Understanding the Separation of Powers

Many ordinary folks, and sometimes even lawyers and political theorists, find the idea of the separation of powers confusing. People tend to be unsure what it actually entails – and those that know what it means can wonder why on earth we would want it.

This blogpost aims to offer a plain language explanation of the separation of powers and its attractions.

 

Anyone who tells you this book has any simple
doctrines in it has not read it!

(Readers interested in learning more will find more detailed exploration of these themes in: Breakey, H. (2014). Dividing to conquer: Employing the separation of powers to structure institutional inter-relations. Research in Ethical Issues in Organizations, 12, 29-58. Special offer!! During July 2015, courtesy of this article being a winner in Emerald’s ‘Outstanding Author Contribution in the 2015 Emerald Literati Network Awards for Excellence’, the article’s full-text can be downloaded free.)

The too-simple notion of the separation of powers

Many readers would be familiar with a simplistic notion of the separation of powers, sometimes called a ‘tripartite’ separation because it divides the institution of government into three distinct institutions based on their separate functions. On this footing, the separation of powers equates to a constitutional principle saying that: (a) different institutions peopled by different personnel, (b) should perform the separate tasks of government, and that there are, (c) three such tasks: rule making, rule judging, and rule enforcing (in technical terms: legislating, judging and executing).

Some writers trace this tripartite principle to Montesquieu’s (1748/1989) The Spirit of the Laws, and Montesquieu was certainly one of the first political theorists to consider the reasons why dividing a system of government along these lines might carry surprising benefits. But in Montesquieu’s work the principle turned out to be anything but simple. In fact, I doubt anyone attributing such a notion to Montesquieu has never even opened his insightful but complex work, riddled as it is with historical curiosities and delighting in happenstance political arrangements that produce unexpectedly good results. Whatever one might say about Montesquieu’s thought, it is anything but simple. (My copy of The Spirit of the Laws runs to a lazy 722 pages!)

On this tripartite principle, a good political system aims to have a legislature (e.g., parliament) to create laws, an executive to police those laws, and a judiciary to judge them. The system will also make sure that each institution keeps to its own devices – the executive and the judiciary aren’t allowed to dabble in law-making, and the parliament leaves the business of judging laws to the judiciary, and so on.

The problems with the simplistic tripartite notion

This notion of the separation of powers suffers from several problems. Perhaps the most obvious worry is that tripartite system, as described above, has never actually existed. All effective political systems actually possess myriad inter-connections between their institutions, allowing each institution to ‘interfere’ in certain ways with the other bodies’ workings.

Consider the notion of ‘checks and balances’. Checks and balances involve one institution being able, under certain conditions, to block or resist another institution’s activities. Such checks effectively scramble the very divisions created by (and apparently recommended by) the tripartite separation of powers. To allow the executive to veto legislation, or to allow the judiciary to strike down legislation through judicial review, amount to letting non-legislative powers interfere with the legislature’s business of creating new law.

Another problem bedeviling the tripartite notion is that it is hard to see why we would want it. Sometimes enthusiasts for the separation of powers speak as if the idea is to have three opposing institutions running the country in order to keep them busy jostling for power among themselves. But why (you might ask) is that meant to be a good idea? The thinking is that the internal jockeying for power will keep the institutions distracted from doing what people with political power normally do – namely, to enrich themselves by oppressing everyone else. They’re too busy dealing with the in-fighting to achieve the type of full-throttle exploitation and extortion that despots usually manage to achieve.

That’s the theory, anyway. And maybe there is something to it. But, if so, we’re going to take a lot of convincing. Creating internal divisions in an institution, after all, is not normally a good policy for ensuring that institution runs well. Usually the reverse is true.

How then should we understand the separation of powers?

A better way of thinking of the separation of powers is to see it as a grab-bag of clever strategies for structuring political institutions so as to stymie their capacity to behave badly. If we go back to the major political theorists developing the separation of powers – figures such as Montesquieu, Locke, Madison, Kant and Machiavelli – we do not find a clean tripartite division. We find a series of insights about how attending to the inter-relations between institutions can help ensure those institutions perform their intended roles.

Sometimes these strategies include creating sharp divisions between organizations, so as to make sure that specific tasks are performed by those best-suited to perform them, or to avoid an obvious conflict of interest.

More often, though, creating sharp divisions is not good policy. Instead, dividing the institutions is only half the story – the first half of the story. The real purpose of separating institutions is to create new inter-connections between them, or to share a larger task across them, in order to secure a better outcome.

In a nutshell, we separate only to re-connect.

One example: politically motivated arrests

Perhaps the single most powerful way a government can injure a citizen is by arbitrary arrest and prosecution, and perhaps its single most dangerous occurrence happens when such arrests are politically motivated, such as the arrest of opposition figures and dissidents.

Consider how the separation of powers quells such dangers. An individual judge cannot physically arrest a citizen and gather evidence against her—nor can the judge create a law targeting that citizen. For that the judge needs the police (a part of the executive). Equally though, the police can arrest the citizen, but cannot judge and punish her. For that they need the judge.

This means that the state can only deliberately target particular persons when the bodies conspire in their persecution, for then the police can make a fabricated arrest, sure in the knowledge that the judge will sentence their victim. So too, if the reigning faction in the legislature wants to imprison members of the opposition, then they must conspire with both the executive and the judiciary to do so.

Having separate institutions performing these roles does not prevent conspiracies from happening. Of course, members of the legislature can collude with members of the executive and the judiciary. But the real trick of the separation of powers is that it requires such a conspiracy to occur. Such nefarious schemes are much easier to manage when one small clique, in a single institution, controls all these levers of power. Conspiracies, on the other hand, are notoriously fraught enterprises when they begin to span over many different people at different institutions.

In such ways as these, the separation of powers doesn’t seek to make political repression and the abuse of power impossible. It just makes it much harder, and much riskier, than it would otherwise be. (This is why the first thing that despots like Hitler do when they come to power is to sweep aside such separations, and gather all the levers of power under their own direct control.)

Why does it work?

But why – you might ask – is it helpful to have multiple institutions with different roles in various processes? If it is sensible to distrust one institution acting alone, why shouldn’t we harbor the same distrust (twice the distrust!) for two institutions, each potentially abusing their power as they vote and veto?

Theorists like Montesquieu, Locke and Madison actually provide an array of sophisticated answers to such questions. I’ve summarized some of these into a little set of theorems:

In what we might call the ‘one good apple’ theorem, if we spread the performance of a given activity across multiple actors, then if just one actor in the chain acts in good faith (or if her self-interest tends to align with the public interest), then she can thwart all manner of evil enterprises.

On another approach, ‘the non-aligned interests’ theorem points out that even if various people want to abuse their power by enriching themselves and persecuting their enemies, if they are not part of the same group in the same institution, they probably will not share the same ideas on who should get rich and who should get persecuted. Because there is a separation between the groups, each has self-interested reason not to be complicit in the others’ schemes. Why should they help someone else get power and wealth? On this footing, the separation of powers takes advantage of the natural resistance of selfish people to do anything outside their narrow self-interest.

Next, the ‘aligned legitimate interests’ theorem points out that even completely self-interested agents will always have at least some interest in doing the jobs they are supposed to do. By effectively performing her role, an agent increases the legitimacy of her institution, and cements her own authority within it. Also, as a member herself of the general citizenry, the institutional agent benefits from the existence of social peace and liberty created by a functioning political regime. As such, if all the self-interested, biased ways of performing her role are vetoed by checking powers (in line with the non-aligned interests theorem above), then the agent is left only with her remaining non-partisan interest, which is to enhance her status and the status of her institution by actually performing her role well.

All proceeding according to plan, the separation of powers might therefore pull off a quite remarkable feat: through its strategic separations and re-connections, it might entice a myriad of mostly self-interested actors to act in the public interest.

Conclusion

Summing up, the separation of powers (as we find it in Montesquieu, Locke, Madison etc) gathers together a host of insights for structuring institutions so as to make those institutions more likely to be productive and honest. It is based on a realistic assessment of human nature, accepting that bad people will sometimes get into power, and that power will sometimes tempt good people to do bad things.

Separating supreme political power across institutions does not stop bad people getting into power. But, in drawing on an array of insights about human nature, the separation of powers makes it harder for bad people to do bad things. It is for this reason that so many early Enlightenment political theorists seized upon the separation of powers as a weapon against despotic and absolutist governments. Faced with supreme monarchies, the Enlightenment philosophers realized the wisdom of dividing and conquering. They aimed to separate the powers, but only in order to reconnect them in subtle and ingenious ways – ways that tended to make corruption, despotism and the abuse of power harder and riskier.

(In this blogpost I have expressed all these insights in a very summary fashion, and of course more argument and defence would be required to show how they can combine in fruitful ways, and the conditions under which they will tend to work. Again, for those interested in knowing more, the issues raised here are dealt with in detail in Hugh Breakey (2014). Dividing to conquer: Employing the separation of powers to structure institutional inter-relations. Research in Ethical Issues in Organizations, 12, 29-58). (During July 2015, the Article may be downloaded for free.))

There is no political morality

This might seem a strange title for a blogpost written by a political philosopher, especially one that tends to harp on about the importance of human rights. Am I trying to put myself out of business? What on earth could I mean?

What I'm suggesting is that the only real, binding principles (rules, virtues etc) we possess are moral ones, governing how each person should treat each other. I’m suggesting we should resist believing that independent, new moral principles emerge once we start thinking about the domain of political authority and political community. Of course, I agree lots of political principles remain immensely important—the separation of powers, the rule of law, democracy, rights and so on. I doubt, though, that any of these principles enjoy their own independent moral validity. Rather, I think these principles draw their justification from pre-existing moral principles—the same moral principles governing how you and I should treat each other in general, including if we met on a desert island. We wind up with the rule of law, rights, checks and balances, and all the rest because these principles reflect our ordinary moral duties and entitlements writ larger, and shaped out of the capacities and the threats of these political institutions.

What's the big deal?

‘So what?’ you ask. I think denying political morality matters because so many people throughout history believe in it. They hold that political morality exists as an independent entity. It is autonomous. By ‘autonomous’ I mean political morality inhabits a normative realm unto itself. It cannot be derived from ordinary personal morality. Funnily enough, people who believe this still tend to agree about all the ordinary, interpersonal moral principles. They agree we should not lie or cheat, harm or kill; we should not seize more than a fair share of things we have not created; we should help others in need. And so on. But once we come together as a political community, now, they think, entirely new ways of governing our lives should rule! Now we can rethink everything! Now we are empowered to come together as distinct parts of a single organic unit, a magnificent polis or grand nation-state! Or we must all now start following and drawing our law from exactly the same religion or from some community-constructed ‘form of life’! Or (a present fashion) now we can start living by entirely new and deeper principles of equality, seeing every material difference between us as crying out for justification! Or (another present fashion) at last we can cast off our chains and start upholding stringent notions of absolute human freedom!

Practically no-one would advance these principles as ordinary rules of basic morality—as all of them effectively amount to using violence against people who are for the most part minding their own business and may well be upstanding and hardworking members of their local community. No-one would imagine that Alf should convert his neighbour Betty at the point of a sword, or force her to conform to some way of life he and his friends think constitutes objective happiness, or cut her down to his level when she prospers. But once we come together in a state, all this changes, and all these things are now possible: we effortlessly and unthinkingly adopt new political principles justifying all this and more.

So this is what I am arguing against: any autonomous political morality that puts forward new principles of justice that we would not propose as part of ordinary interpersonal morality.

John Locke’s ‘State of Nature’

I think this rejection of independent political morality helps us understand the views of the seventeenth century liberal philosopher John Locke and the way he uses the ‘State of Nature’. Effectively, Locke’s state of nature amounts to nothing more than ordinary people governed by ordinary morality. We all respect each other’s rights; we tolerate their religious practices; we make sure we don’t take up so much of the local resources that others don’t have their own resources to work on; we acknowledge that needy people in tough situations need help; and so on. And we never use violence—unless someone has breached one of these rules against us, in which case we may strike back and defend our rights. Sometimes theorists speak as if Locke’s state of nature must be anti-social, pre-social or pre-institutional. I suspect this view arises not so much from a misreading of Locke as from a failure to read him at all. To the contrary, in Locke’s state of nature we all live in communities, we travel, we trade, we build families and churches. We’re not perfect, of course. But almost all of us share a solid understanding of what the right thing to do is, and more often than not we do it.

Locke’s state of nature differs dramatically from that of his fellow seventeenth century political theorist, Thomas Hobbes. In Hobbes’ state of nature, no-one accepts any moral rules. Trapped in Hobbes’ brutal state of nature, fearful for my own security and unbound by laws, Hobbes recommends I strike at my neighbours before they can strike at me, and his state of nature collapses into the war of all against all. And this collapse renders the life of man, in words that echoed down through the centuries, ‘solitary, poor, nasty, brutish and short’.

In comparison, Locke’s state of nature sounds pretty idyllic, right? 

Wrong. 

In technical philosophical terms, Locke’s state of nature sucks. Why? Because its members acknowledge no settled and known law, they lack an agreed person to adjudicate when violations to the law occur, and they possess no accepted authorities to exact punishment or ensure compensation for wrongs done. Even if most of a community’s members really try to do the right thing most of the time, conflicts routinely erupt and foment further conflicts in turn. Each of us has the power to be judges in our own cases, exacting punishment as we see fit, with predictable enough results. Each person sees themselves as performing just retribution and compensation. Everyone else sees them hell-bent on revenge and theft. We didn’t start where Hobbes thought we did—but, on Locke’s telling, we sure do finish there.

Still, humans often rise to the level of creative, problem-solving creatures. Can’t they fix things? Hobbes and Locke both thought they could. However, because Hobbes thought humans were so selfish and bereft of human virtue, he thought they needed a radical solution to the state of nature. They needed to hand over almost all their rights to a supreme political sovereign, who would wield enough absolute power to keep them all in check. So far as any morality enters into Hobbes’ scheme, it enters here. The violence of the state of nature horrifies the people so much that they create morality to defend against it. So Hobbes’ position turns out to be the exact opposite of Locke’s. For Hobbes, people possess no ordinary everyday morality, only political morality.

Locke’s people in the state of nature suffer the same threat of violence, but here’s the good news: they have more to work with than Hobbes’s warmongers. They don’t need to invent morality—they already possess it. And while things would be improved if there were settled and reliable punishments for doing the wrong thing, they don’t need fear of punishment to do all the work in driving their moral action. They already possess the capacity for virtue and decency. Their problems are alarming, yes, but rather specific for all that. They just need to get together, in a good faith and an amicable way, and work out ways of setting down stable laws, coming up with independent judges to adjudicate on them, and on a police force and army that will execute them. I mean execute the laws, that is. The people must remain vigilant not to make a police and army that executes them, the people. That would just swap the problem of local internecine violence for the problem of systematic slaughter and oppression. That problem may not have worried Hobbes (seriously, what was he thinking?), but it worried Locke; and rightly so.

So what’s the result? The citizens come together and create institutions to fix their problems. They create democracy, the rule of law, rights and the separation of powers. They don’t do this because they came to any profound moral realizations about new ethical principles that must suddenly apply because they have joined together into one political community. To the contrary, they craft these new political principles because given empirical descriptive facts about humans, power and institutions, practices like democracy and the rule of law prove necessary to realise the original moral principles they all held in the state of nature.

So that’s what I mean when I say there exists no political morality independent of ordinary morality. We derive all of our political principles from our pre-existing moral ones. I don’t pretend this will prove an easy or straightforward process. In fact it poses a raft of challenges. Instead of invoking some abstract political theory—some exciting new contract theory from an original position, for example—we have to slowly learn, through trial-and-error as much as theory, about how institutions and practices both protect and threaten the common-sense rights we held in the state of nature.

Why believe it?

But why believe this idea about the non-reality of political morality? Here are four quick reasons. One, we find much less disagreement about what ordinary common-sense morality requires, as compared with political principles. Lots of moral theorists suggest that there are striking similarities across cultures regarding proper treatment of one’s fellows. Now maybe you think this is taking it a bit far, but no-one would even pretend to make the same claim about political morality. For when it comes to what a political regime should do, theories and practices clash violently. If we can get by without provoking all these disagreements by relying on an area of moral thinking where we find more substantial agreement, then that seems a welcome result.

Second, if we want peace and prosperity to reign, then people need to comply with and support the laws and institutions governing them. If the community-members recognize that the coercive institutions governing them ensure that they perform duties they readily acknowledge as morally required, then their own moral emotions, habits-of-life and ways of thinking bulwark those institutions. For example, they contribute to institutions to help the needy because they can all imagine small-scale situations (children drowning in ponds, for example) where they would be duty-bound to help nearby people in desperate need. While people can agree to exacting political principles in the abstract, in my experience this is never accompanied by a revolution in their moral psychology and habits of life. Divesting ourselves of autonomous political morality helps forge a match between our moral emotions and what the institutions around us are trying to do.

Three, this theory accords with many intuitions I think we might share regarding political institutions and their legitimacy. If trying to create ordinary morality on a political scale led to lots of crazy results, then that would be a reason to doubt what I am saying. But instead we can move—as Locke himself described—from the dictates of ordinary morality to show how their institutional implementation gives rise to many of our most prized political institutions and principles, including democracy, rule of law, separation of church and state, toleration, separation of powers and so on. In other words, from a concern with ordinary morality we arrive at a decent picture of political morality, upholding many of the most important institutions of western democracies, and sitting neither to the extreme left or right of the political spectrum.

Four: Ockham’s razor. If we can derive a decent theory of political morality from ordinary morality, then why complicate matters by appealing to something altogether new? The simplest solution appeals to as few elements as possible, using one set of (moral) principles to explain a different set of (political) principles.

Conclusion

Of course, I can’t pretend to have said everything that needs to be said to vindicate my position, or even to fully explain how it works in practice. But I hope I have done enough to open your eyes to the possibility of a distinct way of thinking about political morality—namely, that it doesn’t exist in its own right! If I am correct—and if thinkers like Locke were correct—then we build political morality from the scaffold of ordinary interpersonal morality. 

"I knew it!" Confirmation Bias and Explanation

Source of all evil or defender of all freedom? How the same
event can seemingly justify directly opposing beliefs.

“Confirmation bias” refers to the well-known human foible of favouring their existing beliefs and commitments, even in the face of conflicting evidence. For instance, if you believe that some person – Annie, say – is a shifty person, you will have a tendency to hold to that belief over time, and even come to believe it more strongly. Psychology experiments suggest that confirmation bias works in a variety of ways – including biasing the search for evidence (we search for data that supports our belief, rather than data refuting it), the interpretation of evidence (we look for weaknesses and ambiguities in evidence that questions our belief) and the memory of prior evidence one has been exposed to (we have faster and more thorough recall of confirming rather than dis-confirming evidence). Through these three methods, human beings show a decided tendency to cement their initial beliefs rather than revising them. In some cases confirmation bias can be very powerful. If people are exposed to evidence that Annie is shifty, say, and then shown beyond all dispute that this initial evidence was fabricated, they will still tend to harbour suspicions about Annie’s character that arose on the basis of that evidence, even though they will explicitly acknowledge and believe that the evidence was false!

Of course, confirmation bias is not insurmountable. People can and do decide they were wrong about something; and can recognize and choose to use tests and lines of enquiry that will expose their mistaken beliefs.

Confirmation bias and philosophy

Does confirmation bias affect philosophers too? There are good reasons to believe it does – consider the old saying that “being a philosopher means never having to admit you’re wrong”. The worry expressed here is that philosophers will use the sizable intellectual tools at their disposal to critique and interrogate opposing theories and evidence, and search out subtle cases of confirming evidence. In so doing they will corroborate their initial position, rather than using those intellectual tools to honestly enquire into it. And certainly wholesale changes of philosophical theory by established philosophers tend to be pretty rare. To be sure, philosophers develop their positions over time, revising and responding to new evidence and argument, but direct moves into the opposing camp don’t happen a lot, in my experience at least. (And I have no particularly special virtues in this regard either, of course.)

And it is probably fair to say such biases arise in the emotionally charged milieu of political philosophy even more stridently. Those who think that capitalism is a pretty good idea sometimes seem to be able to find confirming evidence for this belief every day and in every way. And the same is true for those who think capitalism is the fundamental source of every misery in the world. No possible horror can beset humanity without an explanation leading back to capitalism.

Explanations of confirmation bias

So why do we all do it? Well, there are lots of different reasons that have been put forward for this human tendency to cement our beliefs over time. For instance, having to reject a belief is cognitive hard work. The type of thinking that would reject the belief can require effort. Furthermore, the type of thinking that follows from revising the belief takes still more effort – do other beliefs now have to shift because that first one has been rejected? And since human beings are largely prone to avoiding effort, we are motivated to avoid these situations of mental heavy-lifting. Easier to stick with what we know.

Also, the more we understand our world, the better we are doing, and the more secure we feel. Beliefs underwrite our actions and our projects in the world. If our beliefs can be relied upon, then that enhances our ability to predict future events and attain our goals. Finding out a prized belief is wrong threatens that happy security.

And there is a social factor. The more we change our mind and revise what we have said, the less others can feel confident in relying on us as a valuable source of information and insight. Since most of us like our views to be taken seriously, a habit of admitting defeat carries social costs.

There’s a lot to be said for these sorts of explanations of confirmation bias – and the countless others out there in the psychology literature. In all likelihood, confirmation bias is over-determined – there are lots of reasons we do it.

However, I want to reflect on the possibility that confirmation bias arises from largely rational, sensible ways of thinking – in particular the search for explanations for events.

Confirmation bias and seeking explanations

Imagine something strange happens in the world – something you can’t explain. But it is (just suppose) important for you to be able to understand it. So you seek an explanation for it.

What does that involve?

Well, one of the main things it will involve will be aligning this new event with your current beliefs. If you can work out how this new thing happened, given what you already believe, then you will have explained that event. If you can work out how the facts as you currently understand them would have caused (or at least allowed the possibility of) this new event, then you will have explained it. That, pretty much, is just what it means to have an explanation.

So when you start searching for information to explain the event, you search for what we might call linking facts; facts that would allow you to move from your beliefs as they stand to the occurrence of the event.

Current beliefs + Linking facts = Explanation of event (or phenomena)

This, I hope, is pretty straightforward. If we want to understand something, there’s no point aligning it with other people’s beliefs (how would that help?), and no point trying to explain it from first principles all the way up (couple of years to spare?). The new phenomena is understood and explained only when it makes sense, given what we already accept. This doesn’t mean that the linking facts can’t replace or force revision of existing beliefs, but it does mean the existing beliefs fundamentally frame what counts as an explanation.

In fact, this search for linking facts has at least two results.

First, the type of linking facts you are looking for will vary depending on what your current beliefs are. If you believe that the United States is ultimately the root of all international problems, for example, then you will search out the type of linking facts that will explain the current phenomena – the situation in Syria in 2012, say – with the US. You will look for the involvement of the CIA, the pressure the US exerts on the global media, its historical influence on and action in the Middle East, its current oil interests in that region, and so on and on. On the other hand, if you believe that most of the world’s problems arise from extreme ideologies and fundamentalist religious beliefs, then you will search for very different sorts of linking facts.

Second, the search for linking facts will determine when your investigation stops. Once you have located the required linking facts, then the event is understood and explained. You can stop searching. So once you have found – to return to the example – that the US has CIA agents at work on Syria’s border with Turkey, that it has a history of animosity with the Syrian regime, and that Syria is an ally of Russia, then you have explained the Syrian crisis and the way it is presented in the mainstream media.

Job done. Move on.

And, of course, if you had started out with concerns about religious extremism, then in all likelihood a different set of linking facts would have been discovered, and the search stopped at that point. In other words, you will not continue to search in such a way that you might, (a) find subsequent facts that disprove the existence of your linking facts or impact on their capacity to explain the event, or (b) find subsequent facts that would better account for the event, using an entirely different explanation.

Now this search for explanation is not in any sense irrational. But it can clearly contribute to confirmation bias. As well as constraining the nature and end-point of the search, it cements the initial belief even further.

Why?

Because now that initial belief (about the role of the US in world affairs, say) helps explain this new event. The fact that it can explain this means you now have one more reason for believing it. If someone else later challenges this belief of yours, you are entitled to think: “But wait, clearly the US is playing this role, because I found evidence of its presence in the Syrian crisis.” You did not set out to test this belief, but you nevertheless ultimately collected evidence that helped justify your continued belief in it. In this way consideration of the same event by two people with different starting beliefs, even with access to the same information, will contribute for each of them to their justification of their initial beliefs.

And that’s a problem, because it means that confirmation bias arises from what are otherwise quite sensible and effective methods for understanding and explaining events.

“Since you’re a philosopher you must know…” (#4 on the list of top ten things not to say to a philosopher)

So this is basically a gripe.

Read Pufendorf? Wtf? I haven't even read the contents of my own bookshelf!

There are a lot of things I like about being a philosopher. One of the things I like is that when people ask what I do I can tell them I’m a philosopher. Because of the type of places I like to hang out, this often results in them asking me what a philosopher is, which usually means we wind up talking about philosophy. This, for me, is a pretty happy result.

But sometimes it doesn’t work like that.

Sometimes, the person does know what philosophy is. In fact, they have read some, or heard of some somewhere. And finally, they have met a real, live philosopher to talk to about it.

Which is great!

Except when they say:

“Since you’re a philosopher, you must know and have read such-and-such…”

And then, when you tell them you haven’t read it, and maybe don’t even know much about it, their face falls in disappointment. How can you – a professional philosopher – not have read the one piece of philosophy that they have read? It’s like meeting a scientist who says no, she’s never actually encountered the third law of thermodynamics before, but she’s really interested in hearing about it from you. Wtf?

Often, it isn’t even laypeople who do this. In its most prevalent form, it comes from other academics and intellectuals. You stumble into a law seminar and they figure you’ve spent years studying Marx, or at least Macpherson on Locke. You visit the social sciences and they’re pleased they have someone to explain Foucault to them. You flee to the hard sciences, where it is inconceivable you haven’t read Popper and Kuhn.

The basic problem, I take it, is that non-philosophers simply have no idea how vast philosophy really is.

Let me give an example. A few years ago I had the pleasure of teaching on one of my favourite subjects; the nature of moral values, relayed through its history since the Greeks. I agonized over what to put in and what to leave out, and wound up picking a selection of the usual suspects: Plato, Aristotle, Epicurus, Epictetus and the Stoics, Aquinas, Hume, Kant, Mill, Nietzsche and G. E. Moore. No real surprises there.

But let’s canvas (as we did briefly in the first lecture) who’s not featuring. The dramatis personae of those who didn’t make the cut is arresting. Most of the major political philosophers have been ignored, including those who had an enormous amount to say about moral values. The inclusions don’t even make space for the philosopher who often heads polls of the public’s view of the greatest and most influential philosopher of all time: Karl Marx. Nor does it include his immensely influential predecessor Hegel. The philosophers who most shaped the political landscape around us are missing: Hobbes, Locke and Rousseau. The philosopher who perhaps alongside Nietzsche gave us the single most sophisticated study of the moral psychology doesn’t get a mention: Adam Smith (yes, he actually did write another book as well as the “Wealth of Nations”). With the exception of Mill there are no card-carrying feminists – worse still there are no women at all (unless Harriet Taylor really wrote as much of “On Liberty” as Mill said she did); no Wollstonecraft, de Beauvoir,  Irigaray… There is no-one at all from the Germany or France in the last century, despite the litany of famous authors from there – Heidegger, Sartre, Derrida, Foucault… No environmental philosophers – Naess, Leopold.

And we are hardly getting started. Thomas Aquinas is the only exemplary religious philosopher included, despite the wealth of input from the Christian, Jewish and Islamic scholars on the Western tradition of ethics. Where’s St Augustine, at least? Which is another way of observing that the list of inclusions only portrays the most facile patina of historical coverage. After all, there is almost a fifteen-hundred year gap in the middle of the list (did you spot it? Between the Stoics and Aquinas). Are we really to believe that nothing worth inclusion happened throughout that vast span of time, as empires rose and fell, religious traditions clashed and laws developed and dissolved? And don’t even get started on the anglo-centricity problem. Surely the Confucian tradition, at least, warrants mention. And what about the input of non-philosophers? Ever heard of that Charles Darwin fellow? He had a bit to say on the nature of morals. And the sociologists – Weber, Durkheim? And the psychologists and psychoanalysts – Freud, Piaget, Kohlberg, Gilligan? Not worth a mention?

One could go on.

And on.

The point is this: the history and content of moral philosophy – itself just one section of philosophy– is enormous. It is possible to reasonably demand a justification for the exclusion of every given one of these philosophers named above. But that’s just the point. Every one of those philosophers, and many more, warranted coverage in a course of this sort. But, it hardly needs to be said, the course only had so many lecture-slots, and harsh decisions had to be made.

Hegel? Cut.

Hobbes, Locke, Rousseau, Smith? Cut.

Anyone French? Cut.

Anyone writing in the last hundred years? Cut.

The rest of you name-brand guys are in.

Oh, except you Marx. You’re cut. No, I don’t care what that bloody poll said.

And just as there are only so many lectures in a course, so too there are only so many hours in a day, and only so many books that can be read. Most decent philosophers take months if not years of study to understand, and philosophers, like everyone else, need to specialize. So the chances are ultimately pretty high that if a layperson or an academic from another field has just bumped into a particular philosopher’s book, or just knows the philosophy that relates to their own domain, that I simply haven’t read it. Sometimes I won’t even have heard of it. And I doubt the problem is confined to me; most philosophers would encounter this (though maybe they don’t worry about it as much as I do).

What’s the cause of this problem? Is it simply that those who bump into some philosophy just assume that – if they as a non-philosopher have encountered it – then surely it must be a central text within philosophy itself? Is it a type of optimism they have that what they read actually mattered, and that the time spent wading through that forty pages of ethical argument at the end of ‘Atlas Shrugged’ was worth it? (Gracious – I didn’t even mention non-academic philosophers above!)

Or is the problem with we philosophers? Is it a function of the fact that philosophy never wholly dispenses with its past? Philosophy snowballs through history, gathering accretions but only rarely shedding them, to the point now where a person conversant with the works of every name mentioned above appears more like a polymath than a recognizable philosopher. Granted, there are occasionally efforts to excise vast parts of that history, and so to make philosophy more manageable. Analytic philosophy in the early 20^th Century – under the spell of logical positivism – tried something like this with all those “unscientific” forebears. So too postmodern theory is all-too-easy to be taken as an excuse for not bothering with all those superseded dead, white males from modernist days of yore. I wonder what a tremendous intellectual relief it must be to have some excuse for ignoring all these thousands of years of philosophical thought. But – in the end – we keep going back for more. One generation casts aside Kant, and the next resurrects him. The struggle between Plato and Aristotle begins anew. And the snowball ever grows.

