never ask who should rule: karl popper and political theory

Société québécoise de science politique

Never Ask Who Should Rule: Karl Popper and Political TheoryAuthor(s): Andreas PickelSource: Canadian Journal of Political Science / Revue canadienne de science politique, Vol. 22,No. 1 (Mar., 1989), pp. 83-105Published by: Canadian Political Science Association and the Société québécoise de science politiqueStable URL: http://www.jstor.org/stable/3228601 .

Accessed: 18/06/2014 17:30

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

Canadian Political Science Association and Société québécoise de science politique are collaborating withJSTOR to digitize, preserve and extend access to Canadian Journal of Political Science / Revue canadienne descience politique.

http://www.jstor.org

This content downloaded from 185.44.79.146 on Wed, 18 Jun 2014 17:30:28 PMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=cpsa

http://www.jstor.org/action/showPublisher?publisherCode=sqsp

http://www.jstor.org/stable/3228601?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


Never Ask Who Should Rule: Karl Popper and Political Theory*

ANDREAS PICKEL York University

Introduction

It is surprising that one of the most important and influential philosophies of this century plays almost no role in contemporary political theory. Karl Popper, whose reputation derives mainly from his work as a philosopher of science, is still frequently mistaken as a positivist.' Yet even more careful readers of his works, particularly The Logic of Scientific Discovery,2 may not be convinced that fallibilism has more than a rudimentary bearing on the central concerns of political theory. Popper's The Open Society and Its Enemies," which for political theory appears to be the most directly relevant of his works, is polemical in tone and defends a classical liberal position against the alleged intellectual nursemaids of modern totalitarianism.4 Its form and message have probably not facilitated a wider reception among political theorists of the fundamental theoretical and methodological problems which it

* I would like to thank Steve Newman and the JOURNAL'S referees for their helpful criticisms and comments on an earlier draft of this article.

1 Popper's alleged positivism stems in part from the famous confrontation between Adorno and Habermas, on one side, and Popper and Hans Albert, on the other, over the epistemological status of the social sciences. The contributions to this debate were collected under the somewhat misleading title of The Positivist Dispute in German Sociology (New York: Harper and Row, 1976), originally published as T. W. Adorno, H. Albert, J. Habermas, K. R. Popper, et al., Der Positivismusstreit in der deutschen Soziologie (Darmstadt: Luchterhand, 1969). See also note 24 below.

2 Karl Popper, The Logic of Scientific Discovery (rev. ed.; New York: Harper and Row, 1968).

3 Karl Popper, The Open Society and Its Enemies, 2 vols. (5th ed., rev.; Princeton: Princeton University Press, 1971).

4 For an analysis of Popper's liberalism, see Alan Ryan, "Popper and Liberalism," in G. Currie and A. Musgrave (eds.), Popper and the Human Sciences (Dordrecht: Martinus Nijhoff, 1985), 89-104.

Andreas Pickel, Department of Political Science, York University, North York, Ontario M3J 1P3

Canadian Journal of Political Science / Revue canadienne de science politique, XXII:1 (March/mars 1989). Printed in Canada / Imprime au Canada



84 ANDREAS PICKEL

addresses-the paradox of sovereignty, piecemeal versus utopian social engineering, individualism versus collectivism, the autonomy of sociology, and the sociology of knowledge.5 As important and relevant as his arguments are, they do not add up to anything approaching a comprehensive political theory." There may, however, be much more of importance for political theory in Popper's philosophy than his own attempts in this area and their reception have revealed.

This article has two major concerns: the first is to examine Pop- per's critique of the theory of sovereignty and his own approach to political theory, specifically his claim that the institutional control of the rulers is the most fundamental problem of political theory. The second purpose is to test the relevance of Popper's anti-justificationist approach, specifically his problem-oriented method, for political theory. The fruitfulness of this method will be explored by using it as a guide for criticizing his own approach to political theory as well as his arguments against the theory of sovereignty. I will argue that Popper does not recognize the problems which the theory of sovereignty addressed, and that what he claims to be the most fundamental problem of political theory is only one of several fundamental problems, the relative importance of which depends on the political and philosophical problem situation of the time. Popper's arguments emphasizing the crucial importance of creating institutions for the effective control of political rulers remain highly relevant for political theory. However, his own political theory suffers from at least two serious limitations. First, he fails to recognize the fundamental importance of such problems as creating a stable political order and securing the legitimacy of political rule. Second, and as a result, he misinterprets the significance of the theory of sovereignty in the history of political theory. This study takes as its focus Popper's most direct challenge to political theory, namely his claim that "by expressing the problem of politics in the form 'Who should rule?' or 'Whose will should be supreme?', Plato created a lasting confusion in political philosophy."'

5 These and other arguments of immediate relevance for social and political philosophy-the rationality principle and the critique of historicism-are now conveniently accessible as Part IV of David Miller (ed.), Popper Selections (Princeton: Princeton University Press, 1985) together with some of Popper's most important writings in the areas of epistemology, philosophy of science and metaphysics.

6 John Dunn, in Western Political Theory in the Face of the Future (Cambridge: Cambridge University Press, 1979), for example, writes that the conception set out by Popper and F. A. Hayek nonetheless is "[t]he nearest to a comprehensive liberal theory at present available" (49n). Given the state of contemporary liberal theory, and political theory more generally, this alone would seem to be sufficient reason to re-examine Popper's conception.

7 Popper, Open Society, vol. 1, 120.



Abstract. The philosophy of Karl Popper has rarely been examined with respect to its fruitfulness and relevance for political theory. While his contributions to the philosophy of science may appear to be of only marginal significance for the fundamental concerns of political theory, his own forays into the field, particularly in The Open Society and Its Enemies, have been polemical in tone and explicitly political in motivation. This article re-examines Popper's critique of the theory of sovereignty and his own approach to political theory by employing a largely neglected element of his critical approach, namely his problem-oriented method.

Resume. La philosophie de Karl Popper a peu 6t6 6tudi6e sous l'angle de la pertinence de sa contribution at la th6orie politique. Cet apport t la philosophie de la science peut apparaitre marginal en ce qui concerne les questions fondamentales de la thborie politique. N6anmoins, la contribution de Popper, notamment dans The Open Society and Its Enemies, est explicitement motiv6e par des preoccupations politiques et adopte un ton pol6mique. Le pr6sent article reconsidbre la thborie de la souverainet6 chez Popper, ainsi que sa propre perspective de la th6orie politique, tout en utilisant un 616ment relativement n6glig6 de son approche critique, soit une m6thodologie ax6e sur le problkme 6tudi6.

Popper's Critique of the Theory of Sovereignty

Popper's basic argument is both simple and powerful. Plato and all who share his assumption that the fundamental political problems of power and authority are solved once an adequate answer to the question "Who should rule?" is found have failed to see that all rulers are fallible. They tacitly assume what Popper calls "the theory of (unchecked) sovereignty" according to which the holders of power can virtually do what they will. It is this assumption about the nature of power that elevates the question "Who should rule?" into the central problem of politics. "If this assumption is made, then, indeed, the question 'Who is to be the sovereign?' is the only important question left."8 Popper shows that this assumption is weak on both empirical and logical grounds.

