Strong Constitutions Social Co

Strong Constitutions

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STRONG CONSTITUTIONS

Social-Cognitive Origins of the Separation of Powers

MAXWELL A. CAMERON

z

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Library of Congress Cataloging-in-Publication DataCameron, Maxwell A.

Strong constitutions : social-cognitive origins of the separation of powers / Maxwell A. Cameron.pages cm

Includes bibliographical references and index.ISBN 978–0–19–998744–3 (hardback : alk. paper) 1. Separation of powers. 2. Political sociology.

3. Democracy—Social aspects. 4. Democracy—Psychological aspects. I. Title. JF229.C37 2013320.4'04—dc23

2012045392

1 3 5 7 9 8 6 4 2 Printed in the United States of America

on acid-free paper

For my son, Gabo

Contents

List of Figures ix

Acknowledgments xi

1. Introduction: Strong Constitutions 1

2. Social-Cognitive Origins of the Separation of Powers 15

3. Literacy and the Invention of Constitutions 52

4. Th e Printing Press and Constitutional Revolutions 78

5. Electronic Media, Mass Politics, and Electoral Democracy 108

6. Beyond Liberalism: Language, Law, and Deliberation 141

7. Democracy Without the Separation of Powers? 165

8. Conclusion: Writing, Power, and Democracy 198

Notes 209

Bibliography 219

Index 241

List of Figures

2.1. Bonaparte Crossing the St. Bernard Pass by Jacques Louis David 35

2.2. Scene at the Signing of the Constitution of the United States by Howard Chandler Christy 40

2.3. Moses Breaking the Tables of the Law by Gustave Dor é 44

6.1. Th e Separation of Powers: A Discourse Th eoretic Perspective 162

Acknowledgments

My most significant intellectual debt, by far, is to the late Guillermo O’Donnell, who generously read the entire manuscript and provided extensive and detailed feedback. During a visiting fellowship at the Kellogg Institute at the University of Notre Dame, in 1996, I had the privilege of attending a semi-nar on democratic theory taught by Guillermo, and it was in that seminar that this book began to germinate.

Chris Th ornhill provided a combination of tough-minded and erudite criticisms as well as remarkably astute suggestions that pushed me to improve my work. Other anonymous reviewers provided feedback that materially improved the manuscript. As editor, David McBride guided me through the review process with insightful and judicious advice, while production editor Pete Mavrikis and copy editor Elina Sluzhman Carmona carefully prepared the fi nal manuscript for publication. A university press as old as the printing press itself is a fi tting home for a manuscript about the role of books in orga-nizing our lives.

At the University of British Columbia, I have the privilege of working with outstanding faculty and graduate students. Agust í n Goenaga and Kate Hecht read the entire manuscript and provided detailed feedback. My thinking has been shaped by conversations with the three Killam postdoctoral fellows I have had the honor to supervise: Pablo Policzer,Tulia G. Falleti, and Andr é s Mej í a Acosta. Other students who helped this project along the way include Jan Boesten, Lesley Burns, Flavie Major, Mark Manger, Phil Orchard, Netina Tan, and Jason Tockman. I’m grateful to research assistants Erin Bedard, Ana-Maria Blanaru, Anabella Espa ñ a, Michelle Garvey, Catherine Hirbour, Jorge Madrazo, and Julia Malmo-Laycock. Earlier versions of the manuscript were used in senior undergraduate seminar and lecture classes. My students forced me to clarify and sharpen the exposition of the argument. Colleagues at UBC have provided both stimulation and support for my work in ways they may not appreciate, especially Gerry Baier, Jon Beasley-Murray, Michael

xii Acknowledgments

Byers, Ken Carty, Fred Cutler, Ken Foster, Richard Johnston, Richard Price, Phil Resnick, Campbell Sharman, Allan Tupper, Mark Vessey, and Mark Warren. Arjun Chowdhury, in particular, read much of the manuscript and off ered penetrating observations. Jean Laponce encouraged me to think in evolutionary terms. Th e University of British Columbia Koerner Library was not only an indispensible resource for this book, it generously secured copyright permission for images used. At a certain stage in the writing I real-ized that the structure of the book replicates the Arts One program, a forma-tive experience for generations of students at UBC—myself included.

An appointment as Canadian Bicentennial Visiting Professor at the Yale Center for International and Area Studies (now the MacMillan Center) in 2005 provided a welcome opportunity for intensive writing and the chance to interact with scholars like Bruce Ackerman, Susan Rose-Ackerman, Juan Linz, Susan Stokes, Ian Shapiro, and Enrique Mayer, as well as to organize a small workshop on the separation of powers. Harvey Goldblatt, Nancy Ruther, and Frances Rosenbluth off ered a warm welcome and kind hospital-ity. Th e Sterling Memorial Library is, as one colleague put it, a sacred place for the bibliophile, and some of the materials in its rich repository have been referenced in these pages. Cynthia Sanborn facilitated a productive sabbatical at the Universidad del Pac í fi co in Lima in 2006.

Th e book was fi nally completed while I was enjoying the companionship of a cohort of distinguished scholars in residence at the Peter Wall Institute for Advanced Studies at UBC. I’m especially grateful to Dianne Newell for mak-ing that possible. Many long and rewarding conversations with Ken Sharpe about Aristotle and practical wisdom have shaped this book. I have also ben-efi ted from working on diverse aspects of democracy and constitutionalism with Eric Hershberg, Jane Jaquette, Steve Levitsky, Jennifer McCoy, and Sam Sullivan.

Two chapters I had originally thought to include were excised in the inter-est of streamlining the book. One argued that federalism is a constitutional system in which the separation of powers exists at the sub-national level. It was coauthored with Tulia Falleti and appeared as “Federalism and the Subnational Separation of Powers,” Publius: Th e Journal of Federalism (35[2] Spring 2005, pp. 245–271). Another chapter, which examines the history of the separation of powers from a social-cognitive perspective in a single case study—that of Peru from the colonial period to the present—was published as “Text, Power and Social Exclusion: From Colonialism to the Crisis of Criollo Republicanism” in a book edited by John Crabtree, entitled Fractured Politics: Peruvian Democracy Past and Present (London: Institute for the

Acknowledgments xiii

Study of the Americas, 2011, pp. 23–51). Both may be read as companions to this volume.

Th e Social Science and Humanities Research Council of Canada sup-ported my research with grants over a number of funding cycles. I am grateful for the repeated votes of confi dence, despite the long gestation demanded by work like this. Without SSHRC funding this book would have been impos-sible. Neither SSHRC nor any of the aforementioned organizations or indi-viduals, but only I alone, can be held responsible for any errors and omissions of the book.

Fabiola Bazo, my companion in life, without whom all would be gray and dull, has understood and shared in the joys and pains of research, and helped me fi nd balance and perspective in work and life. I am fortunate that my mother, Ann Cameron, is also my closest colleague and mentor. She not only introduced me to much of the work on language and social cognition upon which this book draws, but also patiently read multiple draft s and pro-vided constant encouragement and support. I dedicate this book to Gabriel Cameron Bazo, my son, through whom I have learned to appreciate the many meanings of William Wordsworth’s phrase “the child is father of the man.”

1

IntroductionSTRONG CONSTITUTIONS

Th e constitution is a way of organizing those living in a state. aristotle

The intent of this book is to invite readers to think in new—as well as older, now less familiar—ways about the separation of powers. 1 It sets out the view that constitutional states, in order to use text to coordinate collec-tive action, must create governmental agencies to monopolize three types of power: the power to make decisions backed by legally sanctioned coercion; the power to make procedurally legitimate laws; and the power to interpret and apply laws in particular circumstances. 2 Th e division of government into three separate branches enables state offi cials and citizens to use writ-ten texts, such as legal codes and constitutions, alongside unwritten rules and conventions, to coordinate their activities on larger scales and over longer time horizons. Constitutional states are not weaker because their powers are divided; they are stronger. Such a view may seem counterintuitive, since we are accustomed—rightly, much of the time—to thinking of constitutions as limits on the abuse of state power. Yet the idea that good constitutions make states stronger is also consistent with an older historical view that constitu-tions enable states to pursue collective objectives.

A person who cannot deliberate, calculate, or measure the consequences of his or her actions can hardly be considered strong or autonomous, nor can such a person exercise moral judgment. By the same token, the strength and autonomy of the state is measured by its capacity for deliberation, execution, and judg-ment, and not just its material capabilities. Th is is why constitutions matter. Constitutions establish the distribution of government roles and offi ces within the state, each with corresponding competencies and jurisdictions. Th ey enable state offi cials to coordinate the elements of action—thoughtful deliberation,

2 st ro n g co n st i t u t i o n s

eff ective execution, and critical judgment—to ensure the rational coherence, effi ciency, and appropriateness of governmental actions. A core proposition of this book is that the constitutional diff erentiation of governmental roles and offi ces is a property of all political systems in which collective action is coor-dinated over time and space by a combination of written texts and unwritten conventions.

Th e separation of powers is not the only feature of constitutions, but it is an inescapable one wherever public roles and offi ces are organized by means of written texts. Texts are important because they are the media by which it is possible to convey intentions over long periods of time and vast distances, record events, and learn from successes and failures. Th is does not mean that constitutions are always (or exclusively) written documents, nor does it preclude the possibility of constitutionalism prior to mass lit-eracy—indeed, some of the world’s most venerable constitutions predate mass literacy. Th e Magna Carta, the statutes of Italian cities, the Holy Roman Empire’s Golden Bull, and the rules governing the cortes in Spain, were all established well in advance of mass literacy. Nevertheless, there is an intimate connection between constitutionalism and written text. Even in ancient civilizations, the spread of reading and writing created the need for bodies to produce, interpret, and apply legal codes. Written codes stabi-lized social relationships, helping to create the sort of fi xed arrangement of public roles and offi ces that enables us to speak of a constitutional order. At the same time, the use of text made institutional arrangements the object of conscious theorizing and criticism. Constitutions are co-original with liter-ate states. 3 Th ey are, as Aristotle wrote, the way in which life in the polis is organized; and since classical antiquity they have been organized, I would add, with the aid of texts.

In linking the separation of powers to the use of text to coordinate collec-tive action, I do not mean to imply that constitutions are a mechanical eff ect of literacy. Th is book is more interpretive and less nomothetic; it is closer to what Reinhart Koselleck calls conceptual history. It records some of the argu-ments that have been made about the separation of powers throughout his-tory in an attempt to grasp how theorizing about constitutionalism evolved along with transformations in social communication and human cognition. Koselleck emphasized the role of language when he observed that, “Th e more highly aggregated the human units of action—for instance, in modern pro-cesses of labor and their economic interconnections, or in the increasingly complex political spaces of action—the more important conditions of lin-guistic communication become for maintaining the ability to act” (2002: 26).

Introduction 3

An eff ect of literacy was to enable new forms of social and political organi-zation, and the more that societies were organized through time and space by means of written texts, the more certain kinds of problems—which are at once philosophical and political—had to be confronted.

Historical changes in human cognition and social organization alter gov-ernmental functions in complex and oft en unanticipated ways. How people think, read, and write, and hence the organization of political systems over space and time, is shaped by processes such as the emergence of literacy, the invention of the printing press, and the spread of electronic media. Th ere is a sociological tradition in which the diff erentiation of governmental func-tions is seen as part of, albeit not reducible to, broader processes of societal diff erentiation. Niklas Luhmann views the separation of powers as part of a basic transformation of modernity: “the re-organization of the social system of stratifi cation into functional diff erentiation” (1990: 15). Th ere is a good deal of merit to this view, provided that we do not treat the separation of pow-ers as mere epiphenomenon—an eff ect of deeper social processes. Th e diff er-entiation of governmental powers did not occur because it was a functional necessity for the maintenance of a social order, for such an argument would be tautological. 4 I am interested in how collective action is coordinated by states through media of communication, and how diff erent arrangements are produced by highly complex and historically contingent processes in which theorizing—by practical politicians as well as critical thinkers—about the organization of the state plays a central role. 5 Th e separation of powers is an emergent property of lettered political institutions as they evolve and adapt to changing social-cognitive conditions.

Language and Institutions Social scientists writing about institutions typically mean rules and enforce-ment mechanisms that provide solutions to collective action problems. 6 A good deal of research has gone into showing how the design of institu-tions shapes human behavior, understood as choices in response to incentives. Although we now know a lot about the eff ects of institutions, we do not have an equally sophisticated understanding of where institutions come from, or how they change, in part because we have largely neglected the cognitive sources of institutional origins and evolution. A richer understanding of insti-tutions requires that we place language at the center of collective action the-ory. Language plays a surprisingly small part in many theories of institutions and institutional change, and yet language forms part of almost all instances


of collective action, and problems of collective action oft en arise from failures of speech and communication.

I build on the work of cognitive psychologists who have shown that lan-guage enables the cumulative evolution of social institutions (Tomasello 1999; Donald 1991; Olson 1994). One of the cognitive mechanisms through which institutional change is achieved involves criticism and practical adap-tation. Th e human faculty for language enables thoughts to be expressed in words, and this fosters a critical attitude toward their content. Th e capac-ity for criticism allows us to learn, adapt, and cooperate. Since cooperation involves purposeful action in situations in which knowledge of the inten-tional states of others is crucial to achieving collectively desired outcomes, the ability to distinguish between true and false claims about the intentions of others may make the diff erence between cooperation and noncooperation. Th e possibility of deception, for example, encourages the development of the critical ability to distinguish true and false reports (Popper & Eccles 1983). Once acquired, this critical skill enables the conscious adaptation of institu-tions and practices to bring the words and actions of individuals into line with collective objectives.

Language is essential to collective action, not least because miscommuni-cation is a key source of collective action problems. We know from speech act theory that utterances may also perform actions (Austin 1962; Searle 1969, 1991). For example, illocutionary acts involve utterances that are intended to achieve certain eff ects and the recognition of such intentions, under the right conditions, completes the performance of that act. Promises, threats, and commands are all examples of illocutionary acts, and the performance of such utterances is a necessary part of collective action. When they misfi re, collective action can fail.

In thinking about how speech acts are performed, the distinction between the fl exible but fl eeting nature of verbal communication and the durable but rigid nature of written communication is crucial. Speech is marvelously expres-sive, fl exible, and interactive (Havelock 1986), and in everyday conversation it is oft en possible to do things with words that involve complex intentions and subtly meaningful interactions. Nevertheless, speech also has drawbacks. It is fl eeting and, until the electronic era, it was limited to face-to-face communi-cation (Havelock 1986). Information conveyed orally has the further disad-vantage that it requires storage in biological memory (Donald 1991), which can give rise to disagreements over what was said or meant. When speech is written down in script, it acquires more permanence (Innis 1950); it can also be lift ed out of context and turned into an object of more systematic and

Introduction 5

sustained analysis, criticism, and interpretation (Olson 1994). It becomes a source of power for those who can justify their actions by reference to reasons encoded within written texts.

Writing creates economies of scale and longer horizons of the future for collective action. Th e widespread use of written documents enables coordina-tion, adaptation, and deliberate change in social institutions, but the social and economic benefi ts are accompanied by inescapable problems that place new cognitive demands on social order. Put simply, texts solve some collective action problems and create new ones. New challenges may arise from the fact that written text is fi xed, rigid, and easily decontextualized; text may provide a good model of what was said but not necessarily what was intended (Olson 1994). Th e original force of an illocution may be lost when written down. Th is is best explained with an example. Th e utterance “don’t lie” might be a warn-ing or admonition to a suspected liar, or friendly advice to a collaborator. Th e context provides cues to the intentions of the speaker. Once written down, however, words can be seen or heard in a wider range of contexts: “when a book leaves its author’s desk,” observes Salman Rushdie, “it changes . . . it no longer belongs to its maker.” 7

Abstracted from context, words may be universalized, and yet this only increases the necessity of recontextualization. Th e words “don’t lie,” which might be good advice for the four-year-old child, abstracted from context may be read as a universal imperative: thou shalt not lie. Yet humans are lying animals who cannot live social lives without lying (Leslie 2011), so if the gen-eral rule is to be of any use to us we must fi nd ways of making it meaningful in particular instances. Th e wider the contexts in which words are used, the more diffi cult it may be to recontextualize them.

Constitutions and Interpretation Constitutionalism is part of the larger problem of how we make meaning of the texts we use to organize our lives. A major theme of this book is that we get diff erent kinds of procedures for interpretation depending on whether we think the meaning of a text is either intrinsic, in which case we must recover (or rediscover) the author’s intention, or context dependent, in which case the meaning is negotiated between the author and reader. Th e fi rst attitude, fol-lowing Angel Rama (1996), I call “scripturalism” or “textualism.” Textualism, according to the Oxford English Dictionary , means “strict adherence to the text,” while scripturalism denotes adherence specifi cally to scripture. Insofar as foundational texts are treated as sacrosanct, they may be placed beyond


criticism. In this view, the text in its written form has an intrinsic meaning that expresses the intention of the author and must be recovered by the reader. If so, the best strategy for stabilizing the meaning of a politically signifi cant text is to try to fi x its content in a permanent and unambiguous way, either by recovering the original intention of the speaker—the lost illocutionary force of verbal utterances—or by imposing uniformity on a community of speak-ers and readers in accordance with authoritative interpretation. Paul Ricoeur referred to this hermeneutic strategy as the “restoration of meaning” (1970: 28). Th e obvious need for authority required by this strategy helps us to under-stand why the initial adoption of written texts to coordinate collective action so oft en reinforced the centralization of power (Braudel 2001; Innis 1950).

Th e restoration of meaning is a problematic approach, however, because it assumes that the text is an adequate expression of the author’s intent, and can be captured through study guided by authorities. As knowledge spreads, authorities oft en fi nd themselves subject to ever-intensifying criticisms, especially as the text is reinterpreted in novel contexts. Th e renegotiation of meaning demanded by the disruption of monopolies of knowledge oft en encourages another attitude toward texts, which is more “contractual,” to use Umberto Eco’s (1997) term. Such a strategy focuses on how a community of speakers and readers can agree upon the meaning of texts. Th e more writ-ten texts are used and disseminated among readers, the more diffi cult it is to monopolize their meaning, and the more important it becomes to separate the production of texts from their interpretation and application, on the one hand, and to separate the roles and offi ces involved in both from the exercise of coercive power, on the other. It is this eff ort to jointly make meaning of texts to enable collective action that gives rise to the constitutional separa-tion of powers. Interpretation becomes an “exercise of suspicion,” of critical discussion between authors and readers (Ricoeur 1970: 32). In this context, criticism fl ourishes.

In any constitutional tradition there will typically be a mix of textual and contractual attitudes toward foundational texts. Contractualism tends to promote a more open-ended and fl exible and democratic form of constitu-tionalism, while textualism, particularly its scriptural variant, reinforces rigid, centralized authority. Contractual traditions are less literal, less originalist; they give the reader a greater share in meaning-making, thereby limiting the power of authority. Yet the picture is not entirely black and white. Strong adherence to a script is a powerful source of resistance to arbitrary rule, and decisive contributions have been made to constitutional thought by scriptur-alists like the French Catholic Leaguers ( Ligueurs ), or the English puritans.

Introduction 7

Th e Ligueurs believed that scripture was the basis of political authority, and in that sense they were reactionary; but the prospect of a Protestant king in France led them to theorize the conditions under which the people might remove a monarch and elect another, anticipating ideas that would fl ourish during the French Revolution (Baumgartner 1976). 8 On the other side of the reformation struggles, English puritans helped check the power of royal prerogative through their continual insistence that temporal power rested on scriptural authority. Th eir commitment to scripture made them stubborn defenders of the law (Neale 1953). Unintentionally, both Ligueurs and puritans fostered the conditions in which radical new theories of political obligation would emerge—not only to separate church and state, but also to separate the branches of government.

Th e struggle over the meaning of texts helped produce states more capa-ble of governing through generalized, abstract, and decontextualized forms of rule. Instead of requiring the constant application of command and coer-cion, states developed routines and procedures that enabled them to work out consistently the actions necessary in novel situations without departing from generally accepted principles (Th ornhill 2011). States became more powerful, not less, due to the separation of deliberative, judicial, and executive offi ces. Th e idea that the power of centralized rulers and the power of deliberative institutions is inversely proportional—and that the story of constitutional-ism involves the progressive limitation of executive power—misses a central fact. Constitutional states have always been more powerful precisely because their deliberative institutions solve a series of political problems rooted in the necessity of using language and text to communicate and coordinate inten-tions and actions. Th ese problems—and the necessity of dealing with them—remain with us to this day.

State Power and Text Modern states, like ancient ones, rely on stable interpretations of texts. Th e legal coercion exercised by the executive branch in the modern state must not only be constrained for the sake of protecting citizens against the abuse of power, the classic problem of constitutionalism; it is equally important to avoid the arbitrary and unilateral imposition of meaning on texts. Since exec-utive power is unifi ed and oft en personalized, the concentration of executive power can create a false sense of order and coherence, especially when com-bined with the quasi-religious authority of a providential leader. Th is coher-ence, however, may come at the cost of scrambling interpretive codes and


disrupting conventions in ways that make it harder to coordinate political life with minimal expenses of coercion. For this reason, limits on the abuses of coercive power may enhance overall state capacity, reinforcing the shared meanings and conventions that make collective action possible, and thereby creating longer time horizons and more stable mutual expectations between rulers and ruled. By focusing on language and texts, we can see how, whereas most constitutional theory emphasizes the need to limit the power of the state, constitutions also make states stronger in desirable ways. Th e idea that constitutions must limit state power, and that only power can check power, has done much mischief. Democratic theorists need to be more careful about how they interpret the idea of power balancing power.

Th e executive branch of government can claim primacy when it comes to coercive and administrative power. Aft er all, there had to be states before they could be constitutionalized. To make the conventional arboreal simile (“branches of government”) more accurate, it is best to think of the executive as the trunk of the tree from which the legislature and judiciary branch out. Courts and legislatures, as ramifi cations of the state apparatus, command no coercive power on their own. Th ey are not in a position to check the coercive and administrative power of the executive on which they depend for their very existence. To paraphrase Stalin, how many divisions does the Supreme Court have? It is nonsensical to describe a working constitutional order purely in terms of countervailing balances among branches of government. Unless coordinated with one another, and with the executive branch of gov-ernment, courts and legislatures would seem to be paper tigers. And yet coer-cion uncoordinated with deliberative institutions is neither self-correcting nor self-improving—much less self-limiting. Th e source of strength of delib-erative bodies lies not only in their ability to check the executive but also in the work they do to achieve what is collectively desired. Th e advantage of the separation of powers is that it enables patterns of collective action involving adaptation and deliberate improvement that would otherwise be infeasible; it facilitates the coordination among branches of government by specifying the areas of competence and jurisdiction of each. Th e purpose of constitutional-ism is balance and power, but it is balance in the Aristotelian sense of wise judgment, not in the mechanical sense of checks and balances.

By arguing that all large-scale legal systems formally divide governmental functions into executive, legislative, and judicial powers because the use of written documents in collective action requires specialized agencies to pro-duce and interpret them, I am building on both classical and contemporary legal and political theory (Aristotle 1962; Montesquieu 1949; Habermas

Introduction 9

1996a). What I intend to add to this view is a refi nement of Jürgen Habermas’s emphasis on language and communication. Th e separation of powers helps solve three problems of collective action by means of texts: failures to under-stand the intention of the author, or lawmaker; failures to establish the truth-fulness or validity of interpretations of a text or law; and failures to agree on the application of a text or law in a given context. Th e fi rst problem arises as soon as the legal order is thought of as something other than divine, natural, or given by custom and tradition. Th e constitutional solution is disarmingly simple: a law is a text produced by a legislature. Written law fi xes the intention of lawmakers in text. Th e second problem arises from the ambiguity inherent in all linguistic communication, but especially in written text. How do we know which of various interpretations should be given to a legal text once it is written down? Some procedure must be devised to select among alternative interpretations. Th e third problem is related to the second and arises from the fact that writing is decontextualized. Since no rule applies in all situations, and what is generally true may be mitigated in particular circumstances, some procedure is necessary to adjudicate cases. Th e separation of powers creates the legal apparatus necessary to ensure that texts are produced, interpreted, and applied in a manner consistent with the intentions of their authors and appropriate to the context.

Th e emphasis on collective speech act problems stands in sharp contrast to the “pure doctrine” (see Vile 1967: 14), according to which government should be divided into three branches, each confi ned to its corresponding function, and each with its own personnel. Th is caricature of the separation of powers has become part of conventional wisdom despite the fact that it has never been advocated in these terms by any serious theorist, nor is it workable in practice. If we were to take the doctrine seriously—and I do not suggest we should—we would have to acknowledge that the separation of powers exists nowhere in pure form. Cabinet government in parliamentary systems appears to fuse legislative and executive functions, while the spread of administrative and managerial roles in the modern state defi es easy classifi cation under the three branches of government. Even more dramatically, the use of emergency war powers (or states of exception) turns executives into judges of the fates of individuals. If the separation of powers—as opposed to the “pure doctrine”—is to be taken seriously, it must be understood in diff erent terms. Yet we should not shrink from the challenge of understanding and upholding the separation of powers, not only because the violation of it still poses threats to our liber-ties, but also because without it, states are limited in their ability to attain many collectively desirable ends.

10 st r o n g co n st i t u t i o n s

In short, the separation of powers contributes to political order both posi-tively and negatively. Th e negative argument is familiar: the violations of the separation of powers, however subtle and ostensibly reasonable, may open the door not only to arbitrary physical violence and abuse. Th e positive argument is less familiar: the violations of the separation of powers may also hamper deliberate improvements and adaptive strategies that are possible only within a fi xed yet fl exible and evolving legal political order. Political order means not just defi nite patterns of compliance and enforcement, but an interde-pendent system of signs and signifi cations within which problems of autho-rial intention, truth or validity, and context of application of legal texts are solved politically (Wolin 1960). When order is lost, politics reverts to the dis-mally familiar and perpetually recurrent problems that Hobbes imaged to be endemic in the state of nature. Th is is a world in which executive power is at home, where naked coercion can be used to impose order by force, and texts can be tergiversated at the whim of rulers. But it is not a world in which much progress can be made toward fulfi lling collective needs and wants through the deliberate criticism and adaptation of institutions. Th e positive contribution of the separation of powers is to help make meaning of the rules by which we are governed. Constitutions create “inner reserves of cohesion, obligation and legitimacy” (Th ornhill, 2011: 2) that make states more, not less, powerful; they enable states as much as they constrain them.

Myths and Misconceptions Th e lack of serious social science theorizing on the separation of powers does not just limit our understanding of democracy—it also contributes to grave misconceptions in the study of comparative and world politics. Th e fi rst mis-conception is that the separation of powers merely limits rather than enables state capacity. 9 Th is is probably the most damaging misconception of the separation of powers, because it suggests that constitutionalism is a fetter on the power of the state. As Jane Mansbridge (2012: 3) laments, the separation of powers has evolved from the Aristotelian idea of “a mixed polity with bal-ance among the parts” into a Madisonian system of checks “based on protect-ing each individual from state oppression.” Th e separation of powers is more than a check on power; it is a necessary precondition for patterns of enduring and large-scale collective action, some of which constrain agents of the state but many of which enhance overall state power. Some of the most powerful states in human history have been constitutional ones, for they solve collec-tive action problems that bedevil arbitrary rulers by using text in ways that

Introduction 11

require the work of deliberative institutions, and thereby place new powers in the hands of rulers. Strong constitutions make strong states. 10

Th e second misconception, arising from Eurocentrism, is that the separa-tion of powers is an English, French, or North American idea, irrelevant to most of the rest of the world. 11 While it is true that Montesquieu’s doctrine is based on a particular reading of British and Roman constitutional experience, it is also true that the division of governmental functions exists wherever states have a constitutional or legal basis. Th e need to theorize about the separation or fusion of powers is a problem for all legal systems, and Europe, Britain, and the United States should not be presumed to have a monopoly on this corner of social and political thought. Although constitutional framers out-side of the North Atlantic have been heavily infl uenced by Anglo-American or Continental thought, no serious attempt to build political order can fail to confront the issues associated with the need for a separation of powers. In Latin America, for example, Bolivarian constitutionalism refl ects an adapta-tion of these traditions to new conditions in ways that are highly consequen-tial for subsequent trajectories of institutional change.

Th e Anglo-American understanding of the separation of powers is the most familiar to English-speaking readers, but there is also a Continental European tradition of theorizing about the separation of powers that also traces its ancestry to Locke and Montesquieu, with accompanying echoes of Rousseau and Kant. Rather than pitting ambition against ambition in a system of checks and balances, the separation of powers in this tradition involves hierarchy and coordination in a division of governmental tasks. Latin American constitutional thought contains elements of both Anglo-American and Continental European traditions, combined with the classical idea of the mixed constitution. Sim ó n Bol í var and his independence-seeking mili-tary caudillos (or strongmen) created a form of republican government that reinforced the monopolization of literacy, and hence access to deliberative institutions, by Creole leaders. Within Bolivarian thought there is a power-ful tendency toward democratic Caesarism (Bol í var 1964). Th e separation of powers is critical to all these traditions.

A third misconception, common among progressive thinkers, is that the separation of powers is an antidemocratic constraint on state power harnessed to progressive ends. 12 It is true that the doctrine of the separation of powers was explicitly antidemocratic (Althusser 1982). But it is also “a tool for democratic struggles” (Lauritsen 2010: 19). Th e connection between democracy and con-stitutionalism is too intimate to be seen in purely zero-sum terms. Th eorizing about constitutions occurred for the fi rst time when democracy was in its


birth pangs in ancient Greece, and early modern political thought contrib-uted to both modern liberal democracy and the doctrine of the separation of powers. Today, the erosion of the separation of powers—for example, in the context of the “war” on terror—seems to threaten basic democratic rights and freedoms. Th e idea that the separation of powers is countermajoritarian should, therefore, be treated with caution.

My social cognitive theory challenges misconceptions that have grown up around the separation of powers. By starting with the human subject as a thinking agent, the cognitive theory provides a meta-theory—that is, an understanding of how people have theorized about constitutional order and how these theories have become part of the material context in which politi-cal systems emerge and evolve. Th ere are many advantages of such a theory. It encompasses human history from the invention of literacy to the era of electronic communication. While off ering broad comparisons across time and space, it eschews the static, circular, essentialist, and Eurocentric quality of many cultural interpretations of diverse political traditions. It incorporates insights from rational choice theory while focusing on problems of language and communication rationalists have had diffi culty acknowledging. Th e goal is not a modernization theory that presupposes a unilinear process of social change from lower to higher stages of development. Such theories are teleo-logical in the sense that “advanced” societies serve as the image of the future of less developed ones. 13 Th is book emphasizes the nonlinear eff ects, surprising reversals, and multiple trajectories produced by language, literacy, and media as they shape human possibilities for collective action. It examines periods of stultifi cation of constitutional thought, as well as periods of productivity and innovation; diverse regional patterns are identifi ed, and traced to diff erent attitudes toward literacy by those in power.

Th e dialectical interplay between constitutionalism and its antinomies is a crucial theme of this book. Citizenship implies the category of noncitizen and thus the possibility of exclusion of those who, for example, cannot read or write. Literacy, oft en seen as a foundation of citizenship, transforms orality into illiteracy, making noncitizens out of the illiterate. Members of consti-tutional states see themselves as “civilized,” in contrast to the despotism of “barbarian” nations. Constitutionalism’s inherent logocentrism can nullify or even reverse its democratizing eff ects, especially when used by powerful rulers to subjugate supposedly backward peoples. I devote special attention to the clash of literacies between medieval Spain and the New World, a clash crucial to understanding the constitutional ferment in present-day Latin America. Spain was a ruthlessly despotic colonizer. Unfamiliar new forms

Introduction 13

of literacy encountered in the New World were suppressed in an eff ort to establish monopolies of power and knowledge. I trace the lasting—and cat-astrophic—legacies for contemporary citizenship of such monopolization of literacy. Latin America should not, however, be seen as an undiff erentiated region. Th e cognitive theory helps explain why the separation of powers is most respected where religious and civil authorities promoted conditions for citizenship—such as schooling—early and aggressively, and least respected where racial discrimination and ethnocentrism among dominant groups excluded large and culturally vibrant indigenous populations with strong oral traditions.

A social cognitive theory of the separation of powers can contribute to a major challenge in democratic theory: the need to theorize the ways in which inclusive citizenship rights, backed by a lawful state, underpin democratic institutions (O’Donnell 2001). Th is citizenship defi cit is endemic in new democracies, and has important policy implications. Th e precariousness of the separation of powers weakens democracy in countries where citizenship rights have been monopolized by literate elites. Th e exclusion from access to written texts as a mechanism of social coordination denies full participation in markets and politics.

Organization and Aims of this Book Th e social-cognitive theory of constitutions is outlined in the next chapter. Th is lays the foundation for understanding the emergence of the separation of powers from problems associated with speech and communication in a literate context. Chapters 3 through 5 trace links between the evolution of political thought on constitutional government and changes in language and social cognition. Th e origin of European theorizing about constitutions can be traced, for example, to the spread of mass literacy in the Greco-Roman world. Innovations in constitutional thought during the Renaissance coin-cided with the growth of mass literate publics that was stimulated by the invention of the printing press in the fi ft eenth century and its rapid diff u-sion thereaft er. Th e entry of the masses into politics, or the “social question,” contributed to democratization, even as electronic communications armed modern bureaucratic states with new means of propaganda and mass persua-sion. An underlying argument in each of these chapters is that writing and reading leads to monopolies of power and centralization of authority, but as it spreads, it also fosters criticism and the development of theories that challenge power.


Chapters 5 and 6 extend the treatment of the separation of powers into contemporary theories of democracy, especially Schumpeterian or rationalist theories, liberalism, and deliberative democracy. Th ese chapters document a dual transformation associated with the rise of contemporary social sciences in the mid-twentieth century: on the one hand, the separation of powers became a legal doctrine, while on the other hand, democracy was redefi ned in terms of electoral competition (oft en devoid of other institutional refer-ents or based on a narrowly instrumental theory of institutions). Th e tension between theory and doctrine was reproduced within liberalism, although some liberal democrats (like Friedrich Hayek) resisted it. Only with the development of theories of deliberative democracy, however, was the inter-nal connection between democracy and the separation of powers reaffi rmed (Habermas 1996a), and the separation of powers reemerged not as doctrine but as a subject of democratic theory. Th is connection was made possible by linking the separation of powers to diff erent types of discourses. Chapter 7 examines contemporary problems in democratic theory and practice in light of the social-cognitive theory, including the rise of the administrative state, presidentialism vs. parliamentarism, delegative democracy, states of excep-tion, “wars” on terrorism, and the impact of the Internet on democracy. A fi nal chapter concludes.

Th is book is motivated by the hope that by understanding the separation of powers as an organizational consequence of human cognition, an insti-tutional by-product of the way that literate individuals communicate with each other for the purposes of achieving desired collective ends, we may bet-ter deliberate about and act upon collective problems both within states and among them. Th e state is vital to the realization of a wide range of collective aspirations. Any struggle to improve the human condition must necessar-ily confront the state, both as a vehicle to be harnessed for collective ends and a potential obstacle to the same. Th e theory of the separation of powers can contribute to a discussion of how states can be organized to better serve desired collective goals.

2

Social-Cognitive Origins of the Separation of Powers

One of the most generalizable eff ects of writing is separation. It divides and distances, and it divides and distances in all

sorts of ways. walter j. ong

The theory of the separation of powers is a theory of public institutions—their origin and the consequences of their arrangement—so our inquiry must begin by defi ning the properties of institutions. 1 Like scientifi c fi ndings, myths, or works of art, institutions are neither physical entities nor mental states alone, but rather “constructs of the human mind” (North 1990: 107). Karl Popper (in Popper and Eccles 1983: 36–50) refers to the physical world, mental worlds, and material products of the human mind as Worlds 1, 2, and 3, respectively. By “mind” Popper means the human faculty to use language to direct the activity of the brain. World 3 objects may be embodied in physical objects, but their properties cannot be reduced, as in materialist ontology, to their physical form. “A book,” as Popper notes, “is a physical object, and it therefore belongs to World 1 [physical entities]; but what makes it a signifi cant product of the human mind is its content : that which remains invariant in the various copies and editions” (1983: 38–39; italics in original). Once produced, World 3 objects can be observed and criticized. Th e mind is capable of refl ect-ing on its own products and using criticism and imagination to improve them over time, or to corrupt, distort, and deliberately falsify them.

Th e vital source of this adaptive ability is criticism, which arises with language. For with language, World 3 “may become both external to us and an object of criticism and of deliberate improvement” (Popper in Popper and Eccles 1983: 451, italics in original). World 3 products are autonomous from Worlds 1 and 2, the physical universe and mental states, in the sense that the products of mind become objective and invite further problem


solving. To put it in Habermas’s terms, World 3 products “confront the subjective mind with the objectivity of a problematic, uncomprehended complex of meaning that can be opened up only by intellectual labor. Th e products of the human mind immediately turn against it as problems ” (Habermas 1981: 77, italics in original). Th is is the spirit in which we should think of the impact of language on political organization, includ-ing the separation of powers.

To understand the impact of language on social and political organiza-tion, and on collective action, it is helpful to consider human society prior to language. Th e origin of language is a subject so fraught with contro-versy that the Linguistic Society of Paris once formally introduced a ban on papers dealing with the subject (Ramachandran 2011, p. 163). Unless we grasp the role of language in society, however, we are condemned to a narrow understanding of human aff airs, one in which the importance of confl ict, competition, and the pursuit of self-interest are oft en exaggerated. Current developments in areas like cognitive neuroscience suggest that human evo-lution makes little sense unless we comprehend the capacity for empathy, cooperation, and collective learning in human groups (Churchland 2011, De Waal 2009, Rifk in 2009).

Imagining a world without language is not easy. We may, however, engage in a thought experiment, one informed by research on human ontogeny and primate behavior. In a prelinguistic world, collective action would have been limited by the diffi culty of reporting the actions or intentional states of the self or others. Lacking knowledge of the actions of others beyond that avail-able through immediate experience, collective action would have occurred on the small scale necessary for biological reproduction. Without language it would have been diffi cult to report observations on the actions of others out-side immediate experience, but that is not all: the critical social intelligence that develops with the need to verify or challenge the validity of such reports could not develop, either. In addition, biological memory would have had few aids for its preservation and transmission: the structures of meaning pro-vided by language to enable cumulative learning would have been minimal. Archeological evidence suggests, not surprisingly, that the pace of cultural innovation for most humanoid predecessors of Homo sapiens was extremely slow, but it accelerated rapidly around the time that modern humans began to speak—roughly, within the past fi ft y thousand years.

We need not accept Hobbes’s view that life in the “state of nature” is “mean, nasty, brutish, and short.” Th e state of nature is best treated as a theo-retical construct, not a description of real conditions, and there is far more

Social-Cognitive Origins of the Separation of Powers 17

evidence of culture and community among primates and other animals than Hobbes imagined (Tomasello 1994). Yet on one point he was surely right: the emergence of human communities from nature—which Hobbes believed involved the addition of language to the human mind in its natural condition (Pettit 2008)—dramatically altered the possibilities for social and political organization. Extraordinary leaps in the evolution of human societies began with the appearance of our earliest talkative ancestors.

Language evolved as a mode of cultural transmission that enabled con-stant improvement—what Michael Tomasello (1999: 5) calls cumulative cultural evolution—in various areas, including social institutions. Th e rapid transformation in cognition in the short evolutionary time that modern humans have been in existence cannot be explained by biological mecha-nisms alone. Such evolution depends on distinctively human modes of cul-tural transmission of knowledge: imitation, instruction, and collaboration (Tomasello 1999: 4–5). Th is, in turn, is made possible by social cognition involving the ability to understand others as being like the self in terms of intentions and mental states. An especially critical tool is the ability to see human intentions in terms of antecedent-consequence sequences. In other words, language enables humans to see each other as agents capable of action. Th e result is a “ratchet eff ect,” as each innovation is incorporated into the next (Tomasello 1999: 5).

Early speech was probably limited to utterances intended to direct joint attention to dangers or opportunities. Th ere is nothing peculiarly human about such utterances. What is distinctively human is the capac-ity to theorize the human mind, and this probably developed with the manipulation of symbols. Cave paintings, tools, and decorative artifacts, supplemented with oral commentary and prayer, may have contributed to collective learning, social cohesion, and planning. Speech and symbolic representations were probably connected from the start. Speech fl ourished as commentary (and criticism) on the emergence of increasingly abstract World 3 phenomena.

Speech probably also fl ourished as gossip. Sociolinguists have found that gossip—a particular type of reporting on the thoughts and actions of oth-ers, which also typically involves criticism—contributes to social cohesion (Dunbar 1996). Oral societies, like all societies, show intense interest in the problems created by reports of unobserved behavior. Homer’s Odyssey revolves around the preservation of family and property during the absence of a patri-arch, a matter of no small consequence when military campaigns could take decades. An interest in justice and the law, rights, and responsibilities, is oft en


connected to attitudes toward the dead and theories about where they have gone. Talk enables improvement in social organization, but it also poses spe-cial problems that, unless addressed, can undo the ratchet eff ect and allow for backsliding.

Consider the problems created by third-party reports. To begin with, there is the issue of reliability. Language fosters accountability, but it also creates the opportunity to mislead and misrepresent—which, far from being entirely negative, is a major source of human creativity and ingenuity. For the Greeks, one of Ulysses’s great virtues was that he was never at a loss. His ingenious ruses, deployed to outwit his opponents, earned him respect among mortals and Gods alike. Such virtues are generally admired in executive leaders.

Language enhances individual and collective thought and memory, and thereby collective action and collective pooling of cognitive resources. Memories are diffi cult to retrieve and thoughts are diffi cult to hold save through language. Language also provides acoustic patterns—rhythm, rhyme, and alliteration—to improve recall. Although language makes institu-tions and institutional evolution possible (Tomasello 1999), two features of primary orality limit social and political organization. First, information is stored in biological memory, and only limited information can be accumu-lated, organized, and analyzed without the aid of external storage (Donald 1991). Second, spatial organization is limited by oral expression between face-to-face speakers. Prior to electronic media, verbal communication could only reach small audiences. Th ese problems limited the accumulation and improvement of collective knowledge and capacity to develop and criticize theories in the light of experience.

With speech fi rst, and then more clearly with writing, we separate our thoughts from ourselves, and this separation enables a critical attitude toward their content. 2 Th is separation is essential because the invention of language also leads to the “invention of excuses, of false excuses, and of false explanations produced in order to cover up something not quite right that one has done, and so on” (Popper and Eccles 1983: 452). Th e possibil-ity of deception creates “practical and adaptational reasons” to “distinguish between truth and falsehood” (Popper and Eccles 1983: 456). Th ese reasons provide the “need to develop criticism and the need to develop a critical atti-tude toward a report” and, along with it, “the need to develop an argumenta-tive language—a language in which the truth of a report can be criticized or attacked, or in which it can be defended by supplementary reports” (Popper in Popper and Eccles 1983: 456).


Speech and Collective Action Collective action problems are oft en seen as arising mainly from strategic interaction among two or more participants. Th e problem of collective action occurs, for example, when collective ends require the coordination of a num-ber of agents whose interests as individuals may diverge from their interests as a group. In the free rider problem, for example, all agents want a public good, but since contributing is costly and no individual can be excluded from the benefi ts of a public good, each would prefer to free ride on the eff orts of others. Another example is the prisoners’ dilemma, in which prisoners are unable to coordinate their strategies to mutual benefi t because each has an incentive to defect. In these models, language is oft en rigorously excluded from analysis. In noncooperative games, where enforceable bargains are not possible, communication among players is assumed to have no impact on out-comes. In practice, cooperation and collective action are diffi cult to achieve without the aid of language. Whether signing a petition, carrying a placard in a demonstration, or voting, successful communication is typically a key part of collective action. Indeed, verbalization of thought is oft en the fi rst step toward action.

Political philosopher J. G. A. Pocock off ers an illustration. When Shakespeare’s Brutus calls Caesar a tyrant, he “invokes a whole world of refer-ence structures, in which his other words, his intended act, and his verbalized state of consciousness now enter in such a way that it qualifi es them all; so that ‘Caesar,’ ‘kill,’ ‘intend,’ and even ‘I’ take on new meanings retrodictively as they enter the world that ‘tyrant’ invokes.” He then makes the memorable observation: “Because of the magical quality of speech, the worlds you invoke are likely to appear around you” (1984: 27).

Th e human capacity for collective organization is based on the use of lan-guage to know and infl uence other peoples’ minds, to shape their thoughts and actions by getting inside their heads. Language helps overcome collec-tive action problems not only by facilitating collaboration among individu-als with a mix of shared and confl icting interests, but also by creating the contexts of meaning that frame actions and create practices. Th e statement “Caesar is a tyrant,” by linking a particular individual to a generic evil, trans-forms the otherwise unthinkable act of regicide into justifi ed rebellion. But there is more to the connection between language and action. It is not just that language creates a context for action: some actions are performed through language.


Philosophers have long understood the connection between speech and action. Th ey regard speech act theory—a branch of philosophy concerned with the analysis of ordinary language—as “part of the theory of action” (Searle 1991: 17). Ordinary language analysis clarifi es the concept of action (Coval and Smith 1986: 1–16) by demonstrating how actions may be per-formed by the use of words. Speech enables individuals to represent inten-tions, report on events outside immediate experience, and create a context of shared attention and meaning. Since survival itself may hinge on the abil-ity of the members of a community to distinguish true and false intentions, confi rm the validity of reports, and direct joint attention to specifi c aspects of the environment, it is fair to say that language has immense practical and adaptive value.

Speech act theory places the human mind at the center of analysis. Utterances, gestures, scripts, and other forms of communication are only meaningful in the light of the intentions of those who produce them. As John Searle says: “When I take a noise or a mark on a piece of paper to be an instance of linguistic communication, as a message, one of the things I must assume is that the noise or mark was produced by a being or beings more or less like myself and produced with certain kinds of intentions” (1969: 16). Th e listener must grasp the speaker’s intention: “I achieve the intended eff ect on the hearer by getting him to recognize my intention to achieve that eff ect, and as soon as the hearer recognizes what it is my intention to achieve, it is in general achieved” (Searle 1969: 43).

Speech act theory presupposes the cognitive abilities that cognitive psy-chologists like Tomasello (1999) believe underpin the development of lan-guage skills: the ability to understand the intentions of another, and to see the other’s speech and communication as an eff ort to establish an intention. Any speech act involves a three-fold intention, the elements of which contain the basic structure of action generally. First, the speaker must intend an utterance to produce an eff ect (for example, to make a promise or threat, or declare the need to act collectively). Second, the speaker intends the utterance to pro-duce this eff ect by means of the recognition of the intention (that is, a prom-ise or threat or rallying cry is made when the hearer recognizes the intention to produce such an eff ect). Th ird, the speaker expects that the intention will be recognized by virtue of the hearer’s knowledge of the rules governing the statement contained in the utterance (Searle 1969: 49–50). An action entails a sequence of three elements: an intentional state, the performance or execu-tion of an act, and an eff ect or consequence on the hearer. In a speech act, the


intention is to produce an eff ect; the act is to verbalize a thought; and the consequence is the eff ect of the thought on the audience.

Speech act theory does not imply that speakers are compelled by language itself toward successful collective action, or that consensus, rather than dis-agreement, will result from communication. 3 As Searle notes, a “speaker can perform an illocutionary act in a meaningful utterance and produce perfect understanding in the hearer even though the hearer does not agree and the speaker may be totally indiff erent as to whether or not he agrees . . . I have to succeed in communicating a meaning in the performance of my speech act before the question of consensus can arise” (Searle 1991: 92). Th e question of consensus arises when we need to reach agreement on a course of action—for example, collective action—that requires solutions to problems associated with improper, duplicitous, or manipulative uses of language. Th ese problems may be as important as problems arising from strategies of defection or free riding (see Olson 1965).

Moreover, speech acts can also be used to undermine collective action. Machiavelli (1961: 99) claimed “those princes have achieved great things who made small account of good faith, and who understood by cunning to cir-cumvent the intelligence of others; and that in the end they got the better of those whose actions were dictated by loyalty and good faith.” Language can be used to tell the truth or lie, to represent as well as misrepresent, and make statements that may be appropriate in one time or place but not another. Knowing the diff erence is the essence of “Machiavellian intelligence” (Byrne and Whiten 1988)—the sort of intelligence Machiavelli expected of rulers, if not those over whom they ruled.

Solving what Hobbes (1958 [1651]: 38) called the “abuses of speech”—or what I hereaft er call “collective speech act problems”—is not simple, for there are various levels at which diffi culties can arise in completing a suc-cessful speech act. First, the intention of the speaker must be established; second, the truth or validity of the speaker’s statement must be verifi ed; and, fi nally, the appropriateness of a report must be assessed for a given con-text. 4 Unless these problems are addressed, speech acts may fail to have the eff ects desired. Speakers may fail to convey their intentions; they may fail to persuade the listener of the truthfulness, sincerity, or validity of their utterances; or they may fail to convey what an utterance means in a given context.

To sum up, communication is a fundamental building block of human cooperation. By enabling criticism, it is also the engine of the evolution of


institutions. Institutions can solve collective speech act problems by creating rules that help us decide what counts as the successful performance of a speech act in diverse settings. Institutions also enforce rules. When a single institu-tion both creates and enforces rules, it monopolizes the performances of the speech acts those rules enable. Th e enormous power invested in an institution to solve collective speech act problems can also be a source of abuse. In small scale, face-to-face communities, such abuses may be corrected by collective deliberation and informal confl ict resolution. Th is is less easily accomplished in a large-scale mass society. Th e spread of reading and writing creates new possibilities for coordination of collective action, but it also generates new collective speech act problems; as a result, it creates pressures to build perma-nent institutions on a larger scale.

Literacy and Collective Action Th e importance of literacy can be overstated, even mythologized (Olson 1994). Literacy may be seen as the key to the emancipation of those excluded from access to written text, as well as a source of enslavement. Metonymy, the belief that a word contains the properties or attributes of the thing it rep-resents, can endow language with almost magical qualities. From the point of view of social and political organization, however, literacy—reading and writing—is transformative. Since human institutions are artifacts of lan-guage, changes in the ways in which people communicate will tend to have a transformative eff ect on institutions. For example, writing increases the range and power of cultural systems (Parsons 1966: 26), and creates a sense of history as awareness, based on documentary evidence, of the past beyond memory of living persons and oral tradition (1966: 26). Written documents “stabilize a great many social relations” (1966: 27) but also off er “fl exibility and innovation” (1966: 27) because they make possible more “far-reaching and deep-going critical analysis” of cultural issues, as well as cumulative cul-tural development (1966: 27).

Neolithic humans represented things with signs, pictures, and numbers. Without syntax, the signs were essentially mnemonic devices used for tal-lies or records. Syntax emerged, and language became generative, when rules were developed for combining and recombining signs to express new mean-ings. Gradually, signs began to be used to represent words. A truly decisive moment in the development of script in the Mediterranean world was the discovery of the rebus principle, whereby symbols came to stand for words rather than objects. 5 Th is opened the door to representing more of the content


of speech in writing. Th e full range of vocal intonations could, in principle, be captured in script. Th is achievement was given a boost with the develop-ment of vowels and consonants. However, it was the Greeks, borrowing from the Phoenicians, who took the step of developing an economical alphabetic script whereby a small number of symbols could be combined in innumerable ways to reproduce all the sounds in speech. Th e stage was set for the spread of literacy that would revolutionize Greek society and shape the development of the West.

Earlier studies of the development of language may have overrated the importance of the alphabet over nonalphabetic script. 6 Th e alphabet was not an indispensable invention without which literacy could not have spread. Many scripts capture the full range of things that can be expressed in speech, and they can do so effi ciently. For the West, perhaps, the economy of the Greek alphabet fostered the fi rst massive spread of literacy, but there were no doubt other factors at work in this process. Whatever the case may be, Greece experienced an important growth of literacy. It would be overstating the case to call Greece a fully literate civilization, but literacy clearly played a big role in Greek society and some of the fi rst consequences of literacy can be observed there, as well as the fi rst conscious theorizing about the role of reading and writing.

What were the consequences for society as it was released from the con-straints of oral-based organization? In Harold Innis’s terms, space and time were transformed: “Th e time world was extended beyond the range of remembered things, and the space world beyond the range of known places” (Innis 1950: 7). Th e spread of text created opportunities to organize social and political life on a new scale and with greater permanence.

Consider the eff ects of literacy on time. With the invention of writing the accumulation of knowledge was no longer limited by biological recollection. Writing enhanced memory and permanence in social relations: “Men were given an artifi cially extended and verifi able memory of objects and events not present to sight or recollection” (Innis 1950: 7). Th e use of text to store information drastically increased the amount of information that could be preserved, classifi ed, and analyzed.

Now think about scale. Social communication did not depend solely on face-to-face interaction, and this gave rise to the possibility of organizing social interaction on a scale not previously known. Th e invention of writing was “instrumental, indeed essential, to the formation of modern bureaucratic societies” (Olson 1994: 17). Th is also enhanced military power: “Th e written record signed, sealed, and swift ly transmitted was essential to military power


and the extension of government” (Innis 1950: 7). Th e use of text made fi xed, written, formal rules—including constitutions, legal systems, and formal decision-making procedures—possible, even necessary. 7

A complex causal pathway can be traced between the invention of literacy and its eff ects. As Rosalind Th omas (1992: 129) observes, “writing turns out to be a many-edged tool, with diverse implications.” Th e spread of reading and writing compounded problems to which all speech acts are prone, multiply-ing the array of possible solutions. Recall that I stressed three problems arising from speech: (1) the intention of the speaker, (2) the truth or validity of her report, and (3) its appropriateness in a given context. We may now reconsider these issues in light of the impact of literacy.

First, how do we know the intention of the author of a written document? Th e “genius of unrehearsed conversational language lies in its expressiveness” says Eric Havelock (1986: 64). Oral communication is relatively fl uid, fl exible, mobile, and context-sensitive. Because of its give-and-take, there is no better way to understand another person’s thoughts than through verbal communi-cation. Th e same is true of emotions: “the spoken word,” said Gustave Flaubert “is like a rolling machine that draws feelings out” (1964 [1857]: 225).

Meaning is linked to context and nonverbal cues of a speaker’s intentions and many aspects of oral communication cannot be properly understood without nonlinguistic cues and contextual references. Oral communication is more likely to occur in a context of dialogue, where context can be created if it is not already shared, where words can be retracted, clarifi ed, and rephrased. Oral communication can also be made rigid, ritualistic, and decontextualized, as in the liturgy or sworn statements, but these forms of communication are oft en aided by written text.

Th ere is an old adage: Pro captu lectoris habent sua fata libelli (the fate of a book depends on the capacity of its readers). 8 Socrates refused to write for exactly this reason. 9 Writers can invite readers to meditate on the experi-ence of others, but readers “can’t talk back, argue the point, or take excep-tion” (Rifk in 2009: 267). It is the very inability of the reader to talk back that makes the interpretation of written text prone to error. Readers can reply by publishing their own criticisms, but this may just compound and intensify misunderstanding. Lost in the exchange of written words is spon-taneity, improvisation, and mobility (Havelock 1986, 70), since writing is relatively fi xed, rigid, and stable. Th is makes writing the source of more, not less, disagreement. 10

It is worth digressing to consider an alternative view: that writing, rather than orality, best enables us to understand other peoples’ minds. Martha


Nussbaum makes the persuasive argument that “literary works invite their readers to put themselves in the place of people of many diff erent kinds and to take on their experiences” (1995: 5). 11 Quoting Aristotle, she tells us that “literary art show us ‘things such as might happen’ in human life,” encourag-ing readers not only to “wonder about themselves” but also to gain sympathy and knowledge of others and to see their lives as a novelist might. Th is she calls the literary imagination (1995: 5, 95, 115). Nussbaum’s argument suggests that literary writing enhances our capacity for empathy.

Writing can be fl exible and context-sensitive, and literary expressions can be deeply textured in ways that generate empathic communication, but con-textual and nonverbal cues are not as readily available in the interpretation of texts. Th e give-and-take that enables the participants in oral communication to reach agreement is hindered by the fi xity and permanence of the written word, which places special demands on the interpreter and creates special problems for the author. An essential part of the problem is that writing rarely captures the full nuance of the spoken word, for “while writing provides a rea-sonable model for what the speaker said, it does not provide much of a model for what the speaker meant by it, or more precisely how the speaker or writer intended the utterance to be taken. It does not represent what is technically known as illocutionary force” (Olson 1994: 89).

Second, how do we know whether a written report is true or valid? 12 Along with written documents come forgeries, plagiarism, libel, false tes-taments, suppressions of texts, historical errors that become accepted fact through repeated citation, and so forth. Even when a document truthfully and sincerely expresses the views of the author, disagreement may arise over its intent. Language is subject to defi cits and surpluses of meaning. If there are many “voices” in a text, that is, many possible interpretations, the reader may choose among available meanings. But a text may also have a meaning defi cit, or “silences,” which require that the reader fi ll in the gaps.

Similarly, two separate texts may treat the same subject diff erently, lead-ing to problems of how to reconcile or choose among texts. A central prob-lem in the study of the meaning of texts is the “hermeneutic circle” (Gadamer 1990)—that is, the interpretation of a text oft en involves reference to other texts, the meaning of which can be clarifi ed only by further supporting texts, and so on, in an endless regress. Th e hermeneutic circle makes fi xing the mean-ing of a text extremely diffi cult, a problem that is not without consequence for social organization.

Th ird, in what context should a text be read? Oral communication is con-text dependent. Written transcripts of oral dialogue are oft en unintelligible


because of the constant references to this or that, accompanied by a nod or a gesture that completes the meaning of the statement. Collective action aris-ing out of oral communication puts those who must act together in the same place and time. Text, on the other hand, can be “decontextualized,” which is to say, abstracted from time and place. Successful communication through written text requires the ability to transcend the particulars of a given context and state an argument or point of view in a way that requires a minimum of background knowledge, or else provides that background—that is, contextu-alizes or re- contextualizes the text.

Part of the strength of text is its public character: every literate reader can confi rm for herself what has been written, and criticize it. On the other hand, a statement that means one thing in one context may mean something quite diff erent before another audience: “thoughts are frozen and utterances benumbed, unless the speaker stand in some true relation with his audience” (Hawthorne 2003 [1850]: 8). With the spread of text, then, comes the pos-sibility of words being taken out of their original context and applied in ways that are inappropriate in a new context. “Writing lift s speech out of its con-text and turns it into an object of thought and interpretation,” says David Olson, following Ong (Olson 1994: 38).

Since writing oft en lift s speech out of context, eff ective rule requires mea-sures to ensure that the actions of state offi cials comply with the intentions of those in command, especially when instructions are issued in written texts. Failure can be catastrophic. At a Central Committee meeting shortly aft er the 1917 revolution, Vladimir Ilich Lenin passed a note to the chief of security, Felix Dzerzhinsky, with the words: “how many vicious counter-revolutionaries are there in our prisons?” Dzerzhinsky passed the note back with the scrawl: “about 1500.” Lenin marked an “X” beside the number and returned it to his chief of security. Interpreting Lenin’s “X” as a death sentence, Dzerzhinsky left the meeting and ordered the execution of all the prisoners. Later, Lenin’s sec-retary said: “there was a misunderstanding. Vladimir Ilich never wanted the executions. Dzerzhinsky did not understand him. Vladimir Ilich usually puts a cross on memoranda to indicate that he has read and noted their contents” (Shub 1948: 157). Dzerzhinsky’s actions were cruel, but that is not my point.

Th e anecdote reinforces the argument that speech act failures can arise from a misunderstanding of an author’s intention. Lenin’s communication miscarried because Dzerzhinsky failed to check whether he understood Lenin’s intention before acting. One way such catastrophic misunderstandings can be avoided, making complex social organization and authority possible, is through institutions. Institutions can supply procedures for the production


and development of authoritative speech acts, both written and oral, and for their interpretation, when change is required, recontextualization. But how they do so depends upon rulers’ attitudes toward text.

For strictly analytical purposes, we may distinguish between attitudes that privilege the author and those that privilege the reader. In approaching the task of interpretation we may emphasize the close correspondence between the intention of the author and the meaning inherent in the text. Context and meaning are used to recall the author’s intent. Th is leads to textualism: “an approach to the formulation of the law that seeks to ground all law in a closed canon of foundational texts and refuses to accord validity to law that is formulated independently of these texts” (Weiss 1998: 38). 13 Scripturalism is a term oft en used when the texts in question are sacred. 14 For the textualist (or scripturalist), the task of institutions is to recover and guard the meaning of the author (whether deity or lawgiver). An alternative approach is to turn the table on the authority of the author, and stress the importance of arriv-ing at an agreement among the readers (Ricoeur 1970). Whereas textualism upholds the fi xed and intrinsic meaning of a text, irrespective of context, this view sees the text as a contract, in which the meaning can be negotiated and changed according to context. Umberto Eco refers to this view as contractual (Eco 1997: 270).

Disagreements about the impact of writing and literacy oft en revolve around diff erent views of the balance between contractual and textual atti-tudes over time. When Claude Le vi-Strauss argued that writing “seems to favor rather the exploitation than the enlightenment of man” (cited in Olson, 1994: 9), he may have had in mind the role of literacy in fostering the accumu-lation of power in centralized political systems by reinforcing the authority of authors and their texts. Others, such as Eric Havelock, stress the democratizing potential of the spread of literacy: the creation of a reading public potentially limits abuses of political power by making it possible to criticize authority by appealing to public laws. Both views are possible. Le vi-Strauss may have been right about the initial impact of literacy, which was monopolized by rulers, and Havelock is also largely right about the impact of literacy once it spreads from the rulers to the ruled. One cannot, however, presume that literacy nat-urally spreads at the same rate and with the same consequences everywhere. Th ere are oft en clashes between the forces working to support contractual and scriptural attitudes.

