Ad Hoc Governance vs. Expressive Governance

In this post I shall make a distinction between two “styles” or conception of governance. One I shall call the “ad hoc” style and the other I shall call the “expressive” style. From there I shall tease out some elements and implications of the “ad hoc” style.

By “Ad Hoc Governance” I refer to the idea that the role of the government is to solve specific problems and address specific issues as and when it crops up. By “Expressive Governance” where the role of the government is to lay down all encompassing general laws codifying or expressing the fundamental principles or character of the commonwealth.

This does not mean of course that ad hoc governance doesn’t express any values or principles in the course of deciding how to go about solving a specific problem. Of course it will occasionally have to appeal to values held by the commonwealth as premises in reaching a policy solution. The difference however is that expressing such principles is the effect of a policy decision and not its purpose. A certain policy is adopted not so as to enact or express certain values or principles (unless we are considering explicitly symbolic “signalling” legislation), but rather to solve a specific problem.

The Ad Hoc History and Nature of English Governance

It is clear that my view of the government is generally slanted towards the “Ad Hoc Governance” whereby government actions are, literally, “Acts”, done to make specific or particular provisions in aid of specific and demarcated ends. The role of government is not to codify, enact or “express” fundamental principles but solve problems which crop up in a pre-existing social order which exist anterior to the government.

This I will argue goes back to the nature of common law and the English political order. As I have argued before elsewhere, during the days of the royal councils and later Queen in Parliament, judicial and legislative actions were not distinct operations. Difficult cases of the law were escalated to the King’s Council for their judgement and in the course of doing justice to these specific cases the precedent is set down for future cases. Parliament saw themselves as the Supreme Court of the Land, exercising supreme authority to do justice to particular cases, and not as grand legislative bodies attempting to codify all the principles or rules of the commonwealth. (To this day many crimes in the UK remain uncodified, known as “common law offences” which are literally created by the courts and not by legislation.) Vestiges of this was retained into the 21st century where the Judicial Committee of the House of the Lords was the final court of appeal, a shadow of the once undivided governance of the old English legal order.

It is this “ad hoc” character which grounds a whole constellation of the British political culture, e.g. negative English liberties, the empirical and utilitarian nature of legislation enacted with an eye to specific demarcated empirical effects or ends, etc. This can be seen in one of the fundamental rules for statutory interpretation in the common law: The Mischief Rule. There are three general rules of statutory interpretation adopted by common law courts: The Plain Meaning Rule (which should be, erm, plain), the Golden Rule (which refers to the rule that we interpret the law in such a way as to avoid a manifest absurdity) and the Mischief Rule.

The Mischief Rule was established in Heydon’s Case (1584). According to the precedent set down there:

…for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:

1st. What was the common law before the making of the Act.

2nd. What was the mischief and defect for which the common law did not provide.

3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.

And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

This goes back to the idea that the English parliament did not function as a grand systematising legislature to codify all the principles of the commonwealth, rather, parliament acted to solve specific problems. Here, the Mischief rule assumes the background of the body of common law, and how the statutes fits into that body, and more particularly, the objective of the statute and the problem to which it was directed to solve. In this one rule we have as such the key elements of the English political and common law system I have argued for: Its ad hoc problem solving nature and its utilitarian nature in being ends or objective oriented.

Now that this is clearer, let’s look at some implications for such a view of governance.

A Preference for the Delegate Model of Representation

I have before explained the Edmund Burke’s distinction between the delegate model of democratic representation against the trustee model of democratic representation. (See here and here.) Very briefly, according to Burke, on the trustee model, elected representatives are chosen for their wisdom and virtue and upon whose shoulders are entrusted the governance of the commonwealth. As such, the trustee has considerable autonomy to govern the commonwealth according to their judgement, to decide principles and policies for the good of the commonwealth which has been entrusted to their care. The people select sound representatives, but the representatives themselves exercise their judgement to govern as they see fit.

On the “delegate model”, the people or majority determines the principles and broad policy direction of the government, and they choose who will best or most efficiently enact those policies/principles after the fact. As such, a delegate is a mere functionary whose role it is to implement the desires or will of the people after the fact. There can be some character judgement involved in who can implement them best, reliably, or efficiently, but in the end the delegate is not an autonomous governor but a delegate or instrument of the people’s will.

