Political Representation
Al Katz, State University of New York, Buffalo
Copyright 1983. All rights Reserved.
Digital Release copyright 1998.

The world in which we live holds to the common belief that it is possible for one person to speak for another.
This essay is an attempt to explore the mysteries of this faith.
I. Orientation
II. In the Beginning: Hobbes
III. In the Old Days
The Source
The Flow
The Terminus
IV. History
V. Today
The Voter
The Politician
The Corporate-State  
VI. Dispersion
Notes and ‘Sources’


VII. Corruption, Immunity, Discretion
VIII. State, Corporation, Union  

VII: Corruption, Immunity, Discreation

I. Corruption
From the late middle ages forward royal absolutism was determined by an enormously stable polarity. At one extreme kingship required an identification or merger with the source of its authority and the origin of its virtue. Sovereignty was secured to the extent monarchy could lay claim to being the maker of law or the actual presence of god. The perfection of absolutism was a direct function of the intensity of this identification, and its weakness a consequence of any rupture, gap or distancing. Within the Christian tradition sovereign absolutism was condemned to stand at a certain distance by the terror of blasphemy: the monarch's approximation to God must always fall short of an identification. Blasphemy was the name of a gap between divinity and divine right. Similarly, the legal tradition inserted a space between sovereignty and its source by virtue of an intense reciprocity. Though kings made law, it was equally true that kingship itself was produced by law. A law making king and a king making law. Absolutism, constrained to a mere approximation by blasphemy and the originality of law, nevertheless had the power to define, reveal and specify instances of blasphemy and to interpret the law of its creation. At the other end of this polarity the inevitable contextualization of power produced a political division of labor within which absolutism found the truth of its functioning. In the exercise of its freedom sovereignty inevitably confronted limits, crossed boundaries, and was accused of usurpation. Thus confined by a law establishing the specificity of its place within a system of rule, royal absolutism had recourse to the prerogative: a mechanism of sovereign power simultaneously subsumed within the division of labor and perpetually threatening to transcend it. At this end of the polarity, the tension of usurpation and the prerogative; at the other end, the tension of blasphemy and the finality of royal interpretations.

Since these were two poles of a single axis of power there was a tendency toward reciprocal implication. The proximate identification of absolutism with the source of its virtue and authority entailed an extended prerogative which threatened the division of labor and generated various crises of usurpation. And in reverse: Defense of the prerogative at the limits of its functioning necessarily had recourse to an increasingly proximate identification with its source, and thus confronted blasphemy. Along the axis of power an excess at one pole required an excess at the other; a deficiency of one implied a deficiency of the other.

Intersecting the axis of public power and public right constituting a legal imperium was a radius of private power and right grounded in a mere dominium. Along this line of difference the monarch was neither law making king nor divine delegate but simply a finite, temporary, completely fallible and potentially treasonous natural person. Not the King who never dies, but the thoroughly mortal king; not Charles II, but Charles Stuart; not the eternity (aevum) of a divine office, but the finitude of an occupant never above the law as its author and its sovereign source, but always below the law and subject to it. This tangent severing and connecting the mystical body of an absolute monarch with the natural body occupying an office conducted a drainage as well as a contamination. Public power could be drained off in an outward flow from the polar axis of absolutism and be used in the service of private desires: to enlarge the dominium at the expense of the imperium. And in reverse: an influx of private desires contaminating the deployment of public power for parochial, petty purposes.

The line of difference that severed office from occupant, that drained public power and contaminated it, also contributed to the possibility of blasphemy. To be both God and man isr after all, a special condition. The mystical body of Christ was a quality of being and not an off ice, and this alone would seem sufficient to restrain royal absolutism within an approximation. But the royal office, immortal as suchy was also haunted by the inevitable death of its temporal and temporary occupant whose only hope of resurrection lay in the Corporation Sole: the diachronic serial succession of individual monarchs each one of which was, at her moment, the full expression of the royal species in its infinite (aevum) multiple singularity. The death of the body natural, or perhaps more accurately pretensions that disregard its inevitability, supplemented the blasphemy of power with the profanity of time. The complexity of royal absolutism was formed along these two lines: the axis of public power, and the line of difference with private finitude. At one pole of the public axis lay the tension of blasphemy and its self-serving delimitation, at the other pole the tension of usurpation and the prerogative, and along the tangent differentiating the private occupant from her sovereign office ran the drainage of public power and the contamination of private whim.


