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Policy • Vol. 24 No. 2 • Winter 2008 ��

The Rise of the Unelected: Democracy and the NewSeparation of Powers by Frank VibertCambridge University Press Cambridge, 2007 $49.95, 210pp ISBN 9780521694148

t is an elementary but frequently forgotten notion that not all

power in free societies ought to be mediated through democratic institutions. Indeed, democratically elected bodies are not well adapted to the exercise of certain types of power. But they are appropriate for making general rules that apply to broad categories of situations—to exercise legislative power, which they ought to be responsible for because, insofar as the content of proposed rules is contested, the contest must be resolved according to the values of those who will be required to obey. Where there is disagreement about those values or their application to the issue at hand, the majority rules—and so it is important that it be a representative majority.

Adjudication of particular disputes between citizens and between citi-zens and the state, on the other hand, is emphatically not a matter for democratic determination. The litigants are free people only to the extent that these disputes are resolved according to law and not according to fiat. The adjudicative function is entrusted to technical experts, namely judges and magistrates, who are qualified for this role by their education and training in the content and methodology of the law. This insight lies at the heart of the constitutional doctrine known as the separation of powers.

Frank Vibert’s The Rise of the Un-elected presents a new twist on the separation of powers idea. Vibert identifies a new sector of govern-ment characterised by its ‘special

responsibility for the handling and dissemination of information, the analysis of evidence and the deploy-ment and use of the most up-to-date empirical knowledge’ (12). Vibert notes that the circumstances sur-rounding the emergence of this new sector of government place a strain upon the conventional accounts of democracy, which justify the representative legisla-tive body on the basis that delegating decision-making powers to elected politicians creates a class of people who have a responsibility to in-form themselves and make decisions on the basis of all of the relevant considerations (13). Many of the matters modern governments have to make decisions on are so complex as to exceed the fact-finding capacities of elected politicians. Modern gov-ernment necessarily has to rely upon the expertise of a variety of specialist agencies to perform its functions efficiently and effectively.

Vibert is comfortable with this development, and argues that this new sector of government is legiti-mate by making an analogy with the legitimacy of the judiciary (15). So long as the new sector confines itself to the core functions of seeking information, assessing risks, and making other empirical judgments, while leaving the political and moral judgments to elected bodies (39–40), the unelected bodies pose no serious threat to democracy. Moreover, Vibert sees the emergence of the new sector as strengthening democracy by providing sources of information that are independent of the political process so that citizens can be more reliably informed and in a position to challenge politicians ‘when they [politicians] claim that they know best’ (181).

At the same time, Vibert does not fall prey to the siren song that

there is a ‘least dangerous’ branch of government (as some people do in relation to the judiciary), and empha-sises the need for the new sector (with the other sectors) to follow ‘the right principles and procedures that legitimate its activities’ (182). The power of the new sector is contained insofar as it relies upon

the legislative branch for the definition of its roles and (in contrast to the judiciary) as it lacks the ‘long tradition that imparts an embedded authority to the law’ (182). The entities that make up the new sector will command authority only to the extent that ‘they muster and deploy

reliable analysis and information.’An obvious argument counter to

Vibert’s is that empirical findings and value judgments are frequently intertwined so that what is purported to be detached, empirical analysis will contain value judgments in disguise. When they are the peculiar value judgments of a technocratic class but politicians who are struggling with the empirical issues either fail to recognise this or reflexively defer to ‘expert’ opinion, the properly democratic aspects of a liberal polity may be endangered.

Vibert acknowledges that the people who make up elected bodies often form ‘epistemic communities’ that are to some extent ‘closed worlds’ that ‘insulate themselves from the broader public’ (32). This provides grounds for suspecting that value judgments that would not enjoy broad assent in the community as a whole may sometimes be smuggled (not necessarily consciously or delib-erately) into important public policy judgments.

A related concern is that transferring the responsibility for certain types of judgments to non-elected bodies

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Policy • Vol. 24 No. 2 • Winter 2008��

might lead to an inappropriate narrowing of the considerations that enter into those judgments. A recent Australian example was the transfer of the power to approve importat ion of the so-ca l led morning-after pill, RU-486, from the federal minister for health to the Therapeutic Goods Administration. Transferring decision-making in relation to such an ethically fraught and politically contentious matter as this to a non-elected body was, in effect, a decision that safety and other technical considerations ought to be the only considerations.

Presumably, the members of Parlia-ment who sponsored the legislation were awake to this and were engaged in a conscientious value judgment that those considerations ought to be emphasised at the expense of ethical concerns about enabling easier access to termination of pregnancy. The episode demonstrates how politicians might use the transfer of certain judgments to unelected ‘expert’ bodies to avoid political debate on ethical issues that are important to large sections of the community. Similar concerns arise in relation to climate change policy. The views of panels of scientific experts that drastic measures should be taken to curb greenhouse gas emissions are open to challenge. This is at least on the basis that whether one should try to halt global warming or allow it to occur and adapt to the consequences involves value judgments, and that since scientific experts do not have a monopoly of wisdom in the area of values, this question needs to be resolved politically.

To his credit, Vibert does not hide from these legitimate concerns. He maintains that passing responsibility for information gathering and analysis to specialist non-elected bodies is more likely than con-ventional political processes to produce material where the facts are

fairly presented and value judgments are explicit. Even in the hard cases where highly contentious ethical questions are prominent—Vibert gives the example of the UK’s Human Ferti l isation and Embryology Authority—public confidence in the process can be maintained by providing for lay membership of the decision-making bodies (53). All in all, the objections to Vibert’s thesis are fairly represented, and he offers intelligent counter-arguments against them. Whether one accepts Vibert’s thesis ultimately depends on one’s own view of how particular unelected bodies should operate.

Doubtless, as the business of gov-ernment expands to cover a range of human activities the theorists of classical liberal democracy could not have dreamed of, the need for elected politicians to pass functions of infor-mation gathering and analysis to un-elected bodies will increase. For this reason, Vibert’s book is important. Happily, even while confronting its limitations as an information-gather-ing process, Vibert gives democracy its due as a means of making political value judgments.

Reviewed by Darryn Jensen

The Logic of Life: Uncovering the New Economics of Everythingby Tim HarfordLittle, Brown London, 2008 $39.99, 272pp ISBN 9780316027571

The back cover of The Logic of Life says that reading its author, Tim Harford, is ‘like spending an ordinary day wearing x-ray goggles.’ This is true, but in the sense that Harford makes everything a bit black and white.

Ian Shapiro and Don Green’s 1993 book, Pathologies of Rational Choice, is a useful companion to this one. Shapiro and Green argue that economic analysis in political science has led scholars in the field to restate existing knowledge about politics in rational choice jargon and high mathematics. More importantly, the economic approach, fuelled by universalist theoretical ambition, has produced research that is method driven (‘how might my preferred theoretical approach account for x?’) rather than problem driven (‘what causes x?’).

Harford’s subtitle, Uncovering the New Economics of Everything, suggests he is unconcerned by Shapiro and Green’s critique. His enthusiasm for an economic theory of everything at times verges on methodological boosterism, and leads him to overstate his otherwise interesting points.

A good example of this is Harford’s discussion of office life. He writes that ‘all the problems of the office stem from the same root,’ and that ‘workplace tournaments [where work-ers are rewarded according to their individual performance] are … a reason—perhaps the reason—why work is such a miserable experience.’

Cartoon by H

ugh Morley