How to Find Abuses of Power

When we think about abuse of power, most of us, including me, find ourselves in the position of the Associate Justice of the United States Supreme Court from 1958 to 1981, Potter Stewart, when he was looking for a threshold test for hard core pornography (not obscenity as it is often remembered) that would allow him to decide whether a scene from the film Les Amants (“The Lovers”) constituted hard core pornography. He couldn’t come up with a precise one; instead he famously said, “But I know it when I see it, and the motion picture involved in this case is not that.” (Jacobellis v. Ohio, 378 U.S. 184 (1964)) Paying attention to the difficulty in defining pornography, I think, will shed some light on the difficulties we face in making moral judgments about abuses of power. I shall be maintaining that abuse of power is unlike pornography in that the former is actually quite easy to define, whereas the latter is indefinable, because it doesn’t exist as a moral category. However, in many cases it is quite difficult to state clearly whether we have an abuse of power or not. But the reasons for this are different than those making it difficult to find pornography, and exploring those differences will make it easier to determine abuses of power when we see it.

Was Potter wrong to give up on framing a precise definition of pornography and instead to rely upon a subjective test? (It’s subjective because each person relies upon their own perception, without appeal to an independent marker, open to everyone wishing to make the judgment about whether a given work is pornographic.) Well, yes and no, and then yes. Yes, because the law requires precise definitions for two reasons: 1) so that different judges (or the same judge on different occasions) can render the same verdict in relatively similar cases; 2) so that individuals can have an idea about whether a given action will be judged illegal or not before being accused. So he was wrong in not following up on the consequences of not being able to give a precise definition.

No, because Potter was right to opine that that particular film was not obscene. He was also right to give up on a definition, but he didn’t realise why he failed to come up one. He failed to see that there is simply nothing to define. As secular moralists have argued since long before Potter’s time, there really is no such thing as indecency, or obscenity or other related notions, in the sense in which it is usually meant, namely that it is something that it would be morally wrong to make or view. The idea that there is something wrong with pornography or obscenity is a mistaken remnant of morality based on religion.

A quick qualification, central to my main point, which I will get to in a moment: there is such a thing as pornography in the original meaning of the term, which simply meant “writing about prostitutes.” Of course there is that; but from the moral point of view, so what? Now, here’s the main point: Such terms as pornography, obscenity, and abuse of power are what philosophers call hybrid terms, meaning those that are a mixture of descriptive and moral terms. That is, “writing about prostitutes” is simply a description. The claim that such an activity is morally wrong is a moral judgment. With hybrid terms, one might accept the description of an action, event or object while rejecting the moral judgment about it, or vice versa. So, while the description “writing about prostitutes” might apply to some work, there is nothing morally wrong with it. The same for pornography in its more common sense, and obscenity, though not the same for abuse of power. However, there is definitely something wrong with abuse of power. I’ll get to that in a moment.

But before I do, let’s look at the last “yes”: Potter was wrong to single out just this one film as not being pornographic. He should have followed through on the generalization I made above, and opined that the pornography statute itself should be struck down. The reason he didn’t see anything wrong with Les Amants is that there is nothing wrong to see. Therefore, there ought not to be a law forbidding it.

I’ll make another qualification to this view because it will be useful when we come to abuse of power. There is something wrong with some pornographic films: some abuse minors in their making, some involve exploitation of the actors, some involve people who are not in a position to give free consent. These things, of course, are wrong. But they are not central to the film itself – the film could have been made without that exploitation, for example as a pornographic cartoon. And there could be exploitation in a film that was not labelled as pornographic. So, wasting your time searching for the wrongness in pornography may result in your missing a wrongness which lurks elsewhere. The same can happen with abuse of power. The lesson I want to generalise and apply to abuse of power is that most actions about which we pass moral judgments are complex, consisting of several distinct actions making up the action we are judging, and we may find some parts morally unobjectionable, while other parts are morally wrong. For this reason, it is important to keep the various parts distinct before we apply our moral judgments to each distinct part.

A good beginning for our discussion is a dictionary definition. After canvassing the Web, looking at law dictionaries, political science dictionaries and the like, I found the most useful definition came from, of all places, Wikipedia. (Professors often forbid the use of Wikipedia citations, but every rule of that sort admits of exceptions.)

Now, what we shall see is that this definition nicely captures the concept of abuse of power. So, unlike pornography, it is easy to explain what abuse of power is in the abstract, and also easy to see, not only that it is wrong, but why it is wrong. The difficulty in making a judgment of abuse of power turns out to be determining whether the several criteria specified in the definition are met in an individual case. I’ll show you what I mean by examining the three criteria set out in the definition.

