Beyond Camelot: Rethinking Politics and Law for the Modern State

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Overview

This book argues that many of the basic concepts that we use to describe and analyze our governmental system are out of date. Developed in large part during the Middle Ages, they fail to confront the administrative character of modern government.

These concepts, which include power, discretion, democracy, legitimacy, law, rights, and property, bear the indelible imprint of this bygone era's attitudes, and Arthurian fantasies, about governance. As a result, they fail to provide us with the tools we need to understand, critique, and improve the government we actually possess.

Beyond Camelot explains the causes and character of this failure, and then proposes a new conceptual framework, drawn from management science and engineering, which describes our administrative government more accurately, and identifies its weaknesses instead of merely bemoaning its modernity.

This book's proposed framework envisions government as a network of connected units that are authorized by superior units and that supervise subordinate ones. Instead of using inherited, emotion-laden concepts like democracy and legitimacy to describe the relationship between these units and private citizens, it directs attention to the particular interactions between these units and the citizenry, and to the mechanisms by which government obtains its citizens' compliance. Instead of speaking about law and legal rights, it proposes that we address the way that the modern state formulates policy and secures its implementation. Instead of perpetuating outdated ideas that we no longer really believe about the sanctity of private property, it suggests that we focus on the way that resources are allocated in order to establish markets as our means of regulation. Highly readable, Beyond Camelot offers an insightful and provocative discussion of how we must transform our understanding of government to keep pace with the transformation that government itself has undergone.

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Editorial Reviews

Harvard Law Review
This ambitious work offers a refreshing, insightful reconceptualization of the modern administrative state. . . . [A] beautifully written contribution.
Journal of Politics
[A] fascinating and provocative book. . . . Rubin is to be congratulated. Beyond Camelot is an extraordinary effort, brilliant in places; it is certain to provoke a great deal of thought and suggest numerous avenues of future research.
— Howard Schweber
Law and Politics Book Review
Anyone who desires to understand modern government should read Beyond Camelot.
— Brian Z. Tamanaha
Journal of Politics - Howard Schweber
[A] fascinating and provocative book. . . . Rubin is to be congratulated. Beyond Camelot is an extraordinary effort, brilliant in places; it is certain to provoke a great deal of thought and suggest numerous avenues of future research.
Law and Politics Book Review - Brian Z. Tamanaha
Anyone who desires to understand modern government should read Beyond Camelot.
From the Publisher

"This ambitious work offers a refreshing, insightful reconceptualization of the modern administrative state. . . . [A] beautifully written contribution."--Harvard Law Review

"[A] fascinating and provocative book. . . . Rubin is to be congratulated. Beyond Camelot is an extraordinary effort, brilliant in places; it is certain to provoke a great deal of thought and suggest numerous avenues of future research."--Howard Schweber, Journal of Politics

"Anyone who desires to understand modern government should read Beyond Camelot."--Brian Z. Tamanaha, Law and Politics Book Review

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Product Details

  • ISBN-13: 9780691133973
  • Publisher: Princeton University Press
  • Publication date: 8/27/2007
  • Edition description: New Edition
  • Pages: 480
  • Product dimensions: 6.00 (w) x 9.20 (h) x 1.10 (d)

Meet the Author

Edward L. Rubin is dean of Vanderbilt University Law School. He is the author of "Judicial Policymaking and the Modern State: How the Courts Reformed America's Prisons and Federalism: A Theoretical Inquiry", both with Malcolm Feeley. He has served as a legal consultant to the Russian Federation and the People's Republic of China.

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Read an Excerpt

Beyond Camelot

Rethinking Politics and Law for the Modern State
By Edward L. Rubin

Princeton University Press

Copyright © 2005 Princeton University Press
All right reserved.

ISBN: 978-0-691-11808-6


Chapter One

INTRODUCTION

The Thesis

Social Nostalgia

OVER the course of the last two centuries, we have developed a new mode of governance-the administrative state-and it makes us feel miserable. We rail at the bloated bulk and dreary pragmatism of our public institutions. We condemn the uninspired, cumbersome rigidity that, despite such pragmatism, makes those institutions ineffective. We yearn for times that were not only simpler but more joyous and more integrated, when our individual experience was directly connected to the collectivity and we inhabited a political world that was suffused with moral values. This set of attitudes can be described as social nostalgia.

