§ 1. On law and politics. The fundamental fact of politics is that it is polemical.

I use
this word in a precise sense, which is not to be understood as "controversial" or by
reference to the mere idea of “disagreement”. Political disagreement is controversial in
a specific sense. A conflict is polemical when it cannot be (impartially) adjudicated,
when to decide it is to takes sides. Polemical conflict cannot be decided, therefore, by an
appeal to reason, it has to be decided by a unilateral exercise of power by those who
have more1.
1 This is, in my view, the important insight in Carl Schmitt’s characterisation of the
political in terms of the friend/enemy distinction (Schmitt, Concept of the Political, p.
26). While Schmitt says at the end of the same paragraph that this distinction “denotes
the utmost degree of intensity of a union or separation, of an association or
dissociation”, his “criterion” in my view contains no suggestion that politics necessarily
involves that utmost degree of separation. Its importance, in my reading, emerges a few
paragraphs later: “Only the actual participants can correctly recognize, understand, and
judge the concrete situation and settle the extreme case of conflict. Each participant is in
a position to judge whether the adversary intends to negate his opponent's way of life
and therefore must be repulsed or fought in order to preserve one's own form of
existence” (ibid, p. 27). The point here is, in my view, that political conflict cannot be
decided but by the participants, i.e. that it cannot be adjudicated from outside, from an
impartial perspective. In a similar vein, Lon Fuller claimed that “the distinguishing
characteristic of adjudication lies in the fact that it confers on the affected party a
peculiar form of participation in the de-cision, that of presenting proofs and reasoned
arguments for a decision in his favor” (Fuller, "The Forms and Limits of Adjudication",
p. 364).

In contrast, legal conflict is adjudicable. To adjudicate is the function of jurisdiction,

and consists in giving each one his own according to rules common to the parties, i.e.
according to law2. To put it in a way that might seem provocatively naïve: political
conflict is decided by the unilateral exercise of power by those who have more, while
legal conflict is decided by the force of argument, regardless of each party’s relative
power. § 2. On institutions and how are they explained. This characterization might
seem provocatively naïve, though appearances can be deceiving. In fact, the explanation
of any institution has an initial moment of apparent naivety. As I have explained in
detail elsewhere, institutions are to be understood as devices to make probable what is
improbable. According to this model, the general form of an explanation of any
institution involves three steps: (i) An actually existing institution that can be identified
by two dimensions: on the one hand, by a given structure (formal features); on the other,
a given claim that is on the face of it more or less naïve (this is shown by the fact that
this claim is usually not referred to without endorsing it: courts of law are supposed to
decide according to law, from an impartial perspective; parliaments are supposed to
represent the people, contracts are supposed to be about commutative justice, etc.).
Notice that at this “preinterpretive” stage courts of law, parliaments and contracts are
identified is by their formal features. (ii) Such a claim is improbable in “natural” (=non
institutional) conditions (in those conditions, it is improbable that courts will decide
according to law, that parliaments will represent the people, that contracts will be about
commutative justice; what is probable is that judicial, parliamentary, contractual
decisions will serve the interests of the more powerful parties or players); (iii) The
formal features of the institution (its “design”, etc.) identified in (i) make probable what
in (ii) was shown to be improbable (if judges are independent and protected from public
criticism etc. it is probable that their decision will give each one his or her due; if
members of parliament are elected and they have publicly to discuss and decide it is
probable that particular interests will be purged and thus common interests will emerge;
since contracts are valid only if they are agreed without fraud, duress, undue influence
and the like, it is probable that each party will see the other’s obligation as more
valuable than his or her own, and in this sense the exchange will be commutatively
just)4.
4 The parenthetical remarks are not to be understood as statements of fact. I am not
expressing (here) an opinion as to whether it is actually the case that judicial
independence makes adjudication probable, or popular election and public discussion
make probable the purge of private interests and the emergence of the general will, or
the validity conditions of contracts make probable commutative justice. The point is
about the sense of those institutional features of courts, parliaments, contracts. If such
claim is rejected in the abstract, the institution becomes irrational (unless, of course, an
alternative explanation is offered); if it is rejected by reference to a concrete case, that
counts as criticism of the relevant instance of the institution.