This is the model of political power the modern world inherited from Feudalism. Without regard for the relocation of the ultimate source of virtue and authority - a shift from divine transcendence to democratic immanence, or the multiplication and diffusion of official power in the elaboration of bureaucratic forms, or the "privitization" of collective power in the form of the 19th century commercial corporation, the determination of an office was entirely in terms of a polar public axis and a line of differentiation severing and connecting office and occupant: a relation with founding authority, a situation within a division of labor, and a distinction between the indefinite life of the office and its mortal and finite occupant. In this sense democratic power lives in the shadow of a royal absolutism that outlines the contours of every office while obscuring certain of its seemingly archaic features. We see the axis of public power connecting the poles of authority and the division of labor, and we see the line of difference separating office and occupant, but we tend to miss their intersection.

Since the end of the 17th century the possibility of corruption is a contingent relation of the distinction between private and public in the sense that corrupt actions find their point of origination, source of energy, and beneficial consequences in private desires and satisfactions rather than in public motivations and utilities. Corruption is thus posed as a problem of drainage and contamination, and at the surface there is no reason to quarrel with this understanding. But the difficulties arising in the diffuse instances of supposed corruption cannot be resolved by simply traversing the line of difference separating office from officer. Not every usurpation, understood as a violation of the relevant division of labor, amounts to corruption; and alleged corruption may be avoided, elided and negated by reference to an enlarged understanding of the connection between an office and its founding authority.

The President, being very anxious to have his proposals to reform the economy accepted by the Congress, promises several of its members who represent oil producing states that he will veto any effort by the Congress to enact an excess profits tax adversely affecting their constituency.

We assume, in politics, a certain reciprocity of desire. The continuation of an occupant in her office and the satisfaction of constituent demands are mutually reinforcing. Both may be understood as lying within a domain of private, particular and subjective interests that receive sufficient political recognition to be transformed into the currency of a public exchange. Supporting-vote in return for vetopromise simultaneously satisfies the private desires of officials and the equally private desires of constituents in whose name the transaction is made. Interrogation of this exchange for the source of its unique political character necessarily implicates the problematic of corruption.

1. The Veto. Above fragmentation and beyond the reach of factions, a singular articulation of the democracy. Neither a plebicite nor referendum but in some ways superior to both in its access to informtion and expertise, the power of veto encloses conflicting goals and strategies as it reconciles immediate necessity with fundamental values and the implicit assumption of an indefinite social continuity.

There is, to be sure, the possibility of mistake in confusing the particular and the general good, and this is why the veto power can never claim an absolute identification with a virtuous authority beyond error but is constrained to approximate its sovereign source; the impossibility of error is nothing less than a secular blasphemy. This danger of an absolutist identification is supplemented (certainly not caused) by the potential for contamination flowing in along the line of difference from private life, and most commonly makes its appearance in the form of suspicion: the scandal of improper motivation articulating itself upon the axis of public power as a hidden agenda. Perhaps the history of rule should be written at the intersection of blasphemy and scandal.

Does this exchange of supporting-vote for veto-promise not compromise the independence upon which a division of labor depends? What passes, at one glance, for the mutual satisfactions of two constituencies or the reconciliation of general and particular interests becomes, at another, a usurpation of function arising out of the normative certainty that no politician could resist the excess-profits-veto promise. But a division of labor policed by usurpation cannot allow this potential transgression to undermine the complimentarity upon which the division depends; the wall of limitation must also be the membrane of facilitation. Should we not, therefore, distinguish instances of exchange from those of force and compulsion? Quite apart from the intriguing question whether a political division of labor can assimilate the archaic moral and modern/commercial distinction between temptation and coercion, usurpation must find its resolution within a framework of legitimacy along the axis of public power according to a discourse of excess and deficiency.

