Wednesday, May 02, 2007

The rule of law and the strong executive.

Harvey Mansfield makes a simple bizarre argument here against the rule of law and in favour of a strong executive. (He means, of course, in the US system.) I'm going to fisk it, as I think it's the best way for me to figure out exactly what I find so disturbing about it. I warn ye, gentle reader, that it's long, so you may be in for a bit of a read. Into the breach:
Complaints against the "imperial presidency" are back in vogue. With a view to President Bush, the late Arthur M. Schlesinger Jr. expanded and reissued the book of the same name he wrote against Richard Nixon, and Bush critics have taken up the phrase in a chorus. In response John Yoo and Richard Posner (and others) have defended the war powers of the president.
Not off to a great start. Dick Posner is the guy who tried to argue moral theory was worthless, but didn't talk about any actual moral theories. (Right here.) Skipping a bit...
Its flexibility keeps it in its original form and spirit a "living constitution," ready for change, and open to new necessities and opportunities. The "living constitution" conceived by the Progressives actually makes it a prisoner of ongoing events and perceived trends.
WTF? The drive-by slam against one view of a "living constitution" is really strange; for it to follow the claim that the US Constitution is already "living" is even weirder. The Constitution hasn't been significantly changed in almost forty years (no, the 27th Amendment doesn't count as "significant"). So, in what sense, exactly, is it "living"? Mansfield never explains.
To explain the constitutional debate between the strong executive and the rule of law I will concentrate on its sources in political philosophy and, for greater clarity, ignore the constitutional law emerging from it.

The case for a strong executive should begin from a study, on this occasion a quick survey, of the American republic. The American republic was the first to have a strong executive that was intended to be republican as well as strong, and the success, or long life, of America's Constitution qualifies it as a possible model for other countries. Modern political science beginning from Machiavelli abandoned the best regime featured by classical political science because the best regime was utopian or imaginary. Modern political scientists wanted a practical solution, and by the time of Locke, followed by Montesquieu, they learned to substitute a model regime for the best regime; and this was the government of England. The model regime would not be applicable everywhere, no doubt, because it was not intended to be a lowest common denominator. But it would show what could be done in the best circumstances.
This is just wrong. This reading of world politics in the modern age basically brushes over the staggering racism that underlies the term "model regime". That a particular group of people were, somehow, not able to live in the "model" society was used in the colonial era to justify frankly brutal oppression. Furthermore, Mansfield's reading of classical politics is just false: Plato's Laws, for example, is widely held to be a classic of political philosophy, and yet is stridently non-utopian. (Unlike Republic -- which, FWIW, may only be an allegory -- Laws discusses procedures and policies specific to running a Greek city-state like Athens.)
The American Founders had the ambition to make America the model regime, taking over from England. This is why they showed surprising respect for English government, the regime they had just rebelled against. America would not only make a republic for itself, but teach the world how to make a successful republic and thus improve republicanism and save the reputation of republics.
And how's that working out for ya?
For previous republics had suffered disastrous failure, alternating between anarchy and tyranny, seeming to force the conclusion that orderly government could come only from monarchy, the enemy of republics. Previous republics had put their faith in the rule of law as the best way to foil one-man rule. The rule of law would keep power in the hands of many, or at least a few, which was safer than in the hands of one. As the way to ensure the rule of law, Locke and Montesquieu fixed on the separation of powers. They were too realistic to put their faith in any sort of higher law; the rule of law would be maintained by a legislative process of institutions that both cooperated and competed.
Locke didn't put his faith in a higher law? Is he kidding? Or does he just not know anything about Locke? The whole theory of property -- namely, that we own what we mix our labour with -- hinges on the idea that we own ourselves, which Locke purchases by claiming we are something God mixed his labour with. God then gave us to ourselves, which granted us self-ownership, which allows us to autonomously own other things. And this is his example of someone who doesn't believe in a higher law? To make matters worse, it's not at all clear from Locke's writings that he cared about the rule of law or keeping away tyranny. That's a Popperian conceit (see The Open Society and Its Enemies, particularly volume 1). Locke's aim was to ensure that government is constituted such that the governed have consented to their government (which gets him into a mess vis-a-vis "tacit consent", but never mind).
Now the rule of law has two defects, each of which suggests the need for one-man rule. The first is that law is always imperfect by being universal, thus an average solution even in the best case, that is inferior to the living intelligence of a wise man on the spot, who can judge particular circumstances. This defect is discussed by Aristotle in the well-known passage in his "Politics" where he considers "whether it is more advantageous to be ruled by the best man or the best laws."
This is stupid. Has he not read Hart? (The Concept of Law, that is.) Laws are imperfect, but vague, and thus perfectible through the application of judicial discretion.
The other defect is that the law does not know how to make itself obeyed. Law assumes obedience, and as such seems oblivious to resistance to the law by the "governed," as if it were enough to require criminals to turn themselves in. No, the law must be "enforced," as we say. There must be police, and the rulers over the police must use energy (Alexander Hamilton's term) in addition to reason. It is a delusion to believe that governments can have energy without ever resorting to the use of force.
True enough, but, again, this is something Hart covers in much better terms than Mansfield. According to Hart, in order for law to be followed, a select group within a society must adopt the "internal perspective" on the primary rules that govern society. (A "primary rule" is basically a "thou shalt" or "thou shalt not". Not his words, but it's a good analogy, I think.) The internal perspective amounts to this group taking the laws to be rules governing everyone's behaviour. There must also be, in addition to this group, secondary rules: rules of recognition (what counts as a law), rules of enforcement (what to do when a law is broken), and rules of (I think) revision (how to change a law). Beyond that, Hart falls back on morality as the enforcement mechanism -- a solution not everyone is happy about, but one I'm content with.

