By SAUMYA MALHOTRA, Gurgaon, India
James Madison, in Federalist No. 51 (The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments), discussed the need to limit the powers of the government through a federal system and proposed a system of 'checks and balances' to achieve said objective, apart from providing a justification for the existence of government itself.
In a rhetorical passage that is as insightful as it is famous, Madison comments: "It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."1
The 'devices' referred to are the methods used to prevent the concentration of several powers in one body or department, and the use of 'ambition to counteract ambition'.2
This essay attempts, first, to establish the idea of necessity of government and the role it plays, and then to expound on and substantiate the views expressed by Madison. It also considers political events and governments from around the world, and discusses the need for controls on the power a government may exercise.
The Necessity of a Government
Locke, in his Two Treatises of Civil Government (1690), said:
“But though men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse)”3.
Extended to the idea of government, this rightly suggests that the raison d'être of a government should be to safeguard the people's natural rights (of life, liberty, property etc.). The insecurity and vulnerability of the people in a society that is not governed seem too heavy a price to pay for unrestrained freedom. This is in line with Rousseau's theory of the 'social contract' or the 'social compact', where he argued that people surrender some of their freedom and agree to be governed by certain laws, for security and protection.4 James Madison, in his paper, seems to be in agreement with Locke's and Rousseau's afore-mentioned principles.
When one attempts to justify the need for governance, what comes to mind immediately is the need for protection against rampant murder, pillage, rape, terrorism, and oppression. What is not as obvious is the reason why the absence of government has come to mean such chaos. The central question, therefore, is: Why must a government need to intervene, and why is a situation in which both security and absolute liberty are guaranteed, impractical? For in theory, of course, the ideal of an 'ordered anarchy' is prevalent in libertarian thought.
William Golding's novel, Lord of the Flies, is the story of a group of English schoolboys stranded on a deserted island after their plane crashes. The boys' separation from structured society and laws has adverse psychological and behavioural implications. While some of them retain their civilized instincts and try to maintain order peacefully, others take a downhill path - with nary a second thought - to sheer chaos and violence, and employ brute force against the younger ones to establish their dominance. The author contrasts the human impulse to maintain peace and take morally correct courses of action, against the equally - if not more - natural human urge to obtain supremacy over others and even act violently if that may so require. The latter instinct was far easier to acquire than the former, which required the strongest of wills. It is true that Golding's novel is a work of fiction, but it is thought to be based on his real experiences in the Second World War, at least in part. Nevertheless, it paints a close-to-accurate representation of what the ugly outcome of anarchy can be.
A consideration of the themes that Golding explores in Lord of the Flies, and adapting them to this context also further supports Locke's 'social contract'. As individuals, people might be naturally anarchist - desiring absolute freedom and the right to do that that they wish to. However, society, like most wholes, is greater than the sum of its parts. It involves the interaction of people from a certain community or school of thought with those from another. As men are grouped into different factions that may have different and opposing views, the desire to dominate over the other and as a result, to act selfishly in favour of oneself and against the other, becomes prominent. In the real world, this would translate to the majority's oppressing the minority, and encroaching upon the latter's property, natural rights, and indeed, freedom.
It may seem to follow that the majority would prefer anarchy, for it can then establish its supremacy over the minority. Madison however, rightly believed that the majority too, at some point, would prefer to be governed by a state that would offer protection to all, probably because power, influence and majority are transient at best, and create highly unstable and uncertain conditions.5
The reason for this lies in the fact that, in reality, men are not angels. Mankind may not exactly be the embodiment of vice, selfishness, and bestiality, but it is not any more the idealistic and 'angelic' epitome of virtue that would not need governance in order to protect its individual members - especially those who are comparatively weaker, or part of a minority.
An article published in the United States print version of The Economist, titled 'Why James Madison Really Matters', quotes Lynn Uzzell, a scholar-in-residence at Montpelier, Madison's plantation in Virginia, as saying, "...his concern was always to craft a stable, effective, popular government." It also interprets and encapsulates Madison's views as such: 'For him, properly regulated government was a vital bulwark against human wickedness.'6
Several distinguished scholars, however, opine contrary to Madison. Robert Higgs, is an American economist and some say a libertarian anarchist. In his article, excerpted from "If Men Were Angels," Journal of Libertarian Studies, 2007, he voices his dissent.