2. The Vote. Since the 17th century the disposition of a legislative vote finds its legitimacy within a theory of representation intensely conflicted over the proximity/di stance connecting and dividing the politician from her constituency. A legislative vote may be justified by reference to the constituency as that absolute and virtuous source of law making authority; or it may be grounded in a recognized freedom to exercise judgment grounded in a privileged knowledge; or it may be corrupt, the consequence of a contamination flowing in along the line of difference separating the office from its occupant. Unfortunately, this simple model does not account for partial constituencies, special interests, divergent demands, pressure groups, or the silence of the oppressed: the multiplicities buried by democratic totalizations. Representation is incapable of absorbing a social multiplicity which threatens to either dissolve it by fragmentation (how many representatives would be needed where interests are grounded in subjectivity?), or cut it loose from sovereign authority (an absolute multiplicity yielding an absolute independence). Representation is be kept afloat by a haphazard, sloppy, inconsistent and contradictory universalization of particular interests which is other than corrupt because 'in the long run this preference will benefit everyone,' or 'other interests will also receive special attention thus undermining and reducing the advantage gained' by the original privilege, and by finding the truth of politics in that infinite circularity known as process.

In brief outline,, these are the terms in which the legislative vote approximates its source of sovereign authority. At the opposite pole of the axis of power is a division of labor that understands representation as process and participation: the legislative vote is but one among many, and this singularity both trivializes and displaces the potential for usurpation. According to the great Madisonian schema, the babble of factions self-destructs, and from the ashes of this implosion rises the general good. There can be little danger of usurpation where virtue reigns as an absence. Such danger as remains is the consequence of a presidential intrusion that reduces the legislative vote to a conduit, a mere vehicle; what is heard in the legislature is not the voice of a constituency however elided, reduced or transformed, but that of another office refusing to wait its time or be confined within its space of proper functioning. The vote and the veto are thus two aspects of the same potential transgression.

3. The Currency. Vote and veto may be joined with a longer menu of possibilities. There is the promise of appointment to high office for the legislator, a member of his family, friend, protege, or substantial contributor to his campaign; or perhaps an assurance of support in any reelection effort by the exercise of suasion, influence or fund raising. There is also the possibility of cash. What is the relevance of a currency?

Consider, first, a specific theater of circulation within which certain currencies are confined. Flowing along the public axis are power relations the production and exchange of which cannot be further abstracted. The irreducibility of these relations implies their expression entirely within the movement and effects of bodies: promises, appearances, statements of support, assurances, alliances and severances, rhetorical skill, strategic or tactical skill or the application of knowledge. In essence, the public sector produces relations of power that circulate exclusively through a currency of labor. This labor-power freely circulates independent of the lines articulating the division of labor, and specifies the relative proximity/di stance of an office from its source of sovereign authority (i.e.r having the ear of the people, being their voice, knowing their will, etc.). But it does not follow that by referring to this currency as labor-power rather than "influence", as political science would have it, and ascribing to it a freedom of circulation, the capitalist law of value inevitably operates along the axis of public power. On the contrary, the value of any particular exercise of labor-power is determined by its context, by its use across the domain of its specific functioning - particularly in relation to the immediate trading partner. The value of a legislative vote or a presidential veto-promise cannot otherwise be determined. Hence the irreducibility of this labor-power produced and exchanged within relations of power along the public axis; perhaps a vestigial form of the primitive 'gift'.

Consider, second, the impact of alternative currencies. The alternative is not really a plurality of possibilities to the extent that, under the conditions of capitalist exchange, the law of value reduces all options to a singular measure. The intrusive consequence of this alternative is profound: relations of power that are multiple, different and unique are comodified by submission to the market law of the same. Since no other currencies can survive this invasion there are but two reciprocal possibilities for the axis of public power: (1) If not labor-power, then cash; (2) If cash, then cash only.

Consider, third, the difficulty of maintaining the irreducibility of political labor-power as external to the capitalist law of value that otherwise envelopes all social relations. This difficulty is confronted at two levels. if political labor-power is exempt from the law of value why are there not other exclusions, gaps and special cases that reject submission to a universal currency? And is it not exceptionally naive to suppose that relations of power along the public axis enjoy an absolute externality from relations of production and the consequential accumulations of wealth.

