Checks and balances



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davidwootton@britishlibrary.net

Liberty, Metaphor, and Mechanism: “checks and balances” and the origins of modern constitutionalism.1

by David Wootton, Professor of Intellectual History at

Queen Mary, University of London

“So famous is the political theory of checks and balances, so well known to Americans, that he is a bold man who tries to say new things about it.” Stanley Pargellis (1938)2

1. Mechanical Systems. My subject is a topic which has been almost invisible to historians of political theory, the history of the concept of “checks and balances”.3 The phrase is widely used in contemporary discussions of power and its regulation, and it is precisely because it has become so commonplace that historians and theorists have found it entirely unproblematic, treating it as if it was not a technical language (with all that that implies in the way of intellectual preconditions and hidden presuppositions) but a mere manner of expression. For Garry Wills, for example, it is, when used by the founding fathers, simply “an old concept borrowed from mixed government theory”.4 There is a marked contrast here with the idea of the separation of powers, whose history has been carefully and intelligently studied.5

To study the phrase, one must make some straightforward distinctions. First, there is the history of the phrase itself, first used by John Adams (1735-1826, the second President of the United States) in his Defense of the Constitutions of the United States in 1787 (but “check and balance”, as we shall see, had been used by the radical Whig John Toland as early as 1701, and “balance or check” by the Civil War republican Marchamont Nedham in 1654).6 Then there are the histories of the words out of which it is composed, for, I will argue, “check” and “balance” have separate histories in political theory. But the history of words and phrases is an empty thing if it is not a way of studying the history of concepts, and any study of the concept of checks and balances needs to include a wider family of words (such as “control”, “clog”, “counterpoise”, and “equilibrium”) which were often used to discuss the same or similar ideas. What all these words take for granted, I will maintain, is the idea that a political system can be usefully compared to a machine. Indeed the language I am concerned with here is entirely metaphorical. Nietzsche said that truth is “a mobile army of metaphors, metonyms, and anthropomorphisms,” and the scientific revolution serves as a useful illustration of his claim: it is impossible to imagine what has been called the mechanization of the world picture without the metaphors of clock, machine, and automaton, without the metonymic (or perhaps rather synecdochic) distinction between primary and secondary qualities which lies at the heart of the mechanists’ enterprise, and without the anthropomorphic conception of God as a clockmaker.7 And this new mechanical world picture provided in its turn a series of metaphors for talking about political constitutions.

This paper will thus demonstrate the need for a more careful attention to language in the history of political theory. Despite the fact that the Cambridge School have always stressed the importance of linguistic change, only a rather narrow range of terms, such as “state” and “liberty”, have been studied historically; part of my purpose here is to show that words that apparently have nothing to do with politics, words such as “system” and “machine”, can be central to the history of political theorizing.8 Indeed a study of the history of a phrase like “checks and balances” may give us a different understanding of its range of possible meanings. The Cambridge School have often claimed that the history of ideas can contribute something to normative moral and political philosophy.9 The conclusion of my argument is that contemporary references to “checks and balances” miss the most interesting of the ideas that have been embodied in the phrase.

I began with a complaint about the history of political theory, so my first obligation is to show that historians of political theory have failed to think about checks and balances. One example can stand for many. Few texts in the history of political thought have been more widely influential than John Pocock’s 1977 introduction to James Harrington’s Political Works. There he argues that classical republican theory (a term of art including Ancient Romans such as Cicero, Renaissance theorists such as Machiavelli, and English Civil War republicans such as Harrington) had, since Polybius in the second century BCE, been preoccupied with the idea of how to achieve political stability through balancing monarchy, aristocracy, and democracy. This problem became central to English-language political theory a few weeks before the start of the Civil War, when Charles I issued His Majesty’s Answer to the Nineteen Propositions of Parliament, which stated that “There being three kinds of government among men, absolute monarchy, aristocracy and democracy, and all these having their particular conveniences and inconveniences, the experience and wisdom of your ancestors hath so molded this out of a mixture of these as to give to this kingdom (as far as human prudence can provide) the conveniences of all three, without the inconveniences of any one, as long as the balance hangs even between the three estates…”10 With these words Charles abandoned any claim to absolute rule and provoked what Pocock calls “a true revision of paradigms”, a revision embodied in Philip Hunton’s A Treatise of Monarchy (1643): “Hunton assumed that England was a mixed government, a balance of the independently subsisting forces of monarchy, aristocracy and democracy, just as described in the Answer to the Nineteen Propositions; and he further pointed out that in a true balance, each power checked, but none controlled, the other two, with the consequence that no human authority was above the balance or was competent to command once it had broken down.” Hunton, we are told, “had employed the republican vocabulary” and it would seem natural to assume that that vocabulary was one of balances, checks, controls.11 It comes as something of a surprise to turn to Hunton and discover that Hunton uses none of these words, either in the Treatise or in its subsequent Vindication (1651). I think it is reasonable to complain that Pocock has read the concept of checks and balances back into the Treatise, where it is not (or is barely) to be found.

