Political Political Theory

Jeremy Waldron

• Publisher: Harvard University Press
• Year: 2016
• ISBN:
  9780674970366
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

Political institutions are the main subject of political theory—or they ought to be. Making the case with his trademark forcefulness and intellectual aplomb, Jeremy Waldron argues in favor of reorienting the theory of politics toward the institutions and institutional principles of modern democracy and the mechanisms through which democratic ideals are achieved.Too many political theorists are preoccupied with analyzing the nature and importance of justice, liberty, and equality, at the cost of ignoring the governmental institutions needed to achieve them. By contrast, political scientists have kept institutions in view, but they deploy a meager set of value-conceptions in evaluating them. Reflecting on an array of issues about constitutional structure, Waldron considers the uses and abuses of diverse institutions and traditions, from separation of powers and bicameralism to judicial review of legislation, the principle of loyal opposition, the nature of representation, political accountability, and the rule of law. He refines his well-known argument about the undemocratic character of judicial review, providing a capacious perspective on the proper role of courts in a constitutional democracy, and he offers an illuminating critique of the contrasting political philosophies of Hannah Arendt and Isaiah Berlin.Even if political theorists remain fixated on expounding the philosophical foundations of democracy, they need to complement their work with a firmer grasp of the structures through which democracy is realized. This is what political political theory means: theory addressing itself to the way political institutions frame political disagreements and orchestrate resolutions to our disputes over social ideals.

CHAPTER ONE

Political Political Theory

IT IS A question, said David Hume, “whether there be any essential difference between one form of government and another and, whether every form … may not become good or bad, according as it is well or ill administered,”¹ administered well by men of virtue—that is, people of good character, wisdom, and high principle—or administered badly by fools and knaves who know or care nothing for justice and the common good. “Were it once admitted,” Hume continued, “that all governments are alike, and that the only difference consists in the character and conduct of the governors, most political disputes would be at an end, and all zeal for one constitution above another, must be esteemed mere bigotry and folly.”² Hume imagined people who take that view adopting the maxim of Alexander Pope in the Essay on Man: “For forms of government let fools contest / Whate’er is best administer’d is best.”³

Institutions or the character of those who inhabit them? Should students of politics make a study of the one or the other? Both, surely, would be the obvious answer. They should understand something of political virtue and the demands that the requirements of good government make on the character of those who take on responsibility for public affairs, even if it is no more than the ethic of responsibility that Max Weber recommended.⁴ But maybe there is a special reason for studying institutions: to understand the ways in which institutional forms can be designed so as to outwit and outflank what Hume called “the casual humours and characters of particular men.”⁵

Political writers have established it as a maxim, that, in contriving any system of government, and fixing the several checks and controuls of the constitution, every man ought to be supposed a knave, and to have no other end, in all his actions, than private interest. By this interest we must govern him, and, by means of it, make him, notwithstanding his insatiable avarice and ambition, co-operate to public good. Without this … we shall in vain boast of the advantages of any constitution, and shall find, in the end, that we have no security for our liberties or possessions, except the good-will of our rulers; that is, we shall have no security at all.⁶

The idea that we can devise structures and processes to balance the self-interest of men against one another to promote the common good, even when that is not the prime aim of the individuals whose political habitat we are designing, is familiar to Americans from James Madison’s discourse about the separation of powers in The Federalist Papers:

Ambition must be made to counteract ambition.… It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.⁷

It is anticipated precisely in the Humean essays I have been quoting from, written a generation earlier than Madison.

1. CHOICES FOR POLITICAL THEORY

One of the places in which Hume pursued the considerations I have mentioned is in an essay devoted to the question of whether politics may be reduced to a science. Hume seems to have believed that political science would be impossible if everything depended on individual character. There would be no political science, just bedside biographies. Fortunately for the scientist, however, “the force of laws, and of particular forms of government” is so great and has “so little dependence … on the humours and tempers of men, that consequences almost as general and certain may sometimes be deduced from them,” such as those we can deduce in the natural and mathematical sciences.⁸

Hume was talking about political science, but similar choices have to be made in political theory. As theorists of politics, where should we direct our philosophical attention? Should we focus on institutions? Or should we focus on the virtues—looking, for example, to test Machiavelli’s claim that politics demands a set of virtues quite different from those extolled in the Christian tradition,⁹ or the claim of some political theorists that republican and democratic forms of government cannot survive without the prevalence of certain virtues of self-restraint among the politically active section of the population.¹⁰ Is the republican claim correct? Or is there a version of the Hume/Madison thesis for subjects as well as their rulers? Can we design the institutions of our modern democracy in such a way that its constitution can survive the corruption of the people, their obsession with material wealth, and their revealed unwillingness to sacrifice anything for their country? What matters—structures or character, institutions or virtue?

2. THE DOMINANCE OF JUSTICE

Or is there a third choice? Maybe our main focus ought to be not on virtue, not on institutions, but on the aims and ideals that direct our politics. I mean ideals such as justice, equality, human rights, toleration, liberty, prosperity, wealth maximization, and the common good. Perhaps we need to replace Hume’s dichotomy with a tri-chotomy, so that the question now is whether we should direct our theoretical energy to questions about (1) the individual virtues that good governance requires, (2) the political institutions that are needed in a good society composed of humans rather than angels, or (3) the ends and ideals that a good society should be seeking to promote.¹¹ I think it is fair to say that, for some time now, the main focus in political theory has been on (3), the ends and ideals that a good society should seek to promote.

Indeed, an enormous amount of energy has been devoted and is being devoted to normative argument and conceptual analysis about the ends of political action—beginning most prominently with John Rawls’s detailed and articulate theory of justice, published in 1971. Rawls’s work has inspired a whole industry comprising thinkers as diverse as Robert Nozick, Ronald Dworkin, Amartya Sen, Michael Walzer, and G. A. Cohen.¹² All of this is focused on topic (3), the aims and policies of a good society and the basic structure of its political economy; precious little attention is paid in the justice industry to questions about political process, political institutions, and political structures.

