Why Constitutions Matter

Posted on by Brian Colwell

The purpose of this blog post is to gather notes and quotes from Berggren, Karlson And Nergelius’ much cited ‘Why Constitutions Matter’ as related to bureaucratic administration, rights, rules, constitutions, and democracies. Notes and quotes are gathered from the third printing of ‘Why Constitutions Matter’, published in 2009 by Transaction Publishers in arrangement with City University Press, Stockholm, Sweden. Let’s get to it!

‘Why Constitutions Matter’ By Berggren, Karlson & Nergelius

  • “At the level of the individual, there are two broadly familiar reasons why a personsal constitution may be deliberately designed and implemented – a rule or rules aimed specifically at constraining the set of available options that are predicted to be open. First there is the argument derived from a ‘weakness of will’… In a planning or prospective stage or rational reflection, the individual may recognize his or her own vulnerability to the then-attractive but ultimately damaging options that may be presented as possible. Protections or barriers may be erected that will exclude some or all such options from arising. The second familiar argument applicable to the individual psychology of choice stems from the recognition that choosing is itself costly, and that there are quite rational reasons for restricting the number of options to be evaluated to a manageable set.”
  • “The reason for rules arises in any collective organization that allows actions to be taken without any explicit consent of the individuals who are affected. Its importance is directly related to the difficulty that the members may face in leaving or exiting from the group.”
  • “… there are two basic forms or types of constraints, both of which may be described under the constitutional rubric. Procedural constraints, as the modifying adjective suggests, operate directly on the means through which choices are made, while directly impinging on the set of options open for selection… Any such a requirement is purely procedural; it places no boundaries at all on the set of feasible outcomes. Substantive constraints, by comparison, act directly on the set of options among which selections are to be made. A constitution may specify that some physically feasible outcomes are simply ‘out-of-bounds’, regardless of the procedures through which they may be reached.”
  • “Absent a rule or requirement that all of the interdependencies be reckoned with, that all margins of adjustment be simultaneously considered, there would seem to be no basis for predicting even tolerable efficiency in collective or political decision-making, even as evaluated by any single person.”
  • “The limits or constraints that are dictated by the rule of structural rationality are suggested as necessary means to the attainment of any objective, whatever this might be.”
  • “Rules are needed to cover situations where choices are not explicitly confronted; rules provide back-up or default means for selecting among alternatives when attitudinal or institutional considerations intervene to make deliberative decisions impossible or, at the least, inconvenient.”
  • “Rules service… not as a means of economizing on costly choices by bounding the set of choice alternatives, but, instead, as substitutes for choice in those settings where, advertently or inadvertently, a choice situation does not or is not allowed to emerge. As applied to individual or personal choice, this argument suggests the efficacy of the deliberative adoption of habits or conventions in behavior patterns… deliberative selective of and promotion of habits and conventions, as attributes of personal constitutions that define, direct, and determine behavior in certain settings, may be utility enhancing.”
  • “… constitutions must be seen to matter because, otherwise, we find ourselves… in a setting of constitutional drift, where inattention to rules and rules’ structure may allow patterns of results to emerge that are preferred by no one, then, now, and in the future.”
  • “Constitutional rules have the effect of increasing the costs of taking certain actions. It is more costly to take an action in violation of a rule than it is to take that same action in the absence of the rule.”
  • “An increase in the cost of any choice alternative will reduce the resort to that alternative. Demand curves do, after all, slope downward.”
  • “Constitutional structure and strategy must be informed, first, by a definition of those patterns of outcomes that are deemed undesirable and, second, by an implementation of limits on the procedures or results designed to forestall such patterns.”
  • “The promotion of justice, however defined, may take precedence over personal liberties.”
  • “Politics is a struggle for power, not a debate over public good.”
  • “… democracy is promoted when there are rules increasing the degree of political representation of the interests of the citizens, the influence of the majority of citizens, the participation of citizens in politics, the legal certainty, the division of power and the responsibility of those in power.”
  • “… constitutions can, should and often do include rules making it difficult for the… majority to restrict political and human rights. Such rules are constraints on the power of the majority.”
  • “… in the Western world, there is a widespread consensus as regards rights. Who would protest against…
    • Freedom of opinion
    • Freedom of the press
    • Freedom of information
    • Freedom of movement
    • Freedom of assembly
    • Freedom of demonstration
    • Freedom of association
    • Freedom of religion
    • Right to life
    • Protection of physical integrity
