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Criminal Law and Politics:
From Independence to Dependence
Mohammad Jafar Habibzadeh1
Salman Emrani,
Faculty of Humanities, Tarbiat Modares University, Tehran, Iran
Abstract
In this paper, according to the logic relationship between the concepts, the relationship between criminal
law and politics are categorized in three general approaches including “independence”, “interaction” and
“dependence”, and standing of legal theories in this relation are explored and analyzed. Whereas the most
legal theories have not declared their evaluation of relationship with politics, accessing their stand
requires the analysis of each theory’s literature. The theories of first category are referred to the
independence of subject and the politic science methodology of the politic variables. In return, the third
category believe that due to different reasons the law excludes the thematic independence to the politics
and any theorization of criminal law because of its reliable relationship with the power and freedom is
dependent to our prejudices in the context of politic thought. Meanwhile, the second category by adopting
the interaction procedure, evaluates the politics together with complementary knowledge along with
criminal law, without damaging the independence of legal knowledge. Meanwhile, it seems if the
structure of criminal law knowledge is viewed by an epistemological perspective-as the superior
knowledge-, the dependence of criminal law to the theories of politics, the superior approach will be
evaluated.
Keywords: Legal theory, politics, independence of law, criminal law, epistemology
1. Corresponding author, [email protected]
Introduction
One of the topics which has been considered in the legal studies particularly the philosophy of law is
dependence or independence of law knowledge from other majors of humanities and social sciences.
Meanwhile, a group emphasizing on the independence of law, deem this knowledge as a systematic and
special provisions concluding knowledge that analyzes the legal issues independent from other sciences
(Bix, 2003, p 977). As their viewpoints, the law, like as the other sciences, is an independent science and
only the jurists are qualified to opine on the legal affairs.
In return, a group in addition of describing the law from the perspective of the other sciences, mentioned
to the independent of this knowledge. In addition to defining the purposes for the social system and
policymaking for achieving thereto, they deemed the law as a tool for achieving the social goals and claim
that the law in this meaning is not solely able to analyze and theorize, but adopting and interpreting the
laws and judicial opinions and legal reasoning requires the awareness of social and human conditions
(Posner, 1987, p. 761). In fact, any sort of legal studies is realizable only through study and utilizing the
achievements of other sciences; as a result, the law excludes the known framework and form and is
dependent to other sciences’ developments.
Meanwhile, the effect of some sciences on the law has been considered somewhat by the legal theories,
such that happened in legal and economic studies within the recent decades, but the effect of some other
sciences such as politics and political philosophy has not been studied as required.
Although criminal negligence of the behaviors and its punishment is one of the most basic and traditional
styles of governments’ power exercising, but despite of relationship between the “crime” and
“punishment”, and “power” and “government” in the written works of contemporary political philosophy,
the criminal law has not been noticed, and in the law philosophy works, the position of political theories
has not been analyzed extensively (Fletcher, 2006, p. 18).
In the contemporary legal thoughts, by negating the private justice, the crime and penalty has been
applied as one of the public justice defaults, and have been identified as the only qualified reference for
criminal negligence and punishment of citizens’ behaviors, legislative and executive branches as the
substantial principles of “government” (as one of elements of political thought) that has doubled the
importance of analyzing the relationship between criminal law and politics. Either deeming the politics as
“art of ruling” or “study of public affairs” and or “power study” (Heywood, 2002, p. 10-18), the “criminal
phenomenon” will be certainly identified as a prominent element thereof.
Meanwhile, the analysis of relationship between legal law and politics, and categorizing and evaluating
the theories may be introduced in this context are important due to two reasons:
1- Firstly, although the interaction between political thought and criminal law has been mentioned
within some legal and political theories, but no classified categorization of these relationships
have been presented, therefore, the extant paper may be deemed as a forward step.
2- Furthermore, clarification of raised theories in this context, and adopting each one of these
approaches causes the legal experts particularly the criminal law to evaluate the position and
interaction with the political thoughts in the legal theorization and consider their bounding to each
one of them. Indeed, every criminal law theorist shall prior to entering into the legal analysis and
argument, specify and determine his view on relationship between “law and politics”, then
provide theories in the context of the said relationship.
