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REPLACING AUTHORITY TO AVOID CONFLICTS OF INTEREST

Sometimes, an institution desires one result rather than another for purely self-interested reasons. In such cases, it makes sense to seek another institu- tion with a more objective standpoint. Avoiding conflicts of interest (e.g., by ensuring that an institution is not effectively a judge in its own case) is as important for institutions as it is for individuals.

The need to avoid conflicts of interest can force exceptions to the separa- tion of powers. Sometimes, the executive itself needs to be policed, as in the case of the investigations into President Nixon's actions during the Watergate scandal (Vile, 1998, pp. 388-390). In another example, the legislative can deploy its lawmaking powers to redraw voting boundaries - entrenching the political power of the current majority through gerryman- der. Himself no friend of executive prerogatives, Locke acknowledged that the direct conflict of interest in this case made the monarch better placed to render objective judgements on voting districts (Locke, 1690/1947, pp. 157-158).

In these examples, direct conflicts of interest require exceptions to the separation of powers. In many cases, however, avoiding conflicts of interest impels the separation of powers - especially the independence of the judiciary. Some commentators distinguish between the judiciary and the executive on the basis of this independence. That is, far from beginning with a notion of what it is to be a judge and then crafting a separation of powers, the defining characteristic of judicial power lies in its institutional independence, its impartiality and its distance from the present govern- ment's political designs (Brown, 1992, p. 74). In the words of Fuller (1955, p. 916), 'the social institution of adjudication loses its whole reason for being if we have no restriction against the bribing of judges'. As Brown (1992, p. 75) argues,

Judicial independence and the separation of powers … form the cornerstone of the only power that the judiciary can really pretend to have - a theoretical ability to make objective, impartial, 'rational' decisions, free from the temporal and sectoral issues that dominate the lives of parliamentarians and public servants.

An especially dangerous breach of independence looms when the judiciary is allied with the prosecution. Here, the dissolution of separation between judge and administration creates a star chamber, where judge and prosecu- tor combine in the same person - a circumstance by no means relegated to ancient history (Brown, 1992, pp. 62-65).

In these cases, the lynchpin question is not whether a type of activity is more or less judicial in nature, but rather whether the types of tasks required of the institutional agent are compatible - whether that agent is simultaneously called upon to offer objective and apolitical judgements while being a part of, or answerable to, the present administration (Brown, 1992, pp. 75-76).

SPLITTING AUTHORITY: VETO, ASSENT AND THE 'COORDINATION THESIS'

Many theorists justify the separation of powers through the 'coordination thesis' (as Magill (2000, p. 1185) terms it) which observes that certain abuses of power require plans involving executive, judicial and legislative elements. In these cases, the separation of powers stymies injustice because the three separate institutions would have to independently conspire (i.e., coordinate) in order to injure an individual. But, as Magill stresses, it is perplexing just how the coordination thesis is supposed to work. In fact, the coordination thesis can be challenged in two distinct ways. The first challenge questions whether the separated institutions actually possess the discretionary capability to thwart each other's self-interested designs. The second challenge questions whether such checking, even if it were possible, would actually occur.

Beginning with the first challenge, the coordination thesis assumes that each institution wields adequate discretionary scope to 'second guess' the operation of other powers, and so check their abuses of power. In response, however, Magill urges, 'it is not the job of those exercising the executive or the judicial power to assess independently the wisdom of the congressional choice reflected in the statute' (2000, p. 1188).

In reality, state institutions routinely check each other's designs. Perhaps the single most powerful way the government can injure a citizen is by arbi- trary arrest and prosecution. The separation of powers between executive and judicial bodies curtails such persecution. An individual judge cannot himself physically arrest a citizen and gather evidence against her - nor can he create a law targeting that citizen. Equally, members of the executive can arrest the citizen, but cannot judge and punish her. State power can be wielded to injure particular persons only when the two bodies conspire in their persecution, for then the police can make a fabricated arrest, sure in the knowledge that the judge will sentence their victim. In this respect, the everyday activity of judges and juries constitutes the routine independent testing of the claims made by the executive agents of the police and prosecution.

Arbitrary arrest and prosecution becomes most dangerous when it is politically motivated; for example, when those in power subvert the demo- cratic process through the arrest of opposition figures. For this strategy to succeed, the separation of powers between the legislative and the other two bodies requires coordination. If the reigning faction in the legislature wants to imprison members of the opposition, then they must conspire with both the executive and the judiciary to do so. Of course, the faction could accomplish the same feat by passing legislation directly targeting the oppo- sition. However, even if such laws are within the legislature's constitutional powers, this method of persecution is far more visible than imprisoning opposition figures on trumped up charges. Ultimately, without conspiracy across the three institutions, the ordinary business of police and judicial activities prevents the three bodies succeeding in political persecution.