Textualism oft en goes hand-in-hand with what Jack Goody calls “restric-tive literacy,” in which systems of writing either (a) do not utilize the full technical possibilities of a writing system, (b) use literacy in restricted not in


general contexts, or (c) restrict literacy to specifi c social groups or individu-als (Goody 2000: 4). Literacy can be a powerful barrier to entry or mecha-nism to reinforce what Innis calls a “monopoly of knowledge” (1951: 4). But it also gives rise to the demand for that most fundamental of all rights: the right to read and write. Without this right, constitutionalism is restricted to the literate elite.

Th e spread of literacy always creates a cleavage between those who can read and write and those who cannot, and this cleavage oft en exacerbates preexisting social and economic inequalities. Restrictive literacy, however, implies active eff orts to deny others access to the benefi ts of reading and writ-ing. Literacy can be used as an instrument of social exclusion, as when written text is employed to coordinate the actions of an in group while treating an out group as nonagents who are incapable of deliberation, collective decision making, or enforcement of rules.

From the perspective of those excluded from literacy, few of its benefi ts are apparent. Written documents are not seen as fi xed and public, but opaque and malleable instruments of oppression in the hands of rulers who monopolize their interpretation. Th e law is not a source of accountability, but an oppres-sive instrument invoked in accordance with the interests of those with access to the legal system. Th e insistence of writing may reinforce rights and obliga-tions that depart from custom and tradition, allowing rulers to secure access to property and resources that have been protected by unspoken, immemo-rial rules. Writing empowers those who learn to read and write, but it can be used to intensify exclusion for those who do not. Access to education is oft en a demand of oppressed groups victimized by exclusion from the power con-ferred by reading and writing.

Print and Collective Action Th e invention of the printing press is probably the single most important event in altering the balance between orality and literacy in the Western world aft er the invention of the alphabet. What mattered was the massive increase in the proportion of people in a given society who could read and write. Like writing, the invention of the printing press placed texts in the hands of a growing mul-titude of readers. It is possible, as authors such as Marshall McLuhan (1962) have suggested, that the printing press altered human cognition. A more pro-saic view would be that the proliferation of books and newspapers created a demand for literacy skills (Olson 1994: 46). “It was the printing press that made it possible for a multitude of readers actually to look at the same text at


the same time and thereby see for themselves—to be a virtual witness to the correctness of an interpretation” (Olson 1994, 58).

Th e eff ects of the spread of literacy were complex, oft en contradictory, and not always benign (Eisenstein 1983, 1979). In sixteenth-century Europe, the press intensifi ed religious confl ict between ecclesiastical hierarchs who wished to uphold the authority of the scriptures and reformers who encour-aged translation and publication of the Bible so that readers could interpret it on their own. Religious confl ict may in turn have fostered the demand for printed matter. Th e religious wars between Reformation Protestants and the Roman Catholic Church was almost certainly intensifi ed by the spread of the printing press. (Confl icts within Protestantism and Catholicism also revolved around diff erent attitudes toward text: for example, puritan scriptur-alism created confl icts within the Church of England, while the conciliarist tradition within the Catholic Church challenged the papal authority in the interpretation of scripture). Th e critical point to keep in mind is that writing inspires criticism and commentary, and the more people involved, the more intense and diffi cult the discussion. What happened in sixteenth-century Europe was that print transformed religious disagreements into massive social confl ict.

Print also played a role in the long historical process through which early par-liaments became legislatures. Medieval parliaments were parochial assemblies of notables, typically convened for the purposes of raising taxes, which could at best petition the sovereign, off er advice, and ratify monarchical decisions. In the countries that became constitutional democracies, these parliaments were transformed into literate, text-producing bodies responsible for generating an internally coherent system of statutory law. Print, by introducing more people into social activities regulated by written texts, contributed to broader processes of diff erentiation of power. Societies organized hierarchically according to social strata could no longer retain their organic unity as more people began to read and write, and hence think more independently. To conserve and expand their power in mass societies, states used deliberative institutions to generate law as a positive means of coordinating more social activities.

Niklas Luhmann (1990: 15–16) argues that the “conceptual universe of old Europe lost its plausibility” in the eighteeth century as socio-cultural evolution “replaced the stratifi cation of society as the form of primary sys-tem diff erentiation with re-diff erentiation in terms of functional systems.” Stripped of Parsonian overtones, this argument is essentially right. Th e printing press contributed to this evolutionary process by fi rst encouraging a concentration of power in the hands of monarchs seeking to create more


powerful agrarian bureaucracies. As was the case with early systems of writ-ing, rulers saw print as a means to reinforce their power. Th us, the rise of the printing press was initially associated with the consolidation of centralized rule. But the printing press also contributed to a reaction against centralized rule. Th e spread of reading and writing throughout society created a new kind of public sphere—a universe of readers and writers all working off the same printed material. Rather than diminishing state power, however, the harnessing of text to coordinate collective action produced major new forms of state power.

State power was enhanced by the accumulation and improvement of reserves of knowledge within the state, the staffi ng of large and complex bureaucracies, and the multiplication of divisions of labor inside and out-side the state apparatus. Th ese power resources depended on a key feature of written text: the conveyance of instructions in the absence of the author. A common complaint of absolutist rulers was that their instructions were rarely followed. As an eighteenth-century Russian empress lamented: “With what sorrow, we, with our love for our subjects, must see that many laws, enacted for the happiness and well-being of the state, are not implemented due to the widespread internal enemies, who prefer their own illegal profi t to their oath, duty and honor” (quoted in Downing 1992: 11). Th e aspiration of monarchs was to build centralized bureaucracies in which orders at the top would be eff ectuated throughout the state apparatus.

Th e key to the successful use of these new instruments of power was to organize large numbers of people who could follow written instructions. Th is is the core speech act challenge of the modern administrative state. Following written instructions is not like obeying verbal commands. Whereas verbal commands are typically made in a face-to-face setting, in which meaning can be established using all the fl exible features of oral communication, there will always be room for interpretation of what a written instruction means when the author is absent. But the advantage of the new form of state power created by the spread of reading and writing was that it increased the overall capacity for collective action at the disposal of rulers. Th e spread of printed material enhanced the capacity of states to coordinate their activities, which limited power in some respects but signifi cantly enhanced it in others. Rousseau pro-vided the best metaphor for coordination problems when he imagined a herd of hunters pursuing a stag. If a passing hare distracted one of the hunters, the stag might escape. In order to capture the big game, each hunter would have to focus on the same collective end.


Print made it easier to coordinate collective action through the medium of law. Law is the coordination device par excellence — it puts people on the same page. As print spread, the law came increasingly to be seen as a positive mechanism for achieving collective ends. Law is more than a negative force—a “brooding omnipresence in the sky,” as Oliver Wendell Holmes put it. It is a positive instrument for getting things done. Th is is not simply because law can be used to constructive ends or to achieve collective goals. Like any text, law inspires criticism and commentary, and this gives it an internal dynamic. Th e more readers are drawn into a discussion of what the law says, the more their lives come to be organized according to the law. Th e separation of pow-ers is about how this discussion is organized within the state itself.

Social Cognition and the Separation of Powers

“One of the most generalizable eff ects of writing is separation,” suggests Walter J. Ong. “It divides and distances, and it divides and distances in all sorts of ways” (Ong 1986: 36). Ong did not have the separation of powers in mind, but I use this quote to open the chapter because the role of literacy in producing the separation of powers has been overlooked. Th e revolution of literacy, by making it possible to use text to achieve collective action on a larger scale and with greater permanency, gave rise for the need for publicly sanctioned ways to write and read the key political texts that would be used to achieve collective ends. Th e appearance of legislatures and judiciaries as specialized agencies of the state, separated from the executive and capable of evolving through processes of learning, adaptation, and innovation, occurred in tandem with changes in social cognition produced by literacy. In subse-quent chapters, this process is examined historically. Here, the three branches are simply delineated.

Before linking literacy and the separation of powers, two caveats are in order. Th e fi rst is that I am not proposing literacy as a monocausal explana-tion for the separation of powers. As Rosalind Th omas observes, literacy is used increasingly “as a suggested factor in historical change” to the point that “almost every feature of the modern Western world has been linked closely to literacy” (Th omas 1992: 19). She insists that the eff ects of literacy are “heav-ily dependent on whatever society is using it” (1992: 19), on the customs and beliefs of that society, and on its social and political organization. Th us, we may distinguish the search for general eff ects of literacy, which assumes that


literacy has a set of standard or predictable eff ects on society, and the search for the variable eff ects of literacy as it interacts with existing social and politi-cal forces (Th omas 1992: 24, 76).

Along the same lines, Olson argues that it may be “misleading to think of literacy in terms of consequences” and more useful to think in terms of “what it permits people to do—to achieve their goals or to bring new goals into view” (Olson 1985: 15). Literacy is potentially transformative, but not mechanistically causal, in the development of the separation of powers. It may be associated with constitutional democracy and simultaneously be used for antidemocratic purposes, such as to exclude those who are presumed to lack the attributes of civilization. What literacy permits people to do may vary according to circumstances. I argue that the separation of powers is a vari-able eff ect of literacy (and vice versa). Th e single most important explanation for the emergence of the separation of powers, and the specifi c form that it takes in a given setting, is how it is theorized by those who design and operate within its institutions.

Th e second caveat is that I am not dichotomizing literacy and orality, much less arguing in favor of one over the other, or claiming one is prior to the other. In most contexts—whether in courtrooms or legislatures, in military operations or election campaigns—orality and literacy coexist. Th e problems that arise in balancing the two are no less acute in contemporary societies undergoing rapid changes in communication technology than in ancient civi-lizations that fi rst grasped the power of written text as a means of collective organization and action.

With these caveats noted, the core of my argument is that an orderly con-stitutional state requires public agents to plan, execute, and assume respon-sibility for the consequences of deliberate actions within the framework of a monopoly of coercion. It can be safely assumed that rulers never voluntarily surrender power, but they may prefer limited power within a strong state to unlimited power within a weak one. Th roughout history, rulers have strug-gled to centralize power and avoid the complexities of coordinating with other power centers. For those who derive their authority from scripture, the grave dangers inherent in allowing other agencies to interpret and enforce their rules may be too great. Yet the monopolization of the use of text to coor-dinate collective action is most likely to occur under restrictive literacy, and is less likely to succeed as literacy spreads and more of social life is coordinated by written text.

Rulers who recognize the forces unleashed by the spread of literacy may decide to tie their own hands—that is, surrender part of their monopoly of


power—in the expectation of maximizing the overall power of the state by so doing. Th ey see opportunities to create authority by bringing the words and deeds of both ruler and ruled into line with legal texts. Th is is accom-plished by separating the elements of state action into three monopolies, each of which represents a condition for successful speech acts. Th e fi rst monopoly deals with public deliberation over matters of general interest and culminates in writing legal text—the legislative power. Th e second exer-cises coercive power in conformity with the texts produced and interpreted by legislative and judicial powers. Th e third issues statements concerning whether actions by offi cials correspond to legal rules. Th e separation of powers enables agents of the state and the society to stabilize the rules for the production and interpretations of legal texts, in terms of their truth and validity, and thereby coordinate their actions to achieve collective ends.

Th e joint operation of the various agencies of the state ensures, at least in theory, that laws are general in nature and judicial decisions are impartial applications to particular cases. It is this coordination that makes it possible to think of the state—or any political unit, including a party, corporation, or university—as an autonomous actor, that is, as a collective agent with a capac-ity for meaningful action. In Kant’s words: “It is by the co-operation of these three Powers—the Legislative, the Executive, and the Judicial—that the State realizes its Autonomy” (Kant 1887: 173).

Habermas builds on Kant’s insight in his monumental eff ort to rethink the separation of powers in his 1996 book, Between Facts and Norms . “Th e classical separation of powers is explained,” according to Habermas, “by diff er-entiating governmental functions: whereas the legislature justifi es and passes special programs and the judiciary resolves action confl icts on this statutory basis, the administration is responsible for implementing legal programs that are not self-executing but need to be carried out” (1996a: 186). Th e functional separation of powers is grounded in contrasting logics of argumentation, which are “refl ected in the communicative forms of justifi cation and appli-cation discourses, which must be legally institutionalized in diff erent ways” (Habermas 1996a, 172, 187). “From this argumentation-theoretic perspective, the division of powers and responsibilities among authorities that respectively make, apply, and implement laws follows from the distribution of the possi-bilities for access to diff erent sorts of reasons and to the corresponding forms of communication that determine how these reasons are dealt with” (Habermas 1996a, 192; italics in original).

To pursue Habermas’s argument, we may consider what sorts of reasons justify the exercise of executive power, legislative lawmaking, and judicial


application of laws, and on what grounds might they be criticized. If we wish to understand the diff erent “logics of argumentation” embodied in each branch of government, we must consider the types of criticism that are deemed appropriate to each. By its very nature, executive power is the least tolerant of criticism and the most easily insulated from accountability: left to its own devices, executives prefer to be limited only by the laws and direc-tives it imposes upon itself in order to secure the compliance of its agents. Legislative assemblies, on the other hand, are designed so that criticism is an inherent part of their operation; the opportunities for criticism and debate are the only guarantee of the exercise of public reason in deliberative assem-blies. Th e judiciary has long been seen as a model for the exercise of public reason. 15 However, there are two very powerful limitations on public reason in courts: criticism is restricted to the impartial application of the law, and specialized knowledge is demanded by debate within the institution itself.

All three branches of government are deliberative, but in diff erent ways; each has a monopoly over a specifi c set of powers—powers to perform speech acts—and within a defi ned area of jurisdiction. In the following vignettes, we examine the specifi c monopoly of power exercised by each branch of govern-ment in order to better understand the collective payoff for their separation.

Th e Executive Monopoly over Legal Coercion

Th e executive is the branch of government with a monopoly over decisions con-cerning the legal use of physical coercion within a defi ned territory; it embodies the need for speech acts leading to bureaucratic outcomes under pressures of time and threats to political order . Th e word “executive” derives from the Latin “ex,” which means “out,” and “sequi,” which means “to follow.” 16 Th us, to execute is “to follow out into eff ect.” As an adjective, it means to be capable of perfor-mance, to be active in execution, or energetic. Machiavelli’s use of the term “virt ù” captures the vital qualities admired in the executive leader: “Courage, fortitude, audacity, skill and civic spirit” (Crick 1970: 58). Virt ù also implies the ability to resort to fraud and deception, if fortuna—chance, contigency, accident—so requires (Machiavelli 1961: 91). Th e painting of Napoleon Bonaparte Crossing the St. Bernard Pass by Jacques Louis David captures the essential elements of executive power: confi dent leadership in a dark and threatening context, in which decisions must be made under pressures of time. 17 Th e abundance of phallic symbols—boot, hat, reins, saddle, sabre, cannon—reinforces the association between executive power and qualities associated with masculinity (see Figure 2.1).


Executive power is the quintessence of political power, and government is inconceivable without it. Th e exercise of power is certainly not restricted to activities involving reading and writing. Power is a pervasive feature of all political relationships. Th e executive branch of government—which is, in essence, a hierarchy of men-in-arms—retains a connection to earlier oral forms of social and political organization: it is tribal authority writ large. Executive power has always been with us, and it shows a remarkable consis-tency in its methods and operation throughout the ages because it appeals to perennial needs, anxieties, and impulses: the necessities of security, the fear of physical annihilation, and the struggle for dominance.

Th e executive branch of government is the indispensable foundation of any political system, for it monopolizes the coercive force of the state, at once securing and disposing lives publicly. Th is is well understood both by scholars of international relations and comparative politics. “An organization incapable

figure 2.1 Bonaparte Crossing the St. Bernard Pass by Jacques Louis David. Source: David, Jacques Louis, Napoleon (1769–1821) crossing the Saint Bernard Pass, one of fi ve versions, 1801/2. Oil on canvas, 246 x 321 cm Inv. 2342. Musee National du Chateau, Versailles, France ©Erich Lessing.


of organized violence,” says international relations theorist Alexander Wendt, “would be hard pressed to qualify as a state” (Wendt 1999: 204). “Th e state properly conceived,” says comparative political sociologist Th eda Skocpol (1979: 29), is “a set of administrative, policing, and military organizations headed, and more or less well coordinated by, an executive authority.” It is possible to imag-ine an executive without a legislature and judiciary, but not the reverse. 18

Liberal theories of constitutional government oft en lack a Machiavellian appreciation for the virtues of executive leadership, limiting the executive to the administration of legislation. In Two Treatises of Government, Locke speaks of the need for a “power always in being which should see to the execu-tion of the laws” (1977 [1690]: 191). In this view, the executive power is neces-sitated by the need for government to function around the clock.

Th e neo-Kantian German legal theorist Hans Kelsen went so far as to reject the idea that there are three powers. In this view, “Th e fundamental distinction between the two roles of government could be summarized in the dichotomy legis latio versus legis executio ” (Kelsen 1945: 256):

A dichotomy is in reality the basis for the usual trichotomy. Th e legisla-tive function is opposed to both the executive and the judicial functions, which latter are obviously more closely related to each other than to the fi rst. Legislation ( legis latio of Roman law) is the creation of laws ( leges ). If we speak of “execution,” we must ask what is executed. Th ere is no other answer but the statement that it is the general norms, the constitu-tion and the laws created by the legislative power, which are executed. Execution of laws, however, is also the function of so-called judicial power. Th is power is not distinguishable from the so-called “executive” power by the fact that only the organs of the latter “execute” norms. In this respect, the function of both is really the same. (Kelsen 1945: 255)

Yet this is untenable because it ignores the fact that the executive oft en operates in a world of legal ambiguity in which actions must be taken that cannot be legally foreseen or programmed. It is not true that “no amount of discretion can divest an act of the executive power from its character of a law-executing act” (Kelsen 1945: 256). Th e executive may act within the law, in the sense that it does not violate existing laws, and it may be said that, from a legal point of view, all executive action is administration. Nevertheless, what makes executive action diff erent in kind from judicial action is that whereas judges impartially enforce the law, executive leaders must act without clear legal guidance much of the time.


Not only must the executive be a body in perpetual motion, but it must also be a source of rapid response in times of emergency. Th e broadest executive pow-ers are achieved in emergency situations. In emergency situations, moments in time of maximum uncertainty where even the laws and the survival of the politi-cal system are in doubt, the executive achieves its maximum power. Even in nor-mal times, the executive is expected by the public to provide decisive action in an uncertain world, whether by managing the conduct of deterrence and diplo-macy, or upholding domestic peace. Th e need for such decisions and actions implies a fast-changing and oft en threatening environment in which the motives and intentions of others are frequently unclear. One decision or course of action may be quickly overtaken by events. Th e use of text in this context is qualitatively diff erent from its use in legislative and judicial arenas.

Executive power, unchecked, is inherently prone to violate the rule of law, yet in a constitutional state it must operate within a preestablished legal framework. Th e executive must be able to choose the right course of action when the political system faces contingencies that cannot be anticipated in advance by constitutional or statutory rules. Th is gives rise to the permanent danger that the executive will see itself, as in Carl Schmitt’s conception, as the guarantor and source of the constitution.

Th e executive has a bias toward orality. It operates in a world of speech and action, leaving a thin paper trail compared with the other branches. Executive leaders oft en express this preference for orality: “Th e power that has always started the great religions and political avalanches in history rolling has been the magic of the spoken word, and that alone” said Adolf Hitler (quoted in Shirer 1961: 19). Th e reasons given by executives to justify action (the need for decisive action to preserve order, to respond to imminent threats) are as old as the challenges of centralizing power in any social system. Executive power antedates literacy, and retains a vital connection to orality; the essence of executive discretion is to operate outside the constraints of written docu-ments. 19 Executives live in a world of friends and enemies, embedded in the constitutional state. Executive leaders occupy the apex of a hierarchy; they must command and be obeyed; they thrive on clarity within the chain of command to combat uncertainty in the environment; they abhor ambiguity and division within the ranks, but love it in the enemy. It is a decision-making branch—existentially so, for it can make life and death determinations.

Executive authority requires hierarchy in order to ensure that orders are fully understood and implemented. Since written text tells us what was said but not necessarily how the speaker intended it, the chain of command must be capable of transmitting both what was said and what was intended. Executive


power is also singular: “As a general rule, every executive function . . . should be the appointed duty of some given individual. It should be apparent to all the world who did everything, and through whose fault anything was left undone. Responsibility is null when nobody knows who is responsible. Nor, even when real, can it be divided without being weakened” (Mill 1861 [1968]: 332).

Th e executive is the branch of government least open to internal criticism, and it can provide the best reasons—above all, national security—for insulating itself against external critical scrutiny and publicity; hence, it is also the branch of government most prone to act illegally or on the margins of the law. Internal criticism is oft en diffi cult to separate from insubordination or disobedience; external criticism is oft en handicapped by the need to not undermine the fulfi ll-ment of the tasks of executive offi ce. Internal criticism of the exercise of execu-tive power is sanctioned only under exceptional circumstances, such as when the chain of command has been broken or confl icting orders have been given.

Th e nature of executive power is illustrated by an allegory. Crimson Tide is a Hollywood movie in the tradition of Mutiny on the Bounty , set in the post–Cold War era on board a nuclear submarine. Th e premise of the movie is that rebels have captured control over part of Russia’s nuclear arsenal and are threat-ening to initiate an attack on the United States with intercontinental ballistic missiles. A nuclear submarine is dispatched to the region to prepare preemp-tive or retaliatory strikes. Th e submarine receives an authenticated emergency action message from the Pentagon to launch its nuclear weapons, but is attacked by a Russian submarine before it can fi re. While under attack, a second message is received, but is interrupted during transmission. Having evaded the Russian sub, the dilemma for the captain is whether to launch a sortie of missiles or wait to receive the complete transmission of the more recent message.

All the essential elements of executive power are present: life and death decisions made under the pressure of time, in a threatening environment in which intentions are unclear and written rules provide insuffi cient guid-ance. Th e captain insists that he has written instructions that must be obeyed immediately, lest the United States lose a fi rst strike advantage; his lieutenant, the executive offi cer (XO), refuses to concur, arguing that the new message might countermand the fi rst. Th e captain responds, “we have rules that are not open to interpretation, personal intuition, gut feelings, hairs on the back of your neck or little devils or angels sitting on your shoulder . . . I have made the decision. I am captain of this boat. So shut the fuck up!” (Henrick 1995: 150–151). Th e XO holds his ground, however, insisting that, “under operating procedures governing the release of nuclear weapons, we can only launch our missiles if both you and I agree. Th is is not a formality, sir. Th is is expressly


why your command must be repeated. It requires my assent. And I do not give it!” In the melee that follows, the XO arrests the captain and takes over command of the sub. As the chain of command breaks down, the submarine becomes a microcosm of a larger, more anarchic social order.

Crimson Tide allegorically captures the essence of executive power—dis-cretionary decision making under pressures of time, and in the face of life-or-death threats—yet it also illustrates that there is no pure or unrestrained exercise of executive power in a constitutional order because the rule of law implies that all discretion is necessarily limited. Th e captain made an error in acting as if his power was absolute. Absolute power, power unconstrained by rules, is intolerable in a constitutional order—even in an emergency. Executive action may require a minimum of deliberation about the meaning of an order, and the margins for criticism of a superior offi cer may be tightly circumscribed, but as long as executive action is governed by rules it cannot be centralized absolutely for all rules imply the possibility of dissent from a command. Th e XO is able to challenge the captain’s command because he can appeal to established rules and procedures, passed down from the past (mili-tary regulations), and by the expectation that these rules and procedures can and will be upheld in the future (by a military court). Elements of the separa-tion of powers can appear even within the chain of command in the heat of battle—provided that there are rules governing the use of force.

Th e Legislative Monopoly over Legislation

Th e legislature is the branch of government with a monopoly over the production of legal texts with binding force within a given territory; it embodies the need for deliberation and the exercise of public reason in the making of rules of general interest. Th e term legislation comes from two Latin words, “legis” (genitive of lex, or law) and “lation-em” meaning “bringing.” Th us, legislation means “bringing of a law,” the action of making or giving laws; the enactment of laws, or lawgiving. Although parliaments are feudal institutions, and assem-blies can be found in tribal organizations, the modern idea of a legislature is of seventeenth-century origin. Th e etymology of the word “parliament” connotes speech. Hobbes refers to legislative power in Leviathan , meaning a body invested with the power to make laws. Th e Latin term “leg” can also be linked to “legere,” meaning to read, establishing the association between literacy and legislatures. Th e legislature translates words and deeds into text. Iconic representations of legislative assemblies, like the “Scene at the Signing of the Constitution of the United States” by Howard Chandler Christy, mark


a sharp contrast to the image of Bonaparte: a homogeneous but plural group is assembled to talk and write in a protected environment surrounded by ornaments of literacy, status, and education. 20

Th e public expects legislators (meaning “legis,” or law and “lator,” or agents) to make laws. Legislatures are deliberative and text-producing bodies. It was Locke who fi rst defi ned the legislature in terms of a monopoly of lawmaking. It is not the job of legislators to make administrative decisions or to enforce the laws, only to enact them. Locke suggested that if the same people could both make laws and execute them, they could suit the law to their private advantage or exempt themselves from obedience to laws they made (Locke 1977 [1690]: 190). Legislatures, unlike the executives or judiciaries, should have almost no administrative power; they should neither command troops, nor sentence people to prison. Th e task of making laws must be separated from executing them or enforcing them because legislators are expected to be concerned with general rules and norms, not particular cases, and with the broad outlines of policy rather than day-to-day decisions or applications of the law. As Rousseau put it, there is “no general will with reference to a par-ticular object” (1967: 30). Th us, were legislators given administrative power, they would be tempted not only to act in ways detrimental to the rule of law

figure 2.2 Scene at the Signing of the Constitution of the United States by Howard Chandler Christy. Credit: Architect of the Capitol.


but to compete with the executive rather than subordinate the executive to its commands.

Legislatures are pluralistic bodies in which criticism plays a vital, imma-nent role. Whereas the executive is oft en personifi ed in a singular individ-ual, and judiciaries are collegial bodies, legislatures are designed to refl ect a plurality of opinions in the body politic, to represent its diversity. Diversity of opinion ensures that any legislative proposal will be scrutinized critically from a number of angles, thereby discarding at least those proposals that are manifestly contrary to the public good. A proposal that can be successfully defended against a variety of criticisms may better approximate the general good—or at least win the assent of the largest number of citizens—than one that has not been exposed to the test of publicity. At the very least, processes of lawmaking open to public scrutiny and criticism should check the worst abuses of legislative power.

Champions of legislatures have oft en noted their role in the exercise of public reason, and the capacity of legislative deliberation to transform narrow interests into more general ones. John Stuart Mill argued that the more the citizen participated in public aff airs, the more he would feel “called upon, while so engaged, to weigh interests not his own; to be guided, in case of con-fl icting claims, by another rule than his private partialities; to apply, at every turn, principles and maxims which have for their reason of existence the com-mon good . . . He is made to feel himself one with the public, and whatever is for their benefi t to be for his benefi t” (Mill 1861 [1968]: 217). Th e association between parliaments and public reason was reinforced by the printing press, which created a reading public for the legislative work of parliaments. In the process, legislation became rationalized, to use Max Weber’s term, in the sense of decontextualized. Th at is, increasingly, legislation came to be seen as ori-ented toward general interests shared by the entire—or, to make a crucial dis-tinction, at least the literate, probably male, and property-holding—public.

Assemblies have always been councilors to—and therefore overseers of—ex-ecutive power. Mill argued that “the proper offi ce of a representative assembly is to watch and control the government: to throw the light of publicity on its acts; to compel a full exposition and justifi cation of all of them which any one consid-ers questionable; to censor them if found condemnable” (Mill 1861 [1968]: 240). Although the executive declares emergency or war, the legislature may approve or sanction such measures subsequently, thereby ensuring “retrospective account-ability” (Sutherland 2000: 208). Assemblies check the corruption that is inevi-table wherever executive power is concentrated. Corruption in the Council was a


major concern of the Greeks. Th e everyday exercise of power off ered many oppor-tunities for infl uence pedaling and graft . Regular meetings of the assembly were seen as a necessary means of stemming such corruption.

By substituting parliamentary debate for factional violence, legislatures rationalize politics. Notwithstanding his preference for a strong executive, Weber was eloquent in affi rming the value of the “seemingly unspectacular right of inquiry” by parliament. By exposing the executive to scrutiny, parliaments checked bureaucratic power. Parliaments sublimate political disagreements, so that “leaders no longer wield the sword but resort to the quite prosaic sound of ink drops: written and spoken words” (Weber 1978: 1419). Weber worried about the Caesarist principle inherent in mass democratization. Plebiscitary leaders who appeal directly to the masses and win their trust and faith were a potential source of abusive power, as in the case of Louis Napoleon Bonaparte. Parliamentary bodies are the best antidotes to Bonapartism because they enable the use of criticism to hold the executive accountable for its actions.

Whereas executive power thrives in an oral milieu, legislatures are both speaking and writing bodies. As speaking bodies, they criticize the executive, overseeing its actions, and publicizing its defi ciencies. But the legislature is, above all, devoted to the production of texts: statutes and laws. Th e supreme example is the constituent assembly, a collective body charged only with the making of a constitution. Although the need for public speech has created assemblies since time immemorial, only writing creates legislatures. Th at is, the fact that laws are texts—specifi cally, decontextualized written texts that coordinate collective actions—requires a certain sort of deliberation.

Laws codify reasons for actions (Raz 1980). For legal reasons to carry moral force—the power to persuade as well as alter the strategic calculus of compliance—they must be defensible in the court of public opinion. Legislative approval does not guarantee this, but it helps. Th e more that legislators monopolize lawmaking, and the more they are excluded from involvement in the execution or application of law, the greater the chances that laws will be based on reasons that are general, sober, and nonarbitrary.

Th e Judicial Monopoly over Interpretation and Application of Law

Th e judiciary is the branch of government with a monopoly over the interpretation of legal texts and their application to particular cases within a defi ned territory; it embodies the need for neutral and impartial judgments concerning the laws. Th e term “judge” comes from jus, meaning right or law, and dicus, meaning speaker.


A judge is someone who speaks the law. Th e judiciary is the opposite of the legislature: rather than translate speech and deeds into text, it translates text into speech and deeds. It is linked etymologically to judicious, which implies sound judgment, discretion, wisdom, and good sense. It is also associated with divinity or astrology, in the sense of “judicial astrology,” which refers to divi-nation of the causes of things and the resolution of crises, or—in a Christian context—the idea of God or Christ as a supreme judge of human moral con-duct (as in the Book of Judges). Th ere are oft en close and complex connections between judicial institutions and religious texts. Priests and astrologers staff ed some of the fi rst examples we have of organized judiciaries. Th e more religion dominates life, the greater the scope for judicial power because of the impor-tance attached to living in accordance with the word of God. In theocracies, like Iran under the ayatollahs, judicial institutions are oft en used to fi lter access to offi ce and to constrain the exercise of power by other branches.

Gustave Dor é’ s iconic engraving of “Moses Breaking the Tables of the Law” connects text (the Tables) and nature (lightning and clouds) to estab-lish a natural hierarchy. Moses punishes prostrate and repentant sinners, to the evident satisfaction of his righteous followers. It is an image of plural-ism without unity, unlike Christy’s signing of the constitution. And, whereas David’s painting of Napoleon anticipates action, inviting the viewer on a jour-ney with the leader, the image of Moses conveys dire consequences and serves as a warning to wayward individuals.

Whereas the executive implements those decisions and actions that require a timely response to unforeseen contingencies, and legislative deliber-ation is concerned with establishing general rules and principles, the judiciary is concerned with the application of general rules and principles to specifi c cases. As Harold J. Laski put it, the judiciary’s “whole purpose is impartial-ity” (1925: 300). Th e impartial—that is, nonarbitrary—application of laws requires a minimum of ambiguity about context and meaning. Elaborate ritu-als and laboriously scripted proceedings ensure that legal procedures are as unambiguous and as free from misunderstandings as possible. In court cases, the rules and procedures are spelled out in advance. Th ere are, in principle at least, no secrets, no hidden codes, no evidence concealed. Th e rituals contain a message, which is: “this is public talk, don’t trust anyone here” (Tolmach Lakoff 1990: 100). Th e language of the courts is nonspontaneous, and fi xed, and off ers little room for improvisation. Courts help solve problems arising from ambiguous language in law and the constitution. “In ordinary life, we frequently confront ambiguous language, and we know that some interpreta-tions are better than others. So, too, ambiguous constitutional language can


be interpreted well or poorly; much depends on the context and the purposes of the relevant language. And perhaps judges are in an especially good posi-tion to interpret ambiguous positions, precisely because they are insulated from political forces” (Sunstein 1997: 62).

From Locke, to Montesquieu, to Weber, theorizing about the separation of powers has emphasized the need for judges to be impartial, and the terrible consequences that follow when judges abuse their power. In Weber’s (1978) memorable phrase, the role of judges is to be “automatons of paragraphs.” Th e judiciary is the branch of government most tightly constrained by the writ-ten word. Th e careful thought that is required by impartiality is aided by the activity of writing. United States Supreme Court Justice John Paul Stevens commented on the importance of writing in judicial thinking when he said “you oft en don’t understand a case until you’ve tried to write it out” (quoted in Rosen 2007).

figure 2.3 Moses Breaking the Tables of the Law by Gustave Dor é. Credit: Digitized from a public domain source: http://resolve.library.ubc.ca/cgi-bin/catsearch?bid=1839855.

http://resolve.library.ubc.ca/cgi-bin/catsearch?bid=1839855

http://resolve.library.ubc.ca/cgi-bin/catsearch?bid=1839855


When judges are not impartial, two worries stand out: fi rst, that the judge will be a legislator, or second, a servant of the executive. Th e “most fundamen-tal limitation juridical argumentation meets has to do with the fact that the judge is not a legislator, that he applies the law, that is, he incorporates into his arguments the law in eff ect” (Ricoeur 2000: 123). Th e attitude toward inter-pretation inherent in juridical argument tends to be textualist: the task of end-ing courtroom proceedings with an unequivocal and fi nal determination or judgment leaves little room for discrepancy between the immanent meaning of a text and the author’s intent. Most legal experts and most democrats are uncomfortable with judicial activism—the making of law through a process of juridical interpretation of existing law—yet interpretation is unavoidable. Reading is part of judging. It is an essential function of the judge. Th e judge reads the law to the accused or to litigants, so as to establish the responsibility of the parties to the state, or to end a dispute between private parties. Th is is called pronouncing a “sentence.”

A key reason for separating executive and judicial power is that the former resists criticism while the latter depends upon it. Criticism plays a vital role in court deliberations. In fact, legal debate, in which arguments are presented and criticized, has been taken to be the very paradigm of rational argumenta-tion and critical thinking (Toulmin 1958). Yet in courts criticism is limited to what is sanctioned by the law. Th e defendant in a trial can question the application of the law, but not the law itself. Th is creates a profound tension: citizens must obey the law even when they disagree with it; speech in this arena is carefully circumscribed, though the judiciary guarantees the criticism and argumentation that is the lifeblood of a democratic system.

Th e trial of Socrates is the locus classicus of this problem. Philosophers have long debated the apparent contradiction between the Crito , where Socrates upholds the citizen’s duty to obey the law regardless of whether he agrees with it, and Th e Apology , where he insists he will disobey the law rather than agree not to philosophize (Brickhouse and Smith 1988). In a conver-sation with Socrates in prison prior to his execution, Crito urges his friend to fl ee Athens. Socrates refuses to defy Athenian law, asking Crito: “Do you imagine that a city can continue to exist and not be turned upside down, if the legal judgments which are pronounced in it have no force but are nullifi ed and destroyed by private persons?” (Plato 1954: 90). Yet it seems that Socrates did precisely that when he said during his trial: “I am not going to alter my conduct, not even if I have to die a hundred deaths” (1954: 62). He is will-ing to die, however, rather than defy the law. On the contrary, he is uphold-ing it with his life. He could have fl ed. Yet by choosing death he recognizes


that criticism is constitutive of the law. In this interpretation, Socrates cannot imagine a just legal system in which critical scrutiny of views is prohibited; such a legal system is not worthy of the name. As James Tully (2002: 218–219) says, the “freedom of constantly questioning in dialogues what we think we already know about democracy, for which [Socrates] was ready to die, is the very activity which improves it.”

Th e existence of an independent and impartial judiciary provides an essential organization guarantee for the protection of rights and freedoms, but that is not all. By ensuring protection for basic rights and freedoms, it also guarantees that laws and institutions generally may be subject to criticism, and criticism is the engine of institutional evolution. Finally, courts produce transcripts of the collective memory of the past—including the injustices and their redress—from which progress toward a more just order can be regis-tered, gauged, and advanced. As Friedrich A. Hayek (1960: 157) put it: the law “embodies knowledge, or the results of past experience.”

Th e Separation of Powers and Collective Action

Hayek observed that the “collaboration of individuals under common rules rests on a sort of division of knowledge” (1960: 157). In politics and the law, that division of knowledge is embodied in the three branches of government. By specifying and formally diff erentiating public roles and offi ces, the separa-tion of powers creates an arrangement of institutions that, in turn, shapes the interactions among the elements of the political system. In a properly articu-lated constitutional order, the actions of one branch can only be understood in relation to the others. Th e constitutional separation of powers provides the grammar that gives order and coherence to the texts that structure the politi-cal system. A constitutional system can no more dispense with the separation of powers than we can talk without grammar.

Th ere is more than a superfi cial analogy between the rules of grammar and the separation of powers. Th e separation of powers is best understood not in mechanistic terms, as if the diff erent branches of government were impersonal physical forces. Each branch monopolizes a very diff erent kind of power, which operates according to a specifi c mix of the oral and written, and together they generate the ongoing as well as the new properties of the political system. Th e purpose of the separation of powers is not merely to limit the abuse of power by government offi cials and to perform the author-ity of the state, but to enhance the overall power of the state by resolving


collective speech act problems associated with the use of text to coordinate interaction. And, just as grammar makes it possible to generate new meaning through language, so the separation of these powers creates new possibilities for collective action.

Th e separation of powers sublimates coercive politics into interactions fought out in the prosaic confrontation of words. It does so in multiple ways, but one way is underappreciated: by creating institutions that defi ne what kind of talk is permissible and meaningful in diff erent arenas; what kind of texts can be produced and, ideally, with what eff ects; and what procedures can or must be followed when disagreements arise between speakers. Above all, the separa-tion of powers makes it possible to speak meaningfully of the rule of law in a political system. Th e rule of law implies that all government agencies comply with the law—including the executive. In the absence of an independent judi-ciary, for example, there is unlikely to be agreement on the application of the law in particular cases. In the absence of agreement on what counts as lawful or unlawful acts, disputes are more likely to be settled by force.

In thinking about the separation of powers, it is critical to understand a basic asymmetry of power. Th ere is only one branch of government that is potentially self-suffi cient, albeit precariously: the executive branch can oper-ate without a legislature or judiciary. Neither legislature nor judiciary are even thinkable in the absence of some source of coercive power. As Hobbes dem-onstrated in Leviathan , the existence of executive power, of a sovereign, is a sine qua non of any type of order based on consent. I part with any political theory that sets order upon rules that are not backed by force. Unless the problem of order has been solved, there is little room for legislation and adju-dication of law. Th e executive monopoly of force is the fi rst monopoly that must be established. Only thereaft er does the possibility of establishing a leg-islative and judicial monopoly arise. Legislation and adjudication are possible only once basic social relations have been stabilized.

Th e executive is the branch of government most diffi cult to domesticate. Th e state of latent violence in the international system repeatedly provides the executive with opportunities to call attention to threats that require executive action. Yet Hobbes recognized that the problem of order was also a problem of communication. Without order, communicative action is prone to speech act failures. Institutions, once established, can minimize speech act failures. As a result, there are patterns in politics that are monotonously recurrent, and these concern the problem of order, while other patterns are evolutionary, and exhibit the possibility of adaptation and change in response to learning. Th ere is a dismal repetitiveness to the problems of executive power: all executives


perform the same essential tasks, or the state does not survive. Whereas order enables legislature and judiciaries to adapt and innovate, the collapse of political order makes the evolution of public roles and offi ces impossible. Yet within an orderly system, wide variation and change is possible. Th is possibil-ity makes the separation of powers attractive to rulers and ruled.

Th e smooth operation of a separation of powers-based system is founded, at one level, on the way the various parts work together and, at another level, on the benefi ts for collective action—especially the coordination of action around written texts, enabled by the three monopolies of power. Th is coor-dination is achieved, in part, by balancing orality and literacy. Th e orality of executive action (in the form of specifi c verbal commands issued by rulers) is balanced against the literacy of legislatures (in the form of written abstract and general rules binding on all) and the judiciary (sentences applying these rules to particular cases). When orality and literacy are imbalanced, state power is at once centralized and truncated. Th e more the executive achieves power at the expense of the legislature and courts, for example, the more it creates a political world in which abstract general rules give way before the specifi c commands. Since it cannot be assumed that those who issue specifi c command obey abstract, general rules, the coordination of collective action involving rulers and their followers comes to depend not on law but on per-sonal relationships that bypass deliberative institutions. Th us, the separation of powers involves a tradeoff from the perspective of both ruler and ruled: it creates possibilities for collective action that massively enhances the political power of rulers, but it also creates deliberative institutions that the ruled can use to restrain abusive uses of power by rulers.

Constitutions and Rights In lectures given over a century ago, Emile Durkheim (1957: 57) observed that “On the one hand we establish that the State goes on developing more and more: on the other, that the rights of the individual, held to be actively opposed to those of the State, have a parallel development.” Th is apparent contradiction is resolved as soon as we recognize not only that the protec-tion of rights depends on a certain kind of state—a constitutional one—but also that constitutional states are made more powerful, in the sense that they can achieve greater scale and durability, by virtue of the spread of rights. Th e rise of the modern state is a story of the enhanced power and capacity that is enabled by the transformation of particular rights and duties, rooted in habit and custom, into gradually more abstract and


general rights (which, in turn, demands solving problems of application and interpretation in particular cases).

Implicit in Durkheim’s insight was the realization that there is more to rights than the will of individuals, or even agreement among them. Rights must be known and given moral and juridical force: “there is something in words that is real, natural and living, something that can be endowed with a sacred force thanks to which, once pronounced, they should have the power to bind and compel those who pronounce them” (1957: 186). Rights must be uttered in proper contexts, renewed in ceremonial rituals, and written in ven-erated documents. Words are a source of rights and obligations—they trans-form our wills and agreements into solemn and formal promises that must be performed. And, of course, to have this eff ect, there must be a juridical and moral apparatus that sanctions and upholds our rights.

For the state to be a reliable guarantor of rights and duties, it must be able to adjudicate the meaning of words. Rights are almost always contentious. It takes a complicated machinery of government to be able to establish the inten-tions, meaning, and context of application that are necessary to uphold and sustain rights—and to overcome collective speech act failures. Th ere must be a body authorized to have the fi nal say with respect to the meaning of statu-tory rights, another to sanction and uphold rights, and these two institutions must be powerful enough to ensure that all public decisions are consistent with the generally accepted rights and obligations of the citizen. Only then are rights truly secure. Th e separation of powers is the organizational guar-antee of the protection of rights. But the crucial point is not that the separa-tion of powers protects rights, but that state power is generated through the process by which rights become abstract, generalized claims with moral and juridical force. As Durkheim understood, the more that rights develop, the more powerful the state becomes.

Conclusion Th e social-cognitive theory of the separation of powers begins with speech act theory as part of a larger theory of action. Speech acts are necessary for most, if not all, forms of collective action. Collective action oft en requires that individu-als and groups overcome speech act failures, which oft en arise with respect to:

i. Th e intention of the author. ii. Th e truth or validity of an utterance. iii. Th e appropriateness of an utterance in a given context.


Th ese problems may occur under diff erent conditions—orality, literacy, print, electronic media—which, in turn, have implications for the scale, per-manence, and power of political organizations.

Attitudes toward the interpretation of text—ranging from textual to con-tractual and everything in between—tend to predispose rulers to either central-ize power or accept its distribution among diff erent branches of government.

i. A textualist or, especially, a scriptural attitude leads to centralization and monopolization of power.

ii. A contractual attitude fosters a more inclusive and democratic understand-ing of the separation of powers.

Th e separation of powers denotes a set of diff erentiated power monopolies:

i. Th e legislative monopoly over the production of laws. ii. Th e judicial monopoly over application and interpretation of laws with

respect to particular cases. iii. Th e executive monopoly of commands involving the legal use of force. Th e

use of force is legal because the executive submits to the rule of law estab-lished by the legislature and judiciary. Legal in this context means that leg-islatures monopolize the production of laws and the judiciary monopolizes their application to particular cases.

Th e three monopolies do not stand in isolation; the existence of each is predicated upon an overarching understanding of public action involving particular decisions governed by general rules and subject to criticism. Every action by a public offi cial must be executed in a manner consistent with a valid general rule and backed, where necessary, by a legal judgment. Th is, not checks and balances, is the essence of the separation of powers. For the sake of simplicity and clarity, we can state the argument thus:

Th e legislature makes general rules. Th e executive makes specifi c administrative decisions. Th e judiciary adjudicates whether decisions are consistent general rules.

In short, every decision must be a member of the set of general rules. All decisions of public offi cials must be preceded by deliberation and followed by criticism.


Th e full development of this understanding of action emerged over a long period of time as a result of continuous experimentation and theoretical dis-cussion. Although I have presented the theory in schematic and static terms, the next three chapters of this book examine the conjecture that the origins of the constitutional separation of powers can be traced to the communities that made the shift from orality to literacy, from speech in face-to-face settlements to script in larger-scale political organizations. If this is true, we should expect to fi nd constitutional features in the earliest civilizations that adopted writ-ing, including a push to standardize, centralize, and monopolize knowledge, as well as countervailing pressures to criticize, adapt, and change institutions as more people learn to read and write.

We should also see constitutional theorizing fl ourish where social and cognitive conditions (including the types of communication technologies used, and whether these technologies can be democratized) foster a more contractual understanding of the interpretation of texts. Th e atrophy of con-stitutionalism should occur where scripturalism predominates. Mass literacy and the development of new technologies of communication, such as print and electronic media, should have similar eff ects.

Th e social-cognitive theory leads us to expect that with every advance in media of communications there should be corresponding pressures to central-ize and monopolize the new forms of knowledge that are created in the pro-cess, as well as to disrupt these monopolies as literacy spreads. Th e separation of powers evolves out of these struggles as part of an attempt to reconcile mul-tiple imperatives. On the one hand, it balances orality and literacy. It provides venues for talk and deliberation leading to the production of new texts, as well as for the more structured discussion and interpretation of given texts. On the other hand, it balances action and refl ection. It provides mechanisms for deci-sion making leading to action while ensuring that the actions are squared with both the intentions of rules and collective decisions enshrined in law. Finally, it balances the general and the particular. Writing generates tensions between general rules and specifi c actions that are easily resolved in oral contexts, but become more intractable with written communication. Th e process of submit-ting individual acts by public offi cials to the discipline of ex ante deliberation and ex post assessment is encouraged by the spread of written law. Th e next three chapters provide strong evidence to support these claims, drawn largely from the record of how the separation of powers has been theorized through the ages in relation to literacy, the press, and electronic media.

3

Literacy and the Invention of Constitutions

Whoever has sinned against me, him I will blot out of my book.

exodus, 32.33.

The separation of powers, enshrined in constitutions around the world, is one of the most infl uential ideas in the canons of political thought, and one with ancient roots. Th e history of the idea reveals links between con-stitutional theory and changes in social cognition associated with the spread of reading and writing. Writing may be a source of centralized executive rule, but the use of text also facilitates criticism, commentary, theory; it creates the possibility of institutional innovation, adaptation, and purposive evolu-tionary change. In this process, the ideas of both rulers and the ruled may be treated as objects of criticism to be judged according to rational and indepen-dent evidentiary standards. Indeed, the very notion that rulers should off er reasons for action and defend them in public against criticism, a key insight of deliberative democracy, has its origin in the spread of literacy.

Th e cognitive theory suggests three critical turning points in the evolu-tion of constitutional thought, each of which corresponds to a transforma-tion in human consciousness associated with reading and writing. Th e fi rst was the emergence of societies with more or less fully literate elites in the Greco-Roman era. Th e second was the Gutenberg Revolution, the rise of legislatures, and the creation of a public sphere of opinion. Th e third cor-responds to the emergence of mass politics and the electronic era. In each of these periods, changes in social organization and communication resulted in new ways of thinking about constitutions.

As we examine these turning points, it is worth emphasizing the con-nection between language, the use of texts, and the organization of politi-cal systems. Th e separation of powers is the culmination of a succession of

Literacy and the Invention of Constitutions 53

separations: through verbalization, we detach our ideas from ourselves. By writing down our thoughts and comparing them systematically, we separate ourselves as subjects from our objects of inquiry, and turn ourselves (and oth-ers) into objects of conscious manipulation. Th rough conscious reasoning we distinguish articles of faith from beliefs we are prepared to submit to evidence. When this exercise is applied to politics, it may lead to radical changes, such as the separation of church and state. Finally, when we organize our societies around verbal and written agreements governing how we act in concert, we need bodies to make and apply rules, and this encourages the division of the tasks of government into separate branches.

To understand the link between language, texts, and social organization, we will focus on how theorists grappled with problems of rule—specifi cally, how to ensure both rulers and ruled act within the framework of the law, and how changes in social communication shaped their answers to perennial problems of authority, validity, and context of application. We begin with the earliest political systems that might conceivably be considered legal and constitutional, from the Egyptian and Greco-Roman period to medieval Europe. Th eorists of Spanish colonialism in Latin America are also emphasized because they are important for understanding contemporary Latin American cases analyzed in subsequent chapters. Rather than a linear, deterministic, irreversible trajectory of change from lower to higher levels of development—as in modernization theory—we observe a much more dialectical process of continual adaptation and innovation of ideas. In this process, older theories are subject to critical reinterpretation and revision in light of new circumstances, and are given new meaning according to the context and the intentions of the authors. Th e ten-sion between the contractual ethos of Greco-Roman constitutionalism and the scripturalism of religious dogmatism is a central part of this dialectic.

Th e central conjecture of this chapter can be stated simply: the idea of the separation of powers arises wherever text emerges as a mechanism to coordinate collective action. Th rough the analysis of certain texts—the Torah, Aristotle’s Politics , the histories of Rome by Livy and Polybius, and the record of debates over Indians in the New World—it is possible to detect how reading and writ-ing generated problems arising from uncertainty over the intention, truth, and appropriateness of utterances. Th ese problems were initially resolved through centralized power, which immediately became an object of criticism.

Th e separation of powers is much older than the modern Gutenberg era. In contrast to the view that the separation of powers is an Enlightenment idea, invented by Locke and Montesquieu and put into practice fi rst in the United States and postrevolutionary France, this chapter provides evidence


that antecedents the separation of powers originated with the spread of read-ing and writing in the ancient world. Greek and Hebrew societies, in par-ticular, were what Talcott Parsons called “seed-beds,” or “agents of cultural innovation” (Parsons 1966: 95–108). Th e Hebrews became “pre-eminently a people of the Book,” (Parsons 1966: 102), while constitutional thought fl our-ished in Greece—including the fi rst, albeit inchoate, theories of the separa-tion of powers. Rome built on Greek models to create a legal order capable of sustained internal development and elaboration.

Writing and Centralized Rule in Antiquity

“Writing,” said Fernand Braudel, “is basically a technology, a way of commit-ting things to memory and communicating them, enabling people to send orders and carry out administration at a distance. Empires and organized societies extending over space are the children of writing, which appeared everywhere at the same time as these political units, and by a similar pro-cess” (Braudel 2001: 76). Th e earliest systems of writing reinforced central-ized executive power (Innis 1951: 7). Ancient slave societies off er excellent examples of concentrated executive power—power oft en compared with con-temporary totalitarian regimes. Although they lacked the capacity of modern states, ancient civilizations achieved preeminence in their time because they were able to organize collective eff ort on historically unprecedented scales and with greater duration.

Writing aids power by solving collective action problems associated with rule. Th e hieroglyphics of Egypt, cuneiform tablets of Sumer, the quipus of Peru, glyphs of the Maya, and other early or proto-writing systems solved col-lective action problems as diverse as organizing agricultural life around nat-ural cycles, overcoming succession struggles, and providing defense against invaders. Calendars, records, and codes off ered advantages to rulers. For one thing, they enhanced permanent order.

However, by creating material products of human thought that could be scrutinized and criticized, writing also worked to undermine authority, espe-cially where the spread of reading and writing extended beyond the inner circle of those in power. Wherever decisions are assessed in relation to gen-eral principles, it is possible to characterize some choices as unlawful. Th e ancient world provides numerous examples of comprehensive codes of law, with impartial agencies created to enforce them, and with them the spread of legal criticism.


Egypt off ers one of the earliest examples of centralized rule that developed toward the prototype of an impartial judiciary. Writing in Egypt was limited to logographic forms of representation that required extensive study, and was monopolized by the rulers. Th e invention of a calendar to reconcile the solar year with lunar months in 4000 BC became the source of authority for the worshippers of Ra—the Sun god—along the Nile where periodic fl ooding threatened collective survival (Innis 1950, 12; Wittfogel 1957 [1981]: 29). A ruling group was formed that derived power from knowledge of nature and the capacity to coordinate collective action. Th e Egyptian polity was orga-nized around the management of water. Th e creation of an agricultural econ-omy along the Nile required irrigation and protection of human settlements against overfl ow.

Hieroglyphics were used to record events and the names of notable leaders on stone, and a cursive hieratic script was routinely used in more informal com-munications on papyrus. Th e invention of writing, political centralization, and the establishment of a capital city at Memphis occurred in the Early Dynastic period (circa 3100–2600 BC) (Freeman 1996: 19). Time keeping and calen-dar making were key literary functions performed by state offi cials (Wittfogel 1957 [1981]: 29). In Karl Wittfogel’s words: “Wrapped in a cloak of magic and astrology and hedged with profound secrecy,” the priestly specialists able to undertake mathematical and astronomical operations became bulwarks of the “superior power of the hydraulic leaders” (Wittfogel 1957 [1981]: 30).

Th e Egyptians placed great value on the written word, both as monument for posterity, as record of the past, and as a way of coordinating the admin-istrative activities necessary to sustain a vast, rich, and enduring civilization. Indeed, “the whole of Egyptian life was controlled by a bureaucracy whose activities were carried forward by documentation. In Egypt, therefore, where so much depended on the written word, not only was literacy highly valued, it was also exploited daily in the transactions of business at many levels of soci-ety; it was by no means restricted to the ranks of the court and to the superior offi cers of state” ( James 1984: 150–151).

When the Egyptians began to write on papyrus (around 2600 BC), a sys-tem of written laws developed—as well as an “army of scribes” to interpret and enforce them (Innis 1950: 16). 1 Along with writing came the development of clearly defi ned political offi ces sanctioned to monopolize certain powers associated with the production, preservation, and interpretation of legal doc-uments. Th e most important of these offi ces was that of the Vizir, or tjaty, which can be described as the head of the civil service, and the chief admin-istrator of justice ( James 1984: 70–71). Th is offi ce can be traced to the Old


Kingdom, and over time its functions and powers expanded. By the Middle Kingdom, especially the second intermediate period, the offi ce had achieved its greatest authority vis- à -vis the king. Th ey developed a system of case law and upheld the principle of impartiality in the application of the law. 2

Th e development of legal codes had little binding eff ect on the ruler; on the contrary, laws that only the ruling group could understand naturally tended to create monopolies of knowledge, which were used to reinforce the ruler’s power. Criticism was limited to offi cialdom, “voiced behind closed doors or in publications accessible only to a limited number of educated per-sons, who are usually members of the ruling group” (Wittfogel 1957 [1981]: 134). Nevertheless, criticism was an ineluctable eff ect of written rules. Th e spread of legal criticism contributed to the diff erentiation of state functions, marking the silhouette of a constitutional order in Ancient Egypt.

Recent historical research suggests that the court system in Egypt may have permitted more criticism of offi cials than previously thought. Some record of case law remains, and provides evidence to suggest that the legal system enjoyed a degree of respect and trust and was used to resolve disputes, even by common people. Written stories provide fi ctional accounts of courts ferreting out lies in the process of administering justice. Criminal cases were dealt with summarily, and the accused would not necessarily know the legal procedures or logics to which he or she was submitted. Th e repeated invoca-tion of principles of impartiality and the right of access to justice and the pun-ishment should match the crime, suggests that these were taken seriously to some extent. Th e legal system encouraged limited criticism of lower offi cials (as a useful check on potential abuses of power by agents) but not the ruler (criticism of the Pharaoh would be “criminal blasphemy,” as one study shows [ James 1984: 92]).

Th e same is true of the Mesopotamian Empires. Less hierarchical than Egypt, the urban societies that emerged around the Tigris and Euphrates developed legal codes, the most famous of which was the Code of Hammurabi, which Talcott Parsons describes as “a survey of legal topics on which, because uncertainties existed, authoritative statements were needed” (1966: 65–66). Such codes delineated statuses and coordinated the interactions of free citi-zens (city-state members) in their contractual obligations and relations with state offi cials.

Prototypical deliberative and judicial institutions emerged, such as assem-blies of elders that could advise the king and act as judges (Parsons 1966: 66–67). Because writing was restricted to the elite, the Egyptian regime had a limited capacity to integrate secondary groups and organizations (villages,


guilds, other religions) into the overall power structure (Wittfogel 1957 [1981]: 122). Th is is demonstrated by evidence of periodic rebellions by sub-altern groups.

Moses may have led one such rebellion, and his eff orts to transform the Hebrews into a People of the Book represented a major turning point in the development of the idea of law. Although the Torah chronicled the emanci-pation of slaves from bondage, and represented a thorough repudiation of Egyptian despotism, Mosaic Law also represented a new sort of centralized power based on the internalization of a sacred text.

Th e Torah, so critical to understanding the origins of constitutionalism, off ers an allegory of the creation of order as a literary project in two senses. First, it documents the conscious construction of the “prototypical ‘people of the book’” (Graham 1987: 51) by means of the deliberate creation of a legal framework regulating all aspects of moral and social life. Th is was not merely the imposition of a more systematic legal order on a preexisting society, but the use of text to lay the basis for an entirely new order—an order that would be both contractual, a “covenant with God,” and scriptural, in that the legal order would be based on unquestioning acceptance of a holy book.

Second, the Torah may be read as an allegory about the evolution of the human mind from orality to literacy. As Th omas Mann put it, Moses com-posed “God’s whole moral law, in permanently compact and compendious form, binding to all time” (Mann 1999: 268). 3 He was resented by the Hebrews as a harsh taskmaster, yet his exacting rigidity derived from written rules to which magical properties were attributed by an oral people who have never before thought of law as “universal speech” (Mann 1999: 277). Th e Torah is the quintessential revealed, authoritative, scriptural book. “Th e motif of a celestial book or tablet of divine wisdom goes back to ancient Mesopotamia and Egypt and recurs in almost all subsequent Near Eastern traditions.” (Graham 1987: 50).

Writing, like any new technology, inspires both awe and reverence. As such, it was immediately recognized as a source of authority. Th e act of writ-ing is mysterious for those who have not acquired literacy, and a source of tremendous power for those who possess literacy relative to those who do not. But writing also introduces problems: What texts have legitimate authority? What should be read and accepted, what should be suppressed and rejected? Th e answer lay in Moses’s relationship with God: 4 Moses, as lawgiver, “merely executed what God commanded,” said Machiavelli (1961: 50).

But Moses also questioned God and even interceded on behalf of the Hebrews when God threatened on more than one occasion to wipe them all


out. Nevertheless, Mosaic Law derived its authority from God. As Bernard G. Weiss put it: “Th e human law giver is, despite his exalted position within the monotheistic scheme of things, only the mediator of the divine law to man-kind. Th e words heard upon his lips become enshrined in sacred texts.” (Weiss 1998: 1). Th is position tends to produce centralization: “Th e world’s sole cre-ator is necessarily by right its sole ultimate ruler, legislator, and judge. All law worthy of the name must therefore originate with him” (Weiss 1998: 1).

Mosaic Law was diff erent from Egyptian law: whereas Egyptian law was based on knowledge monopolized by the rulers, Mosaic Law was public and universally applicable. Aaron Wildavsky has argued that “Moses inaugurates a system of checks by institutionalizing forms of leadership and by delegat-ing authority to numerous others, who are themselves further subdivided and limited in power” (1984: 167). Yet Mosaic Law represented both a check on authority and a new impulse toward a unifi ed code of laws of unprecedented rigor. Moses’s authority rested, in part, on his ability to read and write, and thus to fashion a people from a multitude of slaves. From the perspective of an oral community, such faculties must have seemed magical, as any new tech-nology seems magical to those who do not possess knowledge of its operation. Th e sacred character of Mosaic Law rested on the “magical” transformation that happens to an utterance when it is translated from speech into writing (Pocock 1984).

Precisely because Mosaic Law was more public and universal, it exposed a greater separation between everyday life and the strictures of general rules. Absolute compliance with Mosaic Law, like any written legal code, was impossible. Consider the commandment “thou shalt not kill.” As an abso-lute injunction against killing, the rule makes no sense. Moses, according to the Torah itself, killed thousands of people, including the innocent off spring of his enemies, seemingly in violation of his own Decalogue. It is, therefore, necessary to look at every specifi c decision to kill and determine whether it is consistent with the general rule. Such decisions require an understanding of both the intention of the words “thou shalt not kill” as well as the specifi c context in which a decision is made whether to kill someone. Th e alternative is a brutal theocracy.

Th e lost illocutionary force may be recovered by a powerful push for con-formity. Monotheism, the insistence on devotion to a single God and hence a single code of rules, forms part of this push. Successive eff orts to impose uniformity required purges and massacres, years of wandering in the desert, and other trials and tribulations, yet the tension between oral custom and literate law was the source of much of the vitality of criticism in the Hebrew


tradition. Th e clash between Moses and his followers over the golden calf is a decisive moment of the constitution of a people of the book. Out of Egypt, no rival Gods could defend the Hebrews against the wrath of Moses.

