NEGOTIATION OF POWER

In ordinary usage, negotiation signifies contracting, bargaining, and attempting to reach an agreement. Many studies of negotiation have been carried out particularly with respect to commercial, diplomatic, political, and trade union relations. Recently, acquisitions from the study of negotiation (modalities, styles, strategies, and so on) have been applied to the analysis of interpersonal and social dynamics, ranging from one-to-one relationships to more complex social situations and the management of organizations. Negotiation has also found a specific field of application in the solution of conflicts (Pruitt and Carnevale 1993).

Negotiation is, briefly, a process in which two or more parties try to reach a satisfactory solution to a shared problem. To be more specific, it is a process in which the actors define their own obligations, costs, and benefits to achieve a common result. It is important to emphasize that negotiation is a process, that is to say, it is a dynamic—and not an instantaneous situation—that may be adopted as a way of regulating relationships. Negotiation is a process of exchange (of information, threats, favors, and so on) that goes on until compromises beneficial for all parties involved begin to become apparent. It is a process that advances cautiously and methodically, so that the interests and the expectations of the parties involved are able to emerge gradually. Only when the parties have succeeded in deciphering the real interests and intentions that lie behind their respective declared positions can possible solutions be identified. Negotiation processes can be analyzed from various points of view, using various techniques. It is possible, for example, to use macrostructural variables. In this case, the outcome is explained on the basis of variables in the context where the negotiation is carried out. Alternatively, it is possible to use psychological variables, interpreting the result of negotiation in the light of the personal characteristics of the actors and of the psychodynamics that develop between them. A third possibility is the "strategic" approach. A strategic analysis does not ignore context-defined effects and limits on the negotiation process nor the importance of the psychodynamic relationship established by the participants but it assumes that the outcome of negotiation will be primarily the result of strategic actions by the negotiators. According to this approach, a negotiation process can only be reconstructed by starting from the actual choices made from the alternative strategies available by actors in specific situations.

It is in this perspective that the special case of "interpower" negotiation (where the term "power" is used as an abbreviation for "institutional power" or "branch of government") has emerged. The topic has become important because in modern political systems the traditional concept of such powers has been modified; because the opportunities for conflict between them have multiplied; and finally because an increasing number of social and economic issues involving values of fundamental importance for individuals and communities have become the target of decisions, interventions, or actions taken or promoted by the various institutional powers.

During the twentieth century, the state has everywhere become increasingly interventionist, while respecting, in democratic societies, traditional civil and political freedoms. State intervention involves, on one hand, the economy and, on the other, various aspects of everyday life. In the economy, the state regulates private initiative relatively strictly, striving to guarantee the "social rights" of less favored groups without yielding to socialist collectivism. As well as impacting, sometimes significantly, on the lives of individuals, groups, communities, and enterprises, the intervention of the contemporary state upsets the parameters of the classic division of powers (legislative, executive, judicial), threatening its survival. Indeed, it has led to the gradual rise of a new pattern of division of powers.

State intervention involves a massive increase in the production of regulations and therefore in the opportunities for violating such regulations and promoting legal action. It also exacerbates competition and conflicts among powers, among the various branches of state administration, and between decision-making centers and citizens (Field 1996). Normative activity has expanded so much that it can no longer remain the prerogative of parliament. For practical reasons, it is widely delegated to the executive and to administrative authorities. Moreover, a first decision on many conflicts must be referred to the administrative authorities, so that the classic principle of the exclusive attribution of fundamental functions to separate, corresponding powers is violated. The principle of the clear-cut division of powers has ceased to exist.

On the other hand, the very nature of public administration has changed. It not only carries out normative functions but also possesses wide-ranging discretionary power in defining and safeguarding the public interest. To do this, either official decrees or contractual instruments may be used.

Public administration has become a huge—indeed excessively large, according to many commentators—bureaucratic body. Formally, it continues to be subject to the law (which often leaves the administration a high degree of freedom for discretionary action) and to the directives of the executive. But there are many fields in which the law itself concedes considerable autonomy from the executive to administrative organs.