Popper's empirical arguments are so simple that they may seem obvious. However, political theory would in many instances approach its problems in a different fashion had these insights with their far-reaching implications always been understood. "No political power has ever been unchecked, and as long as men remain human (as long as the 'Brave New World' has not yet materialized), there can be no absolute and unrestrained political power."'9

Even the most powerful tyrant depends upon his secret police, his henchmen and his hangmen. This dependence means that his power, great as it may be, is not unchecked, and that he has to make concessions, playing one group off against another. It means that there are other political forces, other powers besides his own, and that he can exert his rule only by utilizing and pacifying them. This shows that even the extreme cases of sovereignty are never cases of pure sovereignty .... And in an overwhelming number of cases, the limitations of political power go much further than this.10

8 Ibid., 121. 9 Ibid., 121-22.

10 Ibid., 122.



86 ANDREAS PICKEL

This insight is particularly relevant for the empirical study of political regimes that have no institutionalized or effective forms of countervailing powers. For example, the study of Communist regimes has long been dominated by the totalitarian model which focusses almost exclusively on political mechanisms of control and repression. Tacitly assuming the theory of unchecked sovereignty, this approach has proved a major obstacle to a systematic analysis of the limitations on political power and of the dynamics of political change. It explains in part the surprise and disbelief about the current reform efforts in the Soviet Union. But the relevance of Popper's empirical point is not confined to the study of Communist regimes. Marxist approaches to the study of capitalist democracies display a similar tendency to show up forms and manifestations of class domination to the exclusion of a systematic analysis of limiting and counteracting factors.11

With respect to both examples, the emphasis is on the failure of these approaches to provide a systematic analysis of the limitations of political power. The problem generally is not that evidence to this effect would not be acknowledged. The problem is that it tends to be explained away or misunderstood as long as the assumption of the possibility in principle of full control or hegemony continues to be held. Popper's simple empirical point has far-reaching implications because it affects a crucial element in various research programmes. If taken seriously, limitations on political power can no longer appear as merely contingent, anomalous or marginal but instead must be conceptualized as necessary, normal and central characteristics of political power.

Popper's second major objection to the theory of sovereignty poses the most fundamental challenge to political theory and will therefore be the focus of the present article. It consists in "a kind of logical argument which can be used to show the inconsistency of any of the particular forms of the theory of sovereignty."12 It is an application of a similar argument used by Plato in his criticism of democracy. It can be summarized in the question: "What if it is the will of the people that they should not rule, but a tyrant instead?"'3 This is not merely an idle philosophical point, but a possibility with historical precedents. It creates, according to Popper, a fundamental dilemma for all democrats

11 The assumption of class domination has been somewhat relaxed in recent Marxist thought as is shown by the conceptual shift, following Gramsci, from class domination to class hegemony. What would be needed, however, is a conceptual break which hegemony as a more subtle form of domination does not achieve. Of course, it might be argued that the focus on class struggle in Marxist analysis demonstrates that domination is never complete. But the tacit assumption that the end of class struggle is socialism and absolute working-class power indicates that limitations on political power are contingent and transitory, that is, they are political rather than limitations in principle.

12 Popper, Open Society, vol. 1, 123. 13 Ibid.



Karl Popper and Political Theory 87

whose position is ultimately founded on the principle of majority rule and popular sovereignty.

On the one hand, the principle they have adopted demands from them that they should oppose any but the majority rule, and therefore the new tyranny; on the other hand, the same principle demands from them that they should accept any decision reached by the majority, and thus the rule of the new tyrant. The inconsistency of their theory must, of course, paralyse their actions.14

We can, however, avoid the dilemma and remain democrats at the same time, Popper suggests, if we abandon the principle of majority rule and popular sovereignty in favour of the principle of democratic control. This view of democracy, he contends,

is not based upon the principle that the majority should rule; rather, the various equalitarian methods of democratic control, such as general elections and representative government, are to be considered as no more than well-tried and, in the presence of a widespread traditional distrust of tyranny, reasonably effective institutional safeguards against tyranny, always open to improvement, and even providing methods for their own improvement.15

The principle of popular sovereignty, accordingly, is not only superfluous. More importantly, it is a source of confusion and inconsistency for democratic theory as well as a political dilemma for democrats. And the theoretical inconsistency and the political dilemma will not arise if we abandon the question "Who should rule?"

Popper's strong claim that "All theories of sovereignty are paradoxical"16 is not convincing. This contention will be more fully supported in the historical section below. But an initial argument undermining this claim is supplied by Popper himself in his treatment of the analogous paradoxes of freedom, tolerance and democracy. It may be briefly noted here. The doctrine of unlimited freedom, for instance, is paradoxical because it undermines the very conditions necessary for the preservation of freedom by granting unlimited freedom to its enemies. Similarly, unlimited tolerance makes it impossible to restrain the intolerant. As principles of unlimited freedom, tolerance or democracy, they are clearly self-defeating. Notice in the following question that Popper does not reject the principles of freedom, tolerance and democracy even though they are as paradoxical as the principle of sovereignty. He rejects their paradoxical formulations but not their valuable substantive content. He writes:

All these paradoxes can be easily avoided if we frame our demands in the way suggested... , or perhaps in some such manner as this. We demand a government that rules according to the principles of equalitarianism and

14 Ibid., 123. 15 Ibid., 125. 16 Ibid., 124; emphasis in the original.



88 ANDREAS PICKEL

protectionism; that tolerates all who are prepared to reciprocate, i.e. who are tolerant; that is controlled by, and accountable to, the public. And we may add that some form of majority vote, together with institutions for keeping the public well informed, is the best, though not infallible, means of controlling such a government. (No infallible means exist.)17

Now it is unclear why we could not just as easily avoid the paradox of sovereignty without giving up the theory of sovereignty. Analogously, this would require making institutional provisions for the purpose of safeguarding against the abuse of power by the sovereign body. There are two objections which might be raised against this proposal. One is historical/empirical: the theory of sovereignty has been and is used in its absolute or unlimited sense; and it could not play its role if modified in a similar fashion as Popper has proposed with respect to the principles of freedom, tolerance and democracy. The other objection is theoretical/programmatic: the theory of sovereignty creates much confusion as well as failing to solve any fundamental problems in political theory; it should therefore be discarded. Either objection,18 if valid, should move us to give up the theory of sovereignty. It should, more importantly, lead political theorists to dispose of the question "Who should rule?" once and for all and give serious consideration to Popper's alternative.

Popper's Solution to the Problem of Knowledge and the Problems of Political Theory

The theory of sovereignty in the form presented by Popper is indeed self-contradictory. But, as has just been suggested, a different formulation is possible that does not give rise to the logical contradiction which Popper identifies. Before considering the specific formulations of the theory of sovereignty as proposed by Bodin, Hobbes and Locke, it is necessary to sketch some of the basic elements of Popper's philosophy, in particular his problem-oriented method. It will be used to assess critically his own approach to political theory.

