Memento Mori, and Constraining of Executive Power
posted by Dave Hoffman
Clifford Ando’s book on Imperial Ideology and Provincial Loyalty in the Roman Empire is being passed around the family lending library. It, together with a recent conference invitation, has gotten me to thinking some about the different ways that the American legal system works to constrain executive power. This may all be old hat to some, but, hey, this is just a blog entry!
The legal system offers two major methods of constraining executives: incentives and structural checks. Both approaches are formal, and to a large extent, treat subject executives as rational, wealth-maximizing, actors. Incentive-based constraints follow a fairly traditional carrots-and-sticks approach.
Corporate law relies mostly on carrots. Punishments in corporate law are rarely felt by individual Directors and officers due to the BJR and D&O Insurance. SOX is a notable, and contested, exception. By contrast, control of public sector executives (like agency heads, police, and military officers) is largely based on sticks: court marshals; public shaming, etc.
Control of the government’s chief executive is largely left to institutional constraints. President Bush, not so long ago, reminded Americans that a second-term President has a wide latitude to act in ways that might seem unpopular: “We had our accountability moment, and that’s called the 2004 elections.” That is, elections provide limited incentives; impeachment an impractical stick. Congressional control of subpoena power is the real hammer.
The Romans had a somewhat different model. They had exceptionally few state administrators – a few thousand folks in total at the empire’s height. Those administrators were governed and constrained in a variety of ways. The preeminent, according to Ando, seems to have been socialized norms. Thus, famously, Roman generals on their victory parade were accompanied by a slave whispering in their ear: “Memento Mori.” Remember, you are mortal.
Are there interesting ways to pay-off this analogy? Perhaps we might achieve more efficient corporate and federal executive control through socializing norms of humbleness, loyalty, and self-control. Maybe this humbling function could be served by independent directors, in a reinvigorated real devil’s advocate way. Or, if we wanted to really re-engineer the system, perhaps SOX should be amended to rely less on punishment and more, as in the sexual harassment context, on a system of presumptions that encourages training and socialization of pro-social norms. In the federal government arena, perhaps we need to hire someone who will remind Presidents of the limits of their power, and the fact of their morality. Hmm. Actually, maybe those positions are filled already.
April 26, 2006 at 2:06 pm
Posted in: Economic Analysis of Law
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Responses (4)
John Armstrong - April 26, 2006 at 3:51 pm
Food for thought, but I’d look for a better analogy in the last paragraph.
Or, if we wanted to really re-engineer the system, perhaps SOX should be amended to rely less on punishment and more, as in the sexual harassment context, on a system of presumptions that encourages training and socialization of pro-social norms.
Behind the training and socialization are honest-to-God sticks of job loss, lawsuits, and (in some organizations) a truly Kafkaesque path through them. That system relies on punishment plenty.
DRMPro - April 26, 2006 at 6:24 pm
In ancient Rome, “Memento mori” was said on the occasions when a Roman general was parading through the streets of Rome. Standing behind the victorious general was a servant, and he had the task of reminding the general that, though he was up on the peak today, tomorrow was another day.
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geoff manne - April 26, 2006 at 8:15 pm
Daniel Akst argues for much the same thing in an article in the NYT on which I comment here.
Norms are surely useful as far as they go–which may not be all that far.
One can’t conjure up “memento mori” without also mentioning Mel Brooks’ History of the World Part I. As the victorious general Marcus Vindictus returns from defeating the Cretins at Sparta–make that the Spartans at Crete–he approaches Caesar. As he does, a sycophantic attendant whispers to him repeatedly, “Remember thou art mortal. Remember thou art mortal.” After a few seconds of this the general turns to the attendant and whispers back, “Oh, blow it out your ass.”
In other words, sometimes the norm is socialized; and sometimes it ain’t.
Nate Oman - April 27, 2006 at 1:12 pm
Dave: One of the ways that the Romans created their social norms was through ritual. They had a society that was studded with rituals that served to inculcate and reinforce norms without necessarily creating clear carrots or sticks in the rational actor sense. For example, in addition to the slave saying “Momento Mori” the troops of a triumphing general were allowed and expected to sing baudy and insulting songs about their general as they marched in his parade. At the triumph after his Gallic wars, Caesar’s troops apparently sang this song:
Now we bring our bald whoremaster,
Romans lock your wives away!
All your gold and treasure,
Went his Gallic tarts to pay!
etc. etc. etc.
One of the (many) costs of the Englightenment is that it swept much ritual away as irrational superstition and made that ritual that remained into a rather more flacid affair. I’m not quite sure how to create more rituals for corporate executives…
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