Russell Hardin, Why a Constitution?
Overview of contemporary method categories and oppositions, grounded in English 17th/18th century theories, with marked preference for Hume and finally Madison..
Russell Hardin wrote:
Chapter 2
Why a Constitution?
1 Introduction: Two Strategic Schools
For many centuries the world and its states were successfully governed without formal constitutions. Then why are constitutions seen as fundamentally important now? The U.S. Constitution, one of the first modern formal constitutions, was written, adopted, and put to work in 1787–1789. Why were the authors of that constitution so intent on putting it in place? The short answer is that the document set out the design for institutions of governance. There had been governing institutions in place in all of the thirteen colonies that would eventually make up the initial thirteen states of the United States, but not at the overarching national level. The Constitution made a nation of those disparate colonial entities. Contemporary constitutions do much the same thing: either they establish institutions where there were none or they replace unsatisfactory institutions, as, for example, in the case of a recently independent colony.
There are two contrary main schools of constitutional theory. The first and oldest grounds constitutions in contractual agreement, as in the long-standing contractarian tradition in political philosophy. The second grounds them in coordination. The former theories are almost all at the normative level as part of an ostensible justification of obedience to the monarch or state. The coordination theories are inherently explanatory or causal theories as well as, sometimes, normative. One might sensibly suppose that the question “Why now?” is more pertinent for the coordination than for the contractarian school. I compare the two schools briefly and then turn in later sections to in-depth analysis of the schools and to applications of them to major governmental institutions.
Much of contemporary work on constitutionalism takes up prior debates and brings them into contemporary analytical frameworks, such as game theory, bargaining theory, psychological theories of commitment, and so forth. Most of it is comparative and grounded very solidly in real-world cases. … And some of it is now being stimulated by efforts to understand supra-state constitutions, especially that of the European Union, whose document is called a constitutional treaty. …
In general, it is absurd to assess the normative qualities of a constitution from its content alone. The whole point of a constitution is to organize politics and society in particular ways. For example, modern constitutions typically organize a state apparatus, provide for representative democracy, define certain rights and civil liberties for citizens, provide a legal system, both civil and criminal, organize national defense, and sometimes provide for some degree of distributive justice, often through so- called economic and social rights, as distinct from the historical political rights of civil liberties. Hence, constitutions are inherently consequentialist devices. To judge a constitution normatively requires attention to its actual consequences. Because the consequences of a particular constitution are likely to depend to some extent on the nature of the society it is to govern, what would count as a good constitution for one society might be a poor constitution for another society. Purely abstract discussion of constitutions and constitutionalism is therefore pointless and misdirected.
Constitutionalism without social science is an arid intellectual pastime. For many theoretical enterprises, looking to specific examples is a necessary part of making sure the theory is polished and adequate. In the discussion of constitutionalism, looking at specific examples forces us to recognize that the theory is not unitary, but is fractured and contingent on circumstances. Who can be coordinated on what varies across time and place. This is, of course, not a theoretical but a factual claim. …
2 Contractarian Theories
The metaphorical claim that government is established by contract is one of the mainstays of traditional political theory. Against the metaphor, there are several objections to the claim that a constitution is analogous to an ordinary contract in any useful sense. These objections include the following. Constitutions are enforced by social conventions … Contracts are typically enforceable by a third party (usually the state); constitutions are not. Contracts typically govern a fairly limited quid pro quo between the parties; it is hard even to define who might be the parties engaged in such an exchange when a constitution is drawn up. The exchanges governed by a contract typically get completed and the contract ceases to govern further; constitutions typically govern into the distant and unforeseeable future and they have no project for “completion” in sight – they are never to be “fulfilled.” Contracts require genuine agreement to make them binding: constitutions require merely acquiescence to make them work. … [If] a constitution is a contract, then we must make a contract on what contract will mean. That may not be a logical impossibility, but it is an oddly circular idea. Under our coordination constitution, we can make a law of contracts to govern many of our future interactions and, indeed, to enable many of them. …
… [In] the U.S. case … The central issue of the constitution was to eliminate trade barriers between the thirteen states and to regularize tariffs with other nations. That was the issue that brought these two groups into the design and adoption of the constitution as a mutually beneficial arrangement. They faced a relatively straightforward coordination problem.
