Levels
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Often several levels of government have a hand in one and the same matter. Someone lives in a residential complex: the complex runs her building's entry system, the city runs the school her child attends, and the state issues the license by which she earns her living. This paper is about levels, and it asks five things: what each level of government is, and where its interior lies; whether, beyond its jurisdiction, it still has an interior; whether every level needs the function of check, and in what form; how exit relates to levels; and how to read what lies between an upper and a lower level, and between each level and people's lives. Every level is a construct, and the five oughts of Institution Theory fall on it whole; the interior is drawn by entanglement, not by jurisdiction or identity; the levels are both nested and overlapping, and one person can be in the interior of several levels at once. When a lower level is converged by the level above, in that slot it holds accountability, not duty; fulfilling this accountability is not the same as achieving its ought toward its own interior. Jurisdiction is not the interior: what Apple City releases into the river flows down to Willow Ferry, and the people of Willow Ferry, though not in Apple City's jurisdiction, are in its interior; reach of influence is not reach of authority. Spillover within one state is taken up in this paper and not handed to the Theory of the State. The separation of powers follows conditions, in three steps: every government is subject to being questioned, and this does not presuppose that exit is difficult; a diagnosis, level by level, of whether exit and external routes can carry the day-to-day check on that level; and, at the threshold, checking is placed inside the level, independent of the party checked, and rule-making, execution and checking are not held by one and the same position. The threshold lies in conditions, not in head count: holding compulsion, where neither exit nor outer-layer routes can carry the day-to-day check. What is counted is functions and independent checking positions, not agencies; no constitutional form is fixed; a minimum of three branches, and more are possible. From the city level up, this strong form is taken ("the city level" is drawn by function, towns included). A residential complex that enforces its own covenant also reaches the threshold and must separate its powers: when it enforces the covenant itself, the outer layer's checking is not present in each act of enforcement, and exit means moving house; where the covenant can be enforced only through the City Court, the separation may be weak. These two points are this series' normative undertaking (a practical judgment), not a factual assertion about cities in general; holding compulsion, and exit and outer-layer routes being unable to carry the day-to-day check, are the reasons for and the explanation of it, not antecedents to be verified case by case beforehand: it is read by level, not checked city by city. Where the separation of powers may be weak, openness to questioning is not. Where exit falls short, the check must come from another, usable source; where external routes fall short as well, a level of government always undertakes the guarantees it has embedded, and a real and usable function of check must be retained internally; the thickness of law varies with the absence of exit, this reading is extended to every level, and the thickness of law is not relational thickness. The upper level does not swallow the lower, and the lower level does not seal off exit. Relational thickness is read from the structure and is not ordered by administrative rank or geographic distance. Apple City, Willow Ferry and the Orchard Court residential complex run through the whole paper, which interfaces in place with Ostrom, The Federalist and Tocqueville. The paper has five propositions (G25 to G29), each stated at the end of its section and listed together at the end.
Introduction
Willow Ferry lies downstream of Apple City. The Town Water Works draws water from the river to supply the whole town with drinking water.
Apple City's Sewerage Office releases treated city wastewater into the same river. The releases are covered by an effluent permit issued by the State Environmental Agency, and they comply with it. From Year 5 on, the Willow Ferry Town Water Works has been detecting at its intake a substance above the state drinking-water standard. The residents of Willow Ferry want Apple City to explain, and to change.
Apple City's reply is two sentences: "Our releases comply with the permit. The residents of Willow Ferry are not residents of Apple City."
Three things first. Whom it concerns: the residents of Willow Ferry; and the residents of Apple City, on whom the cost of the upgrade falls if a change is made. Which line: the life-substrate of Willow Ferry's residents in their drinking water, if the exceedance reaches a harmful level. Baseline: the state drinking-water standard.
Three governments are in this matter: Apple City, which releases; Willow Ferry, which draws the water; and the Kingdom State, which issues the permit and sets the standard. There is also a nearer level: the residential complex in Apple City that Paper 2 described, Orchard Court. A resident of the complex is in the interior of three levels at once: the Orchard Court residential complex, Apple City and the Kingdom State.
That several levels have a hand in one matter is the normal state of government. What Paper 3 handed on is one sentence: several levels of government have a hand in one and the same matter. This paper is about levels.
It proceeds in seven steps. §1 says that every level is a construct; §2 treats the interior beyond the jurisdiction; §3 and §4 say that the separation of powers follows conditions, first the general rule, then the residential complex; §5 treats exit and levels; §6, what lies between upper and lower; §7, relational thickness and levels. Conventions follow the Prequel, §8: interfacing in place, sources in four tiers; this paper has no closing section of conversation.
§1 Every Level Is a Construct
That resident swipes her entry card to go in and out of her building every day. The entry system is the complex's to manage; her car is parked in one of the complex's surface parking spaces, and the parking spaces are the complex's to manage too. Outside the complex gate, the street in front belongs to the city. Her line of work requires a state-issued license.
Three things first. Whom it concerns: this resident. Which line: no line-crossing is involved; what is at issue is which parts of her life each of several constructs organizes. Baseline: a person who is in the interior of one level only. This section first reads which levels' interiors she is in; which parts of her life each level organizes is read in §7.
Three things, three levels of government. The Orchard Court residential complex counts as a government in this series' sense by the public decision-making and carrying-out functions it actually carries; the property-management company that provides services to the complex does not (the Prequel, §7). Apple City is a city. The Kingdom State is a state. Each of the three takes a stretch of territory as its jurisdiction, continuously makes and carries out decisions on the public matters within it, and is carried by public positions through which people come and go.
Every level is a construct. This series sets up no separate ought for levels: the five oughts of Institution Theory fall on every level whole, the residential complex included. Each level has its own interior. How the interior is drawn, Institution Theory states clearly: "those in the entanglement the construct handles, together with those its acts reach who have no way to avoid it by exiting, make up the interior" (Institution Theory Z4). That this resident is in the interior of three levels does not turn on what identity she has registered at which level; it turns on whether she is in the entanglement each of the three handles, and whether the acts of each land on her: the complex's covenant governs her parking space, the city's affairs govern the street in front of her door, the state's license governs her livelihood. She can avoid none of the three.
The levels are both nested and overlapping. Nesting means that jurisdictions sit one inside another: the complex is in Apple City's jurisdiction, and Apple City is in the Kingdom State's. Overlap means that the interior does not follow the jurisdiction. A person who lives in Willow Ferry and works in Apple City is in the interior of both municipalities. The next section will add that residents of Willow Ferry who do not work in Apple City may also be in Apple City's interior.
Between an upper and a lower level there is one relation that has to be stated precisely first. The State Environmental Agency issues Apple City an effluent permit, and the conditions of the permit rein in what Apple City's Sewerage Office can do. What does Apple City hold in this slot? Accountability, not duty. On Accountability · Wei says: "Only a subject can hold a duty; construct and subject alike can hold accountability"; the reason is that "A duty's source must lie inside the bearer, and a construct has no inward source," while "Accountability's source lies in the power that converges upon the position, and a construct can be converged." (On Accountability F39) Apple City has no law of its own; the load it holds in the permit slot comes from the power that reins it in.
In one respect this accountability does not look like accountability. On Accountability says that accountability "has its source in the power that converges upon the position, binds the position, and is released by exit" (On Accountability F38); yet Apple City cannot exit the state's permit system. On Accountability gives a close example: "A government converged by a constitutional order cannot exit unilaterally"; and it says of cases of this kind: "In all three, availability is absent. In all three, efficacy is present" (On Accountability F38). The permit is the level above converging Apple City within its authority, and it has the same form as convergence by a constitutional order. "Released by exit" means that if that slot actually terminates, the load is no longer held; it does not mean that there is always a way out to take. So what Apple City holds in the permit slot is still accountability. Whether this accountability stands, and how it continues, is checked by the conditions under which a construct holds accountability (On Accountability F47); whether it has been fulfilled is checked by the conditions of the permit.
So two things hang on one and the same construct, and neither stands in for the other. One is its ought toward its own interior, which this series addresses to it; the other is the accountability it holds in the slot where the level above reins it in, which comes from the power of the level above. Fulfilling the second is not the same as achieving the first. Apple City's sentence "Our releases comply with the permit" sticks at exactly this point; the next section goes into it.
Levels change one more thing: against whom the independence of a channel is to be checked. Institution Theory says of independence that "it is checked against the party actually questioned, and when the party questioned changes level, independence must be checked again" (Institution Theory Z34). The Office of the State Ombudsman receives residents' complaints against every level of government within the state. For Apple City's decisions, it stands outside Apple City, and Apple City cannot seal it off. But if what is questioned is a permit issued by the State Environmental Agency itself, the ombudsman and the Agency are both within the state. Independence does not require standing outside the institution: "Independence is functional and does not require being outside the institution" (Z34); what has to be checked is whether the Agency can, on its own, seal off review of itself. The same ombudsman is independent with respect to the city, and must be checked again with respect to the state. Its being independent with respect to one level does not certify, once and for all, that it is independent with respect to every level. The case in Paper 2 is checked the same way if the losing party appeals to the state courts: the party questioned is the City Police Department, the state courts stand outside Apple City, and Apple City cannot seal them off; if the party questioned were instead an agency of the state itself, it would have to be checked again.
