Ethics

Democratic Sovereignty

And

Personal Responsibility

• American (and other Western) democratic political theory:– Legitimizes decisions made through elective and

legislative processes.

– Places a high value on participation and representation.

– Fears the “king” or, in modern terms, authoritarianism.

– Rejects transfer of decisions (often called “discretion” in public administration literature) to administrators.

Basic Issue, Part 1

Herman Finer, Administrative Responsibility and Democratic Government, Public Administration Review, 1941.

Are the servants of the public to decide their own course, or is their course, or is their course of action to be decided by a body outside themselves? My answer is that the servants of the public are not to decide their own course; they are to be responsible to the elected representatives of the public, and these are to determine the course of action of the public servants to the most minute degree that is technically feasible.

It has long been customary to distinguish between policy-making and policy execution.

…But while the distinction has a great deal of value as a relative matter of emphasis, it cannot any longer be accepted in this absolute form.

…Public policy, to put it flatly, is a continuous process, the formulation of which is inseparable from its execution. Public policy is being formed as it is being executed, and it is likewise being executed as it is being formed.

This view is controversial …

Carl J. Friedrich, “Public Policy and the Nature of Administrative Responsibility” in Carl J. Friedrich and Edward S. Mason, eds., Public Policy: A Yearbook of the Graduate School of Public Administration, Harvard University, 1940.

This objection looks…

• Like a simple assertion that however desirable representative participation may be in normative political theory, it is unachievable in practice….

• If that is Friedrich’s claim, is it– (a) a claim about ethics, or– (b) relevant to ethics?

More than one claim..

• Friedrich makes at least two more claims. He says that …

1. The problems that government face are too complicated to be solved by legislation. To solve them by legislation is to forever condemn us to yesterday’s technology.*

• Is this a matter of ethics?

*Paraphrased from Carl J. Friedrich, “Public Policy and the Nature of Administrative Responsibility” in Carl J. Friedrich and Edward S. Mason, eds., Public Policy: A Yearbook of the Graduate School of Public Administration, Harvard University, 1940.

2. Legislatures sometimes get it wrong. The people reject legislation and the legislative process may not respond to the popular will as promptly as the bureaucracy. He cites examples where the bureaucracy failed to implement unpopular laws.

(paraphrased from Friedrich*)

• Is this a matter of ethics?Thus a wine tax was quietly allowed to drop out of sight, just as the potato control act remained a dead letter in the United States.*

*Carl J. Friedrich, “Public Policy and the Nature of Administrative Responsibility” in Carl J. Friedrich and Edward S. Mason, eds., Public Policy: A Yearbook of the Graduate School of Public Administration, Harvard University, 1940.

Suppose you read:

“A month after a city policy shift resulted in a sharp increase in the number of arrests of homeless people, a police officer accused of refusing to arrest a homeless man sleeping in a Lower Manhattan parking garage has been suspended without pay for up to 30 days, the authorities said yesterday.”*

• Is this a matter of ethic?

*The New York Times, November 28, 2002, Thursday, Late Edition - Final, Section B; Page 3; Column 6, “Police Officer Is Suspended For Defiance,” By Al Baker

Herman Finer has more to say…• Governments and officials have been guilty of nonfeasance, that

is to say, they have not done what the law or custom required them to do owing to laziness, ignorance, or want of care for their charges, or of corrupt influence.

• Again, there may be malfeasance, where a duty is carried out, but is carried out with waste and damage because of ignorance, negligence, and technical incompetence.

• Third there is what may be called overfeasance, where a duty is undertaken beyond what the law or custom may oblige or empower; overfeasance may result from dictatorial temper, the vanity and ambition of the jack in the office, or genuine, sincere, public-spirited zeal.

Herman Finer, Administrative Responsibility and Democratic Government, Public Administration Review, 1941.

• He demands that administrators are responsible TO elected officials who can punish them for such abuses of power.

• This, to Finer, is the essence of ethical government.

Another view of responsibility

• Friedrich rejects Finer’s hierarchical model of responsibility. In fact, he asserts it is impossible:

So

• Friedrich looks to voluntary compliance with the intent of policy, with professional standards and with one’s own morality for the responsible administrator.

Basic Issue, Part 2

• Moral theory (not all versions, but many) expects the moral actor to be individually responsible for his or her decision.

• Consider…

Agency

• Moral theory about responsibility and duty relies on the notion of an “agent.”

• In the relevant sense of “agent,” an agent must be able to choose.

• What “choose” means is complex.• However, it seems clear that Finer’s seemingly

mechanistic sense of carrying out orders excludes choice.

• Thus, those compliant with Finer’s standard are not only NOT responsible, they are incapable of responsibility. The concept is irrelevant to what they are doing.

BUT

• Can one forfeit choice?…

Charter of the International Military Tribunal

(The Nuremberg Tribunal)

ARTICLE 8 • The fact that the defendant acted

pursuant to order of his Government or of a superior shall not free him from responsibility….

(available online:

http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/NurembergIndictments.html, accessed March 25, 2003)

• Compare the views of Friedrich and Finer with Article 8?

How do we…

Assertion…• Neither the Nuremberg Tribunal nor Carl Friedrich

got to the most important reason why administrators must have discretion.

• Friedrich got close. It helps to know that he also served as translator for the political writings of Immanuel Kant.

• The view advocated by Finer violates Kant’s Categorical Imperative, by treating government employees as means but not ends -- that is, by denying them voice in critical decisions in their own work -- thus it is immoral.*

*From a Kantian perspective.

The winner…

• The view Herman Finer represents won:– The Administrative Procedures Act was passed

in 1946.– The Code of Federal Regulations is now

published in 221 volumes which require more than 23 feet on the shelf.* It exceeds 170,000 pages. It can be bought for about $1200.

– The population most regulated by these rules are government officials.

*This is approximately the size of the largest ordinary sized bookcase.

Immoral with consequences(Here I speculate)