The Law of Rule: The Fourth Faculty of Governance

Prepared for CFFN, NRN-Canada, and NRNA as an input to the constitutional development process in Nepal

Ottawa, Canada
2009 March 04

Abstract

Modern thoughts have considered three independent faculties in governance: Legislative, Executive and Judicial. The ancient philosophers, however, seem to have been more advanced than us in discovering the fourth faculty in governance on top of these three. This article picks up on that ancient wisdom to propose a system of governance with four independent faculties: executive, judicial, legislative, and innovative.

Introduction

There are two contending ways of looking at ancient philosophies. The first view, heard in a proverb of the West, which says “old is gold”. The second view is prevalent in developing societies where human sufferings are acute and it believes that “the old is obsolete”. The reason the developing societies are largely fed up with the “old” is because the rulers were justifying the sufferings of the people on the false interpretation of the ancient philosophical knowledge. Consequently, there is little understanding on how to relate the ancient philosophical knowledge for the advancement of modern societies in order to answer some key questions of our times.

Why great empires and civilizations collapse, lose their knowledge and inventions, and start from scratch time and again? Is there a way to avert those recurring collapses? These questions were intriguing my mind for some time. Of these, the answer to the first I found in the ancient Chinese philosophy. This is the philosophy of Five Elements (Wu Xing), attributed to Master Zisi and Mencius, which has influenced China and South East Asia for two and a half thousand years. As per this philosophy, societies cyclically pass through five phases: innovation, growth, stability, discontent, and disintegration [1]. The relevance of the five element theory in contemporary governance is written in a separate article [2]. This article focuses to answer the second question, that is, to avert the eventual collapse of a civilization. And this answer is based on ancient Hindu philosophy.

The idea presented in this article is the product of some studies done out of curiosity in building societies of the future that prize in human equality and the separation of state and religion. These views are not born of any religious affinity. Manu Smriti [3] venerates the separation of people along religious caste groups, which is contrary to the notion of human equality. Those shortcomings make us question what worth there might be in such old religious doctrines. However, Bhagwad Geeta says, “the Brahman (ब्रह्म), the light of light seated in the hearth of all, is to be reached by knowledge” [4]. This leads me to think that all humans are equal and their qualitative difference relies primarily in the level of their knowledge, learning, and wisdom possessed during their lifetime.

Ancient Discovery of Innovative Faculty

The ancient philosophers had long known not only the three faculties of governance: executive, judicial, and legislative but also the fourth faculty – the faculty of innovation. Bhagwad Geeta said, “Whenever any being is born, it is from the union between the field (क्षेत्र) and the knower-of-the-field (क्षेत्रज्ञ)” [5]. And the text goes on saying why it is important to expand the field of knowledge so it can work on the field to give birth to new modifications and qualities in the field [6]. This appears to me as an answer to the question: “Where does invention live?”

Ancient philosophers were not only able to separate the material from the immaterial and the innovated from the innovator, they were also able to separate the innovator’s four faculties: “in-looker” (अनुमन्ता), “onlooker” (उपद्रष्टा), “fulfiller” (भर्ता) and “enjoyer” (भोक्ता) [6]. Despite owning largest of libraries and best of universities, we seem unable to understand the contradictory nature of the production and the innovation. Whereas the invention of a new product, service, theory, or idea happens mostly from a singular mind, the production of goods and rendering of services often requires hands of a large number of people. Thus invention is strongly rooted in individual humans while the production is strongly rooted in social group of humans. Therefore, it should be possible to produce more by creating better group (social) environment in a workplace that is full of peer pressure and expectations. On the other hand, it should be possible to invent more by freeing the self from external pressures, less perturbed minds, thinking beyond the norm, and independently intensifying the four faculties of an innovator: inlooker, onlooker, actor, and enjoyer. The production is better served by an obedient and organized mind whereas invention is better served by a suspicious and questioning mind.