Institutions also stymie injustice through more exceptional measures. Magill is correct that routine second guessing of legislation by the executive or judiciary does not occur. Even so, there are official avenues through which checks can be implemented in exceptional cases, such as an executive vetoing unjust legislation. And unofficial strategies abound. It is not hard to imagine local police being lax in officiating central government laws that discriminate against the nearby population, or judges deploying all the powers of interpretation at their disposal to minimize the injury exacted by an unjust law. Similarly, the army might refuse to perform acts it considers illegitimate. In the crisis that gripped Egypt in early 2011, the Egyptian army rejected orders from the Mubarak regime to fire on peaceful protes- tors. So too, the possibilities for whistle-blowing increase when multiple institutions must take part in controversial actions they have no stake in performing. In such cases, institutional actors struggle to keep their machi- nations 'in house'. In sum, even where each body avoids routinely second guessing the other's acts, institutional role holders can still thwart the self- interested or ideological designs of others.

But will they do so? Here lies the second challenge to the coordination thesis. Even if separate institutions have the discretionary power to check the abuse of power by other institutions (through routine, exceptional or unauthorized methods), do we have any reason to believe they would do so? Indeed, isn't granting another agent discretionary or veto powers merely opening up a new opportunity for self-interested agents to abuse their powers? In the Federalist Papers, Hamilton (1778/2008, p. 109) showed a clear understanding of the risks of allowing veto power to trump a majority legislature decision, and the way this policy might: 'substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority'.

In answer to this second challenge, I adduce several reasons why a check by one institution on another might improve, rather than diminish, institu- tional integrity: the exceptional nature of the veto; three theorems ('one good apple'; non-aligned interests; and aligned legitimate interests); and the limited power of the veto. These five reasons are discussed below.

The Exceptional Nature of the Veto

The vetoing institution might be more impartial on a matter if its discre- tionary power attracts attention. For example, in the context of the Federalist Papers' arguments on the US Constitution, the exceptional nat- ure of the proposed Presidential veto on legislation allayed concerns over its abuse. Aware that the King of England held such a power and refrained from wielding it (in the eighteenth century, at least), Hamilton emphasized that the US President's recourse to the veto would be exceptional at best (1778/2008, p. 361). By reason of this public, exceptional and hence controversial nature of the veto, the executive would struggle to conceal its true motives, as compared with the legislature's routine crafting and ratifying of policies or bills.

The 'One Good Apple' Theorem

Multiplying the institutions involved in decision-making increases the chance that at least one of the institutions will act in good faith. If so, that institution will resist the unjust impositions attempted by other bodies. The separation of powers is built around a clear-eyed awareness that people in power can be corrupt or at least corruptible - rather than on the dogma that corruption is inevitable for every single member of every single institution.

One potential 'good apple' is the citizen population itself. With some caveats, the citizenry en masse is usually the group standing to gain most from a government body's institutional integrity. As we will see below with respect to Machiavelli and Montesquieu, granting the general public a partial authority in a variety of domains exploits the broad alignment of their interests with the public interest (as the name implies).

The Non-Aligned Interests Theorem

'It is far less probable', Hamilton (1778/2008, p. 361) observed, 'that culp- able views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them'. I will call this the non-aligned interests theorem. This theorem states that self-interested agendas are unlikely to be shared across a range of different actors housed at different institutions. Hence, if a multitude of actors possess discretion over execut- ing a policy (e.g., an executive veto or bicameral consent to a bill), their conflicting interests will clash, and neither will succeed in subverting the public interest for their own gain.

To say that two institutions, A and B, do not hold the same self- interested objective does not mean one of them acts impartially. To the con- trary, both A and B might wish to enrich one group and persecute another. However, so long as each body has different ideas about who it wishes to target, each may hamper the other in its designs. Judges and police, for example, may have little reason to faithfully implement laws privileging the faction in control of the legislature. They may neuter such laws not for moral reasons (as per the 'good apple' theorem), but simply because they do not share the faction's self-interested designs furthered by those laws. As a result, A and B each stymie the self-interested designs of the other, though neither of them does so out of a concern for the public good. Ideally, the prospect of such resistance nips abuses in the bud: 'When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare appre- hension of opposition, from doing what they would with eagerness rush into, if no such external impediments were to be feared' (Hamilton et al., 1778/2008, p. 363).

The non-aligned interests theorem explains how two self-interested institutions can impede each other's self-serving activities. But does this leave both institutions free to positively perform their justified role? Perhaps not - for each institution can selfishly block even the justified and necessary actions of the other body. As Hamilton (1778/2008, p. 109) acknowledged, a self-interested 'negative' permits the measures of govern- ment to be 'injuriously suspended, or fatally defeated'. Does the creation of the veto therefore merely swap one evil (self-interested policy-making) for another (self-interested obstruction of legitimate policy)?