Social nostalgia pervades both our political and our popular culture. Citizens complain that government has become too large, too bureaucratic, too remote. Politicians, even when they are incumbents, regularly campaign against the prevailing administration, promising to restore the virtues of some prior period, to bring the government "closer to the people," or to "return to normalcy." In the movies, anyone with an ordinary administrative role-an office supervisor, university dean, or government official-is either anactual villain or, at the very least, an impediment to justice and good sense. How often have we seen our hero, a police officer, for example, slam his badge down on the captain's desk and say, "I've had it with your rules; now I'm going to take care of things myself." Indeed, the romance of life outside the administrative state rivals sex and violence as the dominant theme in contemporary cinema. The Wild West, the Middle Ages, the urban ghetto, outer space, and Earth after a nuclear or environmental holocaust all serve as settings where heroism and adventure flourish in the absence of bureaucracy. One might imagine that the planetary and interplanetary regimes in Star Wars would require a good deal more administrative resources than the small segments of our own planet that constitute contemporary nation-states, yet planets are ruled by queens and princesses, the evil intergalactic empire is controlled by Darth Vader's personal commands, and political conflicts are resolved by individual combat between opposing leaders.

The thesis of this book is that many of the basic concepts that we use to describe our current government are the products of social nostalgia. The three branches of government, power and discretion, democracy, legitimacy, law, legal rights, human rights, and property are all ideas that originated in pre-administrative times and that derive much of their continuing appeal from their outdated origins. Of course, they are sedimented with many centuries of subsequent thought, and are so central to our prevailing theories that they themselves have become causal factors, structuring our institutions and our interactions. But in the final analysis, it will be argued, these concepts are simply not the most useful or meaningful ones that we could find to describe contemporary government. Our thoughts fare like Miniver Cheevy, who "grew lean while he assailed the seasons." They reveal an abiding distaste for our current situation, a distaste that is sufficiently profound that we have difficulty confronting the reality of the government we actually possess.

Social nostalgia may seem like an odd notion, almost an oxymoron. The term 'nostalgia' generally refers to an individual experience, the longing that people feel for some previous period in their lives. It is often ascribed to the experience of loss-a village destroyed, a neighborhood transformed, a baseball team transferred. Nostalgia of this sort can be a collective phenomenon if a group of people share the same experience, such as the conquest of their homeland by a foreign power. Raymond Williams notes a permanent pastoralism in English literary culture, as each generation mourned the loss of the rural world that its members knew in their own childhoods.

But the social nostalgia that generates our collective yearning for the pre-administrative state seems different, since no living person who has grown up in a contemporary Western nation can remember any different mode of governance. It must be based instead on a collective memory, in Maurice Halbwachs's terms, an image of some prior era that is preserved and yet constructed by the written texts and continuing traditions of society. Such memories are common, but they are not self-activating; history also provides numerous examples of texts discarded, traditions abandoned, and entire epochs or social experiences consigned to oblivion. Our present yearning for the pre-administrative past seems motivated by our collective dissatisfaction with the particular system of governance that we have created, and in which we find ourselves inextricably immersed.

One should not imagine, however, that social nostalgia is a unique affliction of these unpoetic, overcomplicated times, or that in other eras, when the world was younger, people were better integrated and more optimistic. That would be social nostalgia. People always feel that their era is the oldest in the world-as indeed it always is-that life is dreary, and that the difficulties they confront are particularly severe. Their yearning for the past regularly dominates the present, dictating taste in art and architecture, and teaching virtue through archaic, misinterpreted examples. For the entirety of the past millennium, images of classical antiquity have held the Western world in thrall; Burckhardt found this to be the defining mentality of the fifteenth and sixteenth centuries, Charles Homer Haskins then identified it as equally central to the twelfth century, and R. W. Southern discovered the same inclination, albeit in somewhat more diluted form, in the tenth and eleventh centuries. The stranglehold of classical antiquity was partially broken in the nineteenth century, and then only because it was displaced by a newfound yearning for the Middle Ages-those same Middle Ages that had themselves been yearning for antiquity. Similar attitudes, of course, prevailed in antiquity itself. The Imperial Romans, the Republican Romans, the Hellenistic Greeks, even the Periclean Greeks were all persuaded of their own degeneracy. If we go back to the very dawn of the written tradition in the West, the time when, by all subsequent accounts, the world was young, we find this same ever-unrequited yearning. In the eighth century B.C., Works and Days, Hesiod's famous tantrum against his deadbeat brother, recounted four long eras that precede the present one, with golden people who never age and obtain food without working, silver people who enjoy a hundred-year-long childhood, bronze people made out of ash trees who have no need for agriculture, and "the godly race of the heroes who are called demigods," all of this leading up to Hesiod's own iron age, where people "will never cease from toil and misery by day or night, in constant distress, and the gods will give them harsh troubles."