Old texts, including Manu Smriti – the most reviled for authoritarian concept of rule, advocated special space for the faculty of knowledge and innovation. The seekers of knowledge and innovation were called Brahmanas, people “who know the sacred science, the Veda, (and) who fulfill their duties” [9], and who have “contentment, forgiveness, self-control, … wisdom, knowledge, truthfulness …” [10]. They said, “One should give, according to one’s ability, wealth to Brahmanas learned in the Veda” [11] who use speech as their weapons [12], and “To him let no man say anything unpropitious, nor use any harsh words” [13]. “If Brahmanas, who are Snatakas (graduates), are pining with hunger, or in want …, they may ask the king for them; if he is not disposed to be liberal, he must be left” [14]. “The property of a Brahmana must never be taken by the king” [15]. “A king must not even conceive in his mind the thought of killing a Brahmana” [16]. There is much wisdom to draw from old texts if we arm ourselves with an egalitarian notion which does not view Brahman as a caste group but as any human who perseveres for knowledge, innovation, and the understanding of the self and the world.

Reading of ancient texts has led me to imagine of a society with a provision for having a special space for people in the pursuit knowledge, science, philosophy, and creativity for the benefit of all humanity. How nice would it be if we fulfill the bodily needs of such people and give respectable space for them to prosper? Can there be any better way than having a formalized system to advance the pursuit of knowledge and innovation? The old texts convinced me that a faculty of innovation and inquiry should be independent from the three faculties: legislative, executive, and judicial. That would be a way to save our society from succumbing to shortsighted and material-hungry rulers.

The Missing Piece of Governance

With a hope of discovering the types of services a system of governance should provide to its people, I have tallied 28 interests of humans as shown in Figure 1. I found that, we as humans have four distinct types of needs. We have this urge to be a leader, executioner, or a successful person when things are going right. When something does not go as expected or fairly to us, we seek justice. Similarly, when we think that we have found a solution to something, we seek to institutionalize it through a system and want to immortalize it well into the future. However, when we feel that the system is not serving us well we seek to break the stranglehold of that restrictive system and we like to invent new ways of doing things. Having realized the value of the first three faculties – Justice, System, and Ambition – we seem to have invented three independent faculties in the system of governance. However, we seem to think that the innovation would come to us without any systemic provision to give this an independent status as enjoyed by the other three. Consequently, our wheel of prosperity remains imbalanced and stumbles upon obstacles and throws us off-track time and again.

Four Faculties of Governance

Figure 1 The wheel of progress – for everything we want, we also want a contradictory thing and thus a balance.

A contemplative investigation of human interests leads me to believe that for every interest we carry we also carry an opposite interest. And many of our interests are orthogonal to each other. Figure 1 is a logical portrayal of the competing, complementing, and orthogonal relationships of our interests. The diagram shows that human interests can be grouped into four categories: ambition, justice, system, and innovation. Ambition is what makes humans to be industrious and productive. Justice is what makes us respect each other and operate in an ethical space. System is what makes us successfully repeat our tasks or endeavors. Innovation is what makes us discover or create the “new”. And all of these interests must receive adequate room in an aspiring society that wishes to maintain a balance and achieve a sustained progress.

I discovered that ambition and justice are competing interests and so are system and innovation. Further, ambition can exist in the absence of a system or innovation but its scope is limited in the presence of justice. Our ambition can be viewed as to be opposed to justice and be orthogonal to system and innovation. Such relation is present for all four faculties including innovation. Orthogonality and distinctiveness of these four faculties makes them independent candidates in the realm of governance.

It appears that modern system of governance has developed three independent faculties: executive to represent our ambitions, judicial to deliver justice, and legislative to develop a system. However, the faculty of innovation seems to be missing although it should have received equal importance as the other three, warranting its independence. I view this as having forgotten a major sector in the wheel of prosperity; a spoke fallen off from a four spoke wheel.