Thus, in this paper, it is attempted to categorize the relationship between criminal law and politics
in a logic framework (minus equality relation) in three categories including “independence
approach”, “interaction approach” and ultimately “attachment and dependence approach” and the
theories related to each one are evaluated in the relative category2.3
A) Criminal Law’s Independence From Politics
Accepting the law independence from other sciences4 reveals its effects on three different contexts
including (1) legal reasoning that benefits from different logics and form than the other arguments and
reasoning and therefore has independence, (2) legal reasoning per se doesn’t require to utilize the other
approaches and sciences for development and evolution, (3) and ultimately the jurists and legal theorists
shall review the legal issues only in accordance with the legal doctrine and don’t consider the other
knowledge and topics (Bix, 2003, p. 975).
Furthermore, independence of law from politics is studied from three descriptive, analytical, and
prescriptive perspectives. In the descriptive perspective, upon reviewing the legal system and its
education system, the measure of law independence from other sciences and factors is evaluated without
any judge. Analytical perspective analyzes the nature of law and its theoretical and practical aspects and
focus on the possibility or impossibility, necessity or non-necessity of law’s independence from other
sciences. Ultimately, the prescriptive view suggests the appropriate solution for changing the status quo to
a suitable status based on the data resulted from two former perspectives (Ibid, p. 976).
Although the foregoing approaches which have been considered as respect to the law’s independence
from the politics have not been expressed in the above frameworks, but each one depending to their
methodological nature have described, analyzed and prescribed.
1- Legal Formalism; Pure Independence
Although the formalism or in other word, textualism has been used as a not very positive label in the legal
texts, but yet its theoretical symbols are seen in the writings of many of law philosophy authors (Grey,
1999). As the viewpoint of legal formalists, the law is fully independent from other sciences and has been
separated from those; accordingly any interpretation of legal texts is bounded to textual and superficial
interpretation of the text. In this assumption, the legal analysis and interpretation is distinguished from all
2 Similar to this expression-with some differences- has been presented by Max Weber in expression of relationship
between the religion and government in the church domination era. Weber categorized the relationship between the
religion and government to “Caesaropapism”, “Hierocracy” and “Theocracy” and expressed the relationship
between the threes, but next has been adjusted and complemented by some ones like as Roland Robertson. 3 This paper declares the difference of methodology between the “politics” as a major of social sciences and
“political thought/theory” as a branch of humanities, furthermore, ignores these differences in order to present a
general view of relationship between law and politics. 4 Some authors have applied titles such as “Autonomism or Doctrinalism for this approach. Refer to:
Calabresi, Guido, “An Introduction to Legal Thought: Four Approaches to Law and to the Allocation of Body
Parts”, Stanford Review (55), 2003, p. 2113-2151
other value systems like as morals, religion and politics, and analyzes and construes the legal concepts
independently (Ibid).
The formalism emphasizing on the appearances of words, describes the legal knowledge as a closed
science that clear rules and decisive reasons are applicable thereon. As a result, the law is not affected by
the external factors and will be remained as a pure subjective knowledge (Tebbit, 2000). The emphasis on
the pure formal analogy and keeping the legal reasoning pure from other sciences is under consideration
in this procedure. The main concern of the formalists is keeping the law and legal reasoning devoid of the
effective external causes with the motivation of achieving the limpid and decorated justice.
The result of legal formalism interacted with the politics is that the legal science due to its methodological
and thematic independence has a full independence and will not be affected by the developments of
politics whether in theory or in practice. Therefore, the criminal law has passed during the years an
evolutional deformation and has achieved a type of reasoning independence (Bix, 2003, p. 979), without
need to benefit and being affected by the politics. The legal reasoning whether in criminal law or others,
without being affected by the politics, is able to comply with its theoretical requirements only by means
of its independent rules.
The formalists resort intensively to the principle of legality of crime and punishment as the most pivotal
rule in criminal law and believe that all legal rules are construable only in the framework of words appear
(Zupancic, 1981, p. 369) and promote a textualistic approach (Scalia, 1989, p. 1175) and don’t define a
position for intervention or utilization of politics in the criminal law. The result of such an approach
towards the politics will lead to this fact that if the theory enforcing on the state political system is altered,
muted or transformed, it will not affect the criminal law system and is going independently; because it is
an independent system and free from any effectiveness by other non-legal sciences and theories.