The concept of sovereignty has been central to modern political theory since Bodin. This would appear to lend strong support to Popper's thesis that political theorists have faithfully adhered to the tradition of asking the wrong question. The question "Who should

17 Ibid., 265-66. 18 There is a third objection. Sovereignty, one might contend, means absolute

sovereignty, or else it does not make any sense. The same would then have to be said about freedom, tolerance and democracy. Just as it is quite meaningful to speak of limited freedom, limited tolerance and limited majority rule, it is quite useful to speak of limited sovereignty. However, as the examples from the history of political theory referred to below will show, even the principle of unlimited sovereignty is not necessarily inconsistent with a theory (and practice) of institutional control, whereas theories of limited or mixed sovereignty are in fact seriously defective. See especially note 53 below.




rule?" in political theory, like the question "How do you know?" in the theory of knowledge, begs authoritarian answers. Why is this so? Popper argues that the rise of modern science was accompanied by an optimistic epistemology which he refers to as the doctrine that "truth is manifest."'9 In its classical empiricist (Bacon) and rationalist (Descartes) versions, sense perception and intellectual intuition, respectively, were declared to be sources of certain knowledge. The most fatal blows to this optimistic epistemology were dealt by Hume and Kant who demonstrated that neither observation nor reason could deliver knowledge that is certain. Neither type of epistemological authority could guarantee the truth.

Attempts to solve the problem of knowledge-we seem to have knowledge but we have no way of ultimately verifying it-have taken various routes. There are those moderately optimistic philosophies that have constructed compromise solutions, such as conventionalism, instrumentalism and pragmatism. And there are those that have abandoned the idea of truth, such as relativism and skepticism. Popper has proposed a solution to the problem of knowledge that identifies the fundamental question "How do you know?" itself as the basic obstacle.20 What all these ultimately unsuccessful attempts at providing a secure foundation for knowledge have in common is their search for an answer that provides an authority or criterion by which the truth or falsity of a knowledge claim can be justified. Popper refers to them as justificationist theories of knowledge. Relativism, although it has abandoned the idea of truth, nevertheless is part of the same justificationist metacontext.21 It is based on the conclusion that since there cannot be any certain knowledge, there cannot be any absolutely true knowledge; hence, knowledge (or the truth) becomes relative.22

Popper accepts that we cannot have any certain knowledge; all our knowledge is fallible. But he rejects the conclusion that we cannot have any true knowledge, or that we should abandon the search for absolute truth. This is an apparent contradiction, and Popper's way of resolving it represents the crucial step in his solution to the problem of knowledge. The contradiction can be resolved if we abandon the assumption that

19 Karl Popper, Conjectures and Refutations (New York: Harper and Row, 1968), 5. 20 The first statement of Popper's solution to the problem of knowledge is published as

Die beiden Grundprobleme der Erkenntnistheorie (Tiibingen: Mohr, 1979) on the basis of manuscripts from the years 1930-1933. The Logic of Scientific Discovery was a severely abridged version of this work which excluded large sections containing many of the ideas which Popper developed only much later. For the reader unfamiliar with Popper's solution to the so-called problem of induction, the relevant sections in Miller's Popper Selections can provide a useful introduction.

21 On the justificationist metacontext, see William Warren Bartley, III, The Retreat to Commitment (2nd rev. ed.; Peru, Illinois: Open Court, 1984), 171-77, 186-87.

22 See especially Popper's critique of the sociology of knowledge in Open Society, vol. 2, 212-23.



90 ANDREAS PICKEL

only certain knowledge, or justified knowledge, can be considered knowledge. Popper suggests that any knowledge claim, regardless of its source, may be true; but we have no way of knowing for sure-it is a conjecture. This, however, does not mean that all knowledge claims are equal, or that their validity now becomes merely a matter of social convention. We can never conclusively verify any claim; to this extent they are indeed equal. However, some stand up more successfully to criticism than others; and this is why they can be considered closer to the truth than others. It is for this reason that we should try to improve and expand our knowledge by criticizing rather than by justifying our theories, by searching for refutations rather than confirmations. We learn from our mistakes. Knowledge grows through a process of conjectures and refutations in which truth plays the crucial role of a regulative principle. The question "How do you know?" invites a justificationist answer that is not available. And it impedes the growth of knowledge because it leads to a futile search for justification instead of a constructive search for refutations that force us to develop new and better theories.

This is the direct link between Popper's solution to the problem of knowledge and his solution to what he suggests is the fundamental problem of political theory. No epistemological authority can guarantee the quality of our knowledge; no bearer of political authority can guarantee the quality of political rule. Just as the history of Western philosophy in general has searched in vain for a secure foundation of knowledge, the history of political theory has sought salvation in finding the right answer to the question "Who should rule?" Popper's solution to the fundamental problem of knowledge consists in a shift from a justificationist to a non-justificationist or fallibilist approach. It is not difficult to recognize this shift in his reformulation of the basic problem of political theory. "Never ask who should rule" is the equivalent to his proposal "Never ask what is the certain foundation of knowledge." The question concerning ultimate political authority is as unfruitful and misleading as the question concerning the ultimate epistemological authority. Fallibilism in general calls for institutions and practices promoting criticism of all claims to knowledge regardless of their source: the fallibility of political rulers calls for firm institutional controls whoever the rulers may be.

Before examining the fruitfulness of this shift for political theory in general terms and with reference to specific examples from the history of political theory, there is another aspect of Popper's philosophy that is perhaps less widely understood than his fallibilism. It is this aspect that in the present article will furnish a strategy for criticizing his approach to political theory. Popper's falsificationism can be easily mistaken as a new, albeit negative, authority for assessing knowledge claims-that, although we can no longer hope to verify conclusively our theories, we




can at least conclusively falsify them. However, neither conjectures nor refutations are final. The reason is that there are no epistemological authorities that could guarantee the certainty even of a critical or falsifying claim.23 All knowledge claims remain forever open to criticism. Non-justificationism therefore is a philosophy as well as a method of criticism.

It is important to note that criticism is not confined to empirical falsification. Popper's reputation as a positivist stems from a misrepresentation of his argument according to which only empirical statements should be considered knowledge claims. Metaphysical or moral claims are not falsifiable, therefore not open to criticism, and hence irrelevant for the growth of knowledge.24 If this were an accurate charge, his philosophy would indeed be of only marginal significance for any area of knowledge such as political theory that is not an empirical science. However, not only empirical hypotheses but any conjecture, be it metaphysical, moral or political, may be erroneous and open to criticism. And empirical falsification is only one among several strategies of criticism. W. W. Bartley has conveniently listed four major strategies of non-justificational criticism-that is, ways of criticizing empirical theories, metaphysical beliefs or political norms that do not rely on any epistemological authority. He writes: We have at least four means of eliminating error by criticizing our conjectures or speculations. These checks are listed in descending order according to their importance and the rigor with which they may be applied. (1) The check of logic: Is the theory in question consistent? (2) The check of sense observation: Is the theory empirically refutable by some sense observation? And if it is, do we know of any refutations of it? (3) The check of scientific theory: Is the theory, whether or not it is in conflict with sense observation, in conflict with any scientific hypotheses? (4) The check of the problem: What problem is the theory intended to solve? Does it do so successfully?25

The "check of the problem" is a largely neglected element of Popper's approach,26 but it may be the most promising means of a

23 Thus, while an observed fact, for example, may be said to refute conclusively an hypothesis, the observation statement itself can be subject to a variety of criticisms.

