The constitution is that set of “top-level rules of the game” that are relatively few, relatively inflexible, general and persist across generations, or periods.
In the extended social order we call society, individual persons are the basic interacting units who attempt to realize their individual objectives, individually and collectively. Some of these objectives or goals can be realized by organizing privately, and others only through collective actions. Organized private activity is called “the market” which meets the private needs of the people. For those goals which require collective action, collective decisions have to be made.
That is what “government” is. In James Buchanan’s view, government is “that complex of institutions through which individuals make collective decisions, and through which they carry out collective as opposed to private activities.” And “politics” according to him “is the activity of persons in the context of such institutions.”
Friedrich Hayek’s Law, Legislation and Liberty. Vol. 3 The Political Order of a Free People. 1979. Chapter 13, “The Division of Democratic Powers.” Pg 31-32.
A system which may place any small group in the position to hold a society to ransom if it happens to be the balance between opposing groups, and can extort special privileges for its support of a party, has little to do with democracy or ‘social justice’. But it is the unavoidable product of the unlimited power of a single elective assembly not precluded from discrimination by a restriction of its powers either to true legislation or to government under a law which it cannot alter.
Not only will such a system produce a government driven by blackmail and corruption, but it will also produce laws which are disapproved by the majority and in their long-run effects may lead to the decline of the society. . . .
A further peculiar sort of bias of government created by the necessity to gain votes by benefiting particular groups or activities operates indirectly through the need to gain the support of those second-hand dealers of ideas, mainly in what are now called the ‘media’ , who largely determine public opinion.
Here’s a quote from Friedrich Hayek’s Law, Legislation and Liberty. It appears in the 3rd volume, The Political Order of a Free People, in the chapter on MAJORITY OPINION AND CONTEMPORARY DEMOCRACY, page 4:
May it not be true, as has been well said, that ‘the belief in democracy presupposes belief in things higher than democracy’? And is there really no other way for people to maintain a democratic government than by handing over unlimited power to a group of elected representatives whose decisions must be guided by the exigencies of a bargaining process in which they bribe a sufficient number of voters to support an organized group of themselves numerous enough to outvote the rest?
What are things that are higher than democracy? A belief in the sovereignty of law, and obedience to the rules of just conduct.
Nirad C Chaudhuri (1897 – 1999) dedicated his book, The Autobiography of an Unknown Indian (1951), to the British Empire.
To the memory of the British Empire in India,
Which conferred subjecthood upon us,
But withheld citizenship.
To which yet every one of us threw out the challenge:
“Civis Britannicus sum”
Because all that was good and living within us
Was made, shaped and quickened
By the same British rule.
A brief excerpt from Friedrich Hayek’s essay, “Equality, Value and Merit.”
From the fact that people are very different it follows that, if we treat them equally, the result must be inequality in their actual position, and that the only way to place them in an equal position would be to treat them differently. Equality before the law and material equality are therefore not only different but are in conflict with each other; and we can achieve either the one or the other, but not both at the same time. The equality before the law which freedom requires leads to material inequality. Our argument will be that, though where the state must use coercion for other reasons, it should treat all people alike, the desire of making people more alike in their condition cannot be accepted in a free society as a justification for further and discriminatory coercion.
A careful reading of that essay (link above) is guaranteed to lead to profit and enlightenment. Read it a few times.
A few days ago on Oct 14th, Rajesh Jain was at “The Next Billion” event of Quartz India in New Delhi. Rajesh spoke with Bobby Ghosh, editor in chief of Quartz Events. Rajesh spoke about the need for a new constitution for India — the point that Rajesh and I had made in an article in Quartz earlier.
People should be free to do whatever they can and wish to do. But that does not give license to people to do such things that cause harm to others. Since it would be too inefficient for each of us to individually protect himself or herself from harm by others, it is prudent to collectively create a mechanism that provides “policing services” that prevent anyone from causing harm to others, and in case harm is caused, to provide a means for the redressal of the harm and the punishment of the culprit. This fundamental function of providing policing services is the government’s proper role. Thus the proper role of the government must be limited to restraining people from harming others but not to forcing people into doing particular things.
In other words, the government’s job is solely to protect the negative right of every person, namely the right to be unharmed by others. Of course, there has to be a mechanism for determining what actions are harmful to others. The design of the mechanism that determine the rules — the rules of just conduct — has to be specified by a set of meta-rules. These meta-rules we call the constitution.
Human societies are rule-based. Rules not just define human societies but rules also differentiate between societies. Sufficiently large collectives of of people (say 100,000 or more) are indistinguishable in terms of their endowments because we all belong to the same species and we are just random draws from the same gene pool with minor variations. IF that is so, then what’s the origin of the inequality we observe in the wealth of nations? Why is Burundi not as wealthy as Sweden? The answer is that different societies follow different sets of rules, and the outcomes differ. Out of all the rules, norms, customs and traditions of a people, the formalized high-level set of rules is called the constitution.
In the following piece, co-authored with Rajesh Jain, I argue that India needs a new constitution. It was published today in Quartz. Here it is, for the record.
From Prager University: Was the Constitution written in a way that was designed to protect freedom and limit the government’s size? Has it been effective in doing that? And what’s the Supreme Court’s record when it comes to protecting our rights? Robert George, Professor of Jurisprudence at Princeton University, answers these questions and more.
I have been poking around in The Federalist Papers recently. Written between October 1787 and August 1788, they are “a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay promoting the ratification of the United States Constitution.” Fascinating stuff. (The complete collection is here at the Library of Congress.) Here’s a bit from James Madison, Federalist, no. 39, on the matter of what a republic is:
. . . we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour. It is essential to such a government, that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic.
Let’s remember that this was written around 1788. That over 225 years ago!