Now if the nature of governance is Ad Hoc, then we would be slanted towards the “delegate” model of political office whereby we elect people to simply enact or realise specific broad policy objectives, not as men of sound wisdom and character soaked in the appropriate fundamental principles which guides his august governance over all. You choose someone to solve a specific problem or enact a specific manifesto promise or objective, not to express your values or principles. Thus for example, if the present legislative agenda or issue included the criminalisation of adultery or the tightening of divorce criteria, a candidate’s sexual history will obviously become a relevant consideration. However since those issues are not on the legislative agenda anytime soon, it is hard to see what relevance they would have for a political candidate. Thus candidates are chosen to effect certain policy objectives or solve certain problems or issues, not as expressions of some fundamental values or principles.

The Salisbury Convention and the Delegate Model

(This section is merely an expansion of the point of the delegate model and can be skipped without breaking the flow of the argument here.)

It is a point of interest that the UK, despite its aristocratic trappings, encodes substantive democratic processes into its political culture. One such interesting example is that of the “Salisbury Convention” which gives its political representation a very strongly “delegate” flavour.

In the Victorian age the House of the Lords retained considerable powers to veto bills passed by the House of Commons. The question of the legitimacy of the Lords’ veto of bills passed by the Commons, who have been elected by the people, was raised, and Lord Salisbury proposed the “referenda” theory. His argument is that while the Commons are of course properly elected and representative of the people, but it doesn’t follow that the representation is perfect. If there is an issue pressed by the Commons and a bill proposed by them that the Lords judge to lack sufficient democratic mandate, the Lords have a right to veto the bill and throw the issue back to the nation who will consider and decide the issue at the next General Election. On one particular occasion this occurred precisely. The Lords rejected a bill by the Commons, at the next General Election the party who proposed the bill fought on the issue and won by a larger majority, and Lord Salisbury made the following speech in the Lords for approving the bill:

There may be occasions in our history in which the decision of the House of Commons and the decision of the nation must be taken as practically the same. In ninety-nine cases out of 100 the House of Commons is theoretically the representative of the nation, but it is only so in theory. The constitutional theory has no corresponding basis in fact; because in ninety-nine cases out of 100 the nation, as a whole, takes no interests in our politics, but amuses itself and pursues its usual avocations, allowing the political storm to rage without taking any interest in it. In all these cases I make no distinction absolutely none – between the prerogative of the House of Commons and the House of Lords. Again, there is a class of cases small in number, and varying in kind, in which the nation must be called into council and must decide the policy of the Government. It may be that the House of Commons in determining the opinion of the nation is wrong; and if there are grounds for entertaining that belief, it is always open to this House, and indeed it is the duty of this House to insist that the nation shall be consulted, and that one House without the support of the nation shall not be allowed to domineer over the other…

But when once we have come to the conclusion from all the circumstances of the case that the House of Commons is at one with the nation, it appears to me that – save in some very exceptional cases, save in the highest case of morality – in those cases in which a man would not set his hand to a certain proposition, though a revolution should follow from his refusal – it appears to me that the vocation of this House has passed away, that it must devolve the responsibility upon the nation, and may fairly accept the conclusion at which the nation has arrived.

Eventually this lead the way to what is known as the Salisbury Convention. It is a constitutional convention, but not law, in the UK where the Lords will not oppose any bills proposed by the House of Commons which has been mentioned in an election manifesto. This little convention expresses I think the point about how issues and legislative agenda and policies play a much stronger role in the democratic process in the UK compared to the contemporary American scene where personal character and character tend to dominate the election campaigns.

Delimited Laws and Negative Liberties

My next argument is that ad hoc governance is the basis for the English negative liberties and delimited laws. I would argue that the English liberties are not so much rooted in a love for the values or abstractions like “freedom” but rather in that love for local villages and communities. If the English are suspicious of far away rulers, who are a mere abstraction to them, that is because they loved their neighbourhood and suspect the state’s meddling and intrusion which might destroy it. Thus it is not they love liberty as an abstract concept or as an end in itself. This is the conception of “negative liberties” which are merely restrains on governmental actions rather than a positive enabling of individuals to do something.

