How Power Corrupts V

What science has to say about the corrupting effects of power

A recent article by Jerry Useem in the Atlantic, “Power Causes Brain Damage”, provides me an opportunity to return to my series of posts on the corrupting effects of power. My previous musings ― on character as a partial antidote to these effects and the dangers of addiction, on the connections between power, fear, and violence, and those between power and lies, and the perverse incentives that power imposes on those who seek and wield it ― mainly drew on literature, with a bit of political analysis and economics thrown in for good measure. Mr. Useem’s article describes a couple of very different sources for this inquiry: neuroscience and experimental psychology.

Mr. Useem reviews a number of scientific studies that have found some of the same effects that writers and philosophers who have concerned themselves with power have described. One psychologist found that experimental

[s]ubjects under the influence of power … acted as if they had suffered a traumatic brain injury—becoming more impulsive, less risk-aware, and, crucially, less adept at seeing things from other people’s point of view.

The inability of people in power to relate to others is observable both when looking at their brain processes directly, as a neuroscientist’s work suggests, and at their behaviour, whether in experiments or in real life situations that seem to echo them.

It seems likely that the inability of the powerful to empathize with others and their impulsiveness both help explain why power is inevitably violent and deceitful. It is easier to manipulate or to crush people if you do not ask yourself how they might feel about that ― and the individuals or institutions that wield power don’t. Besides, as another psychologist to whose work Mr. Useem refers points out, “power lessens the need for a nuanced read of people, since it gives us command of resources we once had to cajole from others”. In other words, why would you bother being nice to people when you can coerce them? This is a point about power’s perverse incentives, albeit a different one from that which I discussed in a post linked to above.

Now, the psychologists’ experiments’ subjects were not actual politicians or corporate executives ― “[t]hey were”, Mr. Useem explains, “college students who had been ‘primed’ to feel potent by recounting an experience in which they had been in charge.” Mr. Useem speculates that the effects the experiments shows

would presumably wear off when the feeling did—their brains weren’t structurally damaged after an afternoon in the lab. But if the effect had been long-lasting … they may have what in medicine is known as “functional” changes to the brain.

In fact, some experimental findings suggest that this is likely to be so. This is unsurprising, since both the guess that “an afternoon in the lab” is unlikely to have a long-lasting effect, and the possibility that long-term exposure to power does not wear off so easily, are quite consistent with the role of addiction in power’s corrupting effects.

Mr. Useem recounts studies that suggest that people in a position of power can try to resist addiction to it by reminding themselves, or having someone remind them, either of the limits on their power or of its corrupting influence on them and those around them. Although Mr. Useem does not mention it, the old-fashioned memento mori is the best-known implementation of this idea. Gandalf’s repeated insistence that Frodo not use the Ring, and his pointed injunction, when Frodo wears it on Amon Hen and is in danger of being discovered by Sauron’s Eye ― “Fool, take it off! Take off the Ring!” ― is an obvious literary example. But from what we know about power ― from the Lord of the Rings and other sources ― these are no more than temporary fixes. Sooner or later, addiction will take hold.

In exploring the damaging effects of power, Mr. Useem seems mostly interested in business leaders, and in ways in which they can remain effective despite power’s corrosive influence on them. My focus in this series of posts is somewhat different: it is on political power, and what can be done to control it. That politicians might become less effective over time does not particularly bother me. If anything, the possibility that “[o]nce we have power, we lose some of the capacities we needed to gain it in the first place” seems reassuring ― provided that the ineffective politicians can be dispensed with.

I once again conclude, then, with a reminder of the importance of constitutional mechanisms to limit the amount of harm a brain-damaged politician can inflict on us. Separation of powers, federalism, and protections for individual rights limit the amount of power a politician can wield to begin with ― and perhaps even limit the amount of damage his or her brain will come  to sustain. The Rule of Law provides further restraints on the manner in which power, even when it exists, can be exercised. And democracy provides the essential mechanism by which the politician who has overstayed his welcome ― for example because his or her brain has turned to power-corrupted mush ― can be thrown out of office.

To be sure, no constitutional device is fool- or Caesar-proof. For the ultimate, democratic safeguard against the corrupting effects of power to work, voters must be willing to invoke it ― and we should probably harbour no great illusions on that score. But constitutional and democratic safeguards are all we have ― and they are, after all, better than nothing.

Powerless Law

Timothy Endicott’s challenging views on law and the constraint of public power

Last week, I had the good fortune of attending the 2016 Robin Cooke lecture, delivered by Timothy Endicott. Professor Endicott’s talk, entitled “Lawful Power” was very thought-provoking, so I’ll try to summarize it here, based on the notes I took, and offer some thoughts of my own. Fittingly for a lecture named after a judge who mused about the existence of “common law rights [that] lie so deep that even Parliament cannot override them”, and a past edition of which saw Chief Justice McLachlin assert that courts can and sometimes should invoke unwritten constitutional principles, which she described as a form “modern natural law”, to invalidate legislation, prof. Endicott’s lecture explored the limits of law and government power. It too asserted the existence of “lawful powers” which many others would deny. However, it attributed such powers not only, indeed not so much, to the judiciary, but also, especially, to the Crown.