Thus the general thesis: institutional concepts are structurally mediated functional
concepts. The making-probable-what-is-improbable formula is a specification of the
mediating function of structures (forms). Formal structures exist to make probable
improbable functions. This is the reason why the explanation of an institutions includes
an initial moment of apparent naivety, when the function that is “naturally” improbable
and which the institution purports to make probable is identified. The naivety is only
apparent, for it is part of the explanation that such function is (naturally, i.e.
preinstitutionally) improbable. Far from being naïve, the explanation would predict that
institutions will never (or not usually) fully succeed; institutions do not make necessary
what is improbable, they make it probable. § 3. The improbability of law. Law creates a
non-polemical space. We can even say that law is about making probable the existence
and sustainability of artificial spaces for adjudication, where conflict is to be decided by
an appeal to argument rather than by the use of power by those who have more. Just as
there is no naïveté in the thesis that legal conflict is decided by reference to reason,
there is no cynicism in the thesis that political conflict is decided by the unilateral
exercise of power. The thesis is agnostic as to how power is created and accumulated.
We have to follow the same road, starting from the beginning: given the polemical
nature of political conflict, it is improbable that political decisions will be taken from
the perspective of the interest of all; what is probable is that they will reflect a given
correlation of forces at a given time. The interest of all (=the will of the people, the
general will) needs to be made probable. Democratic institutions attempt to do this
without denying but building upon the polemical nature of political conflict. What they
purport to make probable is not that politics becomes non-polemical, but that the only
power available unilaterally to decide political conflict will be exactly that power that
cannot be created nor used unilaterally, i.e. communicative power5.
5 In other words, the thesis is not and does not imply any form of what Judith Shklar
called "legalism", the belief that "politics is considered not only as something separate
from law, but inferior to law. Law tends to justice, while politics only looks at
convenience. The first is neutral and objective, while the second is the uncontrolled son
of interests and ideologies" (Shklar, Legalism, p. 111).

§ 4. Politics is polemical. This is presented not as a theorem derived from some grand
theory, be it of law or of politics or of morality. The point is, in reality, banal, and
begins neither by theorizing nor by analyzing conceptual or normative realities or ideas,
but by considering the features of actually existing institutions. Comparing, for
example, the way in which the conflict between those who support and those who reject
a political initiative (say, a tax reform) is resolved and the way in which the
disagreement between the party who wants to execute a contract and the party that
claims it to be void is decided.
Let us begin with the first case: In it, the decision is up to those involved, and they do it
(under conditions of representative democracy) voting in a legislative assembly
composed of representatives who have been elected to be there. They characteristically
have run for office explicitly announcing that they hold and defend the political views to
which they will appeal when the moment comes to decide. In Parliament, the issue will
be put to a vote. This means that the most numerous side will be for that very reason
entitled to decide for the whole. Votes are the metric of political power, under normal
conditions of representative democracy (this could also be read backwards). This is the
moment of unilateral exercise of power. It is unilateral in the sense that the acceptance
of the weaker side (in parliament, the smaller faction) might be strategically convenient
but is not necessary, so that the decision does not stand in need of justification vis-à-vis
the defeated (the decision, to put it in the useful language of Michael Detmold, is
extrinsically related to reason6). The general thesis about the political announced at the
outset does not imply anything, then, about how power is created and used. It is a
question about the logic of political conflict, which follows from its defining feature:
that it is polemical and therefore cannot be adjudicated. Since the decision is in the
already specified sense unilateral, it is improbable that its content will go in the
common interest, that it will be the general will; what is probable is that it will be the
will of the majority (Rousseau, the discoverer of the “general will”, realized at once that
the conditions to identify it were unlikely to obtain: “Gods would be necessary to give
laws to men”7). Democratic institutions must be discussed and evaluated in their
aptitude to make probable the emergence of the general will rather than the will of the
majority. Their point is to make it probable that the power to be used unilaterally to
decide political conflict is, to put it in Habermasian terms, communicative power,
emerging from public discussion. The thesis is not and does not imply that there is
something in the intrinsic nature of each conflict that allows us to classify it as
polemical or impartial. In fact, if that were the case, that "something" would constitute
the defining feature of the political. But there are no conflicts that are per se polemical
or impartial. In principle, any conflict can become polemical, and an issue that was once
polemical can become one that can be impartially adjudicated: if this is the case, the
implication is that issues that in the past were political have cease to be so, and have
become “technical” issues (a good example might be inflation and independent central
banks8). The political is not defined by its content9. § 5. Law is impartial. Let us move
to the second case, a legal conflict like the one between the parties to a contract as to
whether or not it is void. Here the resolution is not left to the parties themselves, but to a
third, impartial party who will decide after each of the contending parties makes his/her
reasoned case. From the legal point of view, conflict can be decided in an impartial way
by an appeal to reasons, so that the (institutional) criterion of correctness is independent
from the relative strength of the parties10.
