Three Questions

The City Council of Apple City has passed a new parking rule: street parking in the old quarter becomes metered, with no parking after 10 p.m. A resident of the old quarter disagrees, goes on parking on the street at night as before, and receives a ticket. If the ticket goes unpaid, the car may be towed.

Apple City is fictional, and so are the state it lies in, the town downstream and the residential complex within it. All seven essays of this series speak in this city, and its people are given only by office, never by name. Three questions can be asked about the ticket. On what grounds: on what grounds a city comes to have something that can set such rules and issue such tickets; How Is Institution Possible has answered that. What for: what this thing ought to achieve and what it may not do; Institution Theory has answered that, with five oughts and the Kingdom of Ends as their direction. How: how this rule should be made, how the ticket should be issued, who answers that resident when he disagrees and with what, and what to do when something cannot be achieved. Institution Theory handed this question on at its very start: “specific theories of institutions, such as the Theory of Government or a theory of the firm, answer how to do it, and they also judge whether a given thing can be done, and what to do when it cannot.”

This series starts from the third question. Its subject term is judgment: the rules go so far, and the next step needs someone to judge. How a government judges in particular situations, and to whom, and for what, its judgments must answer: that is what it asks. This essay does not judge the parking rule; it uses the rule only to separate the three questions. Before asking further, a few things must be cleared away.

A Means, Not a Subject

A government is not an end. The first premise of How Is Institution Possible says: “Any institution, including the most elegant constitution, is a means, not an end.” A government is one kind of institution, and it too is a means. So one can say to it “this is what you ought to achieve”; and so too its continued existence can be a condition for getting things done, but never a reason to close off questioning. The direction is the Kingdom of Ends: “it is made by persons; an institution cannot make it on their behalf, nor does it count as made because an institution declares it.”

Nor is a government a subject. The parking rule was passed by a vote of the City Council, and the hands raised were those of council members, one by one; the ticket, too, was issued by someone sitting in an enforcement position. Apple City raises no hand and issues no ticket. Power Theory says: “The state does not sign decrees; key-node officials sign decrees through the state apparatus.” Institution Theory says: “the construct is the address of attribution, not the subject of the act.” A government’s acts can all be traced back to their invocation by the persons sitting in positions; they take effect in the government’s name, and the address of attribution is the government as a construct. Both ends are there, and neither hides the other.

Not a Duty-Bearer

People often say “the government has a duty to …”. This series does not speak that way. Rights Theory sets up no horizontal duty, and when it comes to government it puts this more bluntly still: the government is “the bearer of that power, not a duty-bearer. This is not to say the demand is unreal or unenforced — it may be very real, very enforced; only its structural position is the demand of a power, not a horizontal duty.”

On Accountability establishes a word of its own: accountability is “the answering load the recipient holds in that position”; “Only a subject can hold a duty; construct and subject alike can hold accountability.” A position within a government is “a single registration event,” and it too holds accountability. So when this series speaks of a government, it speaks in four places. To the government as a construct, it says ought, and also limit, that is, where its acts stop; to the slot in which it is converged by a constitutional order or by the level above and cannot exit on its own, accountability; to the positions within the government, accountability; to the persons who sit in those positions, and to internal subjects, it writes no ought: that is their own law. Nowhere does the series write “the government’s duty.”

Not a “We”

Institution Theory says: “an institution cannot produce a ‘we’.” The Conflict Treatise has said a sentence of the same shape between two persons: “Consensus does not automatically generate a third first-person legislator.” Extending this to government is a step of this series’ own: a government’s rules do not generate a third first person that completes each person’s inner legislation on his behalf.

This does not cancel the enforceable validity of public rules over actions within their authority. Where a rule has been made under valid authority and procedure and restricts only actions that may be restricted, an individual’s disagreement does not by itself cancel its validity for him at the layer of authority and procedure; subject positions that cannot be overwritten are not included in this. How the parking case itself comes out, the first essay takes up. But what a rule can ask of a person has an edge: “A rule can require a person not to park at night; it cannot require him to identify with the view that ‘not parking at night is right.’”

Public prosecution belongs here too. The Law Series says that to annihilate a self-aware being threatens all subjects, so that “it must be prosecuted by public authority on behalf of all subjects.” This series reads “on behalf of all subjects” as: initiating proceedings, by a valid public position, for those under protection. Public prosecution prosecutes on behalf of all subjects; it does not form a “we” on everyone’s behalf, does not avow anyone’s inner law, and does not acquire arbitrary authority under this title. Applying this reading to public prosecution in general is the series’ own step, taken up in the second essay.

Valid Is Not Legitimate

Sitting in a position is not sitting in it legitimately; that a rule has been embedded and carried out does not make it legitimate either. Power Theory says of registration: “Registration is not consent, is not legitimation, is not the acknowledgment of justice.” Institution Theory says of protection: “being able to enforce does not prove that what is enforced, or the authority to enforce it, is warranted.”

The effect of a decision on persons is answered in three layers: its factual effect; under what authority and procedure it is valid; and on what grounds it may normatively be so. That a rule was passed by the Council and embedded by procedure, and that a ticket was issued under it, answers at most the second layer. The third remains. It has several necessary conditions: crossing no line; guaranteeing the recognition-based rights embedded; remaining open to questioning. The step from the oughts to these necessary conditions is the series’ own. None of them is sufficient.