 * * *

Prof. Endicott’s headline claim that is public bodies can exercise power for the purposes for which it exists, regardless of whether the law specifically authorizes them to exercise this particular power. They all ― not only the Crown, but especially the Crown ― enjoy a form of prerogative, which prof. Endicott insists, following Locke, is not a “right to do wrong”, as many in the United Kingdom (and, I would add, elsewhere) believe, but rather a right to do good without a rule to justify the good deed. Focusing on the exercise of Crown prerogative to trigger the procedures leading to the United Kingdom’s exit from the European Union, prof. Endicott argues that it is within the purpose for which the foreign affairs prerogative exists, and thus lawful. The enactment of legislation, which those challenging to the use of the prerogative claim is necessary to grant the Crown these powers, would not add to the UK’s being ruled by law.

The trouble, prof. Endicott says, is that very few people in the United Kingdom’s history ― other than John Locke, perhaps Blackstone, and, less auspiciously, Charles I ― have much “thought about what the executive power was for”. Indeed, people’s thinking about what the executive branch is is distorted. In prof. Endicott’s view, the executive in Westminster systems it is very much a democratic and accountable one ― as least as much as, if not more than, Parliament itself. “The United Kingdom is not actually a kingdom”, he says, and the prerogative is not in a real sense a royal one. It is, by convention, exercised by the Cabinet, which is more concerned about the next election than individual members of Parliament. It is thus dangerous not to think of the Prime Minister as the people’s representative ― only if we recall that this is what she is can we think clearly about the scope of the powers she ought to be able to wield. Ultimately, in prof. Endicott’s view, it is impossible to exhaustively define the powers that public bodies will need to exercise in advance. If the executive’s prerogative power were abolished, it would need to be replaced by a very wide-ranging delegation. From a Rule of Law perspective, would that improve matters? As things stand though, the executive’s prerogative powers simply have no identifiable source ― they certainly do not arise from the common law: it is not judges that made the prerogative, but the prerogative that first made the judges.

Shifting from the executive to the legislative power, prof. Endicott argues that  Parliament’s powers too are effectively a form of prerogative ― an ability to act for the public good within bounds that are undefined and cannot be defined except by reference to the purpose of this power. Parliamentary sovereignty doesn’t mean that Parliament is entitled to enact any law (as the orthodox view has it). Parliament could not, for instance, repeal the Canada Act 1982 (which renounced legislative authority over Canada); and judges, such as (the future) Lord Cooke, have suggested the existence of substantive limits on legislative power. The better way to understand Parliament’s legislative power is that it is not “an absolute power, but an unspecific one”. Parliament itself determines its scope, and neither the courts nor anyone else can interfere with these determinations. Importantly, this rule is not (contrary to what some of the judges in R (Jackson) v Attorney-General, a.k.a. the Fox-Hunting Case, have suggested) of the judges’ making, nor is it for judges’ to do with as they please ― as a matter of law, at any rate.

Turning to the judiciary, prof. Endicott notes that courts have the power to change the law ― they can overrule precedent for instance ― but not in just any way. For example, a court could not abolish mens rea requirements in criminal law. Until the 16th, maybe even the 17th century, courts did not claim the power to interpret legislation. They have asserted this power, and it is generally accepted now, but it has no source that we could be point to. Nor is it clear what is the source of the judicial power to resolve cases when the law is not clear. Like those of the executive and of Parliament, the courts’ powers are unspecific, and prof. Endicott says, nothing would be gained by attempting to specify and circumscribe these powers in advance.

Prof. Endicott concludes from this that we should acknowledge as lawful powers of public bodies those that the law should recognize them as having, instead of obsessing about defining these powers in advance. To be sure, we should be skeptical of government power; but in order to be healthy, our skepticism of the executive branch cannot overtake that of Parliament, the courts, and indeed the voters. Trusting the latter but not the former does not make for a balanced constitution. In the end, it is not the constitution that will save us from “nightmare scenarios”, but “a political culture” such that these scenarios are “genuinely not on the table”.

 * * *

There is a lot to think about here. In an understated manner, prof. Endicott points to some very inconvenient truths for those who care about the Rule of Law. At the same time, his own framework is arguably too optimistic, and one would like to think that an alternative is possible.

