Beyond the Separation of Powers

legislative, executive and judiciary is only the beginning

The fundamentals of life, apparently, come in threes: Animal, vegetable and mineral; land, sea and air; proton, electron and neutron; three dimensions in space and three primary colours. Then there is subject, object and relationship; science, art and religion; mother, father and child; liquid, solid and gas; root, stem and flower. And the constitution of the human being: Mind, body and spirit. Or flesh, blood and bone. Or the three functions of consciousness in the form of thinking, feeling and willing.

Moving to the social realm there is, as my title suggests, the division of legal systems around the world into legislative, executive and judiciary. As my title also suggests however, legislative, executive and judiciary is really only the beginning. The inherent 'three-fold’ patterns of life run much deeper into social affairs than that. And they have always been there. They have just not been well-recognised.

Regular readers will have seen me claim before that the three foundational activities of any society are, and always have been, the making of rules, the trading of commodities, and culture. Laws, trade and culture, in other words - of which ‘law’ is in our times further divided into legislative, executive and judiciary. Thus we have a tripartite structure within a tripartite structure. What’s more, the pattern then continues to repeat: A closer look at the the world of commodities, for example, shows it pretty unarguably to divide into producers, distributors and consumers, each with different roles and interests.

Why does any of this matter? It matters because the need to keep separate the formulation of laws, the executive power to enforce them, and the judgement of whether and when they have been broken, is not ‘somebody’s idea’ - it is inherent in the nature of things. And it matters because all the other triplicities are equally ‘inherent in the nature of things’. Which means that recognising them may sometimes help us get a handle on why things break down, and what we might be able to do to get them back on track.

Also ‘inherent in the nature of things’, is that the three higher-level functions (law, trade and culture) operate (or should) according to very different principles. The area of ‘law’ as a whole, for example, is subject to the principle of equality, in as much as we must all be equal under the law - whereas in cultural activity the first imperative is freedom:

We know that we are not free under the law to do anything we want to do, to break contracts, to inflict violence, to steal and so on, and we know that we shouldn’t be. We’d like laws that empower us rather than control us, but we know (at least most of us do) that it is necessary to have some laws. And I think we all agree that we should all be equal in the eyes of those laws. As for culture, who is going to argue that science, education, the arts and spiritual/religious practice should not be carried out in freedom? Just as we are not ‘free’ to break laws however, we are not ‘equal’ in cultural matters: We all have different contributions to make to society, and we all have different educational needs (just for example) to help us make those contributions maximally. Treating everybody as ‘the same’ in education leads to loss of opportunity for both the less-talented and the extra-talented - and in fact, even for those inbetween.

So far then, we have a clear primary principle for each of ‘the making of rules’ and ‘cultural activity’. What about the trading of commodities? ‘Collaboration’, quite likely, isn’t the first word that comes to mind for many - but there really is no getting away from the fact that we produce commodities for each other, in order to survive. That too is inherent in the nature of things.

To recap: Each of the three basic groupings of human affairs has a different operating principle: Equality in matters of law, Freedom in cultural affairs, and collaboration in trade. And the thing is, mixing those principles really doesn’t work. That is why, to give a key example, we strive to keep commercial interests separate from political decision making. Such an aspiration, surely, is no more up for debate than separating church and state? We are falling short however: Managing the means of exchange for example, should be done ‘by the people and for the people’. And the aspiration to get political and commercial interference out of the cultural activities of education and science, while not new, is far from achieved.

Damaging aberatrions also still occur when we seek to use the wrong ‘operating principle’ for the wrong social function: The attempt to put ‘freedom’ in the state sphere for instance, leads to the idea of anarchy, while ‘collaboration’ as a primary principle for the state sphere leads to communism - and thence to loss of freedom in the cultural matters.

The mis-application of ‘equality’ into fields other than ‘rights’ (law) is also seen clearly to cause problems:

Pushing it into the cultural sphere leads to surreal levels of political correctness, the misguided attempt to treat everybody in education as the same (or, even worse, absurd attempts to make them actually the same) as well as the criminalisation of ‘unapproved speech’.

Pushing it into the commercial sphere meanwhile, has recently been leading to the horribly flawed ‘ESG’ movement, in which corporate businesses mix unelected responsibilities for the ‘social good’ with their own profit motives. (Doubly disturbing if one looks back at history and recalls that moving corporate businesses into governmental activity is an essential ingredient of fascism).

The opportunities that exist for ‘positive re-alignment’ however, go beyond merely the avoidance of such presently-visible problems:

Re-alignment of collaboration between producers, distributors and consumers for example, might include consumers having explicit input to what is to be produced. If in this way production could be brought into closer alignment with real needs, environmental impact would be reduced, and the new modus-operandi would contrast starkly with the present situation in which it is the needs themselves that are manufactured.

In cultural activities - whether we consider arts and sciences, spirituality, music, cooking, or even the work of lawyers, doctors and teachers, - new perspectives might emerge from making better distinctions between research (the establishing of objective knowledge), education and dissemination (the sharing of knowledge) and ‘creative application’ (useful cultural work within society).

And new possibilities could also emerge in the interactions between the ‘three big functions’. An example: Production is only possible because it is fed by the provision of research ideas and talented people originating in cultural institutions. So a ‘circular economy’ (a real one, far beyond the recycling of plastic bags) would mean the reciprocal support of culture via the return of some funding to those institutions. Not the crumbs offered by ‘corporate foundations’, but real funding - implying, by the way, a corresponding reduction in taxes to government, which, with a smaller role would need less. And not with ‘corporate strings’ attached, but unconditionally. (That’ll test whether the ‘ESG’ people are serious about supporting society).

We move to ‘the making of rules’: Allowing governments to assume responsibility for results in the cultural and economic matters has been a disaster. (because it exceeds the making of rules) Culture has long been in precipitous decline, and living standards have risen because of technological progress, not because of what governments have been doing. If in contrast to such flawed arrangements the role of legislators were confined to ensuring the clean and just interactions of cultural and commercial activities, various benefits would accrue:

The chances of consistently achieving equality under the law - for the first time - would greatly increase. (Because of the more focused scope of responsibility). And in the process of electing the legislature, it would become much more possible for people to actually understand the implications of their vote. These are not small considerations. But something even deeper would happen: Governments would become very much more effective ‘conductors of the three-part orchestra’, and responsibility for the vibrance of society would shift to the population at large, where it belongs - and where it actually becomes possible. Government would be in the business of empowering the population, rather than controlling the population.

Perhaps most important of all, we might notice that if any one of the three principles (law-making, trade and culture) is weakened or under-represented, the others will fall, for certain, into destructive imbalance. Without strong and genuinely independent cultural institutions for example - which is the present situation - the relationship between government and corporate business becomes incestuous. The aspiration to keep commercial interests and political decision-making separated breaks down. Things move in the direction of tyranny, intended or otherwise. One might expect at that point, as the imbalance gets worse, that new ‘cultural institutions’, able to rein in or offset the excesses of government and corporate power, would begin to spontaneously emerge. Or at least within the constraints of a corrupted and unbalanced system, try to emerge. And in fact, as I have written of before, that situation has indeed begun to develop, and essentially awaits more explicit recognition and support from the people. (As well as a long and challenging process of maturation).

The times are crying out to us to further evolve our social structures and methods. We surely know that any such move must be organic and principles-based. In what I have spoken of here, we see a three-fold principle which not only occurs throughout the living world, but also has a well-proven social application in the ‘separation of powers’ within the legal realm. It is time we explored it more widely. It is time we separated some other powers.