24 In his early writings, Popper "implicitly tends to identify the demarcation between science and non-science with the demarcation between good and bad... [theories]." Thus, as Bartley (Retreat to Commitment, 205) further explains, Popper, in his most extreme statement "denies that untestable or unfalsifiable theories even speak about reality." Popper himself, in Objective Knowledge (Oxford: The Clarendon Press, 1972), writes with respect to his early work: "In those days I identified wrongly the limits of science with those of arguability. I later changed my mind and argued that non-testable (i.e. irrefutable) metaphysical theories may be rationally arguable" (40n). Further on this, see especially chapters 8 and 10 in his Conjectures and Refutations as well as section 15 of his Realism and the Aim of Science, vol. I of Postscript to the Logic of Scientific Discovery, ed. by W. W. Bartley, III (Totowa, N.J.: Rowman and Littlefield, 1983).

25 Bartley, Retreat to Commitment, 127; emphasis in the original. 26 See ibid., 202.



92 ANDREAS PICKEL

non-justificationist evaluation of political theories. What does it entail? Popper argues that

every rational theory, no matter whether scientific or philosophical, is rational in so far as it tries to solve certain problems. A theory is comprehensible and reasonable only in its relation to a given problem-situation, and it can be rationally discussed only by discussing this relation .... Now if we look upon a theory as a proposed solution to a set of problems, then the theory immediately lends itself to critical discussioneven if it is non-empirical and irrefutable. For we can now ask questions such as, Does it solve the problem? Does it solve it better than other theories? Has it perhaps merely shifted the problem? Is the solution simple? Is it fruitful? Does it perhaps contradict other philosophical theories needed for solving other problems?27

It is this particular strategy of non-justificationist criticism that I will apply to Popper's own approach to political theory. As Popper, quoting Karl Reinhardt, has suggested with respect to the study of the history of philosophy: "The history of philosophy is the history of its problems. If you want to explain Heraclitus, tell us first what his problem was."28 This basic suggestion will be put to work in the next section. For the purpose at hand, it may be rendered as: "The history of political theory is the history of its problems. If you want to explain and criticize the theory of sovereignty, tell us first what was the problem it came to solve.

The Limitations of Popper's Formulation of the Fundamental Problem of Political Theory

Popper's alternative approach to political theory, according to which the institutional control of rulers is the most fundamental problem of political theory, ignores two problems that political theorists have considered equally, if not more, fundamental in a variety of different problem situations: the problem of order and the problem of legitimacy.29The first problem is important because before we can begin discussing mechanisms and institutions for the control of political rulers, there must first be a viable framework of political power, that is, a political order. Where there is no effective power structure, there are no rulers to be controlled.30 The second problem is important since, however intellectually convincing our arguments in favour of such values as individual freedom, tolerance and equality, in order to provide

27 Popper, Conjectures and Refutations, 199; emphasis added. 28 Ibid., 159. 29 The assumption here is not that these standard or perennial problems of political

theory are necessarily more important than those of institutional control or other conceivable problems, for example, political, social and economic equality, or group (collective) rights versus individual rights. But I will focus on the former because they were two fundamental problems which the theory of sovereignty addressed.

30 The best example is perhaps the so-called international order where war and in- stability are the result not of the abuse of power by the sovereign ruler but of the absence of such power, that is, the lack of a stable political order.




a basis for political authority they must be found sufficiently acceptable by the members of society, that is, they must be considered legitimate. Where the members of a society do not sufficiently identify with liberal values because they consider other values more important,31 a political order based on these values will probably not survive.32 Hence, only if the problems of order and legitimacy have been solved or for the time being happen to be unproblematic can it be claimed that the problem of the institutional control of rulers is the most fundamental problem of political theory.

The problems of order and legitimacy, I further suggest, have traditionally been discussed under the heading of who should rule. Whether and to what extent the answers proffered by political theorists are adequate depends primarily on the problem situation at hand. While it is quite acceptable to speak of perennial problems in political theory-such as the problems of order and legitimacy as well as the effective control of the rulers-it makes little sense to speak of perennial problem situations. The relative importance of one or the other problem is primarily an historical or empirical question. And it follows that the relevance of any conceptualization and problem solution provided by a political theory is subject to the same historical and empirical limitations.33

Popper's claim that the question of who should rule has dominated political theory is uncontroversial. His criticism that it has been the result of a mistaken problem formulation, however, is unacceptable in so far as a given problem situation includes the problems of order and legitimacy. Both-as the following, historical section will demonstrate-are different types of problems that cannot simply be reduced to the problem of institutional control. As a result, Popper's critique in an important sense is misdirected. The theory of sovereignty presents a solution to political problems whose fundamental importance

31 One contemporary example of the rejection of liberal values which holds clear implications for the problems of legitimacy and political order is the various Islamic revolutions and similarly inspired political movements. But even within a catalogue of liberal values broadly conceived that would include the values of social and economic justice, their relative ordering as well as mutual inconsistencies, or the need for trade-offs between them, illustrates that the legitimacy of a given order always remains problematic.

32 See Albert, Traktat iiber rationale Praxis, 177-78. 33 This formulation has the advantage of not disputing the general or transhistorical

character of political theories or any of their elements in principle. By emphasizing the importance of the problem situation at hand, it is possible to avoid both radical relativist and absolutist positions while benefiting from the theoretical insights considered fundamental by each. The fact that many political theorists have made universal claims for their doctrines need not disturb us. There is no reason why we could not read them as making more or less general and context-bound, though not universal claims. At least in this respect we will not lose anything of significance by refusing to understand their theories as they were understood by their authors.



94 ANDREAS PICKEL

he may not have recognized. More specifically, his strong claim that "every theory of sovereignty omits to face a more fundamental question-the question, namely, whether we should not strive towards institutional control of the rulers by balancing their powers against other powers"-is problematic for at least two reasons.34 First, it is historically inaccurate in assuming that a necessary relationship exists between employing a theory of sovereignty and ignoring the problem of institutional control. Second, it violates his own problem-oriented method by assuming that, regardless of problem situation, the problem of institutional control is always the most fundamental question. The remainder of this study will focus predominantly on demonstrating the historical inaccuracy of Popper's claim. However, I should stress that an equally important purpose of my critical assessment is to demonstrate the relevance and fruitfulness of Popper's problem-oriented method for political theory.