Prof. Endicott is right, I am afraid, that a meaningful comprehensive prospective definition of the legal powers of all public authorities is impossible. This is perhaps most obviously so with the courts, for the reasons prof. Endicott outlines. His argument on this point is reminiscent of HLA Hart’s insistence, in The Concept of Law, that

when courts settle previously unenvisaged questions concerning the most fundamental constitutional rules, they get their authority to decide them accepted after the questions have arisen and the decision has been given. Here all that succeeds is success. (2nd ed; 153)

With legislatures, it is tempting to think that the matter is different. To be sure, the constitutions of the United Kingdom and New Zealand do not seek to set out the scope of the “lawful powers” of their Parliaments in advance in any meaningful way. (New Zealand’s Constitution Act 1986 provides, in s 15(1), that “[t]he Parliament of New Zealand continues to have full power to make laws”, which rather proves prof. Endicott’s point about the futility of vague delegations of power.) But other constitutions, like those of Canada and the United States ― especially the latter ― seek to define the legitimate scope of legislative power, by specifying both the ends to which it can be used in the provisions relative to the federal division of power, and substantive limits on rights-protecting constitutional provisions. Yet any attempt to define legislative power in advance must allow for legislative responses to currently unforeseen circumstances; hence the vague residual powers such as the states’ police power in the United States, or Parliament’s “peace, order, and good government” power in Canada. As for substantive rights-protecting limits, they are necessarily incomplete. They might prevent legislatures from killing all blue-eyed babies, to give a classic example from discussions of Parliamentary sovereignty, but usually have nothing to say about, say, the imposition of confiscatory tax rates, and any number of other forms of iniquity or stupidity. To some substantial extent, Canadian and American legislatures too are entitled to define the scope of their own law-making powers.

The notion that “government in all its actions is bound by rules fixed and announced beforehand” ― FA Hayek’s definition of the Rule of Law itself ― might thus be naïve. Yet might not it be applicable to “government” in a narrow sense ― that is to say, to the executive? Here, I would desperately like to part ways with prof. Endicott. He is right to insist that we should not trust Parliament, the courts, and the voters even as we distrust the executive. I do not trust them either. But the executive is, arguably, somewhat different from the other powers of the state, to say nothing of the electorate: it can interfere with citizens much more readily than Parliament or the courts.

Enactments and judicial decisions (and for that matter at least some administrative ones, suggesting that we perhaps should not speak and think of “the executive” as a whole, but of its multitudinous components) are only made following certain procedures. Legislation must be implemented, and its implementation can often be challenged in court. Judicial process (and, again, often administrative process too) allows directly affected parties to participate, and sometimes to appeal. Even the constitutionality of legislation can sometimes be challenged. In short, there is a certain distance, a certain buffer zone, between the exercise of the government’s legislative or judicial power and the citizen.

By contrast, there is no such buffer zone between a citizen and a policeman pointing a gun on him; or a citizen and government agent reading tapping her phone, or reading her intercepted emails. Sure, there might be after-the-fact remedies against abuses of executive power ― often better remedies than those against abuse of judicial and especially legislative power. But the abuse, in many cases, has already occurred, and can at best be compensated, not undone. This, it seems to me, is a good reason for wanting to treat executive power differently, and confine it ― or at least some of its manifestations ― within limits set out in advance , so as, to come back to Hayek, “make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge”.

 * * *

Prof. Endicott struck a rather optimistic tone, arguing that we can embrace, and need not fear, public powers acting for the greater good, without rules. Yet for me, his thesis is a pessimistic if not an altogether dystopian one ― it is a thesis not so much about “lawful power” as about the law’s powerlessness to constrain public authority. But however much we might dislike this vision, I think prof. Endicott’s argument is a very challenging one. It may well mean that we have to re-think our views of the Rule of Law to at least some extent. It encourages us to reflect on the nature and purpose of public powers, and especially of the executive power, and on the strength of the latter’s claims to legitimacy independent of that of Parliament. (On this last point, I wonder if prof. Endicott’s argument is affected by the Fixed-Term Parliaments Act in the United Kingdom.) The best, and certainly the most interesting, thinkers are not ones one agrees with all the time; they those disagreeing with whom forces us to re-examine our views and to sharpen them, because complacency in the face of their challenge is not an option. Prof. Endicott is one of them.


How Power Corrupts IV

Thoughts on Bryan Caplan and David Henderson’s discussion of power’s corrupting effects

Longtime readers may recall my posts trying to catalogue the various ways in which political “power corrupts, and absolute power corrupts absolutely.” I have written about power’s subtle but corrosive effects on those who wield it, even once they no longer do; about the violence that those who exercise power inflict on others; and about power’s inextricable connection with lies. I have occasion to return to this topic, thanks to a discussion between Bryan Caplan and David Henderson over at EconLog.

Prof. Caplan argues that “politicians are, by and large, evil people.” They might be well-intentioned, but good intentions are not enough:

virtuous people can’t just conform to the expectations of their society. Everyone has at least a modest moral obligation to … investigate whether their society’s expectations are immoral.

