Monday, 19 April 2021

The Simplicity of Power

Posted by Thomas Scarborough

One of the more important 'philosophies of ...' is political philosophy, which is the philosophical study of government.
The first and most important subject that this deals with is political order: whether we should choose, say, a republican government, or a constitutional monarchy, a gerontocracy, or an autocracy, and so on.

Next to this, perhaps the one major aspect of political philosophy is the issue of the powers of political agents and institutions: how these powers are granted, how they are circumscribed, what relationships exist between them, and so on. 

Today we have developed a distribution or balance of powers, which is crucial to the maintenance of the political order.  In some cases, this is overt--for instance, in the USA.  In other cases, it may be more subtle--as in the UK.  Whatever the case may be, there will be few countries where there is no balance at all.

Now in our common thinking, the balance of powers refers to the three great powers of state: the legislative, judicial, and executive branches, called the trias politica. Each has separate, independent powers, and each keeps the others in check.

Now when one asks what these powers really are, our thoughts often turn to stereotypes: the houses or parliament or halls of congress, stately courts of law and robed judges, rows of smartly dressed riot police, typically holding cudgels, and many other things which seem characteristic of these powers.

I propose, however, that in the tumult of our daily lives, and in the function of these powers from week to week, it comes down to something far simpler than this--namely, scraps of information which we deal with from day to day: receipts and signatures, sheets of paper, or words exchanged in telephone calls and side rooms.

Assume, by way of example, that a local regulator has refused to entertain a complaint against one of its members.  Say, a local Law Society has received a complaint against a solicitor--an esteemed solicitor--and suppressed it.  This is quite common in fact, throughout the world. We call it regulatory capture.

By way of analysis, an executive function (the regulator) has failed.  The matter is therefore handed to a judicial body (say, the Public Protector) to set the case to rights.  It is, in fact, just one of many ordinary instances of the separation of powers--and with that, of checks and balances.

In the process, the Public Protector produces certain rules--say, numbered from 1 to 10, and explains how these rules apply in this case. All things considered, the Protector then makes a judgement, and states how the situation should be remedied.

Power has checked power--and here we see the system of the separation of powers working at a more basic level.  In order to understand what is really happening here, we may say that it all works at the level of information.

Each step of our example rests on the disclosure of information. A citizen shares information about a problem. The Public Protector's rules represent information, too. The application of these rules demands information, and so, too, does remedial action.

In fact it goes further back than this, to the regulator itself. The Law Society, like the Public Protector, has certain rules, say again numbered from 1 to 10. But rule 11, they say (which does not exist) precludes the citizen's complaint. Or the complaint, they say, changed in an interview (which did not take place).

Again it comes down to information--often enough, simple information, too. And so the information which is required, in order to know that the crucial separation of the powers of state is working, may often be undermined or suppressed in quite ordinary ways.

The significance of this is that if citizens do not know the importance of each small item of information, and if this is multiplied hundreds, even thousands of times across the nation, the abuse of power creeps into the system while citizens mistakenly believe that the separation of powers is about the usual stereotypes.

In fact the separation of powers is about many things which may easily escape one’s attention: the denial of a receipt, the omission of a signature, a few lost pages, or the misrepresentation of a conversation. Such things may conceal a world of trouble, and are often critical to the system as a whole.

Wherever information is concealed or distorted, power may go unchecked—which is to say, people may be able to gain unfair personal and political advantage. Regulators are captured, crimes are swept under the carpet, the poor are exploited, foodstuffs are unsafe—and a thousand, ten thousand ills besides.


docmartincohen said...

It's a leisurely piece, but at the end of it, I'm not really sure what the 'moral' is. Is it that information is a kind of power? But that's an old story… Is it that since information is power, we need to have a free media, and even to ensure there is media diversity? But who would argue against such things - outside the countries that overtly favour state control.

Thomas Scarborough said...

Thank you, Martin. The point is, I think, a little-recognised one. The separation of powers undergirds democracy. But this may often rest on simple things: a signature, a statute, a body-cam, and so on. All these represent information.

Montesquieu characterised the separation of powers, in a sense, as war: 'Power checks power.' But this war takes place at a low level, every day, in ordinary things. If we do not recognise those things, the war is lost.

docmartincohen said...

Yes, it's certainly a different way to look at politics.

Keith said...

In the United States, the nation being both large and comprising fifty very differently composed states, the first level of separation of powers is between the federal (national) government, and the state and local governments — a system called Federalism. The circling of the federal government and the individual state governments happens famously, over matters both small and large.

The second level of constitutional separation entails, as the essay says, the executive, legislative, and judicial branches of government. Though ‘separation’ is not the same as ‘clear demarcation’, and especially not ‘carefree sharing’. The current political buffeting over the size (number of justices) of the Supreme Court, with self-interested gain over ideological sway at the fight's heart, is just such a bramble bush.

By that I mean the tension among these levels over who has which authority and control is unrelenting, with eroding powers in some quarters and accruing powers in others. Up to a point, the branches tend, at least selectively, to covet the others’ powers and authority. The ‘checks’ part of checks and balances doesn’t settle easily. Whether that's a healthy, or deleterious, tension is in the eye of the beholder.

Just one case among many, the practice of presidents to send military forces into long-term combat has grown, even though the Constitution clearly grants Congress the sole power to declare war. Let’s say that flexing presidents haven’t allowed constitutional niceties to get in the way.

My point is that, although the essay talks about the ‘simplicity of power’ in the context of the ‘separation of powers’, in the United States, anyway, none of that is so simple as imagined. The reality is both more nuanced and bigger. Government is a living, morphing organism, with its various parts in constant consequential tautness.

Thomas O. Scarborough said...

Thank you, Keith.

Take a recent case in your country, an example of the struggle of the powers at a low level. The judicial vs. executive powers in the case of George Floyd. While I am not closely familiar with this case, it is fairly basic to the case that it was strewn with incidents which could undermine the powers' abilities to keep each other in check. Audio was suppressed, as well as video, police procedure, and so on.

One could argue that everything came out in the end, if in fact it did. I would suspect that the low level struggle of judicial vs. executive (and legislative) powers is repeated countless times a day in the USA. Here in Africa, where I write, the struggle is everywhere, every day. I take the point that there are high level struggles which matter greatly, yet I sense that 'power checks power' is a far larger struggle at a low level.

The 'tautness' you mention was deliberately built into the US system in the beginning, and there are now questions as to whether this was as wise as it seemed. It was based of course on a distinct view of human nature.

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