Chapter
13
Aux murs
de Westminster on voit paraître ensemble
Trois
pouvoirs étonnés du noeud qui les rassemble,
Les
députés du peuple, et les grands, et le roi,
Divisés
d'intérêt, réunis, par la loi;
Tous trois
membres sacrés de ce corps invincible,
Dangereux
à lui-même, à ses voisins terrible.[1]
In the remaining pages
of this
book we intend to shade in the contours of political institutions on
the canvas
just completed. We propose to begin at the encompassing heights of the
state,
slope down to "the people," then, in the next chapter, curve our way
back through political participation and parties to government and
state,
keeping in view the flux in which their current runs. In this excursion
we must
be conscious of our earlier coverage of such areas as interests or
values,
power or authority, norms or symbols, individual or group, sovereignty,
bourgeoisie,
or nationalism. The
following pages are only an exercise in this consciousness, not an
exhaustive
"systematic" or "classical" treatment of political
institutions. Their aim is to render the reader sensitive to reflecting
an the
elemental realities of politics within the flux he has been exposed to
so far.
It was in that spirit that, at the outset, we called our approach
"formative."
*
*
*
To materialize its
abstract
sovereignty, the state relies on structures and political institutions.
Even an
absolute monarch claiming to be the state cannot run the country
single-handedly. To be able to make good his claim, he needs a
government. He
may indeed embody--symbolize--the state and run the government as well,
as did
the tsars of Russia and some of the enlightened despots of
eighteenth-century
Europe. So did Henry VIII and Elizabeth Tudor of England. But as we
saw, in
England the business of government slowly slipped away from the
monarch, and as
it evolved, the distinction between the state and the government became
more
apparent.
In our earlier
analysis of
sovereignty we noticed that as we moved from consecration to
constitutionalization,
sovereignty moved from above, from God and the king, down to the
people. The
sovereignty of the people, we added, is itself as much of an
abstraction as is
divine sovereignty. It needs symbols and rituals so that the people
themselves
can grasp it, and it needs a depositary which will ultimately
personify that
sovereignty. Finally, as a body politic it needs the functional
substance of a
government. Rousseau's general will is not an operational formula. Even
a
city-state which constitutes itself as a sovereign body needs some who
formulate the laws, see to it that they are implemented, and ensure
that
deviations are corrected and punished.
We see thus two
essential
factors in a body politic. One is the state, an all-encompassing
political
concept enfolding the other, the government, with the latter making the
former
a working reality by providing its functional substance. As the
depositary of
sovereignty, the state and its embodiment are the ultimate symbols of
that
sovereignty, while the government is, so to speak, only the political
instrument of the sovereign state.
I.
The State, Its Head
and the
Government
As we saw in the last
chapter,
in its evolution in nineteenth-century Europe, the state came to be
closely
identified with the nation. Nation in turn, as a concept, was built as
the
political manifestation of a culture. From our brief reference to the
newly
independent countries, however, we gathered that nation and state, one
as the
political manifestation of a culture and the other as
the embodiment of a political culture, do not always
coincide. If you ask what he is, a Kurd from Iraq is likely to
designate
himself as a Kurd rather than an Iraqi, although for international
legal
classification you may have to list his nationality as Iraqi because he
carries
a passport issued by the Iraqi state. In Western Europe, where the
nation-states are more integrated, a person carrying a German or
French
passport outside his country will most
likely identify himself as German or French. But if you ask him within
his
national territory, he may identify himself by a region, such as
Bavaria or
Brittany, as distinct from the rest of the nation.
The consciousness of
distinctive identities within a state influences the nature
and constitution of a state. It poses the basic question of
the ultimacy of a state as the depository of sovereignty and recalls
our
discussion of the conversion of power into authority. Regional, ethnic,
religious or linguistic particularisms, like economic and social
classes,
manifest interest/value patterns which, as power constellations,
combine,
interact, compromise or acquiesce in shaping the pattern of authority.
The
state is a state--a sovereign state and a political reality--in so far
as it
represents and controls (or if it does not represent at least it
controls) the
different economic, social, legal, territorial and ethnic segments over
which
it claims sovereignty. The Austro-Hungarian empire before World War I
encompassed (was sovereign of) Czechoslovakia. That was not the case
after
World War I. The British kingdom was sovereign of the American colonies
up to
the Revolutionary War, but not after. The Russian tsardom was sovereign
of the
Russian people, including the workers and peasants, up to the October
Revolution. After that Russia's sovereign was the Soviet state.
The state, as the
ultimate
political embodiment of sovereignty, is also (in whatever way it is
personified) the ultimate arbiter among the different segments of
which it is
the political symbol and reality. When one body of a federation, or a
region of
a unitary state, brings a grievance to the federal or unitary sovereign
body,
the sovereignty of the state remains effective to the extent that it
accommodates those grievances within its own framework. But when some
part of
the sovereign state tries to secede and calls on other sovereign states
for
recognition and help, to the extent that it succeeds, the sovereignty
of the
original state diminishes. Thus, for example, in a long struggle
involving
negotiation as well as open conflict, the Republic of Ireland gained
independence from the United Kingdom. A century earlier the British had
helped
the Greeks break away from the Ottoman empire. More recently, Biafra
tried to
secede from Nigeria but failed, while Bangladesh succeeded in becoming
independent of Pakistan.
When the economic,
social and
political class structures evolve within a sovereign state, if the
nature of
the body politic evolves to reflect the new economic and social
realities, the
sovereign state can secure continuity. This may--and does--imply shifts
in the
exercise of sovereign functions. If this is to happen without
disruption of the
state's sovereign structure-without a revolution--the embodiment of
state
sovereignty should be so constituted as to play the arbitrating role
above
particular interests--even its own! We saw, for example, how with some
ups and
downs the British system came to accommodate conflicting interests and
classes
within a constitutional monarchy where, while the functional mechanisms
of
control and exercise of sovereignty gradually slipped out of the hands
of the
monarch and into those of a government receiving its authority largely
through
the electoral process, the monarch remained the symbol and supreme
arbiter of
the state's sovereignty. The British monarch's arbitral role as head
of state
is not altogether symbolic, and cases may arise where the monarch's
exercise
of royal prerogatives as supreme arbiter is necessary. (It is true,
however,
that they have not arisen very often in modern England.)[2]
The more the
functional
machinery of government is distinguished as separate from the head of
state and
the more it constitutionally and actually runs the affairs of state,
the more
the head of state becomes a symbolic personification of
the "national" sovereignty with merely
ceremonial and ritual office. The office of head of state, even for
purely
symbolic purposes, is, however, the usual way of personifying sovereign
states.
It represents the affectional premises and symbolic dimensions
discussed in our
earlier chapters in terms of political culture. Of course, the more the
society
approaches modern material rationales of social organization, the less
political affectional dimensions will need symbolic personification,
and the
more the head of state will be overshadowed by effective functional
political
institutions and relegated to ceremonial roles, especially where a
modern head
of state represents no
deep-rooted traditional stature. Such is the case in the more recently constituted republics. The
chancellor (the prime minister) is more prominently in view in the
German
Federal Republic than the federal president.
The United States
Constitutional Convention of 1787, newly freed of British sovereignty,
was
averse to a supreme authority, which it viewed as the evil exercise of
governmental powers by an inadequately controlled sovereign (although
in
England of that time, as we saw, the Parliament was gaining control).
Yet it
was also weary of the chaotic confederate government of the 1780's with
its
insufficient executive machinery. Thus, while vesting the legislative
powers in
a Congress, the executive powers in a president and the judicial power
in one
Supreme Court and other inferior courts, the Convention did not
specifically
provide for the sole symbolic personification of United States
sovereignty.
Yet, by virtue of some of its attributes and its being the sole
nationally
elected office, the presidency of the United States evolved to
accumulate the
functions of the head of the executive branch of the government and
some of the
features of the head of state.[3] In the course of American history
presidential power has fluctuated, depending on the circumstances and
the
personality of the incumbent. The United States presidency is a vivid
example
of the complex parameters of power and authority we have been
discussing, and
of the separation of powers we shall be discussing later. The
accumulation of
the symbolic functions of head of state and head of the executive
branch have
at times permitted a president to claim certain privileges in the
exercise of
his executive functions by evoking his stature as head of state. The
most
recent and probably the most flagrant use of this executive privilege
was
Richard Nixon's handling of the Watergate case.
The American
presidential
system is, however, a reverse of such cases as the monarchies discussed
in the
last chapter, where the head of the state as the embodiment of state
sovereignty controls the government and arbitrates the political
affairs of the
realm. The president of the United States is functionally the head of
the
executive branch of government and as such is responsible to the other
two
branches in a three-way separation of powers and checks and balances.