The point is that the issue of obeying the law is one that has been addressed extensively, and the idea that force through police is what we must conclude is absurd.
The best source of energy turns out to be the same as the best source of reason--one man. One man, or, to use Machiavelli's expression, uno solo, will be the greatest source of energy if he regards it as necessary to maintaining his own rule. Such a person will have the greatest incentive to be watchful, and to be both cruel and merciful in correct contrast and proportion. We are talking about Machiavelli's prince, the man whom in apparently unguarded moments he called a tyrant.
Too bad Machiavelli was wrong. There's really no reason to suppose that humans are generally so self-interested (and so narrowly self-interested) that they will have greatest incentive to enforce law only when their own power is at stake.

Since I think that this, ultimately, is where I believe Mansfield goes off the rails, I'm going to be jumping more often from now on. So, skipping ahead again...
Yet the executive subordinated to the rule of law is in danger of being subordinate to the legislature. This was the fault in previous republics. When the separation of powers was invented in 17th-century England, the purpose was to keep the executive subordinate; but the trouble was the weakness of a subordinate executive. He could not do his job, or he could do his job only by overthrowing or cowing the legislature, as Oliver Cromwell had done. John Locke took the task in hand, and made a strong executive in a manner that was adopted by the American Founders.
Oh, lord... a subordinate executive is a problem? Only if we take Mansfield's terms as given, namely that the only way to enforce law and apply law is through a single "strong man". But this just looks like a failure of imagination on Mansfield's part, as well as an empirical failure to comprehend (or even try to) the motivations behind people's political actions.
Locke was a careful writer, so careful that he did not care if he appeared to be a confused writer. In his "Second Treatise of Government" he announces the supremacy of the legislature, which was the slogan of the parliamentary side in the English Civil War, as the principle that should govern a well-made constitution. But as the argument proceeds, Locke gradually "fortifies" (to use James Madison's term) the executive. Locke adds other related powers to the subordinate power of executing the laws: the federative power dealing with foreign affairs, which he presents as conceptually distinct from the power of executing laws but naturally allied; the veto, a legislative function; the power to convoke the legislature and to correct its representation should it become corrupt; and above all, the prerogative, defined as "the power of doing public good without a rule." Without a rule! Even more: "sometimes too against the direct letter of the law." This is the very opposite of law and the rule of law--and "prerogative" was the slogan of the king's party in the same war.
What Mansfield ignores, though -- and this is where his earlier misreading of Locke is crucial -- is that Locke ultimately drops his whole moral and political theory onto God's shoulders. Even if an executive goes against the law, he nonetheless must comply, in Locke's system, with the moral and divine laws. Else, basically, he's fucked. I sincerely doubt that Locke was trying to give the executive carte blanche to do as he pleased.

Skipping some sloppy logic...
The test of good government was what was necessary to all government. Necessity was put to the fore. In the first papers of the Federalist, necessity took the form of calling attention to the present crisis in America, caused by the incompetence of the republic established by the Articles of Confederation. The crisis was both foreign and domestic, and it was a crisis because it was urgent. The face of necessity, the manner in which it first appears and is most impressive, is urgency--in Machiavelli's words, la necessità che non da tempo (the necessity that allows no time). And what must be the character of a government's response to an urgent crisis? Energy. And where do we find energy in the government? In the executive. Actually, the Federalist introduces the need for energy in government considerably before it associates energy with the executive. To soothe republican partisans, the strong executive must be introduced by stages.
See what he's done here? By defining away -- that is, by argumentative fiat -- any possible source of "energy" (by which, I maintain, he means the ultimate ability to enforce and apply the law) than the strong man, Mansfield has pretty much guaranteed his result. It has more than a whiff of principio principii, though.