Consider, finally, the complex formed by four oppositions: labor-power/cash, public/private, autonomy/participation, exchange/corruption. The axis of public power can provide a theater within which labor-power functions as a specific and exclusive currency only to the extent it enjoys a certain autonomy from general market relations. This autonomy is specified by the line of difference severing and connecting private life, and is policed - at the intersection - by the notion of corruption. Corruption, in turn, is the name of a contamination along the line of difference from the private in the form of the capitalist law of value. The autonomy of the axis of public power is partially maintained by this exclusion, but the exclusion is trivialized to the extent political relations of power are inherently dependant on relations of production, and because these relations of power necessarily assume the universal truth of the law of value expressed in the discourse of 'interest'.

Two preliminary general observations seem plausable. while the general structure of monarchy formed around the critical points of blasphemy, usurpation and corruption survive the modern corporation - in its state and private organizations, the capitalist revolution introduced a shift of intensity from blasphemy and usurpation to corruption. Blasphemy and usurpation marked the polar limits of a political discourse centered on the prerogative. The relation of mystical to natural body - of office to officer - was not, strictly speaking, an additional or external limit on royal power but was inherent in absolutist incursions either in the direction of the sacred or toward the division of labor. After the 17th century the focus of critical intensity is corruption: the danger of contamination flowing along the line of difference severing office and officer. Since the office/officer dualism has now fully penetrated across all bureaucratic, organizations, issues of excess/deficiency in relations of power are distributed around the legal definition of an office. The secularization of sovereignty and the dispersion of offices eliminates the issue of the prerogative in its relation to absolutism and installs in its place the problematic of law and discretion.

The king in his body natural was fully immersed in a feudal order that did not a sharply divide social and political relations. To this extent the line of difference transecting the axis of public power did not terminate in a private life: the body natural of feudalism may not be equiparated with bourgeois privacy. After the 17th century private life comes to be understood as a realm of freedom - freedom from the strictures of an office if not from the encompassing demands of moral codifications and the dangers of deviance or degeneracy. Within this space of freedom private individuals pursue their subjectively apprehended and arbitrarily conceived self interest in relations of exchange subject to the law of value. Self interest makes its appearance along the axis of public power in two forms: as that which is represented in political life - the irreducible signified; and as the motivational force of representatives - the energy of political careers infusing offices and placements generating personal advantage and sometimes even the simulacrum of glory. Self interest is to be otherwise excluded, but this does not provide sufficient protection from contamination since the proper functioning of democratic politics is determined by an essential coincidence: maximizing the points of contact between the self interest of the represented and that of the representative. Hence the emergence of labor power as an exclusive currency and the reciprocal, largely formal, and inherently contradictory exclusion of the capitalist law of value. Politics is thus severed from the economy by the removal of that essential linkage connecting the pursuit of self interest to a generalized system of exchange. One might even say that, with capitalism, the first principle of politics is corruption

II. Immunity.
Accountability is the name of an absurdity doomed to merely circle about the plenitude of virtue and authority established by the absolute identification of rulership with its sovereign source. Accountability finds its fundamental condition of possibility in the gap blasphemy describes between rulership and its source of virtue and authority. But the same gap necessarily robs accountability of a ground, a voice, an exegetical foundation. If blasphemy keeps rulership at a distance who, in the name of accountability, may close it? If the meaning of ruling power is given in its privileged access to absolute sovereignty, accountability can speak only from a position of closer approximation and, consequently, undermines rulership by substitution. A conservative principle of accountability appears impossible because in a singular movement blasphemy gives it life and reduces it to silence. Justice is not blind but mute. From the perspective of sovereignty, accountability is treasonous when it fails and revolutionary when it succeeds.