I want nothing I say here to be heard as denigrating the study of justice and equality. I have contributed to that project myself, including an article exploring and defending the idea of the primacy of justice among the values that may be explored in political philosophy.¹³ But I worry nevertheless that this emphasis on justice as the key topic of political theory is a little one-sided.

3. ISAIAH BERLIN

Sometimes it seems that political theory is understood as just applied moral philosophy—as it seems to have been, for example, in Isaiah Berlin’s understanding. Asked in a 1997 interview a few months before his death “What do you think are the tasks of political philosophy?” Berlin replied: “To examine the ends of life.”¹⁴ And he added that “[p]olitical philosophy is in essence moral philosophy applied to social situations.”¹⁵ True, he went on to say that the social situations to which moral philosophy is applied “of course include political organization, the relations of the individual to the community, the state, and the relations of communities and states to each other.” But he gives no indication that these are worth study in their own right.¹⁶

The business of political philosophy is to examine the validity of various claims made for various social goals, and the justification of the methods of specifying and attaining these.… It sets itself to evaluate the arguments for and against various ends pursued by human beings.… This is the business of political philosophy and has always been such. No true political philosopher has omitted to do this.¹⁷

In fact, Berlin himself undertook a rather larger agenda than this, looking not just at the ends of life but at broad zeitgeist issues such as the clash between romantic nationalism and human individualism,¹⁸ and big-picture diagnosis of the pathologies of certain general currents of thought about man in society. Again, I don’t want to convey the impression that any of this is unimportant. But I do think there are problems with Berlin’s specification of this agenda for political philosophy.

To read almost any of Berlin’s work is to read essays that are resolutely uninterested in the political institutions of liberal society. Beyond airy talk of freedom and openness, Berlin was simply unconcerned with the ways in which liberal or democratic political institutions might accommodate the pluralism he thought so important in human life.¹⁹ Invited by his interviewer to consider “What possible support can your theory of pluralism give to the problem of democracy?,” Berlin simply repeated the commonplace that “[d]emocracy need not be pluralistic,”²⁰ indicating, by an immediate focus on the prospect of the tyranny of the majority, how his understanding of political theory had inherited philosophy’s ancient grudge against democracy nurtured since the trial and execution of Socrates.

4. REALISM VERSUS MORALISM

So is that it? Is political philosophy just a study of the ends of life? Very recently, we have begun to get glimpses of a different approach, in some of the essays that Bernard Williams wrote toward the end of his life. I have in mind Williams’s critique of what he called “political moralism,” of the alleged “priority of the moral over the political,” the application of what is essentially moral philosophy to the resolution of social issues.²¹

But Williams’s alternative was to turn away from moral ideals and to look for distinctively political ideals, such as security. He was interested in the relation between legitimacy and what he called “the ‘first’ political question,” Hobbes’s question about “the securing of order, protection, safety, trust, and the conditions of cooperation.”²² Williams was helping us cultivate or recall a sense of different and distinctive ends for politics—different from justice, for example.²³ Alas, his was not an attempt to locate the distinctive subject matter of political theory in the realm of political institutions.²⁴

5. TOPICS AND PRINCIPLES

It is time to lay my own cards on the table. I think institutions are massively important. Exactly because we disagree in our ethical and political aims, we need to inquire into the structures that are to house and refine our disputes and the processes that are to regulate the way we resolve them. I mean the processes by which we (in our millions) resolve disagreements over disparate aims that we severally regard as fundamentally important—without degenerating into fighting driven either by self-interest or worse still by the militias of self-righteousness.²⁵

First and foremost, we need to understand the foundations of democracy, but not just democracy in a crude, undifferentiated sense. As Nancy Rossenblum has taught us, we need to understand democratic representation and political parties.²⁶ We need to understand the different ways in which the institutions of a modern political system are democratic, theorizing the difference between a representative legislature, an administration headed by a directly or indirectly elected government, and courts in a democracy. We need to appreciate the differences between different sorts of elected officials: an elected president, elected lawmakers, and even, in some U.S. states, an elected judiciary.

But it is not only democracy. It is our responsibility as theorists of politics to reflect on a broader array of issues about constitutional structure. I mean traditional, even fuddy-duddy, topics that I worry we have lost sight of in British political theory:²⁷ federalism and devolution; the choice between a unicameral and a bicameral legislature; sovereignty; the separation of powers; checks and balances; the independence of the judiciary; the principle of loyal opposition; and the rule of law. Those are the big principles, and there are a bunch of lesser ones too, like civilian control of the military (think of S. E. Finer’s great book The Man on Horseback),²⁸ the separation of church and state, constitutional monarchy, and the neutrality of the civil service.

All of this, I believe, is important for us as political theorists to study and write about. Even if our main preoccupation remains with justice, liberty, security, and equality, we still need to complement that work with an understanding of the mechanisms through which these ideals—these ends of life—will be pursued. This is what I mean by political political ...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Preface
• 1. Political Political Theory
• 2. Constitutionalism: A Skeptical View
• 3. Separation of Powers and the Rule of Law
• 4. Bicameralism and the Separation of Powers
• 5. The Principle of Loyal Opposition
• 6. Representative Lawmaking
• 7. Principles of Legislation
• 8. Accountability and Insolence
• 9. The Core of the Case against Judicial Review
• 10. Five to Four: Why Do Bare Majorities Rule on Courts?
• 11. Isaiah Berlin’s Neglect of Enlightenment Constitutionalism
• 12. The Constitutional Politics of Hannah Arendt
• Notes
• Index