Contractarian theorists typically ignore all of these issues and use the metaphor of contract to ground a claim that citizens are morally obligated to defer to government by their consent, as the parties to a real contract would be legally obligated. … Contractual obligation without actual personal agreement seems like nonsense, especially given that it is prior agreement that is supposed to make a contractarian order binding. … [David] Hume (1748) compellingly dismisses even the claim that there could ever have been a genuine agreement on political order in any modern society. He also argues that actual citizens do not believe their own legal or political obligations depend on their having agreed to their social order, even though many citizens apparently do believe they and all other citizens are obligated.
Hume’s arguments and facts are so devastating to the idea of the social contract that one must wonder why that idea continues to be in discussion at all. … There seems to be a sense that contractarianism is morally superior to utilitarianism … This is a deeply odd view. A utilitarian acts on behalf of others. Those who enter contracts typically are concerned with their own benefits and need not care about the benefits to their partners in trade. The former is other-regarding; the latter is self-seeking. It is a saving grace of contemporary claims for contractarianism that they are not about contracts. Unfortunately, they are rather about rationalist agreement on what are the right principles to follow as though these could merely be deduced from first principles.
A huge part of the discussion of contractarian theories addresses how we are to understand the idea of contractual obligation when there cannot be an actual contract or agreement by the relevant parties (in this case, the citizens and perhaps the governors). The nearest thing we ever have to actual contracts in politics is votes on the adoption or amendment of a constitution. But these votes typically require only some kind of majority, ranging from simple to supermajority. Unanimity is an impossible condition for a working constitution or amendment in a real society, although it is required for a legal contract to be binding. Hence, in a sense that is contrary to any plausible sense of “contractarian”, contractarian constitutions must be imposed on a significant fraction of the populace, indeed on the overwhelming majority of citizens.
Traditional, straight contractarianism appears to be on the wane. Few people argue for it in principle, although many scholars continue to present contractarian arguments … In part it has been displaced by contractualist argument. … It is a peculiar but perhaps false advantage of the contractualist program that it is ill defined. Its vagueness means that debate over it will often thrive, even debate over what the program is. Contractualism is supposed to resolve or sidestep the problem of fitting some degree of moral obligation to a regime to which one has not actually agreed. … The most extensive and articulate defense of the idea of reasonable agreement in political theory is probably that of Brian Barry (1995), who says, “I continue to believe in the possibility of putting forward a universally valid case in favor of liberal egalitarian principles”. …
… Mathematicians know mathematical truths; moral theorists can similarly know moral truths. We do not know either of these by observation but only through some inner faculty of reasoning. That the analogy is not apt is suggested by the fact that there is no terminological analog of “reasonableness” in mathematics. Every mathematician knows that the square root of two is not a rational number (that is, a number that can be expressed as a fraction in the form of whole integers in both the numerator and the denominator). No one would say further that this claim is reasonable. It just is true mathematically. If you say this is false, mathematicians will say you are a crackpot or an ignoramus, not that you are unreasonable. One wonders what the analogs of axioms and theorems are in moral theory.
The claim that morality is analogous to mathematics is a perverse variant of intuitionism in ethics. Intuitionists believe they can intuit whether, say, a particular action is right or wrong. Unfortunately, they do not agree with each other. If disagreement were similarly pervasive in mathematics, there would not be mathematics departments in great universities.
If all of us reject some principle, presumably no one would disagree with the conclusion that we should collectively reject applications of that principle in practice and, furthermore, that it is reasonable for us to do so, whatever “reasonable” might mean in this vernacular claim. … We might be quasi-Kantian and suppose that we can deduce the true principle here, and we can therefore say to you that you are simply wrong. That would surely violate the element of agreement that … contractualists want. They do not suppose that agreement on certain principles is incumbent on any and every one as a matter of moral or transcendental logic. They mean for agreement to be genuine, which is to say they mean that there must be a possibility of disagreement. …
… The chief difficulty with the contractualist program for those who are not its advocates is that there is no definition of reasonableness and no clear account of how others can judge reasonableness in general even if we might suppose that the vernacular term fits some obvious cases (for which we have no need of constitutional or moral theory). The term “reasonable” has unfortunately been left as a residual notion that is not defined by the contractualists. …The historical dodges of the fact that supposedly contractarian obligations that were never literally agreed to were somehow hypothetically or tacitly agreed seem much more compelling than [the] murky move to ground normative claims in their “reasonableness”. Advocates of the contractualist program seem to think they can spot reasonableness when they see it. Hence, what they give us are examples of reasonableness or unreasonableness rather than elaborations of principles for assessing reasonableness. …
… At some points, however, Barry very nearly equates reasonableness and equality. Once this move is made, there is little more needed to establish a theory of distributive justice merely by definition. It might still be very difficult to design institutions that would achieve extensive equality.
[… and the definition of ‘equality’ is …?] link to Dworkin
3 Coordination Theories
Before Hume there were three main theories of social order. These are based on theological views, contractarian agreement or consent, and draconian coercion by the state. Hume dismissively rejects all three. The theological views are simply false or at least beyond demonstration (Hume 1748). Locke and others propose contractarian consent as an alternative justification for the state and an alternative ground for obligation to the state, but as noted earlier, Hume demolishes the claim for consent. Hobbes’s argument from draconian force seems empirically wrong for many very orderly societies, and Hume rejects it almost entirely, although he shares many social scientific views with Hobbes. Having demolished all of the then-acceptable accounts of obedience to the state, Hume therefore has to propose a dramatically different, fourth vision.
In essence his theory is a dual-convention theory. Government derives its power (not its right) to rule by some specific form of coordination that is a convention and the populace acquiesces in that rule by its own convention. Once empowered by these two conventions, the government has the capacity to do many things, including ancillary things unrelated to the purpose of maintaining social order. This dual-convention argument is compelling for most stable governments in our time. Moreover, for democratic governments, the dual-convention theory virtually demands constitutional limits on the power of government to interfere in democratic processes. The earlier theories could make as good a sense without constitutional provisions, and the absolutist versions of the theological and draconian power visions virtually deny any role for a limiting constitution.
For both of the conventions in the dual-convention theory of government, acquiescence is the compelling fact. Hume argues, by example, that ten million British citizens simply acquiesced in the succession of William and Mary to the English throne, all by act of “the majority of seven hundred” in the English and Scottish parliaments (Hume 1748). Acquiescence is Hume’s term. We acquiesce because it would be very difficult to organize what would have to be a de facto collective action to topple a going convention or to organize a new one. While we can readily just happen into a convention, such as the driving conventions of driving on the left or the right side of the road, we cannot so readily alter one once it is established. You might detest the convention we have and you might even discover that apparently most of us detest it. But you may not be able to mobilize the opposition that would be necessary to change it. …
… On this account, a constitution does not commit us in the way that a contract does. It merely raises the costs of doing things some other way through its creation of a coordination convention that is itself an obstacle to re-coordination. More often than not our interests are better served by acquiescing in the rules of that constitution than by attempting to change it. This is true not because we will be coerced to abide by those rules if we attempt not to, but because it will be in our interest simply to acquiesce. The forms of commitment that are important for constitutional and even for conventional social choice in many forms are those that derive from the difficulties of collective action to re-coordinate on new rules. These are not simply problems of internal psychological motivation or moral commitments and they are not problems of sanctions that will be brought to bear. They are inherent in the social structure of the conventions themselves, a structure that often exacts costs from anyone who runs against the conventions more or less automatically without anyone or any institution having to take action against the rule breaker.
Establishing a constitution is itself a massive act of coordination that, if it is stable for a while, creates a convention that depends for its maintenance on its self-generating incentives and expectations. Given that it is a mystery how contracting could work to motivate us to abide by a constitution to which we or our forebears have contracted, we should be glad that the problem we face is such that we have no need of a contract or its troublesome lack of enforcement devices across generations. … Some citizens might prefer extant constitutional arrangements to any plausible alternative, but for those who do not, their obedience to the constitutional order has more the quality of surrender than of glad acceptance. Indeed, if our constitution is solidly ensconced, surrender or acquiescence gives us the best we can get given that almost everyone else is abiding by it – even if almost all of them are merely acquiescing or surrendering in abiding by it.