As we will see later, the punishment of the worshippers of the golden calf was used by defenders of the Spanish conquest of the New World to justify atrocities against the Indians in which innocent lives were sacrifi ced for a civi-lizing mission (Las Casas 1974: 198). Th e Hebrews’ stark choice was between permissiveness of life under orality—with its specifi c iconographies, beliefs, and loyalties—and the demanding parsimony of the written rules that, while exacting, can never achieve complete dominion in human aff airs and there-fore unleashes a violent dialectical struggle between text and society.

A society organized around text, confronted with the ambiguity inher-ent in all linguistic communication, especially written script, must enforce conformity according to privileged interpretations of meaning or welcome a process of reaching agreement among readers. Political systems in which rule is justifi ed by religion tend to adopt the fi rst strategy, and the attitude toward text that is promoted among offi cials is scriptural. Where rule is based on the consent of reading subjects, however, the attitude toward text tends to be more contractual. Th e inherent meaning of a text becomes less important than the (oft en oral) processes through which meaning is construed.

Th e Hebrews had a scriptural attitude toward text. Oral and written tra-ditions coexisted within Mosaic Law, 5 but it is fair to say that the Hebrews found authority in scripture. In this sense, the Hebrews may be contrasted with the Greeks. When Parsons called Israel and Greece “seedbed” societies 6 he meant not only that they were “agents of cultural innovation” but also that they had infl uence on “a wide range of societies which were not their direct evolutionary sequels” (1966: 96). Th eir impact on other societies was, how-ever, quite distinct. Whereas the Hebrews found authority in scripture, the Greeks found it in dialogue.

Greece as a “Th eoretic Civilization” With the invention of the Greek alphabet, reading and writing spread rap-idly throughout the Hellenic world. It began to be used publicly in Greek city states around the middle of the seventh century BC and by the fourth century, written contracts came to be widely trusted (Th omas 1992: 89). Th e spread of writing may have been fostered by the alphabet, and perhaps it con-tributed as well to the emergence of democracy; equally importantly, it fos-tered theory and criticism. It has been argued that the system of syllables,


vowels, and consonants developed by the Greeks made the representation of the full range of oral speech possible, and with remarkable economy.

Script became a better model of speech (Olson 1994: 86). Th e economy and fl exibility of the alphabet may have led to the spread of literacy. As Olson states, the alphabet is “simple, learnable and hence readily democratized” (1994: 47). Goody and Watt (1968: 55) make a similar claim: “the ease of alphabetic writing was probably an important consideration in the develop-ment of political democracy in Greece; in the fi ft h century a majority of the free citizens could apparently read the laws, and take an active part in elec-tions and legislation.” Th is view may overstate “the written basis of Athenian democracy and the relevance of literacy for an explanation of political devel-opment” (Andersen 1989: 83). Innis, an admirer of Greece, stressed the vital-ity of its oral culture.

Still, the eff ects of literacy were revolutionary: Greece became the cradle of what Merlin Donald calls theoretic civilization. Th e more people read and wrote, the more ideas could be entered into the public record. “Th e great discovery here was that by entering ideas, even incomplete ideas, into the public record, they could later be improved and refi ned” (Donald 1991, 342). Consider the reforms undertaken by Solon. Circa 600 BC Athens acquired the fi rst written code of laws. In an ambiance of impending civil war, Solon was appointed in 594 BC as a magistrate with the power to reform the state of Athens and its laws. He would become the secular Moses of the Hellenic world. In addition to far-reaching measures on behalf of the poor, Solon cre-ated a formal legal code “inscribed for all to see on wooden tablets set in rotat-ing frame which were recorded as still intact three hundred years later. Here Solon’s conviction that right and wrong should be defi ned by men rather than gods is given full play” (Freeman 1996: 129).

Aft er Solon, citizenship would come to imply literacy 7 because laws became, to use Olson’s phrase, “scrutinizable text” (1994: 53). Th e rulers “no longer had a monopoly of knowledge of the law and the convenience of remembering the clauses it suited them to remember” (Hansen 1991: 29). By making written texts publicly available for scrutiny and criticism, the Greeks lay the foundation for the rule of law and shift ed the balance from authority to evidence in the interpretation of rules. Aft er Solon’s reforms, contracts pro-liferated, as did public records and written laws. Written text coexisted with oral communication in complex and variegated patterns.

Th omas rightly insists “the eff ect of written law depends rather heavily on the legal and political system it is part of, as well as contemporary attitudes toward writing” (1992: 68). Long aft er literacy had deeply penetrated their


culture, the Greeks retained a healthy (and democratic) skepticism about writ-ing and a sense of the value of their vibrant, argumentative culture (Th omas 1992). Echoing Innis, Th omas argues that the Greeks upheld oral customary law and that written documents were oft en not preserved or systematically archived until long aft er Solon’s reforms. But writing and reading also altered the existing legal and political system. It is possible that reading, writing, and interpretation fostered a new attitude toward language, and that criticism and explicit theorizing were encouraged (Olson 1994: 53).

Th omas (1992: 71) acknowledges that there “seems to have been an idea that writing down a law would record it in a manner that was publicly verifi -able; even if most citizens could not read them, they could be read out.” Th is enabled a more critical attitude toward law. In fact, the Greeks—above all Aristotle, and his teacher Plato—virtually invented systematic theory on the subject of law and politics.

Plato had little patience with Homer and the poets, whom he regarded as unreliable sources of truth or virtue, and hence unable to improve the gov-ernment of a city or give good laws. Th e poetic and heroic visions of the oral tradition could not be a basis for enduring justice. Above all, he objected to the role of poets in education and politics. Th e revolution in literacy provided a more solid foundation for political order. 8 As Socrates’s chronicler, Plato did not share his teacher’s famous aversion to writing. He wrote of a republic that would be based on deliberation, a logocentric republic.

Plato’s pupil, Aristotle, set his sights not on imagined republics, but instead undertook the fi rst systematic study of comparative politics. He dis-covered that the parts of a constitution could be assembled so that delibera-tion, execution, and justice might be reconciled into a single coherent and powerful whole. But he also understood that “the law in itself has no power to secure obedience save the power of custom” (1962: 83), thereby making it necessary for written text to be compatible with established practices, not vice versa.

Aristotle considered writing of prime importance. He was, aft er all, “the fi rst human being recorded as having a library” (Freeman 1996: 147). At the same time, he recognized that “to set down in writing the whole organization of the state down to the last detail would be quite impossible; the general principle must be stated in writing, the action taken depends upon the par-ticular case” (Aristotle 1962: 82). He therefore understood the importance of speech. Orality is a major feature of Aristotle’s conception of man as a politi-cal animal. Nature, he says, for the purpose of making man a political animal “endowed him alone among the animals with the power of reasoned speech”


(1962: 28). Both written text and orality would play a role in Aristotle’s con-ception of politics. Th e trick was to fi nd a balance.

Aristotle took the subject of constitutions, by which he meant “the way of organizing those living in the state” (1962: 102), as his object of study: 9 by comparing constitutions he was able to abstract from the details of rule in particular times and places in order to “see what in them is good and useful and what is not” (1962: 55) more generally. Indeed, Aristotle ana-lyzed 158 Greek city-state constitutions, of which only Athens’ survived (on papyrus). Apart from Carthage, Aristotle did not look at non-Hellenic constitutions.

Because he lived in a literate world and could compare constitutions, Aristotle was the fi rst to make a portentous discovery: “Th ere are three ele-ments in all constitutions, and every serious lawgiver must look for the best set-up for each of these three: if these are well done, the constitutions will be well made, and the diff erences in constitutions correspond to the diff erent set-up in each case. Th e three elements are: First the deliberative, discussion about everything of national importance, second, the executive, the whole complex of offi cials and authorities, their number and nature, the limits of their powers, and the methods by which they are selected, and third, the judicial system” (1962: 179). Th is is the fi rst explicit awareness of a process of functional division of state powers, and hence the fi rst conscious step toward a theory of the separation of powers.

Just because these elements existed and could be distinguished analyti-cally did not mean that they were separated in practice. Greek assemblies acknowledged few limits to the power of the demos, and they repeatedly asserted their right to do whatever they wanted. Th us, in Greek democracy the assembly was oft en an executive (and, indeed, judicial) power, a collective decision-making body that acted, deliberated, and judged as it saw fi t, both regarding general rules and particular cases. Th e tension between the will of the assembly and the demands of written law gave rise to a series of political problems that Aristotle set out to solve.

Aristotle was interested in how you create a law-abiding polity in which people could be full citizens. He noticed the tension or tradeoff between democracy (the rule of all, including the poor) and constitutionalism (which he called polity , or “constitutional government by the many”). For Aristotle, democracy was a corrupted form of constitutional government in which “the people have power even over the laws ” (1962: 215; italics mine).

Aristotle recognized the possibility that in a democracy the poor may disregard constitutional guarantees and zealously attack the rich. Aristotle


also realized that aristocracy—the rule of the virtuous—was unlikely to be a permanent state of aff airs, and could easily degenerate into the rule of a self-seeking minority, which he called oligarchy. He was eager to achieve the gains made possible by literate institutions, and he feared the rule of dema-gogues who would use the popular assemblies to advance their own interests in violation of the constitution. Demagogues would

bring every question before the popular assembly, whose decrees can supersede the written laws. Th is greatly enhances their personal power because, while the people rule over all, they rule over the people’s opinion, since the majority follow their lead. Moreover, when people object to the exercise of authority by offi cials on the ground that the authority belongs to the people, the demagogue seizes this as an excuse for abolishing the offi ce. So if you were to say that such a democracy was not a constitution at all, you would in my opinion be perfectly right. Where laws do not rule, there is no constitution. (Aristotle 1962: 160–161; italics in original).

In this passage, Aristotle: (1) upholds the principle of a hierarchy of laws, that the people assembled should not run roughshod over existing legisla-tion; (2) condemns the dissolution of offi ce on the grounds of disagreement with the incumbents; and (3) rejects personal power based on the infl uence of the leader over a majority. How could a wise constitution maker avoid the problem of thoughtless majorities following demagogues? How could the integrity of a system of written laws be reconciled with the vitality of oral per-suasion and participation? For Aristotle, the solution lay in fi nding the right mix or balance within a constitution.

As a realist and a moderate, Aristotle advocated “well-blended” consti-tutions that combined elements of democracy and oligarchy, hoping that each would balance the negative tendencies of the other. Th us, if a constitu-tion were essentially oligarchic, Aristotle would recommend democratizing reforms, while in a democratic constitution he would advocate special protec-tions for the propertied classes. Such balancing would be most conducive to permanence, prevent the abuse of power by rich or poor, and thereby avoid the breakdown of orderly government.

A mixed constitution balances customary sociability and the require-ments of literate, codifi ed legal rules. Aristotle did not suggest that the virtues of a balanced constitution could be achieved by separating the branches of government—that idea, almost implicit in his thought, would lay dormant until Montesquieu. In Aristotle’s time, the boundaries between


the council (or boule) and the assembly (or ekklesia) remained inchoate (Powell 1988).

Th e notion of the separation of powers existed only in embryonic form. 10 Nevertheless, Greek constitutions and theories of constitutions could be exported because they were written down. Th ey could inspire thought over time and across space, and no polity was more infl uenced by the Greeks than republican Rome.

Rome’s Legacy: Th e Law Th e great legacy of Rome was its laws. Written text enables adaptation and the deliberate improvement of ideas. Greek ideas spread to Rome because they could be copied and adapted. Th e Romans were fascinated with Greek laws and institutions, and at times made deliberate eff orts to import and adapt Greek constitutional ideas. Th e spread of reading and writing beyond the patrician class to plebian members of Roman society contributed to repub-lican Rome’s legal development. Writing assumed even greater importance with the fall of the republic and the rise of the Roman Empire. Indeed, as Harold Innis (1950) suggests, writing may have undermined the republic and enhanced the power of the emperor. At the very least, we can say that Romans faced the challenge of fi guring out “how to endow legal knowledge with all the advantages of writing, without losing the legacy of centuries of orality” (Schiavone 2012: 165).

Under the republic, according to Innis (1950, 88), plebian power advanced when the “tribunes developed deliberative assemblies and other institutions for the plebians and demanded that laws should be reduced to writing and made public.” Others concur: “It was clear that as long as the law remained purely oral and traditional, and was a possession of the Patricians, the Plebes would continue to be oppressed” (Taylor 1923: 75). Th e spread of literacy con-tributed to pressure for equal protection under the law. At various points, the plebes pushed for their own judicial and deliberative institutions. Oft en, concessions were made when the lower orders threatened mass exodus. Th e Senate granted the formation of plebian tribunes, providing legal recourse for ordinary folk, under such threats. Th e tribunes were empowered to pre-vent abuses of the people by patricians, especially the much-hated Consuls. Tribune assemblies—or Comitia Tributa —provided legal protection for the plebes. Th e tribunes took the initiative to propose that the vagaries of oral tradition monopolized by the patricians be supplanted by a published code of law legible to all.


In developing law, Romans were unfettered by scripturalism. 11 Roman law was humanly made law, not of divine origin, and when it came to borrowing from abroad, the Romans were magpies. A fascinating example of the deliber-ate adoption or adaptation of laws is provided by a famous if apocryphal epi-sode in Roman history in which a group of ten wise men, or decemvirate (the full title was Decemviri Consulari potestate legibus scribundis ), was charged with laying the foundation for public and private law.

According to Livy, the Romans sent an envoy to Greece “with instructions to record the famous laws of Solon and to acquaint themselves with the insti-tutions, customs, and laws of other Greek states” (Livy 1998: 173). When the envoys returned, the decemvirate was formed to codify and adapt Greek laws in accordance with Roman conditions. 12 Th e ten notables were given a one-year term during which they would hold absolute power, with all other political bodies dissolved—especially the mutually antagonistic tribunes and consuls.

Th e appointment of an all-powerful decemvirate was, of course, a mis-take, as Machiavelli would sagaciously observe: “the Romans took the guard-ians away,” he wrote, and the result was disorder (Machiavelli 1970: 216). Nevertheless, for reasons that have been brilliantly expounded in the work of Livy and Machiavelli, the ultimate outcome of the decemvirate was the creation of the Ten Tables and even more powerful tribunes.

Livy (1998: 174–175) describes the deliberative procedure whereby the Ten Tables were approved:

People looked forward with keen expectation to what they would pro-duce, and when the ten tables were set up for all to see, the decemvirs prefaced their edict with a prayer that what has to happen would prove favourable, fortunate, and happy for them, their children, and their country: they were to assemble and read the laws; they themselves, as much as the talents of ten men would allow, had made the laws appli-cable to high and low equally; yet when many people contribute talent and suggestions, the better the results; hence they should consider care-fully each particular, discuss it privately, and let everyone know what they found that was negative or positive in it; the legislation would then seem to be what the Roman people as a whole had decided for itself rather than accepted from others. Aft er the laws were amended in response to comments the people made on each provision, the Laws of the Ten Tables were passed in the Centuriate assembly; even now, despite the plethora of legislation that has followed, they stand as the fount of all law, public and private.


Th e Ten Tables limited usury, introduced coinage, codifi ed existing laws, instituted the right of appeal, prohibited the use of laws aimed at a single individual, and required that laws passed by the people would super-sede all former legislation on the subject. Th e latter “necessitated a care-ful record being kept of all proceedings of the assemblies” (Taylor 1923: 84). Another important innovation was the Valerio-Horatian laws, which required Senate decrees to be publicized and preserved in the Temple of Ceres “to prevent the possibility of suppression or forgery by the Consuls” (Taylor 1923: 90).

Th e constant innovations in Roman law refl ected the idea that laws could be codifi ed, systematized, and criticized from the point of view of overall coherence and justice. Th e idea of law as a canon emerged, a rational product of human agency that could be protected, perfected, and updated. Roman laws were made, not revealed or discovered. Th ey were also the benefi cial byproduct of class struggles, a way of balancing the interests of plebes and aristocrats.

Greek historian Polybius, like Aristotle, believed that all pure constitu-tions—kingship, aristocracy, democracy—were prone to particular vices that could be checked only by mixing the best features of each. He observed that in Rome, diff erent offi ces checked the power of rulers. Th e Consuls held executive and military power, but Senate controlled appropriations and public works, which gave them infl uence over the people. For their part, the people, represented by Tribunes, were empowered to veto or repeal laws, or even prevent the Senate from meeting, as well as decide capital punishment. Th us, encroachment by one class on another was held in abeyance by fear and mutual interdependence. Th e result was governance “steady like a ship sailing close to the wind” (Polybius 1962: 467).

It was not only the stability of the Roman constitution that Polybius admired; he also appreciated its capacity to project power. Th is he attrib-uted to a remarkable adaptive capacity and the ability to generate collective action. On the one hand, the constitution “possesses within itself the power of correcting abuses” (Polybius 1962: 474); on the other, “the peculiar consti-tution of the State makes it irresistible, and certain of obtaining whatever it determines to attempt” (Polybius 1962: 474). Th us, for Polybius, the Roman constitution was the key to the success of empire. 13 He concluded that in “every practical undertaking by a state we must regard as the most powerful agent for success or failure the form of its constitution; for from this as from a fountain-head all conceptions and plans of action not only proceed, but attain their consummation” (Polybius 1962: 459).


Republican Rome fell prey to civil war and was replaced by empire. And yet the legacy of Roman law would come back to shape the history of Europe following the Renaissance and the invention of the printing press.

Christianity and Constitutionalism Th e contribution of Christianity to constitutionalism is an immensely com-plex subject. Th e church was not only an institutional repository of literacy and learning in the Middle Ages but also a model of the construction of a peo-ple of the book. Th e Bible was the constitution for Christiandom aft er the fall of Rome. Yet the church was also, by and large, authoritarian, dogmatic, and scripturalist, at least in comparison with the classical humanist traditions of Greece and Rome. Th is should not surprise us. Writing and reading reinforce centralized power unless its spread enables criticism by an ever-expanding sphere of readers and writers. Writing can foster the development of monop-olies of knowledge, or undermine them as critical thought spreads with the expansion of literacy.

One way in which religious dogma might be thought to hinder the full development of constitutionalism is by encouraging an understanding of human law as derived from transcendent moral rules rather than human activity. Even so, a spirit of constitutionalism is inherent in all the Abrahamic traditions. In early human societies, religion gave law its morally binding char-acter. Of course, the corollary was that order had a natural and divine basis. Canon law, natural law, and human law coexisted in a hierarchy with the Bible at the apex. Whereas human law was inherently fallible, and natural law was unwritten, scripture could serve as a permanent and infallible source of moral judgment. Christians embraced the idea that life could be regulated accord-ing to written law, and that communities could be constructed around a text.

Th e separation of powers is implicit in the very notion of a people of the book because language involves separation—separation of ourselves from nature, of our thoughts from ourselves—and thereby the possibility of col-lective consciousness, or, more precisely, of directing the activity of the brain through collective structures of meaning. Th e deepest mysteries of Christianity, such as the Trinity, imply a profound awareness of the tensions between the self and the other, consciousness and the senses, the otherworldly and the mundane, which can be resolved only through the power of words. Living according to scripture means bridging these separate dimensions of existence. According to Ludwig Feuerbach (1957), the Trinity expresses the capacity of the human mind to encompass the self (I, the Father) and the


other (Th ou, the Son), understanding and love, unifi ed through the power of the Word.

But, of course, the eff ort to create a people of the book immediately con-fronts multiple hurdles. Th e presumed infallibility of scripture did not mean an absence of ambiguity for the mundane reader. Every text requires interpre-tation; none can be read freed from ambiguity. And so the question became: who would have the power to direct the minds of the devout? Who would determine what texts were authorized, what they meant, and how they were to be applied? In the three or four centuries following the death of Christ, church leaders recognized what they saw as the danger that the Christian tradition might be “swamped in a mass of confl icting interpretations of the meaning of Christ’s life and resurrection” (Bokenkotter 1977: 41). To preserve tradition, elders devised an authoritative list of apostolic writings, and a hier-archical system of governance. Th ey understood the need to create institu-tions to decide what would count as scripture, what scripture meant, and how it should be lived. With this understanding came the need for a specialized class of experts, trained in biblical exegesis. Th ese experts were required to read and interpret scripture, and they quickly monopolized knowledge of holy text.

In this period, a process of centralization of interpretive power occurred. Medieval church fathers gradually acquired the trappings of the very empire against which early Christians rebelled. Th e centralization of power meant the affi rmation of the primacy of the pope, who resembled an emperor. Roman institutions and practices furnished resources for those seeking to reconcile the other-worldly orientation of Christianity with the mundane task of building church institutions in this world. And Christianity became the state religion of a newly converted Rome. Yet Rome’s power declined as it converted to Christianity. With the fall of the Roman Empire and the rise of the Visgoths, Gauls, and Franks, Rome became the center of religious rather than political authority. Th e papacy united Europe and provided the com-mon framework for governance among dispersed feudal societies. A patch-work of legal traditions evolved, combining canon law with local, secular, and particularistic legal systems.

Although there are commonalities between the rise of the Roman Empire and the emergence of the papacy, there were also forces for change within the church toward the end of the Middle Ages. One was conciliarism. Th is more collegial, deliberative tradition, affi rmed a more juridico-political under-standing of the church. Corporate constitutions in Italian cities provided models for imagining a church embodied not only in the Pope but also in


councils representing the broader faith community. Th e idea that the preroga-tives of the Pope, including his scriptural authority, might be limited by the actions of councils of elders was a radical one. Like most radical ideas, it was the product of necessity and crisis. Th e crisis was rooted in a collective speech act problem.

Th e Great Schism in the church in the fourteenth century created a situa-tion in which, over a period of forty years, two or three distinct religious lead-ers—each calling himself the legitimate Pope—vied for control of the church. A series of councils were convened to resolve the crisis. In the end unity was restored to the church, and the papacy triumphed over conciliarism, but the church had, “in substantial measure, lost its way and the allegiance of many believers” (Abel 2011: 18). More importantly, a precedent had been set for a new way of thinking about the sources of authority. In that sense, perhaps, the real victor was constitutionalism.

Conciliarism provided a model for the struggle to constitutionally limit despotic power. Marsilius of Padua, in Th e Defender of Peace , argued that where the meaning of scripture was in doubt, the determination of the true meaning belonged only to “a general council of all Christians or the weightier part of them, or to those persons who have been granted such authority by the whole body of Christian believers” (from Gerwith 1956: 280). From this posi-tion Marsilius developed a radically diff erent understanding of the church. For Marsilius, the church was not just priests, bishops, and deacons, but “the whole body of the faithful” (from Gerwith 1956: 103). Th is had implications for ecclesiastical governance which in many ways anticipated the idea of the separation of powers because it established the general council of priests, bishops, and other believers as a separate legislative body of the church with more or less clearly delineated authority.

A more deliberative understanding of how to resolve disagreements within the church naturally contributed to clarifying the boundaries between the ecclesiastical and secular legislator. It is not a huge step from this posi-tion to the recognition of the autonomy of the political, which we fi nd in Renaissance scholars like Machiavelli. Machiavelli rewrote Roman history to demonstrate how political thought could emancipate itself from religious dogma. Drawing on Livy and Polybius, he provided a template for social con-tract theory in his discussion of the origins of civil government.

Th e Greco-Roman tradition attracted reformers who were drawn to it because of its vigorous critical spirit and because its open-ended inquiry located the source of truth not in divine revelation of scripture but in the con-struction of meaning through discourse and observation. Th omas Aquinas


incorporated Aristotelian political theory (including his classifi cations of political systems and emphasis on mixed constitutions) into Christian doc-trine in a systematic way in an eff ort to bolster the relevance of Christian thought. Th is project took on greater urgency in the face of more systematic attempts to develop a secular science of politics (especially Machiavelli and the revival of republicanism fi rst in the Italian principalities and then throughout Europe), and, later, Protestantism. Th e combination of scripturalism and con-stitutionalism, in the eff ort to reconcile Christianity with citizenship, tended to neutralize the revolutionary implication of the latter. A striking feature of Aquinas’s thought is the awkward combination of Greek ideas about citizen-ship and constitutional government with an insistence that human law and institutions must be reconciled with natural law and the authority of scrip-ture (as read by the fathers of the church).

In his treatment of the idea of mixed constitutions, Aquinas followed Aristotle, whom he sought to give a biblical foundation. Th us, for example, he claims that “the best ordering of power within a city or a kingdom is obtained when there is one virtuous head who commands over all; and who has under him others who govern virtuously; and when, furthermore, all participate in such government, both because all are eligible, and because all participate in the election of those who rule. Th is is the best form of constitution which results from a judicious admixture of the kingdom, in that there is one per-son at the head of it; of aristocracy in that many participate in government according to virtue; and of democracy or popular rule, in that rulers may be elected from the people and the whole population has the right of electing its rulers.” He then searches for a biblical reference to support this, suggesting that Moses ruled with elders chosen from the whole Hebrew people.

Similarly, Aquinas examines various constitutional safeguards against tyr-anny but concludes that if none of them work “recourse must be made to God the king of all,” surely an invitation to seek providential leadership in times of crisis. He showed a clear preference for monarchy because the dangers of political corruption were purportedly greatest when the larger number ruled. More than the substance of his views, which obviously emphasized hierarchy and the religious basis of order, what Aquinas did to neutralize the revolu-tionary implications of Aristotelian constitutional thought was to subordi-nate inquiry into the comparative analysis of constitutions to a deductive and scholastic hermeneutic framework in which all answers could ultimately be found in the scripture.

Th omistic scripturalism could not be farther from Aristotelian empiri-cism and openness to criticism. He used Aristotle to make a theological case


without understanding the “vast gulf of diff erence between Aristotle’s classi-cal culture and that of the Christian high Middle Ages” (Abel 2011: 39). Yet the urgency with which Aquinas pursued his task suggests that a new critical spirit was afoot. In short order, explosive new approaches to text and interpre-tation would burst forth, giving rise to profound changes in the way in which Europeans thought about politics, law, and religion.

Colonialism and Constitutionalism In their eff orts to centralize political rule and build an empire, Spanish monarchs grasped the importance of language and the intimate connection between writing and domination. Antonio de Nebrija was enlisted to write the Gram á tica Sobre la Lengua Castellana as an aid to the imperial project. A unifi ed Spanish language would help establish rule over the vanquished sub-jects of the new world. Spanish monarchs feared that the speech act problems to which texts are prone would undermine their authority, which was based on scripture. A fl urry of regulations was issued to ensure Spaniards monopo-lized authoritative texts.

In 1506 King Ferdinand decreed that Indians could not read “books deal-ing with profane, frivolous and immoral matters” (Leonard 1949: 80–81). Another Royal Decree of 1531 discouraged books of “fi ction in the vernacular which are unrelated to religion” and commanded that only books “relating to Christian religion and morality” could go to the Indies (Leonard 1949: 81). Again, in 1653, the instructions were repeated: “no books of secular or fi ctional subjects in the vernacular should be carried to those parts . . . they may confuse these tales with writings of genuine authenticity and authority such as the Holy Scriptures and the works of saints” (Leonard 1949: 81–82). Although widely ignored by the peninsulares in the New World, these edicts are persuasive evidence that Spanish monarchs feared literate Indians would ask questions about the authorial intention, meaning, and context of applica-tion of texts that would undermine empire.

Th e desire to justify empire with scripture while monopolizing the inter-pretation of holy texts hindered communication between Spaniards and Indians. Th e legal document used to establish the legal right to conquer the Americas was called the requerimiento , or notifi cation. In the name of the pope and the king and queen of Spain, the conquistadors exhorted the Indians to accept Christianity and Spanish rule, or suff er the bloody conse-quences. Gustavo Guti é rrez (1993: 114), a founder of Liberation Th eology in Latin America, describes the absurdity of the requerimiento : “With all


amiability the Indians are told that . . . [the authority of the pontiff and king and queen of Spain] is all ‘contained in certain writings that . . . you may see if you wish.’ One imagines the scene: the Indians asking to see the writings (in Latin, of course) upon which their translation to the condition of vassals of the newcomers is founded!” A notary was to be present to serve as a witness and deliver a notarized copy of the requerimiento: “Dominators always seek to legalize their oppression. But one may doubt the exculpatory force of this notarial act in the judgment of God.” (Guti é rrez 1993: 115–116).

One courageous theologian, Bartolom é de las Casas, Bishop of Chiapas and a Friar in the Dominican Order, writing in the middle of the sixteenth century, raised an obvious objection: “no law, constitution, or precept is binding on anyone unless the words of the language in which it is proposed are clearly understood” (Las Casas 1974 [1552]: 218). Las Casas was among the Spaniards who “emphasized the importance of learning Indian lan-guages, favored education for Indians, and in general had an optimistic view of Indian capacity” (Hanke 1974: 22). In the fi rst decades of the conquest Indians learned to read and write and to use literacy to their advantage by transcribing laws that favored them and appealing to the crown and ecclesi-astical authorities with complaints against local masters. Literacy provided a vehicle for Indian nobility to retain status and power by serving as inter-mediaries between native communities and the colonizers, while Dominican and Franciscan orders translated the Bible and other documents into Indian languages and incorporated Indians into the priesthood.

More conservative priests thought it “very dangerous” (Hanke 1974: 22) to teach Indians to read and write, and insisted on monopolizing access to scripture. Some theologians, like Juan Gin é s de Sep ú lveda, Las Casas’s nem-esis, compared Indians to monkeys and denied their ability to read and write, keep adequate records, or make written laws (Hanke 1974: 84). Th ese claims were easy to refute. An Indian seminary opened by Franciscans at Tlatelolco, Mexico, demonstrated that Indians could acquire literacy. A priest involved in the seminary, Bernardino de Sahag ú n, described how “the monks of other Orders . . . laughed loudly and jeered at us” but when it turned out that the Indians learned “such a thorough knowledge of grammar that they understood, spoke, and wrote Latin, and even composed heroic verses” in it, they “began to raise objections and oppose the enterprise” (quoted in Hanke 1974: 22).

Th e real motivation behind these objections was that unless Indians were deemed barbarians, Spain would have no legal justifi cation to wage war against them as infi dels. As befi ts a scriptural culture, the interpretation of classical texts, especially the Bible, fi gured prominently in these debates. Las


Casas shared with his theological adversaries the Spanish stress on “reading the word rather than reading the world” and he “made the letter the anchor of knowledge and understanding,” to use Walter Mignolo’s (2003: 105) phrase. He appealed to the Crown’s piety and enlightened self-interest, drawing on formidable knowledge of Christian and Greco-Roman texts, Augustine and Aquinas, Roman law and canon law. For example, he vigorously challenged the view that Moses’s punishment of the worshippers of the golden calf justi-fi ed the slaughter of Indians.

Admitting that God killed the guilty and innocent alike, Las Casas none-theless insisted that while God is inscrutable, man is not. “Judges, then, do not have men subject to them in such a way that they can punish or kill them contrary to right and law, for a human judge does not have the authority to pass judgment except as the law commands, especially the natural and divine law” (Las Casas 1974 [1552]: 196). For example, everyone is guilty of original sin, but the state must presume innocence: “an innocent person is not guilty of off ence either against the state or the ruler. Th erefore rulers cannot punish either the father for his son or the son for his father.” (Las Casas 1974 [1552]: 196). Elsewhere, Las Casas argues that “Many laws are unjust and the will of a ruler is sometimes taken to be law. Such a will, however, is quite change-able, and according to the Philosopher the human will is a very poor criterion, especially since the error of a ruler makes the law according to human laws” (Las Casas 1974 [1552]: 198).

Las Casas also used Aristotle in defense of the Indians. Th is he had to do, because conquistadors, such as Viceroy Francisco de Toledo, quoted Aristotle to justify their rule over the Indians (Hanke 1974: 133). Las Casas argued that Aristotle uses the term barbarian in a number of senses. One “includes those who do not have a written language that corresponds to the spoken one, as the Latin language does with ours, and therefore they do not know how to express in it what they mean. For this reason they are considered to be uncul-tured and ignorant of letters and learning” (Las Casas 1974 [1552]: 30). Th is is only an obstacle to communication, not a true form of barbarism (“not bar-barian literally but by circumstance” [Las Casas 1974 (1552): 31]). Th ey are not therefore “by nature slaves and do not have the ability to govern themselves or others.” (Las Casas 1974 [1552]: 31). Another kind of barbarian is “cruel, sav-age, sottish, stupid, and strangers to reason.” (Las Casas 1974 [1552]: 32).

According to Las Casas, Aristotle meant people who lived under tyranny in Asiatic societies and failed to rebel against despotic government. Only Homer’s “tribeless, homeless, lawless ones” can be considered to have no natural government and no political institutions (Las Casas 1974 [1552]: 33).


To assume whole regions barbaric in the sense of being basically unsociable would imply God is ineff ective (Las Casas 1974 [1552]: 36). With regard to those “lacking in the reasoning powers necessary for self-government” (Las Casas 1974 [1552]: 42), Aristotle admits there are people without the art and use of writing who are nevertheless able to govern themselves (Las Casas 1974 [1552]: 42). Some govern wisely according to their laws and customs, and therefore their governments are “legitimate and natural” though tyran-nical. Indeed, “long before they had heard the word Spaniard [the Indians] had properly organized states, wisely ordered by excellent laws, religion, and custom. Th ey cultivated friendship and, bound together in common fellow-ship, lived in populous cities in which they wisely administered the aff airs of both peace and war justly and equitably, truly governed by laws that at very many points surpass ours, and could have won the admiration of the sages of Athens, as I will show.” (Las Casas 1974 [1552]: 42–43). In short, Las Casas concludes that the Indian race is not “barbaric, nor are they dull witted or stupid, but they are easy to teach and very talented in learning all the liberal arts, and very ready to accept, honor, and observe the Christian religion.” (Las Casas 1974 [1552]: 43–44).

Language is based on a human capacity for empathy; for recognizing oth-ers as agents with intentional states like our own. Th e defenders of the Indians cultivated this capacity for empathy and communication. Domingo de Santo Tom á s, a Dominican, emphasized the beauty and fl exibility of native tongues: “One may also see the diverse and curious ways their language permits them to speak. Th e soft and pleasing sounds it produces, the facility it permits in writing it with our characters and letters.” He referred to Aristotle to say that “there is no better way to judge the genius of man than in the words and lan-guages he uses,” and concluded that “the natives of Peru are people of great culture and order” (quoted in Hanke 1974: 126). He could see no reason to deny Indians access to the achievements of the Spanish language, and above all the scripture. “I do not understand why our doctrine should be hidden away from all but those few called theologians,” said one Franciscan. “No one can be called a Platonist unless he has read Plato. Likewise, no one may be called a Christian who has not read the doctrine of Jesus Christ” (quoted in Hanke 1974: 24).

Spanish monarchs were neither wise nor prudent (in the Aristotelian sense). Th ey had neither the empathy to appreciate other societies nor the imagination to envisage a synthesis between these societies and their own. Th ey feared that the copying of scriptures and laws by Indians would under-mine Christian beliefs by introducing Indian interpretations and other


“errors” into their own legal and religious institutions. With Indians reading and writing, they would be capable of collective action on a larger scale than before. As one encomendero put it, the Indians “have such good writers, in such numbers, that I cannot say how many they are, and they write letters that, not without risk, reveal to them all the business of the country from one sea to the other, which before was impossible for them” (Gruzinski 1993: 55). 14 With the intensifi cation of the counter-reformation and the growing power of the Inquisition at home, the decision was made to exclude Indians from the priesthood, ban the transcription of European texts into native tongues, exter-minate the quipus , and destroy Indian icons (Gruzinski 1993, 62, 69, 187). Th e Ecclesiastical council of 1555 forbade creation of Indian priesthood, which eliminated the raison d’etre for the Tlatelolco seminary, causing it to wither away (though not before producing noted Indian intellectuals) (Hanke 1974: 26). Indians would began to re-enter priesthood only in seventeenth century, and sporadically.

Latin American cultural historians argue that scripturalism led to a cleav-age between the pa í s ofi cial (the rituals and discourses of formal institutions) and the pa í s real (the informal practices and institutions of everyday life). Th e Spanish colonizers developed a complex web of laws, rules, proclamations, and classifi cations. According to Rama, writing was used to concentrate power and reinforce elite hierarchies, to unify the functioning of the imperial administra-tion, inadvertently creating a “distance between the rigid letter and the fl uid spoken word” (Rama 1985: 3). Oft en, the dictates from Spain could not be implemented, leading to a tradition in which the letter of the law was respected, though not necessarily complied with. On the one hand, there was the “pre-scriptive minutia of the laws and codes,” and on the other hand the “anarchic confusion of the societies over which they legislated,” a gap fi lled with “lawyers, scribes, clerks, and bureaucrats” (Rama, 1985: 3–4). Th e language of offi cial soci-ety was “impregnated with the courtly norms of the peninsula.” It was ceremo-nial, ritualistic, baroque, and diplomatic, in contrast to the everyday, popular language of private and social conversation with its “variegation, informality, clumsiness, and incessant invention,” and which, in the diatribes of the literate elite, was vilifi ed as “corrupt, ignorant, and barbarous” (Rama, 1985: 5).

Th e “ferocious adhesion of the literate to peninsular courtly norms” (Rama, 1985: 6) is explained by the minority status of the colonizing elite and their fear of a hostile and unpredictable environment. Th e continuous eff ort to reinforce the power of the center, the “scriptural umbilical cord with the metropolis,” destroyed any possibility of developing local institutions that would balance the functions of government in the interest of achieving


a synthesis between Spanish and indigenous habits, customs, and traditions. Th e use of text in a system of political domination will tend to be dictated by the material, ideal, and political interests of those in power and the economic interests they defend. We cannot know what a better synthesis of Spanish and Indian cultures would have produced, but we do know that Spain declined as it plundered and vandalized the New World.

Conclusion Text is a vehicle for collective action. Th e early adoption of reading and writ-ing produced centralized power based on monopolization of knowledge. But the development of legal codes encouraged criticism. Any large-scale political system based on rules must be able to justify its own existence—why should anybody follow rules imposed by anyone else? Th e answer of the Egyptian rulers emphasized the divinity of the author: the Pharaoh was next to God. Th is was a conceit, admittedly, but an eff ective one, provided a suffi cient dose of physical force and a heavy dependence on rulers to provide public goods (like knowledge of the calendar). Even here, however, the insistence that criticism of the Pharaoh was criminal blasphemy implied the ability to make distinctions between speech acts that were blasphemous and those that were innocuous—hence the need for courts. Th e goal of the Pharaoh was to create a system that worked on a vast scale and over a long period of time. Th us, even if the issue of the author’s intention and the basis of his authority was taken off the table, there remained the problematic issue of putting his commands into eff ect in various contexts. Th e existence of a court system, however, implied some diff erentiation of functions and thus division of the powers between the Pharaoh and the Vizir.

Th e story of Moses, a paradigm for liberation theology, off ered hope to those who sought to reject the unjustifi able claims of absolute dynastic rule, though interestingly Moses did not challenge the origin of the Pharaoh’s authority. Th ere is a polytheistic residue in the story of Exodus that has not been entirely stamped out in successive renderings. Rather than challenge the idea that authority derives from God, Moses fell back on the same con-ceit: another God, one more powerful than the God of Egypt, would redeem the Hebrew slaves. Yet there was a twist, a new bargain between God and his subjects. No matter how mysterious the origin of the covenant, it rep-resented a break with the idea of naturalized and absolute domination and evoked the possibility of creating a people of the book by dint of conscious human eff ort—Moses was a man, not an angel. He was the ultimate scriptural


lawgiver, but his solution worked only for a people with a capacity for criti-cal thought insuffi cient to challenge the very idea of the religious basis of authority.

Th is was a great contribution of Greece, and a reason why Greek thought added so much to our understanding of the origins of authority, and why it was so concerned with what makes the “best” type of political system. Greek thinkers like Aristotle were able to grapple with the full extent of the ques-tions that must form the core of any mature political theory because they rec-ognized that the problem of authority cannot be bracketed, nor the answers supplied by uncritical devotion to religious texts. Th e Greek achievement is all the more remarkable in light of the fact that it remained unsurpassed until the Gutenberg Revolution and even today, over two millennia later, much of the world has still to face up to the problems it outlined.

For nearly two millennia, Greco-Roman thought provided a trove of ideas for a multiplicity of purposes, as the debate over colonialism shows. In gen-eral terms, however, the emancipatory potential of these ideas was neutralized by Judeo-Christian scripturalism, which closed off discussion of the source of law. Th at said, Christianity provided a successful model for the construc-tion of a people of the book, and the struggles within the church over the source of textual authority were linked to the emergence of secular theories of constitutionalism. Next we will examine how Renaissance political theorists transformed the Aristotelian tradition and gave meaning to the notion of leg-islatures as lawmaking agencies. Th is completed the development of the under-lying notion of action—that every act by a public offi cial must be executed in a manner consistent with a valid general rule and backed, where necessary, by a legal judgment—which underpins constitutionalism and the separation of powers. Th e revival of constitutional thought from the fi ft eenth century forward was not a mechanical eff ect of the printing press, but the spread of reading and writing were among the changes that had to be theorized.

4

The Printing Press and Constitutional Revolutions

Th e invention of printing is the greatest event in history. It is the mother of revolution.

victor hugo (1831: 192)

The first great moment in the development of constitutional theo-rizing on the separation of powers occurred with the spread of reading and writing in the Greco-Roman world; the second followed the Gutenberg Revolution (circa 1460). Th e invention of the printing press contributed to the separation of church and state, the transformation of medieval parlia-ments into legislatures, and secular, contractual legal and constitutional the-ory (deriving much of its inspiration from Greece and Rome). Social contract theorists overturned the scriptural foundations of order, making way for an understanding of law based on speech and communication. A central contri-bution of social contract theory and Roman law was to transform parliaments (essentially, feudal representative bodies assembled by monarchs to levy taxes and provide counsel) into legislatures, or lawmaking bodies. Legislatures came to be seen as bodies responsible for writing law in general terms such that all administrative decisions be judged in terms of their legality. Th e press also supported a bourgeois public sphere independent of political control, based on the right to read and write, and reinforced the power of deliberative institutions in relation to central authority. By the nineteenth century, legis-latures had begun to serve as ligatures between public opinion and law, and courts became authoritative arbiters for the resolution of confl icts based on increasingly sophisticated and rationalized bodies of law.

Th e Gutenberg Revolution While the printing press may have brought about “the most radical trans-formation in the conditions of intellectual life in the history of western

Th e Printing Press and Constitutional Revolutions 79

civilization” (Gilmore 1952: 186), it is generally agreed that its impact would not have been the same had it not been for other social changes such as the growth of towns, the rise of merchant classes, the shift from the use of Latin in law, government, the church, and universities to the widespread adoption of vernacular languages, and the thirst for new manuscripts that was brought about by a revival of interest in classical thought following the collapse of the Byzantine world (Cheyney 1936: 247). Th e printing press was important not so much because it changed everything overnight, nor because it altered fun-damentally how people thought, but because it solved old collective action problems and created new ones as more people began to read and write.

Print made it possible for thousands and then millions of people to read the same text simultaneously, thereby playing a decisive role in the rise of the public sphere and, ultimately, mass public opinion. Th e diff usion of reading matter created audiences, or what Sidney Tarrow (1998: 44) called “invisible communities of discourse.” By means of the press, entire societies could be moved to think and act in concert and social movements were made possible: “If a man could read about a great event on the same day as thousands of others he didn’t know, he and they became part of the same invisible com-munity of readers” (Tarrow 1998: 45–46). Print penetrated deeply into soci-ety, infl uencing both public and intimate spheres of life and stimulating an intense desire for learning. Th e spread of readers and writers was politically signifi cant: it became possible to coordinate more aspects of collective action among larger numbers of people because more people could read exactly the same material at the same time.

Th e initial eff ect was predictable: wherever the printing press spread, rul-ers sought to codify and centralize rule. Print was “from the beginning at the service of princes and an instrument of centralized power” and, all over Europe, “monarchs aspiring to absolutism set up printing establishments under their direct control” (Small 1982: 18). More powerful states capable of mobilizing resources and exploiting opportunities for conquest and enrich-ment in Europe and beyond required a certain rationalization. Obstacles to state building might take the form of customary law, feudal sovereignty, or ecclesiastic privileges. Faced with these fetters, Roman law seemed to provide a powerful instrument of statecraft . Roman law also aff orded a link between “the ancient tradition of deifi cation of the ruler and the new cult of the ven-eration of Majesty” (Kern 1968: 138).

In the Middle Ages, “law meant habit or custom, and the nearest thing to legislation was the compilation or codifi cation of what already existed” (Henshall 1992: 122). Th e Bible was, of course, another source of law. As the head of the Universal Church, the pope was supreme not only with respect


to religious duties; he also claimed certain temporal powers. In an attempt to subordinate the church to state—without losing religious legitimacy—and to impose legislation throughout their realms, ambitious rulers sought “the-oretical justifi cation . . . in the principles of Roman law which accorded the ruler not merely the quality of supreme judge but also of supreme law maker” (Parker 1983: 6). By seeking such justifi cation, they unleashed revolutionary changes (Downing 1992: 32).

Th e transposition of Roman law into entirely new contexts was a task that required construing what the law should mean based on abstract and logical precepts, rather than customs and habits. Weber notes in regard to civil law: “In this way that conception of law which still prevails today and which sees in law a logically consistent and gapless complex of ‘norms’ wait-ing to be ‘applied’ became the decisive conception for legal thought” (cited in Anderson, 1974: 23, fn. 14). Yet this logically consistent approach to law had to be imposed in the most illogical manner imaginable: by an implausible appeal to the divinity of the ruler.

Th e entire project of codifying civil law under the aegis of a supposedly absolutist and centralized power left little room for ambiguity about the source of law. At least in theory, law came from the monarch. Th e monarch was, in turn, answerable only to God (Parker 1983: 1) . Quod principi placuit legis habet vicem, a phrase taken from Roman lawyer Ulpian, was absolutism’s answer to the source of law. Th e theory was never persuasive. No matter how much theologians cited the scriptural basis for royal authority, the idea that “a divine autocrat commanded the universe and delegated control over sub-jects’ secular interests to an agent” (Birn 2005: 38) was not just a departure from the medieval concepts of law, but a dangerous invitation to a new way of thinking about sovereignty. Roman law turned out to be a double-edged sword for those proclaiming a divine right to rule. As Nicholas Henshall (1992: 123) observes, the whole passage from which the oft -cited Ulpian quote is taken reads: “What the prince has decided has the force of law, inasmuch as by a special enactment ( lex regia ) concerning his government the people has conferred on him the whole of its government and power.” Th e full quote has a distinct odor of popular sovereignty.

Roman law was not scriptural, but humanly devised and contractual. Th e renewed interest in ancient Roman law began in Italy in the twelft h century, around the time that republican government became established across the Regnum Italicum (Skinner 1990: 121). Italy formed the crucible from which republican ideas spread outward across Europe. With its fl ourishing book making industry and strong universities, Italy nurtured a rebirth of humanism


and scientifi c inquiry. Th ree distinct canonic traditions emerged: “the liter-ary tradition of the school,” or studium , the “juristic tradition of the state,” or imperium , and the “religious tradition of the Church,” or sacerdotium (Curtius 1953: 256; Vessey 2003: 353). Mark Vessey (2003) notes basic similarities between the structures and dogma of the Christian church and the doctrines of Roman law. Whether juridical or religious, both the Roman lawyer and the Christian hierarchs sought to foster a way of life and to create and protect a set of texts that enabled this life to be transmitted across time and space. With a canon comes the need to determine the author and authenticity of the text, how it is to be rightly interpreted, and the scope of its jurisdiction.

But there was also a deep tension between Roman law and the scripturalism of the religious canon. Whereas religion pointed to God as the ultimate source of authority, Roman law pointed to the people. Greek and Roman ideas could be used to justify absolutism, but they could also be used to support popular sov-ereignty. “Th e absolute Divine Right of the king, and popular sovereignty, were thus two deviations from the main current of mediaeval political thought. . . . Wherever absolute Divine Right had its advocates, popular sovereignty would fi nd its champions, and vice versa ” (Kern 1968: 139). Many Roman monuments carried the abbreviation “SPQR,” which meant “the Roman Senate and People.” As historian J. M. Roberts has written, this implied “ultimate sovereignty always rested with the people, which acted through a complicated set of assemblies attended by all citizens in person . . . ” (Roberts 1995: 222).

Within short order thinkers like Machiavelli were fi nding much in ancient Roman history to support a radically secular view of politics. Machiavelli also perfected the subversive act of reading classical texts with an eye to chal-lenging existing monopolies of knowledge, all the while assiduously court-ing favor with those in power. His books, which were placed on the Papal Index and burned in the middle of the sixteenth century (Small 1982: 19), drew on Roman history, politics, and law to develop a political science unfet-tered by religious edicts. Th e Discourses —seemingly innocuous commentaries on Livy’s history of Rome—brilliantly revived Polybius’s ideas on the mixed constitution, and gave it a new twist. Machiavelli argued that the contention between the plebes and the senate made Rome both powerful and free. 1 Good laws come not from divine providence, or moral unity, but may result from the worldly confl icts among men. Nothing could be farther from the con-servative Th omist eff ort to neutralize the radical content of ancient thought by containing it within Christian orthodoxy. 2 In short, the revival of Roman law was part and parcel of a process of emancipation of theories of law and politics from religious dogma.


If the theory behind royal absolutism was contested, its practice was, if any-thing, messier. Some historians have questioned the usefulness of absolutism as a descriptive concept (Henshall 1992: 2). Although theories of absolutism were designed to reinforce the prerogatives of monarchs against both nobility and clergy, monarchs almost always had to share power. Indeed, monarchs typically possessed little power to share: the immunities enjoyed by the nobil-ity, clergy, and private offi ce holders limited regal authority. Almost invari-ably, monarchs attempted to overreach in asserting their own prerogatives, and everywhere such reach caused resistance. Th ey struggled to overcome medieval practices and institutions, on the one hand, while contending with dazzling new ideas emerging from Enlightenment liberalism, republicanism, and humanism, on the other.

As important as these struggles were, however, they should not lead us to the presumption that there was a zero-sum struggle for power between regal authority and deliberative bodies. It is not just that so-called absolutist states never were quite so absolute as implied by theory; more importantly, it was oft en the failure of absolutist rulers to harness the power generated by strong deliberative and independent judicial institutions that weakened them over the long haul. Th e separation of law from consuetudinary practices demanded the production of statutory law by parliamentary bodies, and through this constitutional monarchs emerged with reserves of positive legislative power. Whereas powerful monarchs rested on parliamentary bodies that were able to produce statutory law as an instrument of state power, monarchs that ignored or swept deliberative bodies aside found themselves unable to build diff eren-tiated state institutions with the capacity to use law to generalize their authority (see Th ornhill 2011).

Parliamentary institutions were transformed in the process of state build-ing. As features of feudal systems, parliamentary assemblies fi rst emerged throughout Europe in the period between the twelft h and fi ft eenth centuries (Graves 2001: 7). Th ey were oft en initiated from above by rulers, off ering a point of contact with nobles that could be used to secure advice and support, especially in the collection of taxes. Th e development of parliamentary insti-tutions was given a further boost by the diff usion of canon and Roman law, especially as literate elites trained in universities began to apply these legal traditions to constitutional matters. From the fi ft eenth century onward, the scope of legislation increased in many European parliaments (Graves 2001: 196). What followed was a legal revolution, as law assumed a more cumu-lative character: “law became more refi ned and acquired an internal, pro-gressive dynamic” (Downing 1992: 33). Th is had advantages for centralized


governance, but it also reinforced the separation of powers. A critical part of the new dynamism of the law was the fact that more people were organizing their lives according to written texts.

Th e limits of absolutism are illustrated by the clumsy and ultimately futile eff orts made by some rulers to contain or control the printing press. Th e sheer volume of production of printed material made controls diffi cult. It is esti-mated that “over 100,000 titles were issued during the fi rst hundred years of printing” (Hirsch 1974: vii). “100 million books and at least as many printed laws, degrees, news sheets, broadsides, pamphlets and tracts” were published in the 150 years aft er 1456 (Birn 2005: 325). Richard Abel estimates eight mil-lion books were published in the fi rst fi ft y years and says this “exceeds by orders of magnitude the entire production of copies handwritten from the eighth to the fi ft eenth century” (Abel 2011: 40). In historical terms, reading material was suddenly widely available.

Th e sheer volume of production made censorship nearly impossible. Th e right to read and write could not be held back. Censorship would require a “virtual monopoly of printing” (Small 1982: 20). In France, where the mon-archy sought to sustain its power through arrangements involving the sale of public offi ces, “the state tried to co-opt authors and publishers alike through a complex network of privileges” (Birn 2005: 328). Th ese arrangements were supplemented by police powers and the monopolization of publication rights, giving rise to an underground market in counterfeit and illegal manuscripts. In England there were similar eff orts to establish monopolies of publishing and censorship, but the crown found itself beaten back by authors and pub-lishers just as its power was clipped by the ascendant nobility. Perhaps most importantly, print represented a new dimension of freedom of speech and the demand for freedom of the press became a new battle cry in the strug-gle against absolutism and on behalf of religious freedom of conscience. In England the free press came to be seen as “the Palladium of all other English liberties” (Birn 2005: 331).

It is not just that censorship was impossible; it was counterproductive from the point of view of developing the infrastructure necessary to sustain a strong state. Th e printing press was, aft er all, connected to the rise of capi-talism. A booming “traffi c in commodities and news” arose with the print-ing press (Habermas 1989: 15). Printed books spread new ideas about how commerce and trading should be conducted, and provided instruction in how to organize economic activity including double entry bookkeeping, banking, credit, and insurance (Abel 2011: 35). Th e rational calculations of Weberian capitalist entrepreneurs depended on “more frequent and more


exact information about distant events” (Habermas 1989: 16). Books were part of the outward expansion of economic activity that followed exploration and conquest of non-European worlds (Abel 2011: 67).

Print also had a profound impact on religion. Th e market for printed Bibles was the pecuniary motive behind the development of movable type. Religious authorities initially welcomed the printing press as a means to make Bibles readily available to more people. Indeed Johann Gutenberg was proba-bly motivated primarily by the desire to cash in on the Continental European market for Bibles, a market with a big monopsony: the Catholic Church (Man 2002: 8). Church leaders celebrated the fact that the Bible could be inexpensively produced and placed in the hands of ordinary parishioners, but this also increased the pressures for translation into the vernacular. Once the scripture was translated, more people could read it without the guidance of the church. Th e clerical monopoly on knowledge of the Bible was weakened, and prayer became a more private activity, separated from the collective oral recitation of biblical text (Saenger 1989: 143) and intimately linked to indi-vidual conscience.

Resistance to authority began to take a new form: collective action around the validity of alternative texts and interpretations. Print hardened doctrinal disputes in politics and religion, giving rise to confl ict (Eisenstein 1979). Th e “cavalier attitude toward authorship” (Hirsch 1974: 8) among the scribes who produced manuscripts gave way to the very precise attribution of authorship and a new concern for the responsibilities of the author of printed matter. Once a statement was put in print, it became diffi cult to back away from it. Much of the religious quarreling of the medieval period was fuzzy and imprecise and disputants could always deny what they had said previously, or explain the context in which it was said, because there oft en was no writ-ten record. With the printing press, not only was there a written record, but that record was public to the world and would necessarily be read in diff erent context of time and space.

Th e familiar history of the publication of Luther’s 95 Th eses against indul-gences may be part myth and part fact, but it certainly illustrates the nature of the speech act problems to which the spread of printed matter gave rise. Setting aside the details of the events, which historians may dispute, what is clear is that Luther’s ideas were put into print with or without his consent and within years there were hundreds of thousands of copies circulating in Germany. It is this fact above all others that explains Rome’s response. Luther’s trial in Worms, in which the pope sought to force Luther to recant the con-tent of his publications, became a struggle over meaning and interpretation


of texts in circulation: “My conscience is captive to the word of God,” Luther proclaimed. “I cannot and will not recant anything, for to go against con-science is neither right nor safe. . . . Here I stand, I can do no other” (Man 2002: 279). Luther insisted that his accusers show where his written state-ments confl icted with scripture and refused to recant in the absence of a per-suasive case against his writings. Th is was a direct challenge to the monopoly power of the Catholic Church, whose authority over the meaning of scrip-ture he questioned. Europe was soon torn apart in religious warfare between peoples whose allegiances were defi ned largely in terms of the texts they read and how they read them.

Constitutionalism and the Printing Press in England

England in the seventeenth century was the site of the most portentous developments in the second major revolution in constitutional history. Royal prerogative was conjoined with parliamentary mandate to produce a new kind of power: statutory law (Th ornhill 2011: 83). Well before Locke and Montesquieu, many English writers were theorizing in ways that antici-pated the doctrine of the separation of powers. Th ese included Marchmont Nedham, James Harrington, Sir John Fortescue, Jonathan Swift , and others (see Gwyn 1965). Th e seeds of English constitutionalism were planted centu-ries before the printing press, but the functional division of powers was not theorized into an explicit notion of the separation of powers until the spread of the Gutenberg Bible. English political tradition accorded deep respect to unwritten law and custom, but it also had well-developed written law and a functioning court system (Fischer Drew 2004: 38). English common law withstood the infl uence of the revival of Roman law on the Continent, and was not disrupted by the Norman Conquest. Th e introduction of Norman law did contribute to a decline in religious infl uence in the English court sys-tem. Although most of the population lived in a world of primary orality, the growth of written records aft er the Norman Conquest changed concepts of evidence and proof, and introduced the idea of law as commentary on writs.

Much has rightly been made of the distinctive importance of parliament and local deliberative bodies in English history (see for example Ertman 1997: 155). While parliamentary institutions existed elsewhere in Europe, they were oft en scattered across regions. In England there was one parliament, and its stature refl ected the power of the landed nobility. Parliament no doubt served to protect the nobility from encroachments on their position. Th e


Magna Carta refl ected the importance of the spread of written documents from the eleventh century onward; it upheld baronial power against the king, and it came to be seen as a “sacred document, enshrined like a saintly relic” (Downing 1992: 36). As elsewhere at this time, parliamentary institutions were not legislatures in the modern sense but assemblies of the landed nobil-ity. Th e nobles were convened at the initiative of the king to provide advice and counsel. Its purpose “was less to legislate than to petition the sovereign or ratify his decisions.” In that role they nevertheless resisted centralization, oft en “with a good measure of success” (Birn 2005: 39). With the printing press, the power of parliament grew.

According to historian J. E. Neale (1953), parliament, particularly the House of Commons, began to emerge as a signifi cant part of the English constitution by the end of the sixteenth century. Th ere are many reasons for this transfor-mation, one of which was the spread of print. Th e persecution of Protestants under Queen Mary had led hundreds of nobles to fl ee to the Continent, espe-cially Switzerland and Germany where Calvinism was strong. When Queen Elizabeth took the throne, these literate and litigious individuals returned to England, where they became increasingly infl uential. “Th ey had been writing, publishing, and showering on the homeland books and pamphlets. Propaganda had become an instinct of theirs, and they were expert in the art” (Neale 1953: 56). In parliament, they were intensely concerned with creating a reformed body of church law to replace canon law, which was necessitated as England severed ties with the Catholic Church. And they quickly realized that the texts produced by parliament had the potential to shape an emerging pub-lic opinion. In the parliament of 1566, for example, members of parliament had pushed Elizabeth I to marry and plan her succession. She agreed verbally, but parliament decided to write her promise into the preamble of a subsidy bill, knowing that once royal asset was given this would be “disseminated in print throughout the realm” (Neale 1953: 161). Th e queen objected and the matter was dropped, but the episode illustrated both the growing importance of the printed word and the incipient understanding of the power of parliament as a text-making body. Over the following centuries this understanding would ultimately result in a distinction between common law and the privilege of parliament ( lex terrae and lex parliamenti ) (Neale 1953: 336).

Th e trend toward the conjunction of royal and legislative power in the form of statute is refl ected in the history of political thought. Th e English jurist Chief Justice Sir John Fortescue, writing at the end of the fi ft eenth cen-tury, distinguished between “royal domination” and “royal and political dom-ination.” In the former, “the king may rule his people by laws that he himself


makes, and so he may impose taxes and other duties on them as he wishes, without their assent” (1997: 1). In the latter, constitutional monarchy, “the king may not rule his people by such laws that they have not consented to” (1997: 1). Regimes of royal and political domination are established through the organization of the prince’s subjects, not by the force of the prince him-self. Fortescue was not suggesting that the king shared power with parliament, but rather that he had two sources of power: by cooperating with his subjects, or by the force of royal prerogative. Fortescue viewed royal and political rule to be less likely to lead to tyranny, but he also believed that certain princely powers could not be constrained by law. For example, the king may act against the law when the “strictness of the words of the law, confounding its intent, should hurt the common good” (1997: 95). At the same time, he warned the king against violating good laws, acting without consultation, and oppressing his subjects. He also recognized that the “necessity of resisting and repelling an attack” may prevent the king from acting in accord with “due form and by process of the laws which prevail” in times of peace (1997: 96–97). According to J. G. A. Pocock (1975: 11–13), Fortescue’s problem was how to reconcile written (or statutory, lex scripta ) and unwritten (or customary, lex non scripta ) law. His work contributed to an understanding of legal political rule in which the parliament operates as a body that transforms old law (or custom) into statutory law.

Hobbes took a further step by arguing that political order was an artifact of language. By the time Hobbes wrote, two hundred years aft er the Gutenberg Revolution began, the impact of print was much greater. 3 Th e fact that ideas could be placed before a vast audience and preserved for posterity encouraged the notion that change could be eff ected, for good or ill, depending on how we see the world. Writing in the context of the religious confl icts fought in print and on the battlefi eld, Hobbes understood that print had contributed to the chaos he feared: “every man, nay every body and wench that could read English thought they spoke with God Almighty and understood what he said, when by a certain number of chapters a day they had read the Scriptures once or twice over” (Hobbes quoted in Small 1982: 24).

