December 22, 2010
The Chimera of Impartiality?
Health Warning: This post rapdily degenerates into a very techy piece of philosophical navel gazing. Not for the timid.
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Vince Cable is probably still a minister for exactly the reasons he originally boasted to The Telegraph’s undercover journalists: that if he leaves Cabinet, the Coalition will likely fall. But whereas the original Telegraph story would merely have embarrassed Cable, further leaked revelations that he had personally “declared war” on the “Murdoch Empire” were greeted as a wholly scandalous revelation.
Assuming we all accept that individual politicians have personal political opinions, the current scandal can’t centre on what Cable himself thinks of Mr Murdoch’s doings. Clearly, the issue is that in his role as Business Secretary, Cable is supposed to be impartial. Although Sunder Katwala subtly challenges the political realities of such an assumption, he also captures and perpetuates it somewhat:
“Cable’s comments about Rupert Murdoch are in a different category. This was a bad error – and the government’s decision to remove Cable’s role in media regulation is an appropriate and correct response.
After his comments were made public, Cable could not claim to be in a position to judge the News International/BSkyB issue impartially. One might, however, be forgiven a sceptical thought as to how far Culture Secretary Jeremy Hunt may find Solomon-like wisdom and detachment on offer to him in inheriting these responsibilities.”
Yet I have deep conceptual suspicions about the nature of “impartiality” in political decision-making, which run as follows.
The standard charge against Cable is that, as Business Secretary with a quasi-judicial role, he was required to make a decision on the BSkyB take-over without political bias, and only according to the rules of economic competition as defined in law. If he made a decision based on his own personal political preferences that would not be “impartial”, and therefore it would be wrong.
But why would it be wrong? Presumably, because Cable would be trying to bring about a kind of political situation, rather than simply applying the relevant political rules. That seems fine as it stands (at least for now). But let’s also examine what would happen if Cable acted “impartially” and (for argument’s sake) decided to approve the BSkyB merger on the grounds that it was permissible under competition law.
In that case, a political situation would nonetheless arise, but now as a consequence of Cable’s decision not to take his own personal counter-veiling political preferences into account. (That political situation being: the further takeover of the British media by a foreign billionaire with vociferously right-wing views, who openly uses his media outlets for partisan political ends.)
So the alternatives we are faced with are:
- Cable acts “partially”, and a political situation (anti-Murdoch) is brought about
- Cable acts “impartially”, and a political situation (pro-Murdoch) is brought about
Now what we want to know is why the first outcome is worse than the second, and specifically because of partiality on Cable’s behalf (I’m here leaving aside considerations about which set of consequences is itself more desirable, to concentrate on the issue of partiality vs. impartiality). In order to avoid arguing in a circle I urge again that it is vital to remember that the consequences of Cable acting partially or impartially are, in either case, the generation of a political situation. It is thus simply no good resorting to a blanket position such as “it is wrong to make decisions about applying political rules from personal partisan judgement” and expecting that to do any convincing moral work in this individual instance, because
a) whether Cable is partial or impartial, a political consequence results, so the blanket position can’t be founded upon a claim about the value of the not bringing about political consequences per se; in fact impartiality does lead to the bringing about of political consequences – just different ones to those which a partial agent would have brought about
yet
b) it is no good making an intrinsic value claim about partiality either. To run that sort of claim, it would have to be seriously maintained that it just is morally superior to apply political rules without reference to personal political preference. But unless we are to fall back on some form of un-argued-for rule-worship (which is thereby untenable ipso facto), that position looks simply unacceptable: for the point of having political rules, after all, is to secure certain kinds of consequence. But that puts us back in the situation of noting that whatever the decision-making agent does, consequences arise. Precisely because political rules are put in place to effect consequences, we are back where we started and cannot appeal to the intrinsic value of “impartial” rule-application without begging the question as to why the rule should be followed.
Thus the concept of “impartiality” as a value in individual political decision-making apparently emerges as a conceptual chimera. If acting according to his political preferences, Cable brings about one set of political outcomes. If acting not according to his political preferences, he brings about a different set of political outcomes. But in either case, the responsibility for the ensuing consequences must come back to Cable. Cable is thus either active by commission in facilitating one set of political outcomes, or passive by omission in facilitating another. But as there is no moral weight in any commission-omission distinction, we remain without a relevant moral difference.