    • Right to privacy
    • Protection of family life
    • Right of private property
    • Protection of correspondence
    • Freedom from inhuman or denigrating treatment
    • Freedom from compulsory labour
    • Freedom from discrimination
    • Right to due process of law
    • Equality before the law…”
  • “If the constitution could be changeable by simple majority decisions, the constraints would be too weak.”
  • “To make… constraints strong, one must make them more fixed than the majority decision. This can be done by introducing qualified majority requirement for constitutional changes and/or by checking and balancing the division of powers, especially by judicial review.”
  • “Constitutional constraints must be justifiable and difficult to change, yet flexible. We need constraints but we also need a non-arbitrary way to create, limit and change them.”
  • “Majority rule approximates a calculus of human preferences.”
  • “Ideal deliberation is free, reasoned and equal, and it aims at consensus.”
  • “Rational discourse about public matters can only be achieved within the framework of the law.”
  • “A full theory of deliberative democracy includes both substantive and procedural principles, denies that either are morally neutral, and judges both from the second-order perspective. The principles of deliberative democracy are distinctive in two significant respects: they are morally provisional (subject to change through further moral argument), and they are politically provisional (subject to change through further political argument)… All those principles express, in various forms, the idea of reciprocity…”
  • “Reciprocity suggests the aim of seeking agreement on the basis of principles that can be justifiable to others who share the aim of reaching reasonable agreement.”
  • “… reciprocity is not a principle from which justice is derived, but rather one that governs the ongoing process by which the conditions and content of justice are determined in specific cases.”
  • “… it makes sense to impose a high institutional threshold on constitutional change, albeit all rules are defeasible.”
  • “To facilitate democratic deliberation, we need both strong courts and strong legal dogmatics (in other words, legal doctrine, scientia juris).”
  • “… courts that have access to the scientia juris can base their opinions on a more elaborated value system. With the aid of legal dogmatics, the courts can regard the law as ratio scripta, not as a mere product of the will of the politicians… The work of legal dogmatics is almost always value-laden… In brief, legal dogmatics… works on a high level of abstraction[,] creates a system of beliefs[,] has normative components [and] aims at obtaining a coherent totality. It aims at presenting the law as a net of principles, rules, meta-rules and exceptions, at different levels of abstraction, connected by support relations.”
  • “… the majority cannot constrain itself.”
  • “A highly developed legal culture includes a developed legal dogmatics.”
  • “Full procedural democracy obtains… when these conditions are fulfilled.
    • The five criteria constitute an ideal-type of procedural democracy, which in practice are impossible to realise:
      • 1. Voting equality at the decisive stage
      • 2. Effective participation
      • 3. Enlightened understanding
      • 4. Final control of the agenda
      • 5. Inclusiveness
    • The criteria of procedural democracy requires… that the following rights and institutions apply:
      • 1. Elected officials
      • 2. Free and fair elections
      • 3. Inclusive suffrage
      • 4. Right to run for office
      • 5. Freedom of expression
      • 6. Alternative information
      • 7. Associational autonomy”
  • “… the value of democracy consists in its process and substance.”
  • “… a limited democracy, together with the market, is the best mechanism of discovery in a process of social evolution the ultimate goal of which is the self-realization of individuals…”
  • “… normative theories of democracy… offer the following arguments on behalf of democratic institutions:
    • 1. They embody just political procedures
    • 2. They lead to results satisfactory from the standpoint of a universal theory of justice
    • 3. They issue in collective rationality”
  • “Formally speaking, a constitution is a collection of meta-rules, i.e., rules about other rules… A constitution restricts how to change laws (including the constitution)…”
  • “Whether or not a constitution exists is determined, ultimately, by whether or not it is observed. And like democracy, constitutions can be justified in terms of a normative theory.”
  • “The procedural theory of democracy can… prescribe rules that uphold democracy, i.e., so-called democratic rights and freedoms. It can be legitimate, therefore, to institute a legal order which prevents the abolition of democracy…”
  • “[One] argument for a constitution is based on the principle of self-binding… The purpose of… self-binding is to remove one’s own weakness of will as an obstacle to goal-fulfillment… It is a method for maximizing expected utility by means of a sort of strategic rationality. An actor binds himself in order to optimise the outcome of a conflict within himself… A constitution as a way of self-binding, may have an instrumental value as a safeguard for democracy’s survival.”
  • “… self-binding can be an appropriate tactical measure.”
  • “Constitutions can be possible outcomes of democratic procedures, not normative prerequisites for democratic procedures.”
  • “In respect to economic policy… self-binding is needed…”
  • “Self-binding can be strategically rational for solving internal conflicts within a political actor…”
  • “Self-binding is, