Pursuing Justice in a Free Society : Part I The Power Principle
by Randy E. Barnett
Number 82 - Oct 1996
[Editor's Note: Because of its length, the second part of this article will
appear in the next issue. The following excerpts were taken from the author's
"Pursuing Justice in a Free Society: Part I, Power vs. Liberty," 4
Criminal Justice Ethics, Summer/Fall 1985, pp. 50-72. Footnotes have been deleted,
although they appeared copiously in the original. The author is currently the
Austin B. Fletcher Professor, School of Law, Boston University. Reprinted by
permission of the author and The Institute of Criminal Justice Ethics, 989 Tenth
Avenue, New York, NY 10019.]
The Power Principle specifies that there must be:
(a) one agency per unit of geography (a "monopoly")
(b) that is charged with authorizing the use of force ("power")
and that
(c) the monopoly itself must be preserved by force ("coercively").
Hence what I call the Power Principle involves a belief in the need for a "coercive
monopoly of power."
The Justifications of Power
The Power Principle may rest on any number of different grounds. In fact, most
differences among competing political philosophies concern only disputes about
the way in which the belief in the need for a coercive monopoly of power should
be justified. However numerous these justifications may be, they seem to take
two general forms: negative and positive.
1. The Negative Justifications of Power
Power for negative purposes can be identified with the Right. This approach
specifies that a coercive monopoly of power is needed to preserve "civilization"
and prevent social chaos; that without a coercive monopoly of power, people will
give in to their animalistic side and engage in a social "war of all against
all." Thus, it is argued that, to avoid such social degeneration, a central
authority must outlaw certain kinds of conduct: The forcible interference with
person and possessions should be prohibited, to be sure, but also included should
be sexual conduct (for example, prostitution, pornography, homosexual conduct,
and extramarital sexual relations), conduct that encourages "anti-social"
beliefs (for example, religious "cults," unacceptable books and music,
manners of dress, and public assembly), and behavior that is "destructive
of values" (such as drug and alcohol consumption, gambling, pool rooms,
video arcades, and rock and roll).
The image that best describes the world the Right sees as ultimately resulting
from the absence of a coercive monopoly of power is one in which people are fornicating
in public places with heroin needles hanging from their arms. To prevent this
there must be a boss: a President, a Congress, a Supreme Court, or a Moral Majority.
2. The Positive Justifications of Power
The power of the Left is to ensure some positive concept of justice. According
to this view, resources must be distributed among individuals in society according
to some formula or, to use Nozick's term, a "pattern." Resources must
be held, for example, according to some criterion of need, desert, or desires,
or all holdings must be "equal" or "efficient"that is, distributed
to their highest valued use. It is argued that without a coercive monopoly of
power, actual distributions of resources will not be in accordance with the mandated
pattern or principle.
Thus, in addition to prohibiting the forcible interference by some with the
person and possessions of others, we must "regulate" economic transfers
between individuals (e.g., by labor regulations, antitrust regulations, price
or rent controls, and licensing schemes in various occupations), other social
interactions (e.g., by quotas and affirmative action), consumptive activity (e.g.,
by food and drug regulation and the regulation of automobile design), and above
all we must redistribute income (e.g., by tax and "welfare" laws).
The image that best describes the world that the Left sees as resulting from
the absence of a coercive monopoly of power is one in which unreconstructed Scrooge-like
characters enslave or exploit helpless Cratchets and Tiny Tims at below subsistence
wages in small, cold (or hot), dark rooms. To prevent this from happening, there
must be a boss: a President, a Congress, a Supreme Court, or The People.
I have deliberately drawn each of these views as broadly as possible, so as
to include most people somewhere. While ideologues exist on the Left and the
Right, in the real world most people are "in the middle" in that they
hold some mixture of these two general views. None of this is to say that all
of the policies described above are unjustified or wrong or that these categories
are inviolable. (Notice that the positive concern for efficient allocation of
wealth is now associated with some on the Right. And recently something amounting
to a new wave of puritanism on the Left can be observed emanating from the feminist
movement.) Rather, the point is (a) that the belief in the correctness of these
policies usually results from subscribing to one of these world views or some
mixture of each; (b) that both positions view the natural result of individual
choice to be bad; and (c) that both views arrive at essentially the same means,
a coercive monopoly of power, to pursue their fundamentally different ends.
Problems with the Power Principle
So what? What is wrong with implementing a coercive monopoly of power to solve
the myriad problems of society? Some important answers to this question lie beyond
the scope of this article or the expertise of its author. However, the Power
Principle contains certain inherent defects that, while not unknown, are normally
ignored, probably because a coercive monopoly of power is so widely thought to
be necessary that any difficulties it creates, even those of the most fundamental
and serious nature, must simply be accepted as inevitable problems of social
life. I shall here consider four difficulties: The first three are practical
while the last is a moral one.
1. Practical Problems with the Power Principle
Believers in the Power Principle base their support on some version of the
following factual assumption: Human beings are either essentially corrupt or
corruptible, or they will, if given a chance, try to gain unfair advantage over
each other. The sources of this belief are as varied as the believers. They range
from the biblical notion of "original sin" to a "scientific"
view of individuals as ruthless welfare maximizers. Whatever the source, adherents
to the Power Principle conclude from this assumption that there must be a coercive
monopoly of force to prevent this attribute of human behavior from creating the
various social problems described in the previous section.
The practical problems with the Power Principle arise not because this assumption
about human conduct is necessarily false. In truth, it is a quite plausible account
of one tendency of human behavior. Rather, problems arise because the Power Principle
is incapable of solving the problem for which it was invoked.
Indeed, the Power Principle cannot work because of the very problem it purports
to solve.
An understanding of the practical problems with the Power Principle must begin
with the observation that adherents to the Power Principle always invoke it for
some purposes, but not for all purposes. They invariably claim that only certain
purposes and not others can and should be effectively pursued by means of a coercive
monopoly of force. (Only a committed totalitarian would maintain that such a
monopoly should be used for any purpose whatsoever.) The problem for
adherents to the Power Principle, however, is to show how the monopoly, once
it is created, will be used to achieve only the "appropriate" ends.
Not only has no society that has resorted to the Power Principle ever been successful
at so limiting its use, virtually all have ended in tyranny; there are several
good reasons why no society could ever be successful in the long run.
Who gets the power? Let us assume that it is true that human beings
are either essentially corrupt or corruptible or that they will, if given a chance,
try to gain unfair advantage over each other. Advocates of the Power Principle
are immediately faced with a difficulty: Who is to get the power? Whoever it
is must be a human being, so whoever is put in charge will be (by assumption)
"essentially corrupt or corruptible or will try to take unfair advantage
over others."
It would seem, therefore, that the proposed solution to the assumed problem
is nothing short of folly. For the human beings who are put in control of the
monopoly would have a far greater capability for corruption and advantage-taking
than they would have as ordinary citizens. Whatever corruption or advantage-taking
these people engage in is likely to be far greater than they would be able to
engage in if deprived of their power. And by granting some a capability for greater
gains from corruption and advantage-taking, the incentives for such conduct are
greatly increased, thereby increasing both its frequency and its severity. In
other words, given their capacity for corruption and advantage-taking, bad human
beings are more dangerous with power than without it. The Power Principle, then,
appears to immediately aggravate the very problem it was devised to solve.
Even if we soften the starting assumption so that it now specifies that only
some human beings are essentially or potentially corrupt and then posit that
only the good human beings will be put in charge of the monopoly, we still need
a practical way of distinguishing the good people from the bad people. We have
to specify those people who are to decide who gets the power and how to obtain
and disseminate the information needed for them to distinguish the good from
the bad. Some might argue that electing rulers for fixed terms is the best way
to make such decisions. Even assuming that this method produces the correct initial
allocation of power, however, it runs afoul of several further problems.
How do you maintain power in the hands of the good? Let us assume
that the problem of who gets the power is somehow solved; that a way is discerned
to select only (or mostly) the good people to hold power. Perhaps an election
is held and the electorate makes the correct choice among potential rulers. A
second practical problem now arises: How do we keep the evil people from eventually
wresting control of the monopoly from the good? Remember we started with the
assumption that all or perhaps many people are corrupt or will try to take unfair
advantage over others, for which reason we need a coercive monopoly of force.
However, the solution provided by the Power Principle solution creates an enormously
attractive target of opportunity for those people in society who wish to take
advantage of others, which might be called the "capture effect."
Maybe some of the bad people excluded from power will be content to try to
privately exploit their fellow human beings. Inevitably, however, at least some
of the more entrepreneurial of these people will recognize the enormous profit
potential that would be derived from controlling the monopoly and publicly exploiting
others. All that would be required to reap these profits is a strategy for capturing
positions of power from those who currently possess it. The number of such strategies
would be great. One obvious strategy that has been employed often especially
in societies where rulers rule for indefinite periods, is simply to take over
the monopoly by force. This strategy, however, entails considerable risks for
those who would employ it. A much safer approach would be to assume the posture
of a good person and get into power in a legitimate way (assuming that some such
option exists). Or, alternatively, good people in power could be corrupted through
bribery.
This last tactic reveals yet another very serious flaw in the power approach:
the "corruption effect." Power itself has a corrupting influence. People
who start out as good can become advantage-takers simply because, as monopoly
holders, the temptations to do so are great and the risks of being caught are
small. So, even assuming power has been allocated to good people, these people
may not remain good for long.
The inherent instability of the Power Paradigm can be analogized to that of
the policy of mutual assured destruction. Once a sufficiently serious mistake
is made, the game is up. With nuclear weapons we risk the destruction of the
planet. With the Power Paradigm we risk the institutionalized and legitimized
misuse of power. Given the perquisites of power, bad rulers can be locked in
place requiring nothing short of a revolution to remove them. What is the likelihood
of forever making the correct choices in this winner-take-all game of picking
rulers?
Another, most serious problem of a system of elections is that it must give
rulers a very short-run perspective. Rulers, especially those who rule for fixed
terms, have no way of capturing the long-run benefits of their policies. Good
rulers will not survive to see the long run unless their policies appear to be
working in the short run. Bad rulers must plunder while the plundering is good.
Finally, the balloting solution to the problem of who gets the power is itself
undercut by our initial assumption that human beings are essentially corrupt
or corruptible. For only human beings vote. A unanimous vote is a practical impossibility
but, if anything less than unanimity is required to elect a ruler, the majority
can (sooner or later) be expected to vote out of corrupt or advantage-taking
motives. Saying that a constitution will solve this problem the problem of "the
tyranny of the majority"is also unrealistic. Judges must interpret and enforce
a constitution, and judges are also human beings, with the result that they would
form a "tyranny of the judiciary."
The legitimacy of the power holders. Having failed to solve the problem
of corruption and advantage-taking, the Power Principle exacerbates the problem
still further by what might be called its "halo effect." A coercive
monopoly of power would not be (peacefully) established unless most people in
society were convinced that the creation of the monopoly of power is the right
or expedient thing to do. Therefore, those who wield this power will possess
not only power but something that may be more helpful to their pursuit of advantage-taking
than power alone could ever be: They will have legitimacy. That is, their use
of power will be perceived by most to be at least presumptively justified.
This "halo effect" obviously makes the assumption of power by the
wrong people even more dangerous than just giving them a monopoly would be, because,
for a variety of reasons, many good people will hesitate to oppose the "duly
constituted authority." Perhaps they do not know the facts of the situation
and therefore presume that those in power are correct, or perhaps they can see
some personal advantage to a particular use of power against another, or perhaps
they fear the consequences of "civil disobedience." Whatever their
motives may be, this natural conservatism greatly increases the potential for
corruption and advantage-taking .
It can be seen from this brief discussion that the Power Principle cannot solve
the question of who gets the power without setting up an infinite regress (of
sorts) of enhanced incentives for corruption and advantage-taking. The reason
for this is that the weakness of human beings is exacerbated by a monopoly of
power, but there is no other species that can be put in control of the monopoly.
Therefore, one must forever propose "higher" authorities to ensure
that subordinate authorities remain honest. One could posit that God (or a group
of gods) would divinely rule the human rulers. I shall not here consider the
practical problems with this approach.
The source of the unending problem with the Power Paradigm is its hierarchical
and vertical approach to the problem of corruption and advantage-taking. No matter
how high you build your hierarchy of power, there is simply no one to put on
top of the hierarchy who will not himself be potentially corrupt. The answer
to human corruption must, therefore, lie elsewhere. The next version of the Power
Paradigm, though flawed, suggests that a more promising avenue is a non-hierarchical
or horizontal approach to power.
Federalism and the Separation of Powers as a solution to these problems with
the Power Principle. One attempt to deal with the problems created by the
Power Principle is to create an oligopoly or a "shared" monopoly of
power. This scheme preserves a monopoly of power but purports to divide this
power among a number of groups, each having limited jurisdiction over the others.
So, for example, there might be a division of powers between groups of people
known as "state officials" and others called "federal officials."
Or there might be a separation of powers between some people called "legislators"
and others called "judges" or "executives."
The object of such schemes is to create so-called "checks and balances."
This is a good idea. The problem with the Power Principle is not the recognition
of the legitimate use of force or power itself. Those who reject the Power Principle
are not necessarily pacifists, that is, they do not reject any right to use force
under any circumstances. Rather, the root of the problem with the Power Principle
is its adherence to a monopoly allocation of power with all the attendant
problems discussed above. It is this that the Federalist and the Separation of
Powers strategies are trying to address.
A formal separation of powers is unquestionably an improvement over other versions
of the Power Principle, witness the experience of the United States, but eventually
similar results are reached (though these results may not develop as quickly
or be quite as severe.) This is because this scheme, for all its advantages,
still preserves the unearned legitimacy of power and coercive barriers to entry.
However many power centers are created, they remain in control indefinitely,
short of a revolution.
Even in the beginning, since each has the other by the throat, no one is willing
to squeeze too hard. Eventually entrepreneurs of powermaster politicians, judges,
executives, or outsiders called "special interest groups"figure out
a way to teach those who share the monopoly that it is in the interest of each
to cooperate with the others in the use of force against those who are outside
the monopoly. This process may take some time, but gradually what is originally
conceived of as "checks and balances" eventually becomes a scheme more
aptly described as "you don't step on my toes and I won't step on yours"
or "you scratch my back, I'll scratch yours." And, when this result
is reached, the Power Principle continues to provide these rulers with the legitimacy
that makes corruption and advantage-taking all the easier.
The separation of powers strategy is a good idea, but one that is not taken
quite far enough. What is needed is the recognition of genuinely separate powers
within the same geographical area, a horizontal division of power with as little
unearned legitimacy attached to each agency of force as possible. Such a system
would provide real checks and balances. How such a system might function will
be discussed in Part Two of this article.
2. The Moral Problem with the Power Principle
The moral problem with a coercive monopoly of power can be briefly described:
The Power Principle posits a fundamental inequality of human beings.
Those in power are thought to have qualitatively different rights than those
who are not, that is, rulers have rights that subjects may never possess. By
virtue of their monopoly status, at the very least they allegedly have the right
to put competitors out of business, a right that is denied to other so-called
"private" citizens. And most power schemes accord them the right to
collect "taxes" to fund their activity, that is, to seize the property
of others by force without the others' prior consent or wrongdoing, another right
that is denied all people. Many grant them the right to obtain "conscript"
or semi-slave labor for certain purposes such as war-making or jury selection.
Some schemes even accord those in power such arcane rights as the right to
specify that people must accept monopoly script in return for their labor or
property, known as "legal tender" laws, and the sole right to run certain
businesses, such as the delivery of writings and packages, the driving of buses,
or the picking up of garbage. Other schemes accord them the right to grant monopoly
"franchises" to sell grain or to provide television or telephone services.
Some give them the right to restrict access to certain occupations. Anyone who
becomes a taxi driver, lawyer, or hairdresser without the approval of those who
hold the monopoly may be fined or imprisoned. The potential that these powers
have to induce the corruption and advantage-taking described above is here quite
obvious.
In the next section I will try to give content to the claim that all persons
have rights and also trace what the contours of these rights might be. But even
if such a proposition can never be affirmatively demonstrated (although I am
not suggesting that this is in fact the case), those who advocate a coercive
monopoly of power to solve the problem of corruption and advantage-taking bear
a heavy burden of proof. They must demonstrate that some people rightly hold
power over others. The pursuit of this justification has spanned centuries, indeed,
millennia of political theory. Thus far this claim remains unjustified. No moral
theory attempting to justify a legal hierarchy among healthy adult human beings,
such theories as "divine right," "social contract," or "natural
law" has yet succeeded in doing so.
3. Conclusion
Adherents to the Power Principle have devised a rather peculiar way of dealing
with the problem of human corruption and advantage-taking. They advocate giving
some human beings a monopoly on the use of force, thereby elevating some human
beings to a higher moral and legal status than others.
But no one can be sure to whom to give this monopoly. And, assuming that the
initial allocation is made correctly, the alleged solution creates an irresistible
target of opportunity for anyone in society who wishes to exploit another, and
who is clever or ruthless enough to devise a way of capturing the monopoly that
has been created. The monopoly also poses grave temptations to the good to become
less than good, in short, the alleged solution to the problem of corruption is
itself a most potent corrupting influence. Finally, in this scheme those who
possess the monopoly, as a practical matter, are presumed to employ it properly,
thus enhancing the ability of some to use the monopoly to take advantage of others.
While the shared monopoly concept gradually succumbs to the same problems as
the pure monopoly concept, it succeeds both in highlighting the genuine problem
with the Power Principle, the creation of the coercive monopoly of force, and
the genuine solution to the problem of corruption and advantage-taking: a non-monopolistic
system of force which could provide genuine checks and balances, but of a far
more sophisticated variety than can be provided by any constitution. And the
moral problem of inequality inherent in the Power Principle points the way to
another facet of a genuine solution: an effort to craft a scheme of rights and
obligations that all people can equally claim.
One must be careful to avoid attributing historical inevitability to the grave
problems posed by the Power Principle. The argument presented here is that the
Power Paradigm is inherently unstable and pernicious, as compared with a non-monopolistic
legal order that will be described in Part Two of this article.