As if the legal formalism analyzes the legal principles and rule in the social and political vacuum without
considering to what occurring around it, and free from political revolution and mutation and alteration of
ruling system’s legitimacy principles, establishes the justice and enforces the punishment by resorting to
the legal and judicial independence principle, and doesn’t suppose the political thought ruling on the
society under influence of the criminal negligence of the behaviors. Such an approach distinguishes the
criminal law from other studies, and chanting the slogan of autonomy doesn’t formally recognize the
other value systems applicable on the society, and deems the rhetoric interpretation of the texts dominant
to all other legal principles. As if, the law has no connection with the political system and social events
around which.
2- Legal Positivism; Exposition by Hans Kelsen
Although the main concern of legal positivism followers is the topic of law and morals separation (Hart,
1983, p 593) and has been formed based on the opposition to the natural law school, but the achievements
of this school have been extended to the political affairs. The legal positivism for expressing the
relationship between law and morals and the position of justice in the legal system, inevitably defined the
nature and quiddity of law and reliability of legal rules, accordingly raised the government legitimacy
position in legal system (Green, 2009). As well as, for expressing the judges’ qualification for proceeding
with complicated and without record judicial cases, they obliged to take into consideration the
relationship between the judges and government (Himma, 1999, p. 71-82), because in common law, if a
without record judicial case is raised, the judge shall make decision and issue the verdict, and because no
legal and procedural record in available in these cases, the judge represent the legislator and the
legislative branch.
Despite of all commons in the raised expressions by the legal positivism, different expositions have been
presented for this school that the difference between them results in different consequences for the
relationship between the law and politics. Among these interpretations, the exposition of Austrian Kelsen
has stood clearly with respect to the law independence from the politics.
Hans Kelsen one of the positivism pioneers, has defended the law independency in the book of “Theory
of Pure Law” (Kelsen, 1978). His meaning of “purity” is that the legal theory should be based on the law
only and should not be mixed to the psychology, biology, sociology, history, morals and theology
(Kelsen, 1978, p. 49). Kelsen emphasizing on the legal realism in his pure theory, attempted to describe
the law as it is, without justifying it as a justly affair or rejecting as an unfair subject (Kelsen, 1978, p.
60). Therefore, he abstained strongly from evaluation of subjective law, and as possible refrains from
providing the politic ideological tools for justification or rejection of the social order (Kelsen, 1978, p.
60). He believes that the moral ideals particularly the ideals related to the justice are essentially irrational,
thus they are not suitable for any legal scientific analysis. Whereas he emphasized the subject of studying
the law as a science should be an act not a particular legal system, was seeking to differentiate the pure
formal structures from any probable legal system (Tebbit, 2000). For realizing this thought, he prioritized
the purity in subject (as respect to the moral, political, sociological etc. aspects), and purity in method
(avoiding from prescriptive or ideological approach) in his definition of law, and presented a formal
definition of law and legal rules (Tebbit, 2000, 71 & 73).
Regarding the purifying the law from the politics, Kelsen has a unique explicitly; in spite of that he insists
allover the book of “Theory of Pure Law” on the differentiation of law from all other sciences, but writes
ate the preface of the same book as follows:
“Contrary to the face value, in fact there is no conflict on the position of law among the other sciences,
and resulted consequences and outcomes, but the dispute is on the relationship between the law and
politics, and the gap between the both; [the conflict] is on desisting the deep-rooted habit of presenting the
political topics in the name of law.” (Kelsen, 1978, p. 44).
He deems the critics of his theory as the followers of combining the political thought and the law, and
claims they are fighting multilaterally against his theory, then declares that: “in a time that other theories
tend to comply themselves with all the powers, and nobody refrains from demanding the law including
the political aspect clearly and with a loud voice, …, it seems there is nothing more unlucky than a legal
theory that intends to preserve its purity”. (Kelsen, 1978, p. 47).
The pure view of Kelsen to the law affects the criminal law. As his viewpoint, the law is like as a
normative pyramid in which the legal rules have been sorted on each other (Tebbit, 2000, p. 73) and every
body shall obey these rules, and questioning about its cause is a useless and out of legal framework
question and may evaluate the validity of rules only based on the legal hierarchy (Tebbit, 2000, p. 74).