His
attributes as head of state have been rather circumstantial, developing
because
of his unique position to play arbiter in certain national problems,
and to
meet the requirements of international intercourse with other sovereign
states
which are personified by heads of state. In the overlap of state
personification and governmental control we can thus discern two
trends: One
starts with an absolute monarchy, with the functions of government
eventually
moving away from the monarch, leaving him finally with the traditional
and symbolic
title of head of state. The second is that of the functional
governmental
arrangements like those of the United States, where the symbolic
personification of the head of state was to be confined to the bare
minimum but
gradually gained stature. Between the two we find a wide spectrum of
possible
combinations in the representation and exercise of sovereignty.
Many countries today
have
constitutionally adopted the presidential system of government.[4] However, in different total environments,
their political experiences have not been similar to that of the United
States.
In many cases the accumulation of the attributes of head of state and
chief
executive in one person has resulted in regimes where checks and
balances among
the branches have not functioned to the letter. This, of course,
reverts us to
all the complexities of the social flux we have examined in our
previous
chapters. But in the present context, it leads to the more basic
political
theories underlying political culture.
Monism
or "Confusion" of Powers
Hobbes' argument for a
Leviathan, an individual or an assembly as the sole source of law and
order,
was that social organization essentially sought order, which could be
unequivocal and therefore most efficacious if it came from one supreme
body.
This, in many instances, is the basis for the popular acquiescence in
the
exercise of governmental authority. It corresponds to the attitude of
those
who, as we discussed, rather than seeking power, submit to it for
security and
livelihood. The supreme order thus instituted is expected to promulgate
laws,
maintain order and prevent social disruptions caused by conflicts of
particular
interests. It also involves the belief that authority invested without
restrictions can bring out the best in the ruler, as absolute power can
render
him magnanimous.
However, we noticed
that power
can spiral in the sensation of domination for the sake of domination
and that
want is an expandable human characteristic; and even if the supreme
authority
has access to all sources of its satisfaction, it can generate new
wants. We
also saw that philosopher and king seldom cohabit simultaneously the
same body.
Despite all these handicaps, monism, i.e., organization of the
political
culture on the basis of one source of authority, has an application and
at
times a justification--especially where the monist authority structure
is
instituted not simply to establish order, any order, but to create a
given kind
of order; i.e., it has a value premise. Indeed, from our discussion of
legitimization
of power into authority, we may conclude that an authority would not be
authority--but rather power--if it were not bound by some value pattern
justifying the order it establishes. Thus a theocracy, an absolute
monarchy
based on divine right or tradition, or a one-party rule based on a
particular
ideology, is a monist constitutional form. Such rules have, in essence,
the
potentials for dictatorships in that they can dictate a given social
order.
A dictatorship in the
monist
sense can be envisaged as an interim even in pluralist forms of
government.
Many constitutions provide, in one form or another, for the possibility
of
interim "dictatorships" under exceptional circumstances. In ancient
Rome, dictatorship was constitutionally provided for limited periods to
meet
emergencies such as invasions or social disorder. The danger is that,
at times,
the dictator might wish to prolong and perpetuate his power. But there
was also
the case of Lucius Quinctius Cincinnatus, whom the Romans called from
his farm
in 458 B.C. to become dictator and lead the Roman army against the
Aequi. He
did so successfully, and after defeating the invaders returned to his
farm. In
modern terms there are cases of national emergency when a government,
usually
the executive branch or head of state, is given exceptional powers (as
are
granted to the French president in Article 16 of the Constitution of
the Fifth
Republic), or when martial law is proclaimed and constitutional
processes are
suspended. Monism, in its pure form, is likely to be temporally and
spatially
confined. The handicap in the pure and general application of monism
arises
from the human and social factors so far reviewed, notably in our
discussion of
social semantics. Absolute power corrupts more often than it purifies
itself or
renders its holder wise, humble and impartial. And it contains the
germs of
resistance as we saw in Chapter Ten: Not all people at all times opt to
have
their security and livelihood provided and remain apathetic to exercise
of
power by others.
A monist political
culture, by
implication, cannot afford diversified approaches to the theory and
practice of
government as can arise, as we have seen, from diverse interests and
classes.
The monist regime needs isolation from factors which can produce
diversity,
and/or it should keep a strong and constant indoctrinating social
pressure.[5] These characteristics can qualify as
monist
such unlike regimes as the Tibetan Lamaist theocracy which survived
until
recently, the theocracy of the Pope at the Vatican, the Islamic
absolute
monarchy of Saudi Arabia, and the socialist republics dictatorially
striving
for communism.[6] Monism in the sense of oneness does not, of
course, necessarily imply the rule of one person alone, but rather the
oneness
(unity) of the source and exercise of sovereignty, state and
government. In
that sense the Rousseauan general will can also qualify as a monist
theory
because it admits of no exceptions.
*
* *
Monism in theory and
practice
implies the concentration and "confusion"[7]
of the sources of sociological needs of the group members. In Chapter
Two we
talked about these sociological needs which are part of man's drives,
qualifying him as a political animal. As we pointed out, the individual
may
feel, consciously or unconsciously, or be habituated to feel, that
social life
provides some liberty of action which he could not have in the
hypothetical
state of nature, and that the joining of efforts in a society expands
the
individual's possibilities. We also noted that for this to happen
efficaciously, at least a modicum of order and justice is needed,
defining and
confining people's liberty of action. These needs, politically
speaking,
correspond to the branches of government identified as the legislative,
the
executive, and the judiciary:
--The legislative,
by making the laws, provides the pattern within which liberty
of action can develop and also
delineates where an individual's
liberty of action
should stop
in order not to trespass on that of the others.
-- The executive,
by-establishing order,
sees that the laws are respected and
implemented.
-- The judiciary
redresses and punishes deviations from the laws and
promotes justice.
In a monist--or
monolithic--regime, these powers are confused into one authority. Not
that the
authority itself is confused about the nature of the different
functions. It
may indeed have distinct departments to deal with each. Even an
absolute
monarch may know when he is promulgating a law, executing it or judging
by it.
The confusion arises when those subject to the authority want to
distinguish
the branches but cannot. Such a need may arise when the members of the
society,
aware that some of their sociological needs are hampered or
unfulfilled, want
to appeal to or identify the responsible authority to ask for amends;
or claim
a say in the government's operation. They may, for example, find the
laws
partial to certain interests, classes or regions; the execution of the
laws
arbitrary; or the legal system biased. If the authority structure were
totally
monolithic, there would, of course, be no recourse to the judiciary
over abuse
in execution of the laws. Those under the authority are subject to a
hierarchical process providing no alternative channels of recourse.
When a
member of society is slighted by a tax collector, for example, he does
not go
as a matter of course for redress to a court as a separate, autonomous
branch
of government.[8] If he has courage and is not intimidated by
government machinery altogether, he may appeal to the official's
superior,
where he will be at the mercy of the bureaucracy.
Pure monism, except in
a
closely knit group with manageable direct control, is hard to practice.
Even in
a political culture like the Soviet Union, where all three branches of
government, although organized separately, are actuated by the
socialist
legality of the Communist Party, cases may arise where one branch
censures
another. However, when a monist process functions strictly, censure
between its
different branches is not usually based on the merits of the case under
review,
but has a view to correct deviations from the original all-encompassing
order
by any branch. It is more likely that the agencies of a monist order
would
uphold each other--and ultimately the doctrine, dogma or ideology which
is the
source of their actualization--rather than weaken their cohesion by
raising
criticism or doubt toward any of them. Here again, of course, we are
talking
about a hypothetically pure system. If pure monism were possible, it
might even
have been admissible. But it should be conceived in the light of human
and
social realities. This leads us to the other possible form of political
organization--pluralism.
II.
Pluralism
Pluralism as a concept
of
poltiical organization draws inspiration from two rather contradictory
assumptions. On the one hand, it is based on the dubiousness of
impartiality
and magnanimity in a monist authority. It therefore assumes that human beings, individually or collectively,
should not trust, or be entrusted with, absolute power. As John
Adams put
it:
A
single assembly is liable to all the vices, follies and frailties of an
individual; subject to fits of humor, starts of passion, flights of
enthusiasm,
partialities, or prejudice, and consequently productive of hasty
results and
absurd judgments. And all these errors ought to be corrected and
defects
supplied by some controlling power.[9]
Pluralism therefore
propounds checks and balances within the authority
structure. On the other hand, pluralism claims more dignity and
individuality
for the members of society than do the regimented monist structures,
implying
that a wider popular participation in
the political and social processes can better reflect the people's
overall
reasonable judgment as to what is good for them and result in a happier
and
more stable political culture.
These two dimensions
of
pluralism--checks and balances and popular participation--are distinct
and may
or may not coexist, in which case pluralism may or may not be achieved.
For
example, the Holy Roman Empire of the middle ages clearly provided
checks and
balances in the body of the temporal and spiritual authorities. But it
was more
dualism than pluralism in terms of popular participation. As for
pluralism, the
Rousseauan body politic based on the general will can be distorted and
would
deteriorate, without checks and balances, into a monism like the
assembly
depicted by Adams and the tyranny of the majority. To be pluralistic,
then, a
political culture should combine checks and balances with popular
participation.
In Western political cultures since the eighteenth century, pluralism
has
mainly taken the form of checks and balances among the separate
executive,
legislative and judicial powers, combined with the parliamentary
electoral
system serving as the channel for popular participation and providing
an
additional check on the government.[10] This
combination, however, is neither the
exclusive. nor the inclusive way of bringing about a pluralistic
political
culture. Further, an effective pluralism requires certain
qualifications and
favorable social conditions--or total environment.
Separation
of Powers
Pluralism depends on
such basic
questions as how and why the powers are separated, who separates them,
and what
they are composed of; and it also depends on who votes, how he votes,
and what
he votes for. The combination of answers to these questions offers a
wide
spectrum of possible and imaginable political cultures and forms of
government. Here, however, we are concerned with the criteria that
make different
combinations possible.
We have already
provided
schemes for some of these combinations--for example, the
legislative/executive/judiciary pattern of separation of powers. But we
have
also mentioned the medieval temporal and spiritual separation,
suggesting that
powers need not be separated along legislative, executive and judiciary
lines.
It is assumed that separation provides checks and balances because the
separated bodies have different yet overlapping areas of competence.
Thus, for
example, the business of legislative deliberation is distinct from its
interpretation for adjudication in a court, which in turn is distinct
from law
enforcement by the executive. Yet the legislative makes laws which
affect the
executive and the judiciary; the executive in enforcing the law by
implication
interprets it; and the judicial branch in its adjudications gives the
law a
particular orientation, which is poured into the body of jurisprudence
and
becomes part of the social flux, in the long run influencing both the
legislative and the executive.
The degree of harmony
among the
branches depends on how jealously they guard their prerogatives or how
readily
they concede to overlappings. This leads us to question the source and
composition of the branches; i.e., who chooses and separates them and
of whom
are they composed? Would the fact that the branches of government are
separate
and subject to direct and indirect popular electoral sanction
necessarily imply
that they will cling to their prerogatives and feel independent of each
other,
or, for that matter, even effectively check and balance each other? If,
for
example, the electoral process is controlled by a given class, by
reason of
material resources or traditional rights, so that a class or a few
classes (an
oligarchy) with like interests and outlooks control the different
branches of
government, would the separation of powers not become only a nominal
fiction?
Indeed it might, and that suggests that a polity is not only a set of
institutions but the realities of a political culture.
Yet our earlier
studies of such
topics as group dynamics, radius of identification, and power could
lead us to
another observation: that people put in particular positions with
distinct
prerogatives, even if issuing from the same monolithic authority,
develop
angles of vision which may compete; with one another on the basis of
interests
generated by their position. Thus, even the judges and officials in a
monolithic regime could compete and check and balance each other. Their
competition,
however, may or may not favor the bulk of the population under their
jurisdiction and control. Where the monolithic structure is potent, the
competition and checks and balances of different segments of government
will,
as pointed out, help keep the regime in better control of its organs,
as was
the case in Nazi Germany. When the monist system falters, as it did in
the
French absolute monarchy under Louis XV and XVI in the eighteenth
century, the
different segments of government may compete for power and narrower
self-interests, handicapping the regime both by adulterating it and by
reducing
its capacity to provide social order (its positive aspect as far as the
population is concerned). Pluralism strives to harness this checking
and
balancing potential of separate powers to serve the public interest by
grafting
it to the sovereignty of the people through the electoral process.
But if it is true that
separate
branches of government check and balance each other because of the
inherent
distinctiveness and overlapping of their prerogatives, is it necessary
that all
spring directly from the popular exercise of sovereignty? Would it not
suffice
if only some of them were directly invested by people's choice and
others
separated from each other by some constitutional processes?
Fusion
and Indirect Separation of Powers
Some constitutional
arrangements avoid direct popular elections and investiture of certain
branches
of government on the assumption that they will check and balance each
other as
long as they are separated at some stage of their organization. A
recent
confirmation of this assumption was the unanimous vote of the U.S.
Supreme
Court in U.S. vs. Nixon (1974),
denying Nixon's claim of executive privilege in withholding evidentiary
tapes
from the special prosecutor in the Watergate case. Three of the judges
were
Nixon appointees, one of whom disqualified himself from the vote while
the
other two voted with the rest of the judges against Nixon.
In Britain the only
national
body directly elected by popular vote is the Parliament, of which the
executive
is the issue, while the judiciary is headed by the Lord Chancellor, who
is a
member of the Cabinet and presides over the House of Lords. Yet, while
all the
judges and magistrates (except those of Lancaster and Scotland) are
appointed
by and on the advice of the Lord Chancellor, once appointed they enjoy
the
security of tenure "during good behaviour subject to a power of removal
by
His Majesty on an address presented to His Majesty by both Houses of
Parliament”[11]
--a power which has never been used. The executive and the judiciary
are thus
not direct issues of popular deliberation. While the executive is fused
with
and remains responsible to the legislative, the independence of the
judicial
from other branches is guaranteed by what amounts to tenure for life of
the
judges. More important than the inviolability of the judges is the
autonomy,
independence and tight organization of the British legal profession
from which
the judges are selected.[12] In the United States, while the legislative
body as well as the executive head are elected by popular suffrage,[13]
the judges of the Supreme Court are appointed for life (holding their
offices
during good behavior) by the president, by and with the advice and
consent of
the Senate.
In France under the
Fifth
Republic, with a mixture of presidential and parliamentary cabinet
constitution, the president and the National Assembly are elected by
popular
vote, while the judiciary is organized by the executive, with the
president as
the guarantor of judicial independence. The president presides over the
Supreme
Council of Judicature (le Conseil
supérieur de la Magistrature), whose nine members he designates.
The
Council makes proposals for nominating the judges on the Court of
Cassation (Cour de Cessation)--the highest appeal
court in the country. As for checks and balances, however, the French
judiciary
is part of the civil service. When the French citizen is in litigation
with the
executive branch, he addresses himself to an administrative court (tribunal administratif) composed of
civil servants. These tribunals, more often than not, render judgments
against
the government agency which is party to the case and in favor of the
citizen.[14] Thus, by instituting a "legal"
sector within the executive as the arbiter between the other executive
sectors
and the citizens, the purpose of checking the executive seems to have
been
achieved.
Such tribunals do not
seem to
correspond to the Anglo-Saxon political cultures. When an American or
British
citizen is aggrieved by the executive or its officials, beyond the
claim he can
make directly to the executive agency concerned, he brings his case,
like any
other, to the courts of the judicial branch and sues the executive
branch and
its officials.[15] These are cases of checks and balances
created without direct popular deliberation, but through the
combination and
fusion of the branches:by having some institute the others (the
executive by
the legislative in the United Kingdom, the judiciary by the executive
and the
legislative in the United Kingdom and the United States) and yet
providing them
with their own areas of competence, autonomy and responsibility.
We should underline
here the
distinction between indirect separation of powers and fusion of powers.
The
former, although bypassing direct elective processes, nevertheless
establishes,
through the cooperation and interaction of other existing (and often
directly
elected) branches, another additional branch which then becomes,
broadly
speaking, autonomous. The U.S. Supreme Court (with the seldom used
impeachment
prerogatives of the creating branches) and the judiciary in the United
Kingdom
are examples. Fusion, as in the classical British executive/legislative
model,
implies that one branch emerges from the other and, broadly speaking,
remains
responsible to it.
Our examples of
arrangements
for instituting the judiciary imply certain assumptions going far
beyond simple
constitutional structures and reflecting the basic philosophical
realities of
given political cultures. The security of tenure and inviolability of
the
judiciary implies that once the judicial body is independent of social
and
political pressures and temptations, it can provide the impartiality an
arbiter
should possess. But that independence should be truly inviolable to be
effective. For example, if the legality of the constitution were not
respected,
the executive or the legislature, reflecting its own interests (or
those of
other social pressure groups) might, if it were displeased with the
judgment of
a court or a jury, exert pressure over that body, making the immunity
of the
legal body an empty letter. Such pressures are indeed exerted at times,
and to
the extent that they are effectively exerted, equity within a polity
remains to
be desired. Granting immunity and irrevocability to judges also assumes
their
integrity and good personal character, which takes us back to all the
premises
of values and moral and ethical norms and their reflection in legal
norms that
we discussed earlier. The more there are occasions for the executive
and/or the
legislative (depending on the country's constitutional structure) to
question
the judges' good behavior, impeach them and remove them from office,
the weaker
and the more doubtful the autonomy and integrity of justice may become.
The fact that the
efficacy of
constitutional provisions for checks and balances among the different
branches
of government depends on the realities of political culture and of
culture in
general, is more obvious in areas where the executive is controlled by
the
legislative and the judiciary. The executive branch, by definition, has
the
means of execution. To keep the use of its means within the bounds of a
pluralistic, constitutional legality requires the observance of certain
social
and political standards on the part of the executive, vigilance and
intentness
on the part of the legislative and the judiciary, and political
awareness on
the part of "the people."
The Constitution of
the United
States reflects, for example, the concern of the founding fathers to
keep the
more potent of the executive means --the armed forces -- under
legislative
control. While the president of the United States is commander-in-chief
of the
armed forces, it is the Congress that raises and supports the army,
maintains a
navy, and calls forth "the militia to
execute the laws of the Union, suppress insurrections and repel
invasions" (italics mine). History attests, however, that
constitutional
provisions are not enough. There are pulls and pushes even within
countries
with long constitutional traditions viz.
human and social realities.
We can give examples
close at
hand, such as Nixon's order for bombing Cambodia behind the back of
Congress in
1970, or the altogether undeclared war in Vietnam, in violation of
constitutional provisions. While voices were raised against that war,
Congress
did not strongly react to reaffirm its constitutional prerogatives. The
impeachment debates in the House Judiciary Committee in July 1974 also
reflected the mood of the legislative not to press the issue of the
unconstitutional and undeclared bombing of neutral Cambodia. To
understand this
abdication of its powers by the legislative and its "collusion" with
the executive, we have to evoke the background on which we are
sketching,
reminding ourselves of such factors as the affectional/functional
spectrum of
relations, radius of identification and understanding, interest/value
constellation, drive for security and the intricacies of power
complexes. At
the level of international relations, in the combination of their
values and
interests, their affections and concerns for security, men -- and their
representatives -- behave primitively: Cambodians were far away;
national pride
was at stake; conflict between the Congress and the President could be
viewed
as weakness by unfriendly nations; American lives had to be saved.
However, it would be
missing
the issue totally if we believed that controls on the executive's use
of the
armed forces are directed primarily at checking their deployment beyond
the
frontiers. That becomes a concern only as a result of its internal
consequences. While the executive is left in charge of the actual use
of the
armed forces to defend the country and the national interests, control
is
exercised by the legislative mainly to secure that executive, in using
of the
armed forces, does not impose excessive burdens on the country in terms
of
finances or enlistment, and that the executive does not abuse them to
usurp
control of the country. The balance can become precarious in political
cultures
which have not developed strong civilian structures. The main issues
are the
control and distribution of the sources of power, of which the most
palpable
are force and means: the military and the finance.The control of the
purse may
not discourage a military corps, engrossed by its own apparent
disciplined
efficiency or foreign victories, from aspiring for control of the
polity.
History from ancient China and Rome to modern times is dotted with
examples. At
times, a military corps may attempt political control when defeated
abroad in
order to displace its frustrations and put the blame, rightly or
wrongly, on
the internal political structures: Nasser's coup
d'état in Egypt was an example.
More plastic as
examples of
political cultural realities influencing the relationship of the
branches of
government are the many countries in the Third World which have adopted
Western
style pluralist constitutions, either constitutional monarchies or
republics,
where, in most cases, political realities are far from corresponding to
the
letter of their constitutions. Many of them -- all of them to different
degrees
-- are undergoing transition, and in most the executive branch--either
the
traditional absolute monarch or the particularly potent agent of the
executive
branch, the armed forces--in one form or another controls the
government.
Political control in
these
cases can, of course, take different shapes within which we may
identify the
traditional and the coercive factors on which the controlling body
relies for
the means -- the finances -- to perpetuate itself. As we saw, Louis XIV
could
impose his rule on France because he was traditionally entitled to
taxes which
the kings of France had collected for centuries directly from the
people over
the head of the feudal princes – and which financed his long-instituted
standing army. We also saw that in England where the Parliament gained
control
of the national budget, the king could raise no money without
Parliament's
consent and had difficulty in raising an army (facts which contributed
to the
demise of Charles I and James II).
In the contemporary
Third World
a regime can control a country without parliamentary procedures when
most of
the population traditionally recognizes the right of the central
authority to
collect taxes and revenues. While the pattern may have been given
nominal
modern parliamentary forms (i.e., the authority's laws and taxes may be
formally ratified by some kind of legislative body), in reality it
functions because
"the people" are in the habit of submitting to the laws and not
participating in the political process. To this traditional dimension
is often
added the modern techniques for coercive control. A regime which can
organize
itself efficaciously for military control can, to a large extent,
impose its
rule. Modern weaponry--the tank, armored car, airplane, electronic
communications and other logistics available to an organized army and
not to
rebellious groups (unless they are helped by another power)--give a
considerable edge to those in control. But such coercive control alone
has not
always proven enough.[16] It should be combined with some traditional
bases, a modicum of popular support, or total apathy.
*
* *
While, in the light of
these
considerations, the case can easily be made for the need to maintain
checks and
balances on the executive, the question may arise as to why, beyond the
handicap of impotence which it can encounter in relation to the
executive, and
the fact that it will be influenced by the body of. jurisprudence
developed by
the judiciary, the legislative should be subject to any further checks
and
balances. After all, the legislature, in a pluralistic system, is
assumed to
represent the popular view. The question really revolves around the
assumption
we have just made, namely, how does the legislative represent the
people, what
is the popular view and, above all, what is the legal philosophy of the
political culture on these points? These questions raise further
inquiries concerning
the population of a polity, its homogeneity or heterogeneity, the
criteria such
as class and regional or ethnic identifications used to establish its
composition and which, broadly speaking, lead us to a polity's
constitution.
III.
Constitution
To constitute
means to put together. Thus, what is made of different
parts which hold together, interact and become identifiable as an
entity must
have a constitution. We may speak of the constitution of a human body,
a plant
or a car. It is more or less in this sense that Aristotle examined the
constitution of different states. Apolitical entity, a polity; is
constituted.
Beyond this broader
meaning, a
country may, in political terms, have a constitution--a written
document--which
defines it as a state and lays down the rules for its government. This
written
constitution, as we pointed out, may or may not correspond to the
constitution
of a polity in the broader sense-that of political culture and
political
institutions. A country, throughout its history--within which its
constitution
in the broader sense is shaped-may have different written constitutions
every
time a major political evolution or revolution takes place. Thus, for
example,
we talk about the French Fifth Republic. In fact, France has had more
than five
constitutions--one for each time the republic has been abolished and
re-established (and some in between), with the current constitution
taking
effect when France passed from one republic to another in 1958.[17]
Britain has been
called a
constitutional monarchy without a written constitution. The truth is,
however,
that the United Kingdom has gone through a constitutional evolution
wherein we
can distinguish such written landmarks as the Magna Carta of 1215, the
Petition
of Right of 1628[18],
the
Declaration of Rights of 1689, the reform bills of the nineteenth
century and
the acts of the twentieth, to which we referred earlier. Thus, in Great
Britain
the written documents constituting the records of the country's
constitution--in the written sense--closely reflect and evolve with the
constitution--in the organic sense--of the British body politic. We saw
in
Chapter Twelve how in Britain, as the power distribution among
different social
classes changed over the centuries, with bigger and smaller social
conflicts
and compromises, new laws reflected those changes. While these laws
have been
constitutional in that they have directly modified the constitution of
the
British body politic, they have not been made by a procedure different
from the
usual lawmaking process. Thus, British constitution-making (both its
initiation
and its revision) coincides with the legislative process.[19]
The British case,
however, is
unique. The common modern procedure since the American and French
revolutions
had been to establish written constitutions as the ground rules of
government.
Basically, constitutions are instruments by which the abstractions of
sovereignty, wherever it lies, are converted into concrete structures
as
governmental bodies and branches, and their rules of conduct are
established.
In the British body politic, the assumption is that sovereignty lies in
the
bosom of Parliament. This, however, is not generally the case in other
countries where the prevailing political philosophy may, for example,
attribute
sovereignty more directly to the people. In such cases, it is this
sovereign
popular body which originates the constitution, by virtue of which it
delegates
the exercise of its sovereignty to the government and whatever branches
are
constituted for it. The legislative will make laws, but its laws should
not
contradict the constitution. If the constitution could be modified
simply
through the regular legislative procedure, the holder of sovereign
right--the
monarch, the people or the federal states (if a federation)--would in
effect be
abdicating to the legislative body.
We should therefore
distinguish
between legislation and constitutional revision and amendment.
Provisions for
judicial review ensure that laws promulgated and enforced by the
different
branches of government, particularly laws made by the legislature,
remain
within the constitutional framework. In the United States the Supreme
Court has
been vested with the power of judicial review.[20] Other
countries, such as France, Germany or
Italy, have created special constitutional courts, composed of high
judges and
legal experts and elected by different combinations of the three
branches of
government, to safeguard the constitutional legitimacy of the laws.[21] Thus, the legislative function of the
government, like other functions, is subject to the checks and balances
arising
from the separation of powers.
The distinction
between
ordinary laws and constitutional revision and amendment implies a
valuational
hierarchy by which the latter is subjected to broader and more
elaborate
procedures and rituals. The valuational elevation of the constitution
and the
elaborate rituals reflect the points we made earlier about values,
symbols and
rituals, and contribute to the gravity and solemnity of state
structures and
the continuity of state institutions. The distinction leads us,
however, to a
more basic consideration of the locus of sovereignty as well as the
possibilities of its "distribution" and representation. For example,
the British political culture has evolved to make Parliament the
custodian of
state sovereignty (not its symbol, which, as we said, remains the
monarch).
When Parliament makes a law, that law coincides with the country's
constitution. In this light, with each election the voters abdicate
exercise of
their sovereignty, as far as constitutional jurisdiction is concerned,
to the
simple majority in Parliament.[22]
The French and Italian
constitutions provide that constitutional revisions be submitted to
popular
referendum and/or a particular majority of the legislature. In these
provisions
we may detect a greater inspiration from the general will and
contractual
philosophies--not in the sense of a Rousseauan assembly of the people
or the
Hobbesian original contract, but that sovereignty inalienably lies with
the
people who have voted a constitution by which they delegate their
sovereignty
to their representatives, who in turn are to exercise the functions of
government within the framework of that constitution. If the people's
representatives were to modify the constitution, they should either
appeal to
the general will by referendum or, in bringing an amendment to the
constitution, have a majority large enough to reflect clearly that the
changes
are being made as if they were the will of the people.[23]
The above examples are
unitary
states, countries where the exercise of full sovereignty is vested in a
central
government. However, not all the sovereignty may be vested in a central
government directly by the people. A constitution may provide
intermediary
stages in the passage, delegation and exercise of sovereignty and
authority.
For example, the United States is a federation of states. As parties to
the
United States constitution, states are entitled to ratify amendments
proposed
by two-thirds of both houses of the federal Congress (or by convention
called
by Congress at the request of two-thirds of state legislatures--a
possibility
which has not yet arisen).
The amendment is
ratified in
each state by the state legislature (or by conventions, if Congress
proposes--as
it has only once). The amendment becomes valid as part of the
constitution to
all intents and purposes when ratified by three-fourths of the states.
This
combines regional and popular distribution of sovereignty. And here
again, as
with unitary states, the constitution by which the polity functions is
given
more valuational weight than ordinary legislation.
In both unitary or
federal
cases, however, while a greater plurality of representation and popular
approval is called for to change a polity's basic laws, it is also
understood
that a minority may disagree with the change. The people's sovereignty,
an
abstraction concretized by a majority vote, is in fact the sovereignty
of the
majority. This limitation to popular sovereignty is less evident in a
unitary
state than in a state within a federation which has to submit to the
will of
the majority of other states. As Article V of the U. S. constitution
provides,
states may become subject to constitutional amendments which they may
not have
ratified (when such amendments are ratified by three-fourths of the
states).
Beyond their legal and constitutional implications, such provisions
revert us
to some questions of pluralism raised earlier, notably the effects of
social
homogeneity and heterogeneity on the governmental structures and vice
versa,
and the question of popular participation.
"Distribution"
of Sovereignty
Within the polity,
whether in
the legislative process or constitutional amendment, part of those who
share
the sovereignty or are supposed to share it are proven "wrong" in
being the minority when the majority adopts a particular law or
amendment. This
poses the problem of how, despite contradictory currents, a polity can
secure
cohesion. In terms of constitutional pluralism, we find two working
hypotheses:
1) The components of a polity share political institutions where
cooperation
and compromise are possible and desirable, while in other areas of
their
particular interests and distinct characteristics they safeguard their
autonomy. 2) The prevailing political culture satisfies the minority
that the
political outcomes result from an equitable procedure which will--or
may--in
other cases rally a different winning majority for its views and
causes. The
combination of these two hypotheses can produce an array of political
formulas
ranging from the association of independent sovereign states in
international
organizations and confederations to the criteria for popular
participation in a
unitary state.
The extreme of
political
nonassociation of different countries is, of course, the full-fledged
sovereign
statehood which emerged in our earlier discussion and which, in the
context of
modern world, even at the extreme of independence, should be qualified
(be it
.for entanglement in the international economic network or
participation in
international organizations claiming some aspects of their members'
sovereignty). Beyond this, sovereign states may enter into formal
associations
with each other, perhaps accepting certain limitations on their own
sovereign
rights toward partial political association and cooperation in certain
areas.
These arrangements may be identified as a confederation, a limited
association
of otherwise sovereign bodies, which may eventually evolve into a more
cohesive
polity. Examples of confederations are the Swiss Everlasting Alliance
of 1291,
first a defensive alliance, then a confederation between 1813 and 1848,
and
finally a federal government; the United States Confederation between
1777 and
1789, which turned into a federation; and the German Confederation
between 1815
and 1866, which was proclaimed the German Empire under the hegemony of
Prussia.
At present, the European Common Market may be qualified as a moderate
confederation in that the states party to it have voluntarily accepted
limitations on the exercise of their national sovereignty in the areas
of the
Common Market's competence.[24]
What concerns us more
particularly here is the stage at which a polity reaches a certain
degree of
political cohesion to be considered, at least in some broad areas such
as
international representation and overall fiscal and military policies,
as one
sovereign political unit. Somewhere along the line we can identify such
a
polity as a federation, a political
entity which, while recognized as sovereign, is composed of several
political
units, each retaining some of the characteristics of a sovereign state
(identifiable population and territory and some areas of particular
jurisdiction over them as distinct from those of the federal central
government).[25] That at a certain stage of their evolution
entities with sovereign characteristics can form a federation implies
pressures
and pulls we discussed in the abstraction of group fermentations and
dynamics.
Entities (countries, provinces, former colonies) may find common
characteristics (which at the minimum may only be regional
cohabitation) to
bind them in a federation to avert the danger of powerful neighbor(s)
or to
make them internationally competitive. The Swiss federation may never
have
existed if the autonomy of the original three cantons was not
threatened by
Habsburgs. The German federation may have grown into conflicting states
had it
not been for the impact of industrial revolution and the threat of
powerful
neighbors such as France and Austro-Hungary. The Socialist Federal
Republic of
Yugoslavia is composed of states which had long feuded but joined in
their
struggle during World War II and were led by Tito into their present
federation
whose future some deem uncertain after Tito.
In political terms,
intermingling factors to consider are: to what extent the federal
arrangements
have evolved from "below" or from "above," and whether they
have been made primarily for political reasons or are due to particular
"national" identities of the different components. The United States,
for example, became a federation for political expediency. The original
thirteen states of eighteenth-century America, compared to the
heterogeneity of
such federations as the Soviet Union, India, Nigeria, or even
Switzerland, did
not have territorially identifiable diversities (except for the
conflicting
interests of North and South which eventually grew to the disastrous
proportions of the Civil War.) As former British colonies, these states
shared
common interests and a collective identity. Their federal concept of
government
grew out of their experience with local and state government at the
time of
their union. This pattern continued as the United States expanded over
the
continent. A look at the shape of the states, with their many straight
boundaries drawn along meridians and parallels instead of traditionally
settled
frontiers, gives an idea of this process. This occurred through a
complex of
factors peculiar to the kind of people who found themselves where they
did, when
they did. In North America, an important factor was the idea of
self-government--not necessarily because of distinct ethnic or other
characteristics, but because autonomy in local and regional government
was
believed desirable.[26] This tendency reflected the experience of
the early settlers and their political and religious backgrounds.
American federalism
grew from
below, that is, its components--the thirteen colonies--came to realize
that
they should stand together to gain their independence and maintain it.
In
contrast, Canadian federalism was shaped more from above by the British
North
America Act of 1867. A possible legal criterion indicating the emphasis
of
power from below or above is whether the federal constitution leaves
the areas
of sovereignty not covered by it to the components of the federation as
does
the U. S. Constitution, or to the central government as does the
Canadian. The
two federal systems have, of course, evolved, with the United States
tending
toward more centralization of sovereign prerogatives in the federal
government,
and Canada having to accommodate greater provincial autonomy due to
ethnic
uniqueness of some components, notably the French speaking Quebec.
While constitutions
may call
their systems federal, it is harder to qualify a polity as a federation
in
practice. Canada, Germany, Pakistan, the Soviet Union and the United
States are
all federal states, but their practices are different. Many countries
have
adopted the federal form of government to secure the autonomy of their
ethnic,
linguistic, social, cultural, religious or tribal components, with
varied
degrees of success. The nature and effectiveness of a federation hinges
on the
interaction of the dynamics of human radii of identification
(patrimonial,
ethnic, cultural), and power (social, economic, political) in different
total
environments.[27] This interaction, depending on the magnitude
of its factors, can lead us from a federal system of government to a unitary system where the political--and
in different degrees, the social and economic--powers of the central
government
overshadow the patrimonial, ethnic and cultural identity of its
components in
the exercise of sovereignty.
Take, for example, the
Union of
Soviet Socialist Republics. To rally the oppressed ethnic groups which
might
have sought independence after the collapse of the Tsarist Empire, the
Soviets,
who could not as yet control the vast empire politically or militarily,
promised autonomy. In November 1917, the Council of People's Commissars
of the
Soviet government which had just seized power, in a proclamation signed
by
Lenin and Stalin, confirmed "the right of the nations in Russia to free
self-determination, including the right of secession and formation of
an
independent state." Stalin, however, qualified this right in his report
to
the party the same year, saying, "We [the party] are at liberty to
agitate
for or against secession, according to the interests of the
Proletariat, of the
Proletarian revolution." In other words, it was one-way traffic.