Hobbes is commonly invoked as one of the founders of the contractarian tradition in political thought. Ironically, he is even more clearly a founder of the coordination theory of government. We coordinate on obeying a single leader. The initial selection of a ruler is a matter of coordinating among all of us. Hobbes presents an argument from contract but finally dismisses it as having no likely historical precedent, a claim later seconded by Hume. He then goes on to defend the powers of a ruler – or, we might prefer to say, a state or a government – on the grounds that not abiding by the rule of a state would wreak havoc in our lives. Hence, for our own good, which is to say for our mutual advantage, we should abide by the laws of our state. This is an argument that carries even for a government that usurps the powers of an extant government. Once the usurper government is well established and is able to maintain order, it should then rationally, self-interestedly be obeyed.
The difference between Hobbes the contract theorist and Hobbes the power theorist is the difference between a political philosopher and a social scientist. His arguments from contract are about an imaginary and maybe even an ideal or desirable world. That world is a cute story, not a basis for philosophical or scientific analysis. His arguments from power and coordination are somewhat abstract, but still they are about the actual worlds that he inhabited and that we inhabit. Although there are many discussions in his works on politics that have normative overtones, his most coherent and extensive discussions are arguments from political sociology. Constitutional content must be contingent on the conditions of the society that the constitution is to govern. This is in the nature of coordination and convention. If a particular rule does not coordinate our actions, it cannot become one of the conventions of our constitutional regime.
4 Caveats and Clarifications
… The thesis of coordination is a causal thesis, not a definition of what a constitution is. A constitution can include anything people might want. But if it is filled with perversities, it is likely to fail to coordinate us. Even if it looks like a model constitution (suppose its text is adopted whole from another, long-successful constitution), it may fail to coordinate us. … It is wrong to say that a constitution is a coordination device as though by definition. But the reverse is true: a successful constitution must have been a successful coordination device.
Suppose that a particular constitution is apparently the result of a bargain. If that constitution is to work in establishing social order, it must coordinate us on acquiescence to our new government. This is likely to be a critical problem in the early years before the government has acquired the power to enforce its mandate. Hence, what makes the constitution work is that it coordinates us on social order and is virtually self-enforcing. Hobbes supposes that most regimes in the world were established by acquisition or conquest, which is to say that someone usurped the power already in place or some outside body that already had substantial power came in and established an order. He sees and states the problem of establishing power if we attempt to create a sovereign by contract. Even though we the citizens might entirely agree that we want our government to have requisite power to maintain order and to do various other things, we cannot turn our power over to a newly ensconced regime. …
… To get initial coordination on a constitution and its regime, however, is likely to require a fairly broad degree of support. But it does not require continuing support to maintain a regime that once has power and control of the mechanisms of office. The core issue in constitutionalism is how a government under a constitution is empowered (especially initially). Once it is, it can maintain social order …
Constitutionalism is a two-stage problem. At the first stage, we coordinate on a constitution and its form of government. At the second stage, that government then enables us to maintain order and to resolve various ordinary problems, many of which are between individuals or small groups of individuals rather than, like the constitution, at the whole-society level. …
5 What Constitutions Do
To achieve justice and social order we must design institutions or norms to bring about just resolutions. Hence, justice is inherently a two-stage concern. It will bring about mutual advantage, but the actions we take within the justice system will not each by themselves necessarily bring about mutual advantage. It is the whole scheme of justice that is mutually advantageous, not its adjudications in specific cases.
We might object and say that the system ought to be corrected and overridden when it does not produce the more mutually advantageous outcome in a particular case. [The alternative view is] that we create an institution, whose design determines the roles of individuals within it, and these roles determine behavior. … [The] role holders follow the rules of their roles as defined by the institution, and at the other, “prior” stage, the institution achieves welfare.
This is, of course, the structure of constitutional government. The constitution stipulates institutions of government; those institutions make and implement policies. In a constitutional government we cannot simply decide at every turn what would be the best thing to do, even the mutually advantageously best thing to do, and then do it. We must do what can be accomplished within and by the constitutionally established institutions. It is common for citizens to miss this principle and to suppose we can do whatever they think best in this case right now. That would de facto eliminate the institutional devices that we have designed to accomplish our mutual advantage goals. Acting as many citizens want would serve us very badly and would finally make government unlimited.
