On Heath's Philosophy of the Executive, pt 1.
I very much admire the journal articles by Joseph Heath (Toronto) that I have read: they are, especially, philosophically insightful and clear on economic/economists’ concepts and tools and their applications with a useful sense of how to combine them with the strength and weaknesses of normative theorizing. And unlike much normative theory his work seems written for adult reflection, not wish-fulfillment. Heath’s papers are, thereby, a joy to use in teaching because students get taught a lot by them. As very regular readers know, I also find his entertaining, polemical blog persona annoying because in his blog posts he is often uncharitable to his opponents, and so leaves readers less wise than we could be. [Yes, I have heard of projection.]
Anyway, since my return from Summer holiday, I have been working my way through Heath’s The Machinery of Government: Public Administration and the Liberal State (OUP, 2020). I am happy to report this is an uncommonly rewarding exercise because, unusually among philosophers, Heath engages with the principles behind and conceptual basis of the practices that constitute the routine exercise of Government power. There is, for example, an astoundingly clear and sober chapter on cost benefit analysis (CBA) as a technique of administration. And also an excellent account of government nudging, among many highlights. As is customary for me, I’ll think my way through the book in an open-ended series of digressions.
Before I get there two statements: first, while Heath is uncommonly widely read among professional philosophers, it is noteworthy how little he engages with James C. Scott, Foucault, Arendt, and Graeber on the nature of bureaucracy. Even Vermeule is mostly ignored, and only Sunstein is a major interlocuter. So, while the book is an excellent (ahh) constitution of the philosophy of bureaucracy and public administration, it should not be treated as a comprehensive survey of the state of the art on philosophical reflection on the executive say, in the way, Rawls’ work was to justice back in the late 1960 and early 70s. (That’s also meant as a compliment to Heath.) While Weber is mentioned a bit more frequently, and there are signs that he was part of the scaffolding of the work, ultimately there is little engagement with some of Weber’s more important insights.*
Second, my own interest in Heath’s book is that I share with him the sense that much work in contemporary political philosophy ignores governing. (As regular readers know, I also think contemporary political philosophy ignores politics—liberal political philosophy especially assumes that the truth is self-actualizing somehow.) The more common perspective among our peers is the articulation of an implied resistance to the status quo. Since there is much to find disagreeable about our past and present my observation is not meant to condemn our peers’ stance. But there is also something fundamentally self-undermining, about a field, when it is most visibly constituted by professors who — while teaching at leading universities where the future political, juridical, and administrative elites are trained — systematically profess to doctrines and principles wholly at odds with the practices their students will engage in. This generates what Bernard Williams has diagnosed as the “impression of frivolity” that risks engulfing the Humanities more generally.+
So much for set up.
The Machinery of Government is focused on the work civil servants in particular the permanent civil service does in relatively well functioning liberal democracies. By the latter, Heath explicitly means Westminster-style parliamentary democracies (which also includes places untouched by British colonial power). In fact, unusually, Heath lacks the reverence for the American presidential system so common today:
I consider the parliamentary arrangement to be normatively superior to the presidential one, in no small measure because of the higher quality of public administration facilitated by the institution of the permanent civil service. Since my goal is to focus on best practices in public administration, the American system is of less interest because of the overall poor quality of public administration in that country…
The most well- known problem in American public administration stems from the appointment of politically well-connected incompetents to positions of administrative authority. Yet the negative effects of the spoils system are felt not just at the top, but all the way down the organizational hierarchy. (p. 23)
Heath's stance has a number of effects on his analysis worth spelling out. In a Westminster style system, as he describes, the higher ranks of the permanent civil service have non-trivial agenda setting and planning power. Rather than seeing this as a threat to democratic legitimacy, Heath treats “autonomous public administration” as a feature not a bug of the success of liberal democracies (p. 30).