Moreover, this obligation weighs more heavily on people exercising political power:

[i]f you’re in a position to pass or enforce laws, lives and freedom are in your hands. Common decency requires you to act with extreme moral trepidation at all times.

But politicians never do that, since “[t]hey’re too busy passing laws and giving orders to face the possibility that they’re wielding power illegitimately.” Indeed, they have no incentive to exercise this moral “due diligence,” because “[p]olitical systems reward them for seeming good by conventional standards.” At best, they will “do what most people consider good.” At worst, they will just pretend.

Prof. Caplan’s point about incentives is particularly important for the inquiry into the corrupting effects of power. Even if aspiring politicians start out agreeing with prof. Caplan about the importance of questioning prevailing moral standards, they will soon abandon such questions, which are only likely to land them in electoral trouble. The quest for power and the struggle to retain it do not just allow a person’s bad sides to shine; they also mar the good ones.

(Prof. Caplan also has a follow-up post in which he discusses politicians’ propensity to lie, and ties to his argument about their being evil. It’s worth a look, but since I have already dealt with that particular topic in a prior post, I will say no more of it here.)

Prof. Henderson responds that, though well put, prof. Caplan’s case is not “compelling,” in the sense that nothing much follows from it. For one thing, “politicians aren’t equally evil. In fact, a few seem to be quite good.” And for another, prof. Henderson reminds us of the inconvenient truth that, to achieve our goals ― he speaks of liberty, but of course it is no different if you believe in “justice,” or “equality,” or anything else ― we probably have to “deal[] with politicians.” And if we want to do that, we might as well treat them respectfully, even if suspect them of actually being evil.

Turning, as I did in my first post on this topic, to The Lord of the Rings, we might call this the Gondor problem. The ring of power might be dangerous, says Boromir, but we’ve got a country to save, and we’d be silly not to use it. And note that, in a very real way, Tolkien lets himself out of this problem a little easily. His characters, other than Boromir (and the more obvious “bad guys”) forswear the use of the One Ring, to be sure, but many of them are quite comfortable with wielding the more conventional instruments of power ― notably military force ― as well as the Three Elvish rings. While we are consistently told that these instruments cannot stop Sauron, especially if he get hold of the One Ring, they are nonetheless necessary tools to allow the One to be destroyed, as well as for solving the more minor problems characters face (such as the occupation of the Shire).

The most significant exception to this trend is, tellingly, Frodo, who pointedly refuses to take up arms during “the scouring of the Shire.” Frodo is clearly engaging in something like prof. Caplan’s moral due diligence, asking himself and others whether it is permissible to engage in violence to get rid of the “ruffians” who are occupying and exploiting the Shire. But his conclusion that violence is to be avoided to the greatest extent possible, and there is to be no killing of hobbits, does not make him very popular at all. He is, we are told, more or less sidelined during the events, and is not acknowledged as “the famousest of hobbits” in their aftermath. This is, of course, in keeping with what prof. Caplan says about politicians ― and, tellingly too, Frodo never seeks public office in the Shire, unlike all of his less morally diligent (or at least more morally conventional) companions.

But while Frodo does the right thing, is he right? It is painfully clear that that his attempts to operate by persuasion alone are not enough. If the hobbits want to live in their libertarian quasi-paradise instead of the semi-socialist dystopia, they have to fight for it. The conventional morality of Merry and Pippin  leads them to what seems to be the only right conclusion, even though they fail to engage in right thought process. Perhaps this is accidental; Frodo just happened to be wrong, and his companions, right. Maybe Tolkien should have written a different book if he really wanted to be consistent in his message about the corrupting effects of power. But I’m not sure that this alternative book would have spoken to us in the way The Lord of the Rings does; that its dilemmas would have been as recognizable and as gripping.

One way in which power corrupts those who exercise it and even those who merely seek to do so is by giving them incentives to blind themselves to the possible immorality of their actions. Yet it is not obvious that there is a way to renounce the use of power completely. As in my prior posts, I conclude, therefore, with a reminder of the importance of the instruments we have developed to limit both the scope and the duration of the power any one person as able to wield. Of particular importance to this post is constitutionalism enforced by independent courts. An entrenched constitution provides a set of (partly) moral constraints on the exercise of power, which if effectively enforced ought to limit the damage that morally negligent or even wilfully blind politicians are able to inflict on those whom they govern. Like other power-constraining instruments, this one is far from being perfect, but it is better ― a good deal better, sometimes ― than nothing.

