Power, Moises Naim tells us, is everywhere on the decline: whether in the realm of corporations, the effective military reach of the state, or religion—leaders don't have the unquestioned clout they once enjoyed. This presents great opportunities for innovation and creativity. It also presents tremendous peril in that our ability to respond collectively to such challenges as climate change is diminished.
What does the decline of power mean for the courts? Naim, a former editor of Foreign Policy magazine, doesn't address that issue. Consider fully informed juries.
Power, Naim tells us, is simply the ability to compel another to do something. States have it. Corporate CEOs have it. Religious leaders have it. The institutions that give shape to our lives collectively and individually have it.
But in "The End of Power: From Boardrooms to Battlefields and Churches to States, Why Being In Charge Isn't What It Used to Be," Naim argues power is on the decline. Nation-states confront nongovernmental organizations. Corporations fragment. Cults and religious dissent is on the rise.
"The biggest challenges to power in our time come from changes in the basics of life—in how we live, where we live, for how long and how well. What has changed in the landscape in which power operates," he writes. We simply have more affluence, people are far more mobile than they have ever been, and our mentality, our sense of individual efficacy has increased.
In part, this is due to the Internet and the ease of electronic communication. The world comes more and more to resemble a gigantic flash mob, with enthusiasm and outrage only a key stroke away. Consider the rapid transformation YouTube, Facebook and Twitter have worked in our social consciousness.
Could there have been an Arab Spring, the Occupy movement, the centrifugal force of the Wikileaks disclosures in national security, entertainment and corporate affairs, without our instantaneous ability to connect at a keystroke with millions?
Gone is the world of the secure hierarchy of top-down command structures. The new boss is us. The social world resembles the spontaneous movement of starlings, turning this way and that, seemingly without apparent direction, but decidedly uniform in purpose.
Naim does a brilliant job of describing the disintegration of coordinated, top-down command structures. Power is on the decline. He worries about the lack of ability to respond collectively to crisis. Politics is, after all, the wedding of aspiration and necessity. What happens when we cannot muster collective will?
His solution is as unimaginative as his analysis is profound: We need to renew trust in political parties, he says. Really? Isn't that like telling a madam that her house would be better organized if she but required her boarders to be virgins?
Naim is simply tone deaf to the poetry of authority—the mysterious process by which we render naked force into the legitimate exercise of power. The crisis we are undergoing is not simply a loss of power; it is a crumbling sense of legitimacy. How Naim misses that is mysterious.
What has this to do with the courts? Plenty.
A standard jury instruction requires jurors to foreswear inquiring about a case on social media. The authority of the court, the legitimacy of the proceedings, is called into question when jurors conduct their own research about the facts, law and personalities involved in a case.
Naively, we assume that a properly instructed jury follows the law. We send jurors home each night where they resume the very habits of mind that inform their daily lives—that will place some of them before keyboards, doing the very thing a judge has told them not to do by trolling for information about the case they are deciding.
I've no doubt this occurs regularly, any more than I doubt the evidence Naim assembles about fragmented power. We bring antiquated concepts of power and authority to the courtroom when it comes to jurors.
Judges, too, have less power to command the participants in the proceedings before them. I suspect there is far more nullification of the law going on in jury rooms than we know—jurors research forbidden topics silently and secretly, I suspect. Judges, like presidents, CEOs, generals and religious leaders don't enjoy the authority they once had.
Is it time to reconsider sequestration of jurors? I can feel judicial administrators shudder at the thought—that would be such a hardship! Imagine, if you can, folks unplugged from the new social world around us for a week or more. They'd be lost!
Precisely. The new crowd-sourced ethos of our time requires instantaneous communication about everything, always. Welcome the new boss; his name is public opinion, his voice the flash mob. We've yet to construct a political philosophy that explains and justifies this power. As Naim illustrates, we're not even close to doing so.•