Self-determination
to the Soviet leaders meant the determination to secede from the
feudal,
capitalist and imperialist states, not from the proletarian state.[28]
The Soviet Union was
given a
federal constitution with the advent of Soviet power. The component
Union
Republics, autonomous Soviet Socialist Republics and autonomous regions
of the
Soviet Union have, indeed, each particular national characteristics.
The
predominantly Orthodox Ukraine with its own language, the predominantly
Moslem,
Persian-speaking Tajikistan, the predominantly Catholic Lithuanians or
Lutheran
Estonians have all had distinct cultures, social traditions and
institutions.
The Soviet constitution provides for the independent state authority of
the
Union Republics whose sovereignty is limited only in those spheres
reserved by
the constitution for the federal government. It even confers the right
to the
Union Republics to establish relations with foreign states and have
their own
military formations.[29] It also provides for the secession of the
Union Republics from the federation.[30]
Reviewing these
provisions, one
may be led to believe that the Soviet Union is a loose federation
approaching a
confederation. In reality, however, as far as political, economic,
social, and
legal controls are concerned, the Soviet Union is a monolithic polity
with
different levels of the Communist Party hierarchy in control throughout
the
whole country. Indeed, this reality transpires from the different
provisions of
the constitution. We have already mentioned the hierarchical process of
democratic centralism spelled out in the 1977 constitution. This,
combined with
the fact that according to Article 6 of that constitution, "the
Communist
Party of the Soviet Union is the leading and guiding force of the
Soviet society,
the nucleus of its political system and state and public organization,"
leaves little doubt on where the power lies. The Communist Party
controls the
government of the whole union through such mechanisms as the nomenklatura, a process by which all
positions which carry any responsibility in any facet of Soviet life,
from
government and industry to education and 'youth organizations, are
listed by
the party and appointments to them require party clearance.[31]
While the 1936
constitution of
the USSR defined it as a federal state (Article 13), the new
constitution
indicates that "the Union of Soviet Socialist Republics is a unitary, federal and multinational
state, formed on the basis of the principle of socialist
federalism...The
USSR embodies the state unity of the
Soviet people and unites all nations and nationalities towards the
joint
construction of communism." (Article 70) [emphases mine]. "Socialist
federalism," of course, reminds us of Stalin's qualification of
independence and the Brezhnev Doctrine.
The ornamentation of a
polity
by a federal constitution does not necessarily imply then that the
heterogeneous units within that polity will be able to enjoy their
political
autonomy and take advantage of the federal provisions, because the
federal
structure may be centrally and overwhelmingly controlled. The control
does not
need to be that of a dominant political party, as it is in the Soviet
Union..
Some young federations are at present ruled by military dictatorships.
While
such instances indicate that the political-economic, social--pressures
and
pulls of central government can practically turn
a federal system into a unitary form of government, we have
to keep the dynamics of human radii of identification in mind. They
correspond
to man's need for manageable environmental identity. Even in the United
States,
with its short history, "provincial" identification has developed
among the Northern and Southern states, with further distinction of
those of
the Southern Atlantic coast, or California; New England, the industrial
states
of the North or the Upper
Midwest and the Great Plains. These regional identifications
overlap the political frontiers of states and are often
reflected in local and state structures.[32] They
are not often as acute and delimitable
in their provincialism and particularism as those of the ethnic,
religious,
tribal and cultural groups in traditional patterns--partly because of
their
coincidence with the modern age of mobility, which to some degree
broadens the
radius of identification and reduces particularism and local
entrenchment.
While the modern
factors may no
longer permit new territorially identifiable particularisms to develop
as
strongly as they did in traditional settings, the fact remains that
some
measure of identity with manageable radii of human, social and
ecological
environment is part of human reality. In political terms, it is
reflected in
the degree of central, regional and local distribution of authority and
the
exercise of sovereignty whether in federal or unitary constitution. The
distribution of authority to different local (townships, villages,
cities),
regional (provincial or state) and central ("national") levels
reflects the need, at some level of social organization, for different
groups
to take charge of their own affairs. Indeed, the degree of
decentralization in
some unitary constitutions may be greater than in some federal systems.
For
example, the constitution of Japan, a unitary state, provides for
election of
local authorities by direct popular vote and establishment of local
deliberative assemblies--much more than some federal system allow. It
is true
that these provisions may have been marked by American inspiration and
influence, but they also reflect Japanese history--with shogunate
feudal
autonomies extending into the nineteenth century.
Historical factors as
part of
the total environment may, of course, also favor the development of
unitary
states which claim sovereignty and popular acquiescence for the central
government from which authority is distributed and through delegated
power
returns to the people, or to their local organization at the lower
levels.
France, for example, has evolved since its revolution toward such a
constitution. The French Republic was divided into eighty-three (now
ninety-five
in Europe and four overseas ) départments,
and their 280 arrondissements (rather
undersized political units in terms of "provincial" division). The départments were created by Napoleon for
administrative convenience of the central government and as an attempt
to
liquidate the provinces existing under the Ancien
Régime and which, by their narrow provincialism, tended to hamper
the
policies of the government towards national consciousness and cohesion.
The départements were made small to permit
access to them, as direct representations of the central government for
all
citizens within their jurisdiction, from any point of the département
to the seat of its préfecture
in one day's journey (including return trip).[33] The
départements
are administered by préfets and the arrondissements
by a sous-préfets appointed directly by the
central government. Although the préfet
is assisted by a locally elected council (conseil
général) of the département, he
is responsible for the administration of the civil service in the département, which encompasses broad
governmental control, including even education. Only at the level of
the communes, 37,708 in number at this
writing, has local autonomy been exercised. A unitary state of this
kind can
become top heavy and hence handicapped in its development. President
Giscard
d'Estaing defined the problem when he wrote: "Centuries of
centralization
weigh on us. To them are due the hypertrophy of Paris and the debility
of
certain provinces, as well as the profusion of regulations and the
inadequate
development of responsibilities."[34] When
the unitary system becomes top heavy,
it gets bogged down by bureaucracy and discourages initiatives by its
parts. In
past decades France has embarked on regional decentralization. But in
doing so
the central government has had to keep in mind the reasons for which
France was
"departementalized" in the first place, notably regional
parochialisms not always in line with national interests.
Distribution of
Authority
According to Angles of Vision
Discrepancies in
local, regional and central
"national" outlooks imply different ranges of the radii of interests,
understanding and identification at different levels of authority. We
noted
earlier that the shorter radii of identification within the local and
provincial
units provide for the members of the society graspable bases to fulfill
their
material and affectional security. This security, however, in the
ever-broader
context of human societies and total environment, can become vulnerable
if it
narrows and closes in on itself. Our earlier discussions of groups,
individuals
and power implied that those who rise in the social hierarchy may gain
a longer
range of observation by which they can detect, beyond the short range
of
immediate interests, possibilities for expansion and provisions for
interaction
with the total environment, social and otherwise, which could secure
their
(personal and collective) perpetuation and well-being. Local, regional
and
central levels of government are part of the political reflection of
these
social phenomena. Their interrelated and interdependent interests are
symbiotic
yet do not always coincide.
Local interests,
because of
shortsightedness, may handicap the vision or understanding of the
long-range
implications of a national policy and encourage immediate gains or
savings,
making the polity as a whole vulnerable. The political apparatus at the
central
level may, in its wide range of vision or vested interests, lose sight
of the
base and follow extravagant, idealist or conservative policies. The
small,
locally oriented group may become conservative, while those at the
higher
social positions may see opportunities for change and expansion; or
inversely,
the higher strata may read (or misread) a remote foreign or internal
phenomenon
as dangerous to the social structure and become conservative, while the
narrower local visions and interests may not, in the security of their
immediate environment, perceive the remote danger (or not perceive it
as the
higher strata do), thus becoming more open to change. We can multiply
cases of
optic divergences among the different levels that hold and exercise
authority.
This introduces a new set of political dimensions, the hierarchy of radii of identification, foresight, understanding
and interests, to the other sets
already mentioned -- the separation of the branches of government into
executive, legislative and judiciary; and the local, regional and
central
distribution of authority.
The narrower or
broader radii
of political and social identification, understanding and interests
may, of
course, coincide, though not necessarily, with the narrower or broader
territorial interests. Beyond the territorial, the hierarchy
of narrowness or broadness of political and social
vision cuts across professional and class distinctions. In the
traditional
societies where the major source of social livelihood and power was
land, the
development of a wider angle of vision coincided with the extent of
territorial identification and interests. The lord with a bigger domain
to
worry about, to protect, and the produces whereof to exchange, had to
look
farther than the tip of his nose. But even there, the old man who had
gone
through ups and downs of life and had seen and heard of many things
also
developed a wider vision, as did the soldier who had endured many
campaigns and
seen many lands. Of course, the clergy could also develop a
cosmopolitan view
through the expanse of the church and its hierarchy.
