Posts Tagged ‘politics-law dichotomy’
I recently reread Joe Soss‘s excellent Unwanted Claims, and I wanted to pull out this discussion of the problems with standard political science models of politics. While discussing the calls of feminist scholars to address welfare claiming as political participation, Soss says:
Unfortunately, such calls to inquiry have drawn little attention from those who research political action. The reason for this lack of response is that welfare claims have not fit comfortably into the conception of politics that has prevailed in the field. Studies of political action have traditionally focused on the citizenship activities that are emphasized in theories of representative democracy. The focal point of politics, in this theoretical tradition, lies in the work of elite representatives in government. The majority of citizens are in a sense only indirect participants. They engage in political action primarily when they try to choose or sway the elected officials who participate more directly in the governing process (Hardy-Fanta 1993; Pateman 1970).
Accordingly, research on political action has traditionally identified the electoral institutions of government as the center of the political system and asked how citizens fulfilled their role as a source of “input” for the elite decision makers who participate more directly in the creation of public policy. (Conway 1985; Milbrath and Goel 1982; Verba and Nie 1972; Verba, Schlozman and Brady 1995) Political action, in this view, includes “acts that aim at influencing the government, either by effecting the chouce of government personnel or by affecting choices made by government personnel” (Verba and Nie 1972, 2; Conway 1985, 1991). In strict terms, this definition might be seen as including citizen demands on all government personnel, including those who implement public policy. But in practice, researchers have studied citizens’ efforts to choose and influence their elected representatives while dismissing their direct claims on the administration of public policy as essentially “apolitical” (Milbrath and Goel 1982, 9; Verva and Nie 1972, 3).
In addition to being viewed as administrative matters, welfare claims have also struck observers as less than political for a second reason. Political action traditionally has been understood as public activity in which citizens advance their interests and preferences regarding “public issues” (Mills 1959, 8; Fraser 1987, 177) Thus as Nancy Fraser has argued, these claims have been viewed as “private-domestic or personal-familial matters in contradistinction to political matters” (1989, 298-99)
As Soss points out, scholars outside of the political behavior field had long ago rejected the politics-administration dichotomy, expanding the realm of politics to include demands made in the courts and bureaucracy, including implementation as a political process. Despite this, many of those fields still are organized around this dichotomy, or similar ones, like the politics-law dichotomy.
But he also argues that instead of grafting other types of demands onto the standard view rooted in representative government, a better approach is to define politics so that it includes both institutional and non-institutional politics, without privileging either. Indeed, since these words were written, a number of scholars of political behavior have adopted this broader approach, although I’d argue the standard model remains dominant.
Unfortunately, these problems aren’t limited to the field of political behavior. I’ve argued that a similar problem plagues judicial politics. It is but a minor adjustment to include demands made in a narrow class of cases before one court. Here, the elite decision makers are justices of the U.S. Supreme Court, and much of the focus is on constitutional cases. This focus exists, I would argue, for two reasons. First, discussion revolves around the counter-majoritarian difficulty–challenging the notion that decisions are motivated by law rather than politics, which would undermine the justification for the justices to overrule the decisions of democratically elected officials. The core idea of representative democracy remains foremost in our thinking. Second, constitutional decisions by the US Supreme Court cannot (at least formally) be overruled, and therefore can’t be seen as merely implementing the policies set by other decision makers. Such an approach also marginalizes legitimation activities. The problem is similar to the one Soss discusses–this sort of lens obscures the vast majority of activities, actors and arenas in which the politics of law takes place. And it does so while reinforcing the biases of the status quo.
It strikes me the only way to break out of this is to challenge the decision-making approach to understanding the formal activities of official elites. I’ve argued that their activities too, can be conceptualized as claims, just as the bringing of lawsuits or welfare participation can. The significance of their activities cannot be assumed, but depends on the willingness of other actors to accept them, and there is no guarantee that they will. This is true whether we’re talking about justices engaging in judicial review, other appellate courts engaging in statutory interpretation or trial courts processing routine criminal cases. And it’s equally true of those chosen through elections rather than appointments. That means rather than seeing legitimation as an afterthought, or a product of more fundamental forces, we must understand it as central to political action.
The model of decision-making within the framework of separation of powers / electoral democracy has deep roots not only in our theories of politics, but the very ways the discipline is structured. And academic political science, in adopting this model, was merely formalizing broader thinking within our political culture. So alternate approaches will always be swimming against the tide of conventional thinking. Then again, it’s unlikely that any truly useful theories of the social world will fail to do this. The first step is to see the problem and to be explicit when we are offering a serious challenge.