Any behavior of the government is legal because is emerged from the law and the legal rules may not be
evaluated according to the moral or political factors. Therefore, Kelsen according to his pure-willing
belief on law, believes that the political thought should not intervene in analysis of criminal law rules or
affecting it; because as his belief, in spite of extensive efforts of human for expressing a definition of
justice, this concept is yet ambiguous (Kelsen, 1978, p. 58).
So, although Hans Kelsen attempted to express the epistemic aspects of law by a more philosophic
approach, but in practice, by denying the position of politics and its principles, ignores the relationship
between political institutions and power for establishing the legal rules. As well as, nevertheless Kelsen
has used Kant transcendental argument for expressing his theory, but still uses the legal reasoning
regarding the for quiddity and nature of the law and tries to explain the nature of law and its rules by
resorting to the legal inter-discursive literature.
B) The Interaction between Criminal Law and Politics
Doubtless, the most prevalent approach among the jurists is the approach of minimal engaging the other
sciences in law (Badini, 2006); but among the politic researchers, it is not so extensive. As the perspective
of this approach, the politics parallel to the other human knowledge is effective on the law. As the morals,
religion, philosophy, medicine, psychology and economics affect the law and help the judges and
legislators for exploring the concept and nature of social behaviors, the politics affects the law as well.
The new approaches to law and tending towards specialization of law caused the law as the science of
social order regulating to benefit from other scientific fields, meanwhile the politics has been considered
along with the other sciences (Badini, 2006).
According to this approach, although the criminal law is an independent science as regard to the subject
and method, but noticing the goals defined for which, is obliged to utilize the achievements of other
sciences and by resorting to them, proceed with the crimes and violations. Accordingly, the criminal law
like as a client provides its required tools from other sciences.
1- Legal Realism
The greatest supporters of interaction approach are “legal realists” that emphasize seriously on the
thought of interaction between the law and other sciences, such as politics. The legal realists confront the
formalists with this slogan that instead of resorting to the legal useless and inflexible rules and principles
to consider the social benefits and goals. As the viewpoint of the realists, the process of acts approval and
issuance of judicial opinions requires the personal, moral and political observations which are achieved
under the effect of these factors (Altman, 1996). They criticize the legal formalism and upon resorting to
the principles such as “principle of legality” deem the formalism as a barrier for law development and its
compliance with the updated requirements of the man that restricts the law in solving the problems and
issues occurred.
Although the realists have been divided in various approaches (such as American, Scandinavian,
individual characteristics, social approach etc.) (Leiter, 2004) and have different opinions in some
contexts, but they are agreed on two principles:
1- Ambiguity in law; they believe the legal rules and acts have a degree of ambiguity and brevity
and due to this reason, depending on the different conditions and from different perspectives,
different responses are obtained (Ibid). Thus, for realizing from this ambiguity and brevity in
legal rules, all the social, academic and technical capacities should be utilized. The extremist
realists went beyond the subject and claim that the legal rules and acts are a series of vacuous
words and terms that the judges pour their previous defaults and decisions into this vessel and so
legalize them (Altman, 1996) (this perception has been propelled towards the law critical
movement). Accepting the prominent characteristic of ambiguity in the laws caused the realists to
criticize the obedience of tribunal’s judicial precedent, particularly in common law legal system,
and apply the opinions issued in each tribunal enforceable just in the same tribunal.
2- Law interdisciplinary; accepting the social realities and that the law is dealing with establishing
the public order in all contexts (economical, cultural, social and political) caused the realists to
reject no one of Humanities and proportional to each topic benefit from its achievements. Upon
inspiring by the epistemic pragmatism, they apply the function originality and efficiency as the
axis of theorization and don’t avert the inspiration by the all other sciences in the law (Erlanger et
al, 2005, p. 335-363) and (Leiter, 2004). Meanwhile, a methodology difference between the
realists is observed; some realists having a descriptive view to the law and acknowledged the
practical and real effect of other sciences on the law (exist), and some other by a prescriptive
viewpoint emphasized on utilizing the other sciences for the law (shall exist).