Here's another assumption working under the surface that I have a problem with: the idea that there has to be some "ultimate" solution to this problem (assuming it's a problem). Even if we can't, in theory, resolve the problem of political stability in any set way, it doesn't follow from that that we have some sort of concrete political problem. We could, but it may turn out that we don't. I think Mansfield is conflating the two: he's identifying a longstanding issue in philosophy of law and political philosophy, and trying to argue that an actual constitution has to contain some solution to the problem. But that's not so; it's an abstract problem which, if it could be solved, should be codified, but the lack of codification doesn't obviously have any necessary impact on the practical political realm.
One should not believe that a strong executive is needed only for quick action in emergencies, though that is the function mentioned first. A strong executive is requisite to oppose majority faction produced by temporary delusions in the people. For the Federalist, a strong executive must exercise his strength especially against the people, not showing them "servile pliancy." Tocqueville shared this view. Today we think that a strong president is one who leads the people, that is, one who takes them where they want to go, like Andrew Jackson. But Tocqueville contemptuously regarded Jackson as weak for having been "the slave of the majority." Again according to the Federalist, the American president will likely have the virtue of responsibility, a new political virtue, now heard so often that it seems to be the only virtue, but first expounded in that work.
This much is true, but how a strong man executive, who imposes his own will, can ever do more than dominate the people (herd them, rather than lead them) is highly obscure, at best. Skipping...
"Responsibility" is not mere responsiveness to the people; it means doing what the people would want done if they were apprised of the circumstances. Responsibility requires "personal firmness" in one's character, and it enables those who love fame--"the ruling passion of the noblest minds"--to undertake "extensive and arduous enterprises."
Oh, god. Now he's invoked an ideal preferences theory. I'm not the only philosopher (or philosopher-in-training) who thinks that there's something deeply wrong with ideal preferences theories, particularly (in my case) the assumption that people, even in ideal circumstances, which just converge on one discrete set of preferences. It just doesn't seem that likely, even when we introduce massive abstractions (such as those operating in Rawls' original position). Skipping again...
This admiration for presidents extends beyond politics into society, in which Americans, as republicans, tolerate, and appreciate, an amazing amount of one-man rule. The CEO (chief executive officer) is found at the summit of every corporation including universities. I suspect that appreciation for private executives in democratic society was taught by the success of the Constitution's invention of a strong executive in republican politics.
This is sheer bullshit. CEOs can be overthrown by boards, and university presidents have fairly limited powers. If the analogy were to hold, then his "strong man" is more like a Prime Minister than a President. Skipping...
The lesson for us should be that circumstances are much more important for free government than we often believe. Civil liberties are for majorities as well as minorities, and no one should be considered to have rights against society whose exercise would bring society to ruin. The usual danger in a republic is tyranny of the majority, because the majority is the only legitimate dominant force. But in time of war the greater danger may be to the majority from a minority, and the government will be a greater friend than enemy to liberty. Vigilant citizens must be able to adjust their view of the source of danger, and change front if necessary. "Civil liberties" belong to all, not only to the less powerful or less esteemed, and the true balance of liberty and security cannot be taken as given without regard to the threat. Nor is it true that free societies should be judged solely by what they do in quiet times; they should also be judged by the efficacy, and the honorableness, of what they do in war in order to return to peace.
This is a series of howlingly bad inferences. The minority is a danger to the majority? How? Particularly considering that, in any democracy, the majority always has the power to force oppressive policies on the minority (checked only by the constitution, de jure, but nothing seems to check the majority, de facto). That "civil liberties" belong to all seems to be a covert way of telling the minority to shut up if they feel they are being unjustly repressed or dominated. And while it's certainly true that free societies should be judged by their actions in war, the idea is, I think, that the judgements of the minority on the persecution of a war are somehow less valid than those of the majority.

Strictly speaking, Mansifled doesn't say any of the above. He doesn't really say anything, which is why the inferences are, technically, bad ones. But there's something going on under the surface which is justifying his claims here, and I strongly suspect that it's a dishonest way of trying to justify oppressive structures -- dishonest because he doesn't come right out and say he's trying to justify oppression. But, really, what else would make sense of the ideas that the minority is a danger to the majority, that civil liberties "apply to all", and that how societies prosecute war is as important as how they act in peace?

I'll skip the rest, as I'm disgusted with what I see here. Is this really the best political scientists can come up with? (I think he's a political scientist, but I can't seem to find what his doctorate is actually in.) If he wants to justify tyrannical and oppressive government, surely he should just do so, rather than dishonestly pretending to be defending some virtues of American democracy.


Dan said...

So after 200-odd years some Americans would like to be ruled by a king again?

ADHR said...

There's always a certain percentage of the population that thinks "kings -- what a good idea!" What's odd is that they're actually gaining prominence in the US, of all places.