With Ostrom. Elinor Ostrom spoke early about levels and nesting. In Governing the Commons she distilled a set of design principles, the eighth of which says that governance activities are organized in nested units across several layers (nested enterprises; Ostrom 1990, p. 90, per the review by Cox, Arnold and Villamayor Tomás 2010; tier C). That review says that when she laid down this principle she meant vertical links; the reviewers propose extending it to both horizontal and vertical ones (ibid.).
The common question lies here: how several layers of governance fit inside one another, and how they overlap. This paper agrees that nesting and overlap are the normal state, and it agrees too with the reviewers' extension: horizontal links matter as much as vertical ones, and Willow Ferry and Apple City are two parties side by side on the horizontal.
Where they part is scope. What she asks is what arrangements make the self-governance of a common resource last; her answer is design principles distilled from experience. This series gives no design principles; what it establishes is functions and answering: each level is a construct, has its own interior, and answers to those it acts on who come to ask it. Nor does it draw levels by resource systems; it draws them by entanglement. This is a division of scope, and it does not imply that her principles are wrong.
This section has established the first half of G25. The interior beyond the jurisdiction is the subject of the next section; G25 in full is stated at the end of §2.
§2 The Interior Beyond the Jurisdiction
Back to Willow Ferry. Apple City's two sentences have to be checked one at a time.
"Our releases comply with the permit." This sentence is true. What it says is that Apple City has fulfilled its accountability in the permit slot. There are three things it cannot answer.
First, whether the line of Willow Ferry's residents has been crossed. The first ought of Institution Theory says that an institution's acts cross no line against any internal subject, and that this covers "also those who hold no registered position at the construct yet have no way to avoid it by exiting" (Institution Theory Z9). The line is set by structure: "crossing the line does not require that anyone intend it" (Z10); having acted according to the permit does not change this: "That a demand bears the name of procedure does not prove that complying with it is within the line." (Z12)
Second, where the substance in excess comes from. What Willow Ferry detected is an exceedance at its intake; whether it comes from Apple City's releases is not set in this paper. That is precisely what Apple City has to explain.
Third, whether the permit itself was set adequately. That is the State Environmental Agency's account. Paper 1, G2 separates the accounts of the various positions within one construct; here the accounts of two constructs are separated, each checked by its own source: Apple City's account is not transferred to the state because the state issued a permit, and the state's account is not settled because Apple City complied. This step is undertaken by this series, on the grounds of Institution Theory Paper 3, §1 and Institution Theory Paper 1, §4, cited below. Institution Theory has spoken of nesting: if the layer below crosses the line, "what guards this line from outside is an institution at the layer above with the corresponding jurisdiction, and toward the mill and that household what it bears is the second ought at its own layer"; and it goes on: "Nesting is only an example, not a guarantee: a layer above is not necessarily there, and if it is there it does not necessarily have this authority." (Institution Theory Paper 3, §1) So Apple City cannot point to the state. Institution Theory Paper 1 puts it more directly: "If there is a further institution above, with the corresponding authority, that layer also undertakes the guarding within its own range; but 'there is a layer above' cannot be a reason for this layer to be absent." (Institution Theory Paper 1, §4)
"The residents of Willow Ferry are not residents of Apple City." Being a resident is an identity within a jurisdiction. The interior is drawn not by identity but by entanglement (Institution Theory Z4). What Apple City releases into the river flows to Willow Ferry's intake: the people of Willow Ferry are within the reach of Apple City's acts. They cannot avoid it: to avoid it they would have to give up the river from which the town draws its water, or leave their homes. Institution Theory Paper 1, writing of the fish-farming household downstream, speaks of exactly this: being unable to leave the river is being unable to get out of an entanglement, not exiting a registration (Institution Theory Paper 1, §4). So they are in Apple City's interior, though not in its jurisdiction.
Here jurisdiction and interior come apart. A jurisdiction is a territory where decisions and compulsion land; the interior is the people in the entanglement. Apple City's ordinances do not reach Willow Ferry, and the City Police Department does not patrol there; but Apple City's acts reach it.
Being in the interior does not mean being under Apple City's management. Institution Theory says that "reach of influence is not reach of authority" (Institution Theory Paper 1, §4). That the people of Willow Ferry are in its interior does not give Apple City authority to manage their water use, to fine them, or to make rules for them. What being in the interior adds is laid on Apple City itself: its acts cross no line against them (Institution Theory Z9); the channel through which it is questioned is within their reach, since the "can initiate" of Institution Theory's fifth ought is extended to all internal subjects, "including those who hold no registered position" (Z34); and when they ask, it must answer, and must answer the very matter it is questioned about (Z34).
What the residents of Willow Ferry asked was: where does the exceedance come from, and will you change it? What Apple City answered was: we comply with the permit, and you are not residents. This answer does not answer the very matter Apple City was questioned about. What is missing is the burden of explanation, which falls under the fifth ought.
The relation between Apple City and the residents of Willow Ferry is very thin. Relational thickness is how far a construct actually organizes the lives of those inside it, and "it counts arrangement, not harm" (Institution Theory Z25a); Institution Theory has given a like example: "If the wastewater the mill releases ruins the livelihood downstream, that is being affected, not being arranged" (Institution Theory Paper 4, §3). Apple City arranges almost nothing of the lives of Willow Ferry's residents, and the third ought barely reaches here. But this takes nothing away from the items above: "The first and fifth oughts, the 'not sealing the channels' half of the fourth, and the trigger of the second do not vary with it" (the Institution Theory Prequel, §7). Though the relation is thin, the line still may not be crossed, and when asked, Apple City still has to answer.
Apple City's own residents are in this matter too. If a change is made, the cost of the upgrade falls on them. In this judgment Apple City answers to people on both sides: to the people of Willow Ferry it explains the releases and the exceedance; to its own residents it explains on whom the cost falls, and why (the burden of financing must be explained, Paper 3, G20a).
One last thing: whose task it is to write about this matter. Institution Theory itself handles only "the interior relative to one particular construct, together with possible nesting above and below," and hands "conflict among all institutions" to the Theory of the State (the Institution Theory Prequel, §8). This series does not take up the Willow Ferry case as a conflict between two municipalities: the residents of Willow Ferry are in Apple City's interior, and that is the interior of one particular construct; above the two stands the Kingdom State, and the state's guarding of this line is the second ought at its own layer, which is nesting above and below. What this series hands to the Theory of the State is the national level's outward face and borders, and membership; cross-jurisdictional spillover within one state is not among them, and is taken up here.
This section does not judge whether Willow Ferry's line has actually been crossed: that turns on whether the exceedance is harmful and where it comes from, which are matters of fact. What this section says is what each of Apple City's two sentences fails to answer.
G25 Every level of government is a construct, each with its own jurisdiction and its own interior; the five oughts of Institution Theory fall on every level whole. The interior is drawn by entanglement, not by jurisdiction or identity: the levels are both nested and overlapping, and one person can be in the interior of several levels at once. Jurisdiction is not the interior: those whom a level of government's acts reach and who have no way to avoid it by exiting are in its interior even if they are not in its jurisdiction; reach of influence is not reach of authority. Cross-jurisdictional spillover within one state is taken up here and is not handed to the Theory of the State. When the party questioned changes level, the independence of the channel must be checked again against the new party questioned. When a lower level of government is converged by the level above, in that slot it holds accountability, not duty; fulfilling this accountability is not the same as achieving its ought toward its own interior, and the lower level does not treat "there is a layer above" as a reason to be absent. The accounts of two constructs are each checked by their own source and are not transferred from one to the other (own undertaking).
§3 The Separation of Powers Follows Conditions
The residents of Willow Ferry asked, and Apple City's answer missed the point. Where else can they go to ask? Who checks Apple City?
This question has to be answered in three steps.
Step one: every government is subject to being questioned, and this does not presuppose that exit is difficult. Apple City must be open to questioning, and so must Willow Ferry, the Kingdom State and the Orchard Court residential complex; whether one can exit does not change this. The ground for being questioned lies in the stance of Institution Theory Paper 1 and the three conditions of the fifth ought (Institution Theory Z34, Z35a); as for why it must persist, "the ground is in Type B: so long as an institution is still dividing, it is still leaving unaccommodated residue" (Z35a). Residents of Apple City can move away; moving away cannot answer "where does the exceedance come from?" When How Is Institution Possible (Foundational Paper 6; cited as F6) treats self-chiseling at each level, the community level is the one where exit is easiest, and F6 still lists "organizers can be questioned": "At the community level: organizers can be questioned; communities can naturally dissolve; members can exit without friction." (F6 §4.2) Exit and questioning are two things, and the first does not stand in for the second. Every government ought to be open to questioning, and this does not vary with size (Paper 6, G35).