In addition, the nature of the work of the judiciary has changed. The system of sources for precedent is getting more complex and the number of regulations is mushrooming. Interpretation by judges therefore must involve strongly creative elements. There has also arisen a new area of intervention connected with the increasing number of functions assigned to public administration and the growing role of government. Judges are prompted to set aside their old self-image of being the "voice of the law "and to undertake an independent "political" role, inspired partly by new developments in legal theory, such as the law of interests and values, the sociology of law, and judicial pragmatism. At the same time, Western states are experiencing two new and extremely important functions that are not comparable to the traditional ones. The first is that of political orientation. The intervention of the state must necessarily be organized around a program if it is to have significance and coherence. The program must be one on which the electorate expresses itself at elections and which an organ of the state has the task of translating into concrete provisions for the period of office of the legislature (at the next election, the electorate will decide whether to continue or to change program and governing team).

The body of the state delegated to administer the political orientation could only be the former executive. The executive, however, having been charged with its new task, has completely transformed its structures and authority. It has changed from a mainly executive body into a governing power that lasts for at least one legislature. Generally, it is the main initiator of the laws necessary to implement the political orientation and is followed in such action by both the legislative power and the public administration.

The second new function is that of guaranteeing the principles of the constitution. The United States provided a valid example in this respect, although for many years it was not followed by other countries. The much faster rate of change of the normative system makes it more likely that the laws themselves may violate fundamental values, as well as personal and social rights that the community wants to maintain intact. Parliaments have ceased to be reliable champions of the freedoms and the rights of the citizen. Frequently, they have been transformed into assemblies that merely represent sectarian or corporate interests. For that reason, there has emerged a demand to entrust the defense of those values and freedoms to a body that does not have to face a periodic electoral test. Constitutional courts were therefore created in nearly all political systems of the twentieth century. The interventionist state does not disclaim the division of power as such. The division must remain effective to avoid an excessive or even total concentration of power that would threaten citizens' civil and political freedoms and social rights, or would jeopardize the proper, efficient government of society and the economy. But as we have noted, the modern state can no longer be considered a harmonic whole made up of separate powers organized around the three functions of legislative, executive, and judicial power.

The division of the powers remains, but it has assumed a different form (O'Toole 1993). It has become a Weberian ideal-type with new features that can be summarily described as follows. There are at least five powers instead of the traditional three:

1. The governing power carries out the function of political orientation, defining the main policies. Whether it is embodied in a president, a prime minister, a chancellor, or some other figure, the governing power is an organ that enjoys guaranteed stability, which is indispensable for translating political orientation into action. In general, the governing power will attempt to perform a broader normative function than the one attributed to it, thus entering into conflict or competition with the parliament.
2. The legislative branch has taken on the function of confirming the political orientation decided by the governing power when its majority belongs to the same party. Where the majority belongs to a different party, the function is more political and relationships are competitive, because the overriding aim is to win the next election. Nevertheless, obstruction of the policies of the governing power, or its formal removal, must remain absolutely exceptional eventualities. The legislative branch also has other checks and controls over the governing power (formal questioning, inquiries, and so on).
3. Public administration has become one of the powers because, although it is subject to law and the directives of the governing power, its sheer size and the growing range of functions assigned to it enable the public administration to pursue objectives in the public interest which it identifies independently with discretionary freedom. The aims of the public administration are achieved by regulation and sanctions.
4. The judicial power is the power that guarantees in complete autonomy the proper application of the law to specific cases. The judiciary contributes creatively to the evolution of the normative system. For this reason, it may perform, intentionally or not, an important "political" role.
5. The supreme court (constitutional court) has the function of guaranteeing supreme political and social values for all the other powers, especially the governing and legislative powers. These values have to be removed from the cut and thrust of dayto-day politics and constantly defended. In fact, the supreme court identifies these values with wide discretion.