How Power Corrupts III

I have already touched on the issue of the meaning of Lord Acton’s dictum, that “power corrupts and absolute power corrupts absolutely.” I have invoked J.R.R. Tolkien’s treatment of the pernicious influence of power on those who once wield it even once they relinquish it, and discussed Mikhail Bulgakov’s claim that “all power is violence done to people.” Boris Schumatsky’s article on the lies of Vladimir Putin, of which I posted a translation yesterday, gives me an occasion to continue on this topic, because it suggests an additional way in which “power corrupts” that was missing from my earlier posts ― that power is inextricably linked with deceit. (I should specify that in this post,  I am referring only to misrepresentations of existing facts, not to broken promises, the subject of an op-ed by Andrew Coyne this morning. Mr. Coyne makes an impassioned plea for treating them as lies and finding ways for eliminating them, but while some of his arguments are quite compelling, I think the issue of promises is both different from that of misrepresentations of fact and perhaps more complicated than Mr. Coyne allows.)

Of course this is not a very original idea. Its best-known literary treatment is surely George Orwell’s Nineteen Eighty-Four. Still, since I’ve taken upon myself to catalogue the corrupting effects of power, it deserves to be reiterated here. Besides, Mr. Schumatsky hints at a reason to think that, as Kurt Vonnegut would have said, Nineteen Eighty-Four isn’t enough anymore. The regime’s lies in Nineteen Eighty-Four had to be backed up by an elaborate and brutal apparatus that eliminated any idea, whether in print or in anyone’s mind, that was contrary to them. As Mr. Schumatsky shows, that’s not actually necessary. Truth need not be wholly suppressed. It can simply be swamped by lies, made into one of many competing narratives, until people give up trying to figure out where the truth is. That is why, Mr. Schumatsky says,

[t]he Kremlin doesn’t really aim at people believing its lies. Putin wins when other heads of government let the lies stand uncontradicted. Putin surely knows that at least some politicians see through him. But: they don’t call a con a con, nor an invasion an invasion, nor a hybrid war a war. … When the truth is absent, the lie wins.

The result looks a great deal more benign than Ingsoc, but it is still very effective at getting the liars into power and keeping them there. And importantly, it is not only Mr. Putin who resorts to this tactic. Politicians in the West who mislead or lie to voters about crime, climate change, immigration, or globalization might not care if people don’t quite believe them (though they’re surely happy if they do). It is enough for them to create the impression of competing, equally plausible narratives, to justify acting, or not acting, as if the one they prefer is true.

The desire to gain or to keep power, so eloquently described by Tolkien, creates the temptation to lie. So does the fear of losing power, described by Bulgakov. But Orwell illustrates, and Mr. Schumatsky explains, a further point: power gives one the means to lie effectively. In Mr. Schumatsky’s words, when “[e]ach player has his own truth, or even truths, which he freely adjusts according to need … only one thing matters: who is strong enough, to impose his truth on his opponent?” This too is something that politicians in the West are well aware of, as they show whenever they exploit the power of the incumbency and the resources of the state to support and impose their own “narratives,” regardless of their relationship to truth.

The other link between power and lies, to which Mr. Schumatsky points with his concluding quotation of Solzhenitsyn, has to do with violence. If, as Bulgakov suggested, power is violence and if, as Solzhenitsyn claimed, violence and lies are inseparable, then power too is necessarily concealed and upheld by lies. And indeed, we know these lies very well, from the attempts to deify the rulers or the claims that their authority has a divine blessing, to the mythologies of nationalism, to the claims of a supposedly universally acceptable social contract. Lord Acton again, in his Lectures on the French Revolution, made this point with his usual eloquence:

The strong man with the dagger is followed by the weaker man with the sponge. First, the criminal who slays; then the sophist who defends the slayer.

Political power might be ineradicable; or, at any rate, it is at least possible that we are much better off with it than without it. But that doesn’t change the sad fact that those who seek it, those who wield it, and those who justify it will all be tempted to lie, and that at least most of them will succumb to the temptation. This too is how power corrupts.

I want to end on a (somewhat) more optimistic note, however. As I have observed in my previous posts, democracy and the Rule of Law provide mechanisms that check, although they cannot eliminate, the corrupting effects of power. When politicians lie, their parliamentary opponents, as well as journalists, can call them out on it. In many cases, they have an incentive to do so. In some cases, courts too can serve as mechanisms and fora for “setting the record straight.” Even by simply ensuring that laws are applied according to their terms, without favour or abuse, courts limit the scope for official lies. All these mechanisms are liable to misuse and abuse. Courts can be dragged into political disputes, undermining their independence; freedom of speech serves those who want to spread lies as well as those who want to counter them. But they are the best we’ve got, and it is for us to put them to the best use we can.

The Power of Google

I seem never to have blogged about the “right to be forgotten” enshrined into European law by the European Court of Justice (ECJ) in a judgment issued in May. An interesting recent blog post by Paul Bernal allows me to do offer a few random observations on the matter. Better late than never, right?