Step two: diagnosis level by level. The checks on a level of government can come from three places: people can leave; outside, there are other routes by which to bring a complaint; inside, there are other positions that can check. At the nation-state level F6 has written: "Exit is constrained, so the check of voting with one's feet fails and the check must come from elsewhere"; its conditional reads: "where exit is insufficient to bear the check this case requires, and this case has no independently invocable external route of handling," then, "if the member protections already undertaken are to be maintained," a real and usable function of check must be retained internally (F6 §3.1b). It goes on at once to state that this is written within the case, "not as a general theorem"; and it adds that "that exit is constrained does not mean exit has no effect at all on power; and sharing a continent does not by itself prove that every external check must fail to be independent" (F6 §3.1b).
What this series borrows is the shape of this conditional, and it does not treat it as a general theorem. So the diagnosis has to be made level by level, and exit and the outer layer are each read on their own. Take Apple City.
Exit: residents of Apple City can move away, but moving has a cost (§5). More important, exit cannot answer the day-to-day. A patrol officer pins someone down and handcuffs him (Paper 2, §3); the Tax Office freezes an account (Paper 2, §4): these land before anyone has moved away. Moving away can answer "I no longer want to be governed by this city"; it cannot answer "this city pinned me down today, froze my account today." The residents of Willow Ferry do not have even the option of moving away: they are not in Apple City's jurisdiction, and the river flows down to them all the same. These are facts of the Apple City case.
External routes: the Kingdom State has them. The State Environmental Agency issues permits and monitors the river; the state courts hear appeals and suits against decisions at the city level; the state ombudsman can call for the case file, require a written explanation and issue a public report, and can refer a case to the state courts, but cannot itself annul or rewrite the city's decisions. These routes exist, and a single major matter can go down them. But Apple City makes rules and carries them out every day: the City Council passes ordinances, patrol officers stop people and arrest them, the Tax Office freezes accounts. The state courts are distant, expensive and slow, and do not reach these day-to-day matters. The ombudsman is within reach, but it can only call for the file, require an explanation, issue a public report and refer to the state courts; it cannot annul or rewrite the city's decisions. Being within reach is not the same as being able to carry the day-to-day check; how far its efficacy goes is checked separately in Paper 6. These too are facts of the Apple City case, not evidence that "external remedies are unavailable to cities in general."
Now the threshold is clear. The threshold lies in conditions, not in head count: holding compulsion, where neither exit nor outer-layer routes can carry the day-to-day check. Apple City holds compulsion, and neither exit nor the outer layer can carry the day-to-day check on it: it has reached the threshold.
Here this series undertakes one statement: from the city level up, the threshold is reached. This is a normative undertaking (a practical judgment), not a factual assertion about cities in general. Holding compulsion, and exit and outer-layer routes being unable to carry the day-to-day check, are the reasons for and the explanation of this undertaking, not antecedents to be verified case by case beforehand; the facts of Apple City above serve to explain it. Whether a given city's outer layer actually reaches the day-to-day is a fact about that city, for which this series has given no general method of checking; that fact does not change the conclusion of this undertaking. "The city level" here is drawn by function: general local governments that make their own rules and carry out compulsion themselves are all included; Willow Ferry, which has its own Town Council and its own mayor, and makes and carries out its own rules, is included too.
Step three: why, at the threshold, there must be a multi-branch separation of powers. This step is undertaken by this series.
First the leg of independence, which Institution Theory already has. Independence is checked against the party actually questioned, and questioning must be something those inside can actually initiate (Institution Theory Z34); "Questioning must be independent, and the reason is that the party under review may not monopolize the decision on whether a challenge exists and whether it is over; self-checking can be done, and does not replace the position of being questioned independently" (Institution Theory Z35a). Apple City makes its own rules and carries out compulsion itself, and the outer layer does not reach the day-to-day; so checking has to be placed inside Apple City, and checking placed inside has to be independent of the party checked.
Then the leg of keeping the three functions apart, which has to be borrowed. In this series the Law Series is a source cited as concurring; what is borrowed are two places, Law Series P3 §5.1 and §5.3, which bear weight at points of connection, and whose application is undertaken by this series. Law Series P3 divides power into three functions: rule-making, execution, checking. Rule-making produces rules; execution puts the rules into practice in particular matters, and whoever executes can hardly help bringing his own bias in; checking questions whether the first two have gone astray. It says: "Three branches form the minimum closed loop for processing remainder." With one fewer, the chain short-circuits somewhere: without checking, the deviations of rule-making and execution go unquestioned; without execution, rules are only words on paper; without rule-making, remainder has no path to being processed into rules (Law Series P3 §5.1). It also says: "If the same person or institution holds more than one branch, BL4 is rendered nominal. You cannot genuinely question yourself." (Law Series P3 §5.3) BL4, in the Law Series, is "law cannot not be questionable" (Law Series P3 §7).
Both places were originally established at the national scale, so in borrowing them it has to be said which half is borrowed. Law Series P3 itself says: "In a small group, this recursion chain is short: every link can be observed by other members." (Law Series P3 §1) The chain has to be folded into a closed loop because at the national scale "the recursion chain of questioning delegates is too long," and "The solution is not to lengthen the chain (that only multiplies breakpoints) but to fold the chain into a closed loop." (Law Series P3, §5 introduction) Both sentences depend on scale, and this series does not borrow them. What it borrows are only the two reasons that do not rest on scale: with one of the three functions missing, the chain short-circuits somewhere (§5.1); one and the same party cannot genuinely question itself (§5.3). As for why a level of government needs this closed loop, this series rests it not on the length of a chain but on the threshold of step two: holding compulsion, where neither exit nor the outer layer can carry the day-to-day check. Being seen by other members is not the same as having a position to go and ask, one that the party checked cannot seal off (Institution Theory Z34, Z35a). The application, carried from the national scale to the city level and to residential complexes that hold compulsion, is undertaken by this series (extension; own undertaking).
Put the two legs together and it comes to this: at the threshold, checking is placed inside the level, independent of the party checked; rule-making, execution and checking are not held by one and the same position. Holding them together means that one position holds the whole of two; partial participation and mutual control do not count as holding them together, and what Law Series P3 calls "Multi-cornered balancing: the remainder of each branch is questioned by the others" (Law Series P3 §5.3) needs exactly these.
This is a strong claim. Where the upstream has a strong and a weak form of one and the same thing, this series takes the weak form by default and leaves the strong form to the Theory of the State; the multi-branch separation of powers is a place where the strong form is explicitly taken, and taking the strong form from the city level up is this series' normative undertaking, for the reasons given by the threshold and the two legs above. The weak form is in F6: "The separation of powers taken here is one implementation of that function, not the only one." (F6 §3.1b) The strong form is in Law Series P3, originally established at the national scale: the multi-branch separation of powers is the structural necessity of BL4 at the national scale, "minimum three, more possible" (Law Series P3, Abstract and §9). Carried down to the city level, the derivation is the two legs above, undertaken by this series. The two legs give the reasons at this level; the undertaking carries the strong form to every city: where a city's outer layer does actually reach the day-to-day, the threshold facts on which the two legs rest do not hold there, and the undertaking stands all the same.
The strong form and "no form is fixed" hold together by virtue of what is counted. What is counted is functions and independent checking positions, not agencies; no constitutional form is fixed. Apple City has the City Council, the mayor with the city departments, and the City Court: three agencies; counting three agencies is not the same as checking being independent. The judges of the City Court are nominated by the mayor and confirmed by the City Council; if the party checked can remove or suspend the checking position, however many agencies there are, it does not count; this appointment relation has to be checked, and it does not automatically prove capture (Paper 2, §10). Conversely, a checking position in the same building as the party checked can be independent, so long as the party checked cannot seal it off. Law Series P3 §5.3 speaks of "the same person or institution"; this series reads "institution" there by function: what the party checked can seal off counts as one hand even if it nominally belongs to a separate agency; what it cannot seal off does not, even within one agency. This reading is undertaken by this series (Institution Theory Z34). "More possible" means refining and reinforcing the three functions further, as with independent oversight, auditing and constitutional review; the core closed loop does not change (Law Series P3 §5.2).
Now to the Willow Ferry case. In this case the outer layer has routes too: the State Environmental Agency, the state courts and the ombudsman are all there. The threshold is read by the level, not by the case: Apple City has reached the threshold, so the checking inside it has to exist, and the residents of Willow Ferry have to be able to reach it as well (Institution Theory Z34: "including those who hold no registered position"). What has to be checked is this: whether there is, inside Apple City, a checking position that the residents of Willow Ferry can reach, that the Sewerage Office and the mayor cannot seal off, and whose reply answers the very matter it is questioned about. This paper does not design this position for Apple City; it says only that it has to exist.
