to each other?  The shift from the state of nature to a civil state initiates the conjoining of politics and law by virtue of the interdependence of justice and this social fabric that underscores our political spheres. When a society experiences this shift you assume something that wasn’t previously there, a societal fabric underscored by a legal obligation to people within your political field. This social contract exists under the contingency of the collective belief in its existence, just like the legitimacy of the authority of the state or the law is contingent on the very same agreement. In 1960 the Greensboro sit-in took place at Woolworth's lunch counter in North Carolina. A group of young African Americans exercised their right to civil disobedience under the US constitution, and in turn, challenged the legitimacy of an unjust law, that of racial segregation. It is clear that political influence places pressure on the judicial system, and while at times this may end in a witch hunt, at other times it challenges oppression. Civil disobedience as the threat of the dissolution of this social fabric is just as much a contention against the legitimacy of the law as is it is a threat of reverting to a state of nature. The law is rigid and absolute, while politics is adaptable and penetrating. Alone these two forces would diverge rampantly, but true justice lies in their coalescence, at the point of balance. This exploration of civil disobedience as a positive force on the law underscores an important aspect of the law, its contingency on the collective’s perceived legitimacy of it. 

 

I submit that the accountability of the legal system to the citizens it serves exists by virtue of the mechanism of political legitimacy. As identified in the previous discussions, it is often difficult to separate one’s legal identity from his socio-political identity, and thus political resurgence can aim to shift judicial injustices and political biases. In the United Kingdom, the Labouchere Amendment of 1885 references the criminality of “gross indecency”, a notion that had been contextualized in reference to homosexuality. Alan Turing was famously prosecuted in 1952 under this exact clause and was mandated to chemical castration treatment. If these gross transgressions of the law were not challenged by civil societies and humanitarian groups who built political pressure to amend these laws, we would be living in a dystopian reality of judicial overstep. 

 

In Wade Mansell’s book, A Critical Introduction to Law, he states that the “law is inherently political, and reflects the interest of the few while presenting itself as neutral”. Whether the law “reflects the interest of the few” is not so much a function of the law itself, but the political structures which machinate it. In western democratic societies, it would be intuitive to assume that the law must reflect the interests of the many, or contrastingly in communist unions and dictatorships that the law would reflect the interest of the elite few. An air of morality seems to arise, a normative dimension to this discussion. On one extreme we’re faced with a law that reflects the interests of the many and remains largely susceptible to societal political forces, and on the other end, we see a law that conserves its rigidity in reflecting the interests of the elite few. Political influences will exist irrespective of their sources, our political identities are intertwined with our legal identities after all, and thus the question remains. If the many provide the law with direction then the law is naturally exposed to more political influences, be it from civil societies, corporations, or even the personal biases of judges. If the few provide the law direction, however, the number of political agents influencing the law drops considerably. Under systems where the law is determined by a centralized body of power, it will thus retain the rigidity and resistance to change which political influences would have otherwise softened. After the 1917 Russian Revolution, the Leninist party afforded itself absolute rule over the law, and laws were often passed that directly served the party’s political interests. Amongst those laws was the right to eliminate individuals opposing the regime without trial, and expropriate “land, banks, insurance companies, and large factories”. The moral hazard of the law representing the few is clear, but what is less clear is whether western democratic judicial systems are impervious to such moral failings. 

 

Ahmaud Arbery was jogging when he was shot down by Gregory McMichael and his son Travis McMichael. It’s a story as old as America itself, one of colonial institutionalized slavery, of segregation laws, a story of redlining and affirmative action, police shootings, and lasting residual racism. It is important to note that a crucial assumption of the written law is its neutrality, and while that may conflict with our convictions as observers of legal injustices, it remains intently neutral. The prosecutor in the Arbery case stated “It appears their [the assailants’] intent was to stop and hold this criminal suspect until law enforcement arrived. Under Georgia law, this is perfectly legal”. This law aimed to protect enforcers’ right to citizens’ arrest. However, while the law might have been conceived with rational intent, its interpretation is subject to political distortion. Therefore, whether the assailants were justified in slaughtering Arbery becomes a much more ambiguous legal question contingent on whether Arbery presented a credible threat to the social order or the assailants themselves. Yet, it is important to note, that to separate the political motivations from the legality of the assailants’ actions is to be disillusioned to centuries of racially charged distortions of the law. In Roberts v City of Boston (1850) for instance, the chief justice ruled that segregation of schools posed no constitutional breaches, a ruling that wasn’t overturned by the Supreme Court until the historical Brown v Board of Education (1954)., While Supreme courts aren’t impervious from political distortions of the law, lower court precedents accentuate the grassroots effects of these political biases. Just as these rulings can act as impediments to social change, they can also act in support of it. Monroe v. Pape (1961) opened up avenues for agents to sue government actors over violations of civil rights, consequently placing the judicial branch in between the civil struggle between citizens and an oppressive government. By doing so, the responsibility of judges, including those presiding in lower courts, expands into the mediation of racial struggles. As an intermediary of what can be characterized fundamentally as political unrest, the political role of the law becomes more brazen. The normative question of political interjection into the law becomes a question that can only be answered by the “rightness or wrongness” of the trajectory of the political sphere. 