Number one is the phrase “unlawful act.” Discussions of abuse of authority often, but not always, take place in a legal context. Hence “unlawful.” But more often, I suspect, we are speaking in a moral context. There are important differences between the two, but the one that matters for this discussion is one that I mentioned above, namely that laws carry with them the threat of punishment for noncompliance. It is grossly unfair that someone be punished when the law is so vague that they couldn’t have predicted that they were running the risk of punishment by their noncompliance. The reason this is important for our discussion of abuse of power is that, if we are going to bring legal proceedings against someone for abuse of power, we must be able to establish that there were clear guidelines in place that established what the duties and limitations of the position were, so that the person we are accusing could know in advance that they were abusing them. In the moral case, we are speaking of “immoral acts,” or “unethical acts” – again, that distinction won’t matter here. What does matter, though, is that it requires much more thought to establish moral boundaries than legal ones, and that thought is sometimes not worked out in advance. It is often done at the same time the moral judgment is made.

Also, there is the point I made earlier, that abuse of power is a hybrid term, with both a descriptive and an evaluative component. This causes problems in accusing someone of abuse of power. We must get at least two ducks in a row, because our charge can be rebutted either by showing that we didn’t get our facts straight, or by showing that the action in question really was justified in the circumstances. For example, consider the case of Max Atken, better known as Lord Beaverbrook, the Canadian expatriate who was appointed by Winston Churchill as Minister of Aircraft Production in the early days of World War II. He might seem to be a poster boy for abuse of power, given the way he rode roughshod over other cabinet ministers (the Minister of War and the Minister of Labour, for example), RAF generals, officials in the Air Ministry – practically everyone who got in his way in his zeal to increase aircraft production during the Battle of Britain. But this judgement would be controversial, because Churchill created Beaverbrook’s new ministry without establishing guidelines for how it would operate along with the other ministries and the RAF, which shared the myriad responsibilities involved. He relied on those involved to sort out the guidelines on the fly – a sensible decision for an emergency situation. Churchill’s only directive was to increase aircraft production, which Beaverbrook decidedly did. So, without any guidelines defining or restricting Beaverbrook’s power, we cannot claim he abused it, at least not in the legal sense mentioned above. But there are moral standards that do apply, and we might question his bullying, occasional deceit, and disregard of unstated conventions of ministerial responsibilities. We leave it to historians to debate whether these moral failures were necessary in the time of national emergency, and to moralists to decide whether the good he produced outweighed these moral failures in the circumstances.

Next the “done in an official capacity” clause. The idea here is that the abuses we are concerned with are ones that are central to the official’s office, role, or job. But this raises the main difficulty in identifying abuse of authority. Many positions simply do not have clearly defined job descriptions; thus it is sometimes very difficult to determine whether a person is acting within her prescribed (legally or otherwise) official capacity or not. Worse, even in a very well-defined role, agents in that role are expected to “show initiative” from time to time – that is, to go beyond what is assigned to them, or to interpret their job parameters in unique or unforeseen circumstances. (See the discussion of Beaverbrook above.) So here is the slipperiness in making judgments of abuse of power: at one level we have a difficulty in interpreting a matter of fact – whether an action does or does not fall within the parameters of the job. The next level is to determine whether it was wrong for the agent’s behaviour to fall outside of those parameters.

Third, the “which affects the performance of official duties” clause is problematic in an individual case, primarily because it involves determining causal relations. We must determine that the abuse of power is actually causing some decline in the efficiency or productivity of the institution in question. A current example illustrates this point. As I write this, Canada’s Governor General, Julie Payette, is being accused of abuse of power in the running of her office. The heart of the charge concerns the accusation that she bullies and browbeats staff to the point where they are unable to carry out their tasks. If this is the case, it would be a clear-cut case of abuse of power.

It is often said that morality doesn’t consist of black and white, only shades of grey. Well, like a lot of truisms, this one is not really true. Rather, most situations about which we are to make a moral judgment are a bit like a Pointillist painting with large swathes of grey on it. But a closer examination will reveal that these areas are made up of a number of definitely black dots, interspersed with definitely white spaces. The difference is that with the painting we are meant to view it from a distance that makes those swathes look grey, whereas with morality, if we are to make a defensible moral judgement, we must view the situation much closer, from the perspective of the individual dots. In morality, this is the view of the various actions that make up the more complex situation. Nowhere is this more true than our determinations of abuse of power. ♦