The rhetoric of public good has always been part of legal discourse; even scholars who are, one might think, hard-boiled legal positivists are surprisingly sympathetic to the idea that law inherently serves the public interest, as are, of course, the positivists’ critics and opponents. Mark Elliott and Robert Thomas capture this sentiment in their textbook Public Law, which I have just finished reading as I prepare to teach in the United Kingdom starting next month. Professors Elliott and Thomas write:
In a democracy, citizens elect a government to protect, advance, and serve the public interest. In normative terms, democratic governance presupposes that government acts as the servant—rather than the master—of the people. There are two dimensions to this notion that good governance means (among other things) governing in the public interest. The positive dimension is that government should make decisions that advance the public good. … Governing in the public interest has a second, negative dimension. Government must not act in a self-interested manner. (Ca. 401; paragraph breaks removed; emphasis in the original)
I suspect that most people, of all kinds of political and ideological persuasions would view this as correct and indeed uncontroversial. But for my part I do not, and indeed I think that the things that Professors Elliott and Thomas themselves say, and the examples they use, expose the difficulties with this argument.
Two things, though, before I go further. First, to be very clear, I do not mean to pick on Professors Elliott and Thomas. I just happened to be reading their book (and I might have more to say about it soon), and thought that it was representative of what strikes me as a pervasive problem with the way people think and talk about these issues. And second, I think that Professors Elliott and Thomas are right to say, just before the passage quoted above, that “[g]overnments have no legitimate interests of their own, and nor, when acting in their official capacities, do the individuals who lead and work in governments”. This might be a more controversial thing to say than the claim that government must serve the public interest, but if it is true it must, then I don’t think there is any room for a raison d’État independent of the public interest.
But what about the main claim? Why wouldn’t governments need to work in the public interest? How, indeed, could it be otherwise? Well, consider what Professors Elliott and Thomas also say by way of explaining the “positive dimension” of the public interest:
The public good is a highly contestable notion. Concepts such as good governance and the public good are not objective yardsticks against which the legitimacy of governmental action can be determined. … In a democracy, the ultimate question is not whether the government is acting in an objectively correct way (whatever that might mean); rather, it is whether it is governing in a manner that is regarded as broadly acceptable by the public. Elections are the pre-eminent means of doing this. … There are [in addition] a number of different ways that enable or require government to take account of the views and wishes of the people: the need to obtain parliamentary approval of legislative proposals; submission to scrutiny by Parliament, the media, courts, tribunals, and ombudsmen; and public participation in government decision-making (eg by consulting with the public). (Ca. 401)
So: citizens elect governments to serve the public interest, but we can’t actually tell what the public interest is, and the only measure we have is the outcomes of elections and other processes, largely (except, arguably, for scrutiny by courts and tribunals) political ones too. And when you start factoring in political ignorance, the role of special interests in non-electoral accountability mechanisms (and, to a lesser extent, in elections too), the difficulty of interpreting electoral outcomes… the idea that any of it has anything to do with a discernable set of parameters we might usefully describe as the public interest disappears like a snowflake in a blizzard.
The example Professors Elliott and Thomas give makes my case, not theirs. According to them,
it is a relatively uncontentious proposition that, when using public resources—especially public money—government should, so far as possible, seek to attain value for money. Government is largely funded by the public through taxation. Accordingly, the public can, in turn, rightfully expect that government should not waste its money. (Ca. 401)
I think it’s true that, if you just start asking people in the street whether government should “seek to attain value for money”, they will say that of course it should. The trouble is that, if you start asking some follow-up questions, it will quickly turn out that people don’t really mean it. Many people believe, for instance, that government should only, or at least preferentially, do business with suppliers from its own country. The entire point of such policies, of course, is to override the concern for getting value for public money ― they wouldn’t be necessary otherwise. Others (or perhaps the same people) believe that governments should allow, and perhaps even encourage, their employees to form unions and engage in collective bargaining. Again, the point of such policies is to override the preference for value for money: unionized labour is definitionally more expensive than its non-unionized counterpart.
For my purposes here, it doesn’t matter that such preferences are wrongheaded, although they certainly are. What matters is that, wrong though they are, people hold such preferences. As a result, even something as seemingly uncontroversial as the idea that government should get the best bang for the taxpayer buck turns out not to be consistent with how many people understand the public interest ― in the polling booth. In words, they will keep complaining about government inefficiency. In other words, it’s not just that different people and different groups can’t agree on what the public good is and we have no way of extracting any real meaning from the procedures they use to resolve their disagreements; it’s also that a single individual is quite likely not to have any sort of workable view of what the public interest is or requires.
For similar reasons, the “negative dimension” of the public good as articulated by Professors Elliott and Thomas fares no better. They argue that “it would be improper for an elected public body—whether the UK central government, a devolved government, or a local authority—to elevate political gain above the public good”. (Ca. 401; emphasis in the original) But if there is no such thing as the public good, objectively understood, then how can we sensibly claim that a public authority is elevating political gain above this non-existent yardstick? Worse, if the public good is to be assessed based in part on electoral outcomes, then doesn’t it follow that the pursuit of electoral success and the pursuit of the public good are one and the same?
What follows from this? Some would say that we should accept revelation and authority as our guides to the meaning of the common good, as a solution to the empty proceduralism of which they would no doubt see the argument of Professors Elliott and Thomas as representative. But such people have no means of persuading anyone who does not already trust their revelation and their authorities. Many of them recognize this and have given up on persuasion entirely. Like Lenin, they think that a revolutionary vanguard would be warranted in imposing their vision on the rest of us.
If we are disinclined to Leninism, I would suggest that we should shift our expectations and ambitions, for politics, for public law, and indeed for law tout court. Instead of looking to them to produce or uphold the public good, we ought to focus on how they can protect private rights, as the US Declaration of Independence suggests.
This is not an unambitious vision for politics and law, by the way. It is difficult enough to agree on a list of such rights that public institutions can and should enforce, and to work out the mechanisms for enforcing them without compromising other rights in the process. What is, for instance, the extent of property rights? Should it be defined entirely through the political process or should we make property rights judicially enforceable? If we set up police forces to (among other things) protect property, how do we prevent them from engaging in unjustified violence? Those are difficult enough questions, and the pursuit of even more intractable ones under the banner of the public good largely detracts us from paying attention to them.