Empirical and Comparative Perspectives on Law and Politics Keren Weinshall-Margel International Max Planck Research Summer School, 2015

Criminal lawPrivate lawPublic law Party AState (prosecutor)Citizen (plaintiff)Citizen (petitioner) Party BCitizen (defendant) State (respondent) Burden of proof Beyond a reasonable doubt Balance of probabilities Usually a presumption of legality of the authority’s actions RemedyPunishment (prison / fine) Compensation (usually monetary) Usually injunctions The Politics in law Creating social norms by defining “negative” behavior as illegal conduct The division between private and public reflects and creates socio- political structures *The court’s political power *Society’s responsibility vis- à-vis the individual

Course Objectives and Schedule  Discuss how politics affects the creation and development of law, and vice versa.  Examine law as a political-social arena that reflects and perpetuates social structures. Course Schedule:  Aug. 3: Introduction: Are "law" and "politics" separate spheres?  Aug. 4: Can law bring social change?  Aug. 5 -6: What affects a judge’s decisions?  Aug. 7: What are the normative implications of the relationship between law and politics?

What is the relationship between law and politics? The “natural law” response Natural law principles are inherent in the world of moral principles. They exist regardless of politics. Society can not influence or change natural law. Consequently, the sovereign’s law is designed to perform technical functions in society, primarily to resolve conflicts and impose order.

The law is created by a sovereign for the collective good in society (greatest happiness principle). Law comprises a collection of rules that can contain different content and reflect the society’s preferences. What is the relationship between law and politics? Legal positivism response

The law is an ongoing and evolving social creation. The only way to address law is in the socio-political context of the law’s function The law is an open market of political interests The law is a false consciousness, preserving and perpetuating class differences Law perpetuates male perceptions and interests What is the relationship between law and politics? Legal realism response

The law generates identity, consciousness and ideology among subjects What is the relationship between law and politics? Post- modernism response

Law in politics and politics in law The law is an element in politics, advancing and instilling interest by defining normative categories of good/right/legal and bad/wrong/illegal that is gradually submerged into the human mind.

The invisible law  The separation of the field of law from other fields of life is misleading  The law is “invisible” in all fields of life  A law-abiding citizen does not only “follow the law’s directives,” but also participates in existing practices based on the law. These practices are not necessary or exclusive – they are a product and source of social structures.

Perception of the law as neutral, objective and blind The law tries to appear neutral  in legislation  in court rulings  in legal customs The view of the law as neutral means seeing it as disconnected from the society, and this is what makes the law invisible.

Four hierarchical perceptions of the relations between law and politics: 1.Law as performing functions in society – in particular, resolving conflicts and imposing order. 2.Law as a reflection of the current politics. 3.Law as perpetuating the balance of political power and social structures. 4.Law as instilling personal ideology.