It is true that Hunton once addresses the idea of the balanced constitution, though in his own language:

in such a composed state [i.e. a monarchy mixed with aristocratic and democratic elements], if the monarch invade the power of the other two, or run in any course tending to the dissolving of the constituted frame, they ought to employ their power in this case to preserve the state from ruin; yea that is the very end and fundamental aim in constituting all mixed policies: not that they by crossing and jarring should hinder the public good; but that, if one exorbitate, the power of restraint and providing for the public safety should be in the rest: and the power is put into divers hands, that one should counterpoise and keep even the other: so that for such other estates, it is not only lawful to deny obedience and submission to illegal proceedings, as private men may, but it is their duty, and by the foundations of the government they are bound to prevent dissolution of the established frame.12

Restraint and counterpoise, one might argue, are terms strictly analogous to checks and balances. But restraint is a virtue as well as being a metaphor about limitations on freedom of action. Hunton’s own summary of this passage, in the Vindication, is “My third argument for mixture was from its end, which was restraint from excess.”13 “Excess” is clearly a normative concept – indeed, in an Aristotelian world, where virtue is defined as a mean, “excess” is by definition a vice. Hunton has no interest in pursuing the concept of a balance beyond this passing remark because he is interested in authority and right, public good and private duty. To think seriously about checks and balances one has to start thinking about political systems in value-free terms, and to see them, indeed, as systems which can usefully be compared with mechanical systems.

It would be surprising indeed if Hunton was interested in doing this because the vocabulary he would have needed would have been as much mechanical as republican. In 1648 we find the first reference to the science of mechanics; it is followed in 1662 by mechanism; and in 1673 the word machine is first used to mean an apparatus for applying mechanical power – engine had been the English translation for the Latin machina until then. Thomas Hobbes, for example, described a watch as a small engine. John Evelyn, the diarist, is credited with being the first to introduce into English another word with a related meaning, but with a Greek origin, automaton (1645).14 In all the early usages the standard example of a machine or automaton was a clock, and like clocks before them, machines and automata soon became powerful metaphors for thinking of God, thinking of God as a clockmaker and the universe as a giant clock: as early as 1587, in a translation of the leading French Protestant, Philippe de Mornay, we find the heart described as a divinely constructed clock.15

The idea of a system of checks and balances implies an idea of a constitution as a mechanical system, and that implies an interest in mechanism. The earliest reference to a “political machine” that I have been able to find is in John Dryden’s edition of Plutarch’s Lives (1683), in the life of Lycurgus:16

when he perceived that his laws had taken deep root in the minds of his countrymen, that custom had rendered them familiar and easy, that his commonwealth grew apace daily, and was able to go alone, he had such a calm joy and contentation of mind, as Plato somewhere tells us the Maker of the World had, when he had finished and set this great machine a moving, and found everything very good and exactly to answer his great Idea; so Lycurgus, taking an unspeakable pleasure in the contemplation of the greatness and beauty of his work, seeing every spring and particular of his new establishment in its due order and course, at last he conceived a vast thought to make it immortal too, and, as far as human forecast could reach, to deliver it down unchangeable to posterity.17

Here machine translates the Greek word cosmos.

