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Human Fallibility and the Separation of Powers

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Human Fallibility and the Separation of Powers COMMENT HUMAN FALLIBILITY AND THE SEPARATION OF POWERS The limits of human knowledge is one of Hayek’s most enduring insights, writes Jonathan Crowe umans are fallible—and this fallibility of powers in modern administrative democracies is the hardest thing for us to grasp. and a plea for the importance of humility in public We have limited knowledge—and the life. The separation of powers is integral to modern limits of our knowledge routinely governance—but we can never take it for granted, Hprevent us from realising just how much we do because the very reasons that make it important not know. Our reasoning processes are vulnerable also explain why officials fail to honour it. to various forms of distortion and bias—and these distortions and biases often cause us to overlook Epistemological fallibility our own partiality. We are prone to favour familiar Humans have limited powers of knowledge and people and concepts over the unfamiliar—and deliberation. These limitations apply to all kinds of our lack of understanding of other viewpoints human decisions, but they are particularly acute at prevents us from realising the ways in which we the governmental level. Political actors must make marginalise them. We are susceptible to temptations decisions on a daily basis about what laws and that lead us to go against our conscience—and policies are best suited to organise the community. these temptations also provide incentives not to However, a human community scrutinise our behaviour. is a hugely complex institution. Humans are fallible, but the way our society It encompasses a large number is structured inevitably means that some humans of individuals with their own gain power to make decisions that impact on the diverse preferences and life plans. lives of others. Constitutional principles such as The short and long term plans of the rule of law and the separation of powers exist these individuals intersect in many to protect people from the flawed decisions of complex ways. These interactions, those in positions of power. However, the officials holding these positions routinely struggle to recognise their own fallibility. It is for this reason Jonathan Crowe is Professor of Law at Bond University. that the separation of powers—like other This is an edited version of his chapter in Rebecca constitutional limits—is continually under threat. Ananian-Welsh and Jonathan Crowe (eds), Judicial This article examines the various forms of Independence in Australia: Contemporary Challenges, human fallibility that underpin the separation Future Directions (The Federation Press, Sydney, 2016). of powers. It distinguishes epistemological, It is reproduced with permission of The Federation Press, which holds copyright. This new collection also includes psychological, ethical and moral fallibility and contributions from two scholars affiliated with CIS: examines how each of these human failings is Professor James Allan and Professor Suri Ratnapala. For exacerbated by political forces. It concludes with further information, see www.federationpress.com.au a reflection on the vulnerability of the separation 42 POLICY • Vol. 32 No. 2 • Winter 2016 JONATHAN CROWE in turn, are sensitive to a vast number and array of Psychological fallibility environmental influences. It is not only that humans face serious challenges The limitations on the ability of human actors in obtaining and analysing the information to effectively regulate a complex society play a necessary to organise a complex society. The central role in the constitutional theory of Friedrich decisions humans make based on the information A. Hayek.1 Hayek notes that human knowledge they have before them also tend to be distorted by about how to organise social institutions is subject various kinds of cognitive biases. One pervasive to severe and intractable limitations. This is partly form of bias concerns the human tendency to because humans have limited capacity to acquire, favour familiar people and concepts over unfamiliar store and process complex information. More ones. This gives rise to a range of psychological importantly, however, it is because of the complexity phenomena, such as in-group bias—the tendency and dynamism of human relations. The task of to treat people you know more favourably than designing social institutions involves coordinating strangers—and confirmation bias—the tendency a diverse collection of human actors, each with to prefer pre-existing ideas and concepts to rival their own intricate sets of nested preferences. hypotheses. The process of identifying and aggregating these preferences is therefore deeply complex. A further challenge is posed by the dynamism Hayek’s response to the limitations of of social arrangements. Individual preferences are human knowledge places heavy emphasis constantly changing and these changes influence on constitutional values such as the the ways people interact with social institutions. separation of powers and the rule of law. Hayek, of course, does not wish to deny that we can make some