In a sense, then, the particular era that serves as the source of social nostalgia is irrelevant to the phenomenon itself; people will always find some prior period, whether real or imaginary, which they can use to flagellate the present. But in another sense, the choice is an important one, for the specific features of a prior, partially or entirely imagined past both reveal and influence the attitudes of those who yearn for it. This choice is rarely unconstrained, of course, since one period's nostalgia necessarily becomes incorporated into the cultural heritage of its successors. Thus, the same era may serve as the object of nostalgia for a number of successive periods, each period repainting the familiar image with the coloration of its own afflictions. Over time, the image becomes richly sedimented, and thus a source of real continuity. Such nostalgia-driven images exercise a profound effect upon the conceptual structure of society, becoming ever more difficult to analyze because they constitute the pre-empirical foundations on which the society's methods of analysis are based.

The Middle Ages Our present nostalgia for the pre-administrative state venerates a variety of prior eras, including ancient Greece and Rome, pre-Columbian America, the Wild West, and Enlightenment Europe. Its most common object, however, is the era in which the past millennium began, and which we now describe as medieval. Many of the concepts that structure our theories of government developed in that period and derive their continuing appeal from our yearning for its perceived simplicity, poetry, faith, sense of adventure, and youthful vitality. These yearnings, of course, are generally not explicit, and present themselves as condemnations of the present rather than as invocations of the past. Nonetheless, the Middle Ages, or rather our socially constructed image of the Middle Ages, is frequently the silent but implicit element in the comparison, the collective memory that infuses our present theories about government.

The legacy of the Middle Ages is complex, however. To some extent, this era's influence on modern political and legal concepts rests upon a firm foundation, for, as Joseph Strayer and, more recently, Alan Harding have observed, many of our public institutions originated at that time. Medieval society created the first representative legislatures and established national courts that took evidence and dispensed justice according to pre-established rules. The Magna Carta, our earliest codification of political rights, specified that these included trial by jury and due process of law. The nation-state itself, a secular, centralized regime that commands the primary political loyalty of its subjects, emerged during this period, replacing the empire, the city-state, the feudal hierarchy, and the tribe. Thus, the continued survival of the medieval mode of thought that spawned these institutions is not surprising, even though the nature of the institutions themselves may have been transformed by subsequent developments.

But there is much more to the Middle Ages and to our contemporary image of them. During this period, Europe's rude military encampments and rustic villages grew into cities, trade increased, and mercantile fortunes were amassed on a scale that had not been known for some eight hundred years. Universities were founded and rapidly developed into institutions that dominated many of the newly developed cities and sent ideological shock waves rolling across the continent. Vast cathedrals were constructed, great monasteries were established, stone castles sprang up everywhere. The military classes not only fought among themselves, but launched invasions against common enemies, expanding the boundaries of Christian Europe as they conquered Spain, the Mediterranean islands, Pomerania, Prussia, the eastern Baltic, and, however temporarily, the Holy Land. Royal governments consolidated their control, and replaced their casually organized councils of leading warriors with staffs of tax collectors, record keepers, financial advisors, lawyers, and judges.

These developments generally made people feel miserable. They railed at the bloated bulk and dreary pragmatism of their institutions. They condemned the uninspired, cumbersome rigidity that, despite such pragmatism, made those institutions ineffective. They yearned for times that were not only simpler, but more joyous and more integrated. In other words, they suffered from social nostalgia.

This feeling sometimes attached itself to Ancient Greece and Rome, and sometimes to the more recent Carolingian Empire, but its most common, most distinctive object was King Arthur's court at Camelot. From the twelfth century to the fifteenth, a vast body of literature was created that celebrated the adventures of King Arthur and his knights. Perhaps the religious literature of the era was ultimately more extensive, but the Arthurian literature is certainly the most sustained political fantasy of the entire period. Much of it was specifically designed to satisfy people's social nostalgia. It was set at the time when Roman rule was disappearing, and the historical record disappearing with it, to produce a marvelously empty space, an entrancing nothingness to be filled with unexplored forests, mysterious castles, and a life of adventure free of all the dreary realities and disconcerting developments of medieval society. The political complexities of medieval times are nowhere to be found at Camelot. Arthur is the ruler of Britain, but he never devotes any time to administration; he never does anything as drearily mundane as collect taxes, appoint judges, or issue promulgations. He certainly never employs a lawyer. The annoyances of manufacturing and commerce are also absent; there are no merchants to contend with, no peasants to control, no crops to manage, and virtually no money. In a very real sense, therefore, Camelot served as an escapist fantasy from the initial development of the administrative state in Western European nations.

