Politics as a legal category: a few considerations on the limits of public law adjudication

Abstract

Public law and political science have a lot in common, since for both disciplines politics is a defining phenomenon and an epistemic category of the highest relevance. What separates starkly the two fields of knowledge is the diametrically opposed position which they adopt towards this common point of reference. Whereas political scientists have more of an inclination to recognize and perhaps celebrate -rather than conceal- politics, public lawyers (save perhaps for the various "legal realist" schools), contrariwise, seek to the utmost to drive a wedge between politics and public law proper. Classical constitutionalist theory and practice coagulated around a number of coherent bright-line foundational distinctions. These distinctions rendered the separation between law and politics easier to both conceptualize and maintain in public law adjudication. The twentieth-century departure of modern state practices from the classical paradigm has created a number of tensions, which pose nowadays various problems and raise a number of important dilemmas regarding the limits and legitimacy of public law adjudication.