In a Westminster style system, the politicians that populate the cabinet are not just wholly outnumbered, but they often have a serious information-deficit relative to civil service that undermines their independence and potential effectiveness as agents of the electorate. Heath assumes cabinet level politicians are “normally elected.” (p. 21) Heath’s own examples indicate that in a cabinet system, its members can be recruited from a wider pool, including former civil servants. The Dutch currently have a prime minister (Dick Schoof), who until quite recently was a high civil servant wholly unknown to the wider public. The most powerful former finance minister, Gerrit Zalm, had previously been an influential (and better known) civil servant. To what degree these examples suggest that political parties are actually trying to rectify the known information and skill asymmetries between the political class and civil servants is worth exploring.
Heath (not implausibly) treats the American executive as a spoils system inherited from the pre-independence era (recall this post on Hume & Smith; this one on Montesquieu). But as his own argument indicates, clientelism may also be necessary for the elected president to gain de facto control over the bureaucracy (and may be useful as an instrument of side-payments for the executive). But importantly, Heath things the one-sided focus on elections as the sole source of legitimacy is a kind of defect of contemporary political philosophy.
Recent philosophical literature on the state has been marked by an overwhelming emphasis on democracy, and democratic practices, as the source of legitimacy. This often translates, crudely, into an inability to conceive of ways that the exercise of state power could be legitimate other than through democratic election of the person exercising the power or the delegation of authority from a person so elected. From this perspective, the legitimacy of the executive branch depends entirely upon the legitimacy generated by the legislative through its periodic election. (p. 82)
Heath, therefore, articulates an account of executive legitimacy for Westminster style parliamentary systems, that is not grounded in being democratically elected. For, higher “civil servants are effectively unsupervisable.” (p.91) In fact, because of this, throughout he is not interested in what we may call democratic political leadership, which requires an art of government, but rather in public administration (which requires an ethos and an ethics).
Since civil servants are unelected, Heath resorts to a theory of output legitimacy. The standard person to cite (as Heath does (p. 83)) is Scharpf. But the concept of output legitimacy is already developed, as Foucault discerned back in his lecture of 31 January 1979 (Birth of Biopolitics), by Ludwig Erhard in the 1940s, drawing on ordoliberal ideas, in occupied Germany on the ruins of Nazism.
Now, today we tend to associate the output legitimacy of Erhard’s subsequent policies in economic terms—das Wirtschaftswunder. That is, economic success indeed produces a species of output legitimacy. (We see this in China today.) But originally (recall), Erhard himself conceived the possible output legitimacy of the executive in terms of constituting order and thereby protecting rights. This is the framework that makes the secure agency of individuals and groups possible. I mention this episode in order to draw out and develop an important criticism of Heath’s framework (conceived as a ‘philosophy of the executive.’)
Heath correctly notes that “the executive branch also makes its own distinctive contribution to the legitimacy of the state, which is not reducible to its role in facilitating democratic governance.” (p. 82) Heath plausibly suggests that while the legislative branch produces democratic legitimacy, the juridical branch generates constitutional legitimacy. And for the executive this is, as Heath suggests, output legitimacy (pp. 85-6, especially figure 2.2.)
For Heath with different kind of sources of legitimacy, the three branches also have different ruling principles associated with them: majority will (legislative); rights (judiciary), and efficiency (executive). Treating ‘efficiency’ as the fundamental principle of the executive strikes me as a mistake (but not because it purportedly conflicts with equality or democracy).
What Heath means by ‘efficiency’ will be subject of future posts. Because his views are subtle and important. But the reason why he thinks the executive’s output legitimacy is rooted in the principle of efficiency is because he treats the executive as principally responding to circumstances where the transaction costs associated with a system of voluntary exchange would be prohibitive or subject to market failures (p. 165ff). This framework allows Heath to explain the nature and persistence of modern welfare states as a feature of the development of liberalism. All the strengths of the book follow from this framework.
The previous paragraph is undoubtedly terse. But hopefully sufficiently clear.
