State Integrity and Borrowed Power

This project will illustrate the structural similarity between state action and individual human action to argue that no official action can enjoy state authority unless the state’s three kinds of authority—legislative, executive, and judicial—are coordinated by means of constitutional rules that connect the institutions that exercise them into a single system. Kant’s key insight is that these authorities operate in different metaphysical domains: legislation, as the creation of a new norm, must occur in the practical (i.e. noumenal) domain. By contrast, the executive authority is exercised in the physical world, and the judicial authority is exercised in the interstices between these two domains, relating them to each other. Because these authorities are exercised in different domains, it is impossible in principle for one authority to do the task of another, and it is impossible for any authority to be exercised at all unless it is coordinated with the others. (Kant 1996, 459, MM 6:316) I will then explore the implications that this insight has for the duties of public officers. Kant regarded a formal separation of powers as conducive to justice. (Kant 1996, 480, MM 6:340) Even in such a system, though, a periphery of blended authority is unavoidable near the interstices of state functions. For example, executive branch officials must exercise judgment in the application of the law when they arrest and charge criminal defendants, and judges who apply laws in cases that come before them must often resolve vagueness or ambiguity in their terms. In such cases, the peripheral exercise of authority native to a different domain is reversable, but not immediately so. If justice delayed is not to be justice denied, therefore, public officials who exercise peripheral power should do so with an eye towards promoting the coordination that is essential among institutions responsible for the exercise of the authorities. Therefore, I will argue that peripheral authority should be regarded by officers as ‘borrowed’ from institution holding the final authority in the relevant sphere. Following this logic, when police officers and prosecutors exercise judgment in the application of the law, they ought to adopt what they understand to be the judiciary’s current institutional perspective to the extent possible rather than seeking to compete with the judiciary by deploying different heuristics and priorities to the interpretation of legislation directly. Similarly, when judges apply the law, they would apply the legislature’s current institutional perspective to the extent possible. The idea is to make choices that are unlikely to be overridden because they are the choices that the ultimately responsible institutions would have made had they had the opportunity in the first instance. This thesis raises questions about the truth value of public statements from state officials wielding borrowed authority. A judgment in line with the decision-making principles of a different institution (rather than with one's own) might at first appear untruthful. However, appropriate context-sensitive interpretive principles can reveal such statements to be truthful.