Many classic political theories were written in times of fundamental crisis and profound change when the existing political order and traditional ideas of legitimate authority were under siege. Where the problem situation is thus characterized by a chronically unstable political order and an absence of workable alternatives, where the sources of political authority are essentially contested and where political violence and civil war rather than the abuse of power by traditional rulers hold society in a state of profound insecurity or even anarchy-in such a situation, the problems of order and legitimacy will always be fundamental.

However, Popper might nevertheless be correct in claiming that the problem of institutional control for these same reasons was ignored, and with the familiar, potentially fatal consequences. As we shall see, this problem was not ignored even by those who appear to be the most uncompromising proponents of the doctrine of unlimited sovereignty. It was, however, discussed within a problem context that included the problems of order and legitimacy. The adequacy of any specific solution proposed by political theorists of course remains open to criticism-a form of criticism that, as Popper himself has proposed, begins by reconstructing the problem context and attempts a critical evaluation of a proposed solution in the light of available alternatives. Such criticism, however, cannot proceed as if no other fundamental political problems in addition to that of institutional control ever existed.

Order, Legitimacy and Control: Bodin, Hobbes and Locke

This argument can perhaps be supported most effectively through a brief consideration of Bodin's and Hobbes's theories and their problem situations. Each defended the theory of sovereignty in its most radical

34 Popper, Open Society, vol. 1, 122.




and absolute form, and both share the reputation of having been oblivious to the problem of the institutional control of rulers. I will begin with a very general account of some common features of the problem situations faced by these two theorists in order to show why and how the problems of order and legitimacy presented themselves with such urgency-as a result of the "logic of the situation"35 rather than as a result of mistaken questions.

Both Bodin and Hobbes, as is well known, witnessed personally the violence and chaos of civil and religious wars. This would appear to explain their advocacy of absolute political power for the ruler. Their theories may thus be considered excessive responses to exceptional circumstances. Both, however, while responding to the manifestations of political disorder and fierce ideological struggle, did not simply advocate absolute power for the ruler. Rather, they fundamentally reconceived the traditional foundations of order and legitimacy that had failed to contain these conflicts.

The traditional power structure in the Middle Ages, in most general terms, was multi-layered and fragmented, composed of the universal secular and religious authorities of the Pope and the Emperor, the territorial ruler or monarch, and the nobility. "The older view of rule and power incorporated men's acceptance of the sway of authorities external to the community-of Pope and Emperor. This acceptance itself followed, however, from the segmentary condition of the community, a condition which involved the belief that the community and its ruler were subordinate to God and the law.""36 As F. H. Hinsley has pointed out,

in most of the kingdoms of Europe throughout the Middle Ages the king's specific title to rule... was obtained from the consent of the community itself in the form of its election of the monarch.... The ruler was absolute by modern standards..,. but the principle remained: a monarch who in the judgment of the community transgressed the law of the community ipso facto forfeited his right to rule, deposed himself .... [T]he need for consent whenever he departed from custom and existing law was strengthened at the same time, and in proportion, as the need for consent in the form of election at his accession was being weakened.... In their early struggles with their resisting communities, the monarchs were in practice too weak to set the principle of consent aside.37

In the late Middle Ages, the question "Who should rule?" centred on the problem of demarcating the political authority of secular and religious rulers.3" De facto political power was dispersed and the legitimacy of

35 "Situational logic" is one of the many most valuable methodological suggestions Popper has made for social science. See his Open Society, vol. 2, chap. 14, as well as "The Rationality Principle," published for the first time in English in Miller, Popper Selections, 357-65.

36 F. H. Hinsley, Sovereignty (New York: Basic Books, 1966), 100. 37 Ibid., 102-03, 106. 38 One of the central problems of political theory in the thirteenth and early fourteenth



96 ANDREAS PICKEL

political rule was debated in the framework of an overarching religious consensus. As Hinsley has further suggested. An actual balance of power between government and community prolonged into the sixteenth century both the belief that the Crown shared power with authorities external to the community and the conviction that within the community not even the monarch was released from the obligation and legal duties which an external law imposed on every man. It was for this reason that the traditional conception of Christian society as being in some way a single political community was not seriously challenged until then.... It was for the same reason that monarchical no less than "constitutional" and populist theory within the regional community stopped short of the claim to total power until the same date.39

Sectional and provincial political conflicts increasingly undermined the stability of the traditional power structure and turned into civil war with the complete breakdown of the religious consensus. Even the most fanatical and sectarian religious doctrine was advanced with the claim for uniformity in religion according to its own standards. "[A]rguments justifying tyrannicide, based on the old popular right of resistance but sharpened now by ideological zeal, were at last put into practice in religious wars; and..,. in their turn, the advocates of the royal position at last claimed for the monarch that absolute Divine Right to govern and make law which had not belonged to him historically.''40 The traditional political order, being fast outgrown by social and economic processes of differentiation within communities, had also lost its hitherto uncontested universal basis of legitimacy. The question of who should rule thus emerged once again as the paramount problem. The question was, how much power can be legitimately claimed by the Ruler and by the People.

There is an important assumption which was taken for granted that further explains why the question was posed in this way and not in the manner suggested by Popper. This was that the Ruler and the People were seen as two distinct personalities, each of whom had a legitimate claim to traditionally independent spheres of political power. As these separate spheres of authority and privilege increasingly came into conflict with each other, this medieval dualistic conception of political order proved divisive, presenting a major obstacle for a viable settlement of the opposing claims to supremacy. The legitimacy of the medieval dualistic order was based on a unified conception of Christian community which in the course of the Reformation had become essentially contested. The problem of order was thus compounded by the problem of legitimacy.

century was the relationship between religious and secular powers, that is, the demarcation of their respective domains of authority. It was among the central problems of Thomas Aquinas, Dante and Marsilius.

39 Hinsley, Sovereignty, 109-10. 40 Ibid., 115.




Machiavelli took a crucial step toward resolving the dilemma inherent in this dualism by removing it from its religious context of legitimation and providing a purely secular conception of political power. His bad reputation as an apologist of amoral political rule can be explained in terms of this radical shift in legitimation contexts. The moral standards to which political rule was to aspire were not traditional Christian virtues but secular political virtues that would maintain order and territorial integrity in changing historical problem situations. An equally radical secular legitimation of political authority was not to be proposed again until Hobbes, whose political doctrines encountered a similarly unfavourable reception. It is clear, however, that this was a theoretically (if not yet politically) promising route, circumventing what had become the explosive ideological ingredient in the political situation. The greater direct influence of Bodin on early modern political thought may in part be due to the fact that he succeeded in dealing with the dilemma inherent in the medieval dualism of Ruler and People-the problem of order-without fully cutting it off from its religious context.41