It is perhaps this very feature that has preserved its appeal over the many years which followed. The legend of Camelot was still vibrant enough to be taken seriously by Malory and several Spanish writers in the late fifteenth and early sixteenth centuries. There was a subsequent decline in interest, marked by the satire of Cervantes, but the fascination reignited in the nineteenth and early twentieth centuries, as indicated by the pre-Raphaelite painters, the music of Richard Wagner, the writings of Lord Tennyson, Matthew Arnold, Walter Scott, Algernon Swinburne, Benjamin Disraeli, Mark Twain, and Edwin Arlington Robinson, and by the explicitly Arthurian imagery invoked by the creator of the Boy Scouts. In our own times, the theme lives on in popular novels, a Broadway play, a variety of motion pictures, a chain of pizza restaurants, and a Las Vegas hotel, while its more general influence lies heavily on the entire genre of contemporary fantasy. The six long, very popular Star Wars movies, although ostensibly science fiction, are heavily Arthurian in atmosphere and spirit, while the Lord of the Rings trilogy-which recently became three very popular and even longer movies-was actually written by a medieval scholar. When Jacqueline Kennedy sought to characterize her husband's administration, a week after his assassination, it was not the economic revival that he engineered, not his successful resolution of the Cuban missile crisis, not his tireless campaign for civil rights legislation, not the Peace Corps, and certainly not his efforts to increase employment, alleviate poverty, and modernize governmental operations through administrative action that she chose to accentuate. Nor did she use the New Frontier, Kennedy's own forward-looking and very American sobriquet. No, the image that Mrs. Kennedy insisted that her family's favorite journalist, Theodore H. White, invoke to describe the Kennedy administration in his exclusive Life magazine interview was that "one brief shining moment that was known as Camelot."

It is a further thesis of this book that our theories about government are not only derived from the Middle Ages, but represent a mixture of the political thought of the Middle Ages and the political fantasies of that era, in particular the legend of Camelot. Our social nostalgia for the pre-administrative state, as specifically focused on the medieval world, thus preserves that period's own social nostalgia. It does so because realism and fantasy were fused, profoundly and inextricably, in the alembic of people's minds at the time, and thus projected forward as a single body of thought. In addition, when we look back upon a prior era, driven by our own social nostalgia, we tend to forget that people then felt miserable, that they sought relief in their own nostalgic fantasies, and so we assume the linkages they forged represent a coherent, integrated vision. And finally, we preserve this mixture of realism and fantasy because the fantasy, a sedimented image communicated across time, appeals to us as profoundly as it appealed to its bygone originators.

(Continues...)



Excerpted from Beyond Camelot by Edward L. Rubin Copyright © 2005 by Princeton University Press . Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Acknowledgments vii

Chapter One: Introduction 1
The Thesis 1
The Method 12
The Administrative State 22

PART I: THE STRUCTURE OF GOVERNMENT 37

Chapter Two: From Branches to Networks 39
The Government as Body and Branches 39
The Modern Image of a Network 48
Applying the Network Model 56
Chapter Three: From Power and Discretion to Authorization and Supervision 74
Power and Discretion 74
Authorization and Supervision 91
The Microanalysis of Intra-Governmental Relations 96
Chapter Four: From Democracy to an Interactive Republic 110
The Pre-Modern Concept of Democracy 110
Electoral Interaction 120
Administrative Interaction 131
Chapter Five: From Legitimacy to Compliance 144
The Pre-Modern Concept of Legitimacy 144
The Compliance Model 160
The Large-Scale Application of the Compliance Model 171
Conclusion to Part I 179

PART II: LEGAL OPERATIONS 189
Chapter Six: From Law to Policy and Implementation 191
Law and Regularity 191
Policy and Implementation 203
The Morality of Policy and Implementation 214
Chapter Seven: From Legal Rights to Causes of Action 227
The Concept of Legal Rights 227
Causes of Action 237
Causes of Action v. Legal Rights 246
Chapter Eight: From Human Rights to Moral Demands on Government 260
Natural Rights and Human Rights 260
The Concept of Moral Demands on Government 268
The Content of Moral Demands on Government 287
Chapter Nine: From Property to Market-Generating Allocations 296
Property as Control 296
Market-Generating Allocations 308
The Protection of Individual Interests 323
Conclusion to Part II 330

Notes 341
Author Index 455
Subject Index 459

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