In its most general sense power is the ability to influence people or things. I have power over you if I can make you do something you otherwise would not do. In a more complex fashion, I can influence events by influencing the people who make relevant decisions and take relevant actions. But this is not the only kind of power I can exercise. I can use one kind of power to move you and another to move, say, a heavy box. These two types of power clearly are related; power means the ability to move something—generally outside myself. That said, I move you in very different ways by persuading rather than by simply changing your physical location; and I move you in a still different way if I threaten to harm you if you do not do as I ask.
To exercise power over persons as if they were mere objects should be seen as morally reprehensible. Thus, corralling people into train cars to ship them off to work camps, treating them like so much livestock or so many labor inputs to be acted upon, clearly seems wrong. This is where the theory of consent, first put forth by canon lawyers during the medieval period, gets its power. When one consents to an act, one becomes in an important sense an author of or participant in that act. This is why it often is said that democratic governments have more legitimate power than other polities; the government’s authority being rooted in consent, its actions are deemed legitimate as a matter of course. There is danger in this view because it tends to substitute political approval of some (necessarily imperfect) kind for any standard of rightness concerning the rule itself. Moreover, it tends to take political consent as the only important consent, ignoring and undermining the democracy of custom, by which a people’s traditions develop over time through common usage and even disuse. Perhaps most dangerous, consent generally is seen as a purely political concept, but today it often is used to extend the power of politics into areas where politics is not properly concerned (e.g., familial relations).
One of the many flaws in the contemporary understanding of politics is the lack of attention it pays to the distinctions among different kinds of power, both in and out of the political sphere. This is especially true where law is concerned. Laws being general rules laid down by those in political power, consent seems to legitimize almost anything put into the form of law. But what is the form of law, and, for that matter, what makes for genuine consent? These questions have been raised to fever pitch by recent ideological trends.
For decades now, most law students have been taught that law itself is merely another form of power, by which the government moves people to act in certain ways through the threat of fines and imprisonment. That we consent to the laws we must follow means little, on this reading, because that consent is only abstract—many of us do not vote and, even if we do, electoral politics are highly imperfect. What is more, the majority of the people may vote on the basis of ingrained prejudices or other impulses that are in some sense unfair, rendering the exercise of power over me illegitimate because it stems from impure hearts.
And if law is mere power, with no intrinsic legitimacy, how are we to achieve our goals? By exercising other forms of power as necessary to overturn, undermine, or otherwise effectively replace the law. Thus, manipulations of the language of the law (“living constitutionalism”), protests, violence, and open manipulations of our mass-media infused crowd culture become favored and robust tools for achieving one’s ends.
The excuse for these kinds of tactics is, of course, that politics already is about power, that those with money use it to purchase influence, and that the only way for the less well-off to counter this power is to organize “outside the system.” Given the clear collusion between congressional leaders, our imperial president, and corporate interests opposed to the majority of these leaders’ own constituents on issues like immigration and the appropriate treatment of failed/fraudulent bankers, skepticism about the value of consent is understandable. Unfortunately, too many people have concluded, not that there are corrupt people in power, or even that our political system is in need of significant reform, but that the entire system, and law itself, is unalterably corrupt. Such a view excuses, in some people’s minds, the cynical use of power, including violent rhetoric, intentional misreading of law and custom, and even the selective enforcement of laws. Thus, to take one example, the Christian clerk goes to jail for following her conscience and centuries of legal precedent in refusing to grant marriage licenses to same-sex couples, whereas millions of people in this country are intentionally, yet illegally, left free and even spared reporting to the authorities for other crimes they commit.
The claims, of course, are that some laws are just and others are not, or that those with the power to enforce the law may call “prosecutorial discretion” their own biased policy choices. Yet, it is precisely in the area of law and legal enforcement where power is intended to be exercised with relatively little discretion, whereas in areas of personal relations, such as that between a baker and potential customer (say, ordering a wedding cake) that personal discretion is intended to be paramount. I use the term “intended” here to denote the distinction, all but erased in contemporary ideological debates, among types of power. Where the state uses law, it must recognize its own power (the threat of force) and responsibility to maintain equality of treatment (“treat like cases alike”) if the result is to be law, rather than the will of the powerful. Where personal and customary relations are concerned, power may still be exercised, but it is of a fundamentally different order from that of the state. Free markets leave potential customers with various other choices. Freedom of movement allows those uncomfortable in one kind of community to move elsewhere (within the law), and freedom of speech allows dissenters within any community to work to change it.
The supposed “empowerment” of the people through electronic media has aided and abetted the increasing confusion of types of power in our increasingly crowd-centered and celebrity-hungry culture. Thus, for example, a few months ago an article in The Atlantic highlighted the public “power” of various celebrities. Among the clear “winners” was the actress Eva Longoria, who apparently is quite well known on account of her role in a prime time soap opera some years ago and for her appearance in various entertainment venues and commercials since then. Ms. Longoria, the article noted, has translated this quite thin and transitory popularity into what it deems great power on account of her “millions of twitter followers.” Following neither twitter nor formerly well-known actresses, I can attest to the power of these new media only in derivative fashion. What seems clear is that Ms. Longoria, having somehow gotten the notion that her talents in front of a camera (whatever they may be) justify her in telling other people what to believe and do, has harnessed the “power” of celebrity to found an activist political organization and go about pushing her ideology on the grounds that “the people”—or at least the people with nothing better to do than follow her on twitter—support said policies. Few people of any intellectual substance care what Ms. Longoria, or any other Hollywood celebrity, thinks about much of anything. But the ability to coagulate (the word choice is intentional) supporters through social media and use one’s money to host various spectacles “counts” in contemporary society because it attracts money and publicity. The people involved, the “followers,” are mere statistics or moved objects led around by the power of celebrity.
The crowd culture of social media gives individuals the illusion of influence (the power to “comment” or even create a “meme” influencing approximately no one save in instances as rare as winning the lottery). Members of this culture are little more than objects, moved by those seeking to exercise some form of power. It is unfortunate, if not downright dangerous, to confuse power over person with power over object. Indeed, the exercise of power over persons as if they were mere objects may be considered a proper definition of oppression. The oppression is mostly meaningless when exercised by aging celebrities with little in the way of demands or purpose, save that it further blurs proper distinctions among types of power. And failure to make such distinctions, or at any rate to draw the proper conclusions from them in regard to what power is legitimate, has become increasingly salient and troubling in our atomized, mass society.
The mistaken views that consent must be political consent and that consent may justify most any law helped lead to the legitimation of law as a form of public action. After law had been extended far past its appropriate realm, of setting down such limited rules as are necessary to maintain peace, order, and the safety of more primary associations of life, it increasingly came to be not law, which must be enacted through proper, constitutional means toward ends approved by said constitution and the customs and traditions of a people, but power. And so was lost an essential ordering institution of any free society. As French philosopher Bertrand de Jouvenel lamented, law has become jungle.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.