 

A sinister part of US legal history shook our conception of neutrality of justice to its core in the 1950s. U.S. Senator McCarthy launched a series of investigations and hearings aimed at uncovering communist ploys and threats to national security. These proceedings morphed into rampant and gross transgressions of the law, public shaming, unsubstantiated allegations, and drumhead trials. Political fears and paranoia created social pressures on the judicial branch to prioritize a seemingly threatened national security over the political freedoms and fundamental principles of justice on which the legal system was grounded. The relationship between politics and the law can be a volatile one, and while it serves to ensure justice adapts to what we deem moral, it opens the legal system to the fearful side of the warlike man. Nietzche once stated that “under peaceful conditions, a warlike man sets upon himself”, in times of peace a soldier will cling onto his survivalist fears and attack himself. When a state instrumentalizes the law to reflect its need to maintain its perceived legitimacy under the mantle of protector from a war it has launched on itself, the law must be ready to step in and utilize its own sway over political affairs. Thus, not only must the law adapt to the times of peace just as the times of war, it must also protect against the times the warlike man goes to war with himself.

 

 

 

 

 

 

Bibliography

 

Cases and Statutes:

• Monroe v. Pape, 365 U.S. 167 (1961)

• R. v. Lyons, [1987] 2 S.C.R. 309

• R. v. D.B., [2008] 2 S.C.R. 3, 2008 SCC 25

• Roberts v. Boston, 59 Mass. (5 Cush.) 198 (1850).

• U.S. Reports: Brown v. Board of Education, 347 U.S. 483 (1954).

• Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83

• The Criminal Law Amendment Act 1885 (Labouchere Amendment) s 11

• 1982 Charter of Rights and Freedoms

 

 

 

 

Achter, Paul J., "McCarthyism" (Encyclopædia Britannica, inc. 2020).

 

Hiebert, Janet L.. "Parliamentary Engagement with the Charter: Rethinking the Idea of Legislative Rights Review." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 58. (2012).

 

 Jarvie, Jenny, "Two arrested in Georgia as anger builds over shooting of Ahmaud Arbery", 2020.

 

 Kelly, James B., and Christopher Manfredi, Contested Constitutionalism Reflections on the Canadian Charter of Rights and Freedoms (The Oxford Handbook of Canadian Politics 2009).

 

 Michael Ray, "Greensboro sit-in" (Encyclopædia Britannica, inc. 2019).

 

Paul J. Achter, "McCarthyism" (Encyclopædia Britannica, inc. 2020).

 

Peter B. Maggs, "Soviet Law" (Encyclopædia Britannica, inc. 2017).

 

Ray, Michael, "Greensboro sit-in" (Encyclopædia Britannica, inc. 2019).

 

Wade Mansell, Belinda Meteyard & Alan Thomson, A Critical Introduction to Law, 3rd edition (London; Cavendish, 2004, back cover).

 

Wilson Center, "Can the U.S. Solve Gerrymandering?" (Wilson Center 2015).

 

[1] Wilson Center, "Can the U.S. Solve Gerrymandering?" (Wilson Center 2015).

 

[2] James B. Kelly and Christopher Manfredi, Contested Constitutionalism Reflections on the Canadian Charter of Rights and Freedoms (The Oxford Handbook of Canadian Politics 2009).

 

[3] Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83.

 

[4] Hiebert, Janet L.. "Parliamentary Engagement with the Charter: Rethinking the Idea of Legislative Rights Review." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 58. (2012).

 

[5] R. v. Lyons, [1987] 2 S.C.R. 309.

 

[6] R. v. D.B., [2008] 2 S.C.R. 3, 2008 SCC 25.

[7] ibid (148).

 

[8] Michael Ray, "Greensboro sit-in" (Encyclopædia Britannica, inc. 2019).

 

[9] The Criminal Law Amendment Act 1885 (Labouchere Amendment) s 11.

 

[10] Wade Mansell, Belinda Meteyard & Alan Thomson, A Critical Introduction to Law, 3rd edition (London; Cavendish, 2004, back cover).

[11] Peter B. Maggs, "Soviet Law" (Encyclopædia Britannica, inc. 2017).

 

[12] Jenny Jarvie, "Two arrested in Georgia as anger builds over shooting of Ahmaud Arbery", 2020.

 

[13] Roberts v. Boston, 59 Mass. (5 Cush.) 198 (1850).

 

[14] U.S. Reports: Brown v. Board of Education, 347 U.S. 483 (1954).

[15] Paul J. Achter, "McCarthyism" (Encyclopædia Britannica, inc. 2020).