7 - Law, legislation, and positive political theory

Summary

INTRODUCTION: LEGISLATION AND LAW

The study of politics is dominated by what might be called a “legislative” view of government. In this view government proceeds largely through enacting general rules to channel social and economic conduct and then using more mundane administrative means to enforce them. This emphasis on legislation encourages us to see other institutions and practices in terms of their connection to or similarity to the legislature. Thus, electoral studies are frequently justified or motivated by their consequences for selecting lawmakers or expressing “mandates” for new laws; presidents are often seen and judged in terms of their role in the legislative process; and administrative agencies and courts are seen as quasilegislative bodies, promulgating general rules and regulations. If the Founding Fathers were wrong to fear congressional dominance of other national institutions, they were perhaps prescient in foreseeing how the legislative model would dominate the way we have come to understand government.

This focus on legislation while, perhaps, natural enough in a democratic nation – statutes are, after all, the principal normatively sanctioned route by which public opinion is translated into public action – produces a distorted description of governmental activity. The centrality of legislative studies suggests that there is a simple relationship between statutes and the law by which we live.