Perhaps the problem is with the way we philosophers write our books. When a layperson or non-philosophy-academic picks up one of our books, it’s unlikely they’ll be bearing in mind that this is just the latest offering on a question millennia old, on which countless theorists have written and are still writing. On which countless wrong turns have been taken and dead-ends found. The reader has happened across just one tiny drop in the ocean of thought, just one skittering pebble in the vast avalanche that is philosophy. Hopefully, of course, the drop might turn out to be an important one, the skittering pebble might be one that ramifies into a new avalanche – but such questions might not be settled for decades or even centuries after publication. In all likelihood, the drop will remain a drop, the pebble just a pebble.

Try putting that as the cover blurb on your new book.

Goodness knows I haven’t. So perhaps ultimately the fault is – at least in part – one of my own making. Perhaps philosophers have a tendency to present to their readers a view of philosophy as so much smaller than it actually is, so as to make our own works comparatively so much larger – and therefore worth reading and thinking about.

So – even though it didn’t make it onto the back cover of my upcoming book – this humble blogpost can be my attempt to communicate to the wider world the point that philosophy is big. Really big. And that the chances are pretty high that I have never heard of that dusty old tome you happened across in that delightful used bookstore.

But I’m happy to hear about it anyway.

The Meanings of Conservatism

Why is conservatism worth trying to understand?

For several reasons. First, conservatism is a genuine political force in many elections; many of the arguments that follow play a real role in many people’s thinking about politics, especially on certain issues. So too legislators and judges are always sensitive to the disruption of institutions and established expectations that can be effected by new laws and new interpretations of law. So it is worth understanding, even if only to be able to argue effectively against it.

Second, conservatism is often given a pretty short shrift in political philosophy, in the sense that is rarely engaged with seriously. For example, many lecturers in political philosophy courses don’t deal with it at all (yep, guilty as charged); and there is no entry on it in either the –otherwise excellent – Stanford Encyclopaedia of Philosophy or the Internet Encyclopaedia of Philosophy. Conservatism flies under the philosophical radar, and that’s an interesting fact in itself.

Third, while conservatism isn’t philosophically popular, communitarianism is. Like communitarianism, conservatism deals in tradition, practice, social identity, story and forms of life. But conservatism, it seems to me, is what communitarianism looks like when you’re not surveying it from the outside looking in, as if at an object in a museum, but when you’re on the inside, living it, breathing it and keeping it alive. And that is an important perspective to illuminate in political theory.

Fourth, conservatism isn’t just one particular standpoint; it brings together an array of arguments and beliefs, and it is possible to think that some, but not others, are sound. So a counter-argument to or rejection of one of the arguments offered below does not necessarily imply the defeat or irrelevance of any of the others.

A couple of preliminaries: First, from the outset I’m not dealing with the religious aspect of conservatism, though of course religion can form a major aspect of the institutions, practices and traditions that I go on to talk about. But it is the commitment to tradition and institution per se that is the focus here; and not on the role of religion (which can, of course, be as reformist as conservative).

Second, I have scant credentials as a conservative myself; I am by temper more Thomas Paine than Edmund Burke; more Amartya Sen than Roger Scruton. But I have sympathies with many of the conservative arguments that follow, even if I rarely find them decisive. My purpose here, in any case, is not to critique these arguments, but to set them forward as sensibly and reasonably as I can. Doubtless though, the arguments I tend to glean from the conservative canon are the ones I think are worth bothering with, so I make no claims of comprehensiveness. And do keep in mind that I’m not at all engaging with counterarguments here. Even though I think several of the points below are correct so far as they go, they are still vulnerable to powerful countervailing considerations.

Third, the main literary resource for what follows is Roger Scruton’s The Meaning of Conservatism (but as I think there are a multitude of arguments by and for conservatism, I have used the plural ‘conservatisms’ in my title). Edmund Burke plays a role too, of course, and I incorporate some communitarian points in what follows. But some of the following arguments are rarely made very explicit, and others are just more or less common-sense arguments for caution in policy-change from political theory generally. Finally, some (such as the brief discussion on adaptive preferences below) are probably more a product of my own thought than settled conservative doctrine.

Without further ado, eight arguments for conservatism in politics.

1. Conservatism as upholding established expectations

The most obvious point comes in first. People plan their lives and fashion their actions and choices to their expectations – especially their expectations about government policy and law. This is particularly true of long-term projects involving prudence, productivity and investment. Because such long-term planning is important for individuals, and very often desirable from a social and economic point of view, it is important to try to disrupt those expectations as little as possible. (Of course, this is not to say that no new policy is possible, and businesses have been known to try cleaving to expectations in the hope that they will then be substantiated by policy.) Disrupting expectations unsettles people’s current projects, renders pointless many actions they have taken on the basis of those expectations, and chills their enthusiasm for future long-term projects that may be similarly disrupted. In sum, ‘suddenly’ is a bad word in politics.

Expectations are also important in the context of adaptive preferences. Adaptive preferences occur when people constrain their preferences to the reality of their situation; we learn to stop wishing (really wishing, that is; fantasizing is probably fine) to be a prince, queen, rockstar, supermodel or dictator-for-life. While adaptive preferences have come under some fire in recent times, the thought that the best route to happiness and independence is to fashion your desires to no more than you can potentially achieve is an ancient and perennial one, and runs from the Stoics and Epicureans to John Stuart Mill (as I argue in the AJPAE 2010, if you’re interested in the ideas mentioned here). Happiness resides in enjoying the journey and taking pride in your decisions, not in making the world your oyster. If this is right, and adaptive preferences are indeed a key way for humans to pursue their own happiness, then establishing firm expectations for a citizenry, and then upholding those expectations against disruption and upheaval, is arguably a legitimate task for the state.

2. Conservatism as prizing what is going right

One might think that this too is an obvious enough point. Every society does at least some things right, and it is not an automatic feature of any given group of people that it gets those things (even very basic things) right. For example, if a society looks after its member’s rights adequately, tolerates minorities, or has peaceable relations with its neighbours, then those are features of its existence that are valuable. As such, they must be known and prized; without such a reckoning, ideas for reform or even revolution are reckless. In pursuing some other reform, we may in fact undermine the much more crucial and fundamental goods our society is providing.