Higgs's concluding statement, "...Because people are vile and corruptible, the state, which holds by far the greatest potential for harm and tends to be captured by the worst of the worst, is much too risky for anyone to justify its continuation. To tolerate it is not simply to play with fire, but to chance the total destruction of the human race," summarizes an argument against the state put forth previously in the article:
"It is unfortunate that some individuals commit crimes, but it is stunningly worse when such criminally inclined individuals wield state powers", "...by virtue of this control over the state's powerful engines of death and destruction."7
The counterargument against this presents itself quite evidently and rightly in Madison's own paper. The use of dangerously unrestrained power can be combated by imposing restrictions on the state, and employing the very system of 'checks' and 'balances' that James Madison suggested, for the very same purpose. This exemplifies the importance of considering Madison's opinion on the necessity of government, in the broader context of the Federalist Papers.
Controls on Government Power
Now that the need for governance has been established, the focus must shift to what 'kind' of governance is ideal. The sentence, "If men were angels, no government would be necessary" is but a prelude to the real essence of Federalist No. 51. In continuation, Madison theorizes:
"If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."8
To summarize, very briefly, the views expressed by Madison on the broad ways of dividing power - he believed that, to ensure the partition of power among the several departments of the government, "the members of each should have as little agency as possible in the appointment of the members of the others", that the legislatures should be divided into different branches in such a way that they are "as little connected with each other, as the nature of their common functions, and their common dependence on the
society, will admit" and that "ambition must be made to counteract ambition" by providing each department "the necessary constitutional means and personal motives to resist encroachments of the others".9
As in the first part, the central question remains, 'Why?'. Why do we require such controls on government? The answer, again, lies in the characteristics of human nature.
If we go back to primitive society and the pre-governance era, we find that any rudimentary systems in place were to do with basic needs - security of life, and property. Society, however, over the course of evolution, became more and more complex, and demanded similarly complex systems. The human mind, by virtue of its being far more developed than that of any other organism or animal, began to have its own complexities to deal with and could no longer be simply subjected to 'the will of the jungle'. Apart from basic needs, there was 'want'. Mankind began to yearn for mental growth, for the satiation of curiosity, for discovery, knowledge, and exploration, and for longevity, which is very different from the instinct of self-preservation.
What it boiled down to was that a simple system sufficed for a simpler existence and simpler needs. Complex aspirations and desires, however, merit a complex government, with documented laws instead of implicit customs. Today's government is a higher form of government, and must deal not only with the survival of the governed, but also their education, their need for advanced technology, and issues of unprecedented global importance, such as genetics, space exploration, human rights, and globalization.
To quote Jawaharlal Nehru, the then to-be first Prime Minister of India, as he addressed the Constituent Assembly that was entrusted with drafting the Indian Constitution during the Objectives Resolution, "The first task of this Assembly is to free India through a new constitution to feed the starving people and clothe the naked masses and to give every Indian fullest opportunity to develop himself according to his capacity. This is certainly a great task."10 This embodies what modern governments are expected to do – not only satisfy basic needs and wants of security, food, shelter but also the higher aspiration of an individual or even a society as a whole to grow intellectually, get healthier, live longer and have better standards of living.
What one must never forget, however, is that the government, too, comprises men, and men, faced with the complex demands of the modern state, are bound to make mistakes. Is it not human to err? Consider the ideal of objective rulers. However much one may try, is it humanly possible to overcome instincts of the sub-conscious that make us biased? A baby, too, soon after birth develops a bias in favour of her mother's embrace over that of any other, without any training or education.
So, we need Governance. Over not just decades but perhaps centuries, we have seen that while we have all accepted the fact that we need to be governed, our problems have not disappeared. There strife, hunger, disparity, lack of education, and diseases that still don’t have cures even as new ones rear their ugly heads every now and then. A part of the problem at least must lie in the fact that Governments are run by men over men with all their weaknesses. How do we then make sure that we take and retain the advantages of having ourselves governed while keeping the ills at bay? Is there such a thing as a perfect government or a perfect type or form of government?
The Marxist/Communist ideology, once a force that brought about sweeping social and political changes in Eastern Europe, and many other parts of the world, now exists only in China and a few other countries. Its disappearance coincided with the disintegration of a then-super power, the Soviet Union! In Poland in the 1980s, for example, Lech Walesa and his Solidarity Party led widespread strikes and revolts against the oppressive communist government, led by General Jaruzelski, and reached an agreement for free elections by the end of the decade.
Similarly, dictatorships have a history of being overthrown in coups and revolutions, right from the French Revolution against its absolutist institutions - an event that transformed the history of the whole world as it engendered liberal nationalist sentiment, rejected the doctrine of the divine right of the monarch, and established the supremacy of the common citizen - to the referendum in 1988 in Chile, that ended General Augusto Pinochet's 17-year military regime and Presidency. In the specific example of Egypt, during the Arab Spring of 2011, the world watched in wonder as a massive popular uprising overthrew a dictatorship of almost 30 years. When, after the ‘popular elections’ a democratic government was established, there was again strife, this time with a religious basis that caused great distress and, as a result, disillusionment with the government. Another uprising led by the then head of the military, Sisi, and another election established him as the current president.