With The Federalist. The common question: how power is kept from falling in one place, and how one party is kept from checking itself. The Federalist is the most famous treatment of this. Three of its papers each have their own point, and are taken separately.
No. 47 says: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny" (Federalist No. 47, per the Avalon Project text; tier A). The same paper says of Montesquieu: "he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other" (ibid.); what he meant was only that "where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted" (ibid.). No. 47 can stand as concurring: it rejects total concentration, and it does not require the departments to have nothing to do with one another. The holding together that this series speaks of is exactly the "whole" against "whole" kind, not "no function may ever cross another."
No. 51 says: "But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others" (Federalist No. 51, same source); "Ambition must be made to counteract ambition" (ibid.). These two sentences stand under a premise: "A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions" (ibid.). At the auxiliary layer, it relies on giving the people in each department the means and the motive to resist one another; that is not the same thing as "You cannot genuinely question yourself." The same paper also requires that each department depend as little as possible on the others for appointment and pay: "Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal" (ibid.). This sentence concurs with this series' independence.
No. 51 has one more place on the same question as this paper: in a compound republic, power is first divided between two levels of government and then, within each, among departments: "The different governments will control each other, at the same time that each will be controlled by itself" (ibid.). What concurs is that control by the outer layer and separation inside are two things, and neither replaces the other. Where they part: The Federalist treats the two as securities that add up; this series requires checking inside because the outer layer cannot carry the day-to-day check (step two), and taking it from the city level up is this series' normative undertaking, not something taken only after the outer layer has been checked city by city.
No. 10 has the closest sentence: "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity" (Federalist No. 10, same source). This is the same reasoning as Law Series P3 §5.3, and it concurs. Only, in No. 10 the maxim does not lead to separation. The author goes on to say that a body of men is even less fit to be judge and party at once, yet many acts of legislation are precisely determinations concerning the rights of large bodies of citizens: "Yet the parties are, and must be, themselves the judges" (ibid.); from there he turns to controlling the effects of faction, and the remedy is representation and an extended sphere. Only the maxim concurs.
Where the maxim leads in No. 10 is the line of argument about the extent of the republic: "Extend the sphere, and you take in a greater variety of parties and interests" (ibid.); No. 51 too argues from the size of the Union. This line depends on scale, and this series does not borrow it, for the same reason that it does not borrow the introduction to Law Series P3 §5. Taking the strong form from the city level up rests on this series' normative undertaking and the derivation above; it is not claimed to have been proved by The Federalist as it stands.
Here is the strongest objection, drafted on behalf of No. 51 (drafted by this paper): if one counts only functions and ignores people's motives, the separation of powers is a boundary on paper; unless the people in each department are given the means and the motive to resist encroachment, the checking position will sooner or later be swallowed. Reply: the half about means is exactly what Institution Theory's independence speaks of; of independence it says: "what it guards against is the party under review sealing off review of itself on its own" (Institution Theory Z34); if the party checked can abolish a checking position, replace its people or cut off its funding, the position is not independent, and this is checked by function, not by name. Neither side relies on a division of labor on paper. At this point The Federalist places the primary control in dependence on the people, and the auxiliary layer in the constitutional means of each department and the motives of its officeholders, and also requires that each department not depend on the others for appointment and pay; the last of these concurs with this series' independence. They part only on the half about motives: this series writes no motives for persons and does not count on the ambition of whoever sits in any position; it puts this half in a channel that those inside can reach and can initiate without retaliation (Z34). The objection has weight: this series gives no warrant that a checking position will not be swallowed, nor for when questioning will happen or who will take it up (Institution Theory Z37). What it gives is a criterion: if the party checked can abolish the position, replace its people or cut off its funding, independence is already gone, and that has to be explained and corrected; a channel that has fallen into the hands of the party questioned is capture (Paper 6, G38).
This section gives G26's general rule. The residential complex is the subject of the next section; G26 in full is stated at the end of §4.
§4 The Residential Complex
The Orchard Court covenant was passed by the owners' assembly in Year 3. Paper 2 has set out its text in full (Paper 2, §7); here one clause is used, on the handling of arrears: a household six months in arrears on the management fee is fined monthly and loses the use of the clubhouse and of the surface parking spaces; the owners' committee makes the decision, and the property-management company carries it out on instruction. Owners pay the management fee into the complex's account, and the owners' committee then pays the property-management company its service fee. How the six months are counted, how much the monthly fine is, and from what day use is suspended are set out in detailed rules made by the owners' committee. A household in arrears that objects to the measures makes representations to the owners' committee, and these too are heard by the owners' committee. A household in arrears can sue the owners' committee in the City Court, but it needs a lawyer, and a first-instance case usually takes a year.
Three things first. Whom it concerns: the household in arrears; the other owners. Which line: the fines and the suspension of the clubhouse and parking spaces act on facilities and property that can be subject to agreement; within the line. Baseline: an owner who pays on time.
Take the three steps of §3.
Step one needs little comment: Orchard Court is subject to being questioned, and is not exempted because owners can sell and move away.
Step two, the diagnosis. Here, at the residential complex, the three elements of the threshold have to be marked separately, because they differ in kind.
Holding compulsion. Fines and suspensions are decided by the owners' committee and carried out by the property-management company; from start to finish the measures pass through no position outside the complex; when the complex enforces its own covenant, the fines and suspensions are the compulsion it holds. This is a normative reading, not a factual judgment. If the covenant could be enforced only through the City Court, the case would be different (the branch below).
The outer layer. When the complex enforces its own covenant, the outer layer's checking is not present in each act of enforcement: a fine is issued, a parking space is suspended, and neither first passes any position outside the complex. What remains are after-the-fact routes: the household in arrears can take the matter to the City Court, but needs a lawyer, and a first-instance ruling takes a year; for a fine that grows month by month and a parking space suspended today, this route cannot carry the day-to-day check. This is a fact of this case. To say that a complex that enforces its own covenant reaches the threshold is not to declare that no complex has any after-the-fact route; it is this series taking up a normative undertaking at this point (see below); whether another complex actually has after-the-fact routes, and whether they are within reach, is a fact about that complex, and it does not change the conclusion of this undertaking.
Exit. Owners can sell and move away; but selling takes time and also requires the owners' committee's written consent (§6); the fine grows month by month, the parking space is suspended today, and selling the home cannot answer these. Exit means moving house and cannot carry the day-to-day check here; this too is a fact of this case.
All three are present: Orchard Court is at the threshold. That a residential complex that enforces its own covenant reaches the threshold is this series' normative undertaking (a practical judgment), not a factual assertion about residential complexes in general. "Enforcing its own covenant" is a normative trigger: a complex that enforces its own covenant reaches the threshold; one that does not, does not. That the outer layer and exit cannot carry the day-to-day check is the reason for and the explanation of this undertaking, not an antecedent to be verified case by case beforehand; Orchard Court's year-long first-instance lawsuit and the owners' committee's consent required for a sale are facts of this case that explain it. This undertaking does not conflict with the general rule of §3: when the complex enforces its own covenant, the outer layer's checking is not present in each act of enforcement; and exit means moving house, and cannot carry the day-to-day check.
Step three: see whose hands the three functions are in. The covenant was passed by the owners' assembly, so part of rule-making lies elsewhere; but the detailed rules for enforcement are set by the owners' committee, the measures are taken by the owners' committee, and representations are heard, again, by the owners' committee. Setting the detailed rules, deciding on enforcement, hearing representations: all three sit in one and the same position. If the household in arrears says "I already paid last month," the one who hears it is the very party that fined that household. This is what "You cannot genuinely question yourself" looks like. Carrying Law Series P3 §5.1 and §5.3 to the residential complex is the same step as carrying them to the city level, and is undertaken by this series (§3); that a complex has few people, who can see one another, does not stand in for that position (§3).
What has to be separated is functions, not agencies: the position that hears representations is to be other than the one that took the measures, and one the owners' committee cannot seal off. Setting the detailed rules and taking the measures are not to be held by one and the same position either: the detailed rules settle how much the fine is and from what day use is suspended, and if the one who sets them is the one who fines, rule-making and execution are in one hand. How to separate them, whether by the owners' assembly electing a few other people or by some other arrangement, this series does not settle; nor does it count how many agencies a complex needs.
The position of the property-management company has to be stated precisely. When it imposes fines and suspensions under the covenant and on the owners' committee's instructions, that counts as the complex enforcing its own covenant. Those who suspend a parking space or write out a fine on instruction are the company's people; this act is traced back to their invocation of the complex's covenant and the owners' committee's instructions, and the address of attribution is the complex: "the construct's acts can be traced back to their invocation by particular nodes" (Institution Theory Z7a). The company in between is a contracted construct; it holds its own accountability toward the complex (a construct can hold accountability, On Accountability F39), and it does not answer to the household in arrears on the complex's behalf (Paper 1, G8). When the company acts on its own under the service contract, cleaning and doing repairs and collecting its service fee from the owners' committee, it is a construct, not a government (the Prequel, §7). The management fee is paid into the complex's account, so in the matter of arrears the company is not also the party that collects: what is owed is the complex's money, and the one that fines is also the complex. So it cannot be said that "the fine was written by the property-management company and has nothing to do with the owners' committee"; nor, conversely, can the company be counted as a fourth level of government.