In Politics as a Vocation, Weber asked why the dominated obey. He says that the grounds of legitimacy of a domination are in principle three: the authority of the “eternal yesterday,” the authority of charisma, and domination by virtue of “legality,” that is, by virtue of belief in the validity of legal statute. The two do not ask the same thing. Weber asks on what grounds, empirically, the dominated obey, what they take as the ground on which those who dominate have the right to command; this series asks about legitimacy in the normative sense. The two meet at the third ground: belief in the validity of legal statute can make people obey; on what grounds a statute may normatively be so, that belief does not answer. The latter is what this series writes. This is a division of scope, not a refutation.

Two Kinds of Rights

A government is not the source of basic rights, nor the only party that may not violate them. Of a basic right, Rights Theory says that “it comes from one’s own law, is ontologically prior”; Institution Theory says: “basic rights are not newly made by the institution.” That basic rights may not be violated is derived from the subject’s side, so it holds alike against individuals, against constructs and against governments.

What is peculiar to government lies in the other half: guaranteeing the recognition-based rights it has embedded for its internal subjects. Rights Theory says that of one and the same seam, “read from the side of exertion it is power, read from the side of the subject’s position it is a recognition-based right.” A government holds the power side; if it does not let the rights side operate, the position is de-righted, “the position degenerating into sheer force.” The structure gives only this reading, not the ought; the guarantee is an undertaking the series newly sets on the government’s side, in three ways: no de-righting; no empty shell; withdrawal or amendment made in public and open to questioning. Without the guarantee, power at that point is not legitimate and must be questioned; with it, power is not thereby legitimate.

Not a Manual

This series is not a design manual. It writes which functions must be carried by someone; it does not prescribe which form alone may carry them. How Is Institution Possible says: “The separation of powers taken here is one implementation of that function, not the only one.” The multi-branch separation of powers is written here as functions: rule-making, execution and checking are not held by one and the same position, and checking is independent of the party checked; what is counted is functions, not agencies. Where the separation of powers may be weak, openness to questioning is not.

Nor is it a handbook of judgment. Action Theory says: “Judgment cannot be done by rules in anyone’s place: rules, facts, reasons and feelings can all enter a judgment, yet applying, weighing and taking up remain the work of the one who judges.” So no rulebook that could stand in for judgment can be given here: not because it is unfinished, but because by that proposition it cannot be written. The other kind, one that teaches judgment, this series does not write either. It does not complete case judgments in place of the people in office; what it writes is to whom public judgments must answer as they are made, carried out and corrected.

What Kind of Construct

The government this series speaks of is a governing construct that takes a stretch of territory as its jurisdiction, continuously makes and carries out decisions on the public matters within it, and is carried by public positions while persons come and go. Every level is included: the residential complex, by the public decision-making and carrying-out functions it actually carries; the city, the county, the state; and internal governance at the national level. In the Orchard Court residential complex, the owners’ assembly passes a covenant and the owners’ committee makes decisions to enforce it; by these functions the complex counts as a government in this series’ sense. The outward face at the national level, borders, membership and war, goes to the Theory of the State.

Jurisdiction and interior are kept apart. A jurisdiction is a stretch of territory where decisions and compulsion land. The interior is drawn by entanglement, not by identity: “those in the entanglement the construct handles, together with those its acts reach who have no way to avoid it by exiting, make up the interior.” What Apple City releases into the river flows down to the town of Willow Ferry; the people of Willow Ferry are not in Apple City’s jurisdiction, yet they may be in its interior. Reach of influence is not reach of authority.

Those who sit in these positions and judge in them this series calls officeholders: everyone who holds a public position and judges in it, the front line included. The mayor who signs an ordinance is one, and so are the permit examiner who approves a stall permit, the patrol officer who rushes to Levee Street at night, and the social worker who takes a child away that same night. To officeholders this series writes no ought; their positions hold accountability.

A Ruler

Taken together, the whole series is one sentence: Toward its internal subjects, a government holds to anti-colonization and strives for cultivation; its judgments cross no line, must be explained, and remain open to questioning. The first half follows the main line of Institution Theory; the second half is this series’ own. What it “holds to” are the things that are not discounted for lack of resources and do not stop in an emergency: the construct’s acts cross no line; the lines between internal subjects are guarded; the channels of refusing, revising, exiting and changing direction are not sealed; the channel of being questioned stays open; the recognition-based rights embedded are guaranteed. This grouping is wider than Institution Theory’s, whose “holding to” names only the first two oughts; grouping them so is the series’ own step. What it “strives for” is providing conditions for the cultivation of internal subjects according to relational thickness, and leaving room for cultivation between them. “Colonization” is taken in the narrow sense: “colonization is a boundary-crossing disguised as cultivation.”

Two expressions are kept apart. “Open to questioning” means that the channel is always open, for every government and at every time; “must be questioned” means that a verified lapse owes an explanation and a correction. Being questioned is in itself no evidence of illegitimacy, and providing a channel is no certificate of repair. The series undertakes one sentence: a government can never be perfect, so being questioned is the normal state, not the exception; a claim to perfection is itself a place where questioning is due.

There are three things the series will not do for the reader. It does not write how to achieve anything, and it does not teach judgment: no remediation checklist, no constitution, and no account of “what good judgment looks like” can be given here. It does not write oughts for persons: an officeholder is a person too, and the series says accountability to his position and writes no ought for him as a person. It does not judge, on the reader’s behalf, the government the reader lives under: the main-line sentence is a ruler; where to measure, how, and what the measurement shows rest with the reader; and “a government can never be perfect” is not a verdict on any actual government.

Back to the parking ticket. What that resident wants to ask is taken up in the first essay. This one hands over a single thing, and the paper says so itself: “What this series gives the reader is only this ruler; whether to take it up and ask, and whom to ask, is the reader’s own affair.”