headway in studying and predicting the patterns of social organisation. Economics Some of the most influential contemporary and the other social sciences have developed work in moral psychology—such as the sophisticated methodologies for this purpose. experimental studies conducted by Jonathan Haidt However, Hayek—a celebrated economist and and Daniel Kahneman—utilises what are known social scientist himself—wishes to sound a note of as dual process models of cognition. Dual process caution about such efforts. A comprehensive and models see cognition as involving two types of accurate picture of social workings is beyond the processes: one kind involves fast, intuitive snap abilities of even the greatest economists—let alone judgments, while the other involves self-conscious, your average parliamentarian. reflective deliberation.3 Many decisions we make in Hayek’s response to the limitations of human our lives are initially based on snap judgments that knowledge places heavy emphasis on constitutional may or may not be tempered by more deliberate values such as the separation of powers and the reflection. These snap judgments are not arbitrary, rule of law. Human attempts to organise society but are frequently based on rough rules of thumb run a serious risk of unintended or perverse or heuristics that enable us to deal with complex consequences. Hayek is therefore highly critical situations in a manageable way. However, these of what he terms constructivist rationality: the idea heuristics, while indispensable to cognition, can that all worthwhile human institutions can and also undermine the integrity of our decisions.4 should be planned by human reason.2 He argues The dual process model reinforces the likelihood that the best way to shield people from these kinds of distortions such as in-group preference and of errors of judgment is through a stable set of confirmation bias finding their way into political general rules placing limits on the exercise of decisions. These kinds of biases are likely to shape government power. The separation of powers people’s political affiliations and reinforce them facilitates this by imposing internal checks and over time.5 This helps to explain why politicians balances on the decisions of government officials. often seem to be motivated more by party loyalty POLICY • Vol. 32 No. 2 • Winter 2016 43 HUMAN FALLIBILITY AND THE SEPARATION OF POWERS than by an interest in openly debating specific very idea of ethics, for Singer, involves adopting a policy issues: they have a strong cognitive bias ‘universal point of view’, according to which ‘my towards agreeing with members of their political own interests cannot, simply because they are my in-group and endorsing ideas with which they are interests, count more than the interests of anyone familiar. Moral psychologists have noted the role else.’9 Singer recognises, however, that humans of other cognitive biases, such as loss aversion and typically find it difficult to make impartial decisions overestimating the probability of unlikely events, between their own self-interest and the interests in shaping political choices.6 of others. Some philosophers have regarded the Related issues also arise concerning judicial natural partiality of humans as a challenge to the reasoning. The research in moral psychology I have very idea of ethical duties. Friedrich Nietzsche, for been discussing suggests that judicial decisions, like example, claims that humans naturally ‘feel toward other kinds of reasoning processes, will depend [other people] almost as free and irresponsible as significantly upon pre-reflective snap judgments.7 toward plants and stones. That the other suffersmust A recent study on parole decisions by Israeli judges be learned; and it can never be learned completely.’10 suggests that even seemingly trivial factors like Nietzsche’s comments reflect a very pessimistic the length of time since the judges’ last meal can view of the human capacity for compassion that significantly affect their decisions.8 The cognitive is not shared by many other philosophers. There biases affecting government officials therefore is no doubt, however, that the human tendency strengthen the case for avoiding concentrations towards self-interest and partiality represents a deep of power and making decisions subject to review. seated challenge for ethical and political thought. The separation of powers responds to this issue The answer is not to give up on ethics entirely, but by ensuring that no one person or group has a rather to tread carefully when distributing social monopoly on the exercise of government authority. power, so as not to give a monopoly to particular social interests. The institutions of constitutional government—including the separation of powers— The human tendency towards self-interest represent one attempt to recognise human and partiality represents a deep seated partiality in the design of political institutions. challenge for ethical and political thought. It is because humans tend to prefer sameness to difference and privilege the self over the other that the power of each branch of government must be Ethical fallibility kept in check.
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