Constitutionalism - For Planet Earth: Take #2

Whereas my recent posts have been on a Second Republic for India - or should I say "Indyeah" - the fact remains that the entire world is also in need of re-thinking the basic principles of constitutionalism. The opening paragraph of Hayek's Law, Legislation and Liberty speaks for itself:

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.

Before proceeding to the second paragraph of these introductory remarks by Hayek, let us go to where he actually points out where the great Montesquieu went wrong:

From Chapter Four: The Changing Concept of Law

From the section titled: The classical and medieval tradition

The freedom of the British which in the eighteenth century the rest of Europe came so much to admire was thus not, as the British themselves were among the first to believe and as Montesquieu taught the world, originally a product of the separation of powers between legislature and executive, but rather a result of the fact that the law that governed the decisions of the courts was the common law, a law existing independently of anyone’s will and at the same time binding upon and developed by the independent courts; a law with which parliament only rarely interfered and, when it did, mainly only to clear up doubtful points within a given body of law. One might even say that a sort of separation of powers had grown up in England, not because the “legislature” alone made law, but because it did not; because the law was determined by courts independent of the power which organized and directed government, the power namely of what was mistakenly called the “legislature.”

In the paragraph immediately preceding the above, on how England preserved its liberty in earlier centuries, Hayek writes about how “Edward Coke was to defend [the common law] against King James I and Francis Bacon, and which Matthew Hale at the end of the seventeenth century masterly restated in opposition to Thomas Hobbes.”

About the English parliament, there is this footnote:

Courtenay Ilbert, Legislative Methods and Forms (Oxford, 1901):

“The English Legislature was originally constituted, not for legislative, but for financial purposes. Its primary function was, not to make laws, but to grant supplies.” By “grant supplies” is meant to “vote on taxation.” The Magna Carta explicitly stated that “no tax or scutage shall be imposed without consent,” which is the sole reason why parliaments were summoned. “Scutage” was a kind of tax. It is from this that “no taxation without representation” originated.

Note that Montesquieu was French – and the French have already have had Five Republics and have just installed a socialist president. Their prophet was Jean-Jacques Rousseau, on whom there is this great footnote:

RA Palmer, The Age of Democratic Revolution, (Princeton, 1959):

For Roussseau “there was even no law except law willed by living men – this was his greatest heresy from many points of view, including the Christian: it was also his greatest affirmation in political theory.”

For extensive quotes from Rousseau – and their total demolition – do read Frederic Bastiat’s The Law (Google Books). There is an Indian edition of this brief essay published by Liberty Institute with my foreword, in which I explain why this short tract shows why the Constitution of India - the longest written constitution in the world - has got it completely wrong. The answer: PROPERTY! Which is the Key to LIBERTY! This was published around 1994.

I also recommend the essay on “the origins of the common law” and the other on the Magna Carta in my online publication Natural Order: Essays Exploring Civil Government and the Rule of Law.

Remember: Without property, there cannot be any justice. And where there is no justice, there is abuse of power. This is precisely what constitutions are supposed to check - by limiting government powers and protecting liberties and properties of the citizenry. All clear?

Let us now proceed to the second paragraph of these introductory remarks:

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…. And, indeed, what purpose is served by a constitution which makes omnipotent government possible? 

When Hayek writes "will of the majority" do note that he means the "majority of the House" - not the people at large.

"Unlimited Democracy" is the New Tyranny. And its tool is "legislation," which is really not what traditional conceptions of Law used to be, and I will try and provide some more quotes on these different conceptions later. Legislation creates and empowers bureaucracies, violates property and destroys liberty.

I have a not-so-recent post saying that in the USSA they are all "born to be jailed!"

This is why I have advocated the "private law society" - and the following quote from the same book strengthens my case. The last sentence in this quote pertains specifically to Third World countries like India:

From Chapter Three: “Principles and Expediency”

The frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.

