by Gene Callahan
This is an excerpt from a longer work of mine. While I thought it possibly of interest to readers here, they will have to excuse me if in some places I refer to ‘another part of this work’ or something of the sort:
A leading contemporary constitutional theorist, Russell Hardin, rejects the currently popular contractualist understanding of constitutions, as represented above by Buchanan and Tullock. In its place, he proposes, offering an understanding somewhat more compatible with Oakeshott’s case against rationalism, that constitutions are ‘coordination’ devices, not contracts. He recognizes the force of a case such as de Jasay’s against constitutional contractualism, since a constitution lacks the third-party enforcer characteristic of meaningful, potentially effective contracts.
In the absence of such an external arbiter, he contends, ‘A constitution, if it is to work in bringing about and maintaining social order, must be self-enforcing’ (1999: 89). Much like a social convention to drive on a particular side of the road, a successful constitution must incorporate incentives for individual actors to adhere to it of their own accord.
Hardin, who admits that unwritten and informal conventions can play much the same role that motivates his advocacy of formal constitutions, namely, fostering the existence of beneficial social coordination. Thus he is led to ask, ‘So why a written constitution?’ He answers his own question, ‘Obviously in order to hasten the establishment of relevant conventions and direct them in certain ways rather than others by getting people to commit themselves immediately rather than bumbling through to a result, a result that might have been the rise of a tyrant by force’ (1999: 134-135).
Those living under a constitutional order need never have agreed to abide by its dictates for it to function successfully; they only have to acquiesce to the order it generates. Hardin acknowledges that his view does not endow ‘legitimate’ constitutions with the normative authority that many theorists argue they have, but only justifies them as possessing a practical, utilitarian value. However, he argues that practical efficacy is both sufficient to justify workable constitutional arrangements and the best defense genuinely available for them.
A constitution will succeed to the extent that the great majority of individuals living under its precepts perceive that accepting the status quo to be in their self-interest when weighed against bearing the high cost of rebelling against it. They very well may prefer that a quite different constitution were in place, but find themselves in a situation similar to that of a British immigrant to the United States, who might prefer strongly that Americans would drive on the left like in his homeland, but nevertheless accepts the custom of his new land rather than self-destructively defying it.
Hardin’s understanding of the character of constitutions thus avoids the paradoxes inherent in the contractualist view. Furthermore, he bolsters his case by offering episodes from constitutional history that strongly suggest it captures the essential role of actual constitutions in the societies to which they lend structure. No known constitution ever was adopted through the universal consent underpinning the normative claims of some contractualists; ‘we cannot plausibly believe there has been anything vaguely like contractual consent to undergird our governments and we doubt that there could be’ (1999: 149).
Hardin rejects the recent attempt by contractualists to patch over the absence of any real-world constitutional contract with the notion of a ‘reasonable’ social contract with which we all ought to agree. If one believes, as few contemporary political theorists do, that it is possible to deductively ascertain a single, ‘correct’ way to organize political life — for exceptions, see the ‘natural rights’ theorists noted above — then a ‘social contract’ is superfluous, as that optimal arrangement simply should be put in place, whether it is assented to or not.
On the other hand, if a contractarian rejects the existence of such an objectively optimal political system, then she lacks a sound basis for dismissing as ‘unreasonable’ those who refuse to embrace her proposed social order, and, therefore, her case for employing coercion to compel their acquiescence is undermined.
In reality, Hardin argues, a constitution will be able to create a (relatively) stable polity when it serves to coordinate the actions of the individuals within its domain well enough that they are better off consenting to its authority than not, even if the vast bulk of them never agreed to adopt it and would prefer another political order but for the cost of overthrowing the existing one.
He offers as an example the US Constitution, which certainly was not agreed to by either contemporary American women or slaves, as both groups were disenfranchised, but still worked to hold the nation together for many decades, since it coordinated ‘urban commercial interests and agrarian plantation interests, both of whom needed open, national markets’ (1999: 29). And he sees the difficulties that have arisen in the attempts by many ex-Communist nations to transition to liberal regimes as stemming largely from the lack of a way to coordinate the interests of two crucial groups, the employees of the old, nationalized industries, who wish to preserve their status, and those who stand to benefit from economic liberalization (1999: 195-202).
Hardin presents a compelling theoretical and empirical case for his thesis. However, if it is sound, it raises the question, ‘Why bother with devising a formal constitution at all?’ Instead, why not strive for a polity that is open and flexible enough to permit self-enforcing, spontaneous orders to emerge gradually? After all, per Hardin, it is only self-enforcing constitutional arrangements that will succeed anyway. The process of drawing up a written constitution is inevitably divisive until it reaches its resolution, and the effort, if misguided, runs the risk of setting up legal obstacles to the appearance of a genuinely coordinating order.
Moreover, Hardin recognizes that even his exemplar of a workable constitution, that of the United States, has not proceeded per the designers’ intentions. The constitution of 1789 ‘solved’ non-existent problems, such as the imagined conflict between the interests of small and large states: ‘There still has not been any significant conflict between small and large states as such since the ratification of the Constitution… [perhaps] this widely perceived conflict was of little or no concern’ (1999: 121).
He admits that ‘neither the commercial nor the plantation agragarian interests knew enough to guess at the spectacular economic changes they might have wanted to control if only they had know enough to do so’, and that, ‘in the actual life of a constitution, contingent factors are enormously important’ (1999: 131). He recognizes that the contested election of 1800 highlighted ‘a flaw in the Constitution, whose designers had not anticipated the invention and use of political parties to control elections’ (1999: 137). (We will discuss this election at some length in Chapter V.)
Although he defends written constitutions for the promise they hold out in achieving coordination, he concedes that ‘whether we can coordinate is largely is largely a matter of luck’ (1999: 139). A written constitution chiefly, in his view, creates institutional structures that ought to constrain future political choices, ‘but the structure and eventually the actions of institutions are substantially unintended consequences, the result of growth and not the outcome of popular choice or even any systematic choice at all’ (1999: 154).
Hardin even suggests that the US Constitution, as written, was not viable: ‘Washington’s prestige enabled a government of jealous and antagonistic men to collaborate for eight fundamentally important and difficult years to set the US Constitution into institutional forms that then could survive’ (1999: 226). In fact, ‘The ostensibly written US Constitution is only different in degree from the ostensibly unwritten British constitution’ (1999: 246).
Hardin, Russell (1999) Liberalism, Constitutionalism, and Democracy, Oxford and New York: Oxford University Press.