Successful constitutions coordinate us at a minimum on social order without need for Hobbes’s draconian enforcement. …
… Constitutional democracy can manage the chaff of political conflict but it cannot manage really deep conflict between large significant groups that are hostile adversaries.
6 Limits on Government
For Hobbes, the argument for coordination on a sovereign ruler is not an argument for a constitution or a constitutional order in any sense that these terms normally connote. A typical reason for having a constitution is to place limits on government.
Indeed, “constitutional government” is commonly taken to mean limited government. Hobbes wants no limits on government sovereignty, in part because he cannot imagine how those limits could be imposed without opening up the possibility of overriding the government more generally. That would mean that the government is not sovereign.
Hume (1739–1740) resolves such issues in social order with the introduction of the idea of conventions that are de facto self-regulating or endogenously self-enforcing. Understanding this possibility resolves some of Hobbes’s problems. With the power of conventions to block actions of many kinds, government can be limited in many respects even while it can be powerful in those arenas in which its power would be beneficial to the populace.
Among the early advocates of limited government are Locke, Sidney, Hume, Adam Smith, Wilhelm von Humboldt, and Mill. Locke and Sidney argue against the theocratic theory of Robert Filmer, who advocates, with Hobbes, absolute power for the sovereign, although Filmer wants only monarchs as sovereigns and not bodies of aristocrats as Hobbes would allow. Hume and Smith especially argue against mercantilist economic policies that protect native industries against imports. In an argument against using government to achieve “perfect” equality, Hume also contends that this would empower govern-ment far too grievously. This is, of course, partially a straw man argument … the Levellers of the seventeenth century in England seriously advocated perfect equality. Most theorists who argue for egalitarianism generally mean only to bring about substantially greater equality of distribution than typical wealthy societies achieve, as in … concern for fairness. …
Hume’s task therefore is largely to show that government officials can be constrained to act for the general good. Why? In part because they act on general principles that do not directly affect their own interests. The consequences of today’s breach of equity are remote and cannot counterbalance any immediate advantage of better behavior (Hume 1739–1740). When we consider actions in the distant future, all their minute distinctions vanish, and we give preference to the greater good. The trick is to change our circumstances to make us observe the laws of justice as our nearest interest. We appoint magistrates who have no interest in any act of injustice but an immediate interest in every execution of justice.
This last claim is too optimistic. Insofar as our magistrates have no interest in the injustices committed by others, we can generally expect them not to have a bias in favor of injustice. Indeed, through sympathy we can expect them to have at least a slight bias in favor of justice in any matter that does not concern themselves. All we need to do to constrain them from acting unjustly, therefore, is to block any actions that they might take on their own behalf or on behalf of their relatives and friends. We can do this to some degree by having different offices overseeing each other. This is not merely the separation of powers, which is typically intended to block institutions from acting on some institutional agenda rather than to block individual office holders from acting in their own personal interest against the public interest. It is rather more nearly Madison’s (1788) device of having ambition counter ambition, person to person. Montesquieu argues for separation of powers. Hume and Madison propose the monitoring of all by all, which is Hume’s device for a small society regulated by norms (or conventions), so that such a society might not need constitutionally devised institutions of government.
It is not clear that the Hume-Madison device works. It has more in common with competitors in a market than with Montesquieu’s hiving off some duties to one agency and other duties to other agencies. I block your action because I think it is wrong, but I do so because I have a slight leaning toward the public interest through the influence of my concern for mutual advantage, which includes my own advantage as a likely minor part. My action against you is apt to be costless to me and it might even be rewarded by other officeholders or even by the citizens who, if they have no direct interest in the matter at issue, also have a slight leaning for the mutual advantage. I therefore have a motive from interest to block your illegitimate self-interested action.