This is not meant as a "normative" statement about what would be good or nice to
happen, but as a claim implicit in actually existing legal institutions. As before, the
starting point is a series of banal observations rather than sophisticated theories. In the
paradigmatic case, a legal conflict is decided not by the parties, but by a third party.
Even when the adjudicator (as it usually happens) comes to a decision that will be in
agreement with one of the parties, he or she will do so while retaining his or her
impartiality. Unlike the perspective of the parties (which includes the lawyer’s
perspective), the judge’s claims impartiality. The judge’s perspective is the law’s, not in
the sense that law is what judges do, but in the sense of being impartial between the
parties’ interests11. This means that we can predicate from judges exactly what we
cannot predicate of voting members in parliamentary assemblies: that they are not part
of the conflict, that their decision gets to the conflict, so to speak, “from outside". None
of the above implies that the law “necessarily” or "conceptually" must live up to its own
promise. This is indeed something particularly relevant: the distinction between law and
politics that we have formulated is not a conceptual note of law. Actually, it is exactly
the opposite: it is a distinction that (a) cannot be taken for granted (it is itself
improbable) and (b) whose realization depends on contingent features of social practices
that may be (and indeed: are likely to be) otherwise. These observations are related:
Since actually existing practices can be otherwise, they cannot be taken for granted.
And yet in our historical-spiritual situation they are indeed taken for granted. Michael
Detmold got it right: "The ease of our developed practice misleads us as to its
nature"12.
But we can use the above remarks to identify the (“naturally” improbable) function of
law itself: it is to create spaces of impartiality in a context in which all conflict is
“naturally” polemical. It also provides us with a key to understand the function of
constitutional law, of the law that creates and regulates institutions to decide polemical
(political) conflict: its function is to make it probable that the only power that will be
available unilaterally to decide polemical conflict is exactly that power that cannot be
created unilaterally, viz. communicative power. § 6. A “realist” understanding of
democracy. The ease of our developed practice misleads us because it leads us to take
for granted what is indeed a major achievement. We no longer see the separation
between law and politics, the creation of artificial spaces where decisions depend on
reason and not on the unilateral exercise of power, as something improbable that needs
to be sustained. Now we think that it is simply part of our social world, simply “out
there”. Meanwhile, the rationalizing capacity of public discussion is at least seriously in
question, so that the power actually available is less and less seen as a Habermasian
communicative power and more as power created through media manipulation, fake
news, “post-truth” and the like. As a result, the claim of political institutions to speak
for the people, as representatives of it, is increasingly becoming an empty, fictitious
claim, one that can only be asserted tongue-in-cheek, with cynical undertones. The very
idea that public discussion can make probable the emergence of the general will
becomes at best unintelligible (at most a positive lie) and the democratic principle has to
settle on the notion of the will of the majority. This completely undermines the law’s
authority, because there is no authority in numbers. It might be a good idea to consider
this point with more detail. The institutional structures of representative democracy rest
upon an idea, that of political representation. Thus, for example, Article 1 of the Chilean
Civil Code: “Law is a volition of the sovereign will”. To the contemporary reader, this
is to be understood either as a normative or a descriptive claim. If the latter. It is
manifestly false; if the former, it is trivially true but irrelevant. When we are talking
about actually existing institutions, to assume that they correspond to the normative
ideal is obviously naïve; and for that reason the claim must be rephrased, must be given
a content that can be asserted without ignoring the shortcomings of existing institutions.