Although the criminal law authors may not mentioned to legal realism in their works, but the outcomes of
this approach, particularly for benefiting from politics, is observed in many of their works. In these works,
analysis of legal concepts and criminal law requires mostly to benefiting from levels of politics
fundamentals that without hinting to the theoretical origin of this fundamental has been considered as
legal analysis. Thus, the analysis of criminal law has been affected by politics in practice without
identifying this effect.
Proceeding with the theories of “individualism” and “socialism” and its effect on the legal system and
assessing the superiority of individual rights and social rights to each other, has been presented as a legal
analysis nevertheless has been borrowed from the resources of politics. This status has become clearer in
the criminal law writings. Whereas in the criminal law, two concepts of “freedom” and “exercising
power” has frequent application in the context of criminal negligence and punishment, it is natural that
the criminal law authors mention to this subject. Whilst the “freedom” and “power” are two items of the
most substantial topics considered by the politics (Sheldon, 2001, p. 113, 187, 238).
The considerable point in these works is deeming the legal terms as obvious, and requires the political
terms. The most of these authors have used these terms as the basis or confirmation for their claim
without mentioning to the theoretical origin of these theories. These authors upon assuming the
controversial terms such as “maximal citizens’ freedom”, “guaranteeing the individual freedoms as the
obligation of penal law”, “the role of penal law in leading towards the free and democratic society”,
“constitutional principle of parliamentary immunity”, “considering the right to punish as the philosophic
and legal concept” in the context of politics, have confirmed the utilization of politics’ achievements in
the criminal law.
The legal realism approach in the West due to being affected by the pragmatic thoughts of William James
has been distanced from the basis. Therefore doesn’t define the relationship between the law and politics
within a special logic framework; but in any special status, by resorting to the achievements of other
sciences such as politics, meets its requirements. This approach is not seeking to identify the theoretical
peripatetism of utilizing sciences, thus doesn’t consider the expression of relationship between legal terms
and other terms. In other word, the realism has no concern on epistemic position of criminal law that
intends to justify its basis.
2- Legal Instrumentalism
Legal instrumentalism has been emerged in the law theories pursuant to serious critic on legal formalism
achievements. The instrumentalism denied the “law goalless being” and so accused the formalism to
inconsideration to the realities and social welfare, in return, evaluated the society interest and welfare as
the most important goal of the law. Therefore, they emphasize on this point that the judges and
interpreters of laws to interpret the laws considering the public welfare and interest and release
themselves from the bounds of texts appearances (Aeken, 2005, p. 67).
Although the legal instrumentalism has been deemed as one of the aspects of law realism, but due to the
particular focus of some authors on this special theory and disagreement of all realists on accepting the
instrumentalism, this theory has been analyzed independently. The instrumentalists believe that one of the
instruments of believing the “law purposefulness” is accepting the instrumentalism (Tamanaha, 2005).
Believing the law purposefulness means that the law has a purpose that all the legal rules and principles
are used for achieving this purpose and the originality is realized by these purposes and the law and its
rules are not something except instruments for achieving these purposes (Tamanaha, 2006, p.1,2). The
legal instrumentalism has been considered from different aspects including six aspects as follows: 1-
Theoretical instrumentalism, 2- instrumentalism as respect to purposes of teaching law to the students by
the professors, 3- instrumentalism as respect to the attorneys’ purposes and its realization, 4-
instrumentalism as respect to the organizational strategies and achieving the organization goals, 5-
instrumentalism as respect to the judges and judgment, 6- instrumentalism as respect to the legislators and
achieving the purposes of legislation (Tamanaha, 2005). In each one of these contexts, the law has been
deemed as an instrument for achieving the purposes which have been determined out of the legal system
and these purposes maybe the political thought or goals. As theoretical aspect, the legal instrumentalism
has different effects. “Law and economics” perspective that deems the law as an instrument for
accomplishing further assets, and “critical legal studies” perspective that deems the law as an instrument
in the hand of the elites for attaining their goals, all evaluate the instrumental function of law as the
mature of this science (Ibid).