Does the answer lie in Democracy? Take the case of Sri Lanka, a South-Asian country of linguistic and ethnic diversity, as it is presented in 'Democratic Politics II', a publication of the National Council of Educational Research and Training in India.
"The major social groups are the Sinhala-speakers (74%),"(who are mostly Buddhist)," and "the Tamil-speakers (18%),"(who are mostly Hindus or Muslims). After having gained independence from the British colonial rulers in 1948, "the leaders of the Sinhala community sought to secure dominance in government by virtue of their majority." In consequence, "the democratically elected government adopted a series of Majoritarian measures to establish Sinhala supremacy. An Act was passed to recognize Sinhala as the only official language; the government followed preferential policies that favored Sinhala applicants for university positions and government jobs; a new constitution stipulated that the state would protect and foster Buddhism." The outraged and alienated Tamil community launched parties and struggles against the government, and soon, civil war broke out. "This shows us that if a majority community wants to force its dominance over others and refuses to share power, it can undermine the unity of the country."11
The Sri Lankan example shows that democratically elected governments, too, are susceptible to influence and bias, and can be tempted to act in selfish and tyrannical ways. In India itself, the largest democracy in the world, there is widespread hunger and poverty.
The cited examples show that no form of government is entirely perfect, for they are all composed of human beings. ‘Democracy’, though, is today the most prevalent and relatively more successful form of government - for good reason! People themselves decide who from amongst themselves governs them, giving resonance to Abraham Lincoln’s famous words “...a Government of the people, by the people and for the people”. However, there are almost always follies, and room for improvement. Consequently, there is almost always dissatisfaction and dissent. How do we minimize these follies and at least progress towards the currently distant goal of a perfect government? The answer lies in having a government that has checks and balances that are intrinsic to it.
As Lord Acton said “All power tends to corrupt; absolute power corrupts absolutely.”
Precautionary controls that are enshrined in the very structure of the government can reduce the pit-falls of a government of men by at least taking away the process of review, control and concurrent correction away from the hands of humans and giving it to the ‘government itself’. We may discuss three broad ways of providing these checks and balances, and explore these methods in the Indian context, to provide a real-world example of how these theories translate in practice.
First: There are some principles that need to be above and beyond the control of the ‘government of the day’, because they are basic to human existence and are derived from natural instinct and law. In a landmark judgment by the Supreme Court of India, in His Holiness Kesavananda Bharati and Ors v. State of Kerala and Anr (1973), the court ruled that there are some principles of governance and law that are not within the powers of the elected government of the day.12 A majority of them are highlighted in the Preamble of the Indian Constitution, freedom and dignity of the individual, equal justice and secularism. Also included are the Fundamental Rights of the Citizen, the Supremacy of the Constitution, and the Rule of law.
Second: The Principle of Federalism, or the vertical division of power, which divides power over an area into various levels of government - Central, State, and Local, so that no one authority can exercise absolute control over a region. In India, Federalism is enshrined in the Constitution, and is an important control. It also finds resonance In Madison's words, "Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority."13In India, as many as 4 new states have been formed by carving out from larger existing states. Today, including the state of Telangana, created in June 2014, India is a federation of 29 states, 7 Union Territories, and one Delhi National Capital Region. Today, even further decentralization, or the shift of power to local self-government, is a dominant movement in Indian politics and governance.
Third: The separation of powers among the various organs of the government, or the horizontal division of power, which was first proposed by Montesquieu, in The Spirit of the Laws.14 It is also a fundamental provision of the Constitution of India. At both the State and National levels, the Executive (The Chief Minister and the Prime Minister respectively, and the Civil Services in general), the Legislative (The State Legislatures and the Parliament respectively), and the Judiciary (The High Courts and the Supreme Court respectively) remain largely independent and thus, each being checked and balanced by the others.
In conclusion, we must remember that we are humans. We will want anarchy and unbridled freedom if and when we are strong. We also have well developed brains and sensibilities, which tell us that the 'state of nature' can have grave consequences. So, we as a society want order and governance. We must not forget either that the government we get will be run by people from amongst us and just because they were elected does not mean that they will enter office shedding all their biases and weaknesses. Governments thus must have controls. These controls, must be intrinsic, self-activating parts of the government itself. Deciding not to have governments because they will have problems is akin to, as they say, throwing the baby out with the bath water.
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