Within a few years such usages of the word were common. Here the key figures are John Trenchard, his friend Walter Moyle, and their associate John Toland, the three of whom played the central role in refashioning the republican intellectual tradition to justify opposition to William III’s efforts to build a strong state, capable of withstanding attack by the France of Louis XIV. These radicals insisted that a professional army (particularly if kept up during peace time) was (as republicans had often claimed) a dangerous threat to political liberty. In An Argument Showing That A Standing Army Is Inconsistent With A Free Government (1697) Trenchard and Moyle say that their objective is “to put in motion this machine of our government, and to make the springs and wheels of it act naturally and perform their function.”18 Soon afterwards, Trenchard, in his “incomparable preface” to his Short History of Standing Armies (1698), argues that “a government is a mere piece of clockwork, and having such springs and wheels, must act after such a manner: and there the art is to constitute it so that it must move to the public advantage.” The secret is “to make the interest of the governors and the governed the same”, “and then our government will act mechanically, and a rogue will as naturally be hanged as a clock strike twelve when the hour has come.”19 Moyle, writing An Essay on the Lacedaemonian Government in the same year, maintained that the best constitution provided “a proper distribution of power into several branches, in the whole composing as it were one great machine, and each grand branch was a check upon the other; so that not one of them could exceed its just bounds.”20 It is not a coincidence that Toland, who may even have collaborated with Trenchard and Moyle in writing the Argument, uses the phrase “check and balance” soon after.21 One of their critics was dismayed by the effectiveness of this new language: “Can you bear smiling at the simplicity of mankind, to find how many swallow your notions, because you talk so finely for liberty, a militia to defend it, and engineering in your studies?”22 (This, by the way, is more than twenty years earlier than the OED’s first recorded use of “engineering” as a noun.)23

In the light of my earlier reading of Hunton, you will expect me now to argue that this new mechanical language was linked to a rejection of moral categories in political analysis. And this is indeed the case. Trenchard, Moyle, and Toland, former Whigs, found themselves in alliance with former Tories, such as Harley, in attacking the new party of big government, the court Whigs.24 They were well aware that those in power shared (at least in theory) many of their principles. And they repeatedly acknowledged that William, as king, was both a legitimate ruler and a man to be trusted – it was essential that their attacks on his policies should have no hint of Jacobitism. But their claim was that good men would eventually be replaced by bad men (it was only a short step, but one they hesitated to take, to claim that power tends to corrupt, and turns good men into bad), and that in the long run what counts is not the quality of the men or the rectitude of their intentions, but the nature of the political system within which they operate. As Trenchard and Moyle put it, “let us flatter our selves as much as we please, what happened yesterday will come to pass again, and the same causes will produce the like effects in all ages.”25 Moyle, writing to a friend, adopted a more learned language: “Thus you see, as a good author expresses it, eadem fabula semper in mundo agitur, mutatis duntaxat personis; which agrees with what Thucydides says in his third book, eadem accidere, donec eadem hominum natura.”26 The casuistical terms in which Hunton and his contemporaries had conducted their debates could thus be dismissed as irrelevant. Trenchard, writing years later as Cato, still dismissed the conventional preoccupation with virtue: “The experience of every age convinces us, that we must not judge of men by what they ought to do, but by what they will do.”27 The task of the political analyst was not to judge moral right and wrong, but to follow the chain of causes at work within a political system.

I find it easiest, as you will have noticed, to describe the new political theory by employing the word “system”. Harrington had written of “the system of the government” and “a system of politics”, but he seems to have had no immediate successors.28 Samuel Butler, in 1729, was giving the word (which had previously meant little more than an aggregation or grouping) a tightened definition when he wrote “The body is a system or constitution: so is a tree: so is every machine.”29 Once the word was readily available in this new sense it was quickly re-employed in political theory: it appears a year later in the first definition of the modern idea of a constitution in its political sense, Bolingbroke’s statement that “By constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions, and customs, derived from certain fixed principles of reason, … that compose the general system according to which the community hath agreed to be governed.”30 Indeed he uses it over and over again. The constitution is “a noble and wise system, the essential parts of which are so proportioned, and so intimately connected, that a change in one begets a change in the whole.” King and people are “parts of the same system, intimately joined and co-operating together, acting and acted upon, limiting and limited, controlling and controlled by one another.”31 But for the pioneers of the new way of thinking in the final years of the seventeenth century “system” was a word that was too imprecise to serve their purposes. The preferred word to convey the idea of an interacting system was, as in the quotation from Butler, “machine”. “Machine” was not a metaphorical term which stood in place of a readily available alternative; at first it was the only available term to convey the idea of complex interaction.