The distinction and
combination
of the radii of interest, identification and understanding are built
into the
complexity of political cultures and are more manifest in the structure
of
certain political institutions, such as legislative bicameralism, than
others.
For example, already in the government of ancient Rome (around seventh
century
B.C.), a body of the elders (patre)
was constituted into a senate, which shared power with the popular
assembly of
the clans, comitia curiata, and
controlled the power of the elective kings. The society was
distinguished into two
classes, the patricians and the plebians, of which the former, having
set
themselves up by their power (probably wealth and land ownership) as
superior,
could become members of the senate.
The assemblies called
by the
kings of England and France in the middle ages, the British Parliament
and the
French Estates-General, evolved into two houses where the nobility and
the
commoners sat separately. They came to be known as the upper and lower
houses.
The upper house was generally both more conservative (because it
represented
the vested interests) and more aloof (because it was composed of the
aristocracy, which claimed a share with the king in ruling the country,
and the
clergy, which dealt with God's affairs on earth). Members of the upper
house
were, as in England, "Lords Spiritual and Temporal." The lower house
was potentially more erratic, because it could be more shortsighted on
matters
touching local particularisms and finances, yet more radical on issues
relating
to the broad social structures which held the upper classes in power
and held
the polity--as it was--together. The two houses thus evolved to check
and
balance each other. The upper house could, to some extent, secure the
continuity of the polity by moderating and restraining the more
parochial and
radical views of the lower house, while the lower house could voice the
views
and will of the larger bourgeoisie and check on the encroachments of
the upper
classes.
As we saw, in both
England and
France, when in modern times the radius of vision of the aristocracy
and upper
classes was obscured and reduced by their outmoded interests, the new
social
vigor and economic expansion of the emerging bourgeoisie helped to
broaden its
range of vision commensurate with its interests, making the lower house
the
center of power. Yet the upper house serving as a stabilizing anchor
could not
altogether be dispensed with, because, whether inhabited by aristocrats
or high
bourgeoisie, it was by definition destined to provide the broader
vision. The
attempt of the masses in the French Revolution to abolish the upper
house
(1789) was short-lived, and soon a Council of Elders was established to
share
legislative powers with the lower house (1795). An upper house in one
form or
another has been part of the French political institutions ever since,
as in
Britain. Many other countries
have imitated these two in structuring their constitutions.
With
the
development of modern institutions, both the concept of bicameralism
and the nature of the hierarchy of radii of vision have evolved. The
American
constitution provided for two houses in Congress. According to the
"Connecticut Compromise" (proposed by Dr. Johnson of Connecticut at
the 1787 convention), in the upper house--the Senate--the states of the
union
would be equally represented and would be considered equal political
entities,
while the lower house, the House of Representatives, would reflect the
population of the whole union on the basis of local districts of
individuals.
The American system has inspired the political constitutions of
countries which
have adopted federal forms of government and whose territories and
population
are composed of heterogeneous ethnic, linguistic or religious groups in
unequal
numbers and territorial sizes.
Bicameralism thus was
developed
not only to provide different ranges of vision checking and balancing
each
other, but also to amend the inequalities that could
arise from representation on the basis of numbers alone,
handicapping particular interests within a polity. The provision of an
upper
house with equal representation of unequal political entities aims at
securing
particular minorities a role in the conduct of the central government
and
avoiding control of the political institutions by one of the ethnic,
linguistic or religious components of the country which may constitute
an
overwhelming majority of the population. The efficiency of the process
will
depend, of course, on the degree of real prerogative given to the upper
house
to control the executive and the amount of autonomy enjoyed by the
component
states. Above all, it is not so much what is written in the
constitution that
matters, but the realities of the political culture.
When, as in the United
States,
the upper house has equal authority in legislative matters and broad
control
of the executive, and its members are elected by direct popular
suffrage, that
house can also play the traditional role of the weightier body with a
broader
radius of identification, interests and understanding. That a senator
should
run in the whole state implies certain prerequisites which, more often
than
not, require a personality with a wide vision of political problems
than that
of a representative to the lower house, who theoretically represents
local
interests. For example, running for the Senate requires adequate funds
-- a
fact which puts the candidate in the bracket of the propertied (those
who
control the means in the country) or at least makes him someone who by
his
reputation commands the respect of that class. The exclusivity and
prestige of
the Senate further entice its members to rise to the occasion and try
to give
their best. Finally, the length of their mandate contributes to their
detachment from their immediate popular base and permits them to
broaden their
vision in dealing with national and international issues -- all this,
however,
without losing sight of the underlying human and social factors to
which they
are conditioned.
While the American
federal
application of bicameralism has come to provide some factors for a
broader
radius of identification, understanding and interests of the higher
social
strata, the upper houses in England and France, cited as examples of
broad
vision because of their traditional association with the old
aristocratic and
land-based upper class, have lost many of their prerogatives in
government
since the development of modern bourgeois culture. With the Parliament
Act of
1911 as amended in 1949, the British House of Commons can now
altogether bypass
the House of Lords in its legislative deliberations, provided the act
under
consideration is passed twice by the House of Commons in two separate
sessions
one year apart. According to the 1958 French constitution, if each of
the two
houses fails after two considerations to reach agreement on a draft
bill, and
if a mixed commission of the two houses called by the Prime Minister
does not
agree, the government, after yet another consideration by the two
houses, can
ask the lower house, the National Assembly, to deliberate definitively
on the
bill.
The decline of the
role of the
upper house in the Western European "unitary" political cultures has
to do not only with its association with the landed gentry and
aristocracy –
for indeed the higher bourgeoisie has long since penetrated the upper
houses in
Europe. Rather, one of the main causes of this decline has been the
identification of the lower house with "the people" and the idea of
the people as the holders of sovereignty. The implication of popular
sovereignty, as we saw, was the fiction that the people can govern
themselves,
and that in the long run their wisdom will lead them to choose
what is
good for them. We thus return to the concept of the people's
sovereignty, but
with the addition of the political dimensions we have been discussing
in this
chapter. The house directly elected by popular suffrage is better
entitled to
deliberate on behalf of the people. It is in essence the fiction of
democracy,
which denies the tutelage of a class over the public.[35]
One particular
characteristic
of this coming of age of the common man and his representatives in the
British
and French constitutional model is the recognition of the temporal
dimension as
the prudent alternative to upper-class tutelage. The British and French
constitutional provisions we reviewed implied a process of "thinking
things over" by the lower house before bypassing the contrary views of
the
upper house. These provisions must have been aimed at avoiding hasty
deliberations by the popular assemblies, and also at distinguishing
between the
egotistical motivations or well-meant considerations behind the
negative
attitude of the upper classes represented in the upper house.
Historically
speaking, in their early attempts at government, the popular
representative
bodies in England, France and other countries of the continent
compromised with
the upper house (after submitting for a long time). Supposedly, the
upper house
provided the necessary wide radius of vision and foresight by its
broader
understanding of the problems of the state (since it was composed of
those who
were generally old hands at it). But also, by its share of control, the
upper
house safeguarded its members' as yet wider interests. As the
bourgeoisie grew
dominant and eventually coincided more and more with "the people," and
the lower house representing the people's interests gained more control
of the
government, the concurrent views of the upper house with those of the
lower
were considered additional security that the laws were going in the
right
direction, not disturbing the social cohesion. Where the two houses
diverged,
the bypassing of the upper house by the lower was made subject to some
procedural and temporal factors so that "time could tell" whether the
divergence was due to a wisdom which the wider vision of the upper
house had
shown over the lower, or to a conflict of interests, in which case the
interests of "the people" as
represented by the deliberations of the popular assembly were to
prevail.
These rationalizations
should,
of course, be qualified and conditioned by the human and social factors
previously reviewed, from the angles of both individual and group
behavior in
the total environment. The upper house may not always behave
conservatively (in
the sense of cautiously), but in its higher position and prestige it
may
challenge possible encroachments by the other branches of government,
notably
the executive. Such was the case during de Gaulle's presidency in
France during
the 1960's, when the Senate on several occasions dared question the
legality of
his actions. The lower house may, because of the relatively smaller
radius of
foresight of its components, who may displace their parochial
affections and
group reflexes to an authoritarian or charsmatic political leader, show
bigoted
conservatism. Also, the controls of the two houses on each other may,
instead
of constituting constructive checks and balances, become duels of
prestige
between them, causing undue delays and expenses. With the principle of
popular
sovereignty established as the modern basis of state authority, many
countries
have done away with the bicameral system altogether.[36]
By giving bicameralism
as an
example of political institutions which reflect the hierarchy of the
radii of
interests, understanding and identification (foresight), then
discussing their
development into modern times and the erosion of the authority,
prerogative and
even existence of the upper houses, we have reopened the question of
how the
necessary hierarchy of radii of foresight, identification, interests
and
understanding are reflected in governmental structures. After our
recent
reminder of the modern concepts of the people's sovereignty, however,
our
question needs reformulation. If we admit the idea of democracy and the
fiction
that the wisdom of the people eventually prevails, we may have to
assume that
the hierarchy of foresight should be contained within the sovereignty
of the
people and democracy, and not surpass them. In other words, the
governing body
should not, as a body outside the people, share sovereignty with them
and rule
from above, but be an integral part of them, reflecting and
representing them.