In Hobbes’s times, an average of two or three pamphlets was published every day; the Cromwellian army had its own printing press; and calls for liberty of the press for printing and the publication of parliamentary debates were on the lips of the rebels (Small 1982: 25–34). Censorship and licensing had been potent tools in the hands of the state to control what was printed before the 1640s, but thereaft er control over the press was relaxed and het-erodox ideas fl ourished (Th omas 1986: 118–121). Hobbes took the challenge


posed by print seriously, and in the process engineered a change in the way we think about politics of unparalleled importance. He recognized that order rests on speech, and that the basis of legitimate domination—understood as the reconciliation of obligation and consent—was contractual and not scrip-tural. In Leviathan, Hobbes, characteristically meticulous about defi ning all his key terms, begins by analyzing sense, imagination, trains of thought, and speech. As Sheldon Wolin says of Hobbes’s way of thinking: “Th ere was a potential congruence between the phenomenon of politics and the concepts of the human mind, provided that these concepts were founded on the right method” (1960: 243).

In a remarkably modern view, Hobbes describes writing as a “profi table invention for continuing the memory of time past and the conjunction of mankind, dispersed into so many and distant regions of the earth” (1958: 37). Writing was more important than printing, in Hobbes’s view. 4 Most impor-tant of all, however, was speech: “consisting of names or appellations and their connection, whereby men register their thoughts, recall them when they are past, and also declare them to one another for mutual utility and conversation; without which there had been among men neither common-wealth nor society nor contract nor peace, no more than among lions, bears, and wolves” (1958: 37). Hobbes’s state is made of linguistic bonds (1958: 111) and his understanding of consent is rooted in the recognition that language involves intentionality. Although Hobbes went to pains to reconcile his the-ory with scripture, he provided an account of the legitimacy of rule based on reason, not faith in scripture. Words, he noted, mean what by common consent we intend them to mean. 5 Th e Leviathan itself was merely an artifi cial person who ruled by means of artifi cial chains called laws. Th e citizens of this state, bound by such chains as they have previously authorized, are free. In a powerful metaphor, civil laws are described as “fastened at one end to the lips of that man or assembly to whom they have given the sovereign power, and at the other end to their own ears” (1958: 172).

An advocate of monarchy, Hobbes nonetheless undermined the religious basis of kingship by replacing scripturalism with contractualism. True, he believed the sovereign, as an author, should have fi nal say in the interpreta-tion of a text, declaring “whosoever hath a lawful power over any writing, to make it law, hath the power also to approve or, or disapprove the inter-pretation of the same.” Yet Hobbes’s “method of justifi cation did not endear him to divine-right theorists” (Birn 2005: 271), for it helped his readers to see law not as something that came from nature or divine right but from human agreement.


Locke made the case against scripturalism more explicit. He rejected the absolute power of the Hobbesian state but shared Hobbes’s emphasis on the importance of language as a common tie binding society together. Locke fos-tered the contractualist belief that by human reason, “false principles” of gov-ernment can be separated from an understanding of the “true original extent and end of civil government”—the two titles of his most famous treatises (Locke 1977 [1690]). 6 Th e fi rst treatise, a seemingly obsolete text assaulting a now largely forgotten and unimportant thinker, was not insignifi cant in Locke’s time. Indeed, it was decisive for the development of the separation of powers.

Locke classifi es systems of government (or “commonwealths” 7 ) much like Aristotle: a democracy is a system in which the community as a whole makes laws and executes them by means of offi cers they appoint; oligarchy is a system in which lawmaking is in “the hands of a select few”; and monarchy places all power in “the hands of one man” (Locke 1977 [1690]: 182). Yet he diff ers from Aristotle in his emphasis on the legislature as “the supreme power;” indeed, he goes so far as to argue that a system government may be defi ned by where legislative power is located—whether in the hands of all, the few, or one. Th e source of political power may be the commonwealth as a whole, but the for-mation of a legislature does involve a twofold constraint: once created, the legislature is both “sacred and unalterable,” (Locke 1977 [1690]: 183–184), and cannot be overruled by a lesser power.

Working out the role of the legislature required that Locke set aside the Bible as a source of supreme law (Faulkner 2005: 451). He devoted consider-able eff ort to showing that Sir Robert Filmer’s search for a scriptural basis for patriarchal domination—and hence absolute monarchy—could only come to grief. Much of the treatise is taken up with illustrations of the incoher-ence of Filmer’s interpretations of scripture, and in the process Locke makes a point about language: a tendentious eff ort to fi nd a basis for a particular political order in the Bible does violence to the meaning of scripture. Even more importantly, however, Locke makes a profound observation about lan-guage in Book I, chapter V. “God,” said Locke, “speaks diff erently from men, because He speaks with more truth, with more certainty.” However, when He does “speak to men, I do not think He speaks diff erently from them.” Th at is, God, according to Locke, would not cross “the rules of language in use amongst them.” To assume otherwise would be to allow that God would “lose His design in speaking.” Yet certain claims made by Filmer require the reader to accept that, for example, when God speaks “in the singular num-ber, to Adam” He is in fact speaking to “all mankind” (1977 [1690]: 32–33).


Although the point is made almost in passing, Locke here affi rms the ambi-guity inherent in language, in particular the lost illocutionary force of writ-ten text, the need to abide by the rules of language in arriving at a shared understanding, and the diff erence in the general rules and their particular applications.

Although there is a debate over whether Locke was a Christian thinker, 8 the more important question for my purposes concerns his attitude toward text. In this respect, he was distinctly nonscripturalist. Locke’s more contrac-tual understanding of text led him to see government as a means by which the executive power that each individual enjoys in a state of nature is limited by the existence of a community protected under law. Th is requires a legis-lature in the modern sense of the term: a supreme power with a monopoly on law making. A nonscriptural understanding of political order, as Hobbes understood, demands a body with the authority to make law. Yet how can the legislature be both supreme and nonarbitrary? Writing plays a key role in Locke’s answer. He makes a distinction between natural (unwritten) law and written law. No legislature can overrule the laws of nature, but these laws, being unwritten “and so nowhere to be found but in the minds of men,” naturally give rise to misapplication. In the state of nature everyone is judge and executioner of his or her own case. In a civil order, there are “declared and received laws,” not “extemporary dictates and undetermined resolu-tions” (1977 [1690]: 187), and these laws apply to all—“the favorite at Court, and the countryman at plough” (1977 [1690]: 189). It is therefore essential not only that the legislature promulgates “standing laws,” clearly written and widely understood, but also that they be enforced by means of “authorised judges” (Locke 1977 [1690]: 185–186). How is this achieved? Th e practical answer is the separation of powers: executive and legislative power should be placed in distinct hands, both subject to the law. Although supreme, leg-islative power itself must be subject to rules. Th at is, the idea of a legislature that monopolizes lawmaking implies an independent and neutral judiciary to apply the law.

Having established the monopoly of the legislature over law making, Locke distinguishes legislative from executive power. Not only do laws apply to members of the legislature (they may be supreme when assembled for the purpose of legislation, but they are as individuals subject to the law), they also apply to those who exercise executive power. Th e need for executive power derives, in part, from the fact that laws must be kept in force at all times, while legislatures meet periodically: “But because the laws that are at once, and in a short time made, have a constant and lasting force, and need a perpetual


execution, or an attendance thereunto, therefore it is necessary there should be a power always in being which should see to the execution of the laws that are made and remain in force” (Locke 1977 [1690]: 190–191). Th e “uncer-tainty and variableness of human aff airs” requires an executive (1977 [1690]: 196), and since this is especially true in international politics, Locke also men-tions a “federative power,” responsible for foreign aff airs, which we would normally consider part of the executive. But there is a more important rea-son for the separation of powers: “it may be too great temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage.” (Locke 1977 [1690]: 190). Th is passage captures a key argument that leads to the separation of powers. It is a practical solution to the need to avoid the arbitrary exercise of power that is a constant danger whenever rulers can both make the laws and apply them in their own cases, thereby eff ectively placing themselves above the law.

Locke had no diffi culty reconciling this view of the separation of pow-ers with the idea that the legislature is the supreme power, all other pow-ers being subordinate and derivative. He notes that executive power can be concentrated in a single individual, creating the impression that he is the supreme power. Moreover, such a ruler may have a veto over any leg-islation, and as such is not subject to the power of the legislature. Yet if such an executive acts contrary to the law, it cannot expect obedience. Th e branches of government hold fi duciary trusts (Locke 1977 [1690]: 192). Executive power is granted by delegation from the legislature and can be stripped away accordingly. And if the executive obstructs a legislature, the people have a right to reinstate their legislature, if necessary by force (Locke 1977 [1690]: 195–196). Franz Neumann (1949: lv) was far too harsh when he concluded that “Locke had no doctrine of a separation of powers,” and that he merely distinguished functions of state power and defi ned their role and relationship. It is true that he did not have a balance of power theory, and that he saw the power of the state as unifi ed in the people. But a theory that emphasizes popular sovereignty and parliamentary supremacy does not preclude the separation of powers. Locke was the fi rst author to clearly defi ne the legislature as a branch of government with a specifi c monopoly over the production of law, an idea attributed to Montesquieu by Neumann (1949: lxiii) among others; he also off ers a new, though unsatisfactory, way of thinking about executive power.


Montesquieu’s Doctrine Hobbes and Locke contributed to the separation of powers, but Th e Spirit of the Laws is the canonical statement, one that occupies a privileged place in law, legal theory, and public discourse. From the eighteenth century onward, the history of the idea of the separation of powers is in large measure the history of Montesquieu’s doctrine. In some respects the last great Aristotelian theo-rist, Montesquieu off ered the single most cogent statement of the separation of powers of his times. But he did more: he opened the door to sociological theories of law and society that would ultimately supplant Aristotelian con-ceptions of politics. As a transitional fi gure between the Aristotelian tradition and nineteenth-century sociological theory, the greatness of Montesquieu’s legacy lies in the fact that although he provided the authoritative statement of the doctrine of the separation of powers, he also—by placing the study of law on a social scientifi c basis—paved the way for nineteenth-century social theo-rists for whom the separation of powers represented a particular institutional expression of deeper social forces (Challenger 1994: 85–106). 9

One of Montesquieu’s central concerns was establishing constitutional government in the context of nation states—that is, on a larger scale, and with more permanence, than the republics of Greece and Rome (Shklar 1990: 266). Montesquieu was infl uenced by his travels to England, which he believed epitomized moderate government. England in the eighteenth cen-tury was not only an exemplar of constitutional monarchy, but was one of the most powerful states in Europe. Th is Montesquieu admired, for he thought despotism both immoderate and weak. A key problem with despotism was the way power was communicated (Montesquieu 1949: 64). Where the law is but the will of the ruler, he argued, power cannot be delegated without being lost. Th is is because lower level offi cials cannot always know what the will of the ruler is at all times, and thus tend to follow their own will. By contrast, in moderate governments, the laws are known to all in advance. One of the reasons this is so, is they are written down. “Writings contain something more permanent than speech,” Montesquieu noted in another context (1949: 194).

Writing aided moderate government in at least two ways. First, power could be counterbalanced when laws were written and hence known to more people in advance. Second, the law was less limited by the whims or capaci-ties of the ruler when those in power were compelled to make laws publicly known by writing them down. Th ese advantages would be lost, however, if those who wrote the law also decided how policies should be executed, and how the law should be applied to individual cases.


In Book XI of Th e Spirit of the Laws , Montesquieu followed the Aristotelian tradition of making a distinction between three sorts of power: the legislative, executive, and judicial (Montesquieu 1949: 151). Th e fi rst enacts laws; the second makes war/peace and establishes public security; the third punishes criminals. Montesquieu recognized that the three branches of power represent a sort of division of labor. Each has a function—“that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals”—and this division corresponds to the need to supply reasons, to act, and to judge causes (1949: 152). He was particularly careful to separate legislative and judicial powers: Judges are to be “no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigor” (1949: 159). Th e legislative power, on the other hand, “cannot try causes: and much less can it try the particular case” (1949: 159) except in the situation of impeachment. Executive, for its part, has no share in public debate, nor does it propose or raise money. It does control the coercive apparatus: the army should depend on executive, “its business consisting more in action than in deliberation.” (1949: 161).

Having distinguished the functions of government, Montesquieu then asserted his most famous thesis: “When the legislative and executive power are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or sen-ate should enact tyrannical laws, to execute them in a tyrannical manner.” (1949: 151–152). It is clear that what Montesquieu had in mind was not the distinction between presidentialism and parliamentarism (which has not yet made its appearance on the world historical stage), but rather the diff erence between absolutism and constitutional government (whether monarchi-cal or republican). For example, he criticized the power of state inquisitors in Venice and pointed to the institution of the “lion’s mouth” (into which complaints could be anonymously submitted) as illustrations of the problems arising when branches of government are not separated. Venice had a political system that divided powers between the council, pregadi and quarantia , but “these diff erent tribunals are composed of magistrates all belonging to one body” (1949: 153).

It is also important to note that Montesquieu appreciated the importance of judicial independence. Indeed, it was, for him, the essence of constitution-alism. “Th e very nature of the constitution requires the judges to follow the letter of the law” (1949: 75). Judicial power, “so terrible to mankind” (1949: 153), must be controlled. Judgments should be fi xed so that people know their obligations in advance. To this end, he stated, “there is no liberty if the


judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.” (1949: 152). At the same time, Montesquieu was also aware of the dangers posed by executive power. Th us, he allowed that the legislature may authorize the executive, “for a short and limited time,” to imprison people in face of “danger by some secret conspiracy against the state” (1949: 154).

Montesquieu was no democrat; he feared executive power in the hands of the people. Ancient republics gave the people too much executive power, he said: “the people had a right to active resolutions, such as require some execu-tion, a thing of which they are absolutely incapable.” (1949: 155). Th e people should have “no share in government” except to choose representatives. “For though few can tell the exact degree of men’s capacities, yet there are none but are capable of knowing in general whether the person they choose is better qualifi ed than most of his neighbors” (1949: 155). Th e legislature’s job is to enact laws and see that they are duly executed.

Montesquieu also realized that the power of the people would tend to be refl ected in the growing strength of legislatures. Because he feared that they would act against those distinguished by birth, riches, and honors, he emphasized the need to check their “licentiousness” by placing some legis-lative power in the hands of a body of nobles. Th is led him to propose two separate assemblies, representing distinct interests and views. One would be hereditary, the other elected. Th e hereditary body would veto, but not resolve. He also felt that the executive power must have “a right of restrain-ing the encroachments of the legislative body,” so that legislatures do not become despotic. A legislature that “might arrogate to itself what author-ity it pleased” would “soon destroy all the other powers” (1949: 157). At the same time, the legislature must have the power to hold the executive accountable.

In Montesquieu and Locke we fi nd the seeds of the theory of checks and balances that would be further developed by the Federalists. On the one hand, the executive power has a veto, otherwise it would be undone (1949: 159). At the same time, the two parts of legislature check each other, both checked by executive, as the executive is by the legislature. One of the most unsatisfactory aspects of Montesquieu’s theory is that it results in an oddly passive state. In equilibrium, the “three powers should naturally form a state of repose or inac-tion. But as there is a necessity for movement in the course of human aff airs, they are forced to move, but still in concert” (1949: 160).


In the long historical process by which the classical view of mixed consti-tutions morphed from the classical republican to the contemporary doctrine of the separation of powers, an important inversion occurred in our under-standing of the constitutional underpinnings of the state. Whereas the Greek historian Polybius extolled the virtues of mixed constitutions as a founda-tion for the projection of Roman state power, modern constitutional doctrine off ers an overwhelmingly negative, inertial view of the state in which the cen-tral purpose of constitutionalism is to constrain the state. Th is inversion was accompanied by the shift from orality to literacy, as political theory became increasingly about writing constitutions. Th ose like Rousseau, who admired Greek orality, were nervous about Montesquieu’s separation of powers; ratio-nalists like Kant tended to be more enthusiastic.

Montesquieu profoundly infl uenced both Rousseau and Kant. Rousseau never rejected the idea of the separation of powers, as is supposed by those who fi nd precursors of totalitarianism in his thought (Talmon 1960: 45). Quite the contrary, he argued for a very clear separation of powers. He expressed frustration with Montesquieu—this “brilliant genius,” he said, “lacked precision and sometimes clearness” (Rousseau 1967: 71)—but could not escape his infl uence. Th ere should be no mistaking the fact that Rousseau embraced the idea of the separation of powers. He did not accept that sov-ereignty could be divided, but he provided a powerful set of arguments for separating agencies of government. Th ese arguments rested on a key linguis-tic distinction, and one that is central to the separation of powers: general laws versus particular facts.

In the Social Contract , Rousseau asked how people could fi nd “a form of association which may defend and protect with the whole force of the com-munity the person and property of every associate, and by means of which each, coalescing with all, may nevertheless obey only himself, and remain as free as before” (1967: 17–18). His answer is a social pact in which each mem-ber “puts in common his person and his whole power under the supreme direction of the general will” and in return receives “an indivisible part of the whole” (Rousseau 1967: 18–19). Th is act of association creates a body politic or sovereign, which stands above the particular wills of the individuals that make it up (Rousseau 1967: 21). Th e “general will alone can direct the forces of the State” (Rousseau 1967: 27) and cannot be divided up or alienated.

Th ose who would divide sovereignty “make the sovereign a fantastic being, formed of connected parts; it is as if they composed a man of sev-eral bodies, one with eyes, another with arms, another with feet and noth-ing else” (Rousseau 1967: 29). Th e error, according to Rousseau, arises from


misunderstanding sovereignty, which lies in making laws, not in particular acts within a legal framework. Th us, for example, the executive power may declare war, but this is not an act of sovereignty: “the acts of declaring war and making peace have been regarded as acts of sovereignty, which is not the case, since neither of them is a law, but only an application of the law, a particular act which determines the case of the law, as will be clearly seen when the idea attached to the word law is fi xed” (Rousseau 1967: 29).

Th e object of laws is always general in nature. Laws are not concerned with particular individuals and their decisions. Th ere is “no general will with refer-ence to a particular object” (Rousseau 1967: 39). A legislative act is defi ned as a law only when “a whole people decree concerning the whole people” (Rousseau 1967: 39); “no function which has reference to an individual object appertains to the legislative power.” If the sovereign prescribes regard-ing a particular case, this is a decree of a magistracy, not an act of sovereignty (Rousseau 1967: 40). While Rousseau opposes the division of sovereignty , he in no way opposes the separation of government departments or agen-cies (Williams 2005: 454). In fact, his sharply defi ned ideas on the general nature of law and the requirement that law be the expression of the sovereign demand a specifi c division of labor between the sovereign legislature, the state as the government (or Prince), and its executive acts with respect to subjects (under which Rousseau apparently subsumes judicial acts).

Rousseau distinguished between legislative and executive power and insisted that nothing is, or should, be done without their cooperation (Rousseau 1967: 59). He likens the legislature to the heart of the state, the executive to the brain; and he categorically stresses the superiority of the for-mer, saying, “the brain may be paralyzed and yet the individual may live. . . . as soon as the heart ceases its functions, the animal dies” (Rousseau 1967: 93). Th e legislative power belongs to the people, it is part of the sovereign; but the executive power “is exerted only in particular acts, which are not within the province of the law.” However, there is a need for executive power because an agent is necessary to put into action the directions of the general will (which resides in the legislature). Th e executive, in this conception, is the government understood as an agent that exercises power in the name of the people (the general will) as it rules over the many particular wills, which are denoted with the term “subjects.” Th us, to achieve self-government, it is necessary that the people be both sovereign and subjects, which requires that the general will be conjoined to the executive power of the state by means of government. In eff ect, the sovereign (legislature) commands; government, which cannot legislate but only exercise executive power as a commission or employment


on behalf of the sovereign, acts on these commands—that is, gives them to the people—to ensure the obedience of the subjects who are, collectively, sovereign.

Everything being balanced, there should be an equality between the power of government and the power of citizens (who are both sovereign and subjects). “Further, we could not alter any of the three terms without at once destroying the proportion. If the sovereign wishes to govern, or if the magistrate wishes to legislate, or if the subjects refuse to obey, disorder suc-ceeds order, force and will no longer act in concert, and the State being dis-solved falls into despotism and anarchy” (Rousseau 1967: 61). In Rousseau’s vocabulary the words subject and sovereign “are correlative, the notion underlying them being expressed in the one word citizen” (Rousseau 1967: 96). Th e sovereign (that is, citizens assembled) cannot govern but can only make commands that are given to the government; the government cannot legislate, but can only exercise power, applying force to the law, which it gives to the people in the form or order; the subjects cannot disobey, for in obedience to their own will they achieve freedom. Much like Hobbes’s civil laws metaphor, fastened at one end to the mouth that gives the law and at the other end to the ears of the same head, Rousseau saw self-government as a carefully balanced chain of command and accountability, not a mecha-nism of checks and balances.

Rousseau had a conception of separation of powers, but one that empha-sized the need to subordinate the executive to the legislature—and both to the sovereign. He said explicitly: “Th e legislative power being once well estab-lished, the question is to establish also the executive power; for this latter, which operates only in particular acts, not being of the essence of the other, is naturally separated from it. If it were possible that the sovereign, considered as such, should have the executive power, law and fact would be so confounded that it could no longer be known what is law and what is not; and the body politic, thus perverted, would soon become a prey to the violence against which it was instituted” (1967: 102; emphasis added).

Like Hobbes and Locke, Rousseau recognized the importance of lan-guage in the construction of political order. In his essay On the Origin of Language, Rousseau stressed that writing crystallizes language and alters it, replacing expressiveness with exactitude (1996: 21). He also regretted the loss of public oratory, and said “any tongue with which one cannot make one-self understood to the people assembled is a slavish tongue” (1996: 73). In many respects, Rousseau’s social contract is Greek in its appeal to orality and the importance of face-to-face assemblies (1967: 70). He was drawn to small


states, saying: “Th e more the social bond is extended, the more it is weakened; and, in general, a small State is proportionately stronger than a large one” (1967: 49; also 61–63).

Montesquieu also infl uenced Immanuel Kant, who saw in the separation of power an idea of almost mathematical beauty. He off ered a conception of the separation of powers that, while radically diff erent from Rousseau’s, also emphasized the mutual dependence of the branches of government. For Kant, “Th e Form of the State is thus involved in the idea of the State.” Th e ideal furnishes the normal criterion (Kant 1887: 165). Whereas Rousseau vir-tually ignored the judiciary, Kant insisted that every state contains “THREE POWERS, the universal united Will of the People personifi ed in a triad” (1887: 165). Th ese powers correspond to the “Lawgiver,” the “Ruler who administers the law,” and the “Judge who assigns to each his own according to law” (Kant 1887: 166). Th ese elements— legislatoria, rectoria, judiciaria —take the form of a practical syllogism: Th e major part (legislature) lays down law; the minor part (executive) issues the command applicable to an action according to law; and the conclusion (judiciary) defi nes the sentence or judg-ment of right. Th ese three powers are coordinate, in that they complement each other to complete the constitution of the state (Kant 1887: 170). Th ey are likewise subordinate to one another, so that one cannot usurp the func-tion of the other. Each has its own principle and authority in a particular per-son but under the will of a superior. And, fi nally, by their union they assign rights. In short, the legislature is irreprehensible; the executive is irresistible; and the judiciary is irreversible (Kant 1887).

Kant suggested that an executive branch that lays down laws is “despotic,” not patriotic. Such power is paternal. Th ere are limits to the power of the leg-islature. On the one hand, a governor should stand under authority of law and be bound under the supreme control of the legislator. Yet the legislature may dispose a governor, but not punish him or her (Kant 1887: 172). Th is, accord-ing to Kant, is the proper and only meaning of the phrase “Th e King—as Supreme Executive Power—can do no wrong” (Kant 1887: 172). It means nei-ther the executive nor the legislature can apply punishment. Neither exercise judicial functions, but make appointments only. Th e limit of the judiciary is that a sentence is an act with no inherent power to determine anything. By the cooperation of these three powers, the state achieves autonomy . A state with a separation of powers realizes the greatest harmony between constitu-tion and right, which reason, by categorical imperative, makes it obligatory to seek (Kant 1887: 173).


As Carl J. Friedrich noted, Kant observed the link between the separa-tion of powers and Aristotelian logic (1950: 183). Th e resemblance between a logical syllogism and the separation of powers is based on the fact that “commands imply decisions, and decisions in turn imply judgment.” Th us, someone who sees a hat lying about may say “I will pick up that hat” or “I shall never allow hats to lie about” (1950: 183). Th e fi rst thought is a particu-lar decision, the second is a general rule. Powers can be classifi ed in terms of the types of decisions they involve. “Specifi c decisions and commands are the realm of executive power, general decisions and commands the sphere of the legislative power” (1950: 183); the former is “measure-taking,” the lat-ter “rule-making” (1950: 183). As for judicial power, “it stands between the two; for it transforms a general into a specifi c decision” (1950: 183–184). Th e judiciary determines when a particular case falls within a general rule. It is “more intellectual, less active” and does not command so much as decide (1950: 184).

Friedrich complained that critics of the separation of powers have “rarely shown any appreciation of these sound underlying observations” (1950: 184). And yet, the separation of powers “rests upon a broad logical and psycho-logical foundation” (1950: 188). It can occur at a variety of levels: in adminis-trative bodies, in quasi-judicial or quasi-legislative functions of commissions (1950: 184), and thus “the case for the separation of powers may be allowed to rest upon much broader grounds than are suggested by the limited doctrines of Locke and Montesquieu” (1950: 188).

Kant and Rousseau not only shared Montesquieu’s interest in the origin of law, but off ered a theory of the appropriate role and powers for the various branches of government in which the function of each is clearly defi ned and in which words like “correlative” or “coordinate” play a role. Th is conception of rule, as a chain of accountability in which all are subject to the rule of law, matches the institutions of parliamentary democracy. In Rousseau’s ver-sion, the people are always absolutely sovereign and can change not only the current administration at will, but also the form of government, including the social contract itself (Rousseau 1967: 106). Th e reconciliation of consent and obligation occurs by means of the construction of a chain of command and accountability in which the separate links all play their appropriate role. By contrast, the Madisonian ideal seeks to divide popular sovereignty against itself, so that there is no single will of the people—no general will—but rather multiple wills within the framework of a fi xed constitution, itself closed to discussion. Th e diff erence between the spirit of parliamentary and


presidential government is that the former deposits its trust in the people, the latter in the constitution. 10

Montesquieu in the Americas Montesquieu’s ideas had immediate, profound, and lasting implications. Leaders of newly independent states put his doctrine into practice in the New World, with unanticipated eff ects. Th e writing of constitutions from scratch was itself an unprecedented social experiment, one that Montesquieu would not have expected. Th e construction of a constitution de novo is a legacy of the French and American revolutions. It refl ects the degree to which the act of writing had come to take a central place in politics, and the crystallization of the idea of the politician as writer.

Two writers-cum-leaders stand out for their distinctive interpreta-tions of Montesquieu in the New World. James Madison’s careful read-ing of Montesquieu helped to shape the debates over the US constitution. Sim ó n Bol í var also drew on Montesquieu as he draft ed constitutions for the newly independent states of Latin America. Th ey were, in a sense, applied Montesquieuians. Th e task they set for themselves was to interpret Montesquieu’s ideas in a way that made sense in the New World. Th e inten-tion of the author mattered, but equally important would be the new context in which his ideas would be applied. As well-read yet active politicians, they were not social theorists in the contemporary sense. Born in the eighteenth century, both were long dead before the Communist Manifesto was published (I will return to the signifi cance of the rise of Marxism in the next chapter).

Already by the late eighteenth century the doctrine of the separation of powers had become popularized and misread. According to a simplistic ver-sion, what M. J. C. Vile (1998) calls the “pure theory,” although it is in fact neither pure nor a theory, there can be neither partial encroachment nor joint membership in more than one branch. Each branch “must be confi ned to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch.” 11 Th e latter part of this doctrine has three serious problems. First, no known political system could possibly sustain such a separation. Second, the doctrine cannot be attributed to any other major thinker. It is mythical in the sense that nowhere in the canons of constitutional thought has a serious constitu-tional theorist ever advocated the watertight separation of the branches of


government. 12 Th ird, it is incompatible with an understanding of the separa-tion of powers rooted in the importance of coordinating the various func-tions of government (Cameron and Falleti 2005: 249).

Madison dismissed the pure theory as misconceived: In England, he observed, “the legislative, executive, and judiciary” were “by no means totally separate and distinct from each other.” Th e executive was embedded in the leg-islature, and it also had the power to appoint and dismissed judges. Moreover, one part of the legislature, the House of Lords, had judicial functions. One cannot infer, nor did Montesquieu claim, that the branches of government should have “no partial agency in, or no control over, the acts of each other” (Madison 1941: 314, italics in original). Montesquieu meant “where the whole power of one department is exercised by the same hands that possess the whole power of another department, the fundamental principles of a free constitu-tion are subverted” (Madison 1941: 314–315, italics in original). His target was the absolutist state, not parliamentarism.

Montesquieu feared “that a monarch might enact tyrannical laws and enforces them tyrannically; that a judge might act as legislator; that a judge might serve the executive and become oppressive” (Cameron and Falleti 2005: 250). Th e English Constitution avoided this. In spite of Madison’s critique, the mythic doctrine is routinely evoked as a straw man for the purposes of criti-cizing parliamentarism. In fact, the separation of powers requires only that the legislature alone makes laws, that the executive exercises lawful control over the administration of the state, and that the judiciary impartially inter-prets the law and applies it in particular cases. It does not imply the absurd doctrine that a watertight separation must be imposed on the branches of government—a point to which I return in chapter 7.

Th e idea of checks and balances has more in common with the ancient notion of the mixed constitution than with the contemporary doctrine of the separation of powers, albeit with a twist. Th e Federalists did not see the dif-ferent branches of government as representing the interests of specifi c estates or classes, as in the theory of mixed constitutions (which also echoes pow-erfully throughout Montesquieu’s work). As Judith Shklar (1990: 277–278) put it, “Th e mixed constitution had, in fact, died early on in the Convention, when Charles Pinckney got up and said what everyone knew, that there was nothing to mix in America, the diff erence between the rich and poor was not so great as to require constitutional recognition. Neither Polybius’ Roman constitution, nor its equally mixed feudal successor had any relevance.” In the United States there was no obvious association of pouvoir (branch of govern-ment) and puissances (social groups) found in Montesquieu.


Th e metaphor of checks and balances creates a static, negative view of the state (much like the view of “veto players” theory of certain political sci-entists). It is a doctrine that seeks to restrain rather than explain the source of state power. 13 Admittedly, there is also a static quality to Montesquieu’s view of the separation of powers. Liberty is at a maximum, he claimed, when the three branches of government are in “a state of repose.” In this sense, the separation of powers institutionally embodies a negative, liberal conception of freedom, in which the absence of external constraint takes precedence over active self-government. Nevertheless, a good deal of confusion can be avoided by simply thinking about the branches of government as agencies that monopolize diff erent kinds of powers. Only the legislature can legislate. Only the courts can interpret and apply the law with respect to particular cases. Th e executive has a legal monopoly on the use of force. As long as these conditions hold, the separation of powers is in eff ect.

Th e interpretation of the separation of powers had a very diff erent fate in Latin America. With independence at the outset of the nineteenth cen-tury, many Latin American nations adopted written constitutions, generally modeled on France and the United States. Conservative cultural theorists like to suggest that Locke was the main infl uence on US constitutionalism, while Latin America succumbed to Rousseau’s authoritarian temptations. In fact, the same theorists were read by the framers of both the US and Latin American constitutions. Th e diff erence is not the susceptibility to French radicalism of Latin American constitutional thought, but rather its greater conservatism. Th e spirit of the French Revolution and its intellectual under-currents infl uenced Latin American intellectual elites, as did the events in Philadelphia, yet the texts of authors like Locke, Montesquieu, and Rousseau were read under entirely diff erent circumstances: “Infl uenced by the politi-cal and economic ideas of the Enlightenment at the time of their political independence, the ruling elites imposed upon Latin America theories that refl ected little or none of the local socioeconomic environment” (Burns 1980: 8). Th e struggle for Independence was not revolutionary; it brought about a conservative republicanism that expressed the values, and protected the interests, of American-born (or criollo) elites.

Th e printing press provides a valuable lens for understanding the limits of the independence movement. In contrast to the rapid spread of the printing press in North America (Anderson 1983: 62), until the end of the eighteenth century there were only a handful of printing presses in cities like Mexico City, Lima, Buenos Aires, and Havana (Earle 2002: 22–24). Th e press was kept “under the tight control of crown and church” (Anderson 1983). Th e


spread of print culture in eighteenth-century Mexico may have contributed to the formation of public opinion and a growing sense of nationalism. Th ere was a notable proliferation of political publications in the years leading up to independence. In other parts of the New World, however, there were few established and active presses. Where there were, in New Granada and Peru, for example, much of what was in fact printed was politically conservative and catered to an aristocratic audience (Earle 2002: 13–15). Indeed, the print-ing press spread most rapidly aft er, not before, independence was achieved; indeed, the wars of independence may have done more to stimulate the print-ing press than vice versa.

Print capitalism did not develop to the point of encouraging “a permanent Spanish-America wide nationalism” (Anderson 1983: 63). As Baron Alexander von Humboldt observed of the Spanish American wars of Independence: “It’s quite extraordinary to see in modern times that an establishment of this sort [the printing press], which off ers the best means of communication between men, has followed and not preceded a political revolution” (quoted in Earle 2002: 9). Rebecca Earle (2002: 30) concludes that nowhere in Spanish America was the printing press a decisive cause of revolution, though it was “one aspect of a broader transformation of political culture” and its spread was fostered by independence. Th e spread of the press aft er independence went hand-in-hand with the adoption of written constitutions, support for freedom of the press, and recognition of the need for educational reform. At the same time, elites never lost their instinct for self-preservation and fear of the masses. Government would be accountable to the people, but this “was taken to mean ‘citizens,’ men who were civilized—that is, literate and ratio-nal.” (Barman 1988: 168). Literacy was encouraged, especially for the criollo elite and other “European” strata, but reading and writing among the masses was given less priority.

Sim ó n Bol í var was the dominant fi gure in nineteenth-century Latin American constitutional thought, and he remains a potent infl uence to this day. 14 Tutored by Sim ó n Rodr í guez, 15 he was a man of both learning and prac-tical experience. He was familiar with Aristotle and Plato, aware of Draco, Solon, and Lycurgus, and heavily infl uenced by Enlightenment thinkers like Voltaire, Rousseau, and Montesquieu. He was also familiar with English political theorists, including Hobbes and Locke, with the framers of the US Constitution, and with Aquinas and Las Casas. Bol í var traveled in Europe during Napoleon’s rule and styled himself aft er Bonaparte. All these infl u-ences combined to produce a multidimensional constitution maker and political theorist of great complexity, even contradiction (Bela ú nde 1970).


Bol í var’s constitutional design tended to emphasize the following ele-ments: a unitary rather than federal state; a strong executive, with a lifetime president and substantial powers of appointment (including the power to choose a successor with congressional approval); indirect election of some offi cials; a moral power, an idea drawn from Roman thought, to be exercised by Censors (to oversee schools and individual behavior, as well as protect the constitution and the rights of the people); a legislature composed of Tribunes, Senators, Censors (with diff erent legislative responsibilities); a judiciary cho-sen by senate from triple lists proposed by electoral college; a supreme court chosen from triple list proposed by senate (Fitzgerald 1971: 7–9). Th is format is sometimes called “democratic Caesarism” (Bela ú nde 1970: 208), partly due to the Roman provenance of some of its elements, partly because of the high level of centralized executive authority, and partly to emphasize the mixed or hybrid nature of this constitutional setup.

In justifying his conception, Bol í var oft en referred to the medieval idea that mixed constitutions are superior to pure ones. Th us, in proposing a con-stitution for Colombia, he sought to “draw on all systems of government, but I do not want to partake of all their vices” and claimed to be guided by a prag-matic maxim: “Do not adopt the best system of government, but the one that is most likely to succeed” (Bol í var in Fitzgerald 1971: 41). Bol í var’s constitu-tion for Bolivia is an explicit example of a mixed constitution, one that com-bines a life-term president with a system of Tribunes, Senators, and Censors. Bol í var preferred a hereditary senate, in part because he liked the British House of Lords. Criticized for this, he resorted to the argument for mixed constitutions: “Th e function of my senate is to temper absolute democracy and to adjust the format of an absolute government to that of more moderate institutions; for today it is an accepted principle of politics that an absolute democratic government is as tyrannical as any despot; hence, only a hybrid government can be free. How would you have me temper democracy except with an aristocratic institution? Since we must not cross the monarchic with the popular form of government that we have adopted, we should, at least, make a place in the Republic for one permanent body to ensure stability. Without stability, any political principle becomes corrupt and terminates in self-destruction” (Fitzgerald 1971: 69).

In Bol í var’s hands the theory of mixed constitutions was used to neutralize the more radical democratic content of republican government, and the the-ory of the separation of powers is used to justify centralized authority. Bol í var drew on Montesquieu to argue that laws should be suited to peoples, and that Spanish American laws and institutions need to be diff erent from English


American laws and institutions. He insists on the “climatic diff erences, geog-raphy diversity, confl icting interests, and dissimilar characteristics” of Spanish America, and claims that the North Americans have greater virtue and moral rectitude. Consequently, Spanish Americans should not adopt features of the United States Constitution that are inappropriate—such as federalism, which is “over-perfect, and it demands political virtues and talents far superior to our own” (In Fitzgerald 1971: 41).

Behind Bol í var’s paternalism (“most men are unaware of their best inter-est,” he once said) was not an excessive infl uence of Rousseau but a deep ambivalence toward the indigenous peoples of the Americas, rooted in part in a justifi able lack of confi dence in the ability of the Creole elite to govern itself. Surveying the postcolonial landscape, Bol í var compared the Spanish American republics with Europe aft er the fall of Rome, but complained that Spain had denied the American elite even the experience of “active despo-tism.” “We are not Europeans; we are not Indians; we are but a mixed species of aborigines and Spaniards. Americans by birth and Europeans by law, we fi nd ourselves engaged in a dual confl ict: we are disputing with the natives for titles of ownership, and at the same time we are struggling to maintain our-selves in the country that gave us birth against the oppression of the invaders” (In Fitzgerald 1971).

Only strong central authority could hold together fi ssiparous, divided societies: “Th e diversity of racial origin will require an infi nitely fi rm hand and great tactfulness in order to manage this heterogeneous society, whose complicated mechanism is easily damaged, separated, and disintegrated by the slightest controversy” (In Fitzgerald 1971: 54). Over and again, Bol í var exhorted his compatriots to fi nd unity in republican government. But unity was hard to reconcile with the doctrine of the separation of powers, much less US-style constitutional checks and balances. Th us, without embracing the Westminster parliament, Bolívar steered toward the English model, with its mix of hereditary and elective institutions, and its strong executive authority in cabinet. In doing so, however, he betrayed his paternalism. In his Angostura Discourse, Bol í var proposed that senators should be not only hereditary, but should be trained in a special college “to learn the arts, sciences and letters that enrich the mind of a public fi gure” and thereby become the neutral power (and the “fundamental basis of legislative power”) that would balance and neutralize the mutual attacks between the people and the government.

A strong sense of the physical and moral inequality of men was one source of Bol í var’s paternalism, and it was linked to a revealing comment that the constitution “interprets the laws of Nature.” Th e idea is that senators will be


especially fi t to enact codes of law and ecclesiastical regulations, to supervise courts and worship, and to appoint judges, prefects, and governors (as in the Bolivian Constitution). Th e Senate is to be composed of men of exemplary moral virtue. “Codes, systems, statutes, wise as they may be, are useful works having but small infl uence on societies: virtuous men, patriotic men, learned men make republics.” By the same token, the Censors, operating like the Areopagus of Athens or Censors of Rome, will prosecute the government, defend the constitution, safeguard the press, and be entrusted the “preserva-tion of our sacred tablets” (In Fitzgerald 1971: 98). Th e Censors also monopo-lize moral virtue.

Bol í var was creative in adapting ideas from diverse traditions, including Greece, Rome, England, the United States, and France, all the while insisting that laws and institutions must be made appropriate to local conditions. Yet he never proposed to build on indigenous traditions since Latin America had, in his view, no usable history. Newly devised constitutions, statutes, laws, and property rights would be graft ed onto recalcitrant, backward societies. Th e liberal views that predominated were those with the greatest affi nity to racism and centralized executive power—the Social Darwinism of Herbert Spencer and the authoritarianism of Auguste Comte, for example. Congresses were created, but they were designed to buttress the Creole political class, not as mechanisms for democratic representation; they “obeyed, without knowing it,” as Andrés Bello put it, “Gothic inspirations” (quoted in Zea 1963: 37).

Conclusion Th e printing press contributed to the spread of reading and writing. Its initial impact was to reinforce monopolies of knowledge, for example in absolutist states and the Roman Catholic Church. Over time, however, the spread of the ability to read and write, the democratization of literacy, in a sense, contrib-uted to reform within both church and state and the separation of the two. With the new critical spirit came a diff erent understanding of the law, more contractual and less scriptural. Greek constitutionalism and Roman law were vital elements in this new emphasis on the human mind, rather than nature or divinity, as a source of law. If law comes from human eff ort, then institutions matter. Th eorizing about the role of legislatures, courts, and executives was sharpened, and this opened the door to constitution-making as a conscious, adaptive, and evolutionary activity. Th is new spirit of the laws informed both the French and American revolutions, as well as constitutional traditions in those parts of the world colonized by the West.


From Fortescue’s worries about the “strictness of the words of the law” (1997: 95), and the need to reconcile written law and custom, to Hobbes’s construction of an artifi cial commonwealth made of laws, understood as words and the commands they are used to form, to Locke’s attempts to set aside the Bible and elevate the legislature as the place where law is written, we observe a succession of attempts to theorize how words are used to write laws, by whom, and under what conditions. Montesquieu’s doctrine of the separation of powers was a brilliant and infl uential synthesis of these ideas. Th e contrasting reactions of Rousseau and Kant help us to understand why Montesquieu’s theory was both controversial and infl uential. For Rousseau, whose bias was in favor of orality and small-scale democracy, the separation of powers was fi ne provided it did not divide popular sovereignty, for there could be multiple branches of government but only one general will. Kant had no such reservations, seeing in the separation of powers the order and symmetry of a logical syllogism and a basis for the hierarchy of laws.

Th is chapter and the previous one have traced the history of the idea of the separation of powers from early theorizing about law in ancient civili-zations and the recognition of the distinction between deliberation, execu-tion, and judgment in ancient Greece and Rome, to the rise of legislatures and the idea of lawmaking as an activity distinct from administration and enforcement. Th is culminated in the idea that every action by a public offi cial must be executed in a manner consistent with a valid general rule and backed, where necessary, by a legal judgment. In next chapter we examine how this idea fared in the face of the social question and twentieth-century challenges to liberalism.

5

Electronic Media, Mass Politics, and Electoral Democracy

Opinion is now supreme, and Opinion speaks in print. benjamin disraeli (1844 [1983]: 374)

. . . complete obedience to the will of the State . . . complete uniformity of opinion on all subjects, now existed for the

fi rst time. george orwell (1949, 177–178)

Montesquieu’s work represents a watershed between eighteenth- century political philosophy and nineteenth-century social theory. His doc-trine had ancient roots (Vile 1967; Fritz 1954; Friedrich 1950; McIlwain 1958), but he was also a forerunner of sociology in the sense that he explained public and constitutional law, not as part of a natural order, but as social facts to be analyzed comparatively. By establishing the idea of law as general and abstract rules, Montesquieu upheld public reason against the absolute sovereignty of rulers. As legislatures came to monopolize lawmaking, the spread of newspapers brought publicity to parliamentary deliberations. Legislatures became organs of translation of public opinion into law. Benjamin Disraeli had expressed a nineteenth-century conceit when he wrote the lines quoted at the top of this chapter. Th e opinions that spoke in print were those of literate and privileged men, however, and their monopolies of power and knowledge would soon be challenged by the emergence of new social forces.

Just as Plato had challenged the Homeric oral tradition by off ering a more systematic approach to understanding politics, so Marx, Durkheim, and Weber overturned classical ideas about law and politics dating back to Aristotle and Plato. For Marx, constitutions masked class interests, and public opinion was oft en little more than false consciousness. Durkheim dismissed the Aristotelian classifi cation of political systems (the one—kingship; the

Electronic Media, Mass Politics, and Electoral Democracy 109

few—aristocracy; the many—democracy), and redefi ned democratization in terms of the spread of collective consciousness within an expanding division of labor. Weber was a strong constitutionalist—in fact, he was an architect of the Weimar Constitution. He did not belittle the importance of consti-tutional arrangements. But he also understood that there were forces in the modern world making the future of constitutionalism uncertain. He observed, for example, that two things went hand-in-hand: the modern free enterprise fi rm and the public bureaucracy. Both refl ected the spread of a rational, cal-culative mentality. Th e danger, for Weber, was that democratic politics would be susceptible to irrationalism and the infl uence of demagogues because they appealed to that part of the individual that seemed to be lost—a longing for meaning, a calling.

For the social theorists of the late nineteenth and early twentieth cen-tury, the separation of powers came increasingly to be seen as an epiphe-nomenal refl ection of class struggles, part of a larger evolutionary process, or a feeble bulwark against the terrifying consequences of such processes. Marx, Durkheim, and Weber are rightly seen as the immediate forerunners of contemporary social science because they completed the shift in politi-cal thought, begun by thinkers like Montesquieu, from speculation about ideal political systems to conjectures about the law-like forces govern-ing social evolution; from “normative deductivism” to empirical science (Th ornhill 2011: 1).

Th e powerful advances of technology during the Industrial Revolution impressed social theorists with the need for a more scientifi c approach to the study of society, while the Darwinian synthesis in biology suggested the possibility that societies change according to deeper evolutionary laws. Marx, Durkheim, and Weber contributed to understanding social forces both in terms of meaningful action and as shaped by impersonal mecha-nisms “beyond willful human decisions and purposes” (Arendt quoted in Pitkin 1998: 15). Each attempted to understand and shape the consequences of the Industrial Revolution. Th e idea of the separation of powers persisted aft er the eighteenth century, and—unlike the traditional Aristotelian clas-sifi cation of political systems—was never entirely abandoned. Although it formed part of the philosophical tradition that began with Plato and Aristotle and that Hannah Arendt (1961: 17) said ended with Marx, the separation of powers persisted in the vocabulary of politics, albeit mainly as a doctrine associated with law in representative democracies. Changes in social conditions contributed to new modes of theorizing about politics and society.


Th e “social question,” as it was called, was the most important mac-ro-social change that occurred in European societies in the nineteenth and early twentieth centuries. Political regimes were transformed by the entry of the masses into politics and the struggle for the franchise. Between 1870 and 1920 the overwhelming majority of European states became democratic (Rueschemeyer, Stephens and Stephens 1992: 79–83). Mass politics was accompanied by improvements in communications, especially electronic media, which meant an ever-widening public of avid readers. In this respect, the nineteenth century was a period of rapid technological change in mass media. German printers tripled the velocity of the printing press by applying steam power, the main source of energy in the nineteenth century. Th is was followed by the invention of the rotary press, which used continuous roles of paper and enabled double-sided printing. Linotype was invented in the 1860s. Technological changes such as these, as well as advances in the production of paper, made printing easier and cheaper. More books were published and read than ever before. Th e invention of the telegraph in the mid-nineteenth century accelerated the pace of news and expanded newspaper circulation. More readers could read exactly the same news simultaneously. Th e telegraph accompanied and oft en preceded the expansion of railways. Newspapers fl ourished and journalism became not only a major profession, but also an important political force.

In recognition of the critical importance of literacy for production, states began to assume a greater responsibility for education, previously the exclusive purview the church. Th e right to read and write involved positive responsibilities that states were obliged to guarantee. As Barrington Moore Jr. (1966: 439) noted, public education was an aspect of the “rationalization of the political order.” “Literacy and rudimentary technical skills are necessary for the masses,” he continued. “Setting up a national system of education is very likely to bring on a confl ict with religious authorities. Loyalty to a new abstraction, the state, must also replace religious loyalties if they transcend national boundaries or compete with one another so vigorously as to destroy internal peace.” Rationalization of the political order also had a dark side: the state began to assume a role in shaping public opinion, and yet mechanisms of democratic accountability were weak in part because with new media of communication, so nondemocratic leaders easily captivated the public with demagogic rhetoric.

Weber anticipated the awesome and terrible power of modern bureaucra-cies captured by irrational forces with science and advanced technology at their disposal. What came to be called the “totalitarian” dictatorships of the


early twentieth century not only used new and more powerful technologies of war, propaganda, surveillance, and control; these instruments were monop-olized by a political party and deployed to shape collective opinion. In the brave new world of electronic communication, centralized political power, not public opinion, would be supreme: “complete uniformity of opinion on all subjects,” in George Orwell’s words, was now conceivable. Public opinion, the nineteenth century’s supreme sovereign, would become the abject subject of state control and manipulation. In Nineteen Eighty Four , Orwell created an imaginary world in which political conformity was developed to the point that language itself was placed under state control. Th e rise of totalitarian state power had a disquieting eff ect on constitutional thought. An ideologue of the Nazi state, Carl Schmitt, argued that the constitutional separation of powers, like liberalism itself, was a doctrine rather than a theory of politics, and a doctrine that only applied under normal conditions—that is, in the rule of law under the liberal constitutional state. Th e separation of powers was irrelevant in exceptional situations, as when the existence of the state was called into question by total war.

Even within democratic states, the spread of administration and the expansion of the welfare functions of modern states highlighted the threat bureaucracy posed to democracy. By the mid-twentieth century, the utility of the idea of the separation of powers was very much in doubt. As a result, theories of democracy became divorced from the separation of powers, and indeed from law and public deliberation. Joseph Schumpeter was the primary exponent of a more “realistic” theory of democracy. Following in the foot-steps of Schmitt and Weber, Schumpeter downplayed the role of deliberation and notions of the good. He argued that politics was war by other means. Th e realistic defense of democracy involved drawing an analogy between politics and markets. In this conception, the separation of powers essentially vanished. Th is remains an infl uential current in democratic theory to this day.

Th e Social Question: Marx, Durkheim, and Weber

Marx, Durkheim, and Weber undermined the way the separation of powers had been theorized from Aristotle to Montesquieu. Marx’s critique of the bourgeois constitutional state helped discredit the doctrine of the separa-tion of powers, which he dismissed as epiphenomenon: “the doctrine of the separation of powers proves to be the dominant idea and is expressed as an ‘eternal law’” in an age in which “royal power, aristocracy, and bourgeoisie


are contending for mastery” (Marx 1978: 173). He sought to unmask the illu-sions of liberal constitutionalism and show how the principles enshrined in the Declaration of the Rights of Man and of the Citizen, by leading to political emancipation without addressing capitalist exploitation, resulted in alienation. For Marx, the political revolution that gave us Montesquieu’s illu-sion of liberty must be superseded by a social revolution to achieve human emancipation in which social and political power are no longer separated. Democracy was an “‘ought’ whose realization is impossible” (1978: 38) as long as it occurred without the collective emancipation of workers from capitalist exploitation.

Bourgeois democracy could not, in Marx’s view, accommodate the social class emerging as a consequence of capitalist development: the proletariat. Th e proletariat posed a fundamental threat to bourgeoisie property rights, in the face of which the bourgeoisie would always surrender its liberal freedoms in the interest of its privileges. In Th e Eighteenth Brumaire of Louis Napoleon Bonaparte, Marx’s most “glittering historical analysis” (Miliband 1983: 53), he argues that constitutional guarantees of bourgeois democracy would be swept aside, replaced by overweening executive power, when faced by a major chal-lenge from the proletariat. Under what he called Bonapartism, “the ruling class in capitalist society is no longer able to maintain its rule by constitutional and parliamentary means; but where the working class is not able to affi rm its own hegemony either” (Miliband 1983: 53). 1 Th e idea that republicanism repre-sented liberty was an illusion: Th e “bourgeois republic signifi es the unlimited despotism of one class over other classes.” Th e proof of this is the “victory of Bonaparte over parliament, of the executive power over the legislative power, of force without phrases over the force of phrases” (Marx 1951: 300). Marx also rejected the idea of parliament as an instrument of popular will: “In par-liament the nation made its general will the law, that is, it made the law of the ruling class its general will. Before the executive power it renounces all will of its own and submits to the superior command of an alien will, to authority.” Marx suggested that events in France, though on the surface a setback for the proletariat, were in fact a prelude to more thorough-going revolution. “First it perfected the parliamentary power, in order to be able to overthrow it. Now that it has attained this, it perfects the executive power, reduces it to its purest expression, isolates it, sets it up against itself as the sole target, in order to con-centrate all its forces of destruction against it” (Marx 1951: 301). In this way, by creating strong, centralized government, based on an enormous bureau-cracy and a repressive army, Bonaparte would unite all classes against him in a future proletarian revolution.


Marx anticipated the extraordinary power that would be concentrated in the executive branch of the state as capitalism matured, but by reducing the separation of powers to Montesquieu’s doctrine he failed to appreciate that theorizing about the separation of powers was much older than liberal con-stitutionalism. We have seen that the idea of the separation of powers can be traced back to ancient times, and that any state that seeks to coordinate collec-tive action on a large scale confronts problems that the separation of powers is designed to overcome. Marx’s failure to theorize the separation of powers contributed to the tendency toward unchecked bureaucratization in socialist revolutionary systems, as Weber observed. Th e same mistake is apparent in the best essay on the separation of powers in the twentieth-century Marxist tradition, Louis Althusser.

Although he wrote a century later, Althusser off ered an interpretation of Montesquieu that Marx would certainly have embraced, one that sought to expose the separation of powers as a defense of the interests of the nobility. He noted that Montesquieu uses “power” in two senses: pouvoirs for branches of governmental power; and puissances for social groups (the king, the nobility, and the people) (Althusser 1982: 91). “Th e famous separation of powers is thus no more than the calculated division of pouvoir between determinate puis-sances : the king, the nobility and the ‘people.’” If it is true that it “is not mere respect for legality, it is the balance of powers” that interests Montesquieu, then, “to whose advantage is the division made?” (Althusser 1982: 91, italics in original). Since it is easy to fi nd examples of encroachments that are allowed by Montesquieu, which ones, Althusser asks, are absolutely excluded (1982: 92)? He fi nds two. First, the legislature may not usurp the executive power (though the reverse can occur without a loss of moderate government). Second, the control of the judiciary by the executive brings about the collapse of monarchy into despotism. Th is is of special importance for protecting the nobility against the king (the examples of Louis XIII and Henry VIII come to mind). Th e nobility gains two advantages from his project, according to Althusser: control over the upper chamber, and guarantees of its privileges against both king and people. Th e king gets the benefi ts of “ the social and political rampart of the nobility against popular revolutions.” (1982: 93, ital-ics in original). Th e nobility balances the representation of the people in the legislature. In the end, concludes Althusser, Montesquieu off ers a defense of monarchy.

Althusser’s brilliant analysis is insightful and essentially accurate, yet it must be appreciated that he was dealing only with the legal doctrine of the separation of powers and its implications. He made no eff ort to provide an


alternative, Marxist, theory of the separation of powers. His error (less forgiv-able in the latter half of the twentieth century than in the nineteenth century when Marx wrote) was to fail to understand that the absence of adequate theorizing about the separation of powers within Marxism contributed to a tendency toward bureaucratization wherever Marxist principles were adopted in “actually existing” socialist systems. 2 Any political system based on the use of written texts, including socialism, must confront the problems associated with the use of text to coordinate collective action. Law serves purposes in a literate polity that cannot be reduced to class domination. Although Marx’s failure to theorize the separation of powers was a costly error, his assertion of the primacy of deeper social forces over constitutional order was entirely consistent with the times.

If Marx saw the separation of powers as epiphenomenal, Durkheim reduced it to an aspect of the broader process of social evolution. Durkheim was also interested in understanding the ramifi cations of the spread of social consciousness that was occurring with the development of an increas-ingly complex and extensive division of labor in society. He championed Montesquieu as a “forerunner of sociology,” and the founder of the induc-tive study of comparative law, but he buried Montesquieu’s focus on political institutions under a theory of social change. 3 Th e separation of powers was incorporated into Durkheim’s sociology as an aspect of the division of labor, “merely a particular form of the principle that the various public functions should be performed by diff erent persons” (Durkheim 1960: 30).

Up to the eighteenth century, political systems were routinely classifi ed in static Aristotelian terms. It was widely accepted that constitutions could be monarchic, aristocratic, and democratic; the inherently degenerative ten-dencies in all political systems tended to produce further subtypes such as tyranny, oligarchy, or anarchy. Durkheim praised Montesquieu’s addition of republican government in this typology, and his recognition that republican-ism could be either aristocratic or democratic, but he stressed that “the kinds of society should not be confused with the diff erent types of state” (1960: 9). Durkheim questioned Aristotle’s tendency to defi ne types of political systems in terms of numerical criterion (that is, how many people rule). In the Aristotelian schema, the rule of one was monarchy or tyranny; the rule of a few, aristocracy or oligarchy; the rule of many, polity or democracy. As Durkheim pointed out, however, diverse types of societies can be encom-passed under these labels (1960: 9).

Durkheim also parted company with Aristotle in a second, deeper sense. Infl uenced by the emergence of modern science, he espoused a positivist


philosophy of social science that required a separation between the subject and the object of study: “either social phenomena are incompatible with science or they are governed by the same laws as the rest of the universe,” he insisted (Durkheim 1960: 10). In laying out this dichotomy, Durkheim neglected the possibility of an interpretive science in which social phenom-ena are understood using methods distinct from the natural sciences. “Th e subject matter of science can consist only of things that have a stable nature of their own and are able to resist the human will,” (1960: 12) he claimed. Durkheim downgraded the practical value of the study of politics in favor of a theoretical science. Machiavelli, for example, was dismissed because he “regarded laws as mere instruments that princes can use as they see fi t” (Durkheim 1960: 21).

Like Marx, Durkheim was powerfully infl uenced by Darwin’s theory of evolution (Giddens 1971: 79). Just as competition among species resulted in a process of natural selection, competition among individuals led to the divi-sion of labor (Lukes 1985: 170). Th e separation of powers was merely part of this evolutionary process—as Steven Lukes (1985: 282) put it, “a particular form of the division of labour, preserving freedom through mutual balance.” Durkheim thereby turned Montesquieu into a precursor of modernization theory for whom political freedom was the outcome of the progressive devel-opment of society. Although he regretfully noted that Montesquieu’s work lacked a concept of progress, he believed that his own theory—that the ten-dency toward the development of more complex, diff erentiated, occupation structures within bureaucracy was a general social law—supplied the basis for understanding political diff erentiation.

Durkheim set for himself the challenge of reconciling a complex divi-sion of labor and moral integration. Th e former implied individuals linked together primarily through secondary associations. Th e latter was threat-ened by the “ill eff ects” of association. His solution was Kantian: the state, understood as an embodiment of collective consciousness, was an organ of social thought “whose responsibility it is to work out certain representations that hold good for the collectivity” (Durkheim 1960: 40). Dismissing the Aristotelian idea that the state combines executive, deliberative, and judicial elements, Durkheim argued that the state is exclusively deliberative: it “does not execute anything” (1960: 41). Judicial and legislative activity, on the other hand, becomes “almost continuous,” so that “law has penetrated into spheres of social life from which it was formerly absent” (Durkheim 1960: 48).

Durkheim’s work might be considered an unacknowledged forerunner of deliberative democracy. He saw the progressive expansion of the state as


necessary to ensure the “cohesion of opinions and beliefs scattered among individual consciousness” (Durkheim 1960: 46), which could otherwise lead to unthinking, violent crowds. Th e “collective consciousness” of the society is embodied in the deliberations of the state. What makes a state democratic is the spread of conscious deliberation throughout society so that “the milieu called political is observed and checked by every one, and the result of this observing and checking and of the refl ections they provoke, reactions on the government milieu” (Durkheim 1960: 57). In other words, democracy occurs when everyone “asks himself the questions those governing ask themselves” so that the state “can no longer disregard what the people are thinking” (Durkheim 1960: 56). Collective consciousness, rather than separation of powers, would check the abuse of state power.

Durkheim saw no tension between the expansion of the state and the rights of the individual. A democratic system was not one in which the state was weak. Th e diff erentiation of governed and government was part of the emergence of politics as a distinctive sphere of activity, crucial to the achieve-ment of the ends of individuals and groups, and to resolving the confl icts between them consistent with the moral cohesion of society. Th e process of diff erentiation made it all the more important that there be institutions like the media, education, elections, and deliberative assemblies, to ensure com-munication between citizens and the organs of government. Durkheim’s grasp of the importance of communication and social cognition enabled him to see that a strong, well-constituted state would be a guarantor of democracy, not a threat (Giddens 1972: 19; Durkheim 1972: 194–199).

Like Durkheim, Weber understood the separation of powers both as part of a deeper transformation of society and as a constitutional doctrine. He also saw constitutions as mechanisms for social integration. He did not share Durkheim’s optimistic view of social progress and the state, however, nor did he, like Marx, dismiss constitutions as epiphenomena. In fact, he helped draft the Weimar Constitution. Weber saw that the separation of powers was part of the process of the rationalization of the state. In Politics as a Vocation , he emphasized that the state can be defi ned in terms of the means specifi c to its operation: the monopoly of the legitimate use of physical force (Weber 1958: 78). Although there are many forms of rule, the legal-rational form based on juridical rules and literate administration requires organized domination by means of a professional staff . Th e staff is separated from the means of adminis-tration, just as the management and ownership are separated in modern fi rms. Parliamentary supremacy helps unify the state apparatus. Specifi cally, Weber called attention to the rationalization and specialization of bureaucracy in


which professionals, largely lawyers, supplanted amateurs throughout the public administration. He traces this process to the Roman legal foundations of absolutist rule, but sees it as a specifi cally modern change.