In a nutshell, the “right to be forgotten” allows a person to request a search provider (for example, Google) to remove links to “inadequate, irrelevant or excessive” ― even if factually correct ― information about that person for search results. If the search provider refuses, the person can ask national privacy authorities to compel the removal. Google is most dissatisfied with being asked to handle thousands of such requests and to weigh the privacy interests of those who make them against the public interest in access to information (as well the freedom of expression of those providing the information in the first instance). It says that it cannot perform this balancing act, and indeed its first stabs at it have sometimes been very clumsy ― so much so that, as prof. Bernal explains, people have suspected it of doing a deliberately poor job so as to discredit the whole concept of the right to be forgotten.

Google has responded by setting up a group of experts ― ostensibly to advise on implementing the right to be forgotten but really, prof. Bernal implies, to make sure that the conversation about it happens on its own terms. And that, according to prof. Bernal, includes not paying attention to “the power of Google” ―its “[p]ower over what is found – and not found” about anyone, reflected by the way we use the phrase “to google someone”; its agenda-setting power; and its ability to influence not only journalists and experts, but also policy-makers. Prof. Bernal points out that Google creates (and tweaks) the algorithms which determine what results appear and in what order when a search is run, and that it has not always upheld freedom of expression at the expense of all other values. Google systematically removes links to websites due to copyright-infringement, as well as for a variety of other reasons. Its right to be forgotten tantrum should be viewed in that context, says prof. Bernal; we mustn’t forget Google power, and the variety of ways in which it exercises it.

Fair enough. I have myself written (notably here and here) about Google’s dual, and conflicted, role as at once a speaker and a censor. Google wants to be treated as a speaker ― and granted freedom of speech ― in designing its search algorithms. It also takes on a role of regulator or censor, whether on behalf of its own values and priorities (commercial or otherwise), those of its clients or partners, or those of governments. And there is a standing danger that Google will be tempted to play its role as regulator and censor of the speech of others in such a way as to gain more leeway (especially from governments) when it comes to is own.

Yet to my mind, this inherent conflict is, if anything, more reason to believe that making Google into an arbiter of private and public interests is a bad idea. The ECJ offloads the responsibility of balancing individual privacy rights and public interest in access to information on Google and its competitors, at least in the first instance, but why would we want to give such a responsibility to companies that have such a twisted set of incentives? Prof. Bernal is right that Google is not an unconditional defender of freedom of expression ― but instead of concluding that it might as well compromise it some more, this time in the name of privacy, isn’t that a reason for thinking that we cannot rely on it to strike the right balance between the rights and interests implicated by the right to be forgotten?

Another thing that we might want to keep in mind when we think of “the power of Google” in the context of the right to be forgotten, is the nature of that power. It is not, like the power of the state, a coercive one. In a sense, Google has a great deal of market power, but the users of its search service hardly feel it as “power.” We know that we have easily accessible alternatives to Google (notably, Microsoft’s Bing, and Yahoo!). We just don’t feel (for the most part) like using them ― for whatever reason, but not because anybody forces us to. And I think it matters that the power of Google is not a collective power of people acting together (like the power of the state) but, if that’s the right word, a composite power ― the sum of a great number of individual actions more or less insignificant by themselves. Despite the fact that, as prof. Bernal rightly points out, Google’s algorithms are not somehow natural or neutral, it is, in a real sense a conduit for the disparate actions and interests of isolated individuals, rather than a vehicle for the expression of their collective will. To me, that makes the power of Google, at least this aspect of it, a rather less threatening one.

It is also a democratizing one. By making it easier to find information about someone, it makes such research accessible not only to those who have a staff of researchers (or police officers, or intelligence agents!) at their disposal, but to ordinary citizens. And this is precisely what worries the advocates of the right to be forgotten. It is indeed a curious right, one that apparently only exists online. Nobody says that libraries or archives should purge information about people once it becomes “irrelevant or excessive.” (Indeed, at least for now, the right to be forgotten does not even require substantive information to be taken down from the Internet, or even links to such information to be removed from ordinary websites. They must, it seems, only be expunged from search results.) So someone with a lot of time and/or money on his or her hands can still find that information. It’s those without resources to expend on an extended investigation who must be deprived of it. That too, I think, is something to keep in mind when thinking about the right to be forgotten.

This all might not amount to very much. Insofar as prof. Bernal calls for nuance and a fuller appreciation of the facts in thinking about the right to be forgotten and Google’s role in implementing it, I second him. If have a distinct message of my own, it is probably that an actor having “power” is not, without more, a reason for pinning any particular responsibility on it. We should be wary of power, whatever its form, but it doesn’t follow that we should burden anyone powerful in whatever way we can think of. If anything, power should be checked and balanced ― balanced, that is, with countervailing powers, not with responsibilities that can, in the hands of the powerful, become excuses for further self-aggrandizement more than limits on their action.

