Defending Mansfield: Why the Executive is Not Entirely Defined by the Rule of Law

Energy is an ambivalent term in this kind of political philosophy – but its worth again being very precise by what we mean here. Mansfield takes both the word energy and the Machiavellian word, virtu, to be attributes that only tyrants or those acting extra legally can have. Its an interesting case- but in my view totally wrong. What these thinkers meant by energy was the principle, the life of a constitution, the way that it inspired men to fight and die for it. What they did not mean was to endorse some over arching dictatorship over the constitution, they meant its ability to inspire and form the population that lived under it. Machiavelli would have agreed- how else can one account for his argument in the Discourses on Livy that it was the Roman laws (orders or ordine is the word he uses) that maintained Roman virtu – it was the law that maintained character not a magistrate from outside. That is what I take Hamilton to mean as well- who had definitely read the Discourses and absorbed the lessons that they included about Republican Rome. In this sense the executive is not opposed to the Rule of Law but operates within it.

Gracchi, writing here about how a strong executive, in his opinion, is entirely defined by the rule of law.

Gracchi is a really nice guy, and very knowledgeable – way more knowledgeable than I am about 99% of issues, but this requires public correction. This is not something I would admit as a legitimate argument in my classes. It is based on a terrible reading of the Federalist, which is not forgivable, because it is a rather obvious document, and a bad reading of Machiavelli, which is forgivable, because I’m still confused as to how that works.

The reason why I’m being strict about this is that “energy” and, to a lesser degree, “virtu” are not ambiguous. The phrase “energy in the executive” is used in Federalist 70 to describe his abilities with regards to “decision, activity, secrecy, and despatch.” Gracchi at one point confesses that he doesn’t understand how a police force and law can conflict, as he does not seem to realize that execution of the law is a very different thing from having laws, which is why we have separation of powers.

But this is just the tip of the iceberg. Federalist 70, focusing on the rule of one as opposed to a plural executive, an issue which Mansfield, whom Gracchi is arguing against, takes especial pains to point out the significance of, is only one Federalist paper discussing the Executive and why it needs to be strong.

Federalist 72 is the key document – that’s where Hamilton argues that the character of the Executive doesn’t matter if incentives for greater glory are set up for him. In other words, an Executive that cares for things like the “rule of law” is not envisioned. Law acts purposely to constrain him, but not constrain him too much – an Executive needs to act.

That tension between the Executive’s desire for glory and the rule of law is a very real tension, and makes Gracchi’s “well, it’s about love of the homeland/constitution” argument inadmissible. The Executive might not want to fight and die for the Constitution – he might hate it, see it as a constraint on him. Yet the incentives are set up so that his lack of virtue becomes a positive for popular rule.

The reason why Gracchi is making such a big mistake, I think, is evident in his reading of Machiavelli: Machiavelli doesn’t care for the Romans, does not care for the farmer/soldier ethic or Roman notions of virtue (note his ironical treatment of Caesar, and his listing of mistakes the Republic made in the Discourses). Virtu in Machiavelli is sheer strength, many times at the expense of justice – note how it is used in The Prince. It is something that founds a city, but also keeps people in check: it founds and preserves the law.

But it can clearly also destroy the law. Machiavelli has a way around this in the ordinary/extraordinary distinction: if we can focus on human matters (ordinary), and not confuse virtu with virtue – a confusion Gracchi and his teachers are fond of making – we can see which occurrences of virtu are harmful and eliminate them. But this is done on a case-by-case basis, not from someone that has a superior education and leads his people to something where they transcend the problem altogether.

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