This is the ancestry of a series of divisions articulated upon rulership in the service of accountability. They may be grouped as the division of labor if it is understood that this notion encloses the practical confrontations and ameliorations of power within feudal or bureaucratic functioning as well as the theory of shared sovereignty formulated as counciliarism. by the radical branch of early civic humanism, revived and redeployed during the Counter Reformation, and ultimately surviving in the changing forms of the separation of powers in the English tradition from the 17th Century forward. Though the theory of shared sovereignty finds its point of origination at one pole of the axis of public power, its locus of functioning is at the other - within a division of labor formed either by the necessities of shared power within a singularity of rulership (kingship), or within a formal structure of multiple agencies. It is in this sense that the division of labor solves the problem of sovereign accountability by giving criticism a voice, by grounding it in the same sovereign source as that which it attacks. It is no longer a question of treason, on the one hand, or revolution, on the other, but of a middle space wherein finality, no longer determined by the reference of a singular office to its sovereign source, appears as a series of resistance/escalations in the flow of power: legislation-veto-override-legal challenge-legislative limitation on legal jurisdiction-veto-override-legal challenge....

As a stasis or reversal in the movement of
accountability immunities may be understood in terms of three propositions. (1) Their point of maximum tension lies in the confrontation with prerogative powers. (2) Immunities never include corruption. (3) Though they may be confounded with the division of labor itself, immunities have no normal functioning within the division of labor but rather serve to determine the extension or contraction of modes of accountability.


1. The line of difference which runs from private life, from the natural body, intersects the axis of public power at the prerogative - where the claims of power are most necessary, most dramatic, and most likely to disrupt the division of labor. The prerogative of an office may be imagined as enclosed on three sides: by the line of difference with private life, by the division of labor, and by its sovereign source. Because it is fluid, labile, adaptable and readily abused the prerogative of an office is vulnerable to attack along the line of difference from private life - the charge of corruption. For the same reasons it offends the division of labor - the charge of usurpation. And its line of defense always recalls a proximity or privileged access to its source of virtue and authority interrupted only by the potential of blasphemy. Does a jury return a verdict contrary to law in light of the evidence? Perhaps there is corruption. More likely, in determining the law for itself it usurps a judicial function. But the jury lies close to the democracy, to the sovereign source. Having been selected to decide rationally a matter which they would never hear were reason adequate to the task, the jury stands grounded in the democracy speaking with the voice of virtue and its unquestionable authority.

The question of immunity is always posed in relation to the prerogative and thus within the framework of this triangulation. Of course, it is no longer high office as such which justifies absolute immunity, but the presence of a broad range of responsibilities and duties and a wide area of discretion within the definition of an office. Consequently, immunities may be graded, quantified and otherwise differentiated according to a calculation of the mix of constraint and freedom within particular agencies. Operations which proceed in a law-like fashion, fully constrained, wholly ministerial, can support no immunity because there is no prerogative, and a prerogative is essential because it is that aspect which, in the name of judgment, comprehends mistake, error and harm as legitimate in principle. Where an exercise of prerogative powers may be arguably unwise, ministerial operations are simply screwed up. The scope of an immunity reflects the presence of wisdom, and to that precise extent actualizes the functioning of sovereignty.

2. In the discourse of immunity, corruption makes its vigorous appearance as a principle of difference and absolute exclusion; and in a more tempered fashion as a principle of qualification. As the antithesis of 'good behavior' corruption is the great other of the prerogative, the dark face of wisdom, the inevitable contamination of public office by private desire. By definition no immunity comprehends behavior which has taken flight from the axis of public power. As a principle of qualification corruption appears as a distortion of judgment. Between wisdom and corruption lie the potholes of bad faith, malice, recklessness: defects of motivation which suggest but never fully uncover the invasion of private desire.

3. Speaking loosely, it might be said that the division of labor as such is a creature of operationally specified reciprocal immunities. But since it is given in the notion of a division of labor that operations are distributed and modes of accountability specified the negative is implicit: within its legitimate functioning anagency may not be questioned outside the mode of accountability that defines the division of labor. To be sure, a certain amount of tension is generated by the need to counter extraordinary usurpations with unusual mechanisms of accountability, but it is doubtful whether a doctrine of
immunity has any place within the normal functioning of the
division of labor.