Accepting the law as an instrument will lead to considerable results; as the applied mathematics is
identified as an instrument for economics, the law has an instrumental application for other Humanities
and social sciences. Meanwhile, although the legal instrumentalism followers have not analyzed the
relationship between politics considerably but in practice, the criminal law is the best instrument for the
politics and political science may be redefined as a science which intends to define and apply the power
and metropolitan authority in the society. As the criminal law is an instrument for establishing economic
order in the society (economic crimes), suitable moral and training environment (crime of promoting the
prostitution among the children) and preserving the life and prestige privacy (crimes against persons), as
well as is an instrument for establishing the political discipline and realization of political goals and
values in the society. Thus, the political system and enforcing political thought similar to the other aspects
utilizes the criminal law as a neutral instrument towards its goals and values, without defining the law
below the political thought.
It seems the same criticisms on legal realism are applied on this theory as well; because essentially the
legal instrumentalism is deemed as a sequence of legal realism that on account of some traits has found a
special title.
C) Criminal Law's Dependency to Politics
Although among the works and writings of criminal law and politics, lower part has been allocated to the
approach of combing the criminal law and politics, but the variety of theories on such relation, is more
than the former approaches. These theories, each one by means of a distinguished principle and method
evaluate the political thoughts under direct effect of political thoughts and deem any change and mutation
in applicable political thought as the prelude of law and criminal law’s development and transformation.
Indeed, dependency approach criticizes the “interactionist approach” and claims this is not the criminal
law that uses the other knowledge for achieving its purposes, but this is the politics and its science that
through different justifications utilizes the instruments of criminal law for attaining its purposes. In fact,
there is no more than one purpose and basis and it is the fundamental and purposes of politics.
1- Critical Legal Studies (CLS):
“Law is politics”. This is the main motto of critical legal studies supporters that have expressed frankly
the combination and merger of law and politics. Although the success of this movement was until the
recent of the 1980s, nevertheless some of its thoughts are considered yet. This motto implies clearly the
negation of law independence means any reasoning in law is principally a political reasoning (Badini,
2006).
The history of critical legal studies movement is referred to the left Marxist thoughts (Unger, 1986, p. 1)
and it has been founded following the criticism of liberal legal system as far as described the liberal
thoughts applicable on the American society including extensive contradictions and yet deceitful (Altman,
1996).
The supporters of critical legal studies movement by rejecting the legal formalism thought even in the
common litigations question the neutrality and fairness of legal reasoning and deem the claim of “rule of
law” just as a myth; because they believe the rulers establish the hierarchic system in the society by
resorting to the motto of “rule of law and principle of legality” and guarantee the position of their
domination on the citizens (Kennedy, 1982). They adopt the descriptive approach and believe that law as
its independent concept is not externalized and what is raised as the legal theories is supposed as an
instrument provided to the politicians for systematizing and theorizing the political, economical, cultural
and group demands (Altman, 1996).
The theorists of this school believe that the result of the most litigations is predictable but it is not due to
the predictability of law and being lack of ambiguity, but because the judges have identified and
predictable perspectives (Badini, 2006).
Although the critical legal studies movement as descriptive aspect evaluates the law dependent to the
political system and decisions, but by a prescriptive approach demands the removal of this relationship. In
fact, critical legal studies movement assumes the relationship between the law and politics as a “bitter
reality” that the legal system should think of releasing therefrom and until “the rule of law” has not been
recognized officially, there is no hope to release (Altman, 1996).
As the viewpoint of this approach, the criminal law has been provided like as an instrument to the politics
and politicians and this is not the law that rules, but the politics. As their viewpoint, the law is ever
drafted by ambiguity in order to provide the conditions for the authorities to achieve their purposes by
favorite interpretation (ibid). The difference between this approach and instrumentalism is that the
instrumentalists the law is generally describes as an instrument and just for serving the society welfare
and interests, without limiting it dependent to the politics. But critical movement evaluates the criminal
law as instrument merely provided to the politics and towards fulfillment of political goals.
Feministic approach has presented the unique achievements as well. As their viewpoint, the law in an
instrument in the hand of manly politics through which can dominate over the women. As well as, liberal
legalism is indeed an instrument for men’s domination and legitimizing their viewpoints on the society
(Ward, 1988, p. 161). They even evaluate the right of privacy as one of the important liberalism principles
(Rossler, 2005) towards patriarchy that provides the requirements for violating against the women
(Altman, 1996). According to the feministic view, the men dominating on political power resources
benefit from criminal law instruments for overcoming the women. In other word, the men through
dominating over political system use the criminal law instruments against the women.