Weber crucially distinguished the constitutional separation of powers from what he called the “functionally specifi c division of powers,” which means “entrusting diff erent individuals with specifi cally diff erentiated ‘functions’ and the corresponding powers” (Weber 1978: 282). Whereas the constitutional doctrine refers to a rational, formally enacted (although not necessarily written) constitutional form, the functionally specifi c division of powers can be found in earlier patrimonial and even theocratic systems. In such systems, certain functions—the administration of justice, fi nance, or the military establishment—are separated, but there are few restraints on supreme executive authority. In Weber’s view, the development of the consti-tutional separation of powers introduces “calculability into the functioning of the administrative apparatus” and favors “formal rationalization” (Weber 1978: 284). Whereas the functionally specifi c division of powers may occur in any state institution, the constitutional doctrine of the separation of pow-ers occurs only in the strictly legal-modern type of state. Weber emphasized the need for a rational and disciplined bureaucracy, based on objectivity and generality (see Carolan, 2009: 141–144). In a legal-rational state, every action by a state offi cial would be covered by a general rule. In the fi eld of administra-tion, as distinct from legislation or justice, offi cials have a certain freedom to act according to circumstances; however, “in principle a system of rationally debatable ‘reasons’ stands behind every act of bureaucratic administration” (Weber, 1958: 220). Public service was to be organized according to a set of predictable rules; and the effi cient and rational pursuit of the general interest was to be achieved through administration. Failure to place administration on such a rational basis would risk unleashing unrestrained bureaucratic domi-nation. Weber acknowledges the role of language in the process of rationaliza-tion. In the past, he says, “one learned to produce Latin speeches and Greek verses in order to become a political advisor to a price and, above all things, to become a memorialist” (1958: 92). Th e emphasis on recitation and bio-logical memory was replaced with the logic of rational law. Th e birth of “the evolving rational state has been borne by trained jurists” (1958: 93). Weber clearly sees this as a democratizing process, asserting that since the French Revolution “the modern lawyer and modern democracy belong absolutely together.” Democracy provides a means of settling diff erences peacefully, and the essence of rationalization is the conduct of politics in public by spoken and written word rather than violence. “To an outstanding degree, politics


today is in fact conducted in public by means of the spoken or written word” (Weber 1958: 95).

Weber recognized two threats to a liberal political system: that rational-ization in the form of bureaucracy can plant the seeds for its own kind of madness, and that the process of rationalization can contribute to the plebi-scitarian tendencies of modern mass democracy. In exploring the tension between bureaucracy and demagoguery, Weber is attentive to the changing role of language and media. As in the past, he says, demagoguery “makes use of oratory,” but modern demagogues recognize the value of the printing press, for “the printed word is more enduring” (Weber 1958: 96). By pandering to sensationalism, the journalist can become “the most important representative of the demagogic species” (Weber 1958: 96), but a responsible press, working with parliamentary institutions, can be a powerful force for public integrity and accountability (Weber 1978: 1418). Th e press and parliament together can restrain the power of bureaucracy.

In modern society, according to Weber, the ruler is necessarily the bureau-cracy. Weber sees bureaucracy as a machine-like organization that is calcula-tive, predictable, based on fi xed routines, founded on “rationally established law and regulation” (Weber 1978: 1394). Th ere is a parallel between bureau-cratization of offi cialdom and rise of capitalism. Th e state is like a factory (Weber 1978: 1394), and modern capitalism cannot coexist with arbitrary government, patrimonialism, or traditional states. Free enterprise needs ratio-nal law and administration. Th e awesome power of bureaucracy is that it can force men into trenches to kill and die, even against their will.

Th e other major threat to liberalism lies in what Weber called Caesarism, a concept that bears a family resemblance to Bonapartism. According to Weber, Caesarist leaders bypass parliamentary institutions and appeal directly to the masses for their trust and faith. Weber stresses that political parties, like other major political organizations, become increasingly professionalized—indeed, they become machines. Th is process actually undermines parliament, turning legislators into disciplined yes men. But each party must produce a leader: “Th e man whom the machine follows now becomes the leader, even over the head of the parliamentary party. In other words, the creation of such machines signifi es the advent of plebiscitarian democracy.” Machine and dem-agogue go together. Party machines developed early in United States, where the executive is elected. Weber, a passionate advocate of parliamentarism, was concerned that the US president, by “virtue of the ‘separation of powers,’” becomes “almost independent of parliament” (Weber 1958: 108).


Unlike Marx, Weber believed in the importance of parliamentary institu-tions. A powerful antidote to both bureaucracy and Caesarism was parlia-mentary inquiry. He defi ned parliaments as representative bodies for those ruled with bureaucratic means, and argued they can play both negative and positive roles. A negative parliament can only reject what the executive pro-poses (in terms of appropriations, legislation) and can exercise no infl uence over political direction. Under these conditions, parliament can “only engage in ‘negative politics,’ that means, it will confront the administrative chiefs as if it were a hostile power; as such it will be given only the indispensable mini-mum of information and will be considered a mere drag-chain, an assembly of impotent fault-fi nders and know-it-alls” (Weber 1978: 1408). A more posi-tive role for parliament recognizes its vital role in assuring accountability and control over the executive.

Not only are parliaments proving grounds where political leaders are tested, but the seemingly unspectacular right of inquiry helps to ensure that “leaders no longer wield the sword but resort to the quite prosaic sound of ink drops: written and spoken words” (Weber 1978: 1419). Parliament, as an independent body, can expose powerful offi cials to publicity. Even accepting the Caesarist principle that is inherent in mass democratization, and the inev-itable shift toward a Caesarist mode of selection, parliament still has a role to ensure continuity, supervision, civil rights, and peaceful succession. Th e lat-ter is especially important because the problem of succession is the Achilles’ heel of Caesarism. Although Weber extolled the virtues of parliament, he was under no illusions about the dangerous interplay of bureaucratic rationality and public irrationalism in mass societies. As he said at the end of Politics as a Vocation , “the world is governed by demons and he who lets himself in for politics, that is, for power and force as means, contracts with diabolical pow-ers.” He also warned of the “polar night of icy darkness and hardness” that threatened to envelop Germany (Weber 1958: 123, 128).

Plebiscitary Leadership and Electronic Media

Advances in state power in the electronic era created a new Frankenstein: centralized control over the human mind by means of advanced technologies of communication at the service of the modern surveillance state. It was not only extraordinary military power that distinguished Hitler’s Germany, but also the capacity of the Nazi regime to mobilize an entire industrial society


for war. Th is capacity for mobilization was linked to the spread of new means of communication, which created opportunities for new monopolies of knowledge and control. Electronic media could be used to achieve centralized power unimaginable in previous historical epochs. Whereas print had created public opinion, radio and television enabled its manipulation and control. Th e so-called “totalitarian” dictatorships of the early twentieth century sur-passed the coercive brutality of the great empires of antiquity insofar as they could penetrate all aspects of public and private life. Th e media, once sup-posed by Enlightenment theorists to be so powerful as to make tyrants quake, was brought under state control and used to crush independent thought.

Weber’s analysis of the tendency to plebiscitarianism in mass democracies, and the “force of demagogic speech” (1958: 107) in the selection of strong leaders, was written at a critical moment of change in media of mass com-munication, aspects of which he acknowledges. Although Weber stressed the critical importance of newspapers and journalists in politics, there were other changes in the media environment that arguably reinforced the plebiscitarian tendencies in German democracy even more. In particular, by altering the balance between literacy and orality, and by promoting the circulation and manipulation of images as well as sounds, radio and cinema contributed to new forms of manipulation and control. Th e number of cinemas in Germany increased from two at the turn of the century to 2,446 in 1914 (Ward 1989: 50). German leaders quickly realized the importance of fi lm and newsreel in shaping public attitudes. Th roughout World War I, on both sides, fi lm became a powerful medium for propaganda. Nazi uses of propaganda were merely extensions of practices developed between 1914 and 1917. By the end of the war, the German high command was already deeply involved in the production of fi lm propaganda. Germany may have been fi rst to recognize the importance of cinema as an instrument of statecraft , but Britain and the United States also realized that controlling the mass media provided the means to organize public opinion. New technologies like radio and wireless telegraphy and telephony were adopted in this context. Th e German Ministry of Interior saw the potential of radio to foster communication and coordi-nation within the state apparatus, as well as to disseminate messages to the general public.

With cinema and radio, leaders could speak directly to a mass audience that could hear their voices and see their images: “Many Germans had their fi rst glimpse of Hitler on fi lm in their local cinema” (Ward 1989: 104). Millions of people could now see their leaders and hear them speak. Th is created an immediacy and intimacy to interactions between leaders and the masses that


no doubt enhanced executive power, with its bias toward orality, and made it possible for rulers to bypass representative institutions based on the exchange of ideas in print. Hitler’s rise was made possible, in part, by his skillful use of mass media to unify the German nation behind him through the force of his demagogic speech. Mass rallies and publicity stunts like using aircraft to travel during his presidential election campaign in 1932 kept Hitler’s image and voice resonating in the public mind. Once in offi ce, he created a powerful Propaganda Ministry to control the press, fi lm, and broadcasting. Th e gov-ernment encouraged the proliferation of radios, and public buildings and fac-tories were outfi tted for radio transmission. Wireless was also used to extend Hitler’s infl uence outside Germany. During the war, radio broadcasting was of prime importance in mobilizing eff ort and supporting morale.

Th e Soviet Union provides another example of eff orts to use electronic media for the purposes of centralizing state power. Th e right to control infor-mation was derived from the party’s monopoly on truth itself (Eldridge 1993: 22). Since the party represented the interests of workers, nothing it could do was incompatible with their freedom; indeed, eff orts to suppress the activi-ties of all enemies of the state could be justifi ed in the name of the freedom of workers. One of the fi rst acts of the new Soviet government was to issue a press decree banning the publication of anti-Soviet sentiment (Eldridge 1993: 56). Pravda would be the exemplary newspaper, and the TASS telegraph agency would distribute news throughout the Soviet sphere of infl uence. Th e state-controlled content of the printing press was replicated by the radio and later, television. “Th e nearly complete monopoly of mass communication is generally agreed to be one of the most striking characteristics of totalitar-ian dictatorship,” (Friedrich and Brzezinski 1966: 129–130), and this control was extended to the means of private communication (mail and telephone, in particular). For the fi rst time, uniform, offi cially sanctioned opinions could be placed before millions of subjects simultaneously with the expectation that they be accepted uncritically. George Orwell understood that the goal of such thought control was the colonization of the human mind by the ruler. Few authors have appreciated as fully as Orwell that control over the mind requires control over language.

Th e weaknesses of totalitarianism were not lost on perceptive observers. Careful scholars recognized that state capacity under totalitarian rule was limited by pervasive and unavoidable speech act failures caused by the cen-tralization of power and the lack of feedback and accountability. As early as the 1950s, Karl W. Deutsch presciently observed that the human capacity for learning and communication is critical to the ability of any regime to adapt,


respond to criticism, persuade adversaries, and cope with information. 4 Th e limitations placed on communication under totalitarian regimes made for “stagnation, disintegration, or corrosion” (Deutsch 1954: 323). By seeking to control public opinion, totalitarian regimes weakened both a source and a corrective to power. A distinctive feature of these regimes was their inability to evolve toward more capable systems, and their tendency instead to per-sist in a corrupt form—such as post-totalitarianism, to use Linz and Stepan’s (1996a) term—or disintegrate altogether. Th ese weaknesses were not imme-diately recognized, however.

Nevertheless, at least during the 1930s and 1940s, people could be for-given for thinking that the rise of totalitarianism showed that the separa-tion of powers doctrine was a weak bulwark against tyranny. Th is lesson also inspired a new realism about executive power. Whereas the gradual expansion of the power of legislatures was a recurrent concern of political theorists at the time of Montesquieu and Madison, in the twentieth century it was the explo-sion of executive power that emerged as the main threat to democracy. No theorist directed a more withering critique at liberalism than Carl Schmitt, a leading German constitutional theorist of the interwar period. Schmitt sug-gested that politics was an irreducible struggle between friends and enemies. In this conception, executive power was not only supreme but ultimately unchecked. Schmitt, like Weber, placed coercion at the center of his under-standing of politics and the state; indeed, he glorifi ed executive power. Th e state possesses the power to wage war, “publicly disposing of the lives of men” (Schmitt 1932 [1996]: 46). By virtue of this power, the state transcends all other associations.

Whereas Weber mixed plebiscitarian and parliamentary tendencies within the framework of the rule of law and the separation of powers, Carl Schmitt jettisoned constitutional restraints on the executive. “Every norm presup-poses a normal situation, and no norm can be valid in an entirely abnormal situation” (Schmitt 1932 [1996]: 46). Schmitt argued that the irreducible essence of politics was a struggle between friends and enemies and the emer-gency situation, in which executive decision making is paramount, represents the apex of politics, not an aberrant situation (Scheuerman 1994: 67). Th e doctrine of the separation of powers, in Schmitt’s dismissive view, “cannot be characterized as either a theory of the state or a basic political principle” (Schmitt 1932 [1996]: 61). As a result, constitutional restraints on state power end when the existence of the political community is at stake: “In a consti-tutional state, as Lorenz von Stein says, the constitution is ‘the expression of the societal order, the existence of society itself. As soon as it is attacked the


battle must be waged outside the constitution and the law, hence decided by the power of weapons’” (Schmitt 1932 [1996]: 47).

Schmitt’s critique of liberal parliamentarism amounted to a glorifi cation of executive power. It was aimed, in part, at the idea that opinion was the basis for law and democracy, noting that techniques of propaganda and the manipulation of public opinion made suspect any theory that started with the notion of the will of the people (1923 [1985]: 27). Moreover, the belief in public opinion rested on the feeble Enlightenment view that publicity, coupled with the division of powers, could not only reduce secrecy in the operation of the state but also, by pitting arguments against counterargu-ments, produce a true foundation of law (consider Kant’s idea of the sepa-ration of powers as analogous to a logical syllogism). Schmitt dismissed the view that through publicity and the division of powers, laws would emerge that would be both universal and unlimited in duration (1923 [1985]: 43–44). Th e seventeenth- and eighteenth-century idea that parliamentary delibera-tion could check the power of the state was made obsolete by the industrial revolution and the emergence of the masses into politics. But the stakes in that period were “harmless and idyllic” compared with “the fate that is at stake today.” “In the face of this reality, the belief in a discussing public must suff er a terrible disillusionment” (1923 [1985]: 50).

Schmitt made two claims incompatible with the separation of powers. Th e fi rst is that not all actions by public offi cials can be subsumed under a general rule. Th e second is that sovereignty involves the decision to create a normative order. In other words, the claim that every authoritative decision falls within the set defi ned by a general rule does not exhaust the full range of decisions open to the sovereign. Indeed, Schmitt stands liberal theory on its head: general rules are decided by sovereign decision makers. Th e decision precedes the rule, rather than follows it.

Schmitt, rather like Marx, saw the separation of powers not as a general feature of all constitutions but as a principle of the bourgeois Rechtsstaat. Th at is, it formed part of a particular type of state, one founded on the con-stitutional ideal of bourgeois individualism. Th is constitution is based on a decision to guarantee personal freedom, private property, contract, and com-merce (Schmitt 1928 [2008]: 169). Th e state is subordinated to a closed sys-tem of legal norms to protect the individual against state power. Its goal is to ensure not the power and glory of the state but the liberty of the individual against the state (Schmitt 1928 [2008]: 170). Individuals are free to do as they like without restrictions other than those that are imposed by law; the state, on the other hand, can only act in limited ways—namely, those that


can be justifi ed by statutory law. Th e organizing principle that upholds this distribution of authority is the separation of powers. For Schmitt, this orga-nizing principle cannot justify itself because it presupposes a political deci-sion. All constitutions arise as a consequence of the political decision of the subject of constitution-making power (Schmitt 1928 [2008]: 97). Yet this constitution-making power “can never constitute itself in terms of constitu-tional law. Th e people, the nation, remains the origin of all political action, the source of political power, which expresses itself in continually new forms, producing from itself these ever renewing forms and organizations. It does so, however, without ever subordinating itself.” (Schmitt 1928 [2008]: 128).

Schumpeterian Democracy For a generation of social scientists, many of whom had fought in World War II, the idea of the separation of powers had three strikes against it. First, anyone who had read the great nineteenth-century social theorists under-stood that the logic of institutions could best be explained by examining deeper social forces rather than abstract maxims (which is what the separa-tion of powers, at least the legal doctrine, was judged to have become). Th e social origins of liberty would lie in a diff usion of power within society rather than checks and balances within the constitution. As a result, many political scientists “abandoned the study of constitutionalism to legal scholars” (Sklar 1999: 54). Second, the classical tradition of political philosophy was thought to be at least partially responsible for the rise of totalitarianism. Everything that smacked of idealism and historicism was suspect. Disabused intellectuals knew better than to take for granted the future of capitalist democracy; the world stage was full of dangerous totalitarian rivals. Th ird, a more realistic and positivist science of politics seemed to provide a promising alternative to the shibboleths of past political philosophies. A new approach to social science was necessary to “navigate the impending perils of organic construc-tions of statehood, idealist and potentially coercive political philosophy, and conceptions of science vulnerable to relativism” (Amadae 2003: 15–16). Th e growth of positive and behaviorist approaches separated empirical and nor-mative theory, and “crowded constitutions to the margins of disciplinary dis-course” (Sklar 1999: 54).

Social scientists during the Cold War drastically scaled back their concept of democracy. Th ey sought to shed unnecessary normative baggage. Greek democracy, however attractive, invited idealism. Th e core value of democ-racy was that it enabled people to live together without killing each other, to


coexist peacefully despite diff erences of opinion. But how could such a system be stabilized? A more “realistic” view of democracy was needed. And it had to be powerful enough to arrest the spread of totalitarianism. Th e market was the most obvious candidate. Markets were decentralized and impersonal mecha-nisms for allocating goods based on the preferences of actors. Th e beauty of markets was that they were invisible and self-correcting. Th ey did not require the guiding hand of the state; and when confl icts arose, they could be settled without the heavy hand of coercion. If democracy could be modeled on the marketplace, it would solve many problems.

In this section, I will argue that the problem with the “realistic” view of democracy is that it reduces democracy to its executive moments. Democratic theory becomes a theory of decisions. Democracy begins with choices by vot-ers (the principals who decided whether or not to “throw the bums out”), and ends with the formation of a representative government to make deci-sions on voters’ behalf. What happens between elections is bracketed. Not surprisingly, advocates of this view have little patience with deliberation (which is seen as hopelessly idealistic); little interest in legislation (which is the business of elected representatives who are accountable only at election time); a thin understanding of communication (limited to strategic signaling of preferences); and, consequently, no theory of the separation of powers. If self-correcting markets are a powerful mechanism for improving welfare, then competitive politics, insofar as it approximates competitive markets, may be a powerful instrument for expressing the wishes of the electorate. What this hope ignores, however, is that both markets and democratic regimes rest upon the bedrock of constitutional states.

Th e point can be illustrated by the work of Schumpeter. Contemporary “realistic” theories of democracy have their origin in his work. A pioneer of the economic approach to politics, Schumpeter’s Capitalism, Socialism and Democracy represented a major assault on what he labeled the “classical the-ory of democracy.” Schumpeter rejected not just the Greek idea of the “rule of the people,” but also what he termed the “legal ‘theories’ of democracy that evolved in the seventeenth and eighteenth centuries” (Schumpeter 1942: 247) that linked certain forms of government, actual or ideal, to the ideology of the rule of the people. He was contemptuous of social contract theory and dismissive of the idea of parliamentary representation. He emphasized leader-ship and decision making.

Schumpeter believed we needed a more “realistic” concept of democracy rather than the idealistic shibboleths of the past (1942: 253). So, in contra-distinction to the classical theory, he proposed the idea that democracy is an


“institutional arrangement for arriving at political decisions in which individ-uals acquire the power to decide by means of a competitive struggle for the people’s vote” (Schumpeter 1942: 269, italics mine). Th is theory has a strong bias in favor of the executive. Schumpeter believed parliamentary institu-tions were “fundamentally meaningless.” On the one hand, they are simply another arena of class struggle (Kennedy 1985: xxvi). But more fundamen-tally, Schumpeter has little interest in the law (which is, naturally, what legis-latures produce).

Schumpeter’s famous defi nition is oft en taken as the quintessence of mini-malism but, as Guillermo O’Donnell (2001: 9–11) has convincingly shown, it assumes a set of institutional conditions that are not made explicit. Law does little work in Schumpeter’s concept of democracy, and yet the existence of robust legal institutions turns out to be as important for democracy as it is for the competitive marketplace—the source of the notion of democracy as a competitive struggle. By making law part of the assumed background, and not the foreground, of democracy, Schumpeter turns politics into a matter of who makes decisions, and of leadership, not public deliberation or lawmak-ing. Th e executive bias reappears when Schumpeter says “the role of the peo-ple is to produce a government, or else an intermediate body which in turn will produce a national executive or government.” Th e legislature is merely a forum for producing governments (Schumpeter 1942: 274); it may legislate, Schumpeter (1942: 278) acknowledges, but “victory over the opponent” is the “essence” of the “game” in politics as in war (1942: 279). Th e militarism of Schumpeter’s analogy suggests a connection between his interest in a realistic view of democracy and the intellectual legacy of Weber, and even Schmitt.

Th e most explicit limit on the power of leadership in Schumpeter’s democ-racy is competition, touted as the “the essence of democracy” (Schumpeter 1942: 280). Not coincidentally, it is also the essence of the market economy. “For Schumpeter, democracy is sustained by competing economic interests that no longer exist in a monolithic socialist state” (Amadae 2003: 17). 5 Th e democratic struggle is a “free competition for a free vote” (Schumpeter 1942: 271). Moreover, Schumpeter immediately acknowledged that democracy, understood in terms of political competition, implies “a recognized method” by which the struggle is conducted, so that, just as competition in the mar-ketplace can be unfair, so too the possibility of fraudulent means to power cannot be excluded by a realistic defi nition.

He also acknowledged, among the principles of democracy, the idea that “everyone is free to compete,” that there is “considerable freedom of discus-sion for all, ” and there is also “considerable freedom of the press” (Schumpeter


1942: 272, italics in original). Schumpeter has little more to say about the press, and what he does say suggests a dim view. “Newspaper readers, radio audiences, members of a political party” are subject to forms of irrational per-suasion and may be whipped into a state of frenzy (257, 261). Not much can be done about this, Schumpeter appears to tell us. Democracy won’t work every-where. Realism about democracy demands the recognition of “a national character and national habits of a certain type which have not everywhere had the opportunity to evolve and which the democratic method itself cannot be relied on to produce” (Schumpeter 1942: 295).

In his discussion of the conditions for the success of the democratic method, Schumpeter came close to embracing a notion of the separation of powers. An “all-powerful parliament must impose limits on itself,” he said (Schumpeter 1942: 292). An independent judiciary is both consistent with the democratic method and, indeed, is included in Schumpeter’s discussion of conditions for its success (Schumpeter 1942: 292). Indeed, he argued for “Democratic Self-Control,” meaning that “the democratic method cannot work smoothly unless all the groups that count in a nation are willing to accept any legislative measure as long as it is on the statute book and all execu-tive orders issued by legally competent authorities” (Schumpeter 1942: 294). Th is also implies “a lot of voluntary subordination” by politicians; parliament, in particular, and citizens generally, must avoid backseat driving. Schumpeter acknowledges that, from time to time, “it is reasonable to abandon competi-tive and to adopt monopolistic leadership,” thus temporarily suspending the democratic method (Schumpeter 1942: 294, 296).

Th e analogy to markets implies that elections are simply another mech-anism for aggregating preferences. Th e outcome has no particular claim to legitimacy beyond its utilitarian value. Schumpeter believed that the idea of the common good was simply indefensible. In part, this was because he saw no obvious way to separate good and bad. If the good meant a “uniquely deter-mined common good that all people could agree on or be made to agree on by the force of rational argument,” (1942: 251) Schumpeter doubted its existence. He also worried that the idea of the good was an invitation to abuse. People who thought they knew what the common good was would regard those who did not agree as either stupid or sinister. Part of the problem was that there was no logical procedure for arriving at agreement on the common good—not only because of the problem of aggregation of preferences, either: even individuals may have no defi nite will. In fact, Schumpeter thought people were notoriously lax in their thinking about politics. Individuals who have no real responsibility for collective outcomes tend to think without much


sense of responsibility. In democratic politics, it really doesn’t matter what we think, so we tend to think carelessly.

Schumpeterian Th eory Today Political theorist Robert A. Dahl jettisoned the very idea of the separation of powers from his “empirical” theory of democracy. In A Preface to Democratic Th eory , Dahl (1956: 83), like Schumpeter before him, made a thorough attempt to shed democratic theory of its constitutional baggage. 6 His dismissal of the separation of powers was the unavoidable consequence of a consistent refusal to include the law in his analysis.

Dahl was an advocate of behaviorism, which held that normative or phil-osophical theories (and the separation of powers would be included under that rubric) should be reformulated as empirical propositions and then tested against data. In this spirit, he claimed that social rather than constitutional “variables” should be the fi rst concern of political scientists, and he chal-lenged Madison’s core claim that “Th e accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, must be avoided” in order to attain the goal of a nontyrannical republic. Dahl noted that this “article of faith in the American political credo” (Dahl 1956: 14) was “demonstrably false” (Dahl 1956: 12–13) because “it is pretty clearly not necessary to every non-tyrannical republic, as an examination of parliamentary, but certainly non-tyrannical democratic systems like that of Great Britain readily prove” (Dahl 1956: 13). Leaving aside the absurdity of the claim that the separation of powers is false because Britain is a parliamentary democracy, 7 Dahl’s intention to move political thought from the realm of “credo” to science is clear.

Dahl objected to the claim, attributed to Madison, that elections were not a suffi cient external check against tyranny (Dahl 1956: 13). Yet by his own admission, he was unable to supply a meaningful defi nition of tyranny without the introduction of some sort of decision rule, such as majority rule; and, of course, the majority was precisely what Madison sought to check. Th is apparently inescapable problem arises, however, because Dahl shift s the central problematique of the separation of powers away from the law—which is central to the understanding of liberty in Madison and Montesquieu—to decision making.

Having established to his own satisfaction that “if constitutional factors are not entirely irrelevant, their signifi cance is trivial as compared with the non-constitutional” (Dahl 1956: 135), he proposed an ostensibly scientifi c


defi nition of democracy—now renamed “polyarchy” to distinguish it from the wooly concepts of classical theory—in terms of the conditions that must hold before, during, aft er, and between elections. Th ese included the condi-tion that all members vote; votes are assigned equal weight; the winner is the alternative with the greatest votes; anyone can propose an alternative; all individuals possess identical information; the instructions of elected offi cials are executed; decisions between elections execute those arrived at during the election, or new decisions made are governed by the preceding conditions, or both (Dahl 1956: 67–71).

Exactly the same objections directed against Schumpeter by O’Donnell can be directed against Dahl. Indeed, this operation was performed by M. J. C. Vile in his landmark survey of the separation of powers (1998 [1967]: 332–343). Once again, it turns out that, upon closer inspection, the concept of polyarchy is not as minimalist as at fi rst it appears. Dahl notes that the fi rst three conditions are insuffi cient as long as the range of alternatives is limited (as, for example, in the case of a plebiscitary dictatorship that does not off er the opportunity to vote the ruling party out of offi ce), and so voters must be able to insert their own preferred alternatives among the choices available. Yet even this is insuffi cient if one party “possesses a monopoly of informa-tion” (Dahl 1956: 70). Th us, there must be full information about the alterna-tives. Dahl realizes that these last conditions have a “utopian character” that is inconsistent with a minimalist defi nition. Moreover, he also recognizes that elections themselves are insuffi cient unless there are guarantees that rulers will not ignore the results of voting between elections. Consequently, policies and leaders that have won must displace those that have lost and their deci-sions must be executed. Presumably, then, nonelected offi cials (for example, soldiers) should not be able to veto decisions reached by democratic means. Moreover, all “interelection decisions” must be subordinate to those reached by elections.

Dahl acknowledges that “no human organization . . . has ever met or is ever likely to meet these eight conditions” (Dahl 1956: 71), and thus each condi-tion must be considered “as one end of a continuum or scale” (Dahl 1956: 73), yet he does not tell us the necessary and suffi cient conditions that must be met “to at least the minimum degree” for us to agree to call a system a polyarchy (Dahl 1956: 75). Instead, like Schumpeter, Dahl outlines further conditions that make polyarchy more likely. Th ese include agreements on the various norms that make up polyarchy, the degree to which people are trained to operate in a polyarchy, consensus on policy alternatives, and the level of political activity of members. In spite of the almost tautological quality of


these arguments (to wit, polyarchy is likely to be achieved when people agree on its value and are trained to operate within a polyarchy), Dahl resists the idea that polyarchy requires the separation of powers, saying instead that the “social separation of powers” (a concept he does not defi ne) is more important “than any particular constitutional design” (Dahl 1956: 83 emphasis added; see also: 105–119; 135–137). 8

Dahl questioned the importance of diff erences among particular constitu-tions, not constitutionalism per se. Indeed, not only does he recognize that contemporary polyarchies possess very similar constitutions, he even observes that “every polyarchical political system is marked by separation of powers: it has a legislature, executive, administrative bureaucracy and judiciary” (Dahl 1956: 137). In other words, the constitutional separation of powers turns out to be implicit in the very idea of polyarchy, assumed as a condition of exis-tence of all polyarchies. It is so deeply embedded in the idea of polyarchy, in fact, that it is not explicitly stated within the conditions necessary for polyar-chy’s existence, and only explicitly discussed at the end of the last chapter of A Preface to Democratic Th eory .

Even so, Dahl insists that “constitutional rules are not crucial, indepen-dent factors in maintaining democracy; rather, the rules themselves seem to be functions of underlying non-constitutional factors” (Dahl 1956; 137). Th is is only true if we think of constitutions strictly as formal institutions, rather than as material facts—that is, if we downplay the rule of law. It is not the case, for example, that countries in Latin America have good constitutions but lack social prerequisites for democracy, as Dahl implies when he claims that “the history of numerous Latin American states is, I think, suffi cient evidence” that “in the absence of certain social prerequisites, no constitutional arrange-ments can produce a non-tyrannical republic” (Dahl 1956: 83). It would be more accurate to say that social conditions in some Latin American countries have tended to prevent the development of robust legal and constitutional institutions.

Adam Przeworski and his colleagues have developed a variant of Dahlian/Schumpeterian democratic theory. In his book Democracy and the Market , Przeworski (1991: 10) claimed that democracy is “a system in which parties lose elections.” Like Schumpeter, he emphasized winners and losers, confl ict as the essence of the democratic struggle; consequently, his theory exhibits a bias in favor of the executive and, with it, relative inattention to legislation and the judiciary along with the competing narratives of freedom and justice. In this vision of electoral theory, “there are parties, there is competition orga-nized by rules, there are winners and losers.” Th is defi nition highlights two


of democracy’s “quintessential features: outcomes are uncertain, and it is the people, political forces, who determine these outcomes” (Przeworski 1991: 10). Th ere are diff erent types of democratic institutions but they all involve one suffi cient condition: “contestation open to participation” (Przeworski 1991: 10). Th is defi nition of democracy owes a substantial debt to Robert Dahl’s polyarchy (1971: 1–9; 1989).

Przeworski and his coauthors call democracy any “regime in which gov-ernmental offi ces are fi lled as a consequence of contested elections. Only if the opposition is allowed to compete, win, and assume offi ce is a regime dem-ocratic.” Yet even this supposedly minimalist theory turns out to need some notion of diff erentiated state functions. Two kinds of offi ces must be fi lled by elections: the chief executive offi ce and the seats in the eff ective legisla-tive body. Although this implies some separation of powers, the implications are scarcely explored. Rather, the focus is on three features of contestation to fi ll these offi ces: ex ante uncertainty; ex post irreversibility; and repeatability (Przeworski, Alvarez, Cheibub, Limongi, 1996: 51). 9 Th ese features of demo-cratic institutions render an intertemporal character to political confl icts; they off er a long time horizon to actors (Przeworski 1991: 19) and, by so doing, create new possibilities for cooperation. Citing Linz, Przeworski calls democ-racy government pro tempore. Confl icts are temporarily and not defi nitively terminated: successful democracies “are those in which the institutions make it diffi cult to fortify a temporary advantage” (Przeworski 1991: 36).

Th e main value of democracy, Przeworski explicitly states, is that it is “a system for processing confl icts without killing one another; it is a system in which there are diff erences, confl icts, winners and losers” (Przeworski 1991: 95). Possibilities for cooperation emerge not only out of the longer time hori-zon of the actors, but also from the fact that no single force controls what occurs. Outcomes are uncertain, in the sense that they cannot be known ex ante, and knowledge is therefore inescapably local. Open-endedness and uncertainty are a positive attribute of democracy, for actors are drawn by uncertainty into the play of democratic forces (Przeworski 1991: 13).

Th e logic of the electoral school rests on a strategic and noncommunica-tive view of rationality. Th e game theory perspective in which it is embed-ded “proscribes outcomes that would be supported by something other than a strategic pursuit of interests” (Przeworski 1991: 24). Inevitably, this also proscribes legislature and courts, the very rationale for which is nonstrategic. Only by bracketing this question can Przeworski argue that a stable democ-racy represents a political equilibrium when it becomes “the only game in town, when no one can imagine acting outside the democratic institutions,


when all the losers want to do is to try again within the same institutions under which they have just lost” (Przeworski 1991: 26). It is stable not because of a presumption that the actors are normatively committed to democracy, or because of an agreement that freedom and justice are advanced through participation in legislation, but because it is self-enforced by the decentralized choices of rational actors.

Strategies that undermine the self-enforcing capacity of democracy include those that “seek to alter ex post the outcomes of the democratic process” or “drastically reduce the confi dence of other actors in democratic institutions” (Przeworski 1991: 28). Th is is likely to occur only when players have outside options (Przeworski 1991: 31). Th erefore, compliance and participation rest on democracy’s capacity to generate substantive outcomes: “It must off er all the relevant political forces real opportunities to improve their material wel-fare” (Przeworski 1991: 32). Such outcomes should not, of course, be consid-ered a defi nitional feature of democracy.

Rationalist accounts of electoral democracy are based on a thin account of institutions. Many attributes frequently associated with democracy—re-sponsiveness and accountability—are excluded. Th is is done deliberately in order to focus empirical analysis on the relationship between these important aspects of political performance and elections. Rationalist democrats insist that, “from an analytical point of view, lumping all good things together is of little use” (Przeworski et al. 2000: 14). 10 Yet rationalists include one key constitutional feature of government associated with the separation of pow-ers, even if this feature is unexplained: there are two types of offi ces that are fi lled by election, legislative and executive. Democracy involves rules, and legislatures establish them; “most rules emerge in equilibrium: they are but descriptions of equilibrium strategies” (2005: 1). Constitutions are simply “those rules that are diffi cult to change” (2005: 11). Were all rules to emanate from a single source, they would be arbitrary. If the president assumed legisla-tive as well as executive functions she could change the rules of the game to fi t her needs.

Przeworski has little confi dence that the separation of powers can prevent the abuse of power by the state. In Democracy and the Limits of Self-Government he argues that the separation of powers neglects the role of parties. Th is is an argument that was made before by Maurice Duverger, who claimed that the “degree of separation of powers is more dependent on the party system than on the provisions of the constitution” (1963: 393), but Przeworski takes the argument a little farther. “Parties, under most circumstances, render the focus on the separation of powers largely immaterial,” he says. “If the same party or


a coalition thereof controls the legislature, the executive, and appoints the judges, there is only one power: the majority. Th e functions are still distinct and it is still true that diff erent branches do diff erent things; even in the pure parliamentary system, the parliament legislates, the government executes, and the courts adjudicate. Moreover, members of the same party may still take the interests of the power in which they serve to heart. Nonetheless, the parlia-ment legislates and the government executes the will of the partisan majority” (2010: 137).

Przeworski’s argument seems persuasive. But why is it that robust consti-tutional democracies do not generally degenerate into tyranny whenever the same party or coalition controls the legislature, the executive, and appoints the judges? A partisan majority in control of more than one branch of gov-ernment is perfectly consistent with constitutional democracy provided that each branch of government limits itself to its constitutionally specifi ed func-tions. Th e separation of powers implies that if a partisan majority wants to change the law it must do so through the legislature; if it wants to infl uence the way laws are interpreted it must do so through court appointments; and if it wants to change the way policies are implemented it must do so through a lawful executive. Th at is not tyranny but strong constitutional government.

Th e great danger to the separation of powers in contemporary democra-cies lies not so much in partisan majorities that control more than one branch of government; it lies, rather, in the encroachment by the executive on the powers of deliberative bodies. Th is does not require, though it may be aided by, a partisan majority. A good example is when the executive acts without judicial or legislative oversight, especially when these actions make the execu-tive a legislator or judge. Such actions constitute a serious threat to the sepa-ration of powers understood, as Przeworski (2010: 132) rightly puts it, as a system in which “only those actions and all those actions that obtain coopera-tion of all the qualifi ed branches of government are undertaken.” Such abuses of power are more likely to occur when deliberative bodies are weakened—that is, when neither the legislature nor the courts are fulfi lling their constitu-tional duties to provide oversight and ensure that the executive complies with the rule of law.

Competitive elections provide few checks on the abuses of power by the executive branch of government. In this respect, Przeworski is right: there is nothing to stop a partisan majority from supporting an executive that abuses its power. Parties are not always reliable allies of the rule of law. Th at is exactly why the alternation of diff erent parties in power is insuffi cient to guarantee the stability of constitutional democracy, much less its quality. Parties are vehicles


for the pursuit of offi ce, and they respond to the incentives created by institu-tional arrangements. Th ey cannot be expected to guarantee that politicians will respect the separation of powers. Sometimes political parties behave in ways that reinforce the functioning of legislatures and courts, but they can also do just the reverse. Parties do not render the separation of powers immaterial; they can either reinforce or actively undermine it.

Przeworski’s work exemplifi es the negative view of constitutions. “Th e central problem with the separation of powers is that it is a blunt instrument,” he says. “Th e choice to which it is addressed is whether the government—any government—should be enabled or disabled.” (Przeworski 2010: 137). Th is negative view rests on an extremely limited concept of constitutionalism.

Constitutions as Coordination Devices

Schumpeterian democracy has no theory of the separation of powers and a limited notion of constitutionalism. Constitutions are understood as “coor-dination devices.” 11 Th ey are defi ned variously as focal points or devices for selecting self-enforcing equilibria (Chen and Ordeshook 1994; Klochko and Ordeshook 2001). Almost all situations of strategic interaction generate mul-tiple equilibria—that is, a set of feasible outcomes of interdependent choices. It is rare that all players have a single dominant strategy when faced with inter-dependent decisions. Th e choice of equilibrium outcomes is a thorny problem because a wide range of outcomes are equally feasible, even if the desirability of these outcomes—in terms of their distributive consequences, or their effi -ciency—from the perspective of individual players varies widely. Some form of coordination may be necessary to select an equilibrium outcome (or at least avoid a particular outcome), and success in this endeavor oft en hinges on the need to share information about strategies and preferences.

A constitution can serve to provide critical information that allows play-ers to act individually in ways that generate collectively desired outcomes. For example, by prohibiting the military from assuming power, players can focus their attention on winning elections. For a constitution to operate in this way, it must be self-enforcing. Th at is, it must be in the decentralized interests of all relevant political forces to act in accord with the constitution. In particular, there are two major coordination problems that the rational-ist literature addresses. Th e fi rst, which is the focus of the work of Russell Hardin, is the problem of coordination to create a set of conventions that are then maintained by self-generating expectation and incentives. “Democracy


works,” according to Hardin, “only where there is mutual advantage in coor-dinating on order” (1999: 28). “A constitution coordinates the populace on a set of institutions that enable them jointly to be better off than they would be without coordination” (Hardin 1999: 35).

Th e second type of coordination, which is the focus of the work of Barry Weingast, is establishing the limits of encroachment by rulers. “Democratic stability occurs,” according to Weingast, “when citizens and elites construct a focal solution that resolves their coordination dilemmas about limits on the state” (1997: 246). “Policing the sovereign” is the name of this game, and it “requires that citizens coordinate their reactions, which requires constructing a coordination device.” Hence, the constitution defi nes the limits of rule. Here again, the constitution must be self-enforcing, and this occurs “when citizens hold these limits in high enough esteem that they are willing to defend them by withdrawing support from the sovereign when he attempts to violate those limits” (Weingast 1997: 251).

Th e view of constitutions as coordination devices marks a radical departure from the social contract tradition. Th e rationalist objection to the contractar-ian view is that it rests on a false analogy because contracts require enforce-ment while constitutions are self-enforcing. A constitution does not depend on external sanctions for its enforcement (Ordeshook 2002). Constitutions create the institution of contracting (Hardin 1989: 101), and indeed, the institutions for enforcing contracts. Rationalist theories say little about the specifi c institutional makeup of constitutional democracy. For example, ratio-nalist theorists of electoral democracy are not inclined to accept the argu-ment that the diff erence between constitutions matters for understanding the survival of democracy. Since constitutions are endogenous to the politi-cal struggle, they are rarely a major independent factor in shaping political outcomes. From this perspective, the diff erences between systems have little or nothing to do with their basic constitutional principles; they arise from extra-constitutional factors, such as the role of the military or the colonial legacies (Cheibub 2002: 307). If presidentialism is unstable, it is because it has been adopted in unstable countries.

Aspects of constitutionalism and democracy that some theorists believe to be crucial are left out of this account. As Ian Shapiro wryly observes, to say constitutions are coordination devices is like saying “trees exist for dogs to pee on” (2002: 594) (which begs the question, “what are lamp posts for?” [2002: 595]), “although it is arguable that ideologies and constitutions serve the designated purposes, they serve many other purposes as well” (2002: 594). In other words, constitutions may coordinate collective action, but to make


this their one essential purpose is misleading, or at least unhelpful, in any inquiry into other aspects of constitutionalism. For example, constitutional-ism is surely about, inter alia, the construction of legislatures as important deliberative bodies. Yet rationalist theories emphasize decisions and policies rather than deliberation and legislation. Th ere is a diff erence between the two. Policies typically involve decisions about actions by state offi cials that are nec-essary but not self-implementing. Legislation involves actions that bring gen-eral rules into eff ect. If we make a distinction between legislation involving deliberation over rules, and policies understood as decisions about particular issues, then we can see how democracy must be about more than periodic voting and then letting elites get on with the business of government; it must also be about ensuring that elected offi cials make laws—that is, general rules, compatible with public opinion.

Once we admit that democracy is about making rules, some rather thorny questions are created for the economic theory of democracy. Th ese questions are avoided by stipulating that all that is needed for democracy to aggregate individual preferences into collective decisions is for voters to have preferences that they can rank; they can evaluate governments at elec-tion time by determining whether policies are aligned with their individual preferences. But what if voters do not only have policy preferences but also preferences over rules? In that case, they evaluate government offi cials not only in terms of the proximity of public policies to individual voters’ prefer-ences, but also in terms of the appropriateness of the actions of elected offi -cials in relation to general rules. As soon as this possibility is entertained, we fi nd ourselves back in a world in which the issues of authorial intention and interpretation, truthfulness and sincerity, context of application, and enforcement are, once again, central—a world structured and organized by text with all the potentiality and problems this creates. In this world, policy makers are assessed not only in light of the interests they represent but also their moral character.

Th ere is one last line of defense against this argument. It builds on an article faith of liberalism that lines up perfectly with rational choice theory: nobody knows the preferences of the individual better than that individual herself. Th ere are no “true” or “false” preferences beyond what individuals themselves believe. Leave issues of truth or morality to moral philosophers. Democracy is not about what is true or false, right or wrong. And it is par-ticularly dangerous to seek to change preferences in search of consensus in politics. Th is view is summarized by Coleman, who argues that deliberative democrats believe “the minority does not consist of losers, and the majority


of winners. Instead, the minority members have false beliefs about the gen-eral will; members of the majority have true beliefs” (cited in Przeworski 1991: 15–16).

Th e problem with this view is that if we admit that people have not only diff erent policy preferences but also views on the appropriateness of rules, then diff erences of opinion are unavoidably about truth content. Two people may reasonably disagree over optimal policy solutions, based on interests. But if someone acts inappropriately—that is, breaks the rules—then there will be disagreement not only over interests but also over the meaning of each persons beliefs and actions. Th is is especially so when victory is achieved by breaking the rules. Th ese are the issues that constitutionalism must address, and on which the economic theory of democracy is absolutely (and necessar-ily) silent.

We may wish to leave this world with all its ambiguities for the parsimony and apparent rigor of models that assume away problems of texts and their interpretation. And yet, there is no human institution that can avoid these problems, not even the franchise. Aft er all, votes are texts used to coordinate collective action, and like any text they must be read. Th e state—more spe-cifi cally, the judiciary and electoral bodies—must uphold, in an authoritative manner, the legal interpretation of results. Unless this is done, the claim that democracy is a system in which parties lose elections is at best a gross impov-erishment of our understanding of democracy and at worst meaningless. Even electoral democracy at its bare minimum demands the prior existence of some features of constitutional order. For this reason, the separation of powers is never entirely absent from democratic theory.

Th ere are three further problems with the economic theory. First, the belit-tling of constitutionalism within rationalist theory helps explain its otherwise puzzling indiff erence to how well alternative constitutional arrangements overcome various coordination problems. Since the specifi c tasks assigned to executive, legislative, and judicial branches of government are only vaguely delineated (legislatures make rules, executives make policies), the nature of the division of powers cannot be of special importance. Th e debate over presiden-tialism hinges, in part, on this point. 12 Rationalists tend to dismiss the impor-tance of diff erent types of constitutions. Th ose who uphold the importance of types of constitutions, by contrast, tend to be overwhelmingly liberal.

Second, rationalist theories of constitutional democracy are mainly silent on most aspects of the rule of law or constitutionalism associated with the separation of powers. Insofar as democracy is treated as a decentralized bargain based on self-interested actors, the specifi c confi guration of legal


institutions fi gures as a secondary question that comes aft er coordination is achieved. From a rationalist perspective, “under democracy governments are moderate not because they are constrained by exogenous, constitutional, rules but because they anticipate sanction were their actions more extreme” (Przeworski 2005: 1).

Finally, and most damagingly, deliberation is excluded from the economic analysis of politics. Rationalist theorists assume voters have very limited cog-nitive skills. Citizenship requires little more than what is demanded of the consumer in the marketplace. As Przeworski says: “In all modern democra-cies, the deliberative process and day-to-day supervision over the government are well protected from the infl uence of the masses” (1991: 13). He approv-ingly quotes Carl Schmitt, who as we have seen was a critic of the separation of powers: “the development of modern mass democracy has made argumen-tative public discussion an empty formality” (cited in Przeworski 1991: 17). And yet Przeworski’s understanding of deliberation is remarkably shallow: it is, he avers, the “endogenous change of preferences resulting from commu-nication.” To illustrate, he off ers the following example: “imagine that three young ladies venture to buy ice cream, with enough money to buy only one fl avor. Th eir initial preferences are respectively C > V > S > N, V > S > C > N, S > C > V > N, where C stands for chocolate, V for vanilla, S for strawberry, and N for none, and > should be read as ‘prefers over.’ Now, suppose that the chocolate fan is told that this fl avor leaves indelible spots on her dress. Having received this information, she alters her preference, relegating chocolate to second place, from C > V > S > N to V > C > S > N. Th is is deliberation.”

Or is it? Th e example simply illustrates how new information alters individ-ual preferences and thereby results in new collective outcomes. Deliberation, however, does not necessarily involve changing preferences. It does demand a search for common interests. If friends are trying to decide what ice cream to buy, they may deliberate because each is interested in knowing what would make the others happy, and what they think would be best. Th ey listen for arguments like, “We got chocolate last time,” or “strawberry would go nicely with the desert I’m making.” Each may have a preference for a particular fl a-vor, and that need not change. Th e main concern is to make the best choice for the occasion and to do that each person needs to be part of the delibera-tions. So it is with democracy, and a theory that is all about strategy misses the importance of deliberation in bringing about the goods democracy can deliver.

As we turn to more explicitly liberal theories of democracy in the next chapter, it is important to bear in mind that the theory of electoral democracy


is also, at a deeper level, a liberal theory. Th e attempt to strip the idea of democ-racy of some of its legal, constitutional, and normative baggage is motivated by a quintessentially liberal impulse: to avoid confl ict over ultimate ends, to agree on a more value-neutral understanding of procedures by means of which we may resolve our diff erence without killing one another, and to fi nd, thereby, ways of living together within the context of respect for basic rights and freedoms. Th ese basic rights and freedoms are generally understood, as in Dahl’s concept of polyarchy, in liberal terms. Many democratic theorists (such as Guillermo O’Donnell) can be found at the interstices of electoral and more explicitly liberal theories democracy. Th e fundamental distinction between the two perspectives tends to rest on the degree to which the theo-rist is prepared to make a normative argument for liberalism, or seeks what is presumed to be a more empirically useful and less value-laden account of democracy. Yet it is precisely that move that oft en eliminates the basis for an account of the separation of powers—or, indeed, any account of constitu-tions that takes the idea of law seriously.

Conclusion Classical political thought from ancient Greece to the Enlightenment was preoccupied with the moral basis of constitutions and laws. In the aft ermath of the Industrial Revolution, the search intensifi ed for the underlying social forces that would explain political outcomes. Th is had the eff ect of down-playing or even eliminating purposive human action from the study of social change. And yet this happened at precisely the moment in human history in which technology placed unprecedented destructive capacity in the hands of the state. Concentrated executive power made constitutionalism seem ephem-eral, but not because it was epiphenomena. Schmitt was right that when war is inescapable, the state of exception replaces the norm. But the state of excep-tion is not the new norm, because war is not always inescapable. Fascism did not become the dominant political regime of the twentieth century, democ-racy did. Th e fundamental challenge of constitutionalism, therefore, remains: to subject all power to law, and not just to constrain the abuse of power, but also to enable collective action.

Schumpeterian democracy, which builds on the ostensible realism of Weber and Schmitt, suff ers a fatal fl aw. It lacks an understanding of the con-stitutional democratic state . Indeed, it assumes such a state exists, much as the analysis of competitive markets assumes the existence of a regulatory state, but it does not explain the connection between democracy as a regime and as a state.


Constitutional democracy is about more than “throwing the bums out.” Th e aim of a good constitution is assembling the parts of the state in such a way as to make the whole ensemble realize the public interest. In practice this means creating the conditions necessary to ensure that careful deliberation about ends occurs before state actions are undertaken; these actions are then executed in a manner consistent with the intention of the decision makers, so that they can be held publicly accountable; and judgment of particular conse-quences is made aft er the fact in accordance with generally agreed upon pro-cedures. Not only does the Schumpeterian system allow for such a conception of constitutional democratic politics, it explicitly denies that such an idea is possible because there is no “good” toward which the state can orient itself. Th e theory is not just minimalist, it is incomplete. It implies the existence of institutions it cannot explain because they fall outside its ontology.

6

Beyond LiberalismLANGUAGE, LAW, AND DELIBERATION

Modern political science must emancipate itself fr om the deadweight of the separation of powers doctrine which, much against Montesquieu’s conception, has been transformed into

a dogma. franz neumann

Carl Schmitt rightly observed that the separation of powers, as understood in the liberal tradition, was a doctrine, not a theory (Schmitt, 1923 [1985]: 61, 70). Unable to supply a theory of the separation of powers, liberals embraced the separation of powers as a doctrine, thereby surrender-ing the social scientifi c character of theories of liberal democracy. A division emerged within democratic theory, exemplifi ed by the contrasting positions of Joseph A. Schumpeter and Friedrich A. Hayek. In many ways, they were similar: both fl ed fascism, shared a common aversion to central planning, and were dedicated to the defense of “the West” against the spread of socialism. Th ey were intellectual heirs of Max Weber and, in more ambiguous ways, Karl Marx. Th ey adopted sharply contrasting approaches to the defense of capitalism and democracy. Th e contrasts were rooted in opposed understand-ings of science. Whereas Schumpeter off ered the quintessential minimalist and realist account of democracy, virtually stripped of legal accoutrements, Hayek provided one of the most sophisticated statements of the merits of liberalism based on the rule of law. Schumpeter assumed voters were like con-sumers; Hayek, on the other hand, emphasized the importance of knowledge and communication (and, above all, the fallibility of human knowledge).

Hayek’s work could have contributed to a linguistic turn in social science theorizing about the separation of powers, but most of his followers have largely neglected his emphasis on language and communication. As a result, Hayek’s project has fallen short of providing us with a social scientifi c theory


of the separation of powers. Perhaps his hostility to the state led him to mini-mize the role it can play in conscious collective choices over institutions, or perhaps his appreciation for deliberative institutions was diminished by the way that he minimized the role of writing in lawmaking: “law precedes leg-islation” was one of his key aphorisms, meaning that law is not written by legislators, but preexists in rules embedded in customs and practices.

Th e reunifi cation of the theory of democracy and the separation of pow-ers within a social scientifi c approach to the politics of language and law required the work of the school of deliberative democracy arising, in part, from German critical theory. Political theorist J ü rgen Habermas was at the center of this project. Habermas placed law at the heart of the analysis of the politics of constitutional democracy. Th e loss of transcendental values, he argued, produces an awareness of the distinction between law in its coercive and positive character and its binding force, which derives from the expec-tation of legitimacy. What grounds the legitimacy of rules, asks Habermas (1996a: 448), when religious or other encompassing worldviews no longer serve to integrate societies? Discursively achieved agreement is the answer he provides, and the constitutionally organized political system is set up to ensure that the democratic process makes this possible. Th is chapter discusses these claims and off ers a critical assessment in light of the social cognitive theory of the separation of powers.

Hayek and Liberal Democracy Friedrich von Hayek is one of the greatest liberal thinkers of the twentieth century, perhaps the greatest. He came close to developing a systematic theory of the origin and evolution of institutions. Hayek was conscious of the need to off er the twentieth century what Montesquieu had given the eighteenth: an account of legal institutions that would advance the cause of freedom. But he despaired of achieving such a monumental task, in part because of what he called the “baneful eff ect” of the division of economics and law into sepa-rate specializations. Th e most deleterious eff ect of this division was to create a “no-man’s land, a vague subject sometimes called ‘social philosophy’” (Hayek 1973: 4–5).

Like Schumpeter, Hayek was driven by the desire to thwart totalitarian ide-ology. Th e problem he set for himself was to overcome the failure of constitu-tionalism to protect individual liberty. In his view, thinkers like Montesquieu and the framers of the US constitution invented the idea of limited constitu-tional government with the aim of safeguarding individual freedom, and the

Beyond Liberalism 143

“device in which they placed their faith was the separation of powers.” Still, Hayek lamented, governments “have obtained by constitutional means pow-ers which those men had meant to deny them” (1973: 1). Th is was the problem Hayek sought to address, and his solution was to demonstrate that free civi-lizations enjoy greater creative powers to the extent that they acknowledged the hubris of Cartesian rationalism and abandon eff orts to plan or rationally administer the life of a social order.

Th e hubris of rationalism lies in the refusal to recognize that ignorance of the particular facts that determine social processes accounts for the forms that social institutions take. In an open society each person is ignorant of most of the knowledge necessary to the working of society, and yet each uses more knowledge than he or she can possess. Just as one can drive a car without knowing how it works, human social interactions involve knowledge that no individual mind can fully encompass. Civilizations are not built deliberately. Hayek linked the growth of civilization to the human capacity for adaptation involving “our accumulated stock of knowledge and the communication among contemporaries of information on which they base their action” (Hayek 1960: 27). Institutions, in his view, were “a product of cumulative growth without ever having been designed by any one mind” (Hayek 1960: 27).

“Th e argument for liberty is not an argument against organization,” Hayek said, “but an argument against all exclusive, privileged, monopolistic organization, against the use of coercion to prevent others from trying to do better” (Hayek 1960: 37). Freedom depends on recognition of our ignorance. Although Hayek believed in the cumulative progress of social organization, he rejected Social Darwinism, arguing instead for a cognitive understanding of evolution in which “the decisive factor is not the selection of the physical and inheritable properties of the individuals but the selection by imitation of successful institutions and habits” (Hayek 1960: 59). Institutions evolve due to mutual adjustment, failed expectations, the continuous eff ort to make improvements by trying new ways of doing things. Markets certainly encour-age this, making them an engine of cultural evolution.

Hayek understood that for his argument to work he needed to explain law and, unlike Schumpeter, Hayek explicitly acknowledged the importance of law in human culture and institutional evolution. He was sharply critical of legal positivism (that law is that which has been enacted in appropriate ways, independent of any appeal to moral arguments) and he stressed the impor-tance of language in the development of law. For Hayek law precedes legisla-tion—indeed, it is “coeval with society” (1973: 72). Rules constitute the social order and exist independently of whether they are articulated in words. Well


before general commands could be expressed in words, people lived accord-ing to implicit rules. Knowing how to act, what is appropriate and what is not, is what makes one a member of a society, regardless of whether the rules are expressed in words. According to Hayek, reason and language must have been used by early humans to form groups held together by shared rules. Gradually, rules were articulated into words so that they could be learned and transmit-ted culturally. But Hayek insists that general rules preceded the ability of humans to articulate them. Th ey would have been rooted in dispositions to act in certain ways manifested in practices or customs that would have been grounded in the essential requirements of group preservation. Language is insuffi cient to fully express what the mind grasps when it deliberates about a course of action in light of those rules.

Th e process of verbally articulating practices into rules, which occurs as societies become more articulate, was not only slow and complex, but it could never fully succeed. No verbal formulas could capture the full meaning of the complexity of rules governing a society. Th e gap between the full meaning of social rules and the way we express our intentions in language has impor-tant implications for the evolution of political institutions. A typical ruler in an early human community would normally make utterances intended to: (1) enforce established rules and (2) give specifi c commands for particular purposes. Rulers (but not rules) could be criticized only on the grounds that their decisions were bad ones, while the rule and practice would have a given and accepted character.

Th e necessity of articulating rules in words would arise when a particu-lar decision had to be justifi ed or a dispute arose that the ruler must settle. Th is process could result in the formulation of new rules, although it might be understood as a process of discovery rather than a conscious making of rules. Over time, the unconscious observance of rules would give way to an understanding of rules in which a distinction is made between description (as in a natural law) and prescription (as in an “ought” statement). Th at is, rules would come to be understood as embodying purposes, guiding action in terms of what is appropriate, and thus actions can be criticized. From this it is but a short leap to the understanding that rules can be deliberately made; a short leap, but a consequential one. Th is is why Hayek insists that law precedes legislation. In early civilizations law was seen as constant and unalterable, and the task of the lawgiver was to make statements about what law had always been. Th e idea of law as the product of deliberate human will emerges in Greece, although even there law typically had a customary charac-ter. Similarly, according to Hayek, Roman law, although it conceives of law, in


part, as the creation of the ruler, was as much based on custom as deliberate lawmaking.

Hayek admired the English common law tradition’s resistance to the wholesale adoption of Roman civil law and its insistence on upholding a medieval conception of law rooted in customary practices. Th e idea that law can be changed at will, that it can be made by legislation, or worse, that law is nothing but legislation, is what Hayek most hotly repudiated. For such a view separates the law from broader conceptions of what is right. Th e authority of the legislator rests, and must be limited by, the prevailing opin-ion of what is right and which can never be fully articulated in written legal codes. He argued that liberty was the overarching principle that should guide particular acts of legislation (Hayek 1960: 68), which in turn must be aimed at the production of general rules: “So long as democracy constrains the individual only by general rules of its own making, it controls the power of coercion” (Hayek 1960: 116). In this concept of laws as abstract rules, there is a clear distinction between commands (which are “here and now” and presuppose the presence of a person) and laws (which are impersonal and given “once-and-for-all”). Th us, “a general rule that everybody obeys, unlike a command proper, does not necessarily presuppose a person who has issued it. It also diff ers from a command by its generality and abstract-ness” (Hayek 1960: 149). “Th e chief safeguard [of liberty] is that the rules must apply to those who lay them down and those who apply them—that is, to the government as well as the governed—and that nobody has the power to grant exceptions” (Hayek 1960: 155).

Hayek distinguished the idea of “law in the merely formal sense” from “law in the material meaning” (Hayek 1960: 155). Law has binding force not “merely because it emanates from the legislative authority.” He lamented the loss in the belief that laws can rule—and argued that legal theory contributed to this (Hayek 1960: 156). For this reason, Hayek challenged Franz Neumann’s assertion that “Only men can exercise power over other men. To say that the law rules and not men, may consequently signify that the fact is to be hidden that men rule over men.” (Quoted in Hayek 1960: 156). Indeed, he believed that the “inability to conceive of an eff ective co-ordination of human activi-ties without deliberate organization by a commanding intelligence” (Hayek 1960: 159) was a threat to liberty.

In contrast to Hayek, I have argued that civilizations are built deliberately and that institutions evolve not only by selection, but also through conscious collective choice and adaptation. A key force in this process is precisely the state. States play a vital role in processes of legal and institutional change


because they monopolize the production of law and its interpretation and application to particular cases. Hayek downplays writing and literacy, which are among the vital engines of progressive social change. Th e idea that law precedes legislation makes some sense as an account of the English common law tradition, but it is not suffi cient to understand legal and institutional change generally—or even in England. Legislation does create law, even if only because legal rules imply consequences that have to be worked out in subsequent legislation.

Hayek is one of the primary sources of the view of constitutionalism as a limitation on state power. Indeed, he is skeptical that the separation of pow-ers is suffi cient to protect liberty and assigns a greater role to the rule of law. He wanted a separation of powers reinforced by a deeply conservative view of law to ensure that the role of the state is strictly limited to its general acts that protect individual freedom. It is the rule of law, rather than the separation of powers alone, that, according to Hayek, underpins English freedoms. In fact, he has a rather negative view of the separation of power where the rule of law is not strong—as, for example, in the case of postrevolutionary France—because he sees it as reinforcing the administrative power of the state.

Although he approached constitutional theory from a perspective that is rich in implications for our understanding of the separation of powers, Hayek did not succeed in placing Montesquieu’s doctrine on a social scien-tifi c footing. Th ere are indications that he hoped to lay the epistemological foundations for a theory of cultural evolution (Caldwell 2004: 299–306), but this project was never completed. Hayek’s contribution remains essentially doctrinal. Insofar as he off ered an evolutionary perspective, it was to make a strong case that “cultural evolution will proceed in the best direction” to the extent that liberty is assured by a constitutional order (Gray 1984: 78). Notwithstanding these limitations, Hayek’s analysis provides key ingredients for linking the theory of the separation of powers to a broader understand-ing of human cultural evolution. It is unfortunate that most of his successors, including most contemporary “new institutionalists,” have largely neglected the cognitive features of Hayek’s analysis.