Now a branch. Suppose that the covenant provided that fines could be enforced only after the owners' committee had sued and the City Court had given judgment. Then every fine would first pass through the City Court; the outer layer's checking would already be present in each act of enforcement. On this item the separation may be weak. But if suspending the clubhouse and parking spaces were still done by the owners' committee itself, that item would still be enforced by the complex itself, and would still reach the threshold. The threshold is read item by item, according to which things the complex actually enforces itself.
Three things are to be set beside this case, as contrasts only.
One is the community level that F6 describes: its conditions are "voluntary entry; frictionless exit," and so "Institution is very thin" (F6 §3.1c); its conditions also include "almost no coercive power" (ibid.). Orchard Court is often called a community too, but one moves in by buying a home and leaves by selling and moving house, so exit has friction; and it enforces fines and suspensions itself, which also differs. Sharing the name does not mean inheriting "very thin."
Another is what the same paper writes of the early-stage startup: "five people do not need four-branch separation" (F6 §3.1e). That sentence speaks in terms of head count (that tier's conditions also include greater survival pressure and faster change). This series' threshold does not go by head count: a complex of only a few dozen households that enforces fines itself reaches the threshold; an owners' organization of several thousand households that holds no compulsion at all does not. That paper itself has another statement that puts it more precisely: "A construct's scale cannot by itself fix the necessary number and granularity of its institutional provisions." (F6 §3.2, Proposition III)
The third is the incident in the stairwell. The resident upstairs blocked the resident downstairs and made threats, and protection came from the City Police Department (Paper 2, §9). The complex does not acquire compulsion because neighbors need protection from one another; the only compulsion in its hands is the few things its covenant gives it, and it reaches the threshold only on the things it enforces itself. Paper 2 has already judged the case of cutting off entry access: it crosses the line (Paper 2, §7). Crossing the line is read under the first ought; whether powers are separated does not change the judgment that the line was crossed.
One last sentence: the separation of powers may weaken with conditions, but openness to questioning does not. If Orchard Court's covenant followed that branch, and fines could be enforced only through the City Court, the separation of powers could be weak; but if the household in arrears or other owners object to the owners' committee's measures, there must still be a place to ask, one that the owners' committee does not control single-handedly, that is within reach, and where asking does not cost anyone a parking space. The channel at the level of the complex is treated in detail in Paper 6 (G35).
G26 The separation of powers follows conditions, in three steps. First, every government is subject to being questioned, and this does not presuppose that exit is difficult. Second, a diagnosis level by level: whether exit and external routes can carry the day-to-day check on this level. The threshold lies in conditions, not in head count: holding compulsion, where neither exit nor outer-layer routes can carry the day-to-day check; from the city level up, and for a residential complex that enforces its own covenant, the undertaking below reads this diagnosis as reaching the threshold; it is read by level, not checked city by city. In the Apple City case, the distance, expense and slowness of the state courts and the limits on the ombudsman's efficacy are facts of this case that explain the undertaking below, not an assertion about cities in general. Third, at the threshold, checking must be placed inside this level, independent of the party checked; rule-making, execution and checking are not held by one and the same position, holding them together meaning that one position holds the whole of two; what is counted is functions and independent checking positions, not agencies; no constitutional form is fixed; a minimum of three branches, and more are possible (extension; own undertaking). From the city level up, this strong form is taken; "the city level" is drawn by function: general local governments that make their own rules and carry out compulsion themselves are all included, and towns are included too. A residential complex: where it holds no compulsion, or where its covenant can be enforced only through the City Court, the separation may be weak; where it enforces its own covenant, it reaches the threshold, and separation is likewise required. "From the city level up, the strong form is taken" and "a residential complex that enforces its own covenant reaches the threshold" are this series' normative undertaking (a practical judgment), not a factual assertion about cities in general; holding compulsion, and exit and outer-layer routes being unable to carry the day-to-day check, are the reasons for and the explanation of this undertaking, not antecedents to be verified case by case beforehand. For the residential complex this does not conflict with the reading of the general rule: when it enforces its own covenant, the outer layer's checking is not present in each act of enforcement, and exit means moving house; they cannot carry the day-to-day check. "Enforcing its own covenant" is a normative trigger: a residential complex that enforces its own covenant reaches the threshold; one that does not, does not. Whether after-the-fact outer-layer routes can actually carry the check is a matter of fact, used to explain this undertaking, and it does not change its conclusion; the two are marked separately. The threshold is read separately for each item the complex actually enforces itself. When the property-management company enforces the covenant on the complex's behalf, this counts as the complex enforcing it itself; when it acts on its own under the service contract, it is a construct, not a government. Where the separation of powers may be weak, openness to questioning is not.
§5 Exit and Levels
If that resident dislikes the complex's covenant, she can sell and move away; there is a clause in the covenant requiring the owners' committee's consent to a sale (§6). If she dislikes Apple City, she can move to Willow Ferry; Paper 6 will describe a public-housing tenant who found work in Willow Ferry but could not afford the early-termination penalty of twelve months' rent. If she dislikes the Kingdom State, she has to move out of the state, at a still greater cost.
Exit is a check: if people can leave, a construct cannot do as it pleases. But how much it can actually carry differs from level to level. §3 has cited F6's conditional: where exit is insufficient to carry the check required, the check must come from elsewhere; where external routes are insufficient too, then if the member protections already undertaken are to be maintained, a real and usable function of check must be retained internally (F6 §3.1b). That sentence is written within the nation-state case, and says of itself: "The necessary condition above is written within this case, not as a general theorem." (F6 §3.1b) This section extends it to every level, in two respects. One is scale: from the nation-state case to every level of government. The other is the antecedent: F6 speaks of member protections already undertaken; this series draws the interior by entanglement, not by membership, and a government always undertakes the guarantee of the recognition-based rights it has embedded (Paper 3, G17); so on the side of government this antecedent is read as that guarantee, and it is always present: the "if" in F6's sentence is always satisfied for a government. Both are undertaken by this series (extension; own undertaking); each level's exit and external routes are still read level by level as they actually are (§3, step two; the threshold for the separation of powers is read separately, by level, under G26's undertaking).
Law Series P3 states the relation between exit and law bluntly: "Exit is a condition of law's existence"; where exit is available, law is thin, because exit is itself a counter-mechanism; where exit is unavailable, law must be thick; "The thickness of law is a function of the degree to which exit is absent." (Law Series P3 §6; restated in Law Series P4 §1) The thickness of law there means how many rules there are, how complex the institutions are, how deep the structures of questioning go (Law Series P3 §8).
This reading was originally established at the national scale. Extending it to every level of government is a step of this series (extension; own undertaking). There are two grounds for the extension. One is that the two sentences of §6 rest their case on exit, not on scale. The other is that the Law Series itself carries the reading beyond the nation: Law Series P4 says that micro-scale sealed nodes such as generation ships "still reproduce the logic of national law," because "The variable of the parabola is exit, not era." (Law Series P4 §3) There are only a few hundred people on such a ship, and "All three variables point to the thickest law." (ibid.); the Law Series' own reading is that "Exit cost is the primary variable; relational density is the modulator." (Law Series P4 §5) Head count as such is not among its variables. This series applies the reading to every level, and reads each level's exit as it actually is, not presumed from its rank; what is read off is the thickness of law, not the threshold for the separation of powers (G26).
Read as they actually are, the levels look like this. The complex: selling and moving house, subject to that clause of the covenant. The city: moving house, at a cost that differs from person to person. The state: moving out of the state, at a greater cost. And there are people who, toward a given level, have no exit at all: the residents of Willow Ferry toward Apple City. They are not in Apple City's jurisdiction; whether or not they move, the river flows down to them. For them, the checks on Apple City can come from only two places: the state outside, and the checking position inside that they can reach.
Levels also make "external" relative. For the complex, the City Court is outside; for Apple City, the state is outside; further up, at the national level, F6 describes the level at which external checks are hard to invoke independently (F6 §3.1b); whether the national level still has independently invocable external routes above it, this paper does not judge, and its outward-facing side goes to the Theory of the State. The lower one goes, the more external routes there may be overhead; but only "may": whether those routes can carry the day-to-day check is read as it actually is. Above Orchard Court's household in arrears there is the City Court, but a first-instance case takes a year (§4); in §4 this fact explains that undertaking, and it is not an antecedent of the threshold.
Two more sentences need to be made clear.
One: exit does not stand in for questioning. Step one of §3 has already said that those who can leave can also ask; exit is voting with one's feet, and it does not answer the matter asked about.