“Impartiality” in political decision-making apparently emerges as, at best, a piece of innocent cognitive self-deceit about the back-flow of responsibility, or at worst a cowardly conscious attempt to abnegate political and moral culpability for the generation of a set of political outcomes, by appeal to the exculpating force of omission as oppose to commission. (Deciding how cases are to be classified will depend upon context and judgement.)
There thus appears to be a case for suggesting that Vince Cable is not – deep down – morally at fault because he failed to act “impartially”. He’s at fault because he got caught waving the banner of partiality in a political environment which doesn’t tolerate such things.
But there may, as it happens, actually be very good reasons for having a political system that overall doesn’t tolerate such things. It’s fairly easy to see that, over protracted periods of time, the most desirable sorts of societies are likely to be those in which decision-making agents apply political rules “impartially”, at least much of the time. This, after all, will likely reduce the scope of personal corruption, cronyism and the general abuse of power for factional ends. And indeed, history attests that societies able to minimise precisely those sorts of things generally do the best overall – and insofar as they do the best, they are likely to develop and continue existing. Justification and genesis here dovetail neatly, though of course this is by no means a claim of necessity – plenty of societies have gotten very far with political ethoi actively antithetical to “impartiality”.
Furthermore, a system under which the norm of “impartiality” was deeply internalised by the great majority of political agents (in principle even if not always in practice) – and in which those deviating from impartiality were chastised or ousted – would surely likely be the best of all, for under such a system the application of political rules would be facilitated most automatically and efficiently, with fairly obvious cumulative benefits. Yet none of this changes the fact that c) “impartiality’s” benefits and justification derive from the consequences of political rule-enforcement being best facilitated this way, and in turn d) “impartiality” remains chimerical as a concept with relation to political decision-making in each individual instance of political rule-application.
But this actually means that we arrive at a satisfyingly holistic conclusion overall: that even if “impartiality” in political decision-making and rule application is chimerical at the level of individuals (who are by necessity causally implicated in whatever consequences actually come about, and therefore tied to them in terms of responsibility), this may nonetheless be a most useful and desirable chimera to have up and running in political societies like ours, i.e. where significant levels of political decision-making operate by the application of political rules. Utilitas and veritas can certainly come apart, after all, and sometimes we may get a little more of the former precisely if we have a little less of the latter.
Tom said,
December 22, 2010 at 12:51 am
Paul, this is as you say a rather knotty piece, which I’m not sure I’ve fully understood, so I think it’s probably better for me to pose this question in the hope that you can answer it with reference to your overall thesis: is there not a value in impartiality not per se simpliciter, but founded on the benefits (whether we take them to be moral, or merely politically expedient) of equity. The issue with Cable is that he’s expressed a partial opinion (of Murdoch) in a case which is an application of something professedly impartial (competition law) insofar as it is equitable (i.e. it would treat the Guardian Media Group in precisely the same way were they to be in Murdoch’s situation of market share and the other salient factors with regard to the law) and is promulgated with an expectation of that kind of applicability. I suppose what I’m saying is, is it possible to hold your position without rather dramatically short circuiting jurisprudence (while I’d agree with your overall point that law is ultimately instituted as a way of doing politics better, I’m not sure it’s then fair to say that it’s acceptable in the senses you have examined for the executive to choose immediate political expediency over the more weighty utilitas furnished by rule of law when the former risks destroying the very edifice of the latter).
Of course the very idea that Cable (or anyone, not to mention Jeremy Hunt) was ever going to be an impartial judge is another problem, but not one that I think either of us want to treat here…
Paul Sagar said,
December 22, 2010 at 1:07 am
“is there not a value in impartiality not per se simpliciter, but founded on the benefits (whether we take them to be moral, or merely politically expedient) of equity.”
Yes, overall I think this probably is the case, when aggregated across society, insofar as a principle of basic equity tends to cash out in generally positive consequences. But in individual cases, my sense is that “impartiality” on behalf of any one political agent does not secure “equity” in terms of consequences. For example, if Cable were to pass the BSkyB merger, it might be equitable in terms of legal application, but in terms of politial outcome the consequences are unlikely to be equitable to all sorts of agents who end up being losers in the outcome for whatever reasons.
Equity is important, at some level, in some way – but it is not likely to provide any straightforward answers as to why we do (or should) value impartiality.
