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February 8, 2007
If we compare our core political and legal concepts and ideas (democracy, the separation of powers, rights) with the actual structure and actions of government we find a starkly evident mismatch between our concepts and the actual form and functioning of our governmental apparatus.
Edward Rubin’s Beyond Camelot: Rethinking Politics and Law for the Modern State explains these mismatches and identifies their harmful consequences. Rubin’s thesis is that many of our most fundamental political and legal theories and concepts are medieval inheritances which no longer serve our interests.
The contention in this book is that our continued use of pre-modern concepts for modern government embodies the thought processes of a prior era, its way of conceiving the world, of creating categories, and of determining the relative significance of different issues. As such, these concepts are an impediment to understanding, and control our current thinking in ways that are genuinely counterproductive”
In this review of the book Brian Z. Tamanaha says that Rubin asks the reader to “bracket” or “hold in abeyance” our existing concepts (p.8). With respect to each political or legal concept he addresses, Rubin attempts to persuade the reader that such bracketing is appropriate and necessary by exposing its pre-modern origins, showing that it took root or acquired its meaning in circumstances significantly different from today. Rubin then articulates and applies an entirely different conceptual scheme – an “alternative imagery” – with which to frame, describe, and understand a particular aspect of the political-legal arena.
Tamanaha says that Rubin’s bracketing analysis effectively dissolves one standard concept after another, to the extent that one may wonder how the standard understanding has remained so resilient in the face of such contrary facts. His alternative conceptual schemes time-and-again create a novel perspective that produces new angles and insights.
To offer just one example, Rubin details a number of ways in which the routine notions that the President is the titular head of the administrative branch of government and that the legislature passes laws and delegates tasks to administrative agencies are misleading. Network analysis instead portrays the President as merely a single individual with a small number of selective relationships through which communication occurs, which then wends its way through agencies via other strings of relationships, often losing something or meeting resistance in the process; Congress consists of individuals and their staffs who send various signals – from laws to letters to statements at hearings – to administrative agencies, constituting complex lines of continuous interaction at multiple levels. The network approach generates a number of policy implications that Rubin identifies.
To supplant the notion of three separate branches of government, for example, Rubin offers the model of a “network;” he suggests that “legal rights” are better understood in terms of “causes of action;” “human rights” are better understood as “moral demands on government;” “property” is better understood in terms of “market allocations.
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From what little I can digest from that blurb he is arguing for a stronger form of federalism. Decentralisation makes sense with the current technologies around, especially communications. Many places, such as British Columbia and South Australia have started trying out sortition. Which is a very low cost form of decentralisation (we use it in juries now) that adds a non-political layer of checks and balances.