Bodin's theory of sovereignty can be easily misinterpreted as a resolution of this dilemma in favour of absolute supremacy for the monarch at the expense of the People. Although Bodin did argue for monarchical sovereignty and was convinced that political power came from God, he was not a defender of the Divine Right of absolute monarchical rule. The concept of sovereignty provided the basis for a new way of conceptualizing the nature of political community and political power.42 The central thesis of his theory of sovereignty was that political power cannot be divided, that "puissance publique" must be unitary and singular, and that it is inseparable from the state. The assumption which fundamentally distinguished this thesis from the Divine Right doctrine concerns the nature of the political community. In the old view, the community consisted of two personalities. The Divine Right thesis, by investing all power in the personality of the Ruler, was a claim for absolute power of the Ruler over the People. (With a reversal of roles, the same applies to the popular rights doctrines, with the paradoxical result that the People are claimed to have supremacy over

41 Another important reason, of course, was that Hobbes, unlike Machiavelli, had completed the conceptual breakthrough towards a theory of the impersonal sovereign state. Machiavelli's conception of the state was still based on the medieval dualism, that is, political power was held either by the Prince or by the People (republican government), or through an institutional power-sharing based on the classical mixed constitution. See, for example, Harvey C. Mansfield, "On the Impersonality of the Modern State: A Comment on Machiavelli's Use of 'Stato,' " American Political Science Review 77 (1983), 855.

42 The notion of sovereignty was first formulated under the Roman Empire from the first century A.D. "in much the same way and by much the same process." See Hinsley, Sovereignty, 42-44.



98 ANDREAS PICKEL

the People.43) In Bodin's view, the dualism is replaced with a unitary conception of the body politic as composed of both ruler and ruled. The claim for sovereign power is therefore not a claim for the absolute supremacy of one part over the other. Since the political community is conceived of as one undivided and inseparable whole, the sovereignty of public power is an expression of the character of the political community.

This reconceptualization had far-reaching implications. By declaring all authority to rule within the community as "puissance publique" and subjecting it to the disposition of the sovereign, an independent right to rule could no longer be claimed. In the actual situation of the sixteenth and later centuries-not only in France but in continental Europe as a whole-it concretely meant the juridical elimination of the legally autonomous and independent rule of the nobility over land and people, the so-called feudal powers, and the end of an independent "puissance publique" of the churches.44 As J. H. Franklin has pointed out, "Bodin wrongly thought that this authority must be vested in what we would call the government."45 He preferred a sovereign monarch who ruled legitimately, that is, who would give "proper recognition in the common good to the rights of his subjects and to the customary rules and basic laws of the body politic, in which accordingly there would be accepted limits on royal power, and in which accordingly the sovereignty would be exercised through institutions which knitted the government and the community together."46

Bodin's preference, it seems, is neither logically entailed nor in any way institutionally guaranteed by his theory of sovereignty. On the contrary, Popper's criticism would appear to be justified in that by proposing a theory of sovereignty, Bodin failed to face the question of the institutional control of the sovereign ruler. While not in fact ignoring this question, Bodin's answer may certainly be considered inadequate.47 The limitations on the proper exercise of sovereign power-natural law as well as the customary law of the community and the property right of its citizens-in no way restrict sovereign power itself. However, they led Bodin to make "that distinction which further emphasizes how markedly his theory of sovereignty advanced beyond previous doctrines of rule-the distinction between forms of body politic and forms of

43 On this paradox and its resolution through a theory of popular sovereignty, see comments on Locke below.

44 Helmut Quaritsch, Staat und Souveriinitit (Frankfurt: Athenium, 1970), 269. 45 Julian H. Franklin, Jean Bodin and the Rise of Absolutist Theory (Cambridge:

Cambridge University Press, 1973), 108. 46 Hinsley, Sovereignty, 124. 47 Bodin did address the question of tyranny explicitly, and came to the conclusion that

while some minor forms of resistance to the sovereign were admissible, removal or tyrannicide were not. See Quaritsch, Staat und Souveriinitiit, 319-33.




government."''48 Sovereignty creates only a certain "formal" structure of power; the "material" content or the quality of sovereign rule is in this way not provided for or guaranteed. Sovereignty only makes it possible that binding decisions for all can be made and implemented.49

Popper's criticism thus only affects the "material" content of Bodin's political theory. Its "formal" structure, Bodin's theory of sovereignty, in principle remains open to being filled with a "material" content that more adequately fulfils the requirement of institutional control.50 The argument that the theory of sovereignty itself contradicts any institutional controls on the exercise of sovereign power overlooks that it is a normative51 theory of the nature or form of political power rather than of its exercise or content.52 It is in this capacity that Bodin's theory of the secular structure of power provided the framework for a solution to the problem of order. By contrast, his solution to the problem of legitimacy-with its assumption that political power comes from God, that the political order is based on a contract between Ruler and People, and with its emphasis on natural and customary law-remained largely within a traditional context. Nevertheless, both the origin of sovereignty (the problem of legitimacy) and its exercise (the problem of institutional control) would be fundamentally reconceived by subsequent political theorists on the basis of Bodin's solution of the problem of order.53

Hobbes had little to say on the exercise of sovereignty that could be considered a satisfactory solution to the problem of institutional control

48 Hinsley, Sovereignty, 122-23. 49 Quaritsch, Staat und Souveriinitiit, 512. 50 "It remained possible for subsequent writers to obscure his doctrine by misusing

monarchical sovereignty as the justification of absolutism-or by the populist arguments which they brought against this misuse .... But it was not for nothing that subsequent theorists would be unable to ignore the notion of sovereignty or to alter Bodin's statement of it to any significant extent-that the further history of the

concept..,. is a history of its use and misuse in varying political conditions and not of restatements of it in different or novel terms" (Hinsley, Sovereignty, 124-25).

51 As such, it does not make the claim that political power is in fact sovereign in the empirical sense which Popper has criticized (see above)-it only means that there can be no rightful or legitimate claims for political power that do not originate in and are sanctioned by the sovereign.

52 Evidence for this claim from the history of political theory will be presented below. 53 However, Bodin's reformulation of the problem of order (that is, his conception of

absolute sovereignty) did not become prevalent until the end of the seventeenth century; prior to that time, conceptions of limited or double sovereignty were still widely advocated. As Hinsley has pointed out, "It was clear at the time, on the other hand, that this mixed government and similar compromise theories failed to check dissension, as they failed to avert the Civil War. And it is now clear that this was because they merely extended the dualism which it was the aim of the concept of sovereignty to overcome-merely shifted the conflict between dualism and the idea of sovereignty-by seeking to split or subdivide the rulership itself when it was in practice impossible to limit or subdivide the government power that was coming to be seen as sovereign power" (Sovereignty, 138).



100 ANDREAS PICKEL

of the ruler. To suggest that this was outside the realm of his concerns in no way exempts his theory from criticism-whether applied to the historical problem situation of his time or to any other context for which it may be considered relevant. According to one influential reading of his theory, Hobbes's sovereign state was conceived as a stable framework for an emerging market society freed from traditional political obstacles for a life of bourgeois competition and acquisition.54 While the historical plausibility of this reading has been seriously undermined,55 it does suggest one way of understanding a crucial aspect of his theory of sovereignty. In Hegel's well-established terminology, it is Hobbes's fundamental distinction between the state and civil society.

