Matt Wood: "What is power?" at Law & Society Blog

Matt Wood: “What is power?”

Published by Ben Samuel Nelson August 11th, 2006 in Philosophy, System Theory, Law and Society

Matt posted a mini-essay recently in the comments section of the “10 Worst Books” thread which I think itself deserves discussion. After musing over a particularily apt headline on “The Onion”, he writes:

The central premise of American government is that all legitimate power flows from the Constitution. And yet the Constitution is not a self-executing document; some degree of interpretation is required. So let’s take a few basic propositions:

i. The Constitution grants power.
ii. The power to interpret the Constitution equals the power to grant power.
A. Therefore, when the President claims the power to interpret the Constitution authoritatively, he is claiming the power to grant himself power.

Such a claim should sound mental alarms for several reasons. First, it raises specters of unchecked power. Second, as a formal matter, it seems to violate the doctrine of separation of powers (which is designed to guard against the first danger).

So where would this putative power to interpret flow from? Perhaps the President would claim that executive power to interpret the Constitution can also be found in the Constitution, by implication. But this is a circular argument: The basis for the power to interpret is itself an interpretation, which begs the question.

[A comparison can be made to a religious figure who bases his authority to interpret scripture on the basis of (an interpretation of) scripture.]

Let’s examine this phenomenon from the perspective of a legal layperson, with no concrete knowledge of the content of the Constitution, much less a copy close at hand. The President’s appeal, while illogical, operates on the level of rhetoric: if individuals believe that yes, he does have the power to claim that the Constitution grants him the power to interpret the Constitution, even though such a claim is premised on a circular power of interpretation, these believers will act as if this power exists. In effect, they will grant those powers to him ‘extra-constitutionally’ by their acquiescence. [The line is apparently thin between our attention to the substance of a claim and our attention to the status of the individual to make the claim. The more believable the claim, the less likely we are to question the status of the individual to make it authoritatively. Under our current system, presidential persuasion of the general population would likely constrain Supreme Court decision-freedom. In other words, the presidential claim becomes imbued with a sense of ‘objective truth’ which constrains the formal authority’s decision-making freedom, effecting a subtle but de facto shift in the distribution of interpretive power.]

Take the following example:
The president takes controversial action. Two universes are possible, depending on how well the President subsequently makes the case that his actions were constitutional. In the first, the people are persuaded and believe that yes, he *had* the power. In the second, persuasion fails, and the people believe that no, he *did not* have the power. Note the tenses that accompany these beliefs. They seem to suggest that subsequent persuasion can determine prior existence. A strange reversal of causality’s normal chronology, to say the least. The burning question seems to be then: is there any valid sense in which power exists apart from belief, or is it just a reification constructed on the grounds of belief? This is especially thorny when we consider that people may be persuaded on grounds other than the merits of the claim to power - perhaps almost solely as a function of trust. If we can acknowledge that the success of the president’s persuasion bears no *necessary* relation to things such as the intent of the framers, prior history of the nation, etc. (even though such devices may enhance persuasiveness), can one dissident voice validly stand back from the mass of consensus and say, “I know you all believe he had the power, but he *really* didn’t,” or the converse, “I know you all believe he didn’t have the power, but he *really* did.”

A description of power as reification is consistent with the notion that if every person outside government simply stopped believing that the social structures of government had any power to control their actions - that its laws have the power to bind them, that its subpoenas are anything more than junk mail - and recognized the system as just cooperative associations of role-playing individuals, government would cease to exist as a psychological, and perhaps therefore ontological, matter. [Something akin to this process probably happens during civil wars or when empires are in a state of dissolution.]

So why would anyone be vulnerable to the President’s circular claim that the Constitution grants him the power to interpret the Constitution? Perhaps because they actually believe that the Constitution really does ’say’ something on the matter, and that his claim is reasonable and believable.

This is consistent with the notion that the Supreme Court authoritatively interprets the Constitution’s meaning, which is reified as something discoverable, not created in the act of interpretation. So where does this interpretive power come from? Marbury v. Madison, and something more like natural law claims than constitutional interpretation. But a parallel question is raised: if the Supreme Court invokes the power to interpret natural law, on what is this power based? Ultimately, I think, the answer is that it derives simply from our belief in it, our acting *as if* it were true. And if the existence of power is ontologically dependent upon belief, the relevant question, in response to a claim of power, ceases to be a descriptive “Does X have the power?” and becomes of necessity the normative “Should X have the power?”. If we do not believe X should, then the avenue of counter-persuasion is available to us.