“I suppose what I’m saying is, is it possible to hold your position without rather dramatically short circuiting jurisprudence (while I’d agree with your overall point that law is ultimately instituted as a way of doing politics better, I’m not sure it’s then fair to say that it’s acceptable in the senses you have examined for the executive to choose immediate political expediency over the more weighty utilitas furnished by rule of law when the former risks destroying the very edifice of the latter).”
I dont think I *do* want to draw the conclusion you are attributing to me there. Rather, I want to have my conceptual cake and eat it. To maintain that, on the one hand, “impartiality” is chimerical in terms of a value being manifested on individual occasions…but nonetheless, it is a useful chimera, and one that we would actually be worse off without. Accordingly, overall it probably *is* best if political actors (e.g. Cable) are somehow punished for transgressing the norms of impartiality in the application of rules…not, however, because there is some straight-forward violation of a specific value which is itself unproblematic (i.e. “impartiality” in and of itself) but because we need, in general and over time, to promote and uphold practices of impartiality to gain good consequences in political organisation and decision-making.
Of course, as you say, it is a wholly other question as to whether *any* political actors ever really do act “impartially”, but it seems to me to raise all sorts of fascinating and important issues if we were to ascertain that the value of impartiality itself is somehow conceptually incoherent, or disjointed, or dependent upon system-wide enforcement over time to gain traction – because then the situation of moral agents within a political framework might look rather different to how we might otherwise initially imagine.
Paul Sagar said,
December 22, 2010 at 1:15 am
Sorry just to add – competition law, whether or not it is (or is really intended to be) the institutionalisation of equitable business practices, is itself justified (as a law) by appeal to its tendency to bring about desirable consequences – political consequences. Thus we are back to the point I try and drive home in the OP – that if you just appeal to the “equity” of competition law, and dont offer anything more than that, you are either begging the question or arguing in a circle – but if you move beyond that and stake a claim about the *good consequences* of equity in competition law, then its a political claim which has to be weighed in with other political claims – e.g. the influence of certain tycoons over other moral agents – and then decisions about which consequences matter most need to be made. And as the man responsible for decisions, this is all going to come back to Cable. I don’t seen how “impartiality” can be doing any useful conceptual work in terms of dealing with the difficulty of weighing these competing consequences – but I do see how, overall, political systems likely run more smoothly and desirably if the norm of acting “impartially” is widely internalised and acted upon with regularity.
OK that probably hasnt helped…
Ste For Sure said,
December 22, 2010 at 12:41 pm
Paul, I get you and you are right.
Rob said,
December 22, 2010 at 1:23 pm
Amazingly, if you assume that the value of rules has to lie in their consequences (“for the point of having political rules, after all, is to secure certain kinds of consequence”), then it is indeed difficult to account for the value of rules treating people in certain kinds of ways rather than bringing about certain consequences. Arguments need to contain their conclusion in their premises, but usually it’s a failing if the conclusion and the premise are the same proposition.
Paul Sagar said,
December 22, 2010 at 1:52 pm
Rob, how fitting that your accusation of question-begging on my behalf rests upon an impressive piece of Kantian question-begging on your behalf.
Note that I didn’t talk about “rules”, but about “political rules”, and it’s you who is introducing talk of how to treat (individual) people and the relation of that rule-following (ie shifting debate decidedly onto the plain of meta-ethics and away from politics).
Now, as a matter of empirical fact, political rules in actual existing societies are instantiated in order to regulate consequences. Of course, you might prefer it if they were instituted (perhaps on some reading of Kant’s Theory and Practice?) in order to legislatively embody the Categorical Imperative (or some other deontological principle). Bur the fact is, they are not. And you might like to go and play in the ether and discuss what moral conclusions would obtain if the world were like that. But you provide no reasons why the rest of us should join you. Especially those of us who are interested in coming up with accounts that are not merely normative but exhibit some level of descriptive empirical responsiveness to experienced political society as it is and emerged.
And yes, this reply is rude, but my god you ask for it.
Jamie said,
December 22, 2010 at 3:06 pm
The rules *themselves* are not impartial, as no rules (and probably nobody) can be. And Cable is not being asked to be fully impartial.
The problem as I see it with Cable’s remarks were that he appeared to have made his mind up finally before receiving the impartial (read: solely based on the rules) report from Ofcom. What else could ‘declared war and I think we’ll win’ mean? The way he put it also suggests he’s not too amenable to having his mind changed on this matter.
