Sunday, 15 April 2012

Two Ideals of Constitution

For every Hayekian is a hard task to explain to his critics why the political process described in The Road to Serfdom did not finally lead to a totalitarian state, as book had warned it would happen if economic dirigism kept on growing in the United Kingdom, for example. To many of its critics, The Road to Serfdom states a failed prediction. In this post, I will try to formulate some sort of "hypothesis ad hoc" to rehabilitate "the road to serfdom" as a prediction.
As we had noted in a previous post, the core of Hayek's book is not related to the assertion "every economic intervention means limitations to individual liberty that lead to further economic intervention and so on to a totalitarian state". That is a misled conclusion to Hayek's idea. What Hayek tried to convey was that economic dirigism distorts the relative prices of the economy, what causes an economic crisis, and that the urgency to solve that crisis demands solutions on the basis of expediency. In those situations, it is easy to fall in the mistake to consider constitutional procedures as burdens to be lightened in order to overcome the crisis. Then, the process could be summarise as follows: "An economic intervention distorts relative prices, which generates a crisis. The urgency to solve the crisis authorises exceptions to constitutional procedures in order to apply new economic interventions. Those new measures cause new crises, which demand further expedient solutions -and the subsequent erosion of the rule of law".
My proposal is related to the late Hayek and his investigations on the role of unwritten law in the defence of individual liberty. In this regard, Hayek noted that individual liberties flourished in countries where the law was formed mainly by judiciary precedents and that statutory law could empower legislatures to enlarge the political intervention into every side of individual life (see "Law, Legislation and Liberty"). Besides now this is a very contemporary discussion -the clash between democracy and human rights-, it inspired me a different approach to the question. We can note that countries with high respect to individual freedom have short or unwritten constitutions, and countries with poor records in respect to individual rights have extensive and sophisticated written constitutions.
What I would like to state is that, along the 20th democracies, we could find two different ideals of political constitution. In countries with a tradition of individual liberties, the political constitution is considered as a limit by the rule of law to the political power. In countries where individual freedom was threaten or attacked, political constitutions are considered as instruments of political power. Notwithstanding to have written procedures to exercise political powers is a limit to the latter and it is better than not to have any legal procedure at all, we can see that this concept of constitution is more exposed to follow the pattern stated by Hayek in his book "The Road to Serfdom".
I think we have here a contention subject to empirical test: we have to identity countries with political constitutions regarded as limits to the political power imposed by the law and countries with political constitutions considered as attributions bestowed by the law upon political powers. Then, we have to verify the correlation between each of those countries and the degree of respect to individual liberties fulfilled in them. Since the identification of the ideals of constitution -limitation to political powers by the law vs. attribution of legality to political power- is the most difficult task, we could take the extension or sophistication of the constitution as an indicator of each type.

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