Th eories of Liberal Democracy Today Th e comparison of Schumpeter and Dahl with Hayek supports the claim that the eff ort to create a more scientifi c study of politics produced theories of democracy stripped of some of the earlier normative, practical, and human-istic content that had been part of such theories in the past, even though a


preexisting liberal consensus underpinned the emerging scientifi c study of politics. Liberalism as a doctrine (including the separation of powers) became part of the underlying and largely unacknowledged normative assumptions of scholars like Schumpeter and Dahl, or were hived off entirely and given expression in normative and legal doctrine.

It did not help that postwar political scientists in North America tended to be largely impervious to the linguistic turn in the social sciences. In its eff ort to establish itself as a nomothetic science, political science drew on eco-nomic theory to develop models of politics in which democracy was under-stood by analogy to markets. Th e legal and ethical dimensions of politics were left aside by scholars working in the rational choice tradition. Th e separation of powers retained its infl uence as public philosophy, legal doctrine, or a nor-mative model of democracy, but it was rarely consciously theorized as part of the scientifi c study of democracy.

Postwar political science had diffi culty assimilating the idea of the sep-aration of powers within a more “scientifi c” approach. An early behavior-ist, Gabriel A. Almond, had no trouble seeing the practical value of a social science that aspired to be truly scientifi c, nor did he feel the same compul-sion to deny its roots in classical political theory. Having lived through the Depression and World War II, Almond felt that the social sciences should help avert totalitarianism and revolution. He also had a lifelong love of Aristotle and much of his work can be read as an attempt to modernize or update classical political theory. In the early 1960s, Almond attempted to supplant the separation of powers with a structural functionalist approach. 1 “Nothing much has happened to the functional theory of politics since the doctrine of the separation of powers and the lively discussion of it in the great era of constitution-making in the United States,” he stated (Almond 1960: 13). Building on David Easton’s distinction between “inputs” and “out-puts” of the political system, Almond defi ned “the three authoritative gov-ernmental functions, rule-making, rule application, and rule adjudication” as “output functions” of the political system. He noted that these were “the old functions of ‘separation of powers,’ except that an eff ort has been made to free them of their structural overtones” (1960: 17). Th e structural func-tionalist approach came under attack for reducing the state to a subsystem of the larger social order and for assuming a Eurocentric evolutionary process of development from “primitive” to “modern.”

Later, in his famous work on Th e Civic Culture , coauthored with Sidney Verba, Almond explicitly accepted the Schumpeterian defi nition of democ-racy (“Democracy is a political system in which ordinary citizens exercise


control over elites” [Almond and Verba 1965: 136]), but he also revived the idea of active and virtuous citizenship (now called “the civic culture”). Carole Pateman (1980) was right when she argued that Th e Civic Culture was part of an eff ort by empirical democratic theorists to create a more objective and scientifi c study of democratic politics and that this project oft en failed to acknowledge its own theoretical antecedents—which, in this case, lay in Anglo-American liberalism (Pateman 1980: 58). Th at said, Almond and Verba were perhaps more interested in classical Greek theory than critics recognized. Th eir argument that there are three types of political cultures—participants, subjects, and parochials—and that there are a range of types of mixed political cultures, is redolent of Aristotle’s argument about mixed constitutions. Just as Aristotle believed that mixed constitutions were more likely to be stable, and that polity was the ideal system because it combined democracy with aristocratic protection for the wealthy, so Almond and Verba argued that the stability of democracy depended on a civic culture that com-bined the active and allegiant involvement of the participant with a mix of subject and parochial orientations to enable elites to govern eff ectively.

Later in his career Almond became critical of behaviorism and the ten-dency of political scientists to lose touch with the ontological foundations of their subject matter. In his 1977 essay with Stephen J. Genco on “Clouds, Clocks, and the Study of Politics,” he sharply criticized behaviorism for its overemphasis on regularities or generalizations, the search for natural-science type covering law explanations, and a mechanistic understanding of causal-ity. Th e aspiration to imitate the natural sciences led political scientists to lose sight of one of the most important aspects of the social world: the fact that humans are purposive decision makers whose choices, decisions, beliefs, and values create the events, processes, and outcomes social scientists seek to interpret and explain (Almond and Genco 1977). Almond’s ontological per-spective might have provided an auspicious basis for theorizing about the sep-aration of powers from a cognitive perspective in which the doctrine would be seen as an attempt to theorize a perennial problem of politics in terms of its evolution and the working out of its implications in diverse settings and con-texts. At least from the perspective of understanding the separation of powers, this would have been more productive than the attempt to reduce agencies of government to functions or aspects of citizenship to attitudinal types.

Yet Almond’s writing on the separation of powers has helped relegate it to a minor theme in comparative politics—again, precisely because the idea is treated as prescientifi c doctrine. In a widely used textbook, Almond and his coauthors (Almond et al. 2001) off ered an appraisal of the separation


of powers that refl ected the mainstream disciplinary consensus. Th ey noted that the idea of the separation of powers has a “long and venerable history,” briefl y alluded to Locke, Montesquieu, Madison, and Alexander Hamilton, and suggested that political theorists in the nineteenth and early twentieth centuries “gradually codifi ed what we may call the ‘classic’ separation of powers theory that dominated the political science of the pre-World War II period” (Almond et al. 2001: 134). According to this “classic” view, there are two forms of representative democracy—presidential and parliamentary, and the former best approximates the separation of powers. Th e synopsis off ered by Almond et al. (2001) reduced the separation of powers to a type of constitution rather than an intrinsic feature to all constitutions. It is not just the narrowness of this view of the separation of powers that is striking, but also the way that mainstream scholarship has sought to either eliminate the separation of powers from the political science lexicon or transform it into a formal property of institutions.

Th e infl uential scholarship of Juan J. Linz exemplifi es recent social science research that focuses on institutions—especially types of constitutions, presi-dential and parliamentary—and their consequences for democracy. As a lib-eral scholar, Linz stresses the importance of law and legitimacy and outlines the need for a certain kind of state as a counter-majoritarian constraint on the abuse of power. As a result, his analysis of democratic “consolidation” blends doctrinal and empirical elements in a way that leads to the treatment of liberal democracies as the normative standard of democratization rather than theo-rizing the conditions for their emergence.

In contrast with Schumpeterians, liberal democrats accept the centrality of elections but do not believe that they are a suffi cient condition for democ-racy. For liberals, the economic theory of democracy is not wrong, but rather insuffi ciently attentive to what happens before and aft er elections. Linz (1990, 1994) 2 has argued that constitutions matter a great deal, as does the rule of law more generally. For Linz and Alfred Stepan, the rule of law precludes “a democracy in which a single leader enjoys, or thinks he or she enjoys, a ‘dem-ocratic’ legitimacy that allows him or her to ignore, dismiss, or alter other institutions—the legislature, the courts, the constitutional limits of power” (1996b: 19–20). Further, certain “presidential democracies—with their ten-dency toward populist, plebiscitarian, ‘delegative’ characteristics, together with fi xed term of offi ce and a ‘no-reelection’ rule that excludes accountabil-ity before the electorate—encourage nonconstitutional or anticonstitutional behavior that threatens the rule of law, oft en democracy itself, and certainly democratic consolidation” (1996b: 20).


Linz defi nes a political system as “democratic when it allows the free formulation of political preferences, through the use of basic freedoms of association, information, and communication, for the purpose of free com-petition between leaders to validate at regular intervals by nonviolent means their claim to rule; a democratic system does this without excluding any eff ec-tive political offi ce from that competition or prohibiting any members of the political community from expressing their preference by norms requiring the use of force to enforce them.” Th us, while accepting the essence of the elec-toral view, Linz adds that “liberal political rights” are a requirement for “pub-lic contestation and competition for power” (Linz 1975: 182–183). Political opposition is another essential feature of liberal democracy, since the majority cannot pretend to speak for the entire demos. “In democracies the opposi-tion is an organ of popular sovereignty just as vital as the government,” says Guglielmo Ferrero: “To suppress the opposition is to suppress the sovereignty of the people” (cited in Sartori 1987a: 32).

Linz and Stepan (1996b: 15) argue that “no regime should be called a democracy unless its rulers govern democratically.” “If freely elected execu-tives (no matter what the magnitude of their majority) infringe the constitu-tion, violate the rights of individuals and minorities, impinge on the legitimate functions of the legislature, and thus fail to rule within the bounds of a state of law, their regimes are not democracies” (Linz and Stepan 1996b: 15). In this view, elected governments must have the authority to implement policies without sharing power with other bodies (Linz and Stepan 1996b: 3), and no de jure or de facto power should rest in an interlocking system of reserve domains, special military prerogatives, or authoritarian enclaves (Linz and Stepan 1996b: 14–15). Nondemocratic regimes leave rulers with wide discre-tionary powers and restrict the role of independent objective bodies (Linz 1975: 183). Th is conception clearly entails an appreciation of the separation of powers as a limit on majority rule.

Th e underlying logic in the liberal view is brilliantly articulated by Giovanni Sartori, who notes that the etymology of democracy is ambiguous because the demos can be interpreted to mean many diff erent things. Th e idea that it means “the right of a majority to absolute rule” is mistaken because “the absolute right of the majority to impose its will on the minority, or minorities, amounts to establishing a working rule that works, in the longer run, against the very principle that it extols” (Sartori 1987a: 24). He argues instead that the “limited majority principle turns out to be the democratic working princi-ple of democracy” (Sartori 1987a: 25). For this reason, liberal democracy goes beyond electoral democracy in two ways. First, the establishment of liberal


rights helps guarantee the free formation of wills before elections. As Sartori put it, “free elections with unfree opinion express nothing” (1987a: 102). Th is implies freedom of the press, which is essential for citizens to form opinions based on adequate information, and the chance to hear opposing points of view. Similarly, claims Dahl, “extensive participation and a high degree of public contestation depend to some degree on the spread of reading, writing, literacy, education, and newspapers or their equivalent” (1971: 75). Second, liberals wish to avoid a loss of freedom aft er elections, for, as Sartori puts it, “He who delegates his power can also lose it; elections are not necessarily free; and representation is not necessarily genuine” (Sartori 1987a: 30–31). Liberal democrats cannot avoid taking seriously the question, “How do we maintain and fi rm up the link between the nominal attribution and actual exercise of power?” (Sartori 1987a: 30).

Th us, liberal democracy brings us back to whether the people can be self-governing but in a typically individualistic way. To live freely in society means, negatively, to be free from external constraint and, positively, to have the power and autonomy to pursue one’s own will. A democratic political sys-tem is one that is consistent with two principles: that individuals are autono-mous, in the sense of knowing their own wills and pursuing them freely, and that external constraints are not imposed on citizens other than those to which they freely submit. Any political system constructed on the basis of thorough respect for these principles will look like a liberal democracy. Th is is not a recipe for collective strength or autonomy. Rather, the idea is to restrain the abusive use of power, to “check the state’s illegal tendencies” (Linz and Stepan 1996b: 19), and protect the rights and freedoms of individuals and minorities. To this end, liberal democratic regimes require a particular type of state: the Rechtsstaat , or constitutional state based on the rule of law. Citizens cannot eff ectively have their rights protected without the rule of law, and this requires an eff ective state. Th e expectation that civil and political actors become accountable to and habituated to the rule of law, and animated by a spirit of constitutionalism, creates a tension between constitutionalism and majoritarianism (Linz and Stepan 1996b: 19). Th is tension is resolved only insofar as there is a strong procedural consensus regarding the constitution.

Linz and Stepan correctly note that without the rule of law citizens can-not autonomously exercise their political rights (Linz and Stepan 1996a: 19). But as Guillermo O’Donnell has argued, in many new democracies it is the absence of a state that can uphold a democratic rule of law, a universal legal system, and social conditions supportive of citizenship that creates what he calls “a new monster: democracies without eff ective citizenship for large


sections of the political community” (O’Donnell 1995: 34). Th is is a problem liberal theories of democracy ill equip us to understand. Th e problem is not just that nominally democratic regimes have been adopted where the spirit of constitutionalism is weak. Th e absence of constitutionally democratic states undermines the exercise of citizenship. Liberal constitutionalism is a hindrance to understanding this problem because it frames the issue as one of controlling the state and preventing abuses, rather than enabling the state as an agent of collective capacity and autonomy.

Constitutions as Contracts In liberal theory, a constitution is not merely a coordination device to select among equilibrium outcomes but the foundation of the rule of law and jus-tice. In the social contract tradition in particular, a tradition that includes Locke, Rousseau, Kant, and John Rawls, “the political constitution and the laws are just when they could be agreed to by free rational persons from a position of equal right and equal political jurisdiction” (Freeman 2003: 3). Th e liberal view emphasizes the importance of reasonable agreement—not strategic rationality—among moral equals with substantively diff erent visions of the good society. Rawls’s idea of an “overlapping consensus” (Rawls 1986) emphasizes the shared values among reasonable proponents of comprehen-sive doctrines that form the constitutional essentials in a liberal society.

Th e rationalist criticism that constitutions are not contracts is based on the misconception that constitutions are bargains and hence must be enforced (Daniels 2003). Constitutions are not regarded as contracts in this sense by most liberals. Contractarians use the idea of a “fi rst contract” or choice behind a “veil of ignorance” to separate the values around which we may reasonably disagree (and pursue through bargaining, persuasion, or compromise) and those constitutional essentials that all citizens must accept—such as the idea that government is based on consent and citizens should be able to choose their representatives without external constraints. Normally this implicit contract is thought to be unanimous, at least in the sense that it would be accepted by reasonable people if given a choice.

Social contracts are abstract linguistic constructions used to illuminate the moral foundations of government based on the consent of the governed. Th e consent of the governed will always be a matter of interpretation; every student of political theory knows that the idea of a social contract is a fi ction. A theory that assumed citizens can actually agree on a unique understand-ing of the “will of the people” would never fl y. Th e issue is whether citizens


can agree on the constitutionally essential question of how legislation is made and adjudicated. Can they agree on how to build a state that more closely approximates the will of most of the people most of the time than the avail-able alternatives? From Montesquieu (1949) to Kelsen (1945), constitutions have been understood to be conventions and laws, both written and unwrit-ten, that defi ne the making and enforcement of legislation. Whatever else they do, constitutions must defi ne the offi ces and role of three branches of government—the lawmaking legislature, the law-enforcing judiciary, and the law-abiding executive. Th ey are not contracts, at least not literally, and they do not need to be enforced because they outline the mechanisms through which all other laws are made and enforced.

Contractarianism is one way of thinking about, or arriving at, an under-standing of constitution essentials so that any talk of the consent of the gov-erned becomes more than mere rhetoric. Since the union of the executive, legislature, and judiciary amounts to dictatorship, which is unjust, unfree, and unequal, and since there would be little recourse for the individual citizen to protect her rights against such an all-powerful state, a fusion of state pow-ers is illiberal. By ensuring that no branch of government can claim to speak unequivocally for the demos (Ackerman 1988: 170), the separation of powers provides freedom and equality with “an organizational guarantee” (Slagstad 1988: 104).

It is not essential to my argument that we accept the liberal conception of constitutional government. What matters is the recognition that liberalism, because it makes defi ning some concept of the consent of the governed cen-tral to democratic legitimacy, is an interpretive project. It is an understand-ing of constitutional government that recognizes that constitutions must be designed to enable those who enact legislation to make the claim that the laws are an approximation of their several wills.

Th ere are two important limitations of the liberal conception of democ-racy. First, liberalism demands agreement on constitutional essentials, but does not easily explain where such agreement comes from. Hypothetical social contracts are not the foundation for sociological theory, and it may be that only certain types of societies are able to embrace liberal ways of thinking about consent and obligation. Liberal-inspired empirical democratic theory places great importance on a strong legal culture in civil society, which means respect for Supreme Court decisions and judicial review; it also means an understanding that laws should be general and there should be a hierarchy between the constitution, statutes, and administrative decrees; and, fi nally, it presumes that only exceptional majorities can change the constitution. Such


a culture is diffi cult to develop when constitutions are changed frequently, when laws are passed that have no roots in social habits and customs, or when they are written with the interest of particular groups or individuals in mind. A stable liberal order requires a society in which values of tolerance for other perspectives that share a commitment to justice, equality, and freedom are widely held. Only a society in which “the terms of cooperation embodied in the rules are accepted freely can count as a stable society” (Barry 1995: 882). Yet free acceptance of the rules of a liberal society does not describe most of the world or even most of the world’s democracies; indeed, it is not clear that it describes a majority of people in most liberal democracies (Klosko 1993). Most of the world’s democracies are, in fact, illiberal, and some of the world’s liberal democracies exhibit illiberal traits.

Second, liberal constitutionalism stands in tension with popular majoritar-ianism. Indeed, liberalism lends itself to a view of the separation of powers in which constitutionally defi ned powers become counter-majoritarian. Liberals believe that certain procedures and norms must be placed beyond the reach of the demos. Rawls’s (1986) overlapping consensus defi nes the constitutional essentials that must be fi xed and placed outside the grasp of the demos (Wolin 1996b). 3 For this reason, “liberalism has historically provided both a neces-sary platform for democracy and a constraint upon it” (Beetham 1993: 56). Liberal constitutionalism manifests anti-majoritarianism in its “exaltation of the supreme court” (Wolin 1996b: 100) as the embodiment of public reason. If constitutional essentials are fi xed in law and convention, and are not what-ever the demos want them to be, the way we interpret their meaning and application is through processes of reason-giving that are impartial. Courts are privileged institutions for such deliberations. As Fareed Zakaria put it, impartial judge rather than the mass plebiscite best symbolizes the liberal constitution (Zakaria 2004: 21). As Sheldon Wolin notes, Rawls invites us to subject our political principles to the test of legal legitimacy: “how would our argument strike us presented in the form of a supreme court opinion” (Rawls cited in Wolin [1996b: 102])? Indeed, for Rawls, the constitution “is what the people acting through the other branches eventually allow the Court to say it is” (Rawls cited in Wolin [1996b: 114]).

In short, liberalism off ers negative liberty to individuals, and limits on state power, not greater collective autonomy and state capacity. Th is is only half of the promise of constitutionalism. A more positive view, one that recaptures the Greek and republican conception of constitutional order as a precondition for strong states and free citizens, is found in theories of delib-erative democracy.


Th e Deliberative Th eory of Democracy

Liberalism preserves the separation of powers as a doctrine, not a theory. To properly theorize the separation of powers it is necessary to focus on what legislatures and judiciaries actually do: they write and read laws. Th e only way of getting at a satisfactory account is by making these facts central to the the-ory, and this requires a discourse-theoretic approach. Th eories of deliberative democracy take a big step in this direction. Curiously, deliberative democracy comes out of critical theory, which began, as suggested by the Neumann quote at the outset of this chapter, from a skeptical position with respect to the doc-trine of separation of powers. Before we can discuss the discourse-theoretical approach, however, a brief detour through the origins of critical theory will prove instructive.

Fascism was the crucial point of reference for German critical theory in the immediate postwar period. Skeptical of the separation of powers under conditions of advanced capitalism, critical theorists were also infl uenced by the need to respond to the challenge posed by Carl Schmitt. Fascism power-fully shaped the way that critical theorists in what came to be known as the Frankfurt School thought about the separation of powers. Whereas Schmitt sided with the Nazi regime, however, Otto Kirchheimer and Franz Neumann criticized it from a Marxist standpoint and together they produced some of the best analyses of fascism. Th ey argued that the Nazi regime was a police state, rather than a Rechtsstaat, in which power was concentrated in the hands of the executive and exercised without restraint.

Th e monopoly on power in a mass society required the totalitarian party and an extensive network of state controls, as well as generous doses of ter-ror (Neumann 1957: 244–245). Th e rationality of the Nazi regime did not imply “universally applicable rules and consequences which could be cal-culated by those whom they aff ect,” but “only that the whole apparatus of the law and law-enforcing is made exclusively serviceable to those who rule” (Kirchheimer 1969: 99). In this permanent emergency regime, police powers were expanded and linked to party controls. Th e rights of the accused were abolished. Judges became less powerful and prosecutors held more sway in the courts. Law became “broader and less defi nite” (Kirchheimer 1969: 105). Th e regime would fi nally degenerate into the rule of gangsters, as Marx had described in his analysis of Bonapartism. Th e Nazi Behemoth would become a “non-state, a chaos, a rule of lawlessness and anarchy” (cited in Scheuerman 1994: 131).


Frankfurt School writers—under the infl uence of Marx’s analysis of Bonapartism—attributed the rise of Nazism to monopoly capitalism. Th ey argued that socialism would be necessary to restore the rule of law. Th e con-centration of economic power under monopoly capitalism was part of the social and political development of the Nazi regime. Th e technical rational-ity of this regime could not be reconciled with the protective guarantees of individual rights and freedoms. Th is perspective resulted in deep pes-simism about the separation of powers. One should not “make a fetish of the constitution,” said Neumann (1957: 142). Writing of Weimar Germany, Kirchheimer questioned the validity of the idea of the independence of the judiciary. “Th e concept of the independence of the judiciary shows how much the world of political economic facts can reduce to meaningless con-cepts which in an earlier century had perhaps a quite defi nite constitutional meaning. Th e independence of the judges has not been able to prevent the activity of the German Supreme Court . . . from becoming . . . a mere refl ex of the prevailing power relationships” (Kirchheimer 1969: 67). It was not the constitutional separation of powers that mattered, but “its social substruc-ture” (Neumann 1957: 142). “Modern political science must emancipate itself from the deadweight of the separation of powers doctrine which,” Neumann concluded, “much against Montesquieu’s conception, has been transformed into a dogma” (Neumann 1957: 142). Not only does the separation of powers fail to guarantee liberty, it “hampers the utilization of the state’s power for desired social ends” (Neumann 1957: 142).

Whereas earlier Frankfurt School writers tended to see (rightly, perhaps, at that time) the separation of powers as a dogma that inhibited the use of state power to progressive social ends, Habermas emancipated the separation of powers from the deadweight of doctrine by off ering a radically diff erent understanding of the relationship between reason and action, with important consequences for grasping the internal relation between constitutional law and democracy. A central concern in Habermas’s thought, shared with Weber, is the problem of rationalization—the subordination of ever-expanding spheres of life to instrumental rationality (which Habermas juxtaposes to communi-cative rationality). According to Habermas, speech and action can be rational in two distinct senses. Instrumental rationality refers to strategic and non-communicative action: it involved purposive goal-oriented acts aimed at the achievement of desired results. Communicative rationality involved the use of reasons within the context of arguments or debates aimed at reaching agreement or consensus. Th e distinction between instrumental and commu-nicative rationality enabled Habermas to develop a conception of the law that


connects its factual and normative dimensions. In this view, what gives the law its morally binding and integrative force is the legitimacy it enjoys when enacted according to procedures that are collectively accepted as valid and inclusive.

For Habermas, laws are codifi cations of reasons for actions, the force of which rests on the presumption that these reasons are valid. Th e separa-tion of powers implies a division of the branches of the state according to the respective logics of argumentation that are necessary to ensure that the actions of diff erent agencies can be justifi ed according to the varying sorts of reasons that correspond to the tasks they perform (Habermas 1996a: 192). A concrete constitution that does not uphold this abstract separation of powers is incoherent. A constitution is not merely whatever is found in a document calling itself a constitution—this is an example of what Alfred North Whitehead called the “fallacy of misplaced concreteness,” or mis-taking an abstract idea for something concrete. Constitutions may spell out many diff erent roles and responsibilities, offi ces and obligations, rules and rights, but what is invariant in the diverse constitutions that may be observed in the empirical world is the organization of the polity according to the necessity, inescapable in a literate society, of determining how laws are written and how they are to be read. Th is aspect of the construction of a constitutional order is not a technical problem, but a matter of practical reason. Th us, in a sense, Habermas brings political theory back, full circle, to Aristotle.

From a deliberative perspective, democracy is a political system in which those exercising power off er public reasons for their actions and defend them against criticism. 4 As Amy Gutmann and Dennis Th ompson put it, “the forums in which we conduct our political discussion should be designed so as to encourage offi cials to justify their actions with moral reasons, and to give other offi cials as well as citizens the opportunity to criticize those reasons” (Gutmann and Th ompson 1996: 91). Similarly, for Seyla Benhabib, democ-racy is “a model for organizing the collective and public exercise of power in the major institutions of society on the basis of the principle that decisions aff ecting the well-being of a collectivity can be viewed as the outcome of a procedure of free and reasoned deliberation among individuals considered as moral and political equals” (Benhabib 1996b: 68).

Th ose in power off er public reasons for their actions because they wish to secure the agreement of those aff ected. Deliberative democrats share with lib-erals the view that no one has the inherent right to command another, so sub-jects can only be expected to obey their own disinterested reason. Obedience


to authority is a violation of the citizen’s autonomy unless it is reasonable to believe that such agreement could be freely given. In this way, deliberative theories are liberal and—in both German and Anglo-American versions—Kantian. Reasons must be public because only reasons that are general enough to warrant a hearing among all citizens without exclusion are consistent with the freedom of all concerned. Th e publicity principle “encourages offi cials to give reasons for their decisions and policies and to respond to challenges to those reasons from citizens” (Gutmann and Th ompson 1996: 114). Th is rules out the distortion of the public sphere that occurs when public power is placed at the service of private interests. Reasons must be defended against criticism to ensure that there is accountability on the part of the powerful to those on whose behalf they claim to govern. “Public reason,” says John Rawls, “is characteristic of a democratic people: it is the reason of its citizens, of those sharing the status of equal citizenship” (1996: 213).

Th at citizens should “retain their power of judgement about public mat-ters” has become “the central proposition of deliberative theories of democ-racy, wherein the point is to increase the quality of democratic judgements through widespread citizen participation in multiple public spheres” (Warren 1996: 46). Deliberative democrats accept the basic principles of liberal democracy, in particular the autonomy of the individual and what Habermas calls “post-traditional values” (meaning the loss of certainty in transcendent truths). Th ey want to “radicalize rather than replace the current mixes of majoritarian processes, rights, and deliberative procedures that exist in con-temporary liberal democracies” so that institutions “produce judgements by deliberative means, rather than as an outcome of competing interests and powers” (Warren 1996: 46). Whereas the electoral school raises the problem of cooperation, the deliberative school is concerned with the conditions for reaching agreement in the context of such problems as deliberative disagree-ment (Gutmann and Th ompson 1996), reasonable pluralism (Chambers 1996), and multiculturalism (Bohman 1996; Habermas 1994; Gutmann 1993; Taylor and Gutmann 1992), for these are problems that cast doubt on our ability to resolve diff erences discursively.

Th eories of deliberative democracy aim at “elucidating the already implicit principles and logic of existing democratic practices” (Benhabib 1996b: 84). A discursive understanding of democracy does not commit the author to any specifi c institutional design, but rather provides a basis for tracing the norms and principles that give coherence and meaning to a particular set of arrange-ments. Argentine legal theorist Carlos Santiago Nino stated the problem with uncommon clarity: “there are no distinctive institutions of democracy


outside of a value-laden theory that simply justifi es a set of options. We can-not identify institutions commonly understood as democratic and work out a method for stabilizing them without systematically bringing to the fore the moral theory that justifi es them. Simply put, reality does not tell us which institutions are essential and which are contingent in relation to a normative concept like that of democracy” (Nino 1996: 9). If, as Sartori notes, “what democracy is cannot be separated from what democracy should be,” then the analysis of democracy requires an “interpretive attitude,” according to Nino (1996: 8–9; see Sartori 1962: 4–5).

All deliberative democrats concur that elections are not the only aspect of democracy: “Th e electoral verdict itself, or even the campaign, should not carry the full burden of reason-giving communication in the political process” (Gutmann and Th ompson 1996: 130). Nor are constitutions merely rules: “If all we have in common are the rules of the game, we are likely to confront one another more as adversaries than as cooperators” (Gutmann and Th ompson 1996: 58). Th ey see the democratic process as involving more communicative action, more disagreement resolved through dialogue and discourse rather than contestation. A condition of deliberative democracy is a certain consistency in speech and between speech and action (Gutmann and Th ompson 1996: 81).

Constitutions and the Exercise of Public Reason

Th e deliberative conception of the constitution diff ers from the liberal con-ception primarily in the sense that liberals accord “rights primacy over the democratic principle of legitimation” (Habermas 1995: 110), while delibera-tive democrats hark back to the ancient conception of the constitution as the “form of the body politics” rather than “a pre-political higher law” (Bellamy and Castiglione 1997: 602). In this conception, constitutions embody “certain principles that stand at the heart of all just societies” (Bellamy and Castiglione 1997: 615), and their content arises from deliberative processes. Th e idea that the constitution is “off the agenda” for public deliberation “mischaracterizes the nature of democratic debate” and fails to recognize that there is always legitimate public dispute over the meaning and application of such texts (Benhabib 1996a: 79). 5

What do deliberative democrats tell us about actually existing institu-tions, and in particular the separation of powers? Th e theory of deliberative democracy, by abstracting from concrete institutions, tends to be mute on issues such as the diff erence between presidentialism and parliamentarism.


When they have addressed these issues, deliberative democrats have tended to reiterate arguments made by liberals. Th us, Santiago Nino draws heav-ily on Juan Linz to make the case that pure presidential systems tend to be prone to legitimacy crises and prove to be dysfunctional when crises occur. In one respect, Nino goes beyond the liberal view. He argues that presiden-tialism tends to generate poor quality public debate because of the heavy focus on “individual persons who are candidates for the unipersonal cen-ter of power, instead of focusing on public ideals or substantive proposals” (Nino 1996: 160).

In the past, critical theorists tended to be skeptical of the doctrine of the separation of powers because it “hampers the utilization of the state’s power to social ends” (Neumann 1949: lxiv). However, the separation of powers has received more favorable treatment in the recent work of critical theorists for whom the constitutional state is “internally related to deliberative democ-racy” (Rehg 1996: 178, 181). In this view, the separation of powers is accounted for by understanding the constitutional state as a mechanism for governing by citizens within the context of effi cacious legislative and administrative activity.

According to Habermas, the various branches of government observable in all constitutional democracies correspond to diff erent logics of argumen-tation, and their separation is necessitated by these discourses. 6 Th e parlia-ment is the chief deliberative body, and it operates within the parameters of public opinion. Yet it has little administrative power: it cannot declare war, nor jail individuals. At best, it can subpoena witnesses or call high public offi -cials before hearings. Th e weakness of parliament as an administrative body ensures that its deliberations are insulated from the temptations of power and oriented toward the production of general laws for the public good, not the promotion of particular groups or individual interests. Above all, the legisla-ture must oversee the activities of the other branches of government to ensure that they act within the framework of the rule of law. Th is ensures that the exercise of power by the other branches of government remains consistent with the will of the public as expressed by the laws.

On this reading the separation of powers binds the exercise of administra-tive power to the communicative power generated by citizens acting in com-mon. Th e executive administers policies consistent with parliamentary law. It represents the need for action within the framework of the rule of law. Th e failure of parliament to oversee the actions of the executive enables the presi-dent to act with secrecy, and free himself from accountability. For that reason, the legislature and executive must be separated.


Equally important is the separation of power between the legislative and judicial branches. The role of the judiciary is to enforce the laws, not make them. The style of argumentation in the courts is different from that of legislative bodies, and with good reason. The fact that judges can deny citizens their most basic liberties requires that the rules and proce-dures for doing so be established not by the judges themselves, but by the parliament as a disinterested body that represents the collective, delibera-tive power of the political community acting in concert. The power of the courts is always vicarious, even (or especially) in the toughest cases of judicial review.

Th at deliberative democrats emphasize deliberation does not mean they believe that the minority has false beliefs. Th ere will never be full consensus on any public policy issue of importance, but democracy could not work without some acceptance of the procedures by which reasonable diff erences may be resolved—and some willingness to accept the validity of other par-ticipants’ views. James S. Fishkin (1991: 29) summarizes the case for delib-eration: “Without deliberation, democratic choices are not exercised in a meaningful way. If the preferences that determine the results of democratic procedures are unrefl ective or ignorant, then they lose their claim to politi-cal authority over us. Deliberation is necessary if the claims of democracy are not to be de-legitimated.” Public deliberation may not have the effi cacy desired by deliberative democrats, nor does it take place under conditions conducive to a convergence on unique social preferences (van Mill 1996). Rather, it occurs under conditions of reasonable pluralism in which out-comes will always be contested. Th e practice of democracy always falls short of the ideals inherent in any set of democratic institutions.

Th e idea that offi cials should “give reasons for their decisions and poli-cies and to respond to challenges to those reasons from citizens” (Gutmann and Th ompson 1996: 114) suggests that offi cials should be able to show how their specifi c decisions or policies are covered by general rules. Th e pressure to provide a justifi cation for action in terms of general rules encourages the diff erentiation of governmental agencies involved in the writing and interpre-tation of texts. Figure 6.1 summarizes the understanding of the separation of powers as a system from a discourse theoretical perspective. It is designed to capture the idea that the separation of powers should be understood less in terms of checks and balances than in terms of the interplay among branches of government.

Th e diagram captures the insight that the internal organization of the constitutional democratic state guarantees that those in power must provide


reasons for their actions and defend them against criticism in public. Th e public exercises infl uence upon government primarily, but not exclusively, through the election of public offi cials. Among these offi cials, legislators are responsible for making laws—understood as the codifi cation of reasons for actions—while courts subject laws to public criticism through judicial review. Together, legislatures and courts constrain policy making by the executive both through parliamentary oversight and administrative review. Th e execu-tive responds to threats and demands that require more or less immediate and energetic action, but within the limits permissible under the law as estab-lished by the other two branches of government. Th e entire logic of this orga-nization of state agencies obeys among other things the necessity to separate monopoly powers for branches of government in accordance with their spe-cifi c role in guaranteeing the exercise of public reason in politics.

Perhaps the greatest problem with this image of self-government lies in the assumption that the voice of the people can be channelled through mech-anisms of representation based on elections. Th e competitive struggle for the vote does not provide the mechanisms for inclusive deliberation necessary to support the presumption that laws, policy decisions, and judicial sentences are

WRITING:Legislature writes lawsin the public interest

READING:Judiciary interprets and applies laws to particularcases

Codifies reasons for action

Judicial Review

Policy

Rep

rese

ntat

ion Enforcem

ent

AdministrativeReview

ParliamentaryOversight

DECISION-MAKING:Executive makes policy decisions (permissible under the law)

VOICE: The Public

figure 6.1 Th e Separation of Powers: A Discourse Th eoretic Perspective


oriented to collectively desired outcomes. Th is gives rise to the need for what Mark Warren (2009) calls supplementary deliberative institutions—citizens’ assemblies, public consultations, citizen initiatives, participatory budget-ing, and so forth. Electronic media opens both opportunities to use mecha-nisms of direct participation to tap into the public opinion in the process of lawmaking as well as heavy costs for the failure to do so. More deliberative democracies may be necessary to sustain the reserves of legitimacy, capaci-ties for collective action, and expectations of obedience that a constitutional order should be able to generate.

Conclusion Th e theory of deliberative democracy is the most important development in our understanding of the separation of powers since Montesquieu’s famous synthesis in the eighteenth century. It neither discards the doctrine, as do the-orist of electoral democracy, nor does it include it dogmatically in the theory of democracy, as do liberals. Rather, it points to ways of understanding the separation of powers in terms of the kinds of discourses that are deployed (I would say monopolized) by various branches of government in order to ensure that the goals of democracy (the responsiveness and accountability of government that is achieved only when public offi cials must provide reasons for their actions and defend them against criticism) are fulfi lled.

Deliberative democracy encompasses and supersedes previous theories of constitutional democracy. It does not dispense with the idea of consti-tutions as coordination devices, but it approaches the problem diff erently. Constitutions, according to deliberative democrats, enable states to coor-dinate the collective action of citizens toward the achievement of desirable public ends. Th is is accomplished not only by structuring incentives for utili-tarian voters and politicians. Th e microeconomic assumptions of rationalist theories cannot produce a persuasive account of the separation of powers. Th e coordination that interests deliberative democrats, in contrast to theorists of electoral democracy, is accomplished by means of the production of legal texts that codify reasons for action backed by legally sanctioned coercion—that is, the authority that fl ows from procedurally legitimate and impartially applied laws.

Liberalism has an advantage over electoral democracy: it refl ects a deeper appreciation of the role of law. Where a rationalist perspective can give us only the freedom of the marketplace, liberalism is more centrally concerned with political liberty. Liberty is about the reconciliation of consent and


obligation, and, as Hayek realized, it cannot be understood except in terms of rules. Yet rules have two faces. One aspect of rules is the intrinsic reasons they embody; another aspect is the concrete social purposes they serve. Th e tension between the abstract study of rules as reasons for action and the more sociological study of rules as social facts is present in all theories of constitu-tions grounded in contractarianism. A theory of constitutions as contracts can give us a good account of why we should obey the law, but the idea of a social contract is and has always been imaginary; it is a useful fi ction for elucidating the normative basis of consent. A more sociological account of the law, no matter how liberal in inspiration, can tell us more about why we in fact obey or disobey laws, but as long as the law is treated as a social fact, such theories have little normative force. Th is explains the doctrinaire manner in which the separation of powers appears in liberal theories of democracy.

Th e promise of deliberative democracy is to reconcile the factual and nor-mative force of the law. Yet so far at least, theories of deliberative democracy have done a better job of generating abstract theories of democracy that help elucidate the underlying principles and practices of actually existing democra-cies than they have of providing good accounts of institutional evolution and change. Th at is why this book has attempted to ground deliberative democ-racy in concrete problems of media of communication. By deriving consti-tutionalism from the social cognitive processes involved in the use of text in political communication, it becomes possible to use deliberative democratic theory to explore the evolution of political institutions over broad expanses of time and in a wide range of social contexts with claims that are, in principle, subject to falsifi cation. It also has a critical intent: to expose the limitations of the use of the idea of the separation of powers in competing theories. Th at has been the purpose of the last two chapters.

7

Democracy Without the Separation of Powers?

. . . the voluntary creation of a permanent state of emergency (though perhaps not declared in the technical sense) has become one of the essential practices of contemporary states,

including the so-called democratic ones. giorgio agamben

It is no longer clear that the default state for American national security is peace.

john woo

The social-cognitive perspective has been used to provide a con-ceptual history of the idea of the separation of powers from its ancient origins to the present. Th e specifi c contribution of the social-cognitive theory has been three-fold: fi rst, through a review of major texts in the history of ideas, to assess the evidence linking the diff erentiation of governmental functions to major transformations in social communication, as would be expected if the branches of government monopolize diff erent discourses or logics of argumentation; second, to examine the implications of diff erent strategies for the use of text to coordinate collective action by states; and third, to specify the impact of media or technologies of communication, including literacy, the printing press, and electronic media on constitutionalism. Th e cognitive theory helps us to understand the uses of the separation of powers within alternative schools of democratic theory. Can it provide insight into contem-porary problems of democracy?

Th e social-cognitive theory can illuminate six major problems facing many contemporary constitutional democracies: (1) whether a “new separation of powers” is necessitated by the rise of the administrative state; (2) whether pres-identialism does a better job than parliamentarism in separating the branches


of government; (3) why fragile democracies oft en undermine the separation of powers with public acquiescence, even encouragement; (4) whether it is pos-sible to establish conditions under which states of exception or “constitutional dictatorship” may be declared without undermining the separation of powers; (5) the implications of anarchy and the global “war” on terror for constitu-tional democracy; and (6) the eff ect of digital media on constitutionalism and the separation of powers.

I argue that the expansion of the administrative state poses important chal-lenges to the theory of the separation of powers, but does not justify desig-nating bureaucracy as a fourth power. Against the view that the separation of powers is best exemplifi ed under presidentialism, I argue that the separation of powers is not about the separate election of legislative and judicial bodies but about the ways in which the making and application of law are monopolized by separate branches of government. Parliamentary systems do as good a job as their presidential counterparts. Th e real threat of the separation of powers in contemporary democracies comes from overweening executive power. Th e separation of powers is oft en violated in delegative democracies in which the public yearns for strong executive leadership. Such violations may also occur in emergency situations (real or imagined) in established democracies, as in the case of the “war” on terror. Th e diff usion of new communication technologies both undermines monopolies of knowledge and contributes to the centraliza-tion of power fostered by globalization. In a globalized world, both authoritar-ian and democratic regimes may be compelled to allow a margin of freedom on the Internet in return for the signifi cant benefi ts to be derived from the coordi-nation of collective action among large numbers of people whom it enables.

Strong Constitutions A brief restatement of the idea of constitutionalism advanced in this book may help the reader to place the claims in this chapter in proper context. A theory of strong constitutionalism must off er a defense of the separation of powers based on an appreciation for the way the separation of powers enables enduring and large-scale collective action by means of written text. Th e sepa-ration of powers may be defended not merely as a device for limiting power, but as a means for attaining collective goals. It is the organizational guarantee that those in power will provide reasons for their actions and defend them in public against criticism. Th is is achieved by organizing the state so that it has the same collective capacity for agency as the individual human mind: delib-eration, followed by execution, and judgment of consequences.

Democracy Without the Separation of Powers? 167

Aristotle defi ned constitutions as “the way of organizing those living in the state” (1962: 102). Although this seems like a loose or wooly defi nition, it captures an important insight: constitutions are about how people organize themselves to achieve collective ends. I have argued that constitutions solve political problems arising from the use of text to coordinate collective action. Th ese problems arise from the speech acts necessary to perform the actions that the constitution demands. I have argued that speech acts can be judged in terms of the intention of the speaker, their internal validity, and the con-texts in which they are used. In the case of the law, these problems involve judgments concerning the sources and interpretation of law. Th ese are not the only problems constitutions help to resolve, but they are important ones. Constitutions settle these issues politically, fi rst by delineating the powers of legislatures and courts, and second by subordinating the coercive apparatus of the state to the system of rules created by these deliberative institutions.

Th is understanding of constitutionalism departs from conventional wis-dom in key respects. Constitutions are oft en treated, fi rst and foremost, as constraints on state power—which is the essence of the liberal view. I do not entirely take issue with this notion, but it seems to me that, unless qualifi ed, it entails serious risks. First, by overstating the negative role of constitutions, their positive contribution to democracy may not be appreciated. Constitutions limit state power, but they also enhance state capacity in the sense of solv-ing coordination problems arising from the use of texts. Second, unless it is understood that constitutions enhance state capacity, and hence the ability to achieve collectively desired ends, a negative view of constitutions may lead to the conclusion that, on balance, they do more to limit the democratic power of constituents than to facilitate the fulfi llment of their aspirations. It is there-fore important to discuss the positive role of constitutions, both in terms of how they enable rulers and ruled to coordinate plans and undertake patterns of social interaction that would otherwise be impossible and, moreover, how they make it possible for specifi cally democratic goals to be attained.

To connect the positive attainment of collective goals to the constitutional conditions that enable them, it is necessary to clarify misunderstandings that arise from the very language oft en used to talk about constitutions. In com-mon parlance constitutions are called fundamental laws or contracts. Th is can lead to the misconception that constitutions are laws or contracts like any other, except that they happen to be somehow more weighty, more basic, and harder to change. Yet as critics of contract theory rightly note, whereas laws are enforceable, constitutions are not. In fact, constitutions are quite unlike ordinary laws in that they typically neither enjoin nor sanction particular


courses of action or inaction. Th ey organize the roles and offi ces of the state; they specify who can make laws, what counts as legitimate law, and how laws should be interpreted and applied. All this is prior to ordinary legislation, policy making, or adjudication. What makes a constitution work is not that it is enforced but that it serves as the basis for action in politics. If those with de facto power within a state decide to ignore the constitution, and can get away with it, then the constitution no longer serves as an eff ective mechanism for the coordination of the interaction of political agents.

Rather than thinking of constitutions as laws, mechanisms, or contracts, we should think of them as texts that enable speech acts that must be per-formed as part of everyday political life in the constitutional state. Speech acts involve conscious interpretation and hence cannot be understood except in terms of how people engage in purposive and intentional actions. Th e best analogy is, perhaps, a promise. A promise is a promise not just because some-one utters the phrase “I promise” followed by a statement of an intended course of action (or inaction). As anthropologist Cliff ord Geertz cogently put it, a speaker might very well say “I promise” with a wink and a nudge and an ironic tone of voice that conveys the intention not to pursue the course of action promised. 1 Th e statement will not secure the uptake of the hearer as a promise, and the act of promising will not have been performed. For a prom-ise to succeed in securing the uptake of the hearer, it must comply with certain rules and express the right intentions. For example, the intent to fulfi ll the promised course of action must be expressed with apparent sincerity, must be intelligible to the hearer, and must be feasible.

Promises are made possible by the human ability to understand the inten-tions and mental states of others, which is also the source of the ability to learn through others, to collaborate, to engage in intentional causal thinking, and to solve problems that require joint attention (Tomasello 1999: 23). Since that same ability is the source of ruse, deception, betrayal, and trickery, humanly devised institutions are sometimes created to solve the collective action and coordina-tion problems that rulers and ruled may jointly confront. Th is is not a function-alist argument. To say a constitution is like a promise is simply to say that the meaning of a constitutional text lies in its performance—whether in decisions and commands, in the writing of laws, or in their fair and proper application. A constitutional order involves a set of cognitive activities (concerning deci-sions, writing, reading) that, when performed in a certain manner, according to a given set of conventions and intentions, make the operation of a state lawful.

Oft en, intractable challenges of constitutionalism arise from collec-tive action problems associated with the performance of “moves” within a


constitutional game. Understanding the intention of the framers of the con-stitution and the laws, establishing the validity of alternative legal interpre-tations, and determining the application of constitutional and legal rules in particular settings are essential for the very existence of a constitutional order. Th ey are what we might call constitutional essentials, but to say so does not mean they are beyond dispute—quite the contrary. Constitutional interpre-tations are always, in principle, open to contestation, and therefore subject to revision, because no text is univocal or unambiguous. In other words, what is constitutional is always a matter of interpretation.

As soon as we recognize that no constitution can possibly contemplate every imaginable contingency, and that every text is open to multiple interpre-tations, it becomes necessary to distinguish valid and authoritative interpreta-tions from those that are not. Th e procedures for constitutional interpretation are designed to ensure that those who interpret them arrive at valid conclu-sions. Th is, in turn, presupposes an internal connection between the integrity of the procedure and the validity of the conclusions. For example, judicial independence is necessary to arrive at constitutional interpretations uncon-taminated by political calculus. Th is principle is inherent in the very idea of a constitution, regardless of the procedures adopted to interpret it.

Matters of interpretation need not be barriers to the resolution of prob-lems within the framework of legal consensus. Such a consensus is possible, however, only provided the roles and offi ces of the state are organized to this end. Th e construction of three separate monopolies of power (to make law, to make executive decisions, and to interpret and apply the law in particular cases) not only avoids the fusion of power that invites abuse, but also enables the practical political theorizing required to reach agreement on the uses of legal texts. Th is last point is crucial, and it is what separates a cognitive theory from a behavioral one.

Th e “New” Separation of Powers and the Administrative State

It is occasionally argued that the modern state is involved in expanding spheres of activities that cannot be easily captured by the neat tripartite separation of three branches of government (see Carolan 2009: 42–44; Barber 2001: 69–71). Th e rise of the administrative state is a challenge to the separation of powers both because it implies more extensive roles for government than imagined by early constitutional theorists and because these roles involve wider discretion for administrators. If we think of the separation of powers


as an arrangement of institutions designed only to inhibit the actions of the state, then the wide scope of bureaucratic activity may be a problem. Th e argu-ment developed in this book is less threatened by the rise of the administrative and managerial roles of the modern state, however, and indeed it can provide a good account of these new functions. Th e administrative functions of the modern state fl ow from the speech act problems that arise when instructions must be obeyed in the absence of the author.

Consider the claim that the separation of powers is obsolete. Th e prob-lem of the administrative state is not just that the breadth and diversity of its functions “defi es the simplistically categorical approach to offi cial actors demanded by the common three-way conception of the separation of pow-ers” (Carolan 2009: 42). Even if one could link each agency to “the parent organs of the executive, legislative, or judicial” (Carolan 2009: 50) branches, a deeper problem would remain. Wide latitude for the discretionary exercise of administrative power threatens to undermine the very goods that the sepa-ration of powers was designed to provide. Whatever “inner reserves of cohe-sion, obligation and legitimacy,” to use Chris Th ornhill’s (2011: 2) words, are generated by the state through the separation of powers may be lost at the managerial or administrative level if power is exercised by unelected offi cials in an arbitrary or abusive manner.

Given that the scope and complexity of governance in modern states will invariably leave wide discretion to administrators, how can arbitrariness and the abuse of power be avoided? To begin, it must be acknowledged that the problem is not just discretion. Any general rule, no matter how carefully craft ed, demands discretion in its implementation. Discretion does, however, imply the exercise of judgment. Judgment is required as we move between general rules and their particular applications, or as we develop subsidiary rules to accomplish the aims of more general rules and principles. It is na ï ve to think that judges are automatons of paragraphs (see Weber 1958: 219), or that civil servants are neutral implementers of the instructions of their politi-cal masters.

Administrators must work out policy programs to execute statutes in ways that require judgments that cannot be treated as purely technical-rational exercises. Moving from the general (statute) to the particular (administra-tive decision) is not a mechanical operation. For example, general interests are insuffi cient to guide administration in what Pierre Rosanvallon (2011: 62–66) calls a “new world of particularity.” As the state begins to play a larger role managing the specifi c problems of groups and individuals, the idea of governance based on fi xed rules loses its relevance and is replaced with more


fl exible forms. Moreover, electoral democracies are oft en unable to generate robust agreement on the public interest, especially in increasingly pluralistic societies, and this gives rise to a demand for more refl exive forms of gover-nance and for counter-majoritarian deliberation.

Eoin Carolan (2009: 167) makes a strong case that good governance requires “an institution characterized by the independent and dispassionate exercise of expert practical judgment.” Th e administrator occupies the space for practical judgment created by the construction of a rule-based system. Th e distinctive role of the administrator is to exercise practical judgment, based on specialized expertise, in the performance of the set of tasks (including decision making, rule making, and adjudication) that are necessary to move between rules and practice. Any constitutional order in which the work of government involves triangulating between general rules and particular cases will require a specialized body of administrators with the right training, prac-tical skills, and judgment. Carolan concludes that administration is “a norma-tively legitimate branch of government,” and “an independent entity with the capacity to make a positive contribution to a renewed institutional eff ort to secure good governance” (2009: 137).

Frank Vibert arrives at a similar conclusion. He begins with a distinc-tion between political and value judgments and judgments based on exper-tise and empirical knowledge (2007: 2). Th e unelected bodies that perform supervision, regulation, risk assessment, oversight, monitoring, auditing, whistle-blowing, and other tasks rely on expertise and specialized knowl-edge beyond that which can be monopolized by the elected representative or even conventional judicial institutions. Th ey use factual evidence, empirical knowledge, and scientifi c methods. Th ey are not merely an extension of other branches of government, but part of a new system of governance in which evidence, knowledge, and information are central (Vibert 2007: 4, 12). Th ey disrupt, in other words, the monopolies of knowledge implied by the conven-tional separation of powers.

An appealing feature of this concept of the separation of powers is that it reinforces the deliberative theory of democracy in a novel way. Just as elected offi cials “have to provide reasons to the electorate as to why they should be given or retain offi ce, and courts have to off er explanations for their judgements” (Vibert 2007: 169)—that is, they are “answerable” for their actions—so too must unelected offi cials answer for their actions. Each branch must operate within its competence on penalty of sanctions for the misuse of power. “Unelected bodies need to give public reasons as a way of answering for their decisions; they too should act within their proper limits and respect


the core functions of the other branches and they too should also be capable of being sanctioned” (2007: 170).

Yet Vibert acknowledges a crucial limitation to administrative power that places in doubt whether we can consider unelected administrators a fourth branch of government. “Th e bodies that belong to the [new, unelected branch of government] have limited executive powers, they rely for the statutory defi nition of their roles on the legislative branch, and they lack the long tra-dition that imparts an embedded authority to the law” (Vibert 2007: 182). Th is is as much as to say that these bodies are not a separate branch of gov-ernment. Th ey depend for their very existence on the other branches. Recall that constitutions defi ne how laws are to be made and enforced, and thus all constitutions create legislatures and courts. Th is is not a formality. Legislative and judicial bodies monopolize core functions within a political system. Any modifi cation to them is ipso facto a change in the constitution. By contrast, administrative agencies may be created or disbanded by statute. To give them the same status as another constitutional branch of government would be to imply that they have powers that, for the most part, they simply do not.

Th is is not to say that administrative agencies are unimportant—on the contrary. But they have neither constitutional standing equal to the other branches nor could they be given standing under any constitution except by the legislature or courts. Th ey perform critical tasks; they may become, over time, part of the living constitution; and constitutional systems may function better as a result of their existence. Th e tasks they perform, however, are only imaginable in the context of a constitutionally ordered polity, and they are therefore no more a separate branch of government than, say, the military or the media.

In fact, the administrative functions of the modern state are necessitated by the spread of text as a mechanism for the coordination of collective action. Th e use of text to convey instructions in the absence of the author creates a potential collective speech act problem—namely, the need to interpret instructions in a manner consistent with the intention of the author and the outcomes the instructions were intended to bring about—and it also unleashes a progressive internal dynamic of criticism and commentary. Th e specialized role of administration is precisely to manage this dynamic within the state apparatus. Th ese are the judgments that the administrator specializes in making. Th e use of text itself demands the separation of powers and the coordination of collective action within the state demands administration.

A social-cognitive theory of the separation of powers can provide a model of the use of public reason at lower levels of administration. Statutory law


invariably leaves broad scope for administrative action at the level of particu-lar policy issues. Administrators can encourage public deliberation in policy making and in the assessment of policy outcomes within the bureaucracy. Th e underlying principles are the same at lower levels of government: actions that are not preceded by public deliberation and followed by review cannot meet the test of legitimacy in which offi cials must be able to articulate the reasons for their actions in public and defend them against criticism. Th e fact that features of the separation of powers exist in many public administrative agencies—including crown and municipal corporations, supranational bod-ies, and universities—is encouraging because it suggests ways of overcoming the deliberation defi cit that occurs when public administration is closed to public input except through periodic elections. Another way of reinforcing the separation of powers is through federal arrangements. Indeed, federal-ism is nothing other than the introduction of the separation of powers at the sub-national level (Cameron and Falleti 2005). Replicating the logic of sepa-ration in multiple spheres and levels of government may well be the best way to deepen any constitutional order.

In short, the rise of the administrative state poses interesting questions for a theory of the separation of powers, but the solution is not to dismiss the tri-partite separation of branches of government. Deliberative institutions enjoy primacy over all other governmental bodies. Th eir existence is a fundamental precondition for constitutional government, and they alone enjoy the con-stituent power to organize bureaucratic roles and offi ces. Th is does not mean that we do not need to think about how to retain the separation of powers within the administrative state. Indeed, the logic of the separation of powers gives us good insights into how administration can be structured to reinforce constitutionalism.

Presidentialism vs. Parliamentarism Th e analysis of diff erent types of constitutions provides a good place to high-light the distinctive contribution of a social cognitive theory of the separa-tion of powers. In contrast to the view that presidential constitutions better approximate the separation of powers than parliamentary ones, I argue that the separation of powers is an intrinsic feature of both types of constitutions. Presidential constitutions are unique in separating the powers of govern-ment only if we stipulate that such separation implies the separate and direct election of legislature and executive. But the separation of powers antedates electoral democracy, and the problem it concerns is not how the branches of


government are selected, but how they work. Th e fact that the executive is selected by the legislature does not mean that the legislature cannot monopo-lize legislation, much less that the courts cannot monopolize adjudication.

Just as a single individual can play multiple roles, so offi cials can be involved in both the production of law and the implementation of policies, provided they do so in compliance with the rules governing the specifi c jurisdiction and competence of their respective roles and offi ces. Th ey can also interpret laws, and even temporarily suspend them, provided they recognize the fi nal authority of the courts in all matters of judicial interpretation. Th e separa-tion of powers does not create watertight compartments of government, as Madison understood. Th e separation of powers demands that laws are made by legislatures, and that courts have the fi nal say in their interpretation and application. A text is a legitimate law if and only if it has been produced by a legislature in accordance with proper parliamentary procedures as deter-mined, where necessary, by the courts. Nothing in parliamentary government violates this, and the principle of parliamentary supremacy, which is the cor-nerstone of the separation of powers in parliamentary systems, is designed precisely to uphold it.

A key intuition behind the separation of powers as a doctrine is that the coercive apparatus of the state is likely to be abused when specifi c groups or individuals can both make general rules and apply them in particular cases as they wish. Th e danger goes two ways. On one hand, general rules are less likely to be in the public interest when they are tailored to the interests of particular groups or individuals. On the other, unjust acts against particu-lar groups or individuals may be allowed by the abusive application, distor-tion, or suspension of general rules. Th erefore, those who make general rules should not occupy the same roles or offi ces as those who interpret or apply them. Th is means that the separation of legislature and judiciary is as crucial, perhaps more crucial, than the separation of the legislature and the executive. Th e agency that expresses the voice of the people in the form of general rules cannot be the same agency that determines how these rules are to be applied with respect to particular individuals.

Th e legislature says: “murder is prohibited.” Th e judiciary says: “X is sentenced to life for murder.” As long as both the legislature and the judiciary are doing their job, all actions within the political system will fall within the framework of gen-eral rules. Crucially, this applies with the same force to state offi cials as it does to citizens. Th ose who exercise coercive force do so within the margins of discretion created by the impartial application of general rules. Th e executive is bound by the rule of law, which is created by the coordination of legislature and judiciary.


In Dennis Baker’s pithy formulation, “the legislature creates and amends law, the executive governs according to the law and the judiciary settles disputes between the state and citizens or between citizens themselves” (2004: 7).

Th e separation of powers is a doctrine, but it is more than that. It is a way of organizing the political system that enables certain speech acts to be per-formed. As such, it is vulnerable to collective action failures rooted in speech act problems. Any speech act can be performed well or poorly depending on the competence and sincerity of the speaker and the appropriateness of the speech act given the context. Th ese problems arise in diff erent ways according to the type of constitution. Parliamentary systems are prone to certain kinds of collective speech act failures arising from their institutional design, just as presidential systems are prone to other kinds of failures arising from diff erent design problems. A good understanding of the separation of powers is crucial to ensuring the performance of both systems.

Th e claim that there is no separation of powers between legislature and executive in parliamentary systems has become a “constitutional orthodoxy.” 2 Th e orthodoxy is based on a misunderstanding of the separation of powers. Properly understood, parliamentary systems exemplify a particular approach to the separation of powers, one no less valid than presidentialism. If this sounds counter-intuitive—particularly to Anglo-American ears—it is in no small measure because of the mischief done by nineteenth-century thinker Walter Bagehot, who argued that the separation of powers was a feature of presidential government, and not, as it had previously been understood, part of the English Constitution.

As Ferdinand Mount notes, the doctrine of the separation of power “never recovered its full vigour” aft er “Bagehot’s onslaught” (Mount 1992: 29). Bagehot’s fi rst assault on the doctrine was to misconstrue it as the prin-ciple that each branch of government “is entrusted to a separate person or set of persons—that no one of these can at all interfere with the work of the other.” His next salvo was to assert that the “effi cient secret” of the English Constitution, the role of the cabinet, which is “a committee of the legislative body selected to be the executive body” (1963: 59), stands in opposition to the separation of powers. With great fl ourish he administers the supposed coup de grace: the English parliament is “despotic,” “absolute,” and “can rule as it likes and decide as it likes” (1963: 220). It is remarkable that a view so mani-festly inaccurate, both as a description of parliamentary government and as an interpretation of the separation of powers doctrine, should have any infl u-ence at all. For all his allusions to “the traditional theory, as it exists in all the books,” Bagehot apparently never managed more than a sophomoric reading


of Montesquieu. And yet his lazy critique has become conventional wisdom. Happily, it has not gone entirely unchallenged.

Mount (1992: 83), in a nice rebuttal of Bagehot, put it well: “the fact that the powers cannot be wholly separated from each other does not mean that some degree of separation is not vital.” Yet Mount concedes too much: the fact that the personnel of government cannot be wholly separated does not mean that their powers cannot be. Th e powers of the prime minister, for example, are not the same as the powers of a member of parliament, even though the prime minister is both at once. A prime minister cannot make decisions and claim they have the force of law without parliamentary approval for a simple reason: parliament monopolizes the production of texts that become laws. Montesquieu abhorred the situation in which, to again use Baker’s words, “a single decision-maker” could “enforce his preferences directly and absolutely upon the citizen” (Baker 2004: 7, italics in original). For all its power, the offi ce of the prime minister depends on the confi dence of parliament; to com-pare these powers to the monarch who enacts and enforces tyrannical laws is a stretch indeed.

Th ere is no denying that parliamentary systems centralize a good deal of power in the offi ce of the prime minister, and herein lies the greatest risk to the separation of powers in parliamentary systems. Political realities such as party discipline and prime ministerial control over patronage and appoint-ments tend to produce strong executive dominance. In the British parliamen-tary tradition in particular, where parties are typically strong and disciplined and the prime minister has extensive infl uence over patronage and career paths, the executive has enormous powers to set the legislative agenda and shape policy outcomes. Even the cabinet has seen its infl uence wane relative to the offi ce of the prime minister (Mackintosh 1977: 628–631). Th is does not mean, however, that control over the legislative and policy agendas nec-essarily leads to the sort of abuses of power that, according to Montesquieu and Madison, occur when the whole power of various departments of govern-ments are concentrated in so few hands that the lines are blurred between the making of laws, their execution, and their application. As long as laws are passed by the legislature and in accordance with parliamentary procedure, the prime minister and other government offi cials obey the law and the judiciary is independent, the separation of powers is in eff ect.