Along with the feminists, may refer to critical and post-structuralistic thoughts of Michel Foucault in the
context of power and punishment concept analysis that have common points with the critical legal studies.
But, Foucault describes the punishment in an environment out of legal thought and by analyzing the
concept of political power as the special policy of the governments for applying the rule and power which
has been transformed in the different times but still has a united nature. As he believed, the punishment
should be understood as a political tactic which has been placed in power relations (Garland, 2009, p.
1064). He believed the expansion of care and punishment system caused the constitutional law-based
democracy to be evaluated as appropriate political system because it can control the individuals’ relations
by means of law (ibid, p. 1077).
Therefore, generally the expression of relationship between the law and politics in this movement is a
critical-descriptive analysis of hearing and legislative procedure and they emphasize the legal studies
process to be applied towards distinguish of politics and law. In other words, critical legal studies
movement as the sociological perspective declared that the politics and politicians have taken the reins of
law and just unreasonably and it has resulted in injustices in different subjects; but in the prescriptive
approach, the law should take all its efforts to separate its way from the politics.
2- Legal Positivism; Exposition by John Austin
Another approach on relationship between the law and politics is considering the relationship between the
law and political system and structure. Although in the common law systems, the criminal affairs are
detected and not enacted by the supreme courts’ judges (Gardner & Anderson, 2008, p. 23), but in other
criminal systems, the legislator enacts the law and creates a criminal affair. The decisions of legislator in
the context of crime and punishment have been valued over time so that “crime and punishment legality
principle” has been identified as the basis of criminal law.
Meanwhile, John Austin one of legal positivism pioneers, tending to the analytical philosophy, defined
the concept of law so that ultimately the position of political structure has been recognized in law
officially. At the beginning, he analyzed the law concepts and terms and attempted through which
differentiate the legal from illegal. According to the tradition of analytical law philosophy, he took effort
to only proceed with the logical relationship between the available rules without presenting any ideal, or
consider the social forces and rule enforcing environment (Katoozian, 2009, p. 19-20). Therefore, it
seems John Austin is one of believers in law independency from other sciences, but this Austin’s
assumption of legal positivism in relation to the politics is a different presentation.
John Austin has recognized the law implicitly as a political structure in his “command theory”. He deems
the law as a rule that is enacted by an intelligent power (political system) for guiding another intelligent
living being (principles of political system and individuals) (Tebbit, 2000, p.45). He viewing the political
system, deems the basis of such a legal power as the domination of the individual (such as monarchy) or
institution (such as democracy), that is the origin of law. According to the Austin’s theory, the laws are
commands ordered by a superior political authority and based on the habit of obedience for the most
people and are enforced obligatory.
In other word, the law is a general command that is enacted by the political system’s heads in order to
bring continuous obligations for the individual and they shall act in a special manner (Altman, 1996).
In fact, John Austin assumes the law nothing except “command theory of law”. In his definition of law, in
his definition of law, he deemed it follows “the ruler’s declared tendency to performing something” and
“ratifying the sanction for nonperformance of which”. He presents even a definition of ruler and in
practice construes the law to the set of commands and orders of the ruler (Bix, 2010). He expressly
assumes the ruler power lack of legal restriction, because the ruler is necessarily preferable than the law
(Altman, 1996). This special Austin’s perception of legal positivism, contrary to the general evaluation of
some authors (Badini, 2006), will be pertained to the group believing in dependency and combination of
law in politics.
The considerable point in consideration of Austin’s thought is its distinction with the other perceptions of
legal positivism. Without entering into the political system structure, he defines the law according to the
political system structure separate from the bounds. As the viewpoint of Austin, “that something is
considered as the law or not is dependent to who obey what”. In fact, this subject is an experimental topic
and related to the power not morals (ibid). Accordingly, criminal negligence and determining the
punishment in the laws is as applying the political power that is enforced by the dominant political power,
which is the paramount authority in the society, on the citizens and followers of law. Politicians of each
society control the citizens’ behavior by enacting these regulations and punish who acts against these
provisions (Altman, 1996). In this exposition of legal positivism, subjects such as political legitimacy,
values applicable on the society and government, freedom bounds and intervention of the government in
the citizens’ behaviors all of which are the subjects of politics, are evaluated as infra-legal and in the legal
framework are enforced by punishment enforcing guarantee. In other word, criminal law is an instrument
provided to the political governors of each society in order to enforce the values accepted by the political
system.