The other: the thickness of law is not relational thickness. This series names apart the thicknesses that come from three places: the thickness of law that the Law Series speaks of; the thickness of provisions and the thickness of accountability that F6 speaks of, of which that paper itself states that the one "is not the same explanandum" as the other (F6 §3.2, Proposition III); and the relational thickness that Institution Theory speaks of, that is, how far a construct actually organizes the lives of those inside it (Institution Theory Z25a). They are not called by one name. The residents of Willow Ferry show exactly why: Apple City arranges almost nothing of their lives, so the relational thickness is very thin; yet they have almost no way to exit from Apple City, so the check on Apple City must come from elsewhere (§3). The two can run in opposite directions.
With Hirschman (preview). Albert O. Hirschman has written on exit and voice. On the side of voice, Institution Theory Paper 0 has already conversed with him (§7); the side of exit is taken up in Paper 6: how exit is kept from being granted in form and sealed off in fact.
G27 Where exit is insufficient to carry the check a level of government requires, the check must come from another, usable source; where external routes are insufficient too, that level always undertakes the guarantees it has embedded (Paper 3, G17), and a real and usable function of check must be retained internally. Exit is a condition of law's existence, and the thickness of law varies with the absence of exit; this reading is extended from the national scale to every level, and each level's exit and external routes are read as they actually are, not presumed from its rank; what is read as it actually is here is the thickness of law and this conditional, while the threshold for the separation of powers is read by level under G26's normative undertaking and is not reversed by the readings here. Moving out of a city is easier than leaving a country, but it still has a cost. Exit does not stand in for questioning. The thickness of law is not relational thickness, and both are named apart from the thickness of provisions and the thickness of accountability (extension; own undertaking).
§6 Between Upper and Lower Levels
In Year 4, the State Legislature of the Kingdom State passed a bill taking the management of Riverbank Park from Apple City's Parks Office and placing it with the State Parks Authority, on the ground that the flood levee was being reinforced at the state's expense. From then on, the park's opening hours, vendor permits and event approvals were all decided by the state.
Three things first. Whom it concerns: Apple City, as a construct; and the residents who use the park regularly. Which line: no one person's line is at stake. What is at stake is which affairs are the state's common affairs and which are Apple City's local affairs, and Apple City's capacity to handle its local affairs. Baseline: before the taking.
First, convergence has to be kept apart from taking away. The state issuing Apple City an effluent permit is convergence: Apple City still runs its sewerage, still answers to those in its interior, and holds accountability only in the permit slot (§1). Riverbank Park is a taking away: those matters have been taken out of Apple City's hands entirely.
The taking is a judgment of the state. To whom it answers: to those in the state's interior who are affected by the taking, the residents who use the park regularly among them; Apple City's City Council and Parks Office can ask by way of their positions. Apple City as a construct has no law of its own; what it loses is the position for handling these affairs, and this loss has to be explained, but the explanation is still owed to persons. For what it answers: what is taken, on what grounds, and why it belongs to the state's level; the explanation must answer the very matter it is questioned about (Institution Theory Z34).
The reason the state gives is the levee. The levee is reinforced at the state's expense, so on matters related to the levee the state has a say. But what was taken is more than the levee: opening hours, vendor permits and event approvals were taken along with it. Whether the reason reaches as far as these has to be explained; one ground cannot hold up a range larger than itself.
After the taking, when the regular park users have something to ask, whom do they ask? Before, they went to their council member or to the Parks Office; now they have to go to the State Parks Authority. Whether this route is within their reach has to be checked, and independence is checked again against the new party questioned (§1).
One misreading has to be headed off here: that once matters are taken up, the relation becomes thinner. It does not. Whether opening hours count toward relational thickness is checked separately under Institution Theory Z25a: the part where going to the park or not is up to the person, and not going costs nothing, is not counted; counted or not, it makes no difference to this reading whether the state decides or the city (Z25a, read from the structure). What is wrong with "swallowing" is not thinning. What is wrong lies in three places: the ground does not reach as far as the range taken; after the taking, those affected cannot reach the route for questioning it; and a place where the lower level was making judgments and answering has been taken away, while the reasons for taking it say nothing about those affairs.
Nor does this mean that the upper level may take nothing. In the Willow Ferry case, whether the permit was set adequately is the State Environmental Agency's account, and above it there are still the state courts and the ombudsman (§2); some matters are for the upper level to handle in the first place. Moving a matter up is not in itself swallowing. What this section requires is only this: a taking has to be explained, its grounds have to reach as far as the range taken, and after the taking the route of being questioned has to be within reach.
With Tocqueville. Alexis de Tocqueville drew a division between upper and lower in Democracy in America. He says that "there exist two distinct kinds of centralization, which it is necessary to discriminate with accuracy": "Certain interests are common to all parts of a nation, such as the enactment of its general laws and the maintenance of its foreign relations. Other interests are peculiar to certain parts of the nation; such, for instance, as the business of different townships" (Democracy in America, vol. 1, bk. 1, ch. 5, trans. Reeve, Project Gutenberg EBook #815; tier A). Power over the first, concentrated, is governmental centralization; power over the second, concentrated, is administrative centralization (ibid., paraphrased). He does not oppose the first: "I cannot conceive that a nation can enjoy a secure or prosperous existence without a powerful centralization of government" (ibid.); what he opposes is the second: "a central administration enervates the nations in which it exists by incessantly diminishing their public spirit" (ibid.). He even thinks the Americans have gone too far in this direction: "The Americans seem to me to have outstepped the limits of sound policy in isolating the administration of the Government" (ibid.); and in a note he says: "The authority which represents the State ought not, I think, to waive the right of inspecting the local administration, even when it does not interfere more actively" (ibid., note r). He also says that "no immunities are so ill protected from the encroachments of the supreme power as those of municipal bodies in general" (ibid.).
What meets this paper is only the latter half: how common affairs and local affairs are divided, and which local capacities for handling affairs should not be replaced by concentration. Riverbank Park falls right here: the levee looks like a common matter, vendor permits and event approvals like local ones. On this point they concur. It also meets his note: that the upper level may inspect the lower is not the same as taking the lower level's affairs away.
Where they part is in the reasons. Tocqueville opposes administrative centralization on the ground of its effects: it diminishes public spirit and enervates nations. This series does not derive its requirements from effects of this kind, such as public spirit; what it requires is that a taking be explained and that the route of being questioned be within reach. Nor does he oppose all concentration at the upper level: he says governmental centralization is indispensable, and thinks the Americans have gone too far the other way; this paper does not cast him as opposing all concentration only to refute him.
In F6's Appendix B, the Constitution of the Azerothian Commonwealth, there is a subsidiarity principle: "Any matter should be handled by the lowest tier capable of handling it effectively. Authority moves upward only when a lower tier cannot handle the matter effectively. The burden of proof falls on the party proposing the upward move." (F6, Appendix B, Article 19) This article serves only as an example. That paper states that the appendices are a working demonstration of the seven-tier retroduction, "not evidentiary for this version" (F6, the introduction to the Appendices). The article also asks for more than this section does: it presupposes a default allocation, and puts the burden of proof on the party proposing the upward move. This series does not borrow it, nor does it judge whether such an article should be laid down.
On the lower level's side there is a different fault.
The same covenant has another clause: an owner who sells the home must have the owners' committee's written consent; the owners' committee may refuse "to maintain harmony in the complex."
Three things first. Whom it concerns: an owner who wants to sell. Which line: the channel of exit. Baseline: being able to sell without consent.
Rights Theory has drawn this line: for a constraint to be a limit, it must be one that "does not seal the subject's structural channel for exiting, refusing, or revoking a standing bond"; "Whatever crosses these is violation" (Rights Theory P5 F21). It has also made clear what sealing the exit channel is: "it is not the presence in a relation of terms, procedures, conditions, or costs of exit; it is the subject no longer holding a structural channel for refusing, revoking a standing bond, or passing into a reviewable procedure"; "a constraint may set the conditions of a standing bond, but it may not seal exit, refusal, and revocation themselves" (Rights Theory P5 §III, F21 elaboration).
So "consent required" is not in itself sealing off; what has to be checked is whether, once refused, this owner still keeps a way: to be able to sell, or to pass the refusal into a procedure that can review it. "To maintain harmony in the complex" gives review no basis to check against, and the owners' committee can refuse at will; if things go as in §4, the only outside route is a lawsuit in the City Court, with a lawyer and a year's wait. The owners' committee's reason is harmony in the complex, and its intention may be good; intention does not change the reading: "The constrainer's good will does not change the reading, and neither does what the constrained feels" (Rights Theory P5 §III, F21 elaboration). The half of Institution Theory's fourth ought that concerns not sealing off exit applies "without variation" (Institution Theory Z28). Which side this clause falls on has to be checked by what way this owner actually still has left; how the cost of exit is read is taken up in Paper 6 (G39). What this section has to say is the side that concerns levels.