We will see in a moment how self-interested agents might prefer to per- form their role appropriately, rather than not perform it at all. But political theorists have pondered a different response to the problem of self- interested obstruction - namely, a bad, corrupted or abuse-facilitating law might prove worse than no law at all (Hamilton et al., 1778/2008, p. 361; Vile, 1998, p. 116). If so, then the benefits of preventing bad new laws will dwarf the costs of obstructing good ones. The classical liberal suspicion of coercive power supports this view. Increasing the hurdles to the imposition of new legislation ensures that the only laws enacted are ones acceptable to a wide array of institutional perspectives. All political power over a citizen (Amy) not used in a legitimate way for legitimate purposes violates Amy's liberty by deploying coercive power over her in a way, and to a purpose, to which she has not consented. Madison welds the separation of powers to liberal consent thus: 'The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves' (Brown, 1992, p. 68). On this footing, unjust law (coercively imposing illegi- timate duties) menaces civilian freedom more than the biased obstruction of a worthwhile new law (coercively imposing no new duties). From the standpoint of classical liberalism, the constitutional structure must protect the integrity of the legislature when it acts - the integrity of the legislature when it is gridlocked does not herald the same threat to human freedom.3

The Aligned Legitimate Interests Theorem

Even when institutional agents are purely self-interested, each agent will have at least has some interest in doing the job she is supposed to do. By effectively performing her role, she increases the legitimacy (and hence on-going power) of the institution, and cements her own authority within the institution. Also, as a member herself of the general citizenry, the insti- tutional agent benefits from the existence of social peace and liberty created by a functioning legislature, executive and judiciary. As such, if all the self- interested, biased ways of performing her role are vetoed by checking powers (in line with the non-aligned interests theorem), then the agent is left only with her remaining non-partisan interest, which is to enhance her status and the status of her institution by performing her role well. This is, I think, what Montesquieu (1748/1989, p. 164) hinted at when he says of the two bicameral houses and the executive that, 'the form of these three powers should be rest or inaction. But as they are constrained to move by the necessary motion of things, they will be forced to move in concert'. In other words, the vetoing powers of each institution create a natural state of rest - unless they all acquiesce, inaction results. But complete inaction benefits neither the institution nor its members. From their perspective it is better to have impartial legislation than no legislation. If one cannot do one's job corruptly, the task may as well be done effectively than not at all. This positive impetus to act drives Montesquieu's 'necessary motion'.

We can observe these ideas at work in Locke's explanation of why an executive who is also legislator poses particular threats to integrity. One part of Locke's account of why the legislature can be trusted to make appropriate laws is that all members of the legislature will eventually be subject to the laws they make. This gives them a motivation to make fair laws. But if the legislators also have control over the enforcement of the laws (because they control the executive power), then this motivation is dissolved. The legislature can make laws without a care for what it might be like to have themselves or their nearest and dearest in breach of the law (Locke, 1690/1947, pp. 143; Zuckert, 2012, p. 361). A lack of integrity in one institution (executive enforcement of the law) thereby facilitates a lack of integrity in another (legislative creation of the law). Although there are always possibilities for abuse in the operation of each power on its own, some combinations of powers in the same person allow new types of corruption and abuse. If one person's capacity for corruption is narrowed to one dimension of decision-making, this may make her pursuit of narrow self-interest more difficult than when she can manipulate several dimen- sions of the political process at once.

The Limited Power of the Veto

A classic way to use one institution to check another is to give it a power of veto - sometimes without also giving it the power to initiate action, pol- icy or legislation. This more limited power (negative rather than positive) can be a benefit in terms of integrity.4 Arguably, the authority to use a self- interested veto is not as liable to abuse as the authority to employ a self- interested capacity for creation. One will always possess a self-interested reason to create a particular new law, but one can only occasionally find a self-interested reason to block a universally applicable law. If that is right, then self-interest rears its head less often with the veto than with initiation and proposal.

Section Summation: Checks and Balances

In the various ways outlined above, integrity and improved decision- making can be increased by splitting authority for an action, law or decision across several institutions. This separation does not make the institutions isolated, in the sense that there is no interaction between them. Instead, the qualified independence of each body is created precisely to make possible desired interactions. For example, to have one institution performing a check (such as a vetoing power) on another, it is necessary to first have that institution substantially separated from the other. Similarly, to keep institu- tions separate from each other, it is often necessary for an institution to have enough control over others to sustain the institution's ability to repel incursions into its areas of jurisdiction. This was the justification for the Presidential veto of legislation in the US system (Hamilton et al., 1778/ 2008, pp. 245-360).

Ultimately, for each such institutional check, the key questions are: What provides Institution A with the effective capacity to check Institution B? What provides Institution A with the effective motivation to check Institution B? And - the master question - what prevents the answers to these first two questions constituting reasons that motivate and empower Institution A to wrongfully exploit its capacity to check Institution B? Three theorems - one good apple, non-aligned interests and the aligned legiti- mate interests - provide potential answers to the master question, but the creation of workable checks and balances remains a challenging task, as the history of various constitutional checks implies (Kirwan, 1995). Indeed, Montesquieu's explanations of systems with workable checks and balances are very much historical ones, rife with contingencies and unintended consequences. They are social ecologies that display a healthy tendency towards equilibrium; such systems are not always easy to create. To the contrary, Montesquieu (1748/1989, p. 63) argued that, despite men's love of liberty and hatred of violence, all forms of moderate government were forever battling to avoid collapse into their default position of despotism.

 
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