As for Hunt’s comments about Sky, they show he has a pre-existing view of Murdoch and Sky. It doesn’t necessarily show (although it’s easy and probably correct to infer) that he has a pre-existing view of Murdoch’s takeover bid. And even then, there’s nothing he’s said that indicates that’s a firm, final conclusion.
Rob said,
December 22, 2010 at 4:24 pm
Paul,
it’s question-begging if you argue against your opponent’s position by assuming something they must reject. Whatever I may be doing, you can’t be doing that, since that would require an actual argument, which I don’t think ‘p; therefore p’ qualifies as. God help you if this is what you’re getting in Cambridge.
Nakul said,
December 23, 2010 at 1:51 am
Paul,
I don’t think I can go along with your conclusion that Cable is only at fault morally for having ‘got caught waving the banner of partiality in a political environment which doesn’t tolerate such things’. Would you say that about an umpire who admitted to bias in a cricket game? In that situation too, ‘partiality’ and ‘impartiality’ both have consequences. Long-term impartiality seems to have positive consequences for the game, consequences that justify having the officially agreed-upon rules enforced by umpires who are required to do so ‘impartially’. But does it follow that impartiality would ‘remain[...] chimerical as a concept with relation to [cricketing] decision-making in each individual instance of [cricketing] rule-application’? Doesn’t look like it from where I’m standing.
Quite the contrary: the umpire is in a privileged position to effect certain consequences. His legitimacy in this position comes from the fact that his role is constrained by the requirement to enforce the rules of the game as they have been determined by the body authorised to make these rules. Qua umpire, he can only legitimately respond to the considerations embodied in these rules. Now the umpire as an individual and cricket fan may well be moved by other considerations: the need to stick it up to the Aussies, the desirability of keeping the series alive, etc. Further, he might think the rules themselves in need of changing, and might press for the ICC to change them when he’s off the pitch. Nevertheless, if he starts acting on these instincts while officiating as umpire, he is clearly doing something morally objectionable.
In general, I think the partiality/impartiality distinction a bit of a red herring — though, to be fair, I suspect you’re only using these terms because everyone else is. The pertinent distinction seems to me to be the one between admissible and inadmissible considerations, where what is admissible is grounded in what legitimises your power. With my realist hat one (yes, I have got one!) I’ll allow that there are times when legitimacy, on some theory of legitimacy, might itself have to give way to other normative considerations.
To be sure, I don’t see this giving Cable an out. The higher-order question only becomes salient under very special political circumstances, paradigmatically in cases where going beyond your brief can by itself tip the scales in favour of some broader structural reform (e.g. the San Fransisco mayor Gavin Newsom giving out marriage licenses to same-sex couples in 2004).
Is there a disanalogy here I’ve missed?
Paul Sagar said,
December 23, 2010 at 6:25 pm
Nakul,
I guess my response could be well-summarised via the double-entendre contained within: “but old boy, politics just isn’t cricket”.
Firstly, a Raymond Geussian point that I think has traction: we’re not talking about cricket, we’re talking about politics. It’s prima facie ridiculous to start talking abstractly about cricket when we’re supposed to be talking about politics, and just assume that the results are transposable, without any substantiation of that point. Talk about the subject!
But secondly – and appreciating that there is a useful function for analogised reasoning insofar as it helps us tease out intutions and get clear, and thus that the Geussian point is of limited use – here’s the answer to your queery about disanology.
Firstly, politics is not cricket, and nor is it analogous to cricket. In cricket, the rules are enacted for the purpose of facilitating a process whose continuous motion is valued insofar as a set practice is sustained and continued. The umpire is thus a mere facilitator; somebody who helps ensure and further the continuance of a specific practice whose value is embedded in the maintenance of the rules, which when properly observed, result in the game of cricket. Sure, there are now second-order considerations – why have the game of cricket? because we enjoy cricket! – but those are in some sense removed from the immediate question of why the umpire should uphold the rules. The umpire upholds the rules so as to maintain the process and then, once that process is maintained, cricket-lovers collectively, en-masse and in this particular instantiation of the practice as constitutive of the wider on-going existence of this practice (i.e. a cricket match, embedded within the phenomenon of cricket existing generally) gain pleasure from the playing of cricket. Of course, if the umpire acted impartially, he would thus jeapordise the continuance of cricket-enjoyment, but he’d do that by flouting the point of the rules whose purpose is to establish an on-going practice which exists as a unified whole, and from which worth is derived by collective engagement in the unified practice of cricket, whose agreed proper functioning has been de-railed in this instance.