H/t: Yves Faguy

How Power Corrupts II

In my last post, I used The Lord of the Rings to explore the meaning of Lord Acton’s dictum ― “power tends to corrupt and absolute power corrupts absolutely.”  There is another novel, similar in many ways, though perhaps not superficially, to The Lord of the Rings, from which we might also learn something about the corrupting effects of power. It is Mikhail Bulgakov’s The Master and Margarita. 

For those who have not read it, The Master and Margarita is a double narrative. The main story is that of the devil’s visit to Moscow one spring week in the early 1930s, and that of two lovers whose paths he crosses, the Master and Margarita of the title. But within the main story there is a second one, ostensibly a novel that the Master has written, about Pontius Pilate and Yeshua Ha-Nozri, Jesus, which takes place one spring week 19 centuries earlier.

The crucial sentence about power is uttered by Yeshua as he is being interrogated by Pilate:

All power is violence done to people. There will come a time when there will be no power, neither that of the Caesars nor any other. Man will pass into a kingdom of truth and justice, where there will be no need for power.*

These are the words which earn Yeshua his death sentence. By the time he uttered them, Pilate, though initially hostile, was becoming convinced of his innocence and inclined to let him go. No longer. Pilate is now much too afraid that any leniency towards what might ― and, in the paranoid climate of the reign of Tiberius, inevitably will ― be interpreted as treason and lèse-majesté. Pilate thunders “[t]here has never been, there is not, and there never will be a power greater or better for men than the power of emperor Tiberius!” ― and goes on to sign Yeshua’s death warrant.

Pilate’s behaviour illustrates one corrupting effect of power ― the fear it breeds, in both those who wield and are afraid of losing it, and in those who are subject to and are afraid of being crushed by it. Pilate represents power, and power always worries about it challengers. Pilate is also subject to the absolute, unforgiving, vicious power of the emperor. And, though fearless in battle (as indeed he makes a point of telling us), he is scared out of his wits, and condemns a man whom he knows to be innocent, only to go on and say, desperately, that “cowardice is the worst of all the vices.”

But Yeshua’s words point to another form of corruption that power works. Power, he says, is violence. And violence corrupts the person who engages in it. It is often said that the death penalty demeans not only the person being killed, but also, albeit in a somewhat different way, the executioner (just by way of example, see the famous words of Justice Blackmun, in Callins v. Collins, 510 U.S. 1141 (dissenting from denial of certiorari): “The path the Court has chosen lessens us all.”) And the death penalty is, of course, only the most extreme form of the violence that the state can inflict on a human being, and that it will inevitably inflict on human beings. The exercise of power is, inevitably, the exercise of coercion, which stains or takes something (innocence? kindness? the capacity for empathy?) from the person engaged in it.

And it will not do to argue that some exercises of power at least are legitimate, say because they conform to some theory of justice that reasonable people ought to accept. Never mind that reasonable people disagree about what such a theory of justice might look like, to the point that, as Jeremy Waldron once put in during a seminar, “we have theories of justice coming out of our ears.” Suppose there were such a theory. But the fact that reasonable people ought to accept it doesn’t change the fact that some people are not reasonable, and the best and most just power will still be doing violence to them. This is not to say that we can or ought to get rid of power altogether. The kingdom of truth and justice which Yeshua expected has not come, and so far as we can tell is not about to. But the fact that the exercise of power is necessary does not negate its corrupting effects.

That said, it is also true that these effects can be reduced and checked. Limiting the time during which one is able to exercise power is one way of doing so. Limiting the scope of power any one person is able to exercise is another. Subjecting power to law is a third. As some Rule of Law theorists, especially prof. Waldron, argue, the subjection of power to law makes it more respectful of human dignity ― less brutal, less violent. Good law, no more than good intentions or a good heart, does not fully protect against the corruption that power works. But it just might make the evils we must put up with tolerable.

* The translation is my own; the word Bulgakov uses, власть, can mean either “power” or “government.” It is also the word which is used to render Lord Acton’s dictum in Russian.

UPDATE: I have just come across a sentence by David Post, in this article, which very nicely captures what I have been trying to say about power and violence:

“Collective action,” … is another way to denote the use of coercive force to bind some portion of the polity to act in ways that others think necessary for the common good. (1458)

How Power Corrupts

Over at Bleeding Heart Libertarians, Bas van der Vossen has a post asking what is it exactly that we mean when we say, with Lord Acton, that “[p]ower corrupts and absolute power corrupts absolutely.” As he shows, the meaning of Lord Acton’s dictum is not quite clear. Prof. van der Vossen suggests three possibilities ― each of them, in his view, unsatisfactory.

One is that “to say that power corrupts is to say that power makes people worse persons.” But does it? People might lose their idealism in power, and might act badly while wielding power ― but “[t]he corrupting effects of power seem to disappear once the power goes as well.” They seem not to become permanently worse individuals. Another possibility is that power only gives people an opportunity to act on their bad impulses and desires ― whether we all have those or power actually attracts those who have more than their fair share. But if so, then power doesn’t actually corrupt ― it only reveals pre-existing rot. Finally, it might be that power “invokes and amplifies various psychological biases and heuristics in ways that are dangerous.” It neither makes people worse nor merely reveals their bad sides ― it “strengthen[s] the worst in us.” But this seems to be a “limited” sort of corruption, and it’s not clear what “absolute power corrupts absolutely” might mean in this context.

Yet, as prof. van der Vossen says, “[m]ost people think [Lord] Acton touched upon something of real importance.” Why? To help us understand, we could do worse than to turn to The Lord of the Rings, which is, in no small part, a meditation on the corrupting effects of power ― and which, probably not coincidentally, also happens to have mass appeal. And to understand The Lord of the Rings, and Tolkien’s thinking on the ill-effects of power, we could do worse than to turn to Tom Shippey’s book J.R.R. Tolkien: Author of the Century. (Seriously, it is a fantastic book. If you like Tolkien, read it.)

Prof. Shippey notes that Tolkien’s critics have argued that, although the Ring of Power is said  to “turn[] everything to evil, including its wearers, [so that] no one … can be trusted to use it” (114), some characters ― Frodo, of course, but also Bilbo and Sam ― do in fact use it, without apparent ill-effect. This point is similar to prof. van der Vossen’s objection to the “power makes you a worse person” interpretation of Lord Acton’s dictum.

Prof. Shippey’s response to it is to say

that the use of the Ring is addictive. One use need not be disastrous on its own, but each use tends to strengthen the urge for another. The addiction can be shaken off in early stages (which explains Bilbo and Sam), but once it has taken hold, it cannot be broken by will-power alone.

As with the Ring, so with other forms of power, including political power. Politicians, in democracies, do not wield that much of it ― they are restrained by the law, by public opinion, by interest groups, and so on.  And then, more often than not, they are forced to leave office, whether by term limits, by the voters, or by rebels in their own parties. So, like the Hobbits who only use the Ring a few times, they do not really become addicted; addiction might start (as it does in Sam, when, having put on the Ring, he briefly fantasizes about being “Samwise the Strong, Hero of the Age”), but it can be stopped in its tracks when the politician leaves office.

Another point that is relevant here is that, as Tolkien and prof. Shippey make clear, it matters how one gets and uses the Ring. Gollum gets it by violence, and he is unquestionably “corrupted”, terminally so as it turns out, though even he, when weaned off of  his addiction, shows signs of becoming a somewhat better person. Bilbo, by contrast, starts his ownership of the Ring by taking pity on Gollum, which Frodo later does too. The suggestion is that pity and kindness make a person more resistant to the corruption of the Ring, though not impervious. Note that it is not good intentions that matter. Gandalf and Galadriel tell Frodo that their good intentions would be of no avail against the Ring’s ill-effects, and Boromir demonstrates it. What matters is actual kindness “in the moment.” (Bilbo surely, and Frodo almost certainly, had no far-reaching intentions at all when they each took pity on Gollum.)

This too, I think, is relevant to politics. It seems plausible that those politicians who are fundamentally decent and kind people ― not those, mind you, who are full of intentions so good that the end justifies the means! ― are less subject to the corrupting effects of power ― but that does not mean that they escape them altogether.

For a further point to be made here is that it is not the case that, as some critics whom prof. Shippey discusses have contended, the “good guys” emerge unscathed from the War of the Ring. And, in particular, we know that all those who have worn and used the Ring are in need of healing. Bilbo and Frodo go to the Undying Lands, and Frodo tells Sam that his “time will come” too. Frodo, to be sure, was hurt in a physical sense, during the fight on Weathertop, and also by Gollum. But Bilbo and Sam weren’t, yet they also must go. They are not corrupt if we take corrupt to mean “evil,” but they are if we take it to mean “broken” ― which, indeed is what the etymological meaning of the word ‘corrupt’ is (according to the OED, it ultimately derives from the from the Latin cor– “altogether” and rumpere “break”). Yet note that Sam doesn’t realized that something is wrong with Frodo ― he is shocked when Frodo tells him he is about to leave. And he certainly doesn’t think that there is anything wrong with himself.

And similarly, it is not all that clear that politicians are not corrupted by their exercise of power. Of course, as prof. van der Vossen says, a politician who authorized espionage programmes will not, in retirement, go about snooping on his neighbours. But that does not mean that “the corrupting effect of power … disappear once power goes.” They are more subtle than that. A retired politician might not be particularly nosy, but how many of them are anywhere near as idealistic as they were when they took office (not all are, of course, even then, but many are). How many of them are not somewhere on the way to accepting that the end justifies the means? Decency, humility, and limits on the power one gets to wield limit the corruption, but they probably do not eliminate it.