The new model of the division of powers places the governing—and not the legislative—power at the center of the state's organization. It is the governing power that provides the driving force. The other powers act as potential brakes, the legislative branch on the political front and the supreme (constitutional) court on the legal side.

The governing power cannot therefore be compared to a medieval absolute (albeit elective) monarch. Still less can it be compared to the dictators of contemporary authoritarian and totalitarian regimes. It acts in a context of free democracy and in a system of the division of powers that places limits on it and prevents it from taking the place of other powers in the exercise of functions that do not properly belong to it. Realistically, its position within the organization of the state is probably less strong than might appear from the above model.

If we examine what has happened to the former legislative, executive, and judicial functions that today are no longer attributed to or exercised by a specific power, it will become apparent that they are distributed among the new powers without the rigid distinctions that once prevailed. Although every political system has mechanisms for blocking democracy-threatening initiatives (for example, penal norms can be only introduced by acts of parliament), the vagueness and fluidity of the new political situation demands the introduction of new procedures to regulate the relationships of the new powers. New procedures are necessary to avoid the risk of permanent conflict, the blocking of all political plans, and the struggle to occupy ever-wider areas of influence.

Almost all the major Western nations have, to some extent, adapted to the new model. Of course, each system has chosen its own way of allowing a governing power to emerge and of defining a corresponding series of complementary authorities and checks. Indeed, a surprising variety of solutions has been devised to ensure the optimal functioning of the interventionist state. Since it is impossible to illustrate here the performance and the details of the models established by the major Western nations, we shall merely list some of the most important changes.

Great Britain in the twentieth century has transformed its classic parliamentarian government into government by the prime minister, who represents the governing power. This has been possible thanks to the rigid bipartite nature of the British political system, which guarantees the alternation of parties in power; to the adoption of a first-past-the-post voting system that reinforces the two-party system; and to the strict internal discipline in the parties.

France under the Fifth Republic has overcome the disadvantages of its extreme parliamentarianism, which were due to the excessive fragmentation and lack of internal discipline of the parties. This has been achieved through the direct election of the president of the republic, the reinforcement of the position of the government with respect to parliament, and the return to a majority electoral law with two ballots. The governing power in France is the president, except when the parliamentary majority is hostile (policies are decided with the prime minister). The Constitutional Council safeguards the ideals of French constitutionalism. In Germany, the governing power is represented by the chancellor. Elected by majority vote in the Bundestag, the chancellor enjoys remarkable stability, partly because of the principle of the constructive vote of no confidence. It is up to the chancellor to dictate the political orientation, which parliament normally backs. The strength of the German political parties, the federal organization of the state, and an effective constitutional court provide an effective counterweight to the power of the chancellor. In the nineteenth century, Congress was the real center of American political life. During the twentieth century, however, the presidential system of the United States has become actual rather than nominal, and the true driving force of the nation today is the president. Congress has nevertheless kept a significant portion of its former power and is currently the most powerful of all the Western parliaments. The Supreme Court is also rather more than a mere check on the governing power.

Italy is something of an anomaly because its constitution enshrines the model of the social interventionist state, but the country has not succeeded in developing the structures for a new division of powers. The Italian parliament has jealously preserved all its normative functions, but the public administration interprets and applies the regulations with such a high degree of autonomy that it distorts the intentions of the legislator. The strict two-chamber structure slows down parliamentary activity; the government has only weak prerogatives over parliament; and the judiciary, originally conceived as a mere instrument to apply the laws, has actually been performing a largely political role in recent years. These modifications to the institutional order have been fostered by major changes in the political process, especially concerning the demands and behavior of citizens. Two aspects, in particular, deserve attention. First, increasingly frequently, public policy disputes among social or special-interest groups are taken to the legislator, the administrative branch, or the judicial arena for resolution. Second, more and more people request government intervention to solve private problems or to further group interests. The new powers therefore have to tackle new tasks and satisfy additional social demand.

The breakdown of the traditional division of powers, whose roles, functions and relationships are very clearly defined, at least formally, leads to a fluid situation in which the new powers are forced to negotiate with each other.