Even when the idea of a system was well-established, the reference to machines remained almost obligatory because the idea of a system remained entangled in the idea of a machine. Thus Adam Smith writes, in the History of Astronomy (c. 1749) (astronomy had played a key role in reshaping the word “system” because of its use in phrases such as “the Copernican system”), “Systems in many respects resemble machines. A machine is a little system, created to perform, as well as to connect together, in reality, those different movements and effects which the artist has occasion for. A system is an imaginary machine invented to connect together in the fancy those different movements and effects which are already in reality performed.”32 Trenchard and Moyle would have had no difficulty recognising the implicit claim that governments are machines in Hume’s rhetorical question in “Of Refinement in the Arts” (1752): “Can we expect, that a government will be well modeled by a people, who know not how to make a spinning-wheel, or to employ a loom to advantage?”33 It was still entirely natural for John Adams, writing in 1765, to compare political constitutions at length with the constitution of the body and with machines such as clocks (“a combination of weights, wheels, and levers, calculated for a certain use and end”) before concluding “government is a frame, a scheme, a system, a combination of powers for a certain end, namely, – the good of the whole community.”34 Indeed Sir James Steuart’s An Inquiry into the Principles of Political Oeconomy (1767) could, when discussing this topic at least, have been written at the end of the previous century:

It is of governments as of machines, the more they are simple, the more they are solid and lasting; the more they are artfully composed, the more they become useful; but the more apt they are to be out of order.

The Lacedaemonian form may be compared to the wedge, the most solid and compact of all the mechanical powers. Those of modern states to watches, which are continually going wrong; sometimes the spring is found too weak, at other times too strong for the machine: and when the wheels are not made according to a determinate proportion, by the able hands of a Graham, or a Julien Le Roy, they do no tally well with one another; then the machine stops, and if it be forced, some part gives way; and the workman’s hand becomes necessary to set it right.35

There would seem to be an obvious objection to this line of argument. Is not the concept of a political system, or something very like it, already present in Polybius? In the words of a mid-twentieth-century translation, Polybius held that Lycurgus, in reforming the constitution of Sparta, understood the perils of a simple constitution, and therefore:

Combined together all the excellencies and distinctive features of the best constitutions, that no part should become unduly predominate, and be perverted into its kindred vice; and that each power being checked by the others, no one part should turn the scale or decisively outbalance the others; but that by being accurately adjusted in exact equilibrium, the whole might remain long steady like a ship sailing close to the wind.36

There are two things that are disconcerting about this translation. In the first place, it brings together into the same sentence the words check and [out]balance. Here, though, it simply reflects the magnetic attraction of the modern phrase “checks and balances” – the early translations of Polybius that I have been able to consult do not use the word “check”, but rather phrases such as “mutually acted upon by opposite powers” or “each separate power being still counteracted by the rest”. Even more alarming is the phrase “like a ship sailing close to the wind.” In the first place, Greek ships could not sail close to the wind, so this must be a mistranslation; in the second place a ship sailing close to the wind implies a complex balance of a number of different forces – wind, sails, ballast, rudder – so if Polybius thought in such terms his notion of equilibrium would imply some sort of complex machine, not the simplest form of a balance, that of two weights in a scale – the sort of balance that has been familiar for millennia.

In fact, Polybius thought only in terms of the simple balance. The passage about a ship remaining in equilibrium while in movement, which might seem to suggest otherwise, has provoked much debate and continues to puzzle scholars because it contains a word found nowhere else.37 The best interpretation as far as the sense is concerned (I am not competent to comment on the technical problems presented by the Greek) is in a French translation of 1792, which assumes, quite properly, that Polybius is thinking of a galley: if only the rowers on the port side row the ship turns clockwise; if only those on the starboard side row it turns anti-clockwise; if both row together an equilibrium is established and it proceeds in a straight line.38 In other words Polybius is still thinking of a simple balance between two equal forces, not of some complex balance between multiple forces – not of what we would call a “system”, which needs to have several interacting parts. The standard modern translation takes Polybius to be talking about loading the cargo in a ship so it remains in trim as it travels along – again a balance of two equal forces.39 Moreover Polybius assumed that the balancing of forces would be the result of deliberate action, not the unintended consequence of an interactive process. Theorists such as Trenchard and Moyle were interested in the idea that a political system might be constructed so that it would generate outcomes (such as the public good) that none of the participants had intended to achieve.

Thus to describe Polybius as having the idea of a political system is to read systems analysis (itself an aspect of mechanistic thinking) back into a pre-technological culture. When he was first taken up in English the balance was only one, and not necessarily the preferred, metaphor for the imposition of due limits. Here is His Majesty’s Answer again: “… as long as the balance hangs even between the three states, and they run jointly on in their proper channel (begetting verdure and fertility in the meadows on both sides), and the overflowing of either on either side raise no deluge or inundation.”40 The mixing of metaphors here is testimony to just how little work the idea of the balance was capable of doing before the rise of mechanistic philosophy.

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