One reason the power of the prime minister is neither despotic nor abso-lute is that it must be exercised in accordance with the law. To quote Mount (1992 83), again, the separation of powers “derives its vitality, not from the ingenious clauses of a constitutional blueprint, but from the idea of an


overarching law which must govern the actions of every public offi cial in the fashion appropriate to his profession.” If a judge imposed a sentence based on the preference of the executive or legislature, rather than the merits of the case in light of the law, such actions would strike at the heart of constitutional government. As long as judges are impartial and honest, and lawyers follow court procedure, “then they and the institutions to which they belong cannot be merely servants of a single power. Th e idea of justice itself helps to separate the powers” (Mount 1993: 83).

Not only do parliamentary systems uphold the separation of powers—in some respects and under certain conditions they do so better than presiden-tial systems. Before making this argument, it is worth reiterating that neither system is based on the pure separation assumed in simplistic theories. Just as in a pure parliamentary system the cabinet exercises both executive and legis-lative powers, with the prime minister at the apex of both branches, in a pure presidential system the presidential veto gives the executive partial control of the legislative agenda, while impeachment gives congress the right to remove the executive from offi ce.

More importantly, presidential constitutions create a temptation for democratically elected presidents to play a legislative role outside the legisla-ture, a temptation that frequently brings them into confl ict with the courts because such eff orts oft en involve other actions that violate the constitution and the laws—such as buying infl uence in congress, abusing decree author-ity, or changing the constitution unilaterally. Th ese problems are less likely to occur, but are not wholly absent, in parliamentary systems for the reason that prime ministers normally control a parliamentary majority and elections can be called when they do not. Parliamentary governments can do more within the constitution, but once they break it there is no reason to believe that their courts or legislatures are any less eff ective as bulwarks against despotism than in presidential systems. Th e next section discusses problems to which certain presidential systems are prone.

Delegative Democracies Th e discussion of presidential versus parliamentary government highlights a critical point: the separation of powers depends on the rule of law. Where the rule of law is strong, both presidential and parliamentary systems work well. Where laws do not regulate life, and this is especially common in presi-dential systems in new democracies, the separation of powers tends to dete-riorate. Argentine political scientist Guillermo O’Donnell coined the term


“delegative democracies” to describe such regimes. 3 According to O’Donnell, the democracies that emerged following transitions from authoritarian rule throughout Latin America in the 1980s were electoral democracies but they lacked features typically associated with established liberal democracies such as horizontal accountability—the degree to which state agencies oversee and sanction public offi cials. In these new democracies, presidents seek to have their powers unchecked by legislatures, courts, or other constraints: “whoever wins election to the presidency is thereby entitled to govern as he or she sees fi t, constrained only by the hard facts of existing power relations and by a con-stitutionally limited term of offi ce” (O’Donnell 1999a: 164). In this highly majoritarian conception of rule, the president is seen as the “embodiment of the nation,” and courts and legislatures are treated as nuisances to be, at best, tolerated (O’Donnell 1999a: 164).

O’Donnell (2001) sees delegative democracy not merely as a diminished subtype of liberal democracy; in fact, he criticizes the literature on demo-cratic consolidation for treating some Latin American democracies as incom-plete versions of established liberal democracies and argues, instead, that they constituted a distinct type of regime. He espouses a realistic and minimalist defi nition of democracy, but he also shows how the Schumpeterian perspec-tive assumes the presence of institutions that are oft en missing in the contexts in which new democracies emerge. Specifi cally, democratic regimes require a lawful state ( Estado de derecho ) able to back the political and civil rights of citizens in an impartial and universalistic manner.

Th e problem is not just legal and institutional, and this is why the Schumpeterian perspective is insuffi cient. Th e problem is rooted in entrenched patterns of social communication. Delegative democracies fl ourish where par-ticularistic social relationships involving personal exchanges—like clientelism and patrimonialism—masquerade as the rule of law. Th ese relationships are ubiquitous because they are absolutely necessary in a society in which text plays a limited role in the regulation of social life.

Centuries of colonial rule restricted literacy to wealthy elites. Elites monopolized institutions based on print and the use of the written word. It is this above all that gave rise to oft en observed separation between the rituals and discourses of formal political institutions (the pa í s ofi cial ) and the way that people really behave ( pa í s profundo ). Th e gap between oral customary laws and traditions and formal public law is one manifestation of this dis-tinction. For over three centuries indigenous people in Latin America were excluded from access to reading and writing. Even independence brought little change, and in some ways made matters worse. With rare exceptions,


post-independence Creole elites failed to make sustained investments in pro-moting citizenship through education.

Th e monopolization of print by literate elites results in legislatures that function only to solve coordination problems among rulers, and partially at that. As a result, legislatures, courts, and other institutions of horizontal accountability are oft en ineff ective in achieving collectively desired outcomes. Legislatures produce copious and minutely prescribed laws, but much of the public sees no impact of the law on their lives, and they become accustomed to ignoring the legal system. Judiciaries are overworked and understaff ed, and they are vulnerable to politicization and manipulation because there is no widely accepted consensus on the importance of judicial independence. Knowing that the laws are not adequately enforced and are easily violated with impunity, leaders act at their margins. All of this results in politicized states with little autonomy or capacity. Th e public grows frustrated with gov-ernment inaction, and begins to demand stronger, more eff ective government. Th ey want leaders who are decisive and energetic.

Th e executive branch can most easily channel frustration with govern-ment inaction. It is the president who personifi es the nation and symbolizes its capacity for action. When other branches of government are seen to be ineff ective, executive action can become the default option. In extreme cases, the executive may close Congress, suspend the constitution, and purge the judiciary. When this is done to change the constitution to expand executive powers, it is called a presidential self-coup or autogolpe . To be sure, such epi-sodes are not without precedent among more established democracies, as in Weimar Germany; what is alarming is that they are occasionally highly pop-ular, and may result in successful constitutional referenda and presidential reelections.

Members of the public may stand by indiff erently, or even applaud, when leaders dismantle democratic institutions, not because they reject democracy but because they are disenchanted with the performance of specifi c demo-cratic institutions—especially parties, legislatures, and courts. In many new democracies the separation of powers is not regarded as an essential feature of democracy. Th at is why the institutions that make up the separation of powers—legislatures, parties, courts—are precisely oft en singled out as those least trusted by the public. Under conditions of restrictive literacy, they are monopolized by elites. Th e idea that the will of the people is expressed in laws written by elected representatives in accordance with accepted parlia-mentary procedures is not persuasive. If written law does not eff ectively coor-dinate collective action, provide a framework for resolving disputes, and give


predictability and stability to the social order, there is little reason for voters to bother much with the legislature. Th e same is true of political parties; their main purpose is to translate public opinion into authoritative law, but if laws do not regulate life the role of parties becomes merely to enable self-serving elites to monopolize competition for power. Perhaps no institution is less popular than the judiciary, for it symbolizes arbitrary and alien power, not the impartial and universal application of rules.

Deliberative institutions are undermined not simply because they are a nuisance to leaders, as O’Donnell suggests, but also because they are dis-trusted by the public. Th is raises questions about the quality of democracy that are unlike anything contemplated by Schumpeter, who assumed func-tioning public institutions even as he extolled the virtues of a minimalist understanding of democracy. Because these institutions were an assumed but not an explicit part of Schumpeterian democracy, this theory is of little help in understanding democratic politics where such institutions are missing. Th e same is true of Schumpeter’s successors, like Dahl and Przeworski. Th ey envis-age a democracy of voters not citizens, and the politicians that struggle for the peoples’ vote are decision makers, not lawmakers. In their conception, democracy is restricted to its executive moments: the people vote, their pref-erences are aggregated, and political leaders are then selected to make policy decisions. A theory of democracy that assumes, but has no explicit under-standing of, the separation of powers can hardly explain the implications for democracy of the absence of the separation of powers.

And yet when we observe real-world democracies without a robust sepa-ration of powers, we discover that there are major problems with how they operate. Th ese problems make us hesitant to describe them as properly func-tioning regimes—even though they routinely hold free and fair elections. For example, in O’Donnell’s delegative democracies, there is a tendency for rulers to appear to have exaggerated power, almost omnipotence, when they are fi rst elected, and then to become impotent to the point of being unable even to carry out their mandates. Th is brings us to a crucial point: regimes in which power is concentrated in the executive branch tend to be weak. Part of the explanation lies in the impossibility of securing widespread compliance with decisions and edicts in the absences of robust legislation. A genuinely powerful leader may make important executive decisions, but these must be backed up with legislation that provides a framework for compliance by the rest of the political community. In other words, a strong legislature reinforces rather than detracts from executive power, provided it does not obstruct the president.


Th ere are good reasons for why rulers who do not operate within the framework of strong judicial and legislative institutions are less likely to com-mand compliance. First, they are more likely to make decisions without the foresight that comes from careful deliberation. Th at is one of the purposes of a legislature. It is possible to govern well through individual initiative, but far more likely that rulers will pursue narrow, particular interests unless they must off er reasons for their decisions within a framework of horizontal account-ability. Second, compliance is reduced by the lack of retrospective account-ability. Unless there are anticipated sanctions for rule breaking, leaders have a low incentive to act in accord with the rules. Th is further undermines compli-ance. Why should anyone obey the law when those entrusted with a nation’s legal institutions do not?

In summary, the executive is more likely to act with deliberate foresight and respect for existing rules only when there are robust legislative and judi-cial institutions in place. At stake is whether the actions of state offi cials refl ect agency, in the sense of being morally responsible and accountable to the pub-lic. O’Donnell placed agency at the center of his contribution to democratic theory because he recognized that this is the missing ingredient in states that are not founded on what he called a “democratic wager.” Democracy, in this view, is constituted by a bargain in which all citizens agree to subject them-selves to the same rules, and these rules are predicated on the assumption that everyone has the capacity for moral agency. Th e more that all actors submit to common rules based on a shared moral agency, the more robust is the wager. Th is is the foundation of the legal and constitutional state necessary for a democratic regime.

States of Exception and “Constitutional Dictatorship”

Delegative democracy and self-coups, as well as states of exception, emergency rule, and rule by decree form part of a larger probl é matique : the use of dictato-rial measures within a constitutional order. Are there times when decisions trump rules, such that the legal and constitutional order must be suspended for its own good? My answer is a qualifi ed “yes,” provided the “good” in ques-tion is the constitutional order itself. But this merely begs a further question: How can we know that the suspension of the constitution, however partial or temporary, will be used to protect the legal order and not to subvert it? Th is is a variation on one of the oldest questions in political science: “Who will


guard the guardians?” Although I do not claim to have an answer to this ques-tion, the social cognitive approach to constitutions may shed some light on the problem. It suggests that the state of exception is not a state of lawlessness. Rather, the state of exception involves the removal of constitutional guaran-tees of legality, but not the expectation that state offi cials will act lawfully. 4

Th e idea that we must stop thinking in emergencies is misguided: “Th e implicit claim of emergency is that all procedures and all thinking must cease” because action must be taken quickly (Scarry 2011: 7). In fact, people need to think and act quickly in an emergency, and the more they train themselves to respond automatically using well-established rules and procedures, the bet-ter they are able to respond to the specifi c circumstances in which they fi nd themselves. Th us, a paramedic will do a better job of administering cardio-pulmonary resuscitation than someone who has never received CPR train-ing (Scarry 2011: 19–34). By the same token, leaders prepared for emergencies may act in accordance with established procedures and rules, even when there is no practical way of guaranteeing they will do so.

In a state of exception, the constitution must be suspended—temporarily, in part or in whole—in order to protect the political community. If there is an existential threat to the political order, such as a war or a catastrophe where the very physical and social existence of the political community is in jeopardy, decision makers cannot be expected to deliberate slowly and care-fully, submitting their decisions to review on an ongoing basis. Th is does not mean, however, that they act without deliberation or in violation of the law, nor does it assume that lawless actions will be tolerated with impunity aft er the suspension of constitutional guarantees has come to an end. Th e suspen-sion of deliberation and review does not mean anything goes. Self-defense in an emergency may provide a justifi cation for committing acts that would not normally be accepted, such as shooting somebody. But the rule of law implies that such actions must be defensible in court. One cannot shoot an innocent person to create a distraction to avoid being shot by an intruder in a home invasion.

Th e constitution may be suspended without becoming irrelevant. Confusion arises from the belief that every suspension of the constitution implies a return to a Hobbesian world of anarchy. Th e consequence of this belief is ultimately to undermine the rule of law. Giorgio Agamben (2005) exemplifi es this dangerously mistaken position. He argues that the Nazi state was a prime example of a broader, paradoxical twentieth-century phenom-enon: the “legal civil war.” According to Agamben, the entire Th ird Reich “can be considered a state of exception that lasted twelve years” (Agamben


2005: 2). Aft er coming to offi ce, Hitler suspended articles of the Weimar Constitution using a declaration that was never repealed. Agamben sees this as a template for the authoritarian features of the twentieth-century state. Th e state of exception has become “one of the essential practices of contemporary states, including so-called democratic ones” (2005: 2). It is the “dominant paradigm of government in contemporary politics” (2005: 2).

Agamben’s view can be contrasted with that of Carl J. Friedrich, who insisted that there is a place for emergency powers only within a constitu-tional order. All constitutions recognize that there is, from time to time, a need to concentrate executive power to overcome emergencies. As Friedrich (1950: 595) put it: “Constitutional dictatorship, on the surface a contradic-tion in terms, is the fi nal test of constitutionalism. For a government that can-not meet emergencies is bound to fall sooner or later.” But he also stresses that the appeal to extraordinary measures to protect the state is disingenuous if “order for its own sake is being substituted for constitutional, legal order as the primary objective of the exceptional concentration of powers” (1950: 575). It is not the existence of the state that must be safeguarded by means of emergency powers but of the constitutional order and the rule of law.

Friedrich then posits four conditions to ensure the maintenance of the constitutional order under emergency rule, conditions that he acknowledges are at best imperfectly met by most constitutional states. First, the emergency should be declared by constitutional means so that the “dictator” cannot decide by himself when there is an emergency. Second, the dictator must not determine when the emergency is over. Th ird, the emergency should be tem-porary. Fourth, the objective of emergency powers should be to defend the constitution itself (Friedrich 1950: 580–584). Friedrich was under no illusion that, even with such safeguards, emergency powers are dangerous weapons and, in the wrong hands, “liable to be transformed into totalitarian schemes” (1950: 584), but he thought ignoring the problem was more dangerous yet. “Th ere is no object in arguing against such emergency powers on the ground that they endanger the constitutional morale, and hence the maintenance of the constitutional order. Of course they do. Any suspension of legal norms, no matter how temporary, raises doubts concerning their validity. But aft er all, what does an emergency mean, if not that the constitutional order is threatened?” (1950: 595–596).

Friedrich assigns a central role to courts in deciding whether emergency powers have been abused: “ultimately the judiciary are the arbiters who determine whether or not the actions taken by executive organs are in fact necessary” (1950: 576), he says. Yet he admits that “there is no limit beyond


which the authorities exercising such constitutional dictatorship may not go if they can aft erwards convince the court of the necessity of their action” (Friedrich 1950: 576). Confessing that it “is hard to say much more about it” (1950: 576), he concluded by placing his best hopes in the people themselves as a constituent power: “behind all these procedural devices there must stand an alert people, a real constituent power, determined to see to it that these limitations are eff ectively utilized to insure the legitimate employment of these emergency powers: to strengthen the constitution, if necessary by timely changes” (1950: 596).

Agamben calls this Friedrich’s “aporia.” Th e “impossibility of defi ning and overcoming the forces that determine the transition from the fi rst to the sec-ond form of dictatorship (which is precisely what happened, for example, in Nazi Germany) is the fundamental aporia of Friedrich’s book,” he says, add-ing that this is true generally of “all theories of constitutional dictatorship. All such theories remain prisoner in the vicious circle in which the emer-gency measures they seek to justify in the name of defending the democratic constitution are the same ones that lead to its ruin” (2005: 8). According to Agamben, the state of exception exists at “the intersection of the legal and political”; and it “must be understood on political not juridico-constitutional grounds” (2005: 1).

Agamben’s mistake is to defi ne the law as what the sovereign decides (2005: 26). “Th e sovereign creates and guarantees the situation as a whole in its totality. He has the monopoly over the fi nal decision. Th erein consists the essence of State sovereignty, which must therefore be properly juridically defi ned not as the monopoly to sanction or to rule but as the monopoly to decide” (Agamben 2005: 16). Agamben goes on to ask: “If the state of excep-tion’s characteristic property is a (total or partial) suspension of the juridical order, how can such a suspension still be contained within it? How can an anomie be inscribed within the juridical order? And if the state of exception is instead only a de facto situation, and is as such unrelated or contrary to law, how is it possible for the order to contain a lacuna precisely where the decisive situation is concerned?” (Agamben 2005: 23). Th e answer, according to Agamben, is that the law makes no sense without the exception: every law presupposes the possibility of its transgression within the law.

Th e possibility that any law may be suspended in order to support the legal order does not, however, prove that the state of exception “has become the rule” (Agamben 2005: 9). What Agamben calls Friedrich’s “aporia” is, in fact, a practical political problem. Th ere is nothing remiss in acknowledging, as Friedrich did, that no constitution can survive the failure of the public to


defend it. Nor can any constitutional order guarantee that power will not be abused, even to the point of destroying the constitutional order, in a state of exception. Th e fecklessness of the public and the recklessness of leaders in an emergency are the very conditions that make it important to build institutions that encourage people to provide more thoughtful responses in an emergency. A good way to strengthen a constitutional order is to prepare for emergencies. Th is is the piece of the argument that Friedrich did not develop.

One purpose of the separation of powers is to habituate government offi -cials to the idea that all their actions must be consistent with general rules backed by public deliberation and upheld, in the fi nal instance, by the courts. Th e state of exception places leaders in a position of having to think and act under diffi cult circumstances in which they must exhibit the prudence that in routine times is guaranteed in the separation of powers. Aristotle (2004: 150) called this ability practical wisdom. Th e recognition that emergencies require practical wisdom helps bring into focus what the separation of powers accomplishes in ordinary circumstances. It institutionalizes practical wisdom in the sense that it makes it easier for public offi cials to exercise their ability to do what is right according to the law by giving each branch of government a specialized expertise in the various faculties that are required to rule in accor-dance with the law.

Th at public institutions should be designed to encourage incumbents to think and act in accordance with the purpose of their respective roles and offi ces is part of the ancient wisdom inherent in the separation of power. In this way, the separation of powers harnesses the capacity for judgment among public offi cials. By creating a division of competence and jurisdiction among offi cials whose roles involve diff erent facets of deliberation, the separation of powers provides offi cials with opportunities to present reasons for their actions to the public. In the case of legislators, their challenge is to think about and defend the public interest. For example, legislative oversight ensures that a state of emergency is declared appropriately, and in this way lawmakers may exercise a powerful veto against the despotic tendencies of the modern execu-tive. Judges assess whether the actions of other branches of government are consistent with the law. Th e more powerful the judiciary, the more the other branches must demonstrate that their actions accord with respected legal rules and constitutional conventions.

By the proper conduct of their duties, legislators and judges implicitly advocate the advantages of constitutional order, and this in turn gives them an institutional interest in the separation of powers. When a lawmaker advances an argument for a law by appealing to the public interest, she reinforces the


idea of the public interest and the role of the legislator in achieving it. When a judge sentences a lawbreaker in accordance with the criminal code, he affi rms the common condition of all citizens as subjects of the law and the essential role of the judge in affi rming rights and obligations. 5 Th e case for constitu-tionalism is made by those who have an interest in playing roles in the pat-terns of collective action that constitutionalism enables.

Breaking a constitution may appear to enhance the effi cacy of the state in the short run, but if the executive acts in a manner unconstrained by any commitment to law or the public interest, if it acts in unprincipled ways and gives free rein to narrow ambitions, then it is likely that there will be not only abuse of power but also collective frustration. Since the separation of powers routinizes decision making in predictable ways, the departure from the con-stitutional script is likely to produce a good deal of improvisation that under-mines the effi cacy of decision making. In a strong constitutional order there are well-institutionalized procedures to ensure that once a decision is taken at the top, it is executed down the chain of command and accountability. A state of exception in which rulers do exactly as they please for any period of time, without retrospective legal accountability, would threaten to throw the entire state apparatus into chaos. 6

And there is a deeper, subtler cost of excessive executive discretion. By diminishing the role of legislatures and courts, and centralizing power in the executive, political power shift s from text to orality in ways that alter its publicity, permanence, and extension of the acts of public offi cials. Th e spo-ken word, uttered sotto voce behind closed doors, outweighs or circumvents the public letter of the law; commands, intentions, and instructions, given in special contexts and for particular reasons, override the universal preten-sions of rules written with an eye to the public interest, broadly construed. A Machiavellian world materializes.

Anarchy and the Global “War” on Terror

Th e violation of the separation of powers is oft en justifi ed by the anarchic state of world politics. According to theorists of international relations who empha-size the realities of power and confl ict in a world without central authority, anarchy—or politics without government—makes talk cheap because agree-ments cannot be enforced, and this inhibits the development of the separa-tion of powers at the international level. Anarchy means violence is always latent. For Kenneth Waltz, the diff erence between domestic and international


politics “lies not in the use of force but in the diff erent modes of organization for doing something about it.” An eff ective government “has a monopoly on the legitimate use of force” (Waltz 1986: 99, 100, italics in original). Th e legiti-macy of government in domestic aff airs is based on the arrangement of insti-tutions and agencies of government according to accepted principles of legal hierarchy. Violence can occur in a domestic system, but the system itself is “organized to prevent and counter the private use of force” (Waltz 1986: 100). Th e existence of a monopoly of the legitimate use of force enables a division of labor within the domestic political sphere. Political actors are “formally dif-ferentiated according to their degree of authority, and their distinct functions are specifi ed” in the specifi c sense that “broad agreement prevails on the tasks that various parts of a government are to undertake and on the extent of the power they legitimately wield” (Waltz 1986: 73).

Th e separation of powers occurs within states because hierarchy makes the formal diff erentiation of parts possible: “Such specifi cation of roles and diff erentiation of functions is found in any state, the more so as the state is more highly developed” (1986: 73). States develop political structures that shape policy processes in diff erent ways: “In Britain and America legislative and executive offi ces are diff erently juxtaposed and combined,” for example (Waltz 1986: 74). Structural diff erentiation of governmental functions is lim-ited at the international level because the ordering principle of international aff airs is anarchy. Under anarchy there is little formal diff erentiation of tasks among states. Th e rule of international law tends to be weak and the regula-tions and norms that exist can rarely be enforced eff ectively. Th ere is no over-arching power to uphold international agreements or adjudicate disputes. Without such a monopoly on legitimate force at the international level, it is diffi cult for other governmental tasks, like legislation or adjudication, to become formally diff erentiated.

Th is view has been criticized for exaggerating material capabilities and neglecting the inter-subjective dimension of politics, or what Durkheim called “collective representations” (Wendt 1999: 159). Structures are not immutable objective facts independent of human agency. Th ey are World 3 objects, prod-ucts of both objective conditions and subjective states. Anarchy may be a fact in the contemporary international system, but it can be construed in diff erent ways. Th ere is no better example than the so-called “war” on terror. Th e 9/11 attacks brought anarchy home, erasing the boundaries between domestic and international politics. Among the verities that were “shattered” by the attacks was the assumption “that the modern nation state is the sole owner of large-scale decisions to conduct war and make enduring arrangements for peace; that social


order in everyday life is a default state, assured by the sheer absence of war; and that there is a deep and natural distinction between the social disorder within societies and war across societies” (Appadurai 2006: 15).

Th e thinking of the decision makers who set in motion the “war” on ter-ror may have been “initially informed by a view of the world populated by formal organizations such as states, military organizations, and intelligence hierarchies, where action is properly instrumental and strategic, and a tangi-ble enemy can in principle be defeated through the conquest of territory and destruction of its physical assets” (Dryzek 2006: 69). But they did not lose time using 9/11 to challenge limits on executive power. President George W. Bush insisted that the “war” on terror must not be constrained by judicial and legislative oversight. Th e Guant á namo Bay Naval Station, where hundreds of prisoners were detained and subjected to what was euphemistically called “aggressive interrogation,” became the most conspicuous symbol of unre-strained and unilateral executive power. Th e Bush administration contended that Guant á namo was beyond the reach of US domestic law and attempted to create a parallel system of military justice for civilians with neither due pro-cess of law nor recognition of the Geneva Conventions. Th e legal justifi cation was the exceptional wartime power of the president as commander-in-chief. Th e Bush administration claimed for the president the power to determine who is an “enemy,” to detain and coercively interrogate such a person indefi -nitely without legal defense on the basis of the president’s word alone, and do so outside the jurisdiction of the courts. Th ese are powers that go beyond the constitutionally legitimate uses of executive authority.

Th e executive used the “war” on terror to defi ne nature of the threats to the political order, unilaterally setting the scope and time frame for excep-tional actions by the executive. Obviously, this opened the door to the abuses of state power, and reinforces what I call the negative arguments for the sepa-ration of powers. But there is another more positive objection, and perhaps it is a more powerful one: it focuses on the need to ensure the capacity of the political system to achieve collective action. Th e disruption of the checks and balances in a presidential separation of powers can undermine the overall power of the political system by weakening the capacity of the president to use the law to coordinate collective action both at home and abroad.

Th e negative arguments alone are compelling. “For perfectly sound rea-sons,” Joseph Margulies (2006: 51) writes, “the president, as commander in chief, enjoys broad discretion in the conduct of military aff airs . . . By their very nature, military judgments in the fi eld, which may call for prompt and decisive action, do not lend themselves to Congress’s ponderous, and partisan,


deliberative process. Similarly, judges typically do not have, and cannot reli-ably acquire the information needed to make military decisions.” At the same time, however, military judgments should not “migrate beyond the battle-fi eld and encroach upon the other branches of government” or else questions “properly reserved for the legislature will become the subject of pressing mili-tary concern; judicial questions will masquerade as matters of urgent military necessity” (Margulies 2006: 51). For a state to be constitutional, however, all actions by its agencies must be, in principle, both authorized by the law ex ante and subject to ex post legal review. Laws are nothing more than codifi -cations of reasons for action; hence actions, to be legal, must be justifi ed by reasons encoded in laws and capable of withstanding criticism in court and the public sphere. Even in the most exceptional circumstances there must be legislative authorization for the decision to use force (even if aft er the fact), and the judiciary must have the power to determine whether legal limits were exceeded in the conduct of war. Th is implies two limits on the executive: time limits and the exercise of public reason. Th ose who would place the executive above the law resist both limits.

Th e need for actions to be authorized and subjected to criticism implies that war must have a beginning and an end. Th at is, there must be a decision to go to war and a time when war is over. If war is a permanent or normal condition, however, law can always be trumped by security. Even before the “war” on terror, nuclear weapons made the separation of powers seem irrele-vant to the actions of the executive branch. As former US Vice President Dick Cheney said, “Th e president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use, and be authorised to use, in the event of a nuclear attack on the United States. He could launch the kind of devastat-ing attack the world has never seen. He doesn’t have to check with anybody, he doesn’t have to call the Congress, he doesn’t have to check with the courts” (Holmes 2010: 3). Cheney’s imagery is stark, but the implications are foggy. Just as anarchy can be used to justify and explain a wide range of state behav-iors, so too the implications of the power to launch a nuclear attack for the authority of the presidency, like the use of drones, are far from clear.

Even as the threat of nuclear war receded aft er the Cold War, new candi-dates quickly emerged to justify an “executive unbound” by the separation of powers (see Posner and Vermeule 2010). Aft er 9/11 the separation of powers came under a renewed assault in which older arguments about the functional complexity of the administrative state were combined with a renewed taste for Schmitt’s political realism in an era of insurgent Islam to make the case


that there was no reason to expect the executive to comply with the rule of law in the “war” on terror.

Th e idea of permanent “war” against terror was exactly what John Woo from the Offi ce of Legal Counsel in the Justice Department had in mind when he said “it is no longer clear that the constitutional system ought to be fi xed so as to make it diffi cult to use force. It is no longer clear that the default state for American national security is peace” (quoted in Ackerman 2006: 17). For Woo, permanent war placed exceptional powers in the hands of the presi-dent—permanently. For proponents of a unifi ed executive, the advantage of permanent warfare was that it gave the executive a blank check to defi ne its own jurisdiction and competence. Th is created a catch-22 for defenders of the rule of law. Th e president, in Woo’s view, should have the military discretion to make decisions that defy both the legislature and the judiciary, including deci-sions about the scope of military discretion. In other words, the executive can unilaterally limit the powers of lawmakers without any review by the courts.

Echoing Carl Schmitt’s concept of politics, John Woo insists that there are areas of executive discretion where rules simply do not apply to the leader, and these include the decision to use torture. Th e Congress cannot “tie the presi-dent’s hands in regard to torture as an interrogation technique . . . It’s . . . the commander-in-chief function. Th ey can’t prevent the president from ordering torture” (quoted in Margulies 2006: 92). Th e notion that no governmental body can tie the president’s hands on a matter as fundamental as torture implies that the executive has an inherently judicial power: to interpret the law. Th is is a fundamental challenge to the separation of powers. When the US Supreme Court ruled that the United States must abide by the Geneva Conventions with respect to torture, Bush insouciantly replied that Common Article III of the Convention “says that there will be no outrages upon human dignity. It’s very vague. What does that mean, ‘outrages upon human dignity’? Th at’s a statement that is wide open to interpretation.” 7 Bush spoke as if the fact that a law is open to interpretation means that the executive can do as it pleases. Allowing the executive the discretion to interpret the law as it wishes, however, creates a “lawless enclave insulating the executive from any judicial scrutiny” (as Judge Gibbons said in Shafi q Rasul v. George W. Bush , quoted in Margulies 2006: 151). Th e idea that the actions of the president, as commander-in-chief, do not have to be defended publicly against criticism from anyone is the very defi nition of “military despotism” (Ackerman 2006: 26).

Th e positive case for the constitutional separation of powers rests on the claim that the creation of three separate monopolies of power enhances rather than limits the capacity of the political system to generate and sustain


collective action—including warfare—within the framework of written text. Intelligent collective action requires deliberation, reason-giving, and criticism. Constitutions are designed to ensure that the reasons given for the actions of offi cials are capable of withstanding public criticism, thereby raising the bar on the deliberation required before a decision is taken. In principle, actions are not undertaken if the ends they aim to achieve would be undermined were the rea-sons for them publicly known. Th is does not mean that the public, or even a majority of the public, must always support governmental actions. Governments routinely act in ways that risk public opprobrium, and they live with the con-sequences at election time. Th e principle of public reason simply means that all actions by government offi cials should be lawful—that is, supported by reasons that can be formulated in terms consistent with established law. In other words, a constitution demands only that offi cial actions be justifi ed in publicly acces-sible texts compatible with the existing constitutional and legal order. Th is is a powerful constraint on what can be said to justify a course of action.

Political systems without constitutions, like repressive or de facto regimes, are not constrained to provide valid reasons for actions in light of established law, and since laws provide little protection to citizens, rulers cannot reliably know the preferences of those they govern. Since rulers do not have to reveal their intentions truthfully, the ruled must conceal their own intentions and beliefs. In a democracy, the free expression of preferences gives rulers the ability to select actions according to reliable information about the likely responses of citizens. Th is is one reason why democracies are slow to mobilize for war, but they are powerful belligerents when they fi ght. Th ey rarely enter confl icts without broad public support, and this support rests on a presump-tion that their leaders do not lie. Whereas dictators can resort to repression and dissembling with impunity, elected politicians who mislead the public or deliberately undermine the public will tend to lose offi ce.

Th e 2003 invasion of Iraq enjoyed broad support, but the case for war was based on false statements about weapons of mass destruction and links between the Iraqi regime and al-Qaeda. Th ese false statements were made possible by violations of the separation of powers and the abuse of executive power. For example, torture was used to extract a confession (later retracted) that formed part of the “human intelligence” to support the claim that Iraq was training terrorists in the use of poisons and gases (Margulies 2006: 119). Torture is generally an instrument of weak states precisely because it can lead to false confessions; strong states prefer reliable, accurate intelligence based on time-consuming, costly, and meticulous information gathering and analysis. When intelligence is distorted to serve political ends, or acquired by dubious


means, errors inevitably multiply. Th e faulty logic for the Iraq war weakened support for the president at home, and the credibility of the United States abroad. It undermined US power, measured not in terms of its position in the distribution of military capabilities, but in terms of the capacity to generate and sustain collective action around desired goals. Whereas the initial goal of deposing Saddam Hussein was easily achieved by the use of overwhelming mil-itary force, nagging doubts about the legitimacy of the case for war hampered the more ambitious postwar challenge of nation and democracy building.

Domestic support for the war in Iraq—and hence the will to win—was undermined by public knowledge that the reasons given for the war were false. Both the decision to go to war and the management of the aft ermath required a weakening of the checks and balances inherent in the separation of powers in a presidential system. Th e decision to go to war was made uni-laterally by the president and a handful of senior offi cials and in the absence of a genuine deliberative process in the Congress or in the United Nations. Th e intelligence services were pressured to provide evidence to support this decision, and postwar preparations were woefully inadequate because of a lack of understanding of the problems the war would create. Secretary of Defense Donald Rumsfeld ran roughshod over any criticism of preparation for the war within the leadership of the armed forces and resisted any attempt at inter-agency coordination that would reduce his own stature within the chain of command (Woodward 2006).

Th e self-correcting features of a constitutional order were weakened by the drive to unify government around the executive branch and subvert the sepa-ration of powers. Th e expansion of executive power was justifi ed to the public as a necessary imperative to respond to threats arising from the international system: terrorism and the proliferation of weapons of mass destruction. Th e eff ect, however, was exactly the opposite of what was anticipated. US power was depleted rather than augmented when executive decision makers acted without the prudence, deliberation, and concern for legality that US consti-tutional structures were designed to defend and promote.

Th e Separation of Powers in the Digital Era

Chapter 5 analyzed the ways in which electronic media created new possi-bilities for centralized control over the human mind, and the manipulation of public opinion by propaganda, oft en with catastrophic consequences for the constitutional state. Over time, however, centralized and repressive states


collapsed, through war or political decay, while constitutional democratic states proved resilient. Today, states face a new challenge, and the implications for democracy are unclear. Th e current phase of the electronic revolution—the digitization of images, text, voice, data, and video—has dramatically altered spatial and temporal constraints on the fl ow of information. It is possible that we are undergoing a process similar to earlier communication revolutions: the centralization of power through monopolies of knowledge, followed by their collapse as the technology spreads. But the democratizing promise of digital media will not be fulfi lled without the construction of supranational institu-tions with constitutional features. Above all, it is necessary to reinforce the power of democratic lawmaking. Supranational institution building is already under way, but the emerging order mainly reinforces corporate rather than democratic power.

Consider the fact that by the early twenty-fi rst century there were over 2,500 satellites orbiting the earth, and nearly fi ve billion cell phone users. 750 million people were on Facebook, and one third of the world’s popula-tion had some access to the Internet. It took thousands of years for writing to spread, and hundreds of years for the printing press to penetrate and trans-form everyday life in Europe. Wireless radio and television spread in a matter of decades throughout Europe, North America, and around the world. Th e pace of adoption of digital technology, especially cell phones, was even more astonishing and the eff ects were felt in a range of areas.

Book and newspaper publishing has changed, as more people read online and fewer people read print newspapers. Books have not disappeared, of course, since each new technological innovation builds on earlier technolo-gies, but they now must compete with a vast array of electronic sources of information. Online journals off er faster access to scientifi c research, and e-books have gained popularity among readers. Th e Internet makes more information available to readers without bulky newsprint. Wikileaks exposed a massive load of classifi ed US government documents, only par-tially in collaboration with major newspapers. Blogs, wikis, social network-ing sites, video streaming (on YouTube), and search engines (like Google) have also changed patterns of mass communication. News in “real time” on CNN, or downloaded on iPods, makes it possible to track and even par-ticipate, albeit virtually, in events halfway around the planet as they unfold, and ideas can be disseminated farther and faster than ever before. With the Internet, “events on one side of the planet can ripple back at the speed of light to aff ect what happens on the other side,” as Ron Diebert and Rafal Rohozinski put it (2010: 45).


Th e expansion of globally coordinated activities has outpaced the regu-latory and legislative steering capacity of public institutions. Government offi cials increasingly confront what Tad Homer-Dixon (2000) called an “ingenuity gap.” As he put it, “the complexity, unpredictability, and pace of events in our world, and the severity of global environmental stress, are soar-ing. If our societies are to manage their aff airs and improve their well-being they will need more ingenuity—that is, more ideas for solving their technical and social problems” (Homer-Dixon 2000: 1). Th e global fi nancial crisis of 2008 revealed the inability of government offi cials to understand let alone regulate global fi nancial markets. As Homer-Dixon (2000: 232) stressed, there is a diff erence between technical and social problems. Creating institu-tions to ensure that social activities are directed at collectively desirable ends requires social ingenuity. Some scholars are optimistic that the Internet can provide such solutions.

Clay Shirky (2011: 4), for example, argues that the best way to use the Internet to promote political change is to encourage the development of a public sphere involving both electronic media and face-to-face communica-tion: “little political change happens without the dissemination and adoption of ideas and opinions in the public sphere” (2011: 6). Transnational activist networks in cyberspace are relatively undisciplined, informal, and ad hoc col-lectivities, but they are potentially powerful and transformative. “As the com-munications landscape gets denser, more complex, and more participatory,” he says, “the networked population is gaining greater access to information, more opportunities to engage in public speech, and an enhanced ability to undertake collective action” (Shirky 2011: 1). Larry Diamond (2010) takes a similarly optimistic view, arguing that “liberation technology,” as he calls it—by which he means any form of information and communication tech-nology that expands political, social, and economic freedom—may empower individuals, facilitate communication and mobilization, and strengthen civil society. Cyber activists can report news, expose abuses, express opinions, pro-test, monitor, scrutinize, and participate in politics in ways that would be dif-fi cult in an older media environment.

It is possible that the nascent sense of global interdependence of national political communities, as well as the perceived need for coordinated collective action at the global level to address urgent problems identifi ed by participants in an emerging global public sphere, could contribute to the development of constitutional features of world order, such as international courts and delib-erative bodies. Th ere are already elements of constitutional order in the global system. Th e creation of an International Criminal Court suggests that the idea


of global judicial institutions is not entirely farfetched. Th e North American Free Trade Agreement has the earmarks of a constitution for corporations, or “supraconstitution” (Clarkson 2002: 49–73). Th e European Union, for all its fi nancial diffi culties, off ers a model of the transcendence of state sovereignty, with both deliberative and judicial bodies at the supranational level. But, as we might expect with nascent monopolies of knowledge, the executive and judicial features of these institutions tend to be better developed than the democratic or legislative ones. Just as Egypt and Mesopotamia’s rudimentary legal codes and impartial courts off ered the fi rst glimpse of the diff erentiation of judicial institutions, the panels, arbitration boards, standards and admin-istrative agencies that regulate contemporary fi nance, trade, and production are the fi rst signs of a global separation of powers. Th ere is, of course, nothing democratic about this process.

Democratizing the global system will require not only overcoming its anarchic and competitive features, but also harnessing the collective capacity for deliberation and action that comes from the use of law as an instrument of inclusive rights and democratic citizenship. Th is requires more delibera-tive institutions at the supranational level: the development of assemblies to legislate for the common good, and courts to enforce international law, as well as decision makers willing to submit to the jurisdiction of the courts. Elements of a supranational constitutional order, acting under pressure from global public opinion, might then be able to overcome some of the obstacles to legislation on global problems—like, for example, climate change and transnational drug traffi cking—that cannot be adequately resolved by indi-vidual states, regardless of their power, acting on their own.

Although the idea of the supranational separation of powers shares some of the features of Anne-Marie Slaughter’s (2004) proposal for “world order”—understood in terms of disaggregated state sovereignty in which there are networks of global regulators, judges, and legislators—the aim of such an arrangement would not be to restrain but to enhance state capacity. “Stop imagining the international system as a system of states,” says Slaughter. “Start thinking about a world of governments, with all the diff erent institutions that perform the basic functions of governments—legislation, adjudication, imple-mentation—interacting both with each other domestically and also with their foreign and supranational counterparts” (Slaughter 2004: 5). Unfortunately, the constitutional model Slaughter has in mind is a Madisonian framework of checks and balances: “Th e whole should resemble the U.S. Constitution in at least this much—a system of shared and separated powers designed more for liberty than effi ciency” (2004: 254). It is far from clear why such a model


would be desirable. Checks and balances are not needed at the global level, but an enhanced capacity to deliberate and act on the common good. 8 It is not negative liberty over effi ciency that will allow states to confront the col-lective problems of the twenty-fi rst century, but the expansion of the power of states to achieve collective ends through legal institutions whose very effi -cacy depends on the guarantee of the rights and liberties of the citizen.

Conclusion Th e separation of powers is a body of ideas that evolved as political think-ers grappled with the task of building better states. Th e solution seemed to lie in the development of political institutions through which to establish general rules on which people might agree, fi nd procedures for ensuring that they are interpreted and applied impartially, and manage threats to politi-cal order within the framework of such rules. Th is implied breaking political action by government offi cials into their key constituent elements—namely, deliberation, execution, and judgment—precisely the features of all constitu-tions noted by Aristotle. And it also implied the recognition that we need the technology of reading and writing to move between general and particular, rule and practice, literacy and orality. A branch of the state must be devoted to writing the rules, and another to interpreting them. Th ese two branches should not be involved in the daily exercise of political power understood in terms of the discretion that is an inherent part of decision making within an orderly political system.

Th is understanding of constitutionalism rests on the idea that the separa-tion of powers involves the construction of a morally autonomous state—one in which offi cials and citizens continuously judge their own actions in rela-tion to rules. Such a view is incompatible with the presumption that objec-tive facts and subjective values can be rigorously separated for the purpose of analysis. Th is presumption serves as the platform for the view that the idea of the separation of powers can be dismissed as moral philosophizing or legal dogma, irrelevant to an empirically oriented science. In contrast, I have argued for a Popperian World 3 ontology as the necessary foundation for an understanding of the social world. Institutions, in this view, embody ideas, including judgments about moral rules.

Th e view of constitutionalism outlined here places language at the center of the understanding of social processes and institutions. Ordinary language analysis suggests that all linguistically mediated social interactions—virtually all forms of social behavior—are rule-governed. Th at means that judgment,


including moral judgment, is a faculty exercised on a continuous basis by all competent agents. If we place language at the center of our analysis then we cannot limit rational action to the utilitarian calculation of costs and benefi ts, nor can ethics be relegated to assessments of the moral propriety of actions aft er the fact. Instead, all social interactions involve performances that suc-ceed or fail to the extent that they are judged to be right or wrong, true or false, appropriate or inappropriate. Th e legislator is judged to have performed well or badly depending on whether he or she has made laws in the public interest; the judge is deemed to be good or bad depending on whether he or she upholds the law; the executive decision maker is good or bad depending on success or failure confronting policy problems concerning the preserva-tion of political order. Th ese judgments are at the heart of political life and they are facilitated by the separation of powers.

Finally, constitutionalism must unshackle itself from a dogmatic concern with limiting or restraining the state, while social problems that require col-lective action are left unattended. Th is means resisting the tendency to treat the common good as meaningless. Democracy is about more than the aggre-gation of preferences. Rousseau put it best when he said that “every individual may, as a man, have a particular will contrary to, or divergent from, the gen-eral will which he has as a citizen; his private interest may prompt him quite diff erently from the common interest; his absolute and naturally independent existence may make him regard what he owes to the common cause as a gra-tuitous contribution, the loss of which will be less harmful to others than the payment of it will be burdensome to him; and, regarding the moral person that constitutes the State as an imaginary being because it is not a man, he would be willing to enjoy the rights of a citizen without being willing to fulfi l the duties of a subject. Th e progress of such injustice would bring about the ruin of the body politic” (1967: 21).

8

ConclusionWRITING, POWER, AND DEMOCRACY

. . . we live in a world fi lled with, regulated, interconnected, and largely defi ned by words in print.

christopher small

According to the theory advanced in this book, there are three monopolies within the constitutional state: a monopoly over the legitimate use of coercion, another over the production of legal texts, and a third over the application and interpretation of those texts. Th e latter two monopolies emerged historically with the spread of literacy. As more members of a politi-cal community became readers and writers, text was used to coordinate col-lective action over longer time periods and greater distances. As texts were diff used, the speech act problems to which language, and text-based commu-nication in particular, is prone tended to accumulate. Th e solutions to these problems did not present themselves automatically, and this book provides no support for the view that there were inevitable paths of institutional change toward predetermined outcomes. Rather, the roles of legislatures and judi-ciaries were defi ned, under diverse conditions, through ongoing processes of learning through practice and theoretical refi nement.

Far from being novel, the understanding of constitutionalism that has motivated this analysis is rooted in a perspective that runs from Aristotle to Montesquieu, and fi nds its closest contemporary expression in the work of Habermas. Each of these theorists can be read for insight into the momen-tous changes in the evolution of human thought that have altered our under-standing of constitutions. Th ese changes were associated with the spread of literacy, the invention of the printing press, and the electronic and Industrial Revolutions that brought about mass politics. By analyzing these changes, divergent meanings of the separation of powers have been discovered, as

Conclusion 199

well as contrasts between various traditions. Yet these traditions—Ang-lo-American, Continental, Bolivarian, or others—share common essential ingredients based on the use of text to coordinate collective action.

Writing, Power, Democracy Writing leads to monopolies of power and centralization of authority and yet, as examples from the ancient, early modern, and contemporary worlds have shown, the spread of writing can also foster criticism and theories that challenge power. Th eorizing creates the potential for deliberate adaptation and conscious change. Whether this potential is realized in practice depends on an extremely complex set of conditions, including the attitudes toward the interpretation of text held by those in power and whether the right to read and write is encouraged or stifl ed.

Th e printing press aided the spread of constitutional thought, disrupting monopolies of knowledge in both church and state, and fostering the rise of legislative institutions. Th e new theories of constitutions contained the seeds of their own demise, however, for by affi rming law as a human activity rather than an expression of nature or divine providence, Enlightenment theorists paved the way for a more sociological approach to the study of politics. With the rise of social theory in the nineteenth century, the Aristotelian tradition was supplanted by an emphasis on social forces and dynamics. Inspired by social theory, twentieth-century eff orts to make the study of politics a science in the model of the natural sciences resulted in a bifurcation between posi-tive theories of democracy that focused on competitive elections and liberal theories with a broader but more doctrinal understanding of the separation of powers. Both sharply contrasted with theories infl uenced by the linguistic turn that resulted in deliberative democracy.

Th is book has sought to further the discussion of deliberative democracy by off ering a social cognitive basis for understanding why all constitutional sys-tems functionally separate the executive, the legislature, and the judiciary, and why in so many democracies this separation is diffi cult to sustain in practice. It has shown that there is a connection between monopolies of knowledge produced by reading and writing and the need for monopolies of power within the state to coordinate these activities. Th e separation of powers is essential to democracies in large-scale societies in which collective action is coordinated by text. However, where text does not regulate the lives of citi-zens, state monopolies over text production and interpretation may also oper-ate as exclusionary monopolies of knowledge.


Constitutions as World 3 Objects Th e use of the term constitutionalism in this book is based on Popper’s ontol-ogy. Popper argued that the social world contains more than objective mate-rial facts and subjective states of mind: it also contains what he called World 3 objects, or artifacts of human mental production. Constitutions, like all texts, are the products of mind—the faculty that enables the use of language to direct the activity of the brain and thereby to construct the social world. Texts are linguistic artifacts in the material environment that direct mental activity. Political scientists have been accused of ignoring the critical importance of these artifacts. As Gabriel Almond and Stephen J. Genco noted, “In its eager-ness to become scientifi c, political science has in recent decades tended to lose contact with its ontological base” (Almond and Genco 1977: 489).

Th e ontological base upon which an interpretive science of politics (or “human science”) is built may emphasize World 3 objects. Th is implies that the search for invariant, law-like regularities is limited by the continuous and purposive evolution of institutions. In this evolutionary process language, and the critical thought it enables, is the engine of change. Language involves rules or conventions that must be shared by speakers, but it is also fl exible in generating new meaning. A language that was infl exible would become obso-lete, but a language that had no rules—in which, as Humpty Dumpty said, “When I use a word, it means just what I choose it to mean—neither more nor less”—would be unable to generate worlds of shared meaning.

Constitutions involve linguistically constructed worlds of shared mean-ing; they are texts that prescribe speech acts that are performed repeatedly according to a set of conventions and understandings. Th e analogy to prom-ises and other speech acts suggests that a constitution is not a constitution simply because a document is labeled as such—a prime example of the fallacy of misplaced concreteness—but rather because it solves certain very specifi c and unavoidable problems of political order. In the process, a constitution may create worlds of meaning—such as a coherent legal system—within which political life is acted out. Since the problems constitutions are designed to solve occur everywhere, there are constitutional universals.

An example is Aristotle’s claim that all constitutions have deliberative, judi-cial, and executive elements. Constitutions may do many other things besides, some of which may be inconsequential—such as hortatory or purely aspira-tional statements dealing with issues such as pensions and social security, sports and education. Th ey may also do important things like establish basic human rights and affi rm the principle of civilian control over the armed forces. But

Conclusion 201

these principles are not likely to be worth the paper they are written on unless the separation of powers is in place. Th e best constitutions are oft en simple, economical, even prosaic statements that simply specify the jurisdiction and competence of the respective branches of government at various levels.

What makes a constitution a constitution is neither the World 1 fact of its physical existence, nor the moral force of World 2 sentiments it may invoke, but the conjunction of the two in ways that form the background conditions of shared collective existence. Th e view that constitutions are the material product of human mind leads me to reject the distinction between positive and normative orientations. As both institutions and practices, constitutions involve ways of thinking and performing actions in accordance with texts that express the common desire to live together within a particular conception of social and political order. Th ey are performed in ways that imply judgments, and they cannot be performed other than by agents who understand what these judgments mean. Aristotle captures this with his image of constitutions as “the way of organizing those living in the state” (1962: 102).

One advantage of thinking of constitutions as World 3 products of the human mind is that it allows us to avoid reifying particular written docu-ments and to recognize that constitutions may contain provisions, or omis-sions, that open the door to aberrances, or even practices that undermine the constitutional order. A constitution may fail to contemplate certain situa-tions and thereby force politicians to improvise solutions—oft en contrary to the original intent of the framers. 1 Th ese solutions become part of the living constitution. Alternatively, a constitution may contain clauses that are open to a wide range of interpretations, some of which may be, under certain con-ditions, inimical to the preservation of the constitution itself even though they do not contradict the letter of the constitution.

Consider, as an example, the attribution of tutelary power to the armed forces. Suppose a constitution creates a legislature, which in turn establishes a standing army. Th e army creates a code of military justice regulating the mem-bers of the armed forces, but then asserts a right to submit civilians to military tribunals, rejects writs of habeas corpus by civilian judges on the grounds that habeas corpus is not in the military code, or bypasses legislative appropriations or oversight of promotions. In some cases, the deliberative function of the mili-tary may be entrenched as a formal feature of the constitution, as in the 1980 Chilean constitution, which reserves senate seats for the armed forces (Policzer 2003). When the military tail wags the constitutional dog, the fact that military prerogatives are written into the constitutional text in no way diminishes the vio-lation of the constitutional principle of the separation of powers. Constitutions


may be judged not according to their own standards, but according to their ability to bring speech and action into line with texts. Specifi cally, a constitu-tion brings the actions of the forces engaged in political struggle into line with the laws and institutions of the constitutional order. Of course, texts regulate political life always in the most general sense. Power is inherently anarchical—and yet, in a constitutional order, text holds it all together.

Words on Paper and in Speech As Christopher Small (1982: 136) puts it, “we live in a world fi lled with, regulated, interconnected, and largely defi ned by words in print.” Th e lines between criminal and legal behavior are drawn in ink; disputes with neigh-bors are resolved through laws or appeals to various regulations and ordi-nances; written rules off er guidelines for action in a wide range of situations, if only to be invoked as a last resort. Within a wide scope, speech may be “free” in a constitutional democracy; but its limits are fi xed by text (previous speech, now removed, temporarily, from contestation). Text provides scaf-folding when speech alone fails; but it also blocks speech. It enables collective action, and protects the individual; but it also binds the individual to forms of collective action that were not chosen. Text imposes scripts and hierarchies, limiting freedom to those actions that can be justifi ed by reasoned speech.

In a constitutional order, patterns of speech and text are aligned. Th e authoritative texts that create a political order provide a set of scripts. If these scripts are taken seriously, the political order is constitutional. At the apex of the textual hierarchies that structure the modern nation state is the constitu-tion, the fountainhead of deliberative institutions. Beneath the deliberative institutions created by a constitutional order lies the panoply of public sector institutions, including regulatory agencies, municipal and local governments, public sector enterprises and the armed bodies responsible for internal and external security. Lower level institutions are subordinate to higher ones, and so on up the chain of public offi ces back to the custodians of the constitu-tional order: the three branches of government.

Even outside the public sector, the hierarchy of law continues. Large orga-nizations like banks and universities have public charters they must uphold. Private fi rms also operate, more loosely, within certain regulatory rules. Within these organizations, internal hierarchies exist. Universities have sen-ates, boards of governors, academic disciplinary bodies, faculties, and depart-ments. Firms have executive offi cers, shareholder associations, human resource managers, and employees. Within these hierarchies all manner of rules and

Conclusion 203

policies are possible provided they do not violate public laws or regulations. Finally, at the base of the pyramid lies the unregulated speech in the public sphere and private life.

Arguments over the separation of powers may, in extreme cases, result in open confrontations between branches of government. Mostly, these con-fl icts occur on the terrain of discourse. When the executive acts like a judge or legislator, or denies judges and legislators the power to exercise their respec-tive monopolies, the separation of powers is imperiled and the rule of law diminished. If the executive can both decide what course of action to pursue and whether its own acts are legal, the result is unlikely to enhance the overall power of the political order or the security of its citizens. It is more likely to undermine the liberty of the citizen and diminish the ability of government as a whole to coordinate collective action around legal texts. 2

Th e rule of law may be gauged by the degree to which rulers and citizens can speak and act freely in the public sphere and the rigor with which laws are enforced, especially on those in power. In weak legal systems, fear is pervasive at the base; only the powerful operate with impunity; enforcement of citizen-ship rights is haphazard or nonexistent, but the legal system cruelly punishes outspoken dissenters and whistle-blowers. A weak legal system may seem expedient for those in power, but the hidden costs are exorbitant. Indiscipline and noncompliance by rulers also serves as a model for those below. Why should they comply with the law when those in power do not? Th e lack of trust in public institutions breeds cynicism and contempt, so that when the balance of power shift s and today’s rulers fi nd themselves out of favor, they too have little recourse to the law.

A recurrent feature of political life where legal institutions are precari-ous is the impunity that arises from the inability to separate true and false statements made by public offi cials. Th is oft en results in the spectacle of those in power, faced with accusations of wrongdoing, ferociously defending their so-called good names in the court of public opinion by appealing to their good character or commitment to the public interest. Th e force of such appeals tends to be limited. Without neutral institutions to clear their names, even (or especially) powerful leaders have a diffi cult time salvaging their repu-tations before a public that presumes guilt rather than innocence. Not every allegation of malfeasance or abuse of power is true, but how can the public separate guilty from innocent when the courts cannot?

Respect for the separation of power is associated with overall state power because overcoming speech-based collective action failures in a large-scale pol-ity is made possible by the eff ective coordination of the executive, legislature,


and judiciary. Not all constitutions formally specify the scope and substance of the powers of each branch of government with equal clarity, nor ensure that the branches monopolize precisely the same activity within their jurisdic-tions, but a constitution that does not separate the branches of government is not a constitution any more than a promise is made every time someone says “I promise,” irrespective of intent, validity, or context. A constitution that politically solves speech act failures regulates public life in meaningful ways that are not possible when the constitution is mere printed matter.

Above all, a working constitution permits deliberate adaptation and change. Political conviviality in a constitutional order is made possible not by reaching agreement on every point of contention between parties strug-gling for power—that will never happen—but by agreeing on how to decide what law is, what it means, and how it applies. Just as language use requires a combination of conventional meaning and authorial intent, so constitutional politics requires enough fi xity to stabilize political struggle and enough fl ux to permit adaptive and evolutionary change in the face of new contingencies.

When a constitution is old and venerated, and its institutions form part of the agreed-upon grammar of political action, the tension between rules and force is reduced. Coercion in politics can be directed toward ends other than skirting rules, and collective energies can be sustained over longer periods without the use of force. When the constitution is new, and its advocates are still struggling for its acceptance, collective energies are likely to be exhausted in repetitive and oft en unproductive struggles. Yet through such struggles col-lectivities can (which is not to say will) learn to live together. It is oft en held that constitutions underpin democracy, but the reverse is also true. A consti-tution that is not put into practice, or which is used solely as an instrument of oppression, underpins nothing of enduring value. It is through the struggle to fi gure out how to make legislatures and judiciaries work that constitutional-ism, in the Aristotelian sense, is acquired, and that is possible only through the exercise of public reason.

Science and Practical Wisdom in Politics

Th e social-cognitive theory of the separation of powers starts from the assumption that the social sciences are fundamentally unlike the natural sci-ences. Whereas natural scientists can theorize about their subjects from an external standpoint—that is, they can separate themselves from their object of study—social theory is both a subject and object of social scientifi c inquiry.

Conclusion 205

Th e social world is not composed only of insensate particles and waves, energy and matter, but of highly organized purposive and thinking agents whose theories shape the world in which they live. To understand these agents it is necessary to take their intentions, goals, beliefs, and theories into account. A study that includes intentions, beliefs, goals, and theories as part of the frame-work for analysis cannot neglect language, the medium by which we form thoughts, express them, and assess them critically in the light of experience. An interpretive social science recognizes that language is the human faculty that makes possible much of the action that interests us, including speech acts. Yet language has a curious status in contemporary social science, as seen in the contrast between rationalist and liberal perspectives on constitutions.

Th e concept of a “coordination device” off ers a positive description of constitutions in which the role of language is secondary to the pursuit of stra-tegic interests. From the perspective of strategic interaction, it does not mat-ter whether a course of action is morally justifi ed. Strategically rational actors pursue the most effi cient means to their ends, whether morally justifi ed or not. Moral justifi cation may play a role in the selection of ultimate ends, but such considerations are prior to strategic interaction. Language can be deployed in the strategic pursuit of interests, but there can be no presumption that words amount to anything other than “cheap talk,” ways of signaling commitments, which are not likely to be credible unless backed by mechanisms of enforce-ment. Self-interest alone ensures words correspond to deeds.

Th e concept of a “social contract” provides a normative description of constitutions in which language and moral justifi cation plays a primary role. Social contracting implies a linguistic act; it assumes the ability to reach agreement through speech. Yet social contracts are metaphysical abstractions, and theories of social contracts are at best ways of philosophizing about con-sent and obligation that provide a normative grounding for constitutional and political practice. Contract theories can generate constitutional doctrine, but not social scientifi c theory. Th ey can provide maxims for achieving what might be regarded as desirable ends, but not theories for explaining why these ends are pursued or not.

Th e contrast between rationalist and liberal accounts of democracy rep-licates the fact/values distinction central to a positivist understanding of the social sciences. Th is leaves constitutional debate caught between social scien-tifi c theories that exclude moral considerations and normative theories that are more doctrinal than scientifi c. Th e way around this impasse is to place lan-guage at the center of analysis. Once words are uttered by a speaking subject, problems arise as to their veracity, appropriateness, and meaning. Working


through these challenges is at the heart of most collective action problems. Criticism plays a vital role in overcoming speech act failures. More or less institutionalized spheres within which thought and speech can be devoted to the tasks required by social organization according to general rules, and the application of those rules to particular cases, ensure that social criticism is an ongoing process that binds all agents of the state. Arriving at rules of general interest requires a very diff erent kind of logic of argumentation than does the application of rules in particular cases, and both of these logics are distinct from that of the urgency and necessity in a world of threats and dangers, yet each must account for itself before the other.

Understanding the separation of powers requires familiarity with distinct modes of argumentation, which is impossible if we limit ourselves to a single logic of inquiry. Th e Machiavellian actions of the executive demand an under-standing of strategic rationality. Th e deliberations of legislatures and courts require an understanding of the moral theories and arguments that (at the best of times) guide lawmakers and judges. As Habermas puts it, “Th e per-spective of legislation and adjudication yields a normative approach to the law; the perspective of preserving power yields a corresponding instrumental approach” (1996a: 482). Th eories of strategic rationality will tend to be biased in favor of executive power, and insensitive to its dangers. Normative theories may extol the benefi ts of courts and legislatures as exemplars of moral reason-ing, yet fail to tell us how deliberative institutions can serve as eff ective coun-terweights to raw executive power. Th e trend in contemporary social science toward the bifurcation of positive and normative theory hinders our under-standing of these problems and thereby gets in the way of practical solutions.

Rationalist theorists of electoral democracy see the separation of powers as “largely immaterial” (Przeworski 2010: 137): as long as there is a competitive party system, no one party or leader will be able to control all the branches of government, and this limits the power of the majority. But the point of the separation of powers is not merely to “disable” majority rule (Przeworski 2010: 137). It is to create deliberative legislatures and impartial courts that are robust enough to guarantee that all government actions are consistent with the law because the law is oft en a better expression of that which is valuable and enduring in public opinion than the views of the current partisans in power. Th at is why whoever is elected can change the laws, if they have the votes, but only according to legal and parliamentary procedures guaranteed by the separation of powers.

Emphasizing the role of language and human cognition in constitutional politics may help avoid the false and artifi cial dichotomy of normative and

Conclusion 207

instrumental approaches to the study of politics, bringing them together within the framework of a human science that has not lost all trace of Aristotelian practical wisdom. 3 Perhaps this is what Albert O. Hirschman (1981: 305–306) imaged when he called for a “moral-social science where moral considerations are not repressed or kept apart, but are systematically commingled with ana-lytical argument; where the transition from preaching and proving and back again is performed frequently and with ease; and where moral considerations need not longer be smuggled in surreptitiously, nor expressed unconsciously, but are displayed openly and disarmingly.”

