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Initial decision-making, Judicial review, Judiciary

Human, All Too Human: Human Fallibility and the Separation of Powers

Note: This post originally appeared on the Australian Public Law Blog and is published here with permission.

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By Jonathan Crowe

Humans are fallible—and this fallibility is the hardest thing for us to grasp. We have limited knowledge—and the limits of our knowledge routinely prevent us from realising just how much we do not know. Our reasoning processes are prone to various forms of distortion and bias—and these distortions and biases often cause us to overlook our own partiality. We are prone to favour familiar people and concepts over the unfamiliar—and our lack of understanding of other viewpoints prevents us from realising the ways in which we marginalise them.

Humans are fallible, but the way our society is structured inevitably means that some humans gain power to make decisions that impact on the lives of others. Constitutional principles such as the rule of law and the separation of powers exist to protect people from the flawed decisions of those in positions of power. However, the officials holding these positions routinely struggle to recognise their own fallibility. It is for this reason that the separation of powers—like other constitutional limits on government—is continually under threat.

This post examines those forms of human fallibility that explain the importance of the separation of powers. It distinguishes epistemological, psychological and ethical forms of fallibility and examines how each of these human failings affects government decisions. The post concludes with a plea for the importance of humility in public life. Politicians and judges should accept their fallibility and welcome restrictions on their powers.

Epistemological fallibility

Humans have limited powers of knowledge and deliberation. These limitations apply to all kinds of human decisions, but they are particularly acute at the government level. Political actors must take decisions on a daily basis about what laws and policies are best suited to organise the community. However, a human community is a hugely complex institution. It encompasses a large number of individuals with their own diverse preferences and life plans.

The limitations on the ability of human actors to effectively plan a complex society play a central role in the work of Friedrich A Hayek. Hayek notes that human knowledge about how to organise social institutions is subject to severe and intractable limitations. This is partly because humans have limited capacity to acquire, store and process complex information. More importantly, however, it is because of the complexity and dynamism of human relations.

Human attempts to organise society run a serious risk of unintended or perverse consequences. The best way to shield people from these kinds of errors of judgment is through a stable set of general rules placing limits on the exercise of government power.

Hayek’s response to the limitations of human knowledge emphasises constitutional values such as the separation of powers and the rule of law. Human attempts to organise society run a serious risk of unintended or perverse consequences. The best way to shield people from these kinds of errors of judgment is through a stable set of general rules placing limits on the exercise of government power. The separation of powers facilitates this by imposing internal checks and balances on the decisions of government officials.

Psychological fallibility

It is not only that humans face serious challenges in analysing the information necessary to organise a complex society. The decisions humans make based on the information they have also tend to be distorted by various kinds of cognitive biases. These include in-group bias—the tendency to treat people you know more favourably than strangers—and confirmation bias—the tendency to prefer pre-existing ideas and concepts to rival hypotheses.

Some of the most influential contemporary work in moral psychology—such as the experimental studies conducted by Jonathan Haidt and Daniel Kahneman—utilises what are known as dual process models of cognition. Dual process models see cognition as involving two types of processes: one kind involves fast, intuitive snap judgments, while the other involves self-conscious, reflective deliberation. Many decisions are initially based on snap judgments that may or may not be tempered by deliberate reflection.

The dual process model reinforces the likelihood of distortions such as in-group preference and confirmation bias finding their way into political decisions. These kinds of biases are likely to shape people’s political affiliations and reinforce them over time. This helps to explain why politicians often seem to be motivated more by party loyalty than by an interest in openly debating specific policy issues: they have a bias towards agreeing with members of their political in-group and endorsing ideas with which they are familiar.

Related issues also arise concerning judicial reasoning. A recent study on parole decisions by Israeli judges suggests that even seemingly trivial factors like the length of time since the judges’ last meal can significantly affect their decisions. The cognitive biases affecting government officials strengthen the case for avoiding concentrations of power and making decisions subject to review. The role of in-group and confirmation bias also signals the importance of promoting diversity among both legislators and judges.

Ethical fallibility

The psychological bias towards familiar ideas and concepts has deep implications for the role of ethics in guiding human behaviour. Humans naturally tend to treat their own interests as more important than those of other people. We also tend to treat people for whom we have personal affinity more favourably than strangers. Philosophers at least since Aristotle have noted the challenge this poses for political deliberation. This was one reason Aristotle favoured government by laws over government by humans.

Humans are also vulnerable to temptations to act unethically. We all know what it is like to be tempted to do something that we realise, upon reflection, it is not prudent or ethical to do. We all know what it is like to give into these temptations and regret it later on. We also know what it is like to be tempted to assuage our guilt by rationalising our behaviour and pretending that we did the right thing in the first place. This is all part of being human.

There is no doubt that the human tendency towards self-interest and partiality represents a challenge that must be acknowledged when engaging in ethical and political thought. The answer is not to give up on ethics, but rather to tread carefully when distributing social power, so as not to give a monopoly to particular social groups or interests. The institutions of constitutional government—including the rule of law and the separation of powers—represent one attempt to recognise human partiality in the design of political institutions.

The separation of powers guards against self-interest and partiality by ensuring that government decisions are not at the whim of one individual or group. The increased scrutiny associated with judicial and other forms of review reduces the risk of decisions favouring the powerful at the expense of the marginalised. It is because humans naturally tend to prefer sameness to difference and privilege the self over the other that the power of each branch of government must be kept in check.

The separation of powers guards against self-interest and partiality by ensuring that government decisions are not at the whim of one individual or group. The increased scrutiny associated with judicial and other forms of review reduces the risk of decisions favouring the powerful at the expense of the marginalised.

The value of humility

Politicians live in constant fear of losing their jobs by appearing to be fallible. It is no surprise, then, that they are loath to own up to their mistakes. Any admission of fallibility is seen as a sign of weakness. The reality, however, is that everyone is fallible. We are all limited human beings. Furthermore, it is not just that our abilities are limited: the nature of these limitations prevents us from realising how fallible we are.

The task of managing a large society is highly complex. Political leaders, nonetheless, like to pretend that this task is within their grasp. Voters and the media no doubt encourage this mindset by setting unrealistic standards. The kinds of human fallibility discussed in this post, however, make the whole thing seem like a giant confidence trick. Politicians are pretending to be flawless at a job that it is very difficult to do even passably well.

The culture of denialism about the fallibility of our political leaders fuels complacency about constitutional principles. If our leaders were infallible, there would be little reason to value the separation of powers and the rule of law. James Madison famously wrote that if we were ruled by angels, ‘neither external nor internal controls on government would be necessary’. However, we do not live in a community of angels, but one of human agents.

The only honest response to human fallibility is to be humble about our abilities. We should recognise that we are prone to mistakes and welcome advice and oversight from others. The separation of powers institutionalises this kind of oversight at the governmental level. Legislators who take a humble view of their capacities would not try to insulate their decisions from judicial review by utilising privative clauses and similar measures. They would not seek to delegate wide powers to the executive without judicial oversight.

Judges, for their part, should be open to reforming appointment processes, widening the pool of appointees and other modest changes. No branch of government should cling to power or resist reasonable scrutiny. Too much power for anyone is a dangerous thing. Humans may harbour a natural desire for power, but unlimited power is not something we should want if we fully comprehend the extent of our fallibility.

Jonathan Crowe is an Associate Professor in the T C Beirne School of Law at the University of Queensland and the current President of the Australian Society of Legal Philosophy. This post is a shortened version of talk to be presented at the Judicial Independence in Australia Conference at the University of Queensland on 10-11 July 2015

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