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Erik Moberg ã:
A Theory of Democratic Politics
 
 

2 - LEGAL AND INFLUENTIAL POWER

In a democracy ruled by law the legally established institutions of the state, such as the legislature and the executive, have, in large and specified areas such as lawmaking, power in a very different sense than other actors in the community. That it is so is very important for a variety of reasons. In particular, in this context, it is this fact which makes possible the conception of a theory about constitutions and their effects. If legislatures and executives had not had power of a particular kind, which we may call legal power, such a theory had hardly been possible.

An important characteristic of the legal power is that it is specified by legally binding rules. If, for example, the constitution says that a majority of the legislature is entitled to institute laws of a certain kind, and a majority in fact decides to institute a law of that kind, then such a law really comes into existence. In that sense, and in this case, a majority in the legislature has all the power needed for instituting laws of the kind intended. Similarly a constitution usually stipulates the decisions or actions which can be undertaken by the executive alone, by the legislature alone, by the legislature and the executive in combination, and so on. All the power needed for these decisions is thus present in the various public institutions and the exact distribution of that power is spelled out in the constitution.

This, to be sure, does not preclude that public institutions can be influenced by other actors in the society. When for example the individual members of the legislature consider whether they, in their voting, shall favor or oppose a particular law, they are likely to take the opinions of people in their constituencies, of sponsors, of lobbying groups, and so on, into account. Of course I am not denying this. What I am saying is that if a majority of the legislature, if that is what is required by the constitution, votes in favor of a proposed law, then the proposal passes, otherwise not, independently of what lobbyists, sponsors and common voters think. Or, in other words, lobbyists, etc., cannot affect things in any other way than by influencing the relevant members of the legal public power structure. All analysis of power in a community ruled by law therefore has to start with a careful delineation of the legal power as determined by the constitution.

This principle of separating the legal power, and starting with it as a prerequisite for all other discussions about power, is at the same time so important and so overlooked (examples in part 2.2), that it deserves a name of its own, for example the legalistic principle.

In order to clarify things further it is expedient to distinguish between different kinds of legal power. So far I have given examples of what might be called decision-making power. Actors who are explicitly mentioned in the decision rules enjoy that kind of power. In addition to this it is however also important to emphasize the importance of procedural power. Some actors may for example be authorized, formally, to make proposals to the decision-makers, and others may be entitled, again formally, to express their opinions about proposals. These kinds of rights related to the procedure do also constitute power, and since they are prescribed in the constitution they are examples of legal power. Some individuals have, of course, both decision-making power and procedural power.

The positions held by individuals in a legal power structure may be called legal power positions. In democracies, at the national level, there are two types of legal power positions which are particularly important, namely the positions as legislators in the legislature, and the positions in the executive. For countries which have a constitutional court, the positions as judges in those courts should be added to the legal power positions. All of these positions are associated with decision-making power. In addition, it is also common that some persons, for example heads of executives, speakers in the legislature, and chairmen of the committees in the legislature, have a considerable amount of procedural power. The constitutional rules often warrant certain competences to the incumbents of these positions.

It is important that power basically is attached to, or linked to, positions rather than to persons. Within such a structure a person thus has power only because he or she has been appointed to a certain position, and only for the period prescribed by the rules. This contrasts sharply to systems in which persons have power because they belong to a certain family, or because they have taken it, for example by violent means, and where they may keep that power for life, unless it is taken away from them by somebody else. In such systems the power is linked to a person, or a family, rather than to a position in a legal structure. This principle of linking power to positions, rather than to persons, is obviously immensely important for the functioning of democracy and for the legal security in a society.

Now, as I have already indicated, the holders of the legal power positions can, of course, be influenced, or even controlled, by outsiders such as for example unions, or big firms, or even influential individuals. Those influencing the holders of the legal power thus also have a kind of power, which we can call power of influence or influential power. Such power may be weak and partial, but it may also be complete in the sense that whenever the holder of influential power tells the holder of legal power to behave in a certain way, for example to vote in a specified manner, the holder of legal power does so. Even in this last extreme case the distinction between legal and influential power, and the existence of both, is still fundamental. This is so since the holder of influential power, according to our assumptions, can act only by influencing the holder of legal power - he cannot himself do what the holder of legal power can do.