CONSTITUTION OF NORTH CAROLINA

Individual aims and collective benefits

The thesis of this book is that a condition of liberty in which all are allowed to use their knowledge for their purposes, restrained only by rules of just conduct of universal application, is likely to produce for them the best conditions for achieving their aims; and that such a system is likely to be achieved and maintained only if all authority, including that of the majority of the people, is limited in the exercise of coercive power by general principles to which the community has committed itself. Individual freedom, wherever it has existed, has been largely the product of a prevailing respect for such principles which, however, have never been fully articulated in constitutional documents. Freedom has been preserved for prolonged periods because such principles, vaguely and dimly perceived, have governed public opinion. The institutions by which the countries of the Western world have attempted to protect individual freedom against progressive encroachment by government have always proved inadequate when transferred to countries where such traditions did not prevail.

Hayek has, in his footnotes, provided the following reference and quote which is very instructive at this time. It is from CH McIlwain, Constitutionalism: Ancient and Modern, (Ithaca, NY, 1958), p. 21.

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.

As I wrote earlier, we now need TWO LIMITATIONS - the first, on powers, including that of legislation; and second, on their Budgets. The latter has become vital in this age of fiat paper money. Limits on taxation, sources of revenue, and a blanket ban on borrowings are also required. The aim should be "republicanism" worldwide: Free-trading and self-governing cities - and not "federalism" - which is not what Liberty has ever been all about.

Remember: The less you fork out in taxes, the wealthier you are. And the less cash the "civil government" has, the less interfering bureaus it can establish. It will also have to ensure that all "services" in a city or town, from garbage to sewage to water and even arterial roads and streets, are provided by competing private entrepreneurs. 

The next quote I have is on legislation, again the opening paragraph of the relevant chapter:

From Chapter Four: The Changing Concept of Law

Law is older than legislation

Legislation, the deliberate making of law, has justly been described as among all inventions of man the one fraught with the gravest consequences, more far-reaching in its effects even than fire and gunpowder. Unlike law itself, which has never been “invented” in the same sense, the invention of legislation came relatively late in the history of mankind. It gave into the hands of men an instrument of great power which they needed to achieve some good, but which they have not yet learned to so control that it may not produce great evil. It opened to man wholly new possinbilities and gave him a new sense of power over his fate. The discussion about who should possess this power has, however, unduly overshadowed the much more fundamental question of how far this power should extend. It will certainly remain an exceedingly dangerous power so long as we believe that it will do harm only if wielded by bad men.

Most Indian parliaments contain "criminalised" people - we all know that. It is old hat in socialist India that we have been steadily witnessing "the criminalisation of politics and the politicisation of crime."

Anyway, India is a TYRANNY! No Liberty at all. No Property, either.

And it was none other than Lord Acton who wrote, "A people averse to property cannot have even the first elements of liberty." 

Finally, on Athenian democracy, there is gem from Aristotle himself:

Aristotle, Politics, IV:

…if then democracy really is one form of the constitution, it is manifest that an organization of this kind, in which all things are administered by resolutions of the assembly, is not even a democracy in the proper sense, for it is impossible for a voted resolution to be a universal rule.

(Classical) Liberalism is the System of Principles, and its Supreme Principle is Liberty: Benjamin Constant

Add Property to that!

For serious students: I am not a Hayekian. My exposition of the "Natural Order" is based on Mises' epistemology, and I find Hayek's description of "spontaneous order" defective and misleading. His "Between Instinct and Reason" - the opening chapter of his last book, Fatal Conceit: The Errors of Socialism, led me up a blind alley for very long, too.

In this period, I benefited greatly from Joseph Salerno's "Mises and Hayek De-Homogenised," after which I corrected myself of other erroneous opinions I had harboured concerning Israel Kirzner's works. Further, I was confirmed in my opinion that Lawrence White, who is "Hayek Professor of Monetary History" and considered a "gold bug," is actually a very dangerous kind of "scholar."

Lastly, Hayek in Law, Legislation and Liberty (1973) is very different from Hayek in The Constitution of Liberty (1960). The reason, many say, is Bruno Leoni. So do read Leoni’s Freedom and the Law. Someday in the near future, I will pen a separate post on Mises, Hayek, and Leoni.