Legislating Nature of Contemporary Governance

Having come to love the ideals of democracy, we have come to think that an assembly of humans could be an innovator. Thus we seem to expect our legislative assembly, which is mandated to legislate the laws to constrict us or prohibit us from doing things, to be innovator and free us from our sufferings. It is like asking a group of chosen hundred literates to become Shakespeare and Dante. The nature of a legislative assembly is to make more laws and not less. And this nature contradicts with our notion that it be innovative. That is the reason a new faculty is required to counter the presently established legislative faculty whose utility is already well known.

Ancient philosophy of Vedanta says, “even a wise man acts in accordance of his nature; beings follow their own nature; what can restraint do? [7]” This implies that making laws ever larger in number and complexity is not going to deliver us a desired rule. To understand this wisdom, look at the USA, the most prosperous country that is looked up by all developing countries as the land of the “rule of law”. It has 1 in 31 adults in criminal justice system, which takes $68 billion a year on corrections [8]. At this rate, my village in Nepal of about 1500 people would have had almost 50 people in incarceration. As much there is the greater desire to tame the human nature through laws in the USA, there are accordingly larger number of crimes and criminals.

This shows that the path of legislating everything taken by industrialized societies is not after all sustainable in the long term. Metaphorically comparing with my village, modern legislators are creating myriads of ropes to restrain every cow without authorizing any independent body to find or verify if one or two ropes would have been sufficient. Today, there are too many hands to tie the knot but no hands to untie them. The craze for the “rule of law” has gone as far as to actually constricting the faculty of knowledge and innovation. However, even the most draconian of ancient Eastern philosophies were aware to not constrict the faculty of knowledge and innovation.

Innovation in Contemporary Governance

In contemporary governance, innovation is put under the jurisdiction of the executive whose primary nature is ambition. Consequently innovation is done as sanctioned by the executive. Today, an industrialized Canada mandates Ministry of Industry to look after the innovation. The ministry looks up to the industries, whose primary aim is to produce and profit, for innovation. The research, thinking, and innovations get contracted out to the best proposal producers, organizations with “bigger muscles, better writers, and better lawyers”, and to the already “familiar” and the “proven”. Consequently, there is slow exodus of brain from the fields of fundamental sciences like physics, chemistry, mathematics, philosophy and so on, whereas there is crowding of talented people in fields of law, management, accounting, writing, marketing, and sales. The individual inventors in the society are often forced to either be subservient to the large corporations or to let their inventions die along with their own death. This is a recipe that is choking innovation and propelling the country from the age of enlightenment to the age of instant gratification. Today, there is so much craze to be Britney Spears and the craze to be Einstein has gone out of fashion.

Once a producer of scientific inventions myself, I have come to witness that innovations of industrialized societies are intricately attached to industries. When the industries die due to market circumstances, the inventions evaporate, even if the inventors were still alive in the society. If inventions were to be in the ownership of a country, they would have survived as long as the country. However, the most advanced of societies are unable to recognize the black cloud that is closing on them and the aspiring countries are intent on copying the models that are flawed.

The reason so many societies enter from a prosperous age to a dark age is that rulers become over jealous and develop restrictive and pervasive rules to protect society’s achievements. However, the “rule of law” inspired systems become so restrictive over time that they get mired in bureaucracy and sprout seed of anxiety, fear and discontent among the citizens giving a mortal blow to innovation. This flaw is the primary force behind the fall of successful civilizations and “invincible” empires.

How to Prevent the Fall?

The presence of an innovative faculty independent from the legislative, executive and judicial is the greatest tool that can save our society from falling into the dark ages in a periodic basis. And, this fourth faculty is needed to make the system balanced and durable. The people in pursuit of knowledge and innovation would receive necessary resources from public purse and would be allowed to enjoy high level of intellectual freedom in a premise of public accountability and production of knowledge for the welfare of the entire society and not just the vested interest groups. In return for the high regard given to knowledge producers with an expectation of render service to society in the field of knowledge, ethics, incorruptibility, and accountability.