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office....

and for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;

Life Tenure as a term of office and as an immunity from discharge; an absolute external privilege for speech as defining a deliberative function and as stipulating an impenetrable barrier to liability. To be sure these statements may be grasped as reciprocal figures, ways of speaking. No one is deeply confused upon hearing that judges and members of congress are immune in certain specific ways, but it surely confounds ordinary understanding to speak of unappropriated funds as immune from expenditure even though the latter is as clear in its expression of a prerogative power as are the two classical formulations. Since the legislative and judicial provisions are linked in a generative or causal manner with a political history they are said to be prophylactic maneuvers, but so, too, the appropriation clause. Historical linkages generally describe the struggles of accountability with treason: Lord Coke's assertion of the privilege of artificial reason over the natural reason of kingship; the charge of sedition leveled at those who would critique democratic legality. These are moments in the development of the division of labor itself, efforts on the part of accountability to find a voice and a grounding in sovereignty that would eliminate the interminable oscillation between treason and revolution. The movement of these struggles lies in the fragmentation and distribution of prerogatives, functional privileges and points of access to a sovereign source. To view them as immunities is to cynically regard the division of labor as a negative formation with no grounding save in mutual jealousy. As a matter of ordinary discourse perhaps no great harm is done by speaking of judicial life tenure as a piece of instrumentalism, as a strategy for isolating adjudication from the more egregious forms of political intrusion. But something is surely lost to understanding by the failure of this discursive simplicity to recognize the positive linkage between the notion of legal autonomy and an absolute exegetical finality. The infinite regression of a law-making judge and a judge-making law is not, after all, unrelated to the reciprocal absolutism of a king-making law and a lawmaking king. Life tenure is a statement of the prerogative power over adjudication within a division of labor which presupposes a certain legal sovereignty. Perhaps this has some bearing on the infrequent appearance of judicial life tenure at the local level where the sovereignty of a determinate law plays to a more skeptical audience.

We now speak of immunities in specific and limited contexts -as, for example, an issue of absolute immunity from civil liability in damages for injury to a private citizen. Conceding that power is accountable within a division of labor,, significant political energies are employed to resist or encourage multiplication of these quite specific mechanisms. And with a vehemence which gives the impression that the entirety of the royal prerogative is at stake - "it is not a tort for government to govern", particular modes of accountability suffer an exclusion, a qualified inclusion, or are assimilated as part of an elaborate network which, in the name of pragmatism, determines the division of labor as a technical apparatus of power. Not, to be sure, without considerable confusion over whether brutality, degeneracy, ignorance, ineptitude and other illegitimate exercises of power are being brought more fully under virtuous democratic control, or whether the agents and agencies of the state must now govern timidly, defensively and less. In any event, above the explosion of reports, statements, accountings, reviews, filings, consultations, hearings and access rights rises the question whether the classical division of labor can comprehend an indefinite elaboration of the forms of accountability without damaging certain central mythologies. At issue is not a revival of classical stresses: the spectre of legislative activism at the close of the 18th century, executive usurpations during the new deal, or judicial stimulations after World War II. Rather, a series of potentially disintegrative suspicions: that the modern administrative agency is not a simple addendum to an otherwise pristine tripartite structure; that the exclusion from the political division of labor of the decedents of the house of Morgan is at best an arid formalism; that when contemporary lawsuits challenging administrative agencies abandon any grounding in private property they not only depart from classical forms, but also accuse traditional litigation with its dependency on an alliance between private property and public power.

At a time when immunities are elaborated according to a sophisticated calculation of governmental necessity and bureaucratic functioning, why an interrogation in terms of this antique notion of the prerogative? Perhaps simply to demonstrate that the utilitarian calculation is not an indispensable mode of analysis, and that the distribution of immunities may be determined with equal precision through an analysis of the danger posed by private desire, the functioning of the division of labor, and the privileged access to sovereignty; perhaps to discover whether modern government has a better reason for imposing unlimited liability on those who perform routine, fully constrained, ministerial tasks than that they do not enjoy participation in a royal majesty; or perhaps to discover whether positive jurisprudence can account for discretion in terms not reducible to corruption, blasphemy and usurpation.