Thomas Hardy portrays this spirit well in his short novel The Distracted Preacher where a methodist pastor confronted a smuggler about her activities and how she was depriving the king of his custom duties. She then replied:

My conscience is clear. I know my mother, but the king I have never seen. His dues are nothing to me. But it is a great deal to me that my mother and I should live.

Thus she defies the king, not because she loves liberty, but because she loves her mother and the king was an abstract figure which means little to her.

But what is the logical connection between negative liberties and ad hoc governance? It is this: According to negative liberties, one assumes that by default you are free to do whatever you want except for these specially demarcated areas and set of actions which the government regulates. The idea of positive liberty on the other hand is that you are free to act only within these areas or set of actions explicitly authorised by the government.

But in order for negative liberties to work you clearly need a form of ad hoc governance where it is explicit that laws are not codifications or “expressions” of natural law or abstract universal principles, rather, legislation are, literally, specific particular “Acts of Parliament”. They are actions of an empirically limited and embodied political institution who can only do so much realistically and practically. Thus while parliament legally can pass an Act saying that all the streets of the UK shall be paved with gold, but that “action” can never be realistically enacted. The limits on parliament’s powers are not legal or even principled, they are realistic pragmatic limits to solve specific problems. It is this legislative character which gives the English political culture its “empiricist” and “utilitarian” nature. It is “empiricist” because in order to properly delimit the scope of the terms of the law you need to limit it to specific empirical points rather than as covering a broader range of activities or actions. As such there cannot he general all encompassing universalistic principles which define the legal terms which would correspondingly expand the field under the government’s control. Utilitarianism is also an obvious consequence of the nature of English legislation. If laws are not expressions of fundamental principles or natural law, then laws are enacted for a specific purpose or end, to realise a specific objective and solve a specific problem. This is just is utilitarianism, laws are shaped by their ends and consequences. A law which is not controlled by specifically demarcated or specific objectives or intended effect, which are essentially open-ended and abstract, is to give license to unlimited expansion of the government to fill in the blanks, destroying the nature of English liberties.

To give an example of recent interest, consider the nature of tariff legislation. Throughout America’s history from the 18th to 19th century the “infant industries” argument was employed to justify the American tariffs against the British industrial advantages. The idea is that the industries will need time to develop and mature before it can compete with Britain on equal footing. Thus the tariff policy is not meant to be permanent or everlasting, nor is it an expression of some fundamental principle. The tariff policy on this conception is directly towards a specific delimited problem, an immature and undeveloped industry, and the tariff is meant to solve the problem of shielding it from unfair competition or advantages until it can compete on equal footing.

Political Parties as Coalition of Interests

The last implication of ad hoc governance is an understanding of the nature of political parties.

We are familiar with the common talking point about how the Republicans were the party of the emancipation and anti-Jim Crow while the Democrats were the heirs of slavery and whatnot. Such a talking point assumes that parties do have fundamental characters or principles which persist through time. However as the reality of the political landscape makes clear, such a past really doesn’t matter as now the Republicans are party of racist white men and the Democrats the party of minorities.

If the Ad Hoc view of governance is correct then that would also require an adjustment to how we view political parties. Political parties on the ad hoc view are not parties which embody a fundamental character or ideology or principle. Rather they are coalitions of diverse interests allied temporarily for pursuing a common policy or legislative agenda. As such, it is not incongruous on such a view for a party to be both “family values” oriented and yet at the same time to have a Trump as president.

Again, the fundamental objective or point remains the legislative agenda, the issues and problems to be addressed, rather than voting for a party as an expression of some character or principles.

Conclusion

No doubt there remains a lot more to be said. However I believe that what I call the “ad hoc governance” ties in together the elements which are normally associated with the English political culture: negative liberties, democracy, empiricism, utilitarianism, etc. While of course in reality even Anglosphere political cultures cannot be purely “ad hoc” and that sometimes it does legislate so as to realise certain abstract principles and values, nevertheless I think it is a useful model by which we can understand the nature of the English political culture and other nations descended from it.