Strong Constitutions: Cameron Responds

Strong Constitutions

I am grateful to Jon Beasley-Murray for his review of Strong Constitutions. The greater part of the review is a perceptive and accurate account of the central argument of the book. I also appreciate the objections Jon raises, which I think are important and deserve a response.

First, Jon argues that Strong Constitutions, despite its critical intent, ultimately falls within the mainstream of political science. Indeed it rests on a kind of scientific naturalism that is as bad as the pseudo-scientific rationalism it rejects. Second, Jon suggests the argument of Strong Constitutions is actually a rather conservative one. It confuses description with norms—what is, with what ought to be. Such a view limits rather than expands human freedom because, in the end, what ought to be is reduced to what is. Finally, Jon is skeptical of what he calls the “humane” tradition rooted in Aristotelian practical wisdom.

It would please me a great deal if Strong Constitutions were to be seen as part of mainstream political science. I have a strong commitment to social science. I do not, however, think the social sciences should seek to replicate the natural sciences. Strong Constitutions is written in support of an interpretive or human science that starts with the recognition of the centrality of agency and purposiveness, intentions and goals. I can’t agree with the claim that the vision of agency in this book is “as reductive” as rational actor theories. For me—like many social theorists, from Guillermo O’Donnell, to Amartya Sen, to Martha Nussbaum, to Ken Sharpe and Barry Schwartz—agency implies practical reason and moral judgment, which are missing in rational actor models. I assume agents can plan their lives and distinguish right from wrong, good from bad. A social science theory that does not incorporate that human capacity is not just limited—it becomes complicit with the unchecked instrumental rationality that undermines practices and institutions that are vital to self-government.

This brings me to the next point. Moral judgment, care and concern for others, and deliberation about both means and ends in aid of sociability, are human capabilities. They are by no means unique to humans (precursors of morality can be found among other mammals, birds, and, yes, even fish!), but they are massively reinforced by the use of language. The fact that we are speaking agents, among other things, contributes to our potential to be moral agents—that is, the ability to construct ought-based institutions. That is the sense in which Hume’s law (you cannot derive an ought from an is) is flawed. Morality is an emergent property of human sociability, a necessary feature of conscious social activity. Morals are social facts.

Morals as social facts are often embodied in institutions. I attribute recognition of this to Montesquieu, which is why he is a forerunner of sociology (Durkheim’s claim), and that is not at all a bad thing—my work also purports to be sociological. What makes institutions so interesting, in my view, and this is lost in a positivist perspective, is that in order to work they have to make normative claims that are always contestable. Merely reading the riot act is never enough—as we can see today in Ferguson. The factual power institutions generate is grounded in contestable claims that involve ought-statements. These are the moral resources institutions can mobilize, though they often fail to do so.

A critical insight of the book is that planning an action or activity before and judging the action after it has been executed are fundamentally different kinds of things. The first involves deliberation about the aims of an activity and how to achieve them. The second involves judgments about whether the aims were right and the means the best suited to achieve them. That these are not distinctions made in rational actor models is obvious, since such models focus on means-ends calculations exclusively. For that reason, such models cannot explain our deliberative institutions except in highly “reductive” ways. By contrast, the view that institutions are emergent properties of social action that in turn shape and give potential to agents implies reciprocal causality (where the causal arrow go both upward and downward between agents and institutions). I agree this can seem circular, but it is not an iron cage. On the contrary, recognizing this fact is essential to progressive social change.

There is, in the social sciences, too much faux realism masking complacency about the status quo. I am happy to be associated with a more “humane” tradition, though that is not a label I would have chosen. But I don’t see any basis linking Strong Constitutions to a kind of law-and-order ethic. It is, instead, written in support of the idea that human freedom is a collective goal, and to be truly free and flourishing we need to be participate in collective self-government. That is, at their best, what constitutions enable.

My thanks to Jon for his careful reading and probing analysis.

Strong Constitutions

Strong Constitutions

Max Cameron’s Strong Constitutions: Social-Cognitive Origins of the Separation of Powers is a very humane book. I don’t particularly intend that as a compliment, though I suspect it will be taken as one. In any case it’s not such a bad quality, not least in a book of political science. For Cameron’s aim is to avoid the dull, specialized, statistics-packed, acronym-heavy pseudo-objectivity that is all too typical of his discipline. Indeed, he has little time for the entire panoply of “twentieth-century efforts to make the study of politics a science in the model of the natural sciences” (199). He wants, instead, to return to a better and kinder time when politics could be conceived as a gentler, more virtuous and moral, activity than it has been envisaged under the terms of today’s Realpolitik and Polizeiwissenschaft. So, despite the overlaps with (among others) Jürgen Habermas’s theories of communicative rationality or Amy Gutmann and Dennis Thompson’s notions of “deliberative democracy,” Cameron suggests that something went wrong in political theory shortly after Montesquieu–or, oddly, just before the French and US Revolutions and so at the very dawn of the great age of constitution-writing. Indeed, the real hero of this book is Aristotle, and the Aristotelian conception of “practical wisdom.” The highest praise paid to Habermas, then, is that he “brings political theory back, full circle, to Aristotle” (157), while Montesquieu marks an end to things in so far as he was “the last great Aristotelian theorist” (92).