Thus, for example, Luigi Ferrajoli explains that democracy is a method of “formation of
public decisions” that realizes autonomy and “positive freedom”, in the idea of “self-
government” according to which Decisions are taken, directly or indirectly, by its
addressees themselves or more exactly by the majority of them and are, therefore,
expression of the “will” and the “popular sovereignty”13 Notice how the original idea
that law is the will of the people is transformed, to be compatible with a sensible dose of
realism, into the claim that law is the will of the majority. But this is still too naïve. For
it assumes that the decision of the majority of an assembly of representatives will
correspond to the will of the majority of the voters, and this ignores that representatives
can be “captured” by de facto powers (economic, military, and the like). In reality,
therefore, law is just the will of the majority of elected representatives. When purged
from its mystical overtones, the “myth” of the will of the people is replaced by the more
realist idea of the will of the majority (of representatives). This is what democracy is
really about. But ideas and institutional structures are related. Institutional structures are
justified because they make probable what is naturally improbable. Hence if the idea the
institution claims to make probable becomes a myth, the institution becomes irrational,
pointless. Nobody saw this more clearly than Carl Schmitt, in his famous criticism of
“parliamentarism” (what Schmitt designated with that name is, in my view, what is
nowadays called “representative democracy”): The situation of parliamentarism is
critical today because the development of modern mass democracy has made
argumentative public discussion an empty formality. Many norms of contemporary
parliamentary law, above all provisions concerning the independence of representatives
and the openness of sessions, function as a result like a superfluous decoration, useless
and even embarrassing, as though someone had painted the radiator of a modern central
heating system with red flames in order to give the appearance of a blazing fire14. Once
the idea that gave sense to the form of political institutions is discarder and replaced by
a different idea, many of the features (powers, modes of operation, and the like) became
problematic, and are subject to reinterpretation in order to sand off those problematic
aspects. And once the Roussounian idea of general will is replaced what Rousseau
correctly understood as its opposite, the will of the majority, democratic legislation can
no longer be understood as internally related to freedom (i.e. as one of the preconditions
of collective freedom), and has to be understood as a threat to freedom, justifiable only
for external reasons, like the need for coordination, or the securement of peace in a
Hobbesian sense and the like. From a political point of view, once democratic
legislation is understood as properly the will of the majority, most of the institutional
devices aimed at making probable the emergence of a common will will appear to be
outdated, even embarrasing; in particular, public discussion will increasingly appear as
a waste of time and resources. Politics will be seen as naked exercises of power. I call
them “naked” because the idea that political power is only communicative power will
now be seen as another myth, sheer naivety. § 7. The legalization of politics. This
transformation in our understanding of democratic politics implies a corresponding
transformation of its relation to law: if democratic decisions are to be understood as
naked exercises of power by those who have more of it, if they are entirely unilateral
decisions that are indifferent to the views of the weaker parties, then these ought to be
protected and the realm of democratic decision-making must be restricted to that realm
in which arbitrary decision-making is something we can live with (which is, indeed, a
rather restricted realm!): for example, the realm of policies rather than that of rights15.
How can we confined politics to that restricted space, How can we secure that important
issues that cannot be decided by the naked exercise of power are properly decided? The
answer is: through law, because law is an alternative to politics, law is not polemical,
law is impartial. Law has precisely what democratic politics now lacks: reason,
impartiality, fairness. The upshot is and has been in recent decades a sustained
movement to legalize politics, to subject it to what Dworkin called the (impartial)
“forum of principle”. This is a forum of reason, to which issues can be “lifted up” from
what correspondingly Dworkin called “the battleground of power politics”, with the
promise that “the deepest, most fundamental conflicts between individual and society
will once, someplace, finally, become questions of justice” rather than naked power16.
The silent assumption is the mistake diagnosed by Detmold: that, mislead by the ease of
our developed practices, we take the impartiality of law for granted, and conclude that
by legalizing politics the space of polemical conflict shall be reduced and the reach of
reason correlatively expanded; that we can do so safe in the assumption that the
impartially of law will domesticate the polemical nature of politics, because law is safe
from the pathologies we see in the political, because law in its ability to resort to reason
and not power will always be there. Dworkin was usefully explicit in this regard:
Judicial review insures that the most fundamental issues of political morality will finally
be set out and debated as issues of principle and not political power alone, a
transformation that cannot succeed, in any case not fully, within the legislature itself17.
Here lies the error. It lies not in the yearning: of course there is something deeply
unsettling in the idea that the most fundamental issues of political morality will be
decided by the unilateral exercise of naked power. The answer of democratic
institutions was not to deny the fundamental fact about politics, but to build upon it: the
ideas of public discussion and representation would make it probable that power is
communicative power. This is the only possible way to realize Dworkin’s promise. But
our time does not even have a language in which this answer can be meaningfully
expressed; hence instead of building a solution upon the defining feature of politics, it
tries to confine and displace politics. Politics is seen as the problem, not the solution.
