The United States constitution was also formed by a political economy/public choice process to satisfy sectional demands. The understanding of this process are not assisted by references to rugged colonists and the legal traditions of Merrie England, which in large part evolved through the violent impositions and constructivist projects of Norman and Plantagenet monarchs.
So continuing a series of follow ups to my post of 1st June, I’m here looking at arguments that the Euro, and other European Union projects, are rational constructs imposed on the emergence of spontaneous economic and social orders, as opposed to the supposedly more evolutionary nature of the United States constitution, based on centuries of British and colonial legal tradition. Such arguments rely on a very formulaic version of Friedrich Hayek.
What’s wrong with this argument?
The European Union treaties, including the Maastricht Treaty, which established the Euro, have been based on another 200 years, or more, of legal tradition than the United States Constitution. If we go back to the Hayek references, we might say that the European legal tradition was degraded from roughly the 1870s by the growing volume of law that was more about special state measures than general principles. However, surely such considerations apply to the United States from about the same time, maybe a bit later during the Progressive Era of the first years of the 20th Century. Evidently the US Constitution did not prevent this, though there was some court resistance to interventionist and federalising measures, or varying intensity. Inevitably courts, including the Supreme Court, reflect the political spirit of the times. Originalist (who think US law and court judgements should follow the supposed intentions of the authors of the Constitution) many not like this, but that does not change the reality. Even the Originalists have difficulty in defining a pristine time when the Constitution was perfectly applied, even going back to the first years in which the Constitution was in force.
European Union treaties reflect evolving legal traditions in an increasing multiplicity of European Union countries, starting with 6, and now up to 27. From a Hayekian point of view, there ought to be some advantage in that evolutionary interaction. Hayek himself was rather prone to regarding the early history of law, up to the time of the French Revolution, as beyond politics of any kind. We do not have to accept this to accept the best parts of Hayek’s thought, and we should not accept it. Looking at British history, Anglo-Saxon law was revolutionise by a political event, the Norman Conquest of 1066, which moved England towards Norman French law. There was another major wave of political monarchical centralised change in the Plantagenet monarchy of Henry II in the late 12th century. It was then that English Common Law as we know it was established. That tradition is often referred to with regard to the importance of interpretations made by judges in cases. This could be regarded as contrasting with the European Roman Civil Law tradition, which might be considered to put more weight on the text of law established by the political sovereign, and not to give much of a role to judicial precedent. The fact is the Common Law was established as an act of codifying centralisation by the political sovereign of the time. Interpretation of law by judges is fundamental to the Roman Civil Law tradition. Michel Foucault gives an interesting example in Discipline and Punish, where he points out that French courts were quick to interpret the Civil Code of Napoleon as allowing mental illness as a mitigating factor with regard to criminal responsibility, when a strict following of the text would have led them to only accept mental illness as completely negating criminal responsibility, or as irrelevant with no intermediate level of mitigation.
We might also note that the Hayekian emphasis on ‘discovery’ through judges interpreting precedent with regard to the details of a particular case, is in some tension with Originalism, which demands that all interpretations be disregarded that do not perfectly fit in with the supposed intentions of the authors of the Constitution.
Anyway, colonial law in America did not evolve purely through ‘discovery’. Some of it was imposed from London, a project John Locke was involved in with regard to the constitution of the colony of Carolina (now the states of North and South Carolina). Political decisions made in the colonies of in London changed the law. Constitutions and law codes were decided through political means, with all the buying off of interests required.
The US Constitution itself was the product of what we might now call public choice, a way of thinking very much associated with classical liberal and libertarian economists and political scientists. While public choice is not the unique property of liberals of that kind, enthusiasts are certainly concentrated there. For public choice theory, it is nonsense to think laws, legal codes and constitutions could emerge through a process detached from politics, self interest and trade offs between competing groups. The US Constitution is itself a compromise designed to get a majority at the Constitutional Convention. The people as a whole were never troubled for their opinion, though the Constitution claims to be in the name of ‘We the people’. There was a political compromise between property owners at the Convention to satisfy concerns about various kinds of economic interests, including those of slave owners, and with no representation for blacks of for American Indians.
The politics and public choice of the Constitutional Convention may be dressed up in ideals of liberty, and rhetorical claims to defend the rights of Americans that colonists had supposedly inherited from Medieval England, that does not mean we have to take it literally. Some understanding developed through the Middle Ages that Kings made laws in Parliament and that taxes were raised by Parliament, this did to some degree look back to the consultative practices of Anglo-Saxon kings. However, the legal codification itself transformed relevant customs and traditions, in part for inventing unity and continuity. Medieval England, in law or in custom, certainly did not define government powers with regard to a welfare clause or 13 enumerated powers. The welfare clause of the American Constitution has some basis in Cicero’s famous comment that law serves the public welfare, but that comment was used by thinkers like Pufendorf who emphasised state sovereignty. Hayek, and his more unimaginative followers, tend to try to make a strong distinction between the Roman Civil Law-State Sovereignty tradition and evolutionary, traditional and judge made law. In this account Hobbes and then the Utilitarians and then the legal positivism of John Austin is made to look bad. One problem with this Utilitarianism is very classical liberal in its origins. Another problem is that Hobbes himself puts a lot of weight on natural (non-state) law. Hobbes himself was drawing on Francis Bacon, and Bacon was drawing on the Medieval monarchical centralisation of the state. This centralisation under the political sovereign itself coincides with the invention of something like modern civil rights in Magna Carta and so on. An invention which draws on the past, but also reinvents the past.