Constitutionalism and the Separation of Powers

ELEVEN Political Theory, Constitutionalism, and the Behavioural Approach

Constn_301-350 .indd 323 9/10/07 12:59:14 AM ELEVEN Political Theory, Constitutionalism, and the Behavioural Approach THE T wE NT IE T H century is an age of cynicism and scepticism as far as political theory is concerned. It is argued that political "theory" is in fact little more than the expression of opinion or prejudice, or, to put it in another way, is the expression of an ideology which is not amenable to proof or disproof. The sceptic sees the antithesis of political theory in the strictly empirical studies which have come to be known as "the behavioural approach." At the extreme, these two approaches to political phenomena are seen as wholly unrelated and irreconcilable. Any attempt, therefore, to assess the relevance of ideas of constitutionalism in the mid twentieth century must take account of the arguments of the behaviourist, and attempt to place such ideas in a meaningful context, for the attacks which have been made upon the separation of powers over the past century have not been concerned merely with a critique of its concepts, but have been associated with the rise of the behavioural school and its philosophical forbears, whose attack has been directed towards the very foundations upon which constitutional theories of the past have been based. This is hardly surprising. A theory which has at times claimed the status of a law of nature, or which has announced uni323 Constn_301-350 .indd 324 9/10/07 12:59:14 AM CONSTITUTIONALISM AND THE SEPARATION OF POWERS versal prerequisites of good government, must expect to come under attack when, for many people, the hallmark of a meaningful proposition comes to be the extent to which it can be scientifically tested. Clearly the relevance of this criterion to theories of government like the separation of powers must be explored. Although at times raised to higher metaphysical levels, the discussion of the separation of powers, and related theories of limited government, has usually been carried on in empirical terms. The evidence that has been summoned in their defence has been the experience of history, the assumed knowledge of human nature, or the workings of contemporary systems of government. Yet given the kind of knowledge we can have about history, human nature, and politics, exactly what would constitute "proof" or "disproof " of theories is open to considerable doubt. Propositions concerning the nature of governmental organization, as broad as those made by proponents of the separation of powers, present a rather different problem of empirical verification from that of a proposition about voting behaviour in Greenwich or Elmira at a particular point of time. Can the same criteria be applied to both types of proposition? In general, political theorists would point out that theories of constitutionalism are made up of a number of different types of proposition, not all of which could be subjected to the same rigorous treatment as studies of voting behaviour. Their antagonists argue that if this is the case, then nothing "scientific," and, therefore, they imply, nothing of value, can result from this type of theory. The behavioural attack upon political theory has been accompanied by a related, but separate, attack upon the idea that "constitutions" play an important role in the operation of the political system. The behaviourist's concern with "social forces," and his emphasis upon the real stuff of politics , seem to lead him to the view that the behaviour which he sees as the sole content of politics is not in any significant way affected by the structure of constitutional rules, but is wholly determined by economic, racial, class, and other factors. This is not simply an attack upon an outdated legalism in the study of politics. He is not concerned simply to point out that the formal structure of a "constitution" may be a very poor indicator of the 324 Constn_301-350 .indd 325 9/10/07 12:59:16 AM POLITICAL THEORY, CONSTITUTIONALISM actual operation of a political system. The rejection of the significance of constitutions goes far beyond this, to encompass much of what would normally be called political"institutions." We shall examine in some detail the most distinguished work of this sort, Robert A. Dahl's Preface to Democratic Theory, in which the definition of "constitutional" is given as the "prescribed rules influencing the legitimate distribution, types, and methods of control among government officials." This is no mere attack upon formalism, for...