Constitutionalism - And Its Failure

As the fires of revolt and revolution spread around the world, and these oppressed peoples look for solutions like constitutions, it seems to me that these opening paragraphs from Friedrich Hayek's Law, Legislation & Liberty (Volume I: Rules and Order; University of Chicago Press, 1973) could serve as a much needed guide in such troubled times.

When Montesquieu and the framers of the American Constitution articulated the conception of a limiting constitution that had grown up in England, they set a pattern which liberal constitutionalism has followed ever since. Their chief aim was to provide institutional safeguards of individual freedom; and the device in which they placed their faith was the separation of powers. In the form in which we know this division of power between the legislature, the judiciary and the administration, it has not achieved what it was meant to achieve. Governments everywhere have obtained by constitutional means powers which those men had meant to deny them. The first attempt to secure individual liberty by constitutions has evidently failed.

Constitutionalism means limited government. But the interpretation given to the traditional formulae of constitutionalism has made it possible to reconcile these with a conception of democracy according to which this is a form of government where the will of the majority on any particular matter is unlimited. As a result it has already been seriously suggested that constitutions are an antiquated survival which have no place in the modern conception of government. And, indeed, what function is served by a constitution which makes omnipotent government possible? Is its function merely that governments work smoothly and efficiently, whatever their aims?

In these circumstances it seems important to ask what those founders of liberal constitutionalism would do today if, pursuing the aims they did, they could command all the experience we have gained in the meantime. There is much we ought to have learned from the history of the last two hundred years that those men with all their wisdom could not have known. To me their aims seem to be as valid as ever. But as their means have proved inadequate, new institutional invention is needed.

The footnotes to this section contain some definitions of constitutionalism that I am appending below:

1. "The original idea behind constitutions is that of limiting government and of requiring those who govern to conform to laws and rules."

2. "All constitutional government is by definition limited government... constitutionalism has one essential quality: it is a legal limitation of government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will."

3. "Constitutionalism is the process by which governmental action is effectively restrained."

Immediately thereafter, another footnote says this of modern Democracy:

"The modern conception of Democracy is of a form of government in which no restriction is placed upon the governing body."

In the opening chapter titled "Reason and Evolution" Hayek tells us where we went wrong - and it all begins with not understanding that human society is a self-generating spontaneous order. The order is completely "natural" because man is a "rule-following animal" - but these rules have never been formally articulated, like Private Property. Thus, the illiterate crowds in our teeming bazaars are following these rules - which learned constitutional lawyers are unaware of - and that is why perfect order prevails, and posses of armed policemen are unnecessary. 

Hayek then goes on to point out our philosophical errors - the constructive rationalism of Rene Descartes and his contemporary Thomas Hobbes. In that Age of Reason, these ideas popularised the dangerous fiction that human society could be "designed anew" - by legislators. It was only during the Scottish Enlightenment that David Hume, Adam Ferguson and Adam Smith articulated the opposing viewpoint: that human society is an "order without design." Or that the natural spontaneous order we inhabit is "a product of human action and not human design," as Ferguson put it, in his An Essay on the History of Civil Society (1767). In a footnote, Hayek quotes from the introduction by Duncan Forbes to the 1966 reprint of this book, in which Forbes writes that the "superstition" that Legislators are Founders of States was precisely that these Scots destroyed:

The Legislator myth flourished in the eighteenth century, for a variety of reasons, and its destruction was perhaps the most original and daring coup of the social science of the Scottish Enlightenment.

It is only after studying these men that Charles Darwin conceived his theories of evolution - another "order without design." I have an earlier post on this.

And it was Carl Menger, founder of the Austrian school of Economics, who put it best when he wrote, in his discourse on the methodology of the social sciences (1883):

How can it be that institutions which serve the common welfare and are extremely significant for its development come into being without a ‘common will’ directed towards their establishment?

Markets have not been designed, just as languages have not. Nor have morals. Money was not invented by one mind - and certainly not that of a great ruler. All have evolved.

Ludwig von Mises must also be invoked here, for it is he who pointed out where true freedom lies:

"What gives to the individuals as much freedom as is compatible with life in society is the operation of the market economy. The constitutions and bills of rights do not create freedom."

The errors of the Cartesian-Hobbesian kind have only been multiplied by modern socialists - who speak of "social engineering" as though humanity is just putty waiting to be given shape by omniscient and omnipotent legislators. Rousseau typifies such nonsense. As with Hobbes, so with Rousseau, both popularised the false notion that society is formed by a "social contract" - and it from these errors that the problems of modern constitutionalism stem. Indeed, Contract is but Private Law. The only social contracts are treaties.

The true picture, that men are "rule-following," allows us to see Law as natural and evolved - though not articulated - and Legislation as interference, as democratic totalitarianism, and as an enemy of individual Liberty as well as a ceaseless violation of Private Property.

Without Legislation, human society would not be lawless - on the contrary, we would peacefully thrive in a "private law society."

The rebels and revolutionaries of today must therefore look towards the English Magna Carta of 1215 AD as their guide - for this is when constitutionalism began, by limiting the sovereign and guaranteeing the liberties of the people.  However, since modern democratic governments have exceeded their constitutional bounds, new limits need to imposed upon them, some of which I have attempted to outline in a previous post:

• Freedom in the choice of media of exchange. That is, an end to the fiat money monopoly; the end of “legal tender.” Fiat paper notes can circulate – but we are free to refuse them. This will impose financial discipline on The State. Inflationism will finally end. Capital will be accumulated - not consumed. Poor people will benefit greatly.

• The Inviolability of Private Property by any actions on the part of The State – either through Legislation or through its lawless agents.This will guarantee Liberty.

• Freedom from the National Debt: that is, an end to State borrowing. This will impose further restrictions on recklessness and irresponsibility in State spending, while also securing the prosperity of future generations.

Unlimited government, which is arbitrary power, is an extremely destructive thing, much to be abhorred by all who desire human welfare. As Trenchard and Gordon, both Whigs (and Hayek preferred to call himself a Whig rather than a "conservative") put it in Cato's Letters, way back in the England of the 1720s:

There is something so wanton and monstrous in lawless Power, that there scarce ever was a human Spirit that could bear it; and the Mind of Man, which is weak and limited, ought never to be trusted with a Power that is boundless. The State of Tyranny is a State of War....

Power is like Fire; it warms, scorches, or destroys, according as it is watched, provoked or increased. It is as dangerous as useful. Its only Rule is the Good of the People; but because it is apt to break its Bounds, in all good Governments nothing, or as little as may be, ought to be left to Chance, or the Humours of Men in Authority: All should proceed by fixed and stated Rules....

This demonstrates the inestimable Blessing of Liberty. Can we ever over-rate it, or be too jealous of a Treasure which includes in it almost all Human Felicities? Or can we encourage too much those that contend for it, and those that promote it? It is the Parent of Virtue, Pleasure, Plenty, and Security; and 'tis innocent, as well as lovely. In all Contentions between Liberty and Power, the latter has almost constantly been the Aggressor. Liberty, if ever it produces any Evils, does also cure them: Its worst Effect, Licentiousness, never does, and never can, continue long. Anarchy cannot be of much Duration: and where 'tis so, it is the Child and Companion of Tyranny; which is not Government, but a Dissolution of it, as Tyrants are Enemies of Mankind.

I trust I have provided all those good people who are fighting their domestic tyrants and seeking their Liberty with plenty food for serious thought. Good luck to you all. May all tyrannies end. And may Liberty triumph.