By “belief” in the context of Matt’s example, I take it his total meaning is something like “popular belief in the legitimacy of the execution of power by so-and-so”. If I’m reading him right, then popular belief in legitimacy seems far from enough to be a characterization of power in general. Rather, what Matt has put his finger on is a special kind of power — organizational power. But social power more generally can also involve illegitimate force and coercion, which haven’t got much to do with legitimacy; the barrel of a gun can be mighty convincing, even though the victim sees no legitimacy in its exercize. (Of course, it barely needs to be said that there can be non-social kinds of power, as well: my free will is a kind of personal power, and my ability to manipulate objects is an inanimate power, and so on.)

Still, Matt is very much on the right track by identifying trust as one source of power. It just needs to be emphasized in this context that fear is another source. Once we take both to heart, we have a plausible model of societal emergence (Matt calls it “extra-constitutional acquiescence” here) which is capable of replacing the contract theory paradigm in the social sciences at large.

The conundrums involved in Matt’s “two universes” example are especially illustrative of another point, I think — the question of the ontology of power. His examples seem to describe the reality behind power in a plausible way. But there’s a certain “What the hell?!” factor which arises in the cool hour when we try to digest the lesson here. Rationally, we want to say that either a person has power, or they don’t. It smacks of the memory hole to think that whether or not power exists can be decreed after the fact.

This conundrum, I think, can be resolved once we realize that this doesn’t apply to power itself, which is more or less objectively observable, but rather, to the legitimate or illegitimate status of power, which is more subjective. Matt’s dissident character would be wrong to say that an illegitimate leader lacked the power to do what they did. Power, like any ability, is demonstrated through its exercize.

Still, there may be more to say in defence of Matt’s idea that power in fact and as norm are intertwined. And we would be fools not to pursue this interesting line of inquiry! Still, it just seems to me that it can’t be the whole story.

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3 Responses to “Matt Wood: “What is power?””

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1 Matt Wood Aug 14th, 2006 at 4:42 pm

Ben-
You’re right that my post was concerned with power’s legitimacy and the role legitimacy plays in sponsoring “organizational power.” I am most interested in the glue-like role that certain beliefs play in coordinating human behavior. Even though a theoretical line can probably be drawn between ‘objective’ and ’subjective’ power, a subjective belief in legitimacy is typically an enabling condition for power’s objective execution, insofar as cooperation may be necessary for the performance of certain actions. [Even the naked application of force - at “the barrel of a gun” - may require group action such as militaries or gangs.]

Incorporating some of your refinements, I propose these definitions:

“Power” will be used to refer to the capacity to produce - through individual action - certain effects, whether by acting individually or influencing others. Thus, person A “has the power to do X” when through his individual action A can bring about effect X.

“Legitimacy” exists insofar as individual B ratifies A’s action, either by reference to personal values or institutional structures. Legitimacy exists at the level of individual belief (B’s here), but nothing prevents a belief in legitimacy from being a function of group approval, as in the case of constitutional amendment.

My point in the above post was basically that B’s belief in the legitimacy of A’s power is equivalent to acquiescence to A’s power, albeit mediated by a belief in ‘objective’ constitutional mandates (ie, that the constitution *actually* requires something). And if A’s power depends for its execution upon the shared belief of many Bs in the power’s legitimacy, it is a social construction enabled by the acquiescence of the many. As unthinkable as it may be, the United States Constitution only organizes the nation’s governmental functions because enough people believe in its legitimacy as a rhetorical device for justifying or prohibiting certain actions; those same people do not believe in the legitimacy of the South African Constitution to govern them (although they certainly could).

This may all seem obvious, but the really interesting effects take place during periods of transition or unrest. These can take two forms, what I will call intra-normal and inter-normal.

Intra-normal effects are best exemplified by debates over Constitutional meaning and constraints on Presidential power. For example, Lincoln’s suspension of habeus corpus during the American Civil War, Truman’s attempted seizure of steel plants during the Korean War circa 1950 (or even his authority to deploy troops in Korea absent a Congressional declaration of war, on the authority of a UN declaration only). Or the US/British interpretation of UN Security Council Resolution 1441 as sufficient authorization for the present Iraq war. Consensus is likely to form as to the ‘real’, or legitimate, distribution of power under the relevant regime. The important point is that legitimacy is created at the moment of persuasion, and not a moment before. [If consensus is not forthcoming enough, such disagreements may result in violence. Ex. the Protestant reformation/revolution.]

Inter-normal effects occur when existing norm-systems expand or dissolve. Typically rhetoric will then dip into more foundational norm-systems in search of justification. Examples include the English “Divine Right of Kings”, the notions of “Christianization” and “white man’s burden” that sponsored European colonialism, validation of the political institution of slavery by Biblical interpretation, the “natural rights” in the American Declaration of Independence, and so on. When one norm-system dissolves or exceeds the limits of its own terms, such rhetoric becomes necessary, *not* necessarily to convince the governed or oppressed of the legitimacy of their subjugation, but rather primarily to persuade certain individuals to participate in a scheme of group action.