There are two aspects that coexist in interpower negotiation. The first is negotiation on matters of substance and—albeit generally in less explicit terms—for the attribution of roles. On fundamental issues, it is necessary to make a distinction between topics that involve nonnegotiable values and interests on which it is possible to reach a compromise or to find some way of compensating the losing party.

Even though the present era is characterized by the spread of secularism and cultural relativism, there are topics on which people—and therefore institutions—are deeply divided. Abortion is one example, for it involves worldviews and values that are not negotiable. In such cases, the majority will impose its position without attempting to mediate an agreement with the minority. The decision adopted, whatever it is, will obviously produce resentment, the undermining of authority, and conflict. The process of developing a common-ground culture and fostering empathy on sensitive topics, such as abortion, is complex, although it may be effective with small groups of participants (LeBaron and Carstarphen 1997). Another such example is the question of worship in schools. Moreover, people are becoming very sensitive about issues such as environment, health, and safety: Divisions and conflicts go through not only interests but values, ideologies, deep-rooted ideas. If the area of decisions imposed by a majority on the minority or the minorities were to extend, the already serious fractures in society would deepen, with consequences that could threaten the very continuance of coexistence.

In addition, negotiation over the attribution of roles can develop at two different levels, the institutional and the political. The subject of negotiation is always the same, concerning the organizational model to be applied to the powers, the levels of government (federal, state, and local), and the sphere in which each power will exercise its influence. All participants claim to be pursuing the public interest but the context in which negotiation is carried out changes. In the first case, constitutional principles, values, and rights are the benchmarks. In political negotiation, however, concrete policy priority decisions are negotiated as well as the allocation of financial and other resources and standards for crucial areas such as health, public safety, and education.

It is also important to bear in mind that other factors apart from those already mentioned play a part in interpower negotiation, including each actor's unique characteristics and awareness of its source of legitimization. The president, or governing power, will be more sensitive to general public opinion. The legislative power cannot ignore strong pressures exercised both by constituencies and by lobbies. The judiciary is the guardian of the laws, and the public administration bases its position on technical competence and a professed impartiality. The ensuing system looks rather unstable, so the problem then becomes how to combine diverse, conflicting interests, styles, and sensitivities, which all claim to be pursuing a common goal: the public interest and the satisfaction of individual and social needs.

In order to achieve this agreement, it is necessary, first of all, to establish common definitions of what is meant by the "public interest" and by "social and individual needs". Second, negotiating procedures must be agreed upon since the checksand-balances principle, a feature of political systems with a traditional division of powers and well-defined functions, is no longer adequate. The checks-and-balances principle loses much of its value in a continuously changing situation with different actors. Third, it is necessary to seek the consent of the governed to clear the way for negotiations, enabling citizens to be informed and to exercise some kind of control (Susskind and Cruikshank 1989).

Interpower negotiation should not aim for minimum levels of agreements but should seek to create bargains that improve the working of the political system and produce a genuine gain for citizens. In contrast with normal conditions of negotiation, when powers are involved it is not appropriate to seek the victory of one or other of the parties. Instead, the actors must perceive that they should exploit their differences to achieve benefits jointly.

Taking advantage of differences of interest does not mean helping the other party in order to receive help in turn (do ut des) or making a simple exchange. It signifies, above all, learning how to recognize the priorities, responsibilities, and interests of each actor. The first problem to be resolved in interpower negotiation is to identify a limit beyond which it is in no one's interest to go. In the literature on the subject, some analysts propose "best alternatives to nonagreement" (BATNA) as a criterion for verifying the motivation and interests underlying negotiation (Fisher and Ury 1981). Negotiation is thus the key to improvement. If powers wage battle, each trying to impose its own interests and strengthen its own position, the result may be to block the political system, thus losing the confidence of citizens. Conflict between the courts, the political authorities, and the public administration is not the most effective way to deal with the breakdown of the traditional division of powers.

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Bruno Tellia