the law, since the law forms it and keeps it within certain limits that are
dictated above all by the ideas of justice and social order. But, law could
not exist without politics, since politics gives law its driving force and its
“rough content” or substance, which law then adapts to its autonomous
framework and develops its final form, expressing it in a specific
normative manner. Thus, one of the most demanding tasks of every
society is to continuously attempt to establish and maintain an
appropriate balance between politics and law. This relationship is
completely different in an authoritarian or totalitarian state as compared
to a democratic state based on the rule of law. This is because in an
authoritarian or totalitarian state, the “legal policy” is a subordinate to the
“political policy.” This is in contrast to a democratic state where there is
a dynamic, partner-competitor relationship between the two policies
where sometimes politics prevails and other times the law prevails.
In democratic orders, modern law and politics, as a general rule,
intensively confront one another in legislative and other parliamentary
procedures. This is where the influence of politics on law is the
strongest. Nevertheless, modern law maintains a great amount of
autonomy. This autonomy is achieved through: the fact that interest
groups never fully determine the decisions of a pluralistic legislative
body or could direct such body exclusively according to political
preferences; substantive and procedural legal rules, which to a large
degree determine the limiting framework where the legislature operates
and creates certain parliamentary practice (routine), which it is difficult
to depart from (the predominance of legal formalism); and the
independent judiciary that limits excessive political aspirations and
places them within the legal limits of functioning. 8 What is especially
important today in many countries is the role of constitutional courts.
These courts, as a general rule, routinely interfere with the politically
conditioned and interwoven activities of the legislative and executive
branches of power, and therefore their decisions are naturally more or
less politically colored. Finally, a certain level of legal awareness can be
added to all this. Legal awareness always develops in political actors
and directs them as an internal commitment to observing fundamental
legal values and the existing law.
ideological factor (“ideologisches Faktum”), and on the other as a critical factor in opposition to
ideology (“ideologiekritische Instanz”).
- Lempert, Sanders 1990, pp. 429-430.