Th e separation of powers necessarily demands the commingling of analytic and moral arguments. It is a body of theory that contributes to organizing life in a state to ensure that those in power will always be capable of providing legitimate reasons for their actions and defending them in public against criti-cism. Strong constitutions do not merely check (in the sense of stop and dis-able) the power of the state, as assumed by liberals; they also harness (in the sense of moving and enabling) it by requiring that rulers justify their actions in terms of the public good. Just as individuals are rewarded when they think before they act, act on what they have planned, and critically assess the eff ects of their actions so they can do better in the future, so it is with states: there are rewards for states with strong constitutions.

Notes

C h a p t e r 1

1. Th e best available surveys of the separation of powers are Bondy (1896), Neumann (1949), Friedrich (1950: 170–186), Vile (1998 [1967]), and Gwyn (1965); more recent contributions include Habermas (1996a), Ackerman (2000, 1988), Barber (2001); Tomkins (2001); Campbell (2004); Vibert (2007); Carolan (2009); Le Sueur et al. (2010: 110–173).

2. I use the word powers in this context in the sense of capacities or faculties, which are formally institutionalized in offi ces and roles and hence become powers in the sense of branches of government.

3. On this point I am most grateful to Chris Th ornhill. 4. While the fallacy inherent in post hoc ergo propter hoc logic should be avoided at all

cost, inquiring into the purpose of an activity is oft en useful for understanding both agents and institutions (see Taylor 1978).

5. Th is book falls within the constructivist or discourse-theoretic school of social theory that includes Peter Berger and Th omas Luckmann (1966), Niklas Luhmann (1990), J ü rgen Habermas (1996a, 1996b, 1995, 1994, 1989), Reinhart Koselleck (2002), but also the Toronto school of communications theory, especially Harold Innis (1950, 1951) and Marshall McLuhan (1962).

6. See, for example, North (1990); Weingast (1997); Tsebelis (2002). 7. Quoted in Kenan Malik “Burning Books,” Th e Globe and Mail , September 22, 2012,

p. R. 10. 8. According to Baumgartner, the Ligueurs began with a conservative, scripturalist un-

derstanding of authority: the king had to be Catholic and accept the Pope as the head of the Church. But how could they uphold the right to rule of a Protestant king? In the context of the assassination of Henry III, many “agreed that the people had the power to depose a monarch and elect another if the kind were ruling tyran-nically” (Baumgartner 1976: 237).

9. John Gerring and Strom C. Th acker (2004, 2008: 2–9) associate the separation of powers with what they call “decentralism,” the idea that power should be diff used and limited. See also Gerring, Th acker, Moreno (2005).

210 Notes

10. For a powerful statement of this position, see Th ornhill (2011). See also Barber (2001: 63): “the purpose of the doctrine is to promote effi cient state action.”

11. Samuel P. Huntington argued that the Lockean conception of government based on the “limitation of authority and the division of powers” is irrelevant to “mod-ernizing societies” (1968: 7). Th e United States was less infl uenced by notions of sovereignty that gained currency in eighteenth- and nineteenth-century Europe: it remained attached to sixteenth- and seventeenth-century notions of fundamental law. Law beyond human control was expressed for the fi rst time in a written consti-tution. Th is allowed the framers of the US constitution to reject both popular sov-ereignty embodied in an omnipotent legislature and absolute monarchy (Hunting-ton 1968: 98–106). In modernizing societies, however, the US-style constitutional division of powers tends to clash with the need for authority and power (Hunting-ton 1968: 134–139). Huntington’s theory invites the centralization of executive power and ignores the centrality of the separation of powers to achieving the very aspects of institutionalization that he extols: adaptability, management of complex-ity, political system autonomy, and coherence (see Huntington 1968: 12–24). See also Howard Wiarda and Margaret MacLeish Mott (2003: 7). Off ering a cultural interpretation of Latin America, they argue that, “Rather than look for methods of constraining governmental power from within—that is, through a separation of powers, federalist structure, or other institutionalized checks and balances as in the United States—Latin America’s political tradition constrains governmental power through an obligation to a greater whole.”

12. For the most cogent statement of this view, see Neumann (1949). 13. Some work in this fi eld is linked to modernization theory, for example, Goody and

Watt (1968).

C h a p t e r 2

1. Th is chapter builds on pioneering work on language and literacy by Harold Innis (1950, 1951), Marshall McLuhan (1962), Eric Havelock (1963, 1971, 1978, 1982a, 1982b, 1986), Jack Goody (1986, 1987, 2000), Goody & Ian Watt (1968), and Karl Popper (Popper and Eccles 1983). It also draws on speech act theory developed by John Searle (1969) as well as a substantial body of subse-quent research on the social consequences or implications of print and literacy (Anderson 1983; Baumann 1986; Chartier 1989; Crowley and Heyer 1999; J. M. Diamond 1992, 2003; Deibert 1996, 1997; Derrida 1979; Donald 1991; Eisen-stein 1983, 1979; Finnegan 1988; Graff 1981; R. Harris 1986; W. Harris 1989; Hirsch 1974; Houston 1988; Kress 1997; Man 2002; Olson 1985, 1994; Olson and Torrance 1991; Olson, Torrance and Hildyard 1985; Ong 1982, 1986; Pat-tison 1982; Robinson 1993; Schousboe and Larsen 1989; Small 1982; Th omas 1992, Tomasello 1999). Th is work is combined with collective action theory and institutional analysis.

Notes 211

2. As Innis put it, “Th e spoken word set its seal on and gave defi nite form to what the mind created and culled away from the total sphere of consciousness” (1950: 6). Walter J. Ong (1986: 36) makes similar claims.

3. It is oft en suggested, I suspect unfairly, that this is implied in Habermas’s writings. 4. Conditions for successful speech acts include: truth and sincerity conditions (the

speaker must actually intend to do the act promised); propositional content con-ditions (the speech act must express propositional content that is predicated on the fulfi llment of a future act); input-output conditions (the speakers know the language, are conscious of what they are doing, are free from threat or duress, not play-acting or telling jokes); essential conditions (the speaker understands that she is undertaking an obligation to perform an act); and preparatory conditions (the act would not otherwise be performed) (Searle 1969, 1991).

5. Th e rebus principle means the “use of a sign which normally represents one thing to represent a linguistic entity that sounds the same; this entity is a word” (Olson 1994: 75). Th us the sign for “sun” could be “re-employed” to stand for “son” (Harris 1986: 32–33).

6. David Olson (1994: 17) makes this point, as does Th omas (1992: 54–56). In many languages the term for literate is roughly, “alphabetized” (in Spanish, for example, the word is alfabetizado ). Spanish colonizers confronted with Mayan script sought in vain to render hieroglyphics in alphabetic form (Harris 1986: 45).

7. Elementary problems of political theory can be traced to the spatial and tempo-ral transformations unleashed by literacy. Text makes larger scale social organiza-tion possible, but also alters the nature of participation. As societies have grown, the nature and extent of the infl uence of citizens changes. As Robert Dahl has observed, because of the “inherent limits on participation set by numbers, the average citizen in a nation-state (as Rousseau foresaw) cannot exercise as much infl uence on government as the average citizen of a much smaller unit might, at least in theory” (Dahl 1982: 12). See also Dahl and Tuft e (1973). “Size matters” says Dahl (1998: 105).

8. Quoted in Cassier (1946: 116). 9. See Phaedrus , in Chappell (1996). 10. Th ere is, perhaps, no better example of how the spread of reading and writing con-

tributes to misunderstanding than the eff ects of e-mail and social media. Electronic communication contributes to breaking down the barrier between literacy and orality, between text and dialogue, but in the process it creates new problems. Any heavy user of e-mail knows the horror of sending a message to the wrong address, or the regret subsequent to an intemperate reply; worse still are hastily written comments published on websites that can be searched by Google or similar search engines. Th ese words are hard to take back. Th ey were “uttered,” in a manner of speaking, in a particular context, and might have been appropriate in oral commu-nication, but they may be a source of shame when they become a matter of public record.

212 Notes

11. Similarly, Jeremy Rifk in suggests that whereas oral communication “is an open-end-ed process, oft en disjointed and fragmented,” reading is a more solitary act, one that fosters “self-refl ection and introspection” (2009: 267).

12. Note a report can be true but not valid. For example, a report card could indicate that a student is doing well, but unless issued by an authorized school it may be invalid.

13. Bernard G. Weiss (1998: 38) calls this “textualism,” but I prefer scripturalism. 14. See Geertz (1971) in his work on Islam. See also Rama (1985) and Sosnowski &

Eloy Mart í nez, eds. (1985). 15. See, for example, Rawls (1996: 231–240). 16. Oxford English Dictionary, Second Edition 1989. 17. Although this painting epitomizes executive power, the etching of the name

Bonaparte in stone evokes Mosaic law, giving the subject more than a purely execu-tive image; he is also a law-giver.

18. Scholars attempting to “bring the state back in” oft en left big parts of it behind—notably legislative and judicial institutions. In one of the most infl uential books in the structural historical tradition, Th e Formation of National States in Western Europe, editor Charles Tilly acknowledged the omission of “the administration of law and justice” (1975: 49). None of the authors in that volume were centrally con-cerned with “the use of courts, lawmakers, punitive power and legal jurisdictions as a means of extending the power of the state.”

19. Manuel Gonz á les Prada (1995: 190) once described the military barracks as “a chunk of primitive jungle encrusted in the heart of modern cities.”

20. Th e fi gure of George Washington, elevated, illuminated, and slightly separated from the assembly suggests, perhaps, the beginning of the separation of executive and legislative power, as well as the importance that the president would ultimately assume under the US Constitution.

C h a p t e r 3

1. “Writing was fundamental to the status of the administrator. ‘Be a scribe. Your limbs will be sleek, your hands will grow soft . You will go forth in white clothes honoured with courtiers saluting you’ was the advice given in a Middle Kingdom text . . . ” (Freeman 1996: 29).

2. Two texts illustrate the functions and jurisdiction of the Vizir, the “Installation of the Vizir” and the “Duties of the Vizir” ( James 1984: 59–71). Th e Installation ( James 1984: 60–61) describes the “general legal philosophy” behind the Vizir’s position ( James 1984: 61), with an “emphasis on duty, natural justice, open judge-ment, and the observance of the law.” ( James 1984: 62). It requires the Vizir should pay “strict attention to the great body of case law preserved in the archives of the vizir’s offi ce” ( James 1984: 62). Th e Installation calls for impartiality, application of justice to powerful offi cials and weak subjects alike, the right of a defense, and to see that “everything is done in accordance with what is specifi ed by law” ( James

Notes 213

1984: 60). Th e Vizir’s duties included collecting taxes, upholding civil law, keeping offi cials accountable, and preservation of records. Th e Duties is something close to a constitutional document. At the same time, the Vizir had few of the central executive functions of the modern executive. For example, he had no role in mat-ters of war and peace, foreign aff airs, or diplomacy ( James 1984: 69).

3. Inspired by Sigmund Freud’s account of the life of Moses (Freud 1967), Th omas Mann wrote “Th e Table of the Laws,” which emphasizes Moses’s accomplishment as a literary achievement.

4. Th e life of Moses is carefully reconstructed and recounted by Kirsch (1998); for an insightful political analysis of Moses and the exodus, see Wildavsky (1984).

5. Freud emphasizes the tension between the oral and the written in the Old Testa-ment:

How far the accounts of former times are based on earlier sources or on oral tradi-tion, and what interval elapsed between an event and its fi xation by writing, we are naturally unable to know. Th e text, however, as we fi nd it today tells us enough about its own history. Two distinct forces, diametrically opposed to each other, have left their traces on it. On the one hand, certain transformations got to work on it, falsifying the text in accord with secret tendencies, maiming and extend-ing it until it was turned into its opposite. On the other hand, an indulgent piety reigned over it, anxious to keep everything as it stood, indiff erent to whether the details fi tted together or nullifi ed each other. (Freud 1967: 69–70)

6. Th e idea of “seedbed” societies suggests an alternative evolutionary account based on cognition rather than structural functionalism, an insight Parsons did not exploit.

7. Aristotle defi nes citizenship in terms of participation in two types of “authority”: the jury or legislative body. In other words, citizens are those adult members of the polis who, at least in principle, are eligible for duty in the institutions that make or apply laws.

8. Socrates plays a “paradoxical role” according to Havelock. He was “an oralist adher-ing to the habit of his youth, yet using oralism in a brand new manner, no longer as an exercise in poetic memorization, but as a prosaic instrument for breaking the spell of the poetic tradition” (1986: 5). Plato carried the results of Socrates’s innova-tion to its logical conclusion by writing it out. By challenging the place of poetry in Greek society, Socrates was undermining a powerful “poetic monopoly” (Havelock 1986: 7), while laying a foundation for a new (philosophical, literate) one. Plato especially objected to the political role of poetry.

9. Elsewhere, Aristotle defi nes the constitution more technically, as “the arrangements which states adopt for the distribution of offi ces of power, and for the determina-tion of sovereignty and of the end which the whole social complex in each case aims at realizing” (1962: 151).

10. Th e slave mode of production underpinned Greek civilization and without it the exercise of democracy would have been impossible (Anderson 1996). It was the ma-

214 Notes

terial foundation of Greek citizenship, which, as we have seen, emphasized the dis-tinction between the literate and nonliterate. Citizenship implied political equal-ity, but “natural inequality” excluded all but a minority from participation. Some people, in Orwell’s phrase, were more equal than others, and Aristotle’s fi rst part of the Politics are devoted to the topic of natural inequality and the diff erent types of barbarians that make up the world of noncitizens. Two millennia later these ideas would be conjured up to justify the war on American Indians by the Spaniards.

11. As one scholar put it: “Th ough there are not wanting indications of the infl uence of religious conceptions on Roman law, yet at an early stage the practical Roman mind had drawn a clear line between the offi ce of the priest and the offi ce of the justiconsult” (Hunter 1955: 1–2).

12. Th ere is dispute on this point. A delegation may have been dispatched to Greece to learn the legislation of Solon, but the law contained in the Ten Tables appears to contain largely indigenous, perhaps customary, Roman law (Hunter 1955: 4).

13. For a good discussions of Polybius, see Lloyd (1998), Fritz (1954). 14. Th e encomienda was an “institution whereby groups of indigenous people were

legally ‘entrusted’ to a Spanish conqueror with the duty of paying him labor and tribute. In return, the holder of the encomienda (the encomendero ) was to provide instruction in the Christian religion” (Chasteen 2001: 324).

C h a p t e r 4

1. Machiavelli acknowledged that the struggle between rich and poor ultimately de-stroyed the republican constitution. But he insisted that for three hundred years (from the fall of the Tarquin kings to the Gracchi rebellion) Rome was governed by good laws that the plebes were willing to defend en masse because they acquired a stake in their own self-government (Machiavelli 1970: 113–114).

2. On Machiavelli see Bock, Skinner and Viroli (1990), especially the chapter by Shklar (1990); Crick (1970); Pocock (1975); and McCormick (1993).

3. On Hobbes, see Forsyth (1994). 4. Hobbes uses a slightly disparaging tone in his (accurate) comparison of the importance

of the printing press relative to the invention of speech (Hobbes 1651 [1958]: 37). 5. “[N]ames have their constitution, not from the species of things, but from the will

and consent of men” (cited in Wolin 1960: 257). 6. In reading Locke, I have found the following texts useful: Dunn (1984); Faulkner

(2005); Aaron (1971); Arneil (1996); Ashworth (1984); Chappell (1994). 7. Whereas a “commonwealth” is as any independent community that has the capac-

ity to legislate its own aff airs (Locke 1977 [1690]: 183), the type of system depends on who is entrusted to legislate on behalf of the whole community.

8. See the 2005 issue of Th e Review of Politics , 67(3). 9. As Habermas puts it, “In the eighteenth century the Aristotelian tradition of a phi-

losophy of politics was reduced in a telling manner to moral philosophy, where by

Notes 215

the ‘moral’ (in any event thought as one with ‘nature’ and ‘reason’) also encom-passed the emerging sphere of the ‘social’” (1989: 102–103).

10. Recall the standoff between the captain and his lieutenant in Crimson Tide, dis-cussed in chapter 2. Th e release of nuclear weapons required their agreement. Th is was to prevent one individual from launching missiles without following standard operating procedures. Th e use of force was embedded within a legal-bureaucratic framework. Alternatively, one could say that there were two “veto players” (Tse-belis 2002) in the submarine—two people who could prevent missile launch. Th e second view is not wrong, but it leaves out the legal-bureaucratic context; or, more accurately, it assumes its existence, just as the notion of checks and balances is a corollary of (and takes as given) the separation of powers. Th e lieutenant is only a check on the power of the captain because he and his subordinates recognize the authority of general rules over and above the particular commands issued by spe-cifi c individuals. Th e same principle of accountability works its way up the chain of command to the very apex of executive power.

11. Vile 1998 [1967]: 14. See also Manin (1994), pp. 27–62. 12. Diverse critics have made this point. See, especially, Althusser (1982) and Kelsen

(1945). 13. For Russell Hardin (1999), the separation of powers requires coordination to sup-

press liberties, and regression toward the mean is the operative principle. 14. See Bushnell 1970, Bela ú nde (1970). 15. An exceptional reformer of the post-independence period was Simón Rodr í guez.

He showed greater respect for oral traditions than Bolívar, and advocated a more democratic and egalitarian society than most of his contemporaries. On educa-tional reform, Rodr í guez was decidedly antiscriptural: “To read is the last act of the work of teaching. Th e order should be: calculate, think, speak, write and read. Not: read-write and count, and leave aside logic (as is done everywhere) to those few lucky enough to make it to the colleges from which they emerge clogged up with syllogisms, vomiting, in common intercourse, paralogisms and sophisms by the dozens. If they would have learned to think as children, taking familiar proposi-tions as premises, they would not . . . say (in spite of their talent): fi rst, this Indian is not like me; second, I am a man; conclusion: then he is a brute; consequence: make him work with a beating” (cited in Rama 1985, 17).

C h a p t e r 5

1. Marx’s work on Bonapartism is also the source of much of the original thinking on the relative autonomy of the capitalist state. Under Bonaparte the French state seemed to “have made itself completely independent,” that is, it was no longer “the instrument of the ruling class” (Marx 1951: 302). Nor was it “suspended in midair” (Marx 1951: 302), however. According to Marx, Bonaparte represented the most numerous class: the small-holding peasants. Th is is because the ruling class, the

216 Notes

French bourgeoisie, fearful of the advances of the proletariat, turns to Bonaparte and “all classes, equally impotent and equally mute, fall on their knees before the rifl e butt” (Marx 1951: 300).

2. On this point, see Habermas (1996a: xli). 3. On Durkheim, see Poggi (2000). 4. Caught in his own web of deception and paranoia, Hitler reportedly ended his days

lamenting pathetically: “No one has told me the truth” (quoted in Shirer 1961: 171). 5. Competition operates between and within parties, and when the party system

is unresponsive, competition may come from “outsiders who prefer making an independent bid for power to serving in the ranks of one of the existing parties” (Schumpeter 1942: 281). Curiously, Schumpeter did not see outsiders as a threat to democracy. Th is may be because, as Guillermo O’Donnell (2001: 9–11) has shown, Schumpeter was primarily concerned with countries where the constitutional foun-dations of democracy could be taken for granted.

6. For a diff erent comparison of Dahl and Schumpeter, see Munck (2009). 7. Th is argument can also be found in Dahl and Lindblom (1953: 308–309). 8. A similar point was made by Maurice Duverger, with specifi c reference to political

parties: the “degree of separation of powers is more dependent on the party system than on the provisions of the constitution” (1963: 393).

9. Although minimalist, this perspective is not “electoralist” if by that term we mean the fallacy of identifying a country as democratic on the basis of sham or showcase elections. See Schmitter and Karl (1993). Electoral democracy is defi ned precisely to exclude such elections and distinguish between democratization and liberaliza-tion (Przeworski et al. 1996).

10. Defi nitional minimalism enables Przeworski and his collaborators to reject the idea of intermediate cases. Problems of classifi cation should be seen as errors, not inter-mediate categories, they claim (Przeworski et al. 1996).

11. See Hardin (1989, 1990, 1999); Kolmar (2000); Klochko and Ordeshook (2001); Ordeshook (2002); Alberts (2006).

12. In this view, the content of rules is inconsequential; analysts should focus instead on the strategies that make these rules self-enforcing. If democracy collapses, the reasons are more likely to be found in logics of strategic interaction than in features of the constitution. Th e idea that a certain type of constitution would be a source of instability is inimical to this theory.

C h a p t e r 6

1. For a critique of this literature, Barry (1978) is still the best. 2. See also Stepan & Skach (1993); Linz & Valenzuela (1994); Hartlyn & Valenzuela

(1998); Valenzuela (2004); Kenney (2004). See Cheibub (2002) for a skeptical view. 3. Rawls and Habermas straddle the boundary between liberal and deliberative con-

ceptions of democracy, the key diff erence lying in whether liberal rights or demo-

Notes 217

cratic legitimation are accorded primacy in the constitutional democratic state (Habermas 1995: 110).

4. Habermas (1996a, 1996b); Benhabib 1996b; Bohman 1996, 1997, 1998; Bohman and Rehg 1997; Campbell and Stone 2003; Chambers 1996; Cohen 1996, 1997, 1998; Miller 1993). In legal theory, see (Nino 1996; Campbell and Stone 2003), and policy analysis (Dryzek 1990, 1996a, 1996b). However, this school also has af-fi nities with Anglo-American philosophy (Dewey 1984; Gutmann 1996; Gutmann and Th ompson 1996, 2004), public policy analysis (Reich 1988), work on polls and deliberative assemblies (Fishkin 1991), and political theory (Barber 1984, 1996).

5. Th ere is perhaps an idealistic, even teleological, quality to this conception, as when J ü rgen Habermas and William Rehg emphasize the open-ended character of con-stitutional democracy by saying that “later generations have the task of actualizing the still un-tapped normative substance of the system of rights laid down in the original constitution” (Habermas and Rehg 2001: 774). Th ere is also circularity in the appeal to deliberation to arrive at the principles by which deliberation is said to occur. Th us, “the search for justifi able answers takes place through arguments con-strained by constitutional principles, which are in turn developed through delibera-tion” (Gutmann and Th ompson 1996: 229). How are we to agree on the principles according to which deliberation is likely to result in legitimate decisions? An appeal to further deliberation is hardly helpful.

6. If correct, and the branches of government in constitutional democracies represent diff erent discourses or logics of argumentation, there should be historical evidence linking the origins of the diff erentiation of governmental functions to major trans-formations in society corresponding to the rise of these discourses. Previous chap-ters have provided evidence to support this.

C h a p t e r 7

1. Th e example, from philosopher Gilbert Ryle, was popularized by Cliff ord Geertz (1973).

2. For an excellent review and critique of this orthodoxy in the Canadian case, see Bak-er (2004: 3–13); an equally persuasive repudiation of the doctrine of no-separation in Westminster systems is made by Allan (2001: 31–59). Both authors identify Bagehot as the principal source of understanding of parliamentarism (see Baker [2004: 4]; Allan [1993: 50]).

3. Th e idea of delegative democracy generated considerable debate. See Schedler et al. (1999) and Collier and Levitsky (1997).

4. Aft er the 1973 coup, the Chilean military junta implicitly acknowledged the un-constitutionality of its actions by producing another constitution and submitting it to plebiscite. Even under military rule elements of the separation of powers were preserved, though the doctrine was misused to justify the inaction of the courts (see Barros 2002; Policzer 2003, 2009; Hilbink 2007).

218 Notes

5. Th is argument has a teleological fl avor, in the sense that we can understand the separa-tion of powers only in relation to the purposes it is designed to fulfi ll. As philosopher Charles Taylor puts it, “an explanation by purpose involves the use of a teleological form of explanation,” that is, one in which an outcome is a cause by virtue of being desirable to an agent (Taylor 1978: 652).

6. Th us, Defense Minister General Grachev insisted on a direct, written order to fi re on the Russian parliament in 1993 because he knew that Yeltsin’s crackdown on parliament broke the law. Grachev’s reticence refl ected the long tradition of mili-tary obedience in Russia, a tradition weakened, but not destroyed, by the politiciza-tion of the armed forces under Yeltsin.

7. Press Conference of the President, Rose Garden, Washington, D.C., September 15, 2006. Available at: http://www.whitehouse.gov/news/releases/2006/09/20060915-2.html (Last accessed November 1, 2007).

8. Habermas makes the further point that Slaughter’s “image only highlights the fact that regulatory decisions that intervene in nation states from above are increasingly uncoupled from popular sovereignty” (Habermas 2005: 17).

C h a p t e r 8

1. See, for example, Ackerman (2005) on the fi rst decades of the Constitution of the United States.

2. As we saw in the previous chapter, these issues have emerged with tremendous ur-gency in the context of the “war” on terror (see Dryzek 2006; Margulies 2006; Ackerman 2006). Analogous issues arise with respect to international law generally (see Byers 2005; Th akur and Sidhu 2006).

3. William Riker’s (1962: viii) distinction between “wisdom” and “political science” is, perhaps, as regrettable as it is valid. Recent work in the social sciences has called for a return to Aristotle’s practical wisdom (Flyvbjerg 2001; Schwartz and Sharpe 2010).

http://www.whitehouse.gov/news/releases/2006/09/20060915-2.html

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Abel, Richard, 83absolutism, 79–83, 93, 101, 117accountabilitychain of, 97, 99, 186, 215n10

horizontal, 178–179, 181retrospective, 41

Agamben, Giorgio, 165, 182–184alphabet, 23, 59–60, 211n6Almond, Gabriel A., 147–149, 200 (see

also Civic Culture)al-Qaeda, 191Althusser, Louis, 113–114, 215n12anarchy, 39, 75, 97, 114, 155, 166, 182,

186–187, 189, 195, 202Angostura Discourse (Bolívar), 105Apology, Th e, 45Aquinas, Th omas, 69–71, 73, 81, 103Arendt, Hannah, 109argumentation, logics of, 33–34, 45,

138, 157, 160–161, 165, 206–207, 217n6

Aristotle, 1, 2, 8, 9, 25, 53, 61–63, 66, 69–71, 73–74, 77, 89, 103, 108–109, 111, 114, 147–148, 157, 167, 185, 196, 198, 200–201, 213n7, 214n9, 218n3

classifi cation of types of political systems according to, 62–63, 108–109, 114

see also Politics, separation of powersassociations, 115, 122, 202

AthensAeropagus, 106

laws of, 45, 60, 74constitution of, 62democracy in, 60

Augustine, 73authoritarian

enclaves, 150, 190rule, 166, 178, 183

autogolpe (presidential self-coup), 179, 181autonomycollective, 151–152, 154

individual, 1, 151, 158political, 69

Bagehot, Walter, 175–176, 217n2Baker, Dennis, 175 behaviorism, 124, 128, 141, 147, 169Bello, Andrés, 106Benhabib, Seyla, 157Between Facts and Norms (Habermas), 33Bible, 29, 66–68, 70, 72, 79, 84, 89, 107

Gutenberg, 85blogs, 193Bolívar, Simón, 11, 100, 103–106, 215n15

author of Bolivian constitution, 104contribution to constitutionalism,

103–105infl uence of Bonaparte on, 103paternalism of, 105see also Angostura Discourse

Index

242 Index

Bolivia, 104–105Bonaparte, Napoleon, 34–35, 40, 43,

103, 212n17Bonaparte, Louis Napoleon, 42, 112,

215–216n1Bonapartism, 42, 112, 118, 155–156,

215n1Book of Judges, 43boule (Council), 64Braudel, Fernand, 54Britain

constitution of, 11, 101, 175–177, 187constitutional theories in, 85–91common law, 85, 145–146court system, 85liberties, 83mass media, 120Montesquieu’s view of, 92parliament, 85–87printing press in, 85–91separation of powers in, 101, 128,

175–177, 187Brutus, 19Buenos Aires (Argentina), 102bureaucracy

and Bonapartism, 112and Caesarism, 118as fourth power, 166, 173Durkheim on, 115in ancient Egypt, 55in Marx’s thought, 113–114in Weber’s thought, 109, 113,

116–119welfare functions, 111see also stateBush, George W., 188, 190

Byzantine world, 79

cabinet government, 9, 105, 175–177Caesar, 19Caesarism, 11, 42, 118–119 (see also

bureaucracy)

and succession, 119democratic, 104

Calvinism, 86canon law, 67–68, 73, 86canonic traditions, 81capitalism, 83, 103, 113, 118, 125, 141,

155–156Capitalism, Socialism and

Democracy, 125cardio-pulmonary resusciation, 182Carolan, Eoin, 171Carthage, 62categorial imperative (Kant), 98caudillo, 11Censors (Rome), 104–106Centuriate assembly (Rome), 65checks and balances, 8, 10, 50, 94,

101–102, 105, 124, 188, 192, 195–196, 207, 210n11

Cheney, Dick (United States Vice President) 189

Chilean constitution, 201, 217n4Chilean military junta, 217n4Christy, Howard Chandler, 39–40, 43churchand state, 7, 53, 78, 80, 106, 199

Catholic, 29, 84–86, 106, 209n8constitutionalism and, 67–71, 77of England, 29Protestant, 29, 70repository of learning, 67Roman law and, 81Universal, 79

Cinema, 120Citizenship, 12–13, 60, 70, 97, 138,

148, 151–152, 158, 179, 195, 203, 213n7, 214n10

Civic Culture, Th e (Almond and Verba), 147–148

clientelism, 178climate change, 195CNN (Cable News Network), 193

Index 243

Code of Hammurabi, 56code of military justice, 201Cold War, 38, 124, 189collective action

coordination devices, 135–136, 205Internet and, 194language and, 4, 16, 18–19, 21–22problems, 3–4, 79, 168, 175, 206theory of, 3, 210n1use of text to coordinate, 1–3, 5–6,

8–9, 12, 22, 26, 28, 30–32, 42, 53–55, 76, 84, 114, 165–167, 171–172, 179, 191, 198–199, 202–203

voting and, 137see also constitutions, literacy,

printing press, separation of powerscollective consciousness (Durkheim),

109, 115–116collective representations (Durkheim),

115, 187Colombia, 104Comitia Tributa (tribune assembly,

Rome), 64common good, 41, 87, 127, 195–197Communist Manifesto, 100Comte, Auguste 106conciliarism, 68–69confi dence of parliament, 176constitutions

administrative states and, 169–173as constraints on the state, 8, 11, 95,

102, 146, 166–167, 197, 210n11as contracts, 135, 152–154, 167as coordination devices, 134–139, 205as rules, 159change, 153–154, 204collective action and, 1–3, 6, 8–10,

46–48, 53, 113–114, 135–137, 139, 163, 165–169, 172, 175, 179–180, 186, 188, 190–192, 197–199, 203

colonialism and, 71–76defi ned 1, 62, 153, 167, 172, 213n9deliberative democracy and,

154–155, 159–163, 204essentials, 152–154, 169, 200exercise of public reason in, 159–163interpretation of, 5–7, 169liberal, 112, 123, 141, 167, 207majoritarianism and, 12, 149, 151,

154, 158, 171, 178mixed, 11, 63, 66, 70, 81, 95, 101,

104, 148negative view, 95, 102, 134, 167, 188positive view, 154, 167, 205printing press and, 3, 13, 78–107,

165, 199rationalism and, 132–138, 163self-enforcing, 132, 134–135, 216n12source of deliberative institutions, 202states of exception in, 111, 181–185strong, 1, 10–11, 166–169, 186, 207types, 137, 149, 173Weimar, 109, 116, 183World 3 objects, 200–202See also Bolívar, Britain, deliberative

democracy, Germany, United States

consent, 47, 59, 84, 87–88, 99, 152–153, 163–164, 205, 214n5

constituent power, 173, 184consuetudinary practices, 82Consuls (Rome), 66contract theory, 69, 78, 125, 167–168contractarianism, 135, 152–153, 164contractualismdefi ned, 6, 88–89

and democracy, 7, 50–51see also interpretation of texts

council (Venice), 93counter-reformation, 75cortes (Spain), 2Creole, 11, 105–106, 179

244 Index

Crimson Tide, 38–39, 215n10criollo, 102–103Critical theory, 142, 155criticism

deliberative democracy and, 52, 157–158, 162–163, 166, 173, 189, 207

engine of institutional change, 4–6, 10, 15–18, 21, 200, 206

improvement in theory and, 2, 13in executive branch, 38in judicial branch, 45–46in legislative branch, 41–42learning in regimes and, 121–122legal, 54, 76scripturalism and, 70writing, text and, 29, 31, 52, 67,

172–199Cromwell, Oliver, 87Crito, 45cuneiform, 54

Dahl, Robert A., 128–131, 139, 146–147, 151, 180, 211n7, 216nn6–7

see also Preface to Democratic theoryDarwin, Charles, 109, 115David, Jacques Louis, 34–35, 43Decalogue, 58decemvirate (Decemviri Consulari

potestate legibus scribundis—Rome), 65

Declaration of the Rights of Man and the Citizen, 112

decree authority, 177Defender of Peace, Th e, 69

see also Marsilius of Paduadeliberationcounter-majoritarian, 171

courts and, 45, 154, 206in deliberative democracy, 161–163in rationalist accounts, 125–126,

136, 138

legislative, 1–2, 39–43, 123, 136, 160, 206

public, 33, 111, 126, 159, 161, 173, 185separation of powers and, 185state of exception and, 182

demagogue, 63, 109, 118democracyabsolute, 104

bourgeois, 111–112citizens’, 180defi ned, 126, 130–131, 147–148, 150delegative, 14, 52, 149, 177–181,

217n3deliberative, 14, 52, 115, 137, 142,

154–164, 166, 171, 191, 199–200, 216n3

electoral, 108, 132, 137–138, 150, 163, 173, 206, 216n9

etymology of, 150Greek, 62, 124–125liberal, 138, 142, 146–147, 150–151,

153–154, 205plebiscitarian, 118, 120, 149rationalist, 124–134, 205realistic, 111, 124–126, 141, 178representative, 109self-enforcing, 132Schumpeterian, 124–127, 139, 180see also Greece, separation of powers

Democracy and the Limits of Self-Government (Przeworski), 132

Democracy and the Market (Przeworski), 130

democratic wager, 181despotism, 12, 57, 92, 97, 105,

112–113, 177, 190Deutsch, Karl W., 121–122Diamond, Larry, 194dictatorship

constitutional, 166, 181–186plebiscitarian, 129totalitarian, 110, 120–121

Index 245

Diebert, Ron, 193Discourses (Machiavelli)Disraeli, Benjamin, 108divine right, 80–81, 88Dominican Order, 72, 74Donald, Merlin, 60Doré, Paul Gustav, 43–44Draco, 103drones, 189drug traffi cking, 195Durkheim, Emile, 48–49, 108–109,

111, 114–116, 187, 216n3 (see also bureaucracy, collective consciousness, collective representations, separation of powers, state)

Duverger, Maurice, 132, 216n8Dzerzhinsky, Felix, 26

Earle, Rebecca, 103Easton, David, 147e-books, 193Eco, Umberto, 6, 27Egypt (Ancient), 76, 195, 212–213n2

centralized rule in, 55–57hieroglyphics, 54–55Eighteenth Brumaire of Louis Napoleon

Bonaparte (Marx), 112ekklesia (assembly), 64Elizabeth I (Queen of England), 86emergency

situations, 9, 37–39, 41, 112, 155, 156–166, 182–183

powers, 181–185England. See BritainEnlightenment, 53, 82, 102–103, 120,

123, 139, 199Estado de derecho (lawful state),

178Eurocentrism, 11–12, 147European Union, 195executive (branch of government)

and literacy, 54defi ned, 34like brain (Rousseau), 96monopoly over coercion, 8, 32,

34–39, 47, 50, 102, 116, 187, 198powers, 33–34, 94unbound, 189unifi ed, 7, 190, 192see also government branches

Exodus, 52, 76experts, 45, 68, 86, 171, 185

Facebook, 193fallacy of misplaced concreteness, 157, 200fallacy of post hoc ergo propter hoc logic,

209n4fascism, 139, 141, 155 (see also Nazi

regime, totalitarianism)Federalists (United States), 94, 101, 210Ferdinand, King (Spain), 71Ferrero, Guglielmo, 150Feuerbach, Ludwig, 67–68Filmer, Sir Robert, 89Fishkin, James S., 161Flaubert, Gustave, 24focal point, 132Fortescue, Sir John, 85, 86–87, 107France

constitutional model, 102postrevolutionary, 146under Louis Napoleon Bonaparte, 112

franchise, 110, 137Franciscan Order, 72Frankfurt School, 155–156Franks, 68free enterprise, 109, 118French Catholic Leaguers, 6–7, 209n8Freud, Sigmund, 213(fn)Friedrich, Carl J., 99, 108, 183–185

Game theory, 131 see also rational choice theory

246 Index

Gauls, 68Geertz, Cliff ord, 168, 217n1Genco, Stephen J., 148, 200Geneva Conventions, 188, 190Germany, 84, 86, 110, 119–122, 142,

155–156, 158, 179, 184 (see also Weimar republic)

Ginés de Sepúlveda, Juan, 72globalization, 166, 194–195Golden Bull (Holy Roman Empire), 2golden calf (Bible), 59, 73Goody, Jack, 27–28, 60, 210nn13,1Google, 193government branches, 1, 7–9, 31, 34,

46–47, 50, 53, 98–102, 113, 133, 137, 153–157, 160–163, 165–166, 169–173, 175, 177, 179, 185, 189, 196, 201–204, 206 (see also executive, legislature, and judiciary)

Gracchi rebellion, 214n1Gramática Sobre la Lengua Castellana, 71

see also Nebrija, Antonio deGreat Schism (in church), 69Greco-Roman world, 13, 52–53, 69,

73, 77–78Greece, 12, 23, 54, 59–65, 67, 77–78,

92, 106–107, 139, 144, 213–214n10

alphabet, 23, 59and constitutional theory, 78,

106–107, 154and corruption in assemblies,

41–42as a “theoretic civilization”, 59–64democracy, 62, 124–125law, 64, 144orality, 61, 97political thought, 12, 77, 139, 148

Guantánamo Bay (Naval Station), 188Gutenberg Revolution, 52–53, 77,

78–85

Gutenberg, Johann, 84 (see also Bible)Gutiérrez, Gustavo, 71–72Gutmann, Amy, 157

Habermas, Jürgen, 8–9, 14, 16, 33–34, 83, 142, 156–158, 160, 198, 206, 209n5, 211n3, 214n9, 216n2, 217nn4–5, 218n8 (see also Between Facts and Norms)

Hamilton, Alexander, 149Hardin, Russell, 134–135, 215n13Harrington, James, 85Havana, 102Havelock, Eric, 24, 27, 210n1, 213n8Hayek, Friedrich, 14, 46, 141–146, 164Hebrews, 54, 57–59, 70, 76Henshall, Nicholas, 80Henry VIII (Britain), 113, 209hermeneutic, 25, 70Hirschman, Albert O., 207historicism, 124Hitler, Adolf, 37, 119–121, 183, 216Hobbes, Th omas, 10, 16–17, 21, 39, 47,

87–89, 90, 92, 97, 103, 107, 182, 214n4

Holmes, Oliver Wendell, 31Homer, 17, 61, 73–74, 108Homer-Dixon, Tad, 194Homo sapiens, 16House of Commons (Britain), 86House of Lords (Britain), 104Hugo, Victor, 78Humpty Dumpty, 200Hussein, Saddam, 192

idealism, 124impeachment, 93, 177impunity, 179, 182, 191, 203Independence (Latin America), 11,

102–103, 178–179, 215n15indigenous peoples, 13, 76, 105–106,

178, 214n14

Index 247

institutionsadaptation of, 4–5, 8, 10–11, 31, 47, 52,

143, 145, 199, 204as constructs of the human mind, 15,

143, 200as solutions to speech act problems,

22, 26, 47, 168, 170change and, 11, 145–146, 198, 204defi ned, 3, 15deliberative, 7–8, 11, 14, 29, 34, 40,

48, 56, 62, 64–65, 68, 76, 82, 85, 115–116, 133, 136, 138, 142, 163, 167, 173, 180, 189, 192, 194–195, 202, 206, 217nn4–5

evolution of, 4, 142–146, 164, 200instrumental theory of, 14“new institutionalist” theory of, 146supranational, 173, 193, 195

Innis, Harold, 23–24, 28, 60–61, 64, 209n5, 210n1, 211n2

International Criminal Court, 194Internet, 14, 166, 193–194interpretation of texts, 136–137

attitudes toward, 6–7, 27–28, 45, 50, 59, 60

see also textualism, scripturalism, contractualism

intepretive (social science), 2, 115, 200, 205

interrogation (see torture)Inquisition (Spanish), 75iPod, 193Iran under the ayatollahs, 43Iraq invasion, 191–192Islam, 189, 212(fn)Israel (as seedbed society), 54, 59, 213n6Italy, cities and principalities, 2, 68, 70

joint attention, 17, 20, 168journalism and journalists, 110, 118, 120judgesas “automatons of paragraphs,” 44, 170

as the “mouth that pronounces the words of the law”, 93, 97

judgmentbetween general and particular, 170

critical, 2expert, 171judicial, 42, 45, 73, 93, 98–99,

107, 140legal, 45, 50, 77, 167military, 188–189moral, 1, 67, 196–197, 201, 205separation of powers and, 185,

196, 197wise, 8, 43

judiciary (branch of government)defi ned, 42independence, 46–47, 82, 90, 93, 127,

156, 169, 176, 179monopoly over interpretation and

application of law, 33, 42–47, 49–50, 90, 93, 166, 171–172, 174, 198

see also government branches

Kant, Immanuel, 11, 33, 95, 98–99, 107, 123, 152 (see also categorial imperative)

Kelsen, Hans, 36, 153kingship, 66, 88, 108Kirchheimer, Otto, 155–156Koselleck, Reinhart, 2, 209n5

languageand institutions, 3–5

and social and political organization, 16–18

as cheap talk, 205crystalized by writing, 97ordinary, 196rules, 89–90, 196, 200status within social science, 205vernacular, 79see also speech act

248 Index

Las Casas, Bartolomé de, 71–74, 103Laski, Harold J., 43Latin America, 11–13, 53, 71, 75, 100,

102–103, 106, 130, 178, 210n11law

as “brooding omnipresence in the sky” (Holmes), 31

as codes of reasons for action, 42, 157, 189

as coordination device, 31, 205as distinct from commands, 145as text, 9, 27, 42, 60as “universal speech,” 57canon, 66, 67, 81, 82, 86civil, 80, 97, 15common, 85, 145–146customary, 61, 79, 142, 144–145divine, 58, 106Egyptian, 58formal, 145hierarchy of, 63, 67, 107, 153,

187, 202“in the material meaning,” (Hayek) 145international, 187, 195, 218n2natural, 67, 70, 105–106, 144“precedes legislation,” (Hayek)

142–144rational, 117Roman, 36, 54, 64–67, 73, 78, 79, 80,

81, 106, 117, 145, 214n12rule of, 37, 39, 41, 47, 50, 60, 90, 99,

111, 122, 130, 133, 137, 141, 146, 149, 151–152, 155–156, 160, 174, 177–178, 182–183, 190, 203

social-scientifi c study of, 92sovereign decision, 184statutory, 29, 82, 85, 170, 172written, 9, 51, 55, 60, 62–63, 67, 72,

85, 90, 92, 107, 142, 153, 179see also Athens, Mosaic Law,

Valerio-Horatian laws, lexlawgiver, 27, 37, 62, 72, 98, 144

leadershipexecutive, 34, 36, 166monopolistic, 127plebiscitary, 118, 119–122, 139providential, 7, 70

Lenin, Vladimir Ilich, 26legislature (branch of government), 8–9

as ligature between public opinion and law, 78

as supreme power, 89, 91defi ned, 33, 39–42etymology, 39evolution from parliament to, 29, 39,

41, 78, 86in Montesquieu’s thought, 94like a heart (Rousseau), 96literacy and, 31–32, 39, 48monopoly over legislation, 33,

39–42, 50, 90, 145, 166, 172, 174, 176, 198

print and, 29, 52see also government branches,

literacyLeviathan (Hobbes), 47, 88Lévi-Strauss, Claude, 27lex (law)

non scripta, 87parliamenti, 86regia, 80scripta, 87terrae, 86

liberalism, 14, 82, 102, 107, 118, 136, 138–139, 141–154, 163

Liberation Th eology, 71liberation technology. See technology of

communicationLigueurs, see French Catholic LeaguersLima (Peru), 102Linguistic Society of Paris, 16linguistic turn, 141, 147, 199Linz, Juan J., 122, 131, 149–150,

151, 160

Index 249

Literacyand citizenship, 12–13

and collective action, 22–28, 31–32, 79and legislatures, 31–32, 39, 42, 48and the state, 2general versus variable eff ects of,

31–32mass, 2monopolization of, 13, 27–28restrictive, 13, 27, 56, 178–179spread of, 51, 64, 67, 78, 79, 86, 106,

110, 151, 198, 211n10Livy, 53, 65, 69, 81Locke, John, 11, 36, 40, 44, 53, 85,

89–92, 94, 97, 99, 102, 103, 107, 149, 152, 210n11, 214n6

logocentrism, 12, 61Louis XIII (King of France), 113Luhmann, Niklas, 3, 29, 209n5Luther, Martin, 84–85Lukes, Steven, 115Lycurgus, 103

Machiavelli, Niccolò, 21, 34, 36, 57, 65, 69–70, 81, 115, 186, 206, 214n1

Machiavellian intelligence, 20Madison, James, 10, 99, 100, 101, 122,

128, 149, 174, 176, 195Magna Carta, 2, 86Mann, Th omas, 57, 213Mansbridge, Jane, 10Margulies, Joseph, 188–189markets

and politics, 111, 113, 125, 127, 139, 147

and cultural evolution, 143fi nancial, 194

Marsilius of Padua, 69see also: Defender of Peace

Marx, Karl, 108–109, 111–116, 119, 123, 141, 155–156, 215n1, 216n1

Marxism, 100

Mary (Queen of England), 86Maya, 54, 211n6McLuhan, Marshall, 28, 209n5, 210n1mediaelectronic, 3, 4, 18, 50–51, 110–111,

120, 163, 165, 192–194mass, 110, 120–121digital, 166, 192–196

Memphis (Egypt), 55Mesopotamia, 57, 195Mexico City, 102Middle Kingdom (Egypt), 56Mignolo, Walter, 73military, 189, 192, 201Mill, John Stuart, 38, 41mind, 15–17, 19–20, 24, 57, 67–68,

88, 90, 105–106, 119, 121, 143–144, 166, 168, 192, 200–201, 211n2

Ministry of the Interior (Germany), 120modernization theory, 12, 53, 115,

210n13monarchyAristotelian schema, 114

absolute, 89, 210Althusser on, 113Aquinas on, 70constitutional, 87, 92Hobbes on, 88in France, 83Locke on, 89Montesquieu on, 101, 113see also kingship

monopolyof mass communication, 129of knowledge, 6, 56, 67, 68, 81, 84,

106, 108, 143, 171, 193, 195, 199of power, 1, 13, 32–33, 48, 50, 55,

102, 108, 155, 162, 169, 190, 199, 203–204

of printing, 83, 178–179see also executive, legislature, judiciary

250 Index

Montesquieu, Charles-Louis de Secondat, 8, 11, 44, 53, 63, 85, 91, 92–95, 98, 99, 100–102, 103, 104–105, 107, 108, 109, 111–115, 122, 128, 141, 142, 146, 149, 153, 156, 163, 175–176, 198

as forerunner of sociology, 114see also Spirit of the Laws

Moore Jr., Barrington, 110Mosaic Law, 57–59Moses, 57–59, 60, 70, 73, 76–77, 213n4“Moses Breaking the Tables of the Law”,

43–44Mount, Ferdinand, 175–177movable type, 84Mutiny on the Bounty, 38

Nazi regime, 111, 119–120, 155–156, 182, 184

Neale, J. E., 86Nebrija, Antonio de, 71Nedham, Marchmont, 85Neumann, Franz, 91, 141, 145, 155, 156,

210n12New Granada, 103New World, 12newspapers, 28, 108, 110, 120, 127,

151, 193Nile (Egypt), 55Nineteen Eighty Four, 108, 111Nino, Carlos Santiago, 158–159, 160nomothetic (social science), 2, 147Norman Conquest, 85North American Free Trade

Agreement, 195Nussbaum, Martha, 24–25

oligarchy, 63, 89, 114obligation, 88, 99O’Donnell, Guillermo, 126, 129, 139,

151–152, 177–178, 180–181, 216n5

Offi ce of Legal Counsel (United States Justice Department), 190

Old Kingdom (Egypt), 55–56On the Origin of Language (Rousseau), 97ontology, 15, 140, 196, 200orality, 107

balance with literacy, 28, 32, 48, 51, 60, 120, 186, 196

shift from, 51and the executive, 37, 42, 48, 121

Odyssey, 17see also Homer

Olson, David, 26, 32, 60, 211n6Ong, Walter J., 15, 26, 31, 211n2opposition, 131, 150, 175Orwell, George, 108, 111, 121, 214n10overlapping consensus, 152, 154

see also RawlsOxford English Dictionary, 5, 212n16

Papal Index, 81papyrus, 55, 62parliamentarism, 9, 14, 93, 99, 101,

118, 123, 133, 149, 150, 165–166, 173–177, 179, 206, 217n2

parliamentary supremacy, 91, 116, 174Parsons, Talcott, 29, 54, 56, 59, 213n6particularity, 170Pateman, Carole, 148patrimonialism, 178people of the book, 57, 68, 77Peru, 54, 74–75, 103Phaedrus, 211n9Pharaoh (Egypt), 56, 76Philadelphia, 102Phoenicians, 23Pinckney, Charles, 101Plato, 61, 74, 108Pocock, J. G. A., 19, 87political parties, 33, 111, 118, 121, 127,

129, 132–135, 180, 155, 176, 206, 216n8

Index 251

party discipline, 118, 176Politics (Aristotle), 53Politics as a Vocation (Weber),

116, 119polyarchy, 129–131, 139Polybius, 53, 66, 69, 81, 95, 101, 214Popper, Karl, 15, 18, 196, 200, 210n1positivism, 114, 124, 199, 201, 205–206legal, 143poweras a check on power, 8

balance, 8, 91–92, 113centralized, 6, 7, 27, 30, 32, 39, 48,

50, 52–55, 57, 67, 71, 76, 79–80. 82, 104, 106, 111, 119–120, 125, 132, 176, 192

federative (Locke), 91knowledge and, 13, 51, 56, 60, 67see also separation of powersmonopoly of power

practical wisdom, 185, 204, 207, 218n3Pravda, 121Preface to Democratic Th eory, A (Dahl),

128, 130pregadi (Venice), 93presidentialism, 14, 93, 100, 121, 135,

137, 149, 159, 165–166, 173, 175, 177, 179, 188, 192

presidential self-coup, see autogolpeprinting press, 3, 51, 77, 78, 83–86,

102–103, 110, 118, 125, 193, 198and bourgeois public sphere, 78and collective action, 28–31, 79and constitutionalism, 85–88, 165,

198–199and invention of linotype, 110and parliament, 41, 86and religious authority, 84as mother of revolution, 78–79censorship of, 83, 87connection to the rise of capitalism,

83, 103

contribution to independence movement in Latin America, 102–103

contribution to religious confl ict between Catholics and Protestants, 29

contribution to the spread of reading and writing, 13, 28–30, 41, 106

Cromwellian army, 87eff orts of monarchs to use and

control, 29–30, 79, 83invention of, 13rotary, 110state control of (Soviet Union), 121

propaganda, 13, 86, 111, 120–121, 123, 192

Propaganda Ministry (Germany), 121Protestants, 29, 70, 209n8

persecution of, 86see also church

Przeworski, Adam, 130–134, 138, 180, 216n10

public interest, 140, 162, 171, 174, 185–186, 197, 203

public opinion, 42, 78–79, 86, 103, 108, 110–111, 120, 122–123, 136, 160, 163, 180, 192, 195, 203, 206

public reason, 42, 78–79, 86, 103, 108, 110–111, 120, 122–123, 136, 160, 163, 171, 180, 192, 195, 203–204, 206

quarantia (Venice), 93quipus, 54, 75Quod principi placuit legis habet vicem, 80

Ra (Sun god, Egypt), 55“rachet eff ect”, 17–18radio (wireless), 120–121, 127, 193Rama, Angel, 5, 75–76, 212n14rational choice theory, 12, 134–139,

147, 205

252 Index

rationalism, 132–138, 143, 163rationalitycommunicative, 33, 47, 131, 156,

159–160instrumental or strategic, 156, 188,

170, 206–207rationalize, 41–42, 78–79, 109–110,

116–118, 156Rawls, John, 152, 154, 158, 212n15,

216n3rebus principle, 22

defi ned, 211n5Rechtsstaat, 123, 151, 155Regnum Italicum, 80Renaissance, 13, 67, 69, 77republicanism, 70, 82, 102, 112, 114requerimiento, 71–72reserve domain, 150RevolutionAmerican, 106

electronic, 193French, 7, 102, 106, 117Industrial, 109, 123, 139, 198

Ricoeur, Paul, 6, 27rights, 12–13, 17, 28, 46, 48–49, 98,

104, 106, 116, 119, 139, 150–151, 153, 155–156, 158–159, 178, 186, 195–197, 200, 203, 216n3, 217n5

constitution and, 48–49property, 112to read and write, 28, 78, 83, 110, 199

Roberts, J.M., 81Rodríguez, Simón, 103, 215n15Rohozinkski, Rafal, 193Rome, 53–54, 64–68, 78, 81, 84, 92,

105–107, 214nn11–12and constitutional theory, 78, 104, 107constitution, 11, 66, 101empire, 64, 66, 68state power, 95see also law, Roman

Rosanvallon, Pierre, 170

Rousseau, Jean-Jacques, 11, 30, 40, 95–98, 99, 102, 103, 105, 107, 152, 197, 211n7

See also Social Contractrulesabstract, 145

adjudication of, 147and practice, 144, 171, 196application of, 147 fi xed, 170formal, 24general, 40, 43, 48, 50–51, 58, 62, 90,

123, 136, 144–145 , 161, 170, 171, 174, 185, 196, 206, 215n10

implicit, 144legal, 33, 63, 146, 169, 185making, 99, 144, 147, 171moral, 67of language and grammar, 46, 89–90,

168, 204written, 1, 38, 56–57, 59, 202

Rumsfeld, Donald, 192Rushdie, Salman, 5

Sahagún, Bernardino de, 72Santo Tomás, Domingo de, 74Sartori, Giovanni, 150–151, 159“Scene at the Signing of the Constitution

of the United States”, 39–40Schmitt, Carl, 37, 111, 122–124, 126,

138, 139, 141, 155, 189, 190Schumpeter, Joseph, A., 14, 111, 124–

130, 134, 139–142, 143, 146–147, 149, 178, 180, 216nn5–6

see also democracyscripturalismdefi ned, 5, 27

and authority, 6, 80, 88and constitutionalism 51, 70and Hebrews, 57, 59and Rome, 66, 81and religion, 53, 59, 67, 77, 81, 88

Index 253

umbilical cord with metropolis, 75see also interpretation of texts

Searle, John, 20–21, 210n1self-interest, 73, 137, 203Senators (Rome), 104separation of powers

and class struggle, 109and collective action, 2, 8–9, 10,

46–48, 203and the division of labor, 114and literacy, 31–32and logics of argumentation, 33–34as emergent property 3as epiphenomena, 3, 109, 111, 114,

116, 139anti-democratic intent, 11–12“classic” theory, 149collective action and, 8–191, 46–49,

113–114, 166, 188, 203defi ned, 1democracy and, 14, 137doctrine of, 9, 11, 14, 70, 85, 91–95,

99, 100–102, 105, 107–109, 111, 113, 116–117, 122, 124, 141, 147–149, 152, 155–156, 160, 163, 174–175, 205, 210n10

functional, 147global, 195disabling majority rule, 206evolution of, 52, 106, 109, 115, 146, 200in Althusser’s thought, 113–114in Aristotle’s thought, 62, 93, 115in Durheim’s thought, 114–116in Hayek’s thought, 142–146in Kant’s thought, 98–99in Locke’s thought, 91in Marx’s thought, 111–114in Montesquieu’s thought, 93–95in Rousseau’s thought, 95–97in Schmitt’s thought, 122–124in the United States, 118international level, 186

“new” separation of powers, 169–173negative view, 10, 146, 188organizational guarantee of freedom

and equality, 153, 166positive view, 10, 190see also Althusser, Aristotle,

argumentation, collective action, Durkheim, Hayek, judgment, Kant, Locke, Marx, Montesquieu, Rousseau, Schmitt, social-cognitive theory

September 11, 2001, 187–189Shafi q Rasul v. George W. Bush, 190Shakespeare, William, 19Shapiro, Ian, 135Shirky, Clay, 194Shklar, Judith, 101signaling, 125, 205Skocpol, Th eda, 36Slaughter, Anne-Marie, 195–196Small, Christopher, 198, 202social-cognitive theory, 3–4, 12–14,

31–34, 49–52, 142, 148, 164, 165, 172–173, 182, 204

see also separation of powerssocial communication, 2, 23, 53, 165, 178social contract, 69, 78, 97, 99, 125, 135,

152–153, 164, 205Social Contract (Rousseau), 95Social Darwinism, 106, 143social forces, 92, 108–109, 114, 124,

139, 199social question, 107, 110–111socialism, 113–114, 126, 141, 156sociological theory, 92, 108Socrates, 24, 45–46, 61, 213n8Solon, 60–61, 65, 103, 214n12sovereigntyfeudal, 79

popular, 80, 81, 91, 107, 150in Rousseau’s thought, 95–97

254 Index

Spain (colonialism), 12, 53, 59, 71–76, 105

speech actfailures, 4, 9, 23, 26, 47, 49, 66, 121,

175, 197, 202–206illocutionary, 4–6, 21, 25, 58, 90performance of, 4, 19–22, 34, 49,

167–168, 175, 200–201, 211n4problems, 9, 21–22, 24, 26–27, 30,

47, 49–50, 121, 167–168, 170, 172, 175, 198, 204, 206

promises as examples of speech acts, 4, 20, 49, 168, 172, 200, 204

theory, 4, 20–22, 49Spencer, Herbert, 106Spirit of the Laws, Th e (Montesquieu)

92–93Stalin, 8stag hunt, 30stateadministration, 14, 30, 33, 36, 101, 107,

116–118, 146, 169–173, 188autonomy, 1, 33, 93, 98, 151–152,

154, 179, 215n1capacity, 1, 8, 10, 30, 33, 48, 54, 121,

139, 152, 154, 166–167, 179, 185, 188, 190, 192, 195

idea (Kant), 98institutions, 145–146legal-modern type, 117organ of social thought

(Durkheim), 115state of exception, 9, 14, 139, 166,

182–186see also emergency powers

state of nature, 16, 90Stein, Lorenz von, 122Stepan, Alfred, 122, 149, 150–151Stevens, Justice John Paul, 44structural functionalism, 147, 213n6supreme courtanti-majoritarian, 154

German, 156judicial review, 153powers, 8United States, 44, 190

Swift , Jonathan, 85

Tarrow, Sidney, 79TASS (telegraph agency), 121technology of communication, 32, 51,

119–120, 165–166, 193liberation technology, 194writing as technology of

communication, 54, 57, 58, 196telegraph, 110, 120–121television, 120–121, 193Temple of Ceres (Rome), 66Ten Tables (Rome), 65–66textualismdefi ned, 5, 27

and centralized authority, 6, 50see also interpretation of texts

Th ird Reich (Germany), 182Th omas, Rosalind, 24, 31–32,

60–61Th ompson, Dennis, 157Th ornhill, Chris, 170, 209n3, 210n10Tlatelolco seminary, 72, 75Toledo, Viceroy Francisco de, 73Tomasello, Michael, 17, 20Torah, 53, 57–58torture, 188, 190–191totalitarianism, 54, 95, 110–111,

120–122, 124–125, 142, 147, 155, 183 (see also dictatorship)

Tribune (Rome), 66, 104Trinity, Christian, 67Tully, James, 46Two Treatises of Government (Locke), 36tyranny, 70, 73, 87, 114, 122, 128, 133

Ulpian, 80Ulysses, 18

Index 255

United Nations, 192United Statesconstitution, 102, 105, 142, 187, 192,

195, 212n20, 218n8constitutional model, 102party machines, 118power, 192president, 118, 218n7

utilitarian, 127, 163, 197

Valerio-Horatian laws (Rome), 66veil of ignorance, 154

see also RawlsVenice, 93Verba, Sidney, 147–148Vessey, Mark, 81veto, 66, 91, 94, 102, 129, 177, 185veto players, 102, 215n10Vibert, Frank, 171–172Vile, M. J. C., 100, 129Visgoths, 68Vizir (Egypt), 55, 76, 212–213n2Voltaire, 103von Humboldt, Baron Alexander, 103

Waltz, Kenneth, 186–187“war” on terror, 12, 14, 166, 186–190,

218n2Warren, Mark, 163weapons

nuclear, 38, 189, 215n10

of mass destruction, 191–192Weber, Max, 41–42, 44, 80, 83–84,

108–110, 111, 113, 116–119, 120, 122, 126, 139, 141, 156

Weimar republic, 109, 116, 156, 179, 183

Weingast, Barry, 135Weiss, Bernard G. 58Wendt, Alexander, 35–36Westminster, 105, 217n2whistle-blower, 171, 203Whitehead, Alfred North, 157wikis, 193Wikileaks, 193Wildavsky, Aaron, 58Wittfogel, Karl, 55Wolin, Sheldon, 88, 154Woo, John, 165, 190World 1 (physical entities),

15, 201World 2 (mental states), 15, 201World 3 (constructs of the human

mind), 15–17, 187, 196, 200–201

World War I, 120World War II, 124, 147, 149Worms, Trial of Luther in, 84

Youtube, 193

Zakaria, Fareed, 154

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