An owner who sells is also in Apple City's interior, and also in the Kingdom State's. Someone who exits a residential complex is most likely still in the same city. The upper level's guarding of this line within its authority is the second ought at its own layer (Institution Theory Paper 3, §1). The complex cannot say "the City Court is there; owners can go and sue"; nor can Apple City say "that is the complex's own affair." The first uses the layer above to excuse this layer's absence; the second uses the layer below to excuse it.
This clause also connects with §5. Exit is one of the checks on the complex; if the complex seals off exit, it dismantles a check on itself, and the reasons for requiring it to separate its powers can only weigh more. But this is the second reading. The first reading is the line: if exit has been sealed off, that is a violation, and it is read first under the first ought.
Here is an objection (drafted by this paper): the covenant was passed by the owners' assembly and is the owners' own choice; if the upper level steps in on this clause, it is swallowing the lower level. The reply has two parts. One: that a vote passed it does not prove it is within the line; "limit and violation are decided by structure, not by motive or feeling" (Institution Theory Z10), and the willingness of most owners does not change the reading either (Rights Theory P5 §III, F21 elaboration). The other: guarding the line is not swallowing. Swallowing is taking away the lower level's position for handling local affairs; guarding the line is the upper level, within its authority, blocking one crossing of the line, while the rest of the covenant is still managed by the complex itself. The two halves do not collide.
As for G28, it is not derived from the appendix; it is this series' own step (own undertaking). Its grounds lie in several places this series already has: the upper level's taking up of affairs is a judgment, a judgment has to be explained, and the explanation must answer the very matter it is questioned about (Paper 1, G2; Institution Theory Z34); the route of being questioned has to be within reach, and independence is checked again against the new party questioned (Institution Theory Z34; §1); the channel of exit is not sealed off (Rights Theory P5 F21; Institution Theory Z28); the upper level guards the lines within its interior, within its authority (Institution Theory Paper 3, §1). G28 only places these between an upper and a lower level, taking one side of each.
G28 The upper level does not swallow the lower, and the lower level does not seal off exit (own undertaking). When the upper level takes matters up, that is a judgment of its own: it must explain what it takes, on what grounds, and why the matter belongs to its level, and the grounds it gives must reach as far as the range it takes; after the matters have been taken up, the route of questioning it must still be within reach of those affected, and independence is checked again against the new party questioned. Moving a matter up is not in itself swallowing. The lower level does not seal off the structural channels by which those in its interior exit, refuse, revoke a standing bond, or pass into a reviewable procedure; these people are also in the interior of the upper level, and the upper level guards this line within its authority; no level makes the existence of another level a reason to be absent.
§7 Relational Thickness and Levels
Back to that resident. This time what is to be read is which parts of her life each of the three levels organizes.
The complex organizes her daily comings and goings: swiping her card in and out of the building, which space her car is parked in, whether she can use the clubhouse. Apple City organizes much of what happens once she is outside the complex gate: her child attends a city elementary school, and her daily schedule follows the school's; the street in front of her door belongs to the city. The Kingdom State organizes her livelihood: the license for her line of work is issued by the state, and its conditions settle what she can do and how she can advance.
Some things are there but are not counted. If she calls the police at night, it is the City Police Department that comes; the state courts are there too. If she does not use them, she loses nothing. Institution Theory says that "conditions that carry no direction and whose refusal costs no one his position are not counted" (Institution Theory Z25a).
This is relational thickness. Institution Theory says: "Relational thickness is how far a construct, in a given relation, actually organizes the lives of its internal subjects"; "it counts arrangement, not harm"; "it is read from the structure, not from the construct's own account" (Institution Theory Z25a); what it looks at is "how much of their time, attention, livelihood and path of development it arranges" (Institution Theory Paper 4, §3).
Read from the structure, the three levels have no fixed order. In daily time, the complex and the city organize more; in livelihood and path of development, one license may weigh more than the complex's entire covenant. The level nearest her does not necessarily organize the most of her life; the level highest in administrative rank does not necessarily organize the least. Relational thickness is not ordered by administrative rank, nor by geographic distance; it is read as it actually is, level by level and matter by matter.
What is the reading for? Whichever level actually organizes more of her time, attention, livelihood and path of development, the third ought weighs more heavily at that level: for what that level has organized, taken up or restricted, it must correspondingly explain how room is left and provided for her (Institution Theory Z25). If the conditions of the license fix rigidly the only way she can go in her line of work, it is the state that must explain. Each level owes, according to its actual relational thickness, the corresponding conditions and explanation; how the levels share this belongs to specific theories of institutions (Paper 3, §8).
What relational thickness does not govern must also be made clear. "The first and fifth oughts, the 'not sealing the channels' half of the fourth, and the trigger of the second do not vary with it" (the Institution Theory Prequel, §7). However little the complex organizes her life, it may not seal off her way to sell (§6); however thin Apple City's relation to the residents of Willow Ferry, it must answer their questions (§2).
Nor are relational thickness and the thickness of law of §5 called by one name. The former measures how far a construct organizes people's lives; the latter is the Law Series' term, measuring how thick rules, institutions and structures of questioning need to be, and it varies with the absence of exit (Law Series P3 §6, §8).
With Tocqueville on the township. Tocqueville wrote about what a level of local government is in people's lives when he described the townships of New England. He says: "Town-meetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach men how to use and how to enjoy it" (Democracy in America, vol. 1, bk. 1, ch. 5, trans. Reeve; tier A); the New Englander takes part in every matter of his township, and "he practises the art of government in the small sphere within his reach" (ibid.).
What he describes is the township handling its own affairs, and the experience of participation people gain in it. The townships he describes average two to three thousand inhabitants; and he notes that "The same rules are not applicable to the great towns" (ibid., note).
The common question: what a level of local government is in people's lives. Where they part is in what is measured. This series' relational thickness measures how far a construct organizes people's lives, not how much people participate. People meeting others in the town meeting and learning to handle affairs in common would, if placed within this series, touch at least two places. One is the "leaving room" half of the fourth ought (Institution Theory Z28); the fourth ought does not require that cultivation happen. The other is the side on which the town meeting makes decisions, which belongs to Paper 6 (G36a, G40). What Tocqueville looks at is the effect of such participation in forming a spirit of liberty; this series does not derive its requirements from effects of this kind. He also writes that "the abuses which may injure isolated individuals are forgotten in the general contentment which prevails" (ibid.); this is his description, not a normative endorsement. This series requires something else: an individual's question must have a place to be asked (§4). Nor does this paper first set up on his behalf a general rule of "the nearer, the thicker" only to refute it; he set up no such rule.
G29 Relational thickness is how far a construct actually organizes the lives of its internal subjects; it is read from the structure and is not ordered by administrative rank or geographic distance; it counts arrangement, not harm; conditions that carry no direction and whose refusal costs no one his position are not counted. Whichever level actually organizes more of its internal subjects' time, attention, livelihood and path of development, the third ought weighs more heavily at that level; the first and fifth oughts, the "not sealing the channels" half of the fourth, and the trigger of the second do not vary with it. Relational thickness and the thickness of law are not called by one name.
Where This Paper Stops
This paper has proved only these things: every level of government is a construct, each with a jurisdiction and an interior; the interior is drawn by entanglement, the levels are nested and overlapping, and one person is in the interior of several levels; a lower level converged by the level above holds accountability in that slot, and fulfilling the accountability is not achieving the ought; there is an interior beyond the jurisdiction too, and spillover within one state is taken up here; the separation of powers follows conditions: every government is subject to being questioned, the diagnosis is made level by level, and at the threshold checking is placed inside and the three functions are separated, counting functions, not agencies; from the city level up the strong form is taken, and a residential complex that enforces its own covenant also reaches the threshold; these two points are this series' normative undertaking, with holding compulsion and the inability of exit and the outer layer to carry the check as its reasons, not as case-by-case antecedents; where the separation of powers may be weak, openness to questioning is not; where exit falls short, the check comes from elsewhere, and where the external routes fall short too, a function of check is retained internally; the thickness of law is read by exit and extended to every level; the upper level does not swallow the lower, and the lower does not seal off exit; relational thickness is read from the structure, not ordered by rank or distance.
What it has not proved: how federalism is to be designed, which belongs to specific theories of institutions; the outward-facing side of the national level, which is the Theory of the State's affair; the concrete form of the separation of powers and how checking positions are to be set up, which belong to specific theories of institutions; how the levels share conditions, which belongs to specific theories of institutions; whether Willow Ferry's line has actually been crossed, which is a matter of fact this paper does not judge; whether the outer layer in a given place actually reaches the day-to-day, for which this paper has given no general method of checking, and which does not change the conclusion of the undertaking above. Every government ought to be open to questioning; how the channels at each level are brought within reach is written in Paper 6 (G35); the cost of exit is written in Paper 6 (G39).
Levels are one dimension. The other is time: when matters are urgent and judgment cannot wait for the channels to run their course, what holds as before, and what may go faster. Paper 5 takes this up.
