Some tentative thoughts …
The United States has seen increasing tension between politics and the law. President Obama, faced with an obstructionist Congress, adopted the tactic of signing executive orders, which were then subjected to litigation. Now President Trump, despite the fact that he has a Republican majority in both houses of Congress, has already signed many controversial executive orders, and these too are being litigated. The press has also been under attack, with allegations of “fake news” and a splintering mass media market. Trump’s opponents and critics are looking to the federal courts to rein in executive power, seeing the legal system as the last hope for preserving liberal values of inclusiveness and multiculturalism, or for preserving democracy itself. Trump’s actions are seen as a very dangerous power grab. He has spoken of “so-called” judges as well as “fake media” (meaning The Washington Post, New York Times, CNN, etc.). Similar tensions between politics and law are evident in western Europe as neo-nationalism rises. One question to ask is, how much trust should we place in the global legal system to resist anti-globalist, neo-nationalistic movements? Or, how much faith can we place in the law to protect democracy?
One problem is that we may think we can use law to make society “better.” In other words, we try to use law to advance a political or moral agenda. But law is its own autopoietic system and, as such, cannot be controlled from the outside. It can only be irritated from the outside.
To what extent can the law be used to advance issues like human rights? Certainly, there have been successes, such as the NAACP’s victory in Brown v. Board of Education, but there are always unforeseen consequences. These unforeseen consequences might the interesting thing to analyze from a social systems theory perspective.
The law in itself is not a force for good or evil. It merely stabilizes normative expectations, and society relies on this function. Without this function, a system like politics or the economy could just destroy everything.