The problem of order, at a theoretical and ideological level, resulted from the medieval dualism that located the sources of political authority simultaneously in the Ruler and the People. Hobbes's immediate predecessors56 had sought to evade the politically fatal consequences arising from the contest over the precise location of legitimate authority in practice by proposing a solution to the problem of order that did not require a definitive answer to this divisive question.

[T]he legitimacy of government depended not on any a priori views about the source of political authority but on the existence of a "mutual relation of Protection and Allegiance." . . . Their aim, at the outset of the Interregnum, was to show that men should obey the powers that be so long as those powers performed their government function effectively. The second aim was that this "mutual relation" required that the supreme power of making laws for the political society must lie legally with the Ruler, whoever the Ruler might be and whatever form the rulership might take....57

Hobbes's logically rigorous statement of this doctrine of sovereignty was premised on a conception of the People that extinguished its corporate personality. He presented the People as a collection of individuals who by agreeing to give up their natural rights created an impersonal sovereign lawgiver, the state. This most radical solution to the problem of order has generally been found politically unacceptable and morally abhorrent in its implications. In this respect, it is the single

54 C. B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962). See also Macpherson's introduction to Thomas Hobbes, Leviathan, ed. by C. B. Macpherson (Harmondsworth: Penguin, 1968), esp. 9-63.

55 See in particular William Letwin, "The Economic Foundations of Hobbes' Politics," in Maurice Cranston and Richard S. Peters (eds.), Hobbes and Rousseau (Garden City, N.Y.: Anchor Books, 1972), 133-64; Quentin Skinner, "The Ideological Context of Hobbes' Political Thought," Historical Journal 9 (1966), 286-317; Keith Thomas, "The Social Origins of Hobbes' Political Thought," in K. C. Brown (ed.), Hobbes Studies (Oxford: Blackwell, 1965), 185-236; Neal Wood, "Hobbes and the Crisis of the Aristocracy," History of Political Thought 1 (1980), 437-52.

56 Writers like Anthony Ascham, John Rockett and Henry Parker. See Hinsley, Sovereignty, 141.

57 Ibid.




most convincing case from the history of political theory supporting the validity of Popper's criticism of the theory of sovereignty. Hobbes's radical statement of sovereignty, however, as subsequent theorists have demonstrated, is not the only logically consistent statement of the doctrine. (We will turn to this point momentarily.) The importance of Hobbes's theory of sovereignty lies in its radical reconceptualization of the grounds of legitimacy. By locating the source of political authority not, as Bodin had done, in natural law or tradition but in a rational act of naturally free and equal individuals, Hobbes completed the shift from theological and collectivist to rationalist and individualist principles in political theory. As such, the theory of sovereignty, in addition to being a solution to the problem of order, established a new solution to the problem of legitimacy.

We are, however, still confronted with Popper's criticism. Granted that both problems may be fundamental, and the theory of sovereignty as formulated by Bodin and Hobbes provides an adequate solution, it fails-and perhaps for that very reason-with respect to the problem of institutional control. Even if the theory of sovereignty is not logically inconsistent or paradoxical, it remains problematic because it is a "bad research programme" for political theory; that is, the problems considered fundamental do not include that of control, and theories following this approach therefore systematically fail to come to terms with it. Popper's criticism, while no longer a logical refutation, may nevertheless have identified an endemic or paradigmatic blind spot in the theory of sovereignty.

The theory of sovereignty in Locke's constitutionalist formulation demonstrates, however, that it can provide a basis for an adequate and logically consistent solution to the problem of the institutional control of the rulers-in addition to the problems of order and legitimacy. The prerequisites for Locke's58 theoretical breakthrough are already contained in Bodin's statements of the theory, in his distinction between body politic and ruler, or political society and state. As noted above, Bodin wrongly assumed that sovereignty must inhere in the government. As a result, he was unable to propose effective institutional safeguards for protecting what he believed to be the rights of the citizens against infringement by the sovereign. The specific problematic for which Locke developed his theory of sovereignty can be characterized as containing all three fundamental problems of political theory in a prominent and acute form. In one sense, the problem of institutional control was perhaps the most fundamental of the three since Locke sought a solution to the problem of the right of resistance in a mixed

58 Locke's conception of sovereignty, as J. H. Franklin has shown, was already worked out by George Lawson, a political moderate writing in the later Interregnum. See Julian H. Franklin, John Locke and the Theory of Sovereignty (Cambridge: Cambridge University Press, 1978).



102 ANDREAS PICKEL

constitution. Franklin has described Locke's problem situation in this way:

The Whigs... , refusing to acknowledge constituent power in the people as a legal entity distinct from Parliament... wished to hold that the king was independent of the two houses in order to account for the mixture of the constitution. They wished also to hold that a king could be removed for cause and that the law of succession could be altered. But they could not combine these two desiderata without admitting that the government had been dissolved.59

By vesting constituent power (ultimate sovereignty) in the People rather than in Parliament, Locke was able to assign legislative supremacy (delegated sovereignty) to Parliament as the representative of the People and partial supremacy to the king as the bearer of executive power. "The People was the latent and, on the dissolution of the government, the active sovereign; the legislature was the supreme organ of government so long as government endured, but could be dissolved by the People at any time; the executive power, held on trust, was supreme only so long as it operated within the legislature's law."''6

Locke, to be sure, did not propose a theory of limited or mixed sovereignty in an attempt to exempt certain rights or spheres of authority from the reach of sovereign power by limiting or dividing constituent power itself. This would have simply recreated the problem of order that the concept of sovereignty was designed to solve. Locke's solution in principle to the problem of control through the theory of sovereignty depends on his clear and consistent distinction between constituent and ordinary power. The question of who should rule on this basis can be formulated as one of who should be the bearer of ordinary power. The answer, whatever specific form it may take, does not give rise to the paradox of sovereignty precisely because the bearer of ordinary power is not sovereign, that is, free to determine a different form of government.

The People, the bearer of constituent power, cannot for practical purposes rule itself. Yet it retains the right to dissolve government and to modify the constitutional principles according to which the government rules. It is thus a general solution to the problem of the institutional control of the rulers by establishing constitutional limits on the exercise of sovereign (legislative and executive) state power. It is the principle that "no representative body, no matter how democratically elected, may alter constitutional procedures, or freedoms peculiar to the system that are constitutionally reserved to individuals, without the consent of the general community. In one form or another, this principle is now accepted in all constitutionalist systems.'""'61

59 Ibid., 116. 60 Hinsley, Sovereignty, 146. 61 Franklin, John Locke and the Theory of Sovereignty, 124.




Popper's claim that "every theory of sovereignty omits to face a more fundamental question-the question, namely, whether we should not strive towards institutional control of the rulers by balancing their powers against other powers"-must therefore be rejected.62 The first assumption underlying this claim-that there is somehow a necessary relationship between employing a theory of sovereignty and ignoring the problem of institutional control-is untenable. The reason, as I have tried to show in this section, is that the theory of sovereignty historically came to solve the problems of order and legitimacy. Moreover, if theorists such as Bodin and Hobbes may be criticized for having failed with respect to the problem of institutional control, it is not because they employed a theory of sovereignty. Locke's constitutionalist statement, finally, created the framework for thinking clearly about the problem of institutional control. It was his theory of sovereignty that made the problems of order and legitimacy sufficiently unproblematic63 to focus on what Popper proposes as the most fundamental problem of political theory.