7 Concluding Remarks
To argue that a particular constitutional system is “necessary” or “right” is very hard, because there is commonly evidence that other possibilities are attractive, plausibly even superior in principle. The pseudonymous Caesar (1787), writing during the debates over the adoption of the U.S. Constitution, put the case clearly: “Ingenious men will give every plausible, and, it may be, pretty substantial reasons, for the adoption of two plans of Government, which shall be fundamentally different in their construction, and not less so in their operation; yet both, if honestly administered, might operate with safety and advantage”. Caesar’s conclusion is a defining principle in the coordination theory of constitutionalism. There may be no best constitution, although there may be many that are comparably good and far more others that would be bad.
Still it may be clear that to change from a system we already have in place to some in-principle more attractive alternative would be very difficult and plausibly too costly to justify the change. The more pervasive, articulated, and important the system is, the more likely this will be true. …
… The only thing that might make an extant system right is that it is extant. We could not expect to design an ideal or even a much better system because we could not be sure how it would work in the longer run. As Madison (1787) writes in Federalist 37, “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications”. Hence, rationalist theories of morality and government are inherently irrelevant to our lives. At the margins, however, we might be able to revise our constitutional system by drawing on the experience of others.
Conventions do not have a normative valence per se. Some are beneficial and some are harmful. Both beneficial and harmful conventions can be self-reinforcing even when their only backing is sensibly motivated individual actions. If we could easily redesign government, law, norms, practices, and so forth, we might immediately choose to do so in many cases. …
… We face the fundamental problem that we need government to enable us to accomplish many things and to protect us from each other, but that giving government the power to do all this means giving it the power to do many other, often harmful things as well. We depend on constitutional cleverness to design institutions that accomplish the former and block the latter. The cleverest person in this task historically was probably Madison. But Americans have long since lived past the institutions he helped design, and the present government under his constitution would be unrecognizable to him. These changes have happened while a few hundred million Americans essentially acquiesced.
8 Methodological Note
Crossing or underlying all of these discussions is a background methodological and intentional theory: political economy (Brennan and Hamlin 1995). The political economy approach to politics and institutions is based on economic motivations, somehow defined, indeed very often crudely defined. Thomas Hobbes says that if mere consent to living in justice were sufficient, we would need no government “at all, because there would be peace without subjection” (1651). This claim is wrong for the reason that undercuts others of Hobbes’s arguments; we would still need coordination on many purposes and we would need collective actions in many contexts in which spontaneous provision, even by those who consent to live in justice, would be unlikely. But Hobbes’s dismissal of the likelihood that people can be universally motivated by commitment to justice is compelling. That dismissal, his individualist focus, and his arguments for the quasi-economic kinds of motivations people actually have make him an early political economist. This is not to say that our only or even chief motivation is economic, but merely that this is a centrally important motivation, especially in the context of how we might want our constitution to be designed.
Against the assumptions of political economy, some moves in contemporary political philosophy depend on attributing very strong motivations of fairness or public spiritedness to citizens. For example, Brian Barry supposes that if people have the right motivations, contractualism will work. But there is no good reason to suppose that a population can be reeducated into having powerful motivations of – in Barry’s hope – fairness rather than self-seeking. Constitutional political economy seems bound to deal with cases in which interests often enough trump, so that what we need are safeguards against each other. …
… To design a constitutional order on the assumption that such motivations will generally trump self interest, family interest, and narrow group interests of various kinds runs against experience and against James Madison (1788) and David Hume’s (1742) view that we should design the institutions themselves to be proof against abuse by officeholders. Madison and Hume see liberalism as inherently grounded in distrust of political officeholders, not in supposing that these leaders will generally work for the public interest. Madison’s constitution is the preeminent constitutional response to liberal distrust.
The central claim that grounds constitutionalism in political economy is that, in general, it is to our mutual advantage to preserve social order because it is the interest of each of us that it be preserved. There may, of course, be collective action problems in preserving it, so that its serving mutual advantage does not guarantee its survival. Indeed, mutual advantage can have more than one implication in cases of unequal coordination and very commonly in cases of multiple possible coordinations that are all more or less equally attractive, at least when viewed ex ante.
The Source:
Russell Hardin*, ‘Why a Constitution?’, in Social and Political Foundations of Constitutions, edited by Denis J. Galligan** and Mila Versteeg, Cambridge University Press 2013
*Social Science Files subscriber , **Social Science Files subscriber
Evolutions of social order from the earliest humans to the present day and future machine age.