That I made these arguments, one might say that contemporary societies already have provisions for innovation citing examples of universities, science institutes, patent offices, and media. However, I have to say that our innovative faculty today is under the subjugation of the legislative and executive faculties. When the legislature passes a law that all men should go to war, we have to go without any choice. We would have no men left to question the wisdom of that war. We may be treated as traitors if we did not obey the orders! This is because we do not have an independent faculty of innovation. Then you may wonder what does that independence is supposed to mean.

To me, independence is a state of being free, or at least a state of not being dependent. In this sense, I have great deal of difficulty knowing where the independence of our innovative faculty is. Although innovative faculty in countries like Canada may be far freer in comparison to countries like Nepal, this freedom is admirable only in relative sense. When a few corporations can control vast domain of research and innovation, it does not bode well for the country. Innovation becomes dictated by its ability to bring money to our coffers and our innovative spirit becomes controlled by interest groups and not by any noble purpose of serving the humanity independently. Further, innovation may not only be controlled by vested interest groups but also by the state in order to advance a fixed set of ideas rendering the whole domain of innovation a dependent faculty.

Therefore, the key challenge of our time remains in the system of governance itself. In a governing system with three independent branches, the executives and the judiciaries can largely counter each other. However, there is nothing to systemically counter the legislature (the maker of the system). For example, when the legislature says Marijuana is illegal but tobacco is legal, no one in the whole country is able to demonstrate the fallacy of this legislation.

Until the day there cannot exists a fourth faculty in the system of governance to work as a formalized counterweight to the legislative body, the faculties of knowledge and innovation will not be free of oppression and they will remain in the shackles of somebody other than the public. This hinders the domain of innovation to become truly free and we perpetually remain in a mediocre state of freedom. We then have to find satisfaction in being better than those who are worse than us. Therefore, it is time that we formally and constitutionally introduce the fourth faculty of governance if the wheel of progress of our society is to be round and roll forward continuously.

Conclusions

Innovative faculty is a vital component of a vibrant and progressive society. Therefore, any country seeking to stand strong in the worst of times must introduce a fourth branch of governance where, legislative, executive, judicial, and innovative faculties counter each other. This arrangement gives rise to a new and independent faculty that is responsible for the production, preservation, and dissemination of knowledge and innovation. Only when the production and distribution of knowledge and innovation is not constricted, our achievements will experience longevity and continuity. Therefore, we have a big revolution to bring about in this arena of modern governance.

References

[1] Kaihan Krippendorff, The Way of Innovation, Platinum Press, Massachusetts, USA 2008
[2] Pramod Dhakal begin_of_the_skype_highlighting end_of_the_skype_highlighting, State and People: The Rule of Law and the Law of Rule, CFFN, Canada, 2008.
[3] Sacred Books of the East: The Laws of Manu, Translation by G. Bühler, Published by Oxford, 1886, Available online as The Laws of Manu, http://www.sacred-texts.com/hin/manu.htm
[4] The Holy Geeta, Commentary by Swami Chinmayananda, Central Chinmaya Mission Trust, 2002, Chapter XIII, Verse 18 and 23.
[5] Ibid, Chapter XIII, Verse 27.
[6] Ibid, Chapter III, Verse 20.
[7] Ibid, Chapter III, Verse 33.
[8] Jeff Gerritt, Incarceration nation: 1 in 31 U.S. adults now in criminal justice system, Detroit Free Press, USA, March 2, 2009, http://www.freep.com/article/20090302/BLOG2505/90302038/1001
[9] The Laws of Manu [3], Chapter 5, Verse 2.
[10] Ibid, Chapter 6, Verse 92.
[11] Ibid, Chapter 11, Verse 6.
[12] Ibid, Chapter 11, Verse 33.
[13] Ibid, Chapter 11, Verse 35.
[14] Ibid, Chapter 10, Verse 113.
[15] Ibid, Chapter 10, Verse 189.
[16] Ibid, Chapter 8, Verses 381.

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