Now I said above that one would think that this point is obvious enough – it is little more than the sensible advice that we should not throw the baby out with the bathwater. Understanding and appreciating what a society does right is at least as important as grasping its shortcomings. But it seems to me this point is not as widely appreciated as one might think. ‘Critique’ seems to occupy a privileged place in political and philosophical discourse; it is as if the person who judges their political environment as faulty has somehow achieved something important and remarkable as compared with the person who thinks things are going okay. But much as everyone may love to style themselves a Socratic gadfly, stinging people out of their dogmatic slumbers, the fact is that prioritizing self-critique over self-praise risks making the best the enemy of the good.

Here’s an example: a recent survey in my country, Australia, found that a little over 10% of the population harbour racist views. Which is more significant? That more than 10% of people in a society are racist, or that almost 90% are not? The conservative will worry that the blazing headlines saying ‘Australia is racist!’ misplace the achievement of a society that is reaching towards 90% non-racism (and, all the more, that such headlines give solace and support to the 10%, who are given the misleading impression they are part of a silent majority, rather than an embarrassing few).

Of course, an important factor in making these sorts of appraisals will be what the person thinks is likely to happen in the absence of society in general, and this society in particular. If outside of society, and in other different societies, people are very likely to (say) respect others’ rights, work productively, trust and be trusted, be peaceful and rational in their dealings with others, and not be racist and sexist, then if a society has (to some significant extent) all these features, then they cannot really be viewed as achievements of the society in question. If, on the other hand, the natural state of humans when bundled together in high numbers with scarce resources is not to display these felicitous qualities, then the society would indeed have features that are to be treasured and nurtured. So whether we cleave to a Lockean or Hobbesian state of nature, whether we believe in the noble savage or the Lord of the Flies, determines the touchstone we apply to our own society and its achievements.

Thus, taking again the racism survey as an example, if most societies in the contemporary context are, say, 2% racist and 98% non-racist, then it is not an achievement – it is in fact an embarrassment – to be on 10/90%. If the entire society were to be remodelled, then this would be one feature of the society we would be happy to consign to the dustbin of history. Conversely though, if the proportion elsewhere is more like 30/70% (this is the figure the survey’s authors put on comparative studies on racism in Europe, for example), then it is something to be treasured and celebrated that a society would be pushing toward 90%.

3. Conservatism as the salience of the status quo

One reason for leaving policy or a law as it lies is quite simple: to avoid the enormous social waste on squabbling, lobbying and politicking about where the boundary should be redrawn (and then redrawn again in the next election). There are all sorts of different political theories that make all sorts of different recommendations on any given policy issue. When there is genuine division within a community over the proper placement of a policy or tax, it can sometimes seem common-sense (except in cases of obvious injustice and manifest disutility) to simply leave it where it lies. The initial policy may have been arbitrary, but it can seem a more ‘neutral’, and so acceptable, position than re-figuring the policy in the favour of one side or other of the political divide.

An example where almost everyone will agree there is at least something to be said for this policy is, I think, is in the context of national boundaries. National boundaries are often poorly drawn on a variety of dimensions (especially when they are remnants of colonialist ventures, such as in Africa or the Subcontinent). But it can seem much sounder policy not to even open the question of how they could be better drawn, with all of the fractious and divisive emotions – and the ever-present threat of devastating internecine violence and ethnic cleansing – that will erupt as soon as the question is thrown open to dispute.

4. Conservatism as the social fabric determining the law

Moving into more controversial terrain, the thought here is that the law as written in statutes and legal constitutions is not enough to understand the law as it is enacted in practice. Judges and juries, and the community as a whole, interpret the law from their own lived experience of a form of life, their understanding of the history of the community, and their stance on what is and what is not appropriate behaviour. What counts as breach of contract, negligence, trespass, and harm are informed and shaped by the community stance and its history, just as much as what counts as giving offence, indecency, nuisance, and blasphemy. The social meaning given to all of these normative concepts is filled out by the community’s shared morality. Parliaments may pass whatever legislation they care to – but it will always be obeyed, interpreted and applied in a way that accords with community feelings about appropriate behaviour. And if it cannot be interpreted in that way, then the law will fail, one way or another. One cannot impose on a community laws that do not comport with its understandings about what is right and wrong, fit and unfit, and helpful and harmful to the society. The written law is simply not determinate or powerful enough to impose itself against the moral fabric. 

One can see elements of this wisdom in, for example, UN ‘community-based’ efforts to increase women’s rights. The received wisdom is now that one must use the people (including men), roles, institutions and traditions in the community in order to effect meaningful change. The point is to empower the elements within the society that wish to elevate women’s standing, and to persuade and educate the other elements, rather than to rest one’s case on state or international law, which cannot be effective without change in community mindsets.

5. Conservatism as the social fabric that holds the society together.

The argument here is that the fact that a society’s people are bound by legality is not enough to have a functioning, secure society, capable of sustaining itself against threats, pressures and the ravages of time. A society in the full sense of the world requires a level of shared values, shared ideas about justice and desert, and perhaps even about politeness, recognition, neighbourliness, respect, offensiveness, toleration, selfishness, treatment of children, marriage and courting, bribery and nepotism, and so on. These shared ideas are what make social life run smoothly, with less enmity and clashes between factions. A society abiding by the law only through the threat of the law’s force, and not a commitment to the values at work in those laws and to the legitimacy of the reigning legal authority, is no society at all. Likewise a ‘society’ where each part believes the other to be acting wrongfully and offensively, violating their proper rights, unable to be trusted in business, politics, religion or friendship, and awaiting only a growth in raw power to seize control of the state is no society at all. It is at best an unstable modus vivendi; at worst a bastard patchwork of disparate parts waiting only a flashpoint to spark the fires of hatred. Mere law and its force, in sum, do not constitute and cannot sustain a community; at least some level of shared moral perspective is required.

5a. Conservatism as Moralism

Because law is not enough to hold a society together in peace and mutual tolerance, there is a strong reason for law and political institutions being used to promote – or at least to facilitate –virtue. Law and institutions should be moralistic on this account; they should be shaped so that they help create virtuous persons. Institutions dealing with children are crucial in this regard; the next generation needs to be socialized into the sense of justice and respect for others that are required for the society (and the law in that society) to survive and flourish.

