THE SEPARATION OF PERSONNEL

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Although some strategies within the separation of powers rubric do not prohibit the sharing of personnel, many of the advantages do require separation. This section describes two reasons for keeping the personnel separate between institutions, and for ensuring that one institution does not have discretionary control over the appointment, continuance and pay of the other institution's personnel (Hamilton et al., 1778/2008, pp. 256-257, 359). The first reason is to fetter corruptness of character; the second is to facilitate role-based virtues.

Separate Personnel as a Fetter to Corruptness of Character

A perennial reason to ensure that decisions are made by separate personnel is Lord Acton's shrewd observation that power corrupts, and (all the more) that absolute power corrupts absolutely. Anticipating Acton, Locke based his separation on the grounds that, 'it may be too great a temptation to human frailty, apt to grasp at power, for the same persons, who have the power of making laws, to have also in their hands the power to execute them …' (1690/1947, p. 143).

In Montesquieu, this concern with the toxic relationship between power and virtue emerges in full (Singer, 2009, p. 99). The Frenchman (1748/ 1989) argued that 'it has eternally been observed that any man who has power is led to abuse it … So that one cannot abuse power, power must check power by the arrangement of things' (1748/1989, p. 155). Concerned above all with moderation, Montesquieu sometimes speaks as if any fetter on power, or overlap in jurisdiction, is desirable in itself. The more people's responsibilities overlap with others, and the more they must consider others' views, the more they become accustomed to moderating their will. In Montesquieu's view, the separation of personnel forges a fundamental change in the perspective, character and ambition of decision-makers.

As we will see below, the 'non-aligned interests theorem' observes that specific biases are unlikely to be shared by separate actors; thus, splitting decision-making among actors can result in a fairer outcome. The perennial need for an institutional actor (let's call him 'Ahmed') to coordinate his actions with other decision-makers impels him to give up self-serving pro- jects (Hamilton et al., 1778/2008, p. 363). Over time and through force of habit, Ahmed alters his goals until he conceives only of plans other institu- tional actors will support. In so doing, as Montesquieu would put it, Ahmed moderates his will.

Structural Separation and Role-Based Virtues

Different institutions can develop their own professional practices and accompanying values - determining what it is, for example, to be a judi- cious judge or an effective executive. As Vile (1998, p. 17) observes: 'Differing procedures introduce differing values and different restraints; the emergence of an “institutional interest,” the development of professional- ism, the influence of colleagues and traditions, all provide the possibility, at least, of internal checks'.

The virtues each role requires may be distinct; the judge impartial; the executive decisive; and the legislator inclusive. The creation of distinct institutions allows each different population to develop a professional ethos specific to its task and method. Ideally, the constraints on these role holders - the limitations inherent to the specific institution in question - contribute to a way of being and living. This form of life as a professional practice provides its own internal reasons for performing one's role (Wueste, 2005, pp. 22-25); reasons that prohibit role holder's from 'tog- gling' their personas on and off at will (Wueste, 2013, p. 7). To mix meta- phors, the swapping of hats as an agent shifts from one role to another is impossible if the ethos is dyed into the wool of the role holders' characters.

Section Summation: The Separation of Personnel

The insights about character and role morality discussed above are mechanisms whereby, in Madison's words, the interest of the man becomes connected with the constitutional rights of his institution (Hamilton et al., 1778/2008, p. 257). But this only scratches the surface of the advantages of the separation of personnel. The following sections detail a host of mechan- isms available in conjunction with the separation of personnel, including strategies of replacing decision-making, splitting decision-making, overlap- ping decision-making, balancing strengths and more.

 
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