This post refers back to the last post, and particularly the post before that which is inaugurated this sequence of posts on law over legislation. The last paragraph of that first post refers to Jürgen Habermas and Michel Foucault, referring to the need to detail further what is briefly in that paragraph.
The issue is whether we can talk about law as something distinct from, and superior to, legislation. That idea has precedents in distinctions made between customary law and statute law, or between the recognised laws of a community and the commands of whoever has political power. An awareness of such distinctions, and the deep tension associated with such distinctions, goes back at least to the tragedies of Golden Age Athens. As I am discussing those Attic tragedies in a series of 9 weekly posts, which refer to my teaching, I will not go into that here. I will…
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