What results is a wide-ranging, ambitious, and often highly readable treatise on the function of the “separation of powers” within constitutional systems and constitutional thought from the Ancients to the present. Cameron makes two key points: First, that separating powers is not the same as limiting them. In other words, and against the common conception of “checks and balances”–the notion that the various parts of government need to be set against each other in order to ensure that none dominates the others–Cameron argues that it is only by keeping diverse forms of power distinct that we can have “strong constitutions,” that is, states and social orders empowered to organize and coordinate collective action. Rather than imposing limits, then, separation is best understood as a device to enhance each modality of governmental power and to ensure that together they are more than the sum of their parts.

Cameron’s second point is that the three modalities of power embodied in the legislature, executive, and judiciary are fundamentally all determined by their relation to written texts: writing, reading, and reflection. They are each, in other words, different aspects of the interpretative process in a system that is shaped by and dependent upon the written word. Constitutions are ultimately “texts that prescribe speech acts that are performed repeatedly according to a set of conventions and understandings” and thus give rise to “linguistically constructed worlds of shared meaning” (200). Hence, “reading” is far from a passive activity: when Cameron calls it a “speech act,” it is so in the sense that “reading the Riot Act” is a performative utterance with concrete effects on a given collection of human bodies. But such utterances are only effective if they are ascribed the requisite authority and legitimacy, and this (Cameron argues) is what the separation of powers ensures. If the Riot Act is read and the people do not disperse, then whatever the limited success of sending in the police with their batons and shields, something is wrong with the constitutional order.

So this is in many ways a very traditional book, almost refreshingly old-fashioned in its historical sweep and its attempt to rise above any geographical or cultural particularity as much as in its recourse to an old and somewhat out-of-favour theoretical tradition. Yet by putting language so firmly at the centre of its analysis, it also gestures to the so-called “linguistic turn” that has been so influential in twentieth-century social theory, even as mainstream political science turned its back on such theory in the name of rationalism and scientificity. Yet sadly, Strong Constitutions remains a work of the mainstream in so far as it, too, passes up on the chance for fruitful encounter with theorists of language, narrative, and political representation from Austin to Derrida, Althusser, Lyotard, Foucault, Laclau, Butler, or Agamben; some of their work is briefly cited, and there is a short if rather unsatisfactory discussion of Agamben in particular, but ultimately this is an opportunity lost. Here, I think, is where Cameron’s investment in the humane tradition does what is otherwise a fascinating and important book a signal disservice.

For ultimately, Strong Constitutions falls back on a scientific naturalism that is no less debilitating than the one that it (rightly) rejects in contemporary Political Science. We see this in the strange and wholly unexamined assumption that the separation of powers somehow replicates fundamental structures of human cognition: it “organiz[es] the state so that it has the same collective capacity for agency as the human mind: deliberation, followed by execution, and judgment of consequences” (166). This is surely as reductive a vision of agency as that of more conventional rational actor theory. Moreover, the invocation of “cognition” gives it a similarly spurious sense of scientific foundation–however much the first part of Cameron’s book suggests that ways of thinking are historically conditioned by communication technologies. Yet this assumption, that states act and think like people, and that people act and think according to these three particular categories, is central to what Cameron calls his “social-cognitive” approach, which is based on the notion that the separation of powers is “an organizational consequence of human cognition” (14).

Constitutions emerge then as less the product of human minds (as Cameron is otherwise keen to emphasize) than the quasi-natural attempt to mimic their thought processes. Not only does this lead to the very conservative confusion of description with norm: what (putatively) is becomes the model of the way things ought to be. Additionally, and despite his arguments against social contract theory, Cameron comes to remind us of Thomas Hobbes, who saw, as Sheldon Wolin is quoted as saying, “a potential congruence between the phenomenon of politics and the concepts of the human mind, provided that these concepts were founded on the right method” (qtd. 88). A new Leviathan emerges! So long, that is, as people do indeed think the ways in which they “ought” to think.

Where constitutionalism apparently doesn’t work out–as in the case of much of Latin America, we’re told–this is because of “entrenched patterns of social communication” that don’t fit the ideal model (178). Here, constitutions can’t very well do the job of bringing us to order, that is, of “bring[ing] speech and action into line with texts” (202). But then we are locked into a circular problem: if a constitution merely reflects (a given state of) human mind, mirroring its organizational features, then it can’t be expected to flourish in such barren social-cognitive ground. As Bertolt Brecht famously put it, “Would it not be easier / In that case for the government / To dissolve the people / And elect another?” Which, upon reflection, doesn’t seem such a humane option after all. And this is one of the cruel ironies of the humane tradition: that it has so often been so very inhumane in practice.

[Update: Cameron Responds.]