In this manner, rhetoric and beliefs cloak and garnish brute force (although, to be fair, they also cloak and garnish non-violent collective action such as welfare programs). The “presidency”, the “state”, the “natural right”, the “race”, various notions of “God”, et. al., all underwrite group action. Each individual is equipped with a certain set of beliefs during the socialization process that touch on all these levels, interacting in various ways to produce (hopefully adaptive) group action when invoked by other members of society.
[One rough hierarchy: Law
2 Matt Wood Aug 14th, 2006 at 5:27 pm

[One rough hierarchy: Law - Constitution - Natural Rights - Theology.
These concept-bundles are culturally transmitted, memetically, creating a robust storehouse of means for organizing collective action and thereby facilitating survival.]

Consider the fact that most people find nothing problematic about the following statement: “We are governed by the Constitution.” In fact, we are governed by men and women who invoke the language of the Constitution and thereby persuade us to behave in certain ways. The idea that the Constitution governs us is the result of a reification, perhaps a useful one. But when we believe that individuals claiming these roles are “in power”, we strangely enough “put them in power” simultaneously by agreeing to cooperate with them in certain ways. The Constitution does not accomplish this; we do by agreeing to cooperate, although we are influenced by rhetoric invoking the Constitution. Perhaps this is the ontological root of the “social contract.”

The striking thing about human government is that, although backed by threats of violence, its edicts are obeyed by most people without conscious consideration of this threat. Each generation inherits concepts of executive offices, congressional offices, and judicial offices, which are settled matters not in need of re-negotiation (ie, persuasion), and members of each successive generation are cycled through these roles (autopoetically?). Remember, even the threat of violence which supposedly sustains the state is the result of cooperating ‘believers’ willing to inflict violence *in the name of* the state.

——-
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By the way, to all: I feel like my original post in response to Hanno’s “10 Worst Books” post violated two rules of blogosphere etiquette: stay on point, and keep it short. My apologies for being presumptuous with your time. My only excuse is the intoxicating rush of ideas, which doesn’t always exhibit the best manners!
3 Ben Samuel Nelson Aug 15th, 2006 at 1:50 pm

Matt,

No doubt you’re correct about the contingent connection between subjective legitimation and objective power. Legitimation signals acquiescence, which leads to boldness on the part of the powerful.

It’s just that I wouldn’t want to go from that connection to a necessary connection between the two which is involved in your retrospective example. Just because some act or figure is legitimated, doesn’t make them powerful. For instance, Empress Alexandra had more legitimacy than Grigori Rasputin, but he seemed to have a power over her. And, of course, just because a person is powerful, doesn’t make them legitimated; the ‘barrel-of-a-gun’ theme may possibly in some examples involve elements of group trust and so on, but the point of the example was not to rule that out as a possibility, but just to point out that is not always the case that we can rule out that power derives from a source entirely apart from acquiescence.

I think your distinction between intra- and inter- normal kinds of power tracks the distinction between acquiescence and negotiation. When a person’s use of power is immediately regarded as legitimate, then it is a function of trust and/or apathy. When it’s not so immediate, we are in the realm of negotiation and persuasion. It is the latter which seem to me to be the explanations which are more responsibly susceptible to the “social contract” description. But anyway these are all thoughts which find some parallel in the remarks you’ve already made.

The difference between acquiescence and negotiation itself appears to be in some part fed by the level of interest and involvement which the subject has. All other things equal, the subject has greater organizational power in a negotiation scenario simply because they are more interested and untrusting, while the power-wielder depends on apathy and trust. To this extent, the power-wielder has their power through the absence of friction, and would support your desire to emphasize acquiescence.

Still, though, if this were the whole story, then we wouldn’t seem to be talking about power at all. Rather, we’d seem to be talking about mere persuasion and influence. Fear needs to be a component (or at least a possible component) in order for power to be said to be involved. It strikes me as bogus to say that, for instance, an advertising executive has power over people just because she can make advertisements. Rather, it seems more like she has power because she can use her profits unscrupulously, or by cluttering public space with billboards regardless of common irritation.

This demands that we revisit your formulation of power akin to goal-achievement. It may be the case that, in order to make maximum usefulness out of our natural language distinctions, we may need to say something else. We may need to say that power is the kind of influence which is capable of achieving success of some goal in spite of the possible resistence of those subject to it. (Elias Cannetti had something like this in mind in his work, “Crowds and Power”.)

The effects on this on your analysis might or might not be negligable. We can still say that acquiescence is deeply involved in power, in that the acquiescence of the many is power insofar as the few dissenters are inevitably forced to comply to this-or-that. But we’d have to take the role of fear to heart.

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