If so, how are those
responsible for running the central apparatus of government to identify
with
the common man and yet gain their broader radii of identification,
understanding
and interests needed for the higher strata of government? Well, in the
pure
ideological fiction of democracy they do not need a radius any broader
than
that of the people. Because the people's alleged reasonableness and
understanding should be broad enough to encompass, in the long run, the
social
and human problems of the polity as a whole. This assumes that as men,
through
representation and delegation, rise from within the social hierarchy to
the top
in the different strata and branches of government, and from there
observe a
wider horizon, they communicate back to the lower strata – the base,
the people
– their vision; and on the understanding of that vision the people
reinvigorate
the mandates at the top for action in their behalf, and those on the
top
exercise their functions according to popular mandate.
Our discussion has shown, however, that such an approach is not altogether realistic. The view from the top is not the same as the view from the bottom, and the assumption that it can be understood and absorbed without having been experienced will take us right back to the Platonic allegory of the cave. This does not mean that the view from the top is necessarily "correct" (which is a relative qualification anyway). At times it may see wide over the horizon but be divorced from the realities of the base on which it stands. The fact that views are not the same at different heights, whether mountains or social strata, implies the possibility of different attitudes towards the exercise of authority by those who hold it and those who submit. The extent to which those submitting have a say in choosing the authority, can control its policies and actions and can ascend to that position themselves, will decide the degree a polity may approach democracy and, inversely, may be subdued by an autocrat. In the next chapter we shall review some implications of these alternatives by working our way up from popular participation to the business of government.
[1]“On the
walls of Westminster there appear together
Three powers
bewildered by the
knot that unites them,
The deputies of the
people, the
nobles, the king,
Divided by interest,
united by
law;
All three sacred
members of
this invincible body,
Dangerous of itself, terrifying to its neighbors.”
[2] It is, for example, the prerogative of the British monarch to nominate the prime minister. Under the British parliamentary system the choice is, of course, limited to the leader of the majority in Parliament. But situations may arise in which there is no clear-cut majority, or a coalition government should be constituted, as was the case in 1931 when MacDonald formed a National government; or, the majority party may not have appointed a leader, as was the case of the Conservative governments in 1923 and 1957. See Graeme C. Moodie, The Government of Great Britain, 3rd ed., (New York: Crowell, 1971), p. 92.
[3] For an analysis of some aspects of the subject see Richard Neustadt, Presidential Power: The Politics of Leadership (New York: Wiley, 1960); and Edward Corwin, The President: Office and Powers, History and Analysis of Practice and Opinion, 3rd ed. (New York: New York Univ. Press, 1948).
[4] Some of these countries are Algeria, Chad, Cyprus, Guinea, Kenya, Nigeria, Pakistan, the Philippines, Senegal, Tanzania, Tunisia and Zambia, as well as many Latin American countries.
[5] See Stein Rokkan and Erik Allardt, eds., Mass Polities: Studies in Political Sociology (New York: Free Press, 1970).
[6] For a study of Stalinist monism in the Soviet Union see T. H. Rigby, "Stalinism and the Mono-Organizational Society," in Robert C. Tucker, ed., Stalinism; Essays in Historical Interpretation (New York: Norton, 1977).
[7] Confusion in the sense of "con" (together) plus "fusion" (poured): poured together.
[8] For the juxtopposition of gubernaculum and jurisdicto see Charles H. McIlwain, Constitutionalism: Ancient and Modern (Ithaca, NY: Cornell Univ. Press, 1958).
[9] John Adams, "Thoughts on Government Applicable to the Present State of the American Colonies" (1776) in Charles Francis Adams, ed., The Life and Works of John Adams (Boston: Little, Brown, 1851), IV, p. 195.
[10] For a review of literature on pluralism see David E. Apter, Introduction to Political Analysis (Cambridge, Mass.: Winthrop, 1977).
[11] Judicature (Consolidation) Act of 1925.
[12] See notably R. M. Jackson, The Machinery of Justice in England, 5th ed. (Cambridge: Cambridge Univ. Press, 1967).
[13] The popular vote for the president is, in addition, subject to the vote of an electoral college.
[14] Henry J. Abraham, The Judicial Process, 2nd ed. (New York: Oxford Univ. Press, 1968), p. 269.
[15] Ibid., pp. 264-267.
[16] For further discussion on the role of the military in developing countries see William F. Gutteridge, Military Institutions and Power in the New States (London: Pall Mall, 1964); Samuel P. Huntington, The Soldier and the State (New York: Vintage, 1964); Ernest W. Lefever, Spear and Specter (Washington, D.C.: Brookings Institution, 1970); and Edward Feit, The Armed Bureaucrats (Boston: Houghton Mifflin, 1973).
[17] See notably Amos J. Peaslee's documentation of this point in his Constitutions of Nations, rev. 3rd ed. (The Hague: Martinus Nijhoff, 1968), III, 1009-1010.
[18] In the Petition of Right the Parliament prohibited all taxation without its consent, imprisonment of individuals without specific charges, billeting of soldiers in private houses and commissioning of military officers for the execution of martial law in time of peace.
[19] See A. V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (London: Macmillan, 1959), notably Part I.
[20] See Charles Beard, The Supreme Court and the Constitution (Englewood Cliffs, N.J.: Prentice-Hall, 1962; first published in 1912).
[21] See, for example, Part Two, Title VI, Sec. I, Arts. 134-137 of the Italian Constitution of December, 1947; the Basic Law of the Federal Republic of Germany, May, 1949, IX, Arts. 92-94; and the French Constitution of October, 1958, Title VII, Arts. 56-63.
[22] On the role of the Parliament in the United Kingdom see notably Dicey, Law of the Constitution; and A. F. Pollard, The Parliament, 2nd ed. (London: Longmans, Green, 1926).
[23] The French constitution requires a three-fifths majority of the Parliament assembled in Congress (Art. 89, para. 3), while the Italian constitution requires two votings separated by a three-months interval with an absolute majority of the members of each of the two houses on the second voting. The Italian constitution, however, adds that the constitutional amendment should be submitted to popular referendum if, three months after its publication, a demand has been made to that effect by one-fifth of the members of either of the two houses, by 500,000 electors, or by five Regional Councils (Part Two, Title VI, Sec. II, Art. 138).
[24] For a broader application of the term "confederation," see Ivo D. Duchacek, Comparative Federalism: The Territorial Dimension of Politics (New York: Holt, Rinehart and Winston, 1970), pp. 160 ff.
[25] See, for example, Kenneth C. Wheare, Federal Government, 4th ed. (New York: Oxford Univ. Press, 1964).
[26] See, for example, Richard H. Leach, American Federalism (New York: Norton, 1970).
[27] For a recent review of literature on federalism see William H. Riker, "Federalism," in Greenstein and Polsby, eds. Governmental Institutions and Processes, Vol. 5 of Handbook of Political Science.
[28] Duchacek, Comparative Federalism, pp. 138 ff.
[29]
The provision was
first
made as a 1944 constitutional amendment to the 1936 constitution -- now
incorporated in article 80 of the 1977 constitution -- to permit
Byelorussia
and Ukraine claim the status of sovereign states, making them eligible
for
United Nations membership.
[30] Such a likelihood is remote, however, considering that the "Brezhnev Doctrine" did not even tolerate internal liberal changes in the sovereign country of Czechoslovakia and justified its occupation in 1968 in the fear that the liberal changes might tempt Czechoslovakia to withdraw from the Eastern European socialist community.
[31] Bohdan Harasymiw, "Nomenklatura: The Soviet Communist Party's Leadership Recruitment System," in Canadian Journal of Political Science 2:505-512 (1969).
[32] See notably William S. Livingston, "A Note on the Nature of Federalism," Political Science Quarterly, 67:81-95 (1952).
[33] See, for
example, Hervé Detton, L'Administration
Régionale et Locale en France (Paris: Presses Universitaires de
France,
1953).
[34] Valérie
Giscard d'Estaing, Démocratie Fançaise
(Paris: Fayard, 1976), p. 97.
[35] See, for example, Donald W. Hanson, From Kingdom to Commonwealth: The Development of Political Consciousness in English Political Thought (Cambridge, Mass.: Harvard Univ. Press, 1970).
[36] Some notable examples are such diverse political cultures as Costa Rica, Czechoslovakia, Denmark, El Salvador, Finland, Honduras, Greece, Indonesia, Israel, Lebanon, New Zealand, Panama, Paraguay, Poland and Spain.