The second assumption underlying Popper's claim-that, regardless of problem situation, the problem of institutional control is always the most fundamental question-is also untenable. It cannot be the most fundamental problem of political theory in the absence of an adequate solution to the problems of order and legitimacy, as I believe the history of the theory of sovereignty illustrates. This substantially weakens Popper's general case for his new approach to political theory.

Concluding Remarks

The political problem situation at the time Popper wrote The Open Society and Its Enemies (first published in 1945) provides important clues as to why he considered the problem of institutional control to be the most fundamental problem for political theory. Yet it is evident that the problem situation in Western constitutionalist democracies has changed in many crucial respects and that the problems of order and

62 Popper, Open Society, vol. 1, 122. 63 Of course Locke's comprehensive theory of sovereignty has not always been fully

understood, nor has it gone unchallenged. "[T]he abstract concept of the state as a moral person, and even the doctrine of sovereignty itself, were blunted and obscured when Montesquieu, like the Founding Fathers of the American Constitution after him, mistook the English principle of mixed government, based on the separation of different government powers, to be a doctrine resulting from and justifying the deliberate division of sovereignty itself among several independent owners" (Hinsley, Sovereignty, 152). Rousseau rejected not only any division of sovereign power but also any constitutionalist elements such as the division of powers or representation. "Reversing Hobbes's thesis, in which the state dominated the community which created it while remaining separate from it, he allowed the community to swallow up the state-and left the community with no organ capable of exercising power" (ibid., 155).



104 ANDREAS PICKEL

legitimacy once again have emerged as fundamental problems of political theory.64 Perhaps the problem of institutional control is most relevant to the present problem situation in the socialist regimes. As the current political and economic reform efforts in the Soviet Union indicate, the lack of accountability and responsibility on the part of the rulers has seriously undermined the stability and legitimacy of the socialist order.

One conclusion of this study is that Popper's specific formulation of the fundamental problem of political theory is inadequate as a general approach to political theory because it does not take into account the problems of order and legitimacy. I would suggest that in an important-though clearly not in Popper's-sense, these two problems require foundationalist and justificationist answers. That is to say, the problem of order is the problem of establishing a secure foundation or constitutional framework for politics, and the problem of legitimacy concerns its normative justification. It is precisely at this point that there exists a potential source of confusion.

I have criticized Popper for failing to take into account the problems of order and legitimacy. The reason for not recognizing them as fundamental may be the long tradition in political theory of providing answers to problems that invoke epistemological authorities in their support. Thus, Bodin appealed to God and natural law, Hobbes to the infallible power of reason, Locke to natural law; and the same point could be made with respect to most major political theorists. But rejecting the alleged certainty theorists sought to establish for their solutions to these two fundamental problems by reference to infallible epistemological authorities does not imply that we cannot treat their solutions as conjectures nor-and this even more importantly-that these problems themselves are not fundamental.

The problems of order and legitimacy are not primarily problems of knowledge. The "foundationalism" and "justificationism" to which they give rise are not-at least not necessarily-epistemological. Solutions to these problems are first and foremost solutions to institutional and normative problems: solutions to the problem of order propose an institutional foundation or framework for politics to provide the necessary preconditions for political stability and good government;

64 The problem of order is raised in some conservative attacks on liberal democracy which, while explicitly bemoaning the demise of civic and moral virtues, implicitly consider the liberal political order as the fundamental problem. For a recent collection of contributions to this debate, see Kenneth L. Deutsch and Walter Soffer (eds.), The Crisis of Liberal Democracy: A Straussian Perspective (Albany: State University of New York Press, 1987). There is a large and growing literature on the crisis of capitalist democracies and the welfare state. For a recent contribution that is an excellent attempt to define the present problem situation for political theory, see Claus Offe, "Democracy against the Welfare State? Structural Foundations of Neoconservative Political Opportunities," Political Theory 15 (1987), 501-37.




solutions to the problem of legitimacy propose a normative justification of why citizens should accept such an order. The adequacy of any such solution depends on how well they define and solve their (institutional and normative) problems, not on the adequacy of their epistemological authority.65 Popper suggests that the regulative principle for knowledge claims is truth. A regulative principle for solutions to the problem of order would include political stability, and the regulative principle for solutions to the problem of legitimacy would entail consensus.

Another conclusion is that any solution to these fundamental problems of political theory necessarily also constitutes a knowledge claim and it is here that Popper's fallibilism becomes crucial. Political theory's philosophical presuppositions and normative claims, even if empirically irrefutable, are nonetheless open to criticism. They may be logically inconsistent, they may contradict scientific theories, they may fail with respect to the problems they are designed to solve or they may even be without a clear problem. Popper's problem-oriented method, which the present article has utilized, is a powerful tool for evaluation and criticism in political theory. Its merit may lie not so much in providing an instrument by which political theories can be refuted-let alone conclusively falsified-but as a general approach for helping to focus debates in political theory. Moreover, problems and problem situations may serve as a metacontext that might conceivably break down barriers separating different debating traditions and perspectives in political theory-liberalism, Marxism, the new communitarianism and post-structuralism. It may facilitate communication and foster criticism by requiring an explicit definition of the-philosophical, theoretical, moral and political-problem situation as well as of what in this context are considered the most fundamental problems of political theory.

Contemporary political theory in Western constitutionalist democracies, it seems, is in search of its present problem situation.66 Liberal and Marxist definitions are in fundamental respects inadequate while neo-communitarian and post-structuralist approaches basically lack any clear definition of the political problem situation. One might therefore be tempted to conclude that there are no fundamental problems of political theory today. A more challenging conclusion, however, is that they still need to be identified.

65 This is not to say that epistemological assumptions may not affect substantive political doctrines, or, as Hume held, that philosophical and political ideas are independent. On this general problem, see J. W. N. Watkins, "Epistemology and Politics," Proceedings of the Aristotelian Society 58 (1958), 79-102.

66 See, among others, Dunn, Modern Political Theory; John R. Wallach, "Liberals, Communitarians, and the Tasks of Political Theory," Political Theory 15 (1987), 581-611; and John G. Gunnell, "In Search of the Political Object: Beyond Methodology and Transcendentalism," in John S. Nelson (ed.), What Should Political Theory Be Now? (Albany: State University of New York Press, 1983), 25-52.



never ask who should rule: karl popper and political theory

Documents