III. Discretion
Discretion makes its appearance in jurisprudence along two lines of difference. First, in its relation with law, as that which is indeterminate and therefore Other than law; a weakness or highly problematic gap in legality. Second, as distributed down through a hierarchy of authority, it bears an uncertain,, ambiguous relation to sovereign power. These two lines of difference are co-ordinate: discretion is not a deficiency of law to the extent it bears a secure relation with sovereign power. Consider an exercise of suffrage, executive clemency or the veto-power. Suffrage flourishes in the purety of choice; so absolute is its freedom that to entertain it as an example within a discussion of discretion appears anomolous. However stringently law may constrain suffrage in the mechanics of its exercise, it remains the articulation of an irreducible will. And If we are speaking broadly, the pardon and the veto may also be counted as instances of discretion where law merely selects proper occasions and constructs proper objects.

There is also a reciprocity in the functioning of these co-ordinates. Discretion exercised in a secure relation with sovereign power is indeterminate - and to that extent is external to a legality that seeks to maximize determinacy. To be sure, the determinacy of law is a central problematic of jurisprudence, but the point is to situate this problematic in a complex that has a general boundary describing function for legality. A sound critique of liberal legality should assert that relative determinacy and an intense proximity to sovereign power are inversely related, and together they describe that which is deemed external to law.
Imagine the space created by these co-ordinates of determinacy and proximity to sovereign power as divided into quadrants.


According to this scheme suffrage, clemency and the veto should be located in quadrant A as instances of relatively indeterminate power bearing a proximate relation to sovereignty. With these instances compare the decision by a relatively low level official to grant or deny a parade permit. Given the level at which these decisions are made within a distribution of authority the existence of an 'untrammeled discretion' does violence to legality. The co-ordinates of determinacy/sovereignty would specify locating power over parade permits either within quadrant C or quadrant D, with the movement of legality being away from the 'excess' of discretion characteristic of quadrant C and toward the circumscription of power in quadrant D. Generally speaking, the movement to guide, channel or otherwise confine the exercise of discretion by administrative agencies follows this movement from quadrant C to Quadrant D. With few exceptions these agencies stand at some distance from sovereign power, so the issue of discretion within liberal legality becomes almost exclusively one of relative determinacy. Those agents who suffer under this determinacy and distance from sovereignty must also endure a danger of liability for misconduct in office because they are deprived of the expansive immunities enjoyed by officials who lay claim to the wisdom, and therefore the relative indeterminacy, of their sovereign proximity.

Within this movement of determinacy the question of expertise may be posed in a more interesting and expansive way. To the extent expertise is asserted as a factor in opposition to the movement of incremental determinacy (i.e., from C to D) it functions as an alternative to proximate sovereignty. In general it might be said that access to knowledge-power may be treated as the functional equivalent of access to sovereign-power since the truth value of social knowledge is grounded in the normativity of populations, knowledge and sovereignty are two forms democratic power assumes. More precisely, majoritarianism and normativity are two expressions of a singular sovereignty: the former appearing as desire, the latter as knowledge. Following this line the expert may be located within a broad system of representation by a movement back through knowledge and norm to sovereign population.

Two additional examples which begin by locating both judge and jury within quadrant C in order to describe the direction of their respect movements. Recognition of the jury's proximate relation with the democracy means its incremental legitimacy lies in perfecting the process of selection - a movement toward quadrant A. But the issue is far from one sided - compare the issue of jury nullification with that of the special verdict in criminal cases. On the specific question whether the jury should be told they have the power (though not the right) to find against the law sovereign proximity tends to lose out to legal determinacy and the movement is toward D or B. But forcing the jury to render special verdicts in criminal cases involves an excessive determinacy quadrant A appears appropriate. In the case of adjudication, the discourse of legitimacy consistently maintains that determinacy and sovereign proximity are alternative requirements so that a rigorous (determinate) judicial legality substitutes for a deficient (distanced) political accountability. Legitimate adjudication must reside in either quadrant D or A, and this accounts f or the 'unhappy consciousness' of liberal apologists. On the one hand, legitimacy could be secured by an incremental determinacy, but this seems impossible even within the fictitious historical universe of an absolute formalism. On the other hand, drawing adjudication closer to sovereign authority endangers the particularity of "judicial power" and thus undermines the separation of law and politics: government under law requires a certain distancing of adjudication from sovereignty; of reason from will. Unable to chose between these equally disastrous alternatives the primal instinct suggests inertia, a benign passivity that avoids confronting sovereignty with its law at the expense of shrinking adjudication within the division of labor.
The four quadrants specify distinct contemporary situations:

A. The situation of discretion arising from a proximate sovereignty and enjoying a maximal immunity.

D. The fully determinate requirements of a distanced office the occupant of which may be liable for error.

C. The problem of agents and agencies currently enjoying a discretion that, not being justified by sovereign proximity, must be eliminated by a greater determinacy.

B. The dilemmas of law and politics, reason and desire, fact and value make their appearance here, a legacy of the king making law and the law making king. In this space we dream of the double negation that consumes alienation.

In its indeterminacy discretion is an Other of law, and one name of this Other is politics. Indeterminate power is, therefore, a political power the exercise of which in a particular context may constitute usurpation within the division of labor. The "non-delegation" and "vagueness" doctrines specify an inappropriate movement of indeterminate power away from its proximate relation with sovereignty and law respectively, a distancing that does violence to the division of labor. And in absolutely classical fashion the charge of usurpation is avoided by a thoroughly blasphemous claim on the part of relatively low level (in terms of distance from sovereign source) agents to be acting for a higher good: the virtue and authority of justice, democracy, emergency, or the sovereign people. Discretion becomes legitimate as against a claim of usurpation by infusing the agent or agency with a prerogative power. The jury may thus acquit criminal defendants against the law and the evidence because it speaks as the voice of democracy, an actual presence of absolute sovereignty that may never be artificially cabined within that body of pragmatic concessions known as the division of labor.

Like the King, the hope never dies that law might somehow absolutely determine the division of labor rather than be determined by it. And so the principle of democracy as desire struggles with the principle of law as determinate reason; the former confining law within the specificity of the division of labor, the latter supervising the division of labor by a determinate legality. The release by federal judges of state prisoners held under the authority of final judgments is a usurpation unless it can be shown to follow from either a determinate legality or a superior access to sovereignty necessarily generating an enlarged function within the division of labor. Below the clamor of legality (determinacy) and federalism (usurpation) lies the prerogative of justice making its appearance as the federal writ of habeas corpus. Thus the triangulated relation of sovereignty, determinate legality and the division of labor:

The dark side of sovereign proximity, free of both determinacy and the division of labor, is power exercised as a prerogative of public office but thoroughly contaminated by private desire. A white Mississippi jury is unimpressed by the eyewitness testimony of an FBI agent and acquits Colie Leroy Wilkins of the murder of a civil rights worker: sovereignty as corruption and the corruption of sovereignty where usurpation is silent and blasphemy no longer terrifies. But no one was paid for their vote; and the jury, since Bushels Case, enjoys an immunity that creates a space essential for its discretion. Pushing aside double jeopardy objections in the name of the division of labor, Wilkins may be re-tried and convicted by the fully determined behavior of a federal jury.

The corruption of discretion is the introduction of private desire in the space reserved for the appearance of sovereignty. This loathsome pit into which every exercise of prerogative office may sink is guarded by three furies. (1) A determinate legality permiting simple identification of the limit,, the line of difference dividing office from occupant, public from private, the wise judgment of sovereign virtue from the corruption of private unreason. (2) A division of labor capable of articulating its own principles of extension (accountability) and contraction (immunity) according to which the mechanisms specifying instances of usurpation are determined. (3) An exception to the law of value that permits desire to freely circulate along the axis of public power and across the division of labor as the irreducible currency of service and influence.



My argument that the division of labor solves the problem of sovereign accountability by installing a series of resistance/escalations in the flow of power should not be read as agreement with David Easton's system theory. See, "A Framework for Political Analysis" (1965, 1979).

Norm is used here in Foucault's sense. See my essay 'Law, Norm, Rights', in "Foucault for Lawyers", (1982).







©Al Katz • Prof. of law SUNY, Buffalo, 1969-1989 (ret.)