The Five Propositions of This Paper
G25 Every level of government is a construct, each with its own jurisdiction and its own interior; the five oughts of Institution Theory fall on every level whole. The interior is drawn by entanglement, not by jurisdiction or identity: the levels are both nested and overlapping, and one person can be in the interior of several levels at once. Jurisdiction is not the interior: those whom a level of government's acts reach and who have no way to avoid it by exiting are in its interior even if they are not in its jurisdiction; reach of influence is not reach of authority. Cross-jurisdictional spillover within one state is taken up here and is not handed to the Theory of the State. When the party questioned changes level, the independence of the channel must be checked again against the new party questioned. When a lower level of government is converged by the level above, in that slot it holds accountability, not duty; fulfilling this accountability is not the same as achieving its ought toward its own interior, and the lower level does not treat "there is a layer above" as a reason to be absent. The accounts of two constructs are each checked by their own source and are not transferred from one to the other (own undertaking).
G26 The separation of powers follows conditions, in three steps. First, every government is subject to being questioned, and this does not presuppose that exit is difficult. Second, a diagnosis level by level: whether exit and external routes can carry the day-to-day check on this level. The threshold lies in conditions, not in head count: holding compulsion, where neither exit nor outer-layer routes can carry the day-to-day check; from the city level up, and for a residential complex that enforces its own covenant, the undertaking below reads this diagnosis as reaching the threshold; it is read by level, not checked city by city. In the Apple City case, the distance, expense and slowness of the state courts and the limits on the ombudsman's efficacy are facts of this case that explain the undertaking below, not an assertion about cities in general. Third, at the threshold, checking must be placed inside this level, independent of the party checked; rule-making, execution and checking are not held by one and the same position, holding them together meaning that one position holds the whole of two; what is counted is functions and independent checking positions, not agencies; no constitutional form is fixed; a minimum of three branches, and more are possible (extension; own undertaking). From the city level up, this strong form is taken; "the city level" is drawn by function: general local governments that make their own rules and carry out compulsion themselves are all included, and towns are included too. A residential complex: where it holds no compulsion, or where its covenant can be enforced only through the City Court, the separation may be weak; where it enforces its own covenant, it reaches the threshold, and separation is likewise required. "From the city level up, the strong form is taken" and "a residential complex that enforces its own covenant reaches the threshold" are this series' normative undertaking (a practical judgment), not a factual assertion about cities in general; holding compulsion, and exit and outer-layer routes being unable to carry the day-to-day check, are the reasons for and the explanation of this undertaking, not antecedents to be verified case by case beforehand. For the residential complex this does not conflict with the reading of the general rule: when it enforces its own covenant, the outer layer's checking is not present in each act of enforcement, and exit means moving house; they cannot carry the day-to-day check. "Enforcing its own covenant" is a normative trigger: a residential complex that enforces its own covenant reaches the threshold; one that does not, does not. Whether after-the-fact outer-layer routes can actually carry the check is a matter of fact, used to explain this undertaking, and it does not change its conclusion; the two are marked separately. The threshold is read separately for each item the complex actually enforces itself. When the property-management company enforces the covenant on the complex's behalf, this counts as the complex enforcing it itself; when it acts on its own under the service contract, it is a construct, not a government. Where the separation of powers may be weak, openness to questioning is not.
G27 Where exit is insufficient to carry the check a level of government requires, the check must come from another, usable source; where external routes are insufficient too, that level always undertakes the guarantees it has embedded (Paper 3, G17), and a real and usable function of check must be retained internally. Exit is a condition of law's existence, and the thickness of law varies with the absence of exit; this reading is extended from the national scale to every level, and each level's exit and external routes are read as they actually are, not presumed from its rank; what is read as it actually is here is the thickness of law and this conditional, while the threshold for the separation of powers is read by level under G26's normative undertaking and is not reversed by the readings here. Moving out of a city is easier than leaving a country, but it still has a cost. Exit does not stand in for questioning. The thickness of law is not relational thickness, and both are named apart from the thickness of provisions and the thickness of accountability (extension; own undertaking).
G28 The upper level does not swallow the lower, and the lower level does not seal off exit (own undertaking). When the upper level takes matters up, that is a judgment of its own: it must explain what it takes, on what grounds, and why the matter belongs to its level, and the grounds it gives must reach as far as the range it takes; after the matters have been taken up, the route of questioning it must still be within reach of those affected, and independence is checked again against the new party questioned. Moving a matter up is not in itself swallowing. The lower level does not seal off the structural channels by which those in its interior exit, refuse, revoke a standing bond, or pass into a reviewable procedure; these people are also in the interior of the upper level, and the upper level guards this line within its authority; no level makes the existence of another level a reason to be absent.
G29 Relational thickness is how far a construct actually organizes the lives of its internal subjects; it is read from the structure and is not ordered by administrative rank or geographic distance; it counts arrangement, not harm; conditions that carry no direction and whose refusal costs no one his position are not counted. Whichever level actually organizes more of its internal subjects' time, attention, livelihood and path of development, the third ought weighs more heavily at that level; the first and fifth oughts, the "not sealing the channels" half of the fourth, and the trigger of the second do not vary with it. Relational thickness and the thickness of law are not called by one name.
References
All SAE works below are cited by concept DOI, which always resolves to the latest version. The version records used for sentence-by-sentence verification are given in the accompanying audit table.
Qin, H. (2026). How Is Institution Possible: From Inter-Ontological Remainder to Co-Constructive Framework (SAE Foundational Paper 6) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.19328662
Qin, H. (2026). What an Institution Is Not (SAE Institution Theory, Prequel) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23269330
Qin, H. (2026). To Whom the Ought Is Addressed (SAE Institution Theory, Paper 1) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23269635
Qin, H. (2026). Not Crossing the Line (SAE Institution Theory, Paper 2) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23270384
Qin, H. (2026). Guarding the Line (SAE Institution Theory, Paper 3) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23270766
Qin, H. (2026). Conditions (SAE Institution Theory, Paper 4) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23270922
Qin, H. (2026). Between One Another (SAE Institution Theory, Paper 5) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23271072
Qin, H. (2026). Open to Questioning (SAE Institution Theory, Paper 6) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23271324
Qin, H. (2026). Institution Theory and the Tradition: The Address of the Ought (SAE Institution Theory, Paper 0) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.23272468
Qin, H. (2026). On the Limitation and Violation of Basic Rights (SAE Rights Theory, Paper 5) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.21212595
Qin, H. (2026). On Accountability · Wei (SAE Rights Theory, Specialist Paper) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.22853810
Qin, H. (2026). National Law — Azeroth: A Negative Thought Experiment on the Structural Necessity of Law (SAE Law Series, Paper 3) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.19548596
Qin, H. (2026). Interstellar Law and Grand Closure — The Recession of Coercive Law (SAE Law Series, Paper 4) [Preprint]. Zenodo. https://doi.org/10.5281/zenodo.19549018
Hamilton, A., Madison, J., & Jay, J. The Federalist Papers, Nos. 10, 47, 51. The Avalon Project, Yale Law School. https://avalon.law.yale.edu/subject_menus/fed.asp
Tocqueville, A. de. Democracy in America, Vol. 1. Trans. H. Reeve. Project Gutenberg, EBook #815. https://www.gutenberg.org/ebooks/815
Ostrom, E. (1990). Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge: Cambridge University Press.
Cox, M., Arnold, G., & Villamayor Tomás, S. (2010). A review of design principles for community-based natural resource management. Ecology and Society, 15(4), 38. https://doi.org/10.5751/ES-03704-150438
Interfaces
- Main upstream: Institution Theory (Paper 1, Z4, Z7a and §4; Paper 2, Z9, Z10, Z12; Paper 3, §1; Paper 4, Z25, Z25a and §3; Paper 5, Z28; Paper 6, Z34, Z35a, Z37; the Prequel, §§7 and 8).
- Also used: F6 §3.1b, §3.1c, §3.1e, §3.2 Proposition III, §4.2, the introduction to the Appendices, Appendix B Article 19; Law Series P3, Abstract, §1, §5 introduction, §5.1, §5.2, §5.3, §6, §7, §8, §9; Law Series P4 §1, §3, §5; On Accountability F38, F39, F47; Rights Theory P5 F21 and §III (F21 elaboration).
- Interfacing: Ostrom (nesting); The Federalist, Nos. 10, 47 and 51; Tocqueville (the two kinds of centralization; the township). Preview: Hirschman (the side of exit is taken up in Paper 6; the side of voice points back to Institution Theory Paper 0, §7).
- This series: the Prequel, §7 (the domain of government: the residential complex included by its functions, the property-management company not included) and §8 (conventions); Paper 1, G2, G8; Paper 2, §§3, 4, 7, 9 and 10; Paper 3, G17, G20a and §8; Paper 6, G35, G36a, G38, G39, G40.
- Handed to Paper 5: the other dimension beyond levels: time.