Politicians, by contrast, are not mere upholders of rules whose purpose is to establish an on-going practice which is itself a contained entity, and from which people then draw happiness/satisfaction/utility/whatever. Politics is not a practice like cricket, it is the phenomenon of on-going decision-making in which rules are used to try and regulate and order future consequences, whose shape and upshots will vary dramatically over time, are in some measure unpredictable, and which have significant and profound impacts upon indivduals’ lives. When a politician applies rules, he is not simply upholding a general utility-promoting practice settled-upon by convention over time, but deciding whether or not to fuck some people’s lives up to the beneft of others. He is not merely an administrator of pre-established and universally consented-to rules (because all playing cricket *have* consented – by implication of their free participation in the match – to the rules of cricket in a way that *nobody* has in a modern nation state freely consented to all the complex and structurally different “rules” of politics, whatever bad analytic philosophy papers from the last 40 years might try and argue) but a decion-maker with direct ethical responsibility for the often very severe consequences of his choices.
Furthermore: as a general principal, umpires are invested with powers to administer rules but not to determine match-outcomes; we want England to beat Australia because the former are a better team as understood within the conventions of cricket as it exists, not because they got help from a man in a white coat. But there is no analogy here with politics, which is inherently about power-struggles and victories for some at the expense of others which cash out in very real terms of loses of resources, life-quality and even life itself (things not generally true about cricket), and where furthermore it cannot be said there is any sort of commensurable metric (as there is with cricket) for determining what “better” means, who should “win” and why that’s tolerable and to be upheld or continued or even challenged when all is done and dusted. I can see why we don’t want umpires fixing it for the Aussies, fine, and why “impartiality” with regard to cricket umpiring makes sense. But I see no grounds at all for accepting that politicians are in the structural position of umpires. After all, *the point* of politicians is that they are elected to make consequence-affecting decisions, not just administer rules. Indeed, to reduce politicians to the status of umpires seems to me to take a rather worrying stance on the position of what politicians are and should be. Accordingly, to start drawing analogies between the two strikes me as a refusal to engage with/think carefully about what politics really entails and consists of.
Now, as noted in the OP, it may be the case that there are all sorts of *benefits* to recreating structures of rule-application in political decision-making which (perhaps not so) superficially *resemble* cricket umpiring. It may even be useful to have politicians come to think of themselves as, in some instance, glorified cricket umpires. But that doesn’t change the fact that – due to the inherent nature of politics of and political decision-making as now outlined above – the outcome of attempted “impartiality” in politics is likely to be chimerical. But as I said in the OP, that may not be a problem: chimeras can be most useful.
Nakul said,
December 23, 2010 at 7:27 pm
But I wasn’t positing an analogy between *politics* and cricket. I was speaking specifically of what norms ought to constrain the behaviour of people who hold positions of power in liberal democratic states (e.g. British Business Secretary) — a set of people including not all (and not only) politicians. The analogy with sport is not merely superficial, and extremely instructive. In politics generally (esp in legislation), saying ‘I was just following orders (etc)’ can be the most pernicious sort of mauvaise foi when it isn’t patently absurd, as you’ve quite rightly pointed out. Rules are made to bring about consequence; consequences need to be owned. But we aren’t talking about politics in general here, just a specific case within the executive a specific political system.
People in positions like Cable’s have their positions of power contingent on their adopting a special sort of neutrality. If they’re going to violate it, then the burden is on them in any given instance to say what (higher?) ends such a violation serves, if any. As you’ve pointed out so effectively on other occasions, Cable is the sort of Weberian hero who understands the tragedy of his position and ploughs on Nevertheless. But in this instance, he seemed to want to have it both ways, and well, you can’t have that in politics.
So I’m still going to resist your attempt to make this the occasion for a general reflection on the nature of politics. What we’re looking at is a simple disjunction within a certain political system between what a position of power requires and what its present occupant did/said while in that position. Our vocabulary for talking about this inconsistency is indeed (as you point out) confused, but I can’t see that it’s radically misconceived.
Nakul said,
December 23, 2010 at 7:33 pm
Shorter previous comment: in a liberal democratic polity, politician-as-executive = umpire allowed to have an occasional maverick streak; politician-as-legislator = maverick allowed occasionally to wear an umpire’s hat.
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