Conclusion
Notwithstanding, studying the other fields of Humanities and social sciences such as philosophy,
economics, philosophy of morals, sociology and politics may provide special insight on the nature and
performance of criminal law, but the quality and effect of relationship between this science and law is
considered by the scholars. Meanwhile, whereas the relationship between the politics and criminal law
has been considered less by the legal theorists, revising the theoretical relationships between these two
Humanities seems to be necessary and unavoidable. What occurred while analyzing the triple logical
approaches was an effort in these relations.
Indeed, according to the said categorization, any criminal law theorist prior to theorization is obliged to
explain the relationship between his theory and the politics in two contexts:
First: As the viewpoint of legal theorist, the relationship between the law and politics (“independence”,
“interaction” or “dependency”) is describable in which form and what is the relationship between legal
rules and political thoughts.
Second: In case of adopting an approach except law and politics dependency approach, which political
theory affects the legal theory. This theory, depending on the nature of accepting its relationship with the
politics, maybe a theory in the context of politics (as a branch of social sciences) or in the context of
political philosophy (as a branch of Humanities).
In other word, criminal law theorist, at the beginning of legal science production path, faces an algorithm,
that inevitably should choose one of the facing options and pursuant to his first choice answers the
questions resulted from this choice. This algorithm due to including the probable options, (triple
approaches) is able to contain the most legal theories and has this capability, in the subsequent theoretical
efforts, to attain more perfect stages from the present beginning stage.
If the legal theorist prefers the criminal law independence to the political thought, he will assume a legal
system in which free of any ruling political system, the rules of criminal law are fixed and objective, and
continue their way without effectiveness of political attitude changing to the government freedom and
power. As if, changing an authoritarian political system to the democratic system, or humanistic values-
based system to divine legitimacy-based system will not be effective on citizens’ behavior limitation
(criminal negligence) and enforcing the punishment on them.
Also, if the theorist jurist supports the interaction and utilization of politics by the criminal law, along
with accepting the law as an independent science and considering the lack of objectivity in the legal texts,
he deems the use of political concepts, presentations and expressions are necessary for interpreting and
enforcing the law. In this theory, the law is a knowledge without objective and intrinsic concepts that
under effect of different thoughts and social environments, has found various aspects in different
conditions. One of these aspects is the dominant political thought and political thought of legal actors.
Ultimately, in case of accepting the dependence of criminal law to the politics whether by the negative
view (such as critical studies) or by the positive view (epistemic foundationalist approach), the legal
theorist may not analyze the law without considering the political thoughts. As their viewpoint, the law is
a branch of politics, or at least the basic concepts of criminal law are expressed and defined in political
theory. But the group having the negative view to the dependency, tries to prescribe some prescription for
releasing therefrom, but who have positive view to the independency such as epistemic foundationalist
approach believe that the conceptual dependency of criminal law to the politics is inevitable and not
bounding to which is due to improper understanding of relationship between the sciences. In this
approach, any variation of political thoughts and transferring from one paradigm to another in politics
unavoidably causes the paradigmatic transfer of criminal law.
Nevertheless, if we want to consider the epistemic structure of criminal law by a fundamental perspective,
and evaluate its ratio to the other sciences, inevitably should have epistemological view on the
relationship between the law and politics. In other word, the only way for assessing the ratio between the
sciences and studies is exiting from legal environment and its methods, and resorting to the meta-theory
instruments. In this method, the analyzer exiting from the legal discursive environment views the criminal
law options from up and without involving in the details, evaluates the ratio between criminal law and
politics. Essentially, if this ratio assessment is applied by means of legal and discursive methods, so
occurred as per the foregoing theories, no reliable result will be concluded.
Resorting to the superior knowledge (epistemology) and justification theories, upon exiting from legal-
political environment, may have a transdisciplinary perspective to the criminal law. Therefore, from the
methodological perspective may prefer this approach to the other foregoing theories. Because, by external
assessment of criminal law, it could evaluate their relation with the politics and so justify them.
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