Ethics
Democratic Sovereignty
And
Personal Responsibility
Basic Issue, Part 1
• American (and other Western) democratic political
theory:
– Legitimizes decisions made through elective and
legislative processes.
– Places a high value on participation and representation.
– Fears the “king” or, in modern terms, authoritarianism.
– Rejects transfer of decisions (often called “discretion”
in public administration literature) to administrators.
Are the servants of the public to decide their own
course, or is their course, or is their course of action to
be decided by a body outside themselves? My answer
is that the servants of the public are not to decide their
own course; they are to be responsible to the elected
representatives of the public, and these are to
determine the course of action of the public servants to
the most minute degree that is technically feasible.
Herman Finer, Administrative Responsibility and Democratic
Government, Public Administration Review, 1941.
This view is controversial …
It has long been customary to distinguish between policymaking and policy execution.
…
But while the distinction has a great deal of value as a
relative matter of emphasis, it cannot any longer be accepted
in this absolute form.
…
Public policy, to put it flatly, is a continuous process, the
formulation of which is inseparable from its execution.
Public policy is being formed as it is being executed, and it is
likewise being executed as it is being formed.
Carl J. Friedrich, “Public Policy and the Nature of Administrative Responsibility” in
Carl J. Friedrich and Edward S. Mason, eds., Public Policy: A Yearbook of the
Graduate School of Public Administration, Harvard University, 1940.
This objection looks…
• Like a simple assertion that however desirable
representative participation may be in normative
political theory, it is unachievable in practice….
• If that is Friedrich’s claim, is it
– (a) a claim about ethics, or
– (b) relevant to ethics?
More than one claim..
•
Friedrich makes at least two more claims.
He says that …
1. The problems that government face are
too complicated to be solved by
legislation. To solve them by legislation is
to forever condemn us to yesterday’s
technology.*
•
Is this a matter of ethics?
*Paraphrased from Carl J. Friedrich, “Public Policy and the Nature of Administrative
Responsibility” in Carl J. Friedrich and Edward S. Mason, eds., Public Policy: A
Yearbook of the Graduate School of Public Administration, Harvard University, 1940.
2. Legislatures sometimes get it wrong. The
people reject legislation and the legislative
process may not respond to the popular will as
promptly as the bureaucracy. He cites examples
where the bureaucracy failed to implement
unpopular laws.
(paraphrased from Friedrich*)
Thus a wine tax was quietly allowed to drop out of sight, just as the
potato control act remained a dead letter in the United States.*
•
Is this a matter of ethics?
*Carl J. Friedrich, “Public Policy and the Nature of Administrative Responsibility” in
Carl J. Friedrich and Edward S. Mason, eds., Public Policy: A Yearbook of the
Graduate School of Public Administration, Harvard University, 1940.
Suppose you read:
“A month after a city policy shift resulted
in a sharp increase in the number of
arrests of homeless people, a police
officer accused of refusing to arrest a
homeless man sleeping in a Lower
Manhattan parking garage has been
suspended without pay for up to 30
days, the authorities said yesterday.”*
• Is this a matter of ethic?
*The New York Times, November 28, 2002, Thursday, Late
Edition - Final, Section B; Page 3; Column 6, “Police Officer Is
Suspended For Defiance,” By Al Baker
Herman Finer has more to say…
• Governments and officials have been guilty of nonfeasance, that
is to say, they have not done what the law or custom required
them to do owing to laziness, ignorance, or want of care for their
charges, or of corrupt influence.
• Again, there may be malfeasance, where a duty is carried out, but
is carried out with waste and damage because of ignorance,
negligence, and technical incompetence.
• Third there is what may be called overfeasance, where a duty is
undertaken beyond what the law or custom may oblige or
empower; overfeasance may result from dictatorial temper, the
vanity and ambition of the jack in the office, or genuine, sincere,
public-spirited zeal.
Herman Finer, Administrative Responsibility and Democratic
Government, Public Administration Review, 1941.
• He demands that administrators are
responsible TO elected officials who can
punish them for such abuses of power.
• This, to Finer, is the essence of ethical
government.
Another view of responsibility
• Friedrich rejects Finer’s hierarchical model
of responsibility. In fact, he asserts it is
impossible:
So
• Friedrich looks to voluntary compliance
with the intent of policy, with professional
standards and with one’s own morality for
the responsible administrator.
Basic Issue, Part 2
• Moral theory (not all versions, but many)
expects the moral actor to be individually
responsible for his or her decision.
• Consider…
Agency
• Moral theory about responsibility and duty relies
on the notion of an “agent.”
• In the relevant sense of “agent,” an agent must be
able to choose.
• What “choose” means is complex.
• However, it seems clear that Finer’s seemingly
mechanistic sense of carrying out orders excludes
choice.
• Thus, those compliant with Finer’s standard are
not only NOT responsible, they are incapable of
responsibility. The concept is irrelevant to what
they are doing.
BUT
• Can one forfeit choice?…
Charter of the International Military
Tribunal
(The Nuremberg Tribunal)
ARTICLE 8
• The fact that the defendant acted
pursuant to order of his Government or
of a superior shall not free him from
responsibility….
(available online:
http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/NurembergIndictments.html, accessed March 25, 2003)
How do we…
• Compare the views of Friedrich and Finer
with Article 8?
Assertion…
• Neither the Nuremberg Tribunal nor Carl Friedrich
got to the most important reason why
administrators must have discretion.
• Friedrich got close. It helps to know that he also
served as translator for the political writings of
Immanuel Kant.
• The view advocated by Finer violates Kant’s
Categorical Imperative, by treating government
employees as means but not ends -- that is, by
denying them voice in critical decisions in their
own work -- thus it is immoral.*
*From a Kantian perspective.
The winner…
• The view Herman Finer represents won:
– The Administrative Procedures Act was passed
in 1946.
– The Code of Federal Regulations is now
published in 221 volumes which require more
than 23 feet on the shelf.* It exceeds 170,000
pages. It can be bought for about $1200.
– The population most regulated by these rules
are government officials.
*This is approximately the size of the largest ordinary sized bookcase.
Immoral with consequences
(Here I speculate)