Public Service

Richard Ostrofsky
(December, 2000)
In this article, the third of a series,1 I want to discuss another myth of
democratic government as understood at present: that civil servants are and
ought to be no more than obedient instruments of their political masters.
The factual part of this assertion is simply false. As much as public service
“functionaries” may pretend to their superiors, to their publics and even to
themselves that they are just following the rules, just obeying orders, this
front need not be taken seriously. They may be cogs in a vast machine but
they remain capable of all the motives and manoeuvres that humans display.
They bend or stretch their orders, and drag their feet when it suits them (as
we all do). And they work strictly by the book – following the rule that
gives them their preference while overlooking the rule that forbids it.
Civil servants are known to do all these things, and no amount of
auditing can prevent it altogether, though it can and does make self-
interested behaviour more subtle, more difficult and correspondingly, harder
to detect. Rather, it is the second, evaluative part of the assertion that that I
want to dispute here: It is wrong of us to expect or hope that civil servants
will be passive instruments of political and judicial power that lies
elsewhere. The idea of democracy requires that civil servants be held
accountable – rather than strictly submissive – to law and to the public will
and interest. On no account do we want an autonomous civil service
holding supreme power – as happened, for example, in the former Soviet
Union. (Russian communism was more the sovereignty of a bureaucracy
than the dictatorship of a proletariat.) Still, we might be better and more
democratically governed if our civil servants were held accountable more
firmly, but also more loosely and flexibly than is the case at present, and it
is that possibility I wish to consider.
Whether explicitly as in the American system, or implicitly as here in
Canada, today we recognize government as having three distinct functional
components: legislative, judicial and executive. Elected representatives

1 See Civilization and The Interests of Governments above.

make the law; the judges interpret law when disputes arise as to its
meaning; the executive (whether directly elected or formed by the majority
party in the elected legislature) implements the law – or, on a more realistic
view, acts as it sees fit within the limits of effective legal control.
Experience has taught us that the accountability thus achieved – much
better than nothing, to be sure – is very limited. There is still a deep
unwillingness to contemplate alternatives – the 20 th century having taught
the lesson that, no matter how bad they seem, governments can easily get
worse. And yet it is obvious to everyone that “democratic” government as
we know it is more the servant of great vested interests than of the public
interest; and, withal, is incapable of contemplating seriously, (let alone
grappling with and successfully resolving), the great issues of a global
society that seems increasingly unstable. For this reason, it is becoming
necessary to think beyond democracy as we have known it toward a mode
of government that would be more accountable both to public necessity and
to the public will.
One step in this direction might be to recognize that the executive
function as we conceive it really consists of at least two separate functions:
There is an executive function properly so-called: implementation of the
public will – understood as the outcome of some political process. Before it
can be executed, the public will requires to be specified in detail (as it is
today), through departmental policies and regulations. But it also requires to
be honestly consulted, educated and guided, through what I will call a
conciliar function that is still poorly understood. The periodically staged
popularity contests do not serve this function. Neither do the departmental
“communications” shops, nor the focus groups nor the interminable stream
of consultant’s reports. Neither do the media, as one might hope, promote a
genuine dialogue between the government and the governed, nor between
the latter’s diverse interest groups and factions. The Auditor General and
the ombudsman (if there is one) exist, ostensibly, to serve the cause of
integrity in government; yet neither has the clout to be effective in that role.
Accordingly, we might do well to divide the cadre of “civil servants” into
separate branches: one tasked with detailing and implementing the law as at
present, the other tasked with organizing and presiding over a public
conversation of integrity and reciprocated understanding. Dialogue and
intelligent negotiation among the contending factions of a society are
indeed public goods. They might thrive better than at present if recognized
and deliberately cultivated as such by yet another self-serving government
organization that does nothing else, and that is itself kept honest by the
private media and the other branches of government. At any rate, the
experiment would be worth trying.
The basic idea is to divide what is now thought of as the executive
function into two parts, neither directly political in nature, but neither
conceived as the mere instrument of a sovereign will in the articulation of
which it has no stake or share. Somehow we must resolve this dilemma: our
need for public officials who are both strong and weak – effective and
dependent – at the same time. For us, as for the Turkish sultans, it is a
mortal danger when civil servants can pursue their own interests
unsupervised and unchecked. Yet cutting off their balls, whether literally or
metaphorically with a rule book does not solve the problem of
domesticating their power.