where judicial-precedent law has a strong influence because even the
most autonomous judiciary is always determined by some sort of
political influence.4 Legal institutes, however, have a reverse influence
on politics in that they limit and direct politics as part of a wider legal
awareness, or specific legal ideology.
In a mutual relationship, politics and law do not have constantly
determined roles, since in different periods they can be, either in
agreement or in opposition, socially progressive or conservative, or even
reactionary. But, it must be stressed that for law an especially
emphasized conservative functionS is characteristic and important,
despite the fact that it can sometimes function in a developmentally
progressive or creative manner. This doesn’t suggest that law cannot be
successful in promoting new societal relations but it does suggest that
only from the aspect of legal policy, this should not be exaggerated. Most
often, but not always, it is better to encourage those mechanisms through
which the legal order reacts quickly and effectively to the emerging
social circumstances and prevents the possibility of one-sidedness or
exaggerated aspirations of politics.
It is an immanent characteristic of every law that it is also the means of
certain politics.6 However, law is never a pure form through which
political content would be realized, since it is in the very nature of law to
be relatively autonomous or independent.7 Politics cannot exist without
- Compare, for example, Dworkin, 1985, pp. 10-11.
- Since every legal act brings about a certain change in the existing (legal) system and
therefore always has, in this respect, a dynamic, “developmental” (ideologically progressive or
regressive) nature, I would like to explain that by the conservative function of law I mean above all
the fact that ideas about the new legal order of various societal fields are primarily an expression of a
changed political, moral, religious, economic, etc., thinking, and only to a smaller degree also of
autonomous legal thinking. The law primarily “conserves” such novelties in its specific (e.g.
legislative or judicial precedent) form, and it often also limits them according to the possibilities
which are allowed by the existing (constitutional) legal system. Naturally, it is also possible to agree
with the standpoints that the law is never only a reflection of the life in society, but it always
significantly co-creates and changes the current of societal events (see, e.g. Bugaric 2000, p. 34).
However, with regard to this, one must bear in mind that “political policies” are, at least to the
degree to which we accept the relative autonomy of politics and law, much more “creative” than is
true for “legal policies”. Especially in the modem age, politics have assumed, in most cases, the
form of general legal acts (e.g. statutes and regulations), which is why e.g. laws that implement
various essential societal novelties or reforms, are, in terms of their content, generally still above all
an expression of a (new) politics and political ideology, and only to a lesser degree an expression of
autonomous legal policies and ideology – certainly, however, such examples very vividly point to
the indeterminate nature of the border between law and politics. - From the point of view of political thinking the legal system can be viewed as part of the
political system, which means that the legislatures and courts are political institutions, the rule of
law is a political ideal, and adjudication and legal reasoning are practices and techniques which are
part of the political culture of the society in which they flourish (see Waldron (2004), pp. 352 ff.) - Compare Maihofer 1969, pp. 1-18, who has defined the role of law in relation to (political)
ideology in the light of two opposing fundamental functions. On one hand, he defines law as an