One particular aspect of this line of thought is to consider, when faced with a policy, not the question, ‘What good will this law create?’ but rather, ‘How will this law shift people’s motivations? What relationships will this law motivate and make possible? Will this law encourage people to be good, hardworking and trustworthy (say), or the reverse?’

6. Conservatism as the wisdom of practice, not ideas

Perhaps the most interesting contribution of conservatism, from a political-philosophic perspective, is the idea that wisdom can be found in action and practice that is not visible (and, perhaps, cannot even be made visible) by theory, discourse, or written law. The thought here is that sometimes people manage to work out solutions to problems without any over-arching policy discussion, theorizing, or determined implementation. Over time, people’s actions that were initially, perhaps, disruptive of others’ projects come to be integrated into the local way of life; implicitly and with no top-down ordering, people manage to get along, and work out ways of getting things done with others and alongside others.

A popular example might be the development of the common law. A more concrete example (and one with which I am more familiar) is in property arrangements, where local groups can over time develop highly sophisticated systems for managing commons and open-pool resources that are often disrupted (with bad results for both the local communities and the environment) when central governments try to take over running such resources with their rules, police and top-down policy. On this footing, too much theorizing, justifying and rationalizing over politics can be a very bad thing; it can struggle to notice, understand or bring to light the vast complexities of social relations that have been workably harmonized by - on the one hand - practice, trial-and-error and perhaps an instinctual, decentralized sense of justice and non-interference, and - on the other - by spontaneous, unplanned action. Unable to comprehend such myriad and involute complexities and relations, and their fittingness for local circumstances, political theory tramples straight over them. It derives its policy from a logical application of a laughably tiny handful of moral axioms, and is perplexed when its legal instantiation falters or elicits disastrous consequences.

Sometimes too, a decent result can arise from a balance of two separate powers, either of which on its own would be harmful. In such a case, ‘reform’ (and so constraint) of one side can be catastrophic, as it hands victory to the opposing force.

The image of society as an organism is often put forward by conservatives, but perhaps a better figure is one of ecology. In many respects, a human society behaves a lot like an ecosystem, with thousands of tiny inter-connections and relations, and a balance of powers creating equilibrium. (In this respect, it is worth noting that Aldo Leopold, the father of modern conservationism, argued for respect for ecologies by analogy to the features they shared with societies. Despotism and instrumental control, Leopold argued, are wrong and unworkable for the same reason in application to the environment as they are in application to human communities.) In ecology, policy-makers are now largely aware how difficult it is to do ‘just one thing’. Making one change in a complex and chaotic environment might achieve the desired end, but it may do so at the cost of disrupting countless other crucial symbioses, equilibriums and food chains. Just as in an ecosystem, in society one law that is intended to have a single, simple, determinate benefit can wind up shifting motivations, payoffs, balance-of-powers and myriad other factors to create serious problems elsewhere. Aid economies are a startling and pressing example of this point.

Ultimately – and it is a challenge to a very basic tenet of much political philosophy – the worry is that political theory is just too darn uncomplicated, too reductive and simplistic, to make sense of the historic and lived reality of the gloriously messy and complicated human animal and the types of social interactions they can construct.

7. Conservatism as patriotism

Conservatism supports the creation of a community to which a person can feel they belong, and which shapes what they understand as their identity. One cannot understand the ‘I’ a given person conceives without reference to the society in which they form (and see themselves as forming) one proper part. Equally, the society is a means allowing members to express their shared identity. Its laws, shared practices and institutions announce the presence of the member’s identity in the community to itself and the world.

This type of community acquires loyalty and patriotic feeling, which is a key fillip to moral action regarding one’s neighbours and compatriots (though, of course, moral action towards foreigners is a separate question). Self-love is expanded out by this feeling of community, as members increasingly identify with their compatriots, and – indeed – with their community as a whole, taking pride in its successes and feeling harms against it as harms against their own persons. In this way the member starts to consider and care for those practices and institutions that preserve and empower the life of the society. A healthy community is a viable entity; it contains resources, traditions, powers, practices and processes that ensure its preservation over time, and it is these that are the focus of the patriot’s care. (Of course, not everything that falls under the banner of ‘patriotism’ counts here. For example, as well as having the type of patriotism valued by the conservative, in my country of Australia there is also a rival brand of ‘patriotism’ that, so far as I can perceive, celebrates quasi-lawless, quasi-violent, anti-authoritarianism. It goes without saying that this is almost opposite to the type of committed loyalty envisaged by the conservative.)

8. Conservatism as tradition

There are a variety of ways of formulating the idea of tradition. Indeed, ‘tradition’ may be difficult to fully capture in words because there is a sense in which it transcends thought and language. One way is in terms of (what Macintyre calls) the internal goods of a practice. Communities over time develop practices that have their own internal pleasures, joys and standards, and have their own types of excellences to be pursued. Chess, sports, dances, intellectual pursuits, music, art and even politics itself can all offer profound gifts to those who become part of these traditions. On this footing, the valuable and attractive parts of a tradition are the internal pleasures and excellences that it affords those within it, who are thus motivated to protect it as a valuable and worthwhile form of life.

Another (sometimes inter-related) way of speaking of tradition focuses on the importance of the past practices that have a long local history. A child is born into such practices, coming to play a role perceived as being time-honoured, incorporating them to a past-but-still-living community and its way of being, and giving them a way of carrying on the journey and projects of their ancestors. Unlike a (Macintyrean) practice, there may be no internal goods in the sense of excellences and standards in these activities. In this case the history alone makes the activity worthwhile and meaningful – the history alone is what makes the act transcend its own limitations and become part of a story that began long before the actor was alive, and will continue long after the actor is dead. To take part in that story by carrying on the community's traditions, is to take part in the larger journey and form of life.

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Those are, as I see it, the premier eight reasons for being conservative. (Recall again that we have not considered objections or countervailing arguments, so nothing said here is intended to be taken as proven or decisive, though I hope that I have managed to suggest there is some wisdom and sense, at least, in each of the arguments.)

In the next few weeks, I hope to consider a few topics from the standpoint of conservatism, including gay marriage and immigration.