But this is no solution, as Dworkin was to realize18. It is not a solution because it relies
on the mistake Detmold identified: it takes law for granted, it ignores politics’ Midas
touch. § 8. Law becomes polemical. This, again, is not mere theorising. What we can
see today is exactly what we would expect: law is becoming increasingly polemical.
The trend tends to go unnoticed: unnoticed by formalists, who refuse to see it even
today; and unnoticed by sceptics, who claim that there is nothing new under the sun (we
shall return to this shortly). For those who are willing to look more at actually existing
institutions and less to theories, however, the trend cannot be ignored. One of its most
salient dimension (not necessarily the deepest, or the most fundamental, but the most
obviously noticeable) is the transformation of the concept of a coup d’etat. There was a
time when coup d’etats bore their nature in themselves, so to speak: if a coup d’etat was
to happen, you would see it in the tanks on the streets, the soldiers with machine guns
on their trucks, the planes bombing the presidential palace. All of this is past. Now coup
d’etats are “institutional”, they use the law. We have seen this happening in Paraguay,
Peru, Honduras and most spectacularly in Brazil, after the example provided by the
failed coup against Clinton in the US. Since these new coups are institutional, of course,
their identification is polemical. This is not all there is to it. Institutional coups are the
mark of the times, but what is marked is deeper than that. The warning issued by Carl
Schmitt in his exchange with Hans Kelsen on the issue of “the guardian of the
constitution” is finally being realized. Schmitt saw in the creation of constitutional
courts a step in the process we are also witnessing: It seems natural to identify the
decision of all political questions through the employment of judicial procedure with the
ideal of the rule of law19. This, warned Schmitt, “would not be a juridification of
politics but rather a politicization of adjudication”20. And so it happens that today one
of the most important victories to be won in the battleground of power politics is control
of judicial bodies. Again the US provided the example, with the Supreme Court
appointing the President in 2001, in a decision so obviously partisan that the Court was
forced to declare that it was not to be taken as precedent21. And in Venezuela the
government, acting through its majority in the Supreme Court, suspended the National
Assembly after it had lost its majority in 201522; And in Bolivia the Plurinational
Constitutional Court authorised President Evo Morales to run for reelection, in the face
of an constitutional term-limit rule, because the term limit was incompatible with his
human right to vote and be elected for office23; And in Brazil, the Supreme Court in
fact decided the last presidential election in favor of Jair Bolsonaro, sustaining a
decision taken by a judge that would later become President Bolsonaro’s Ministry of
Justice; And in Chile, defenders of neoliberal institutions used their control of the
majority in the Constitutional Court routinely to stop legal reforms they were unable to
stop in the legislative process24, and so on.
These "institutional" coups d'états and the rise of "lawfare" are the mark that the
distinction between law and politics is being lost. Because lifting political conflict up
from the Dworkinian “battleground of power politics” into “the forum of principle” has
seriously backfired. Instead of subjecting politics to principle, it has rather tended to
transform the forum of principle in one more battleground of power politics. We can see
that many things that in the past were decided in parliaments are now decided by courts.
But when courts decide them, we see the polemical nature of political conflict re-
emerging: conservative judges decide according to a conservative law while progressive
judges decide according to a progressive law, so that the law itself is no longer
common. § 9. Nothing new under the sun? To all of this, worldwise legal theorists will
answer by rolling their eyes. This is the predictable reaction on both sides of the
theoretical spectrum. On one side, present-time “formalists” who have supported and
continue to support the expansion of the reach of constitutional courts are indeed fooled
by the ease of our developed practices. They will say that there is nothing new under the
sun, that legal interpretation has always been influenced by judges’ political
preferences, that we all know that constitutional interpretation is both legal and political,
that Dworkin has taught us that “the moral reading of the constitution” is not
incompatible with the “forum of principle”, and so on. Remarkably, critical authors will
agree in that there is nothing new under the sun. Their reasons will be different, of
course. They will say that law has always been a cover-up for politics, that the idea that
law can artificially create spaces of impartiality where reason rather than power can be
decisive is and has always been false. Since this has always been a lie, nothing of
significance is happening today. Legal theory has the resources to understand the
importance of the developments that have been mapped out in this article: it should
understand that law is a social practice, the features of which are not necessities
theoretically guaranteed but contingent on the internal aspect of participants to it; that
such practices are intelligible in the light of their goals; that there must be some
difference between law and politics. None of these aspects, of course, is beyond
controversy; but they, or the very controversy about them, should direct our view to the
momentous changes we are witnessing. It is high time we do that.