The problem I wish to diagnose is not a lack of focus on so-called government failure (as my classical liberal friends would be likely to do here). Rather, before the executive can begin to solve transaction costs it must produce order, or security for all. This is, as Erhard discerned, its basic responsibility. (Of course, Erhard did not invent this.) As Heath himself had noted (in a slightly different context), “democratic elections are of limited use in securing legitimacy for the state, if the state is simultaneously failing to discharge its more basic responsibilities, such as providing security or arranging for essential public services, such as electricity, to be provided without interruption” (p. 82)
My claim is that while essential public services are well treated by the transaction cost model, the basic responsibilities like providing security and (what I have called, recall and here) witnessing truth are not. Of course, in generating security and witnessing truth the conditions are created for the state to also help solve many transaction costs. But security and truth witnessing are constitutive in character (or as the Ordos would say, ‘framework generating’).
In fact, there is more than a bit of truth in Heath’s observation that “A state that decided it was no longer interested in providing security services would suffer an enormous deficit in output legitimacy, even if it withdrew from those activities in an orderly and scrupulously impartial manner.” (p. 91)** So, why isn’t order or security the fundamental principle of the executive branch for Heath?
The problem is caused by Heath’s account of liberalism as a progressive unfolding in which classical liberalism endorses “property, security, and contract” and the more recent, and superior “modern liberalism endorses three very abstract principles of justice: liberty, equality, and efficiency.” (p. 143). One can wholly allow Heath’s claim that classical liberalism so conceived (which in my view has relatively little to do with how earlier liberals took up the art of government concretely) was left with no answers to the problems industrializing, mass democratic society confronted. But just because modern liberalism (so conceived) is superior to the classical kind not just in its orientation toward justice and also in generating practical problem-solving tools, it doesn’t mean it can do without presupposing the production of order (through security and witnessing truth). To put it in terms of a slogan you can print on a T-Shirt, to begin to realize the principles of justice order is presupposed.
That is to say, while Heath is right that at the level of particular policies efficiency (as Heath conceives it) is the right ruling principle in public administration, at the level of the grounding of the executive which secures the most basic of the basic institutions of society, order is the more fundamental principle. (I thank Kirun Sankaran for discussion.) Now, I am aware that in today’s philosophical landscape focusing on the executive’s constitution of order and truth is often coded ‘conservative’ or ‘realist.’ Regular readers know (recall this post on Larmore), I think it is a mistake for liberals to cede order (and leadership) to these other ideological streams and I won’t relitigate the point here.
Today I close with this: how did Heath get in this predicament philosophically? I think the underlying philosophical problem is that Heath (not unlike many liberals, as Foucault taught me) takes the stability of political authority simply for granted. (This is odd for a Canadian because in Heath’s life-time Canada was not far from dissolution once or twice.) The pay-off of this assumption is that it allows one’s analysis of the executive to be resolutely forward looking. It also allows one to take the survival of liberal ideals for granted. This is a feature and not a bug of Heath’s argument:
Liberalism is, as it were, part of the DNA of the societies that we refer to (for that reason) as “liberal- democratic.” As a result, liberalism is not just one political philosophy among others. And because liberal principles are already embedded in our state institutions, asking state employees to be guided by liberal principles in their discretionary judgments is not likely to sow chaos, in the way that asking them to follow some other set of principles would. (p. 152)
Heath is neither traumatized by Weimar nor by the election of Trump. This is the strength of his book because it makes his analysis rather sober. But in embracing a narrative of liberalism’s development, he also ends up reinforcing a strain of political complacency. If the people fail, the civil service will steer the ship of state.
*Heath does mention Rosanvallon’s work as an alternative program to his own, and quite rightly sets it aside because of its fatal attraction to Rousseau’s General Will and presidentialism (pp. 41-2).
+Cf. Derrida’s forgotten masterpiece on the frivolous, The Archeology of the Frivolous: Reading Condillac.
**As an aside, I suspect many of Biden’s authority problems stemmed from the disorderly withdrawal (defeat) in Afghanistan, which combined with the perception, fairly or not, that he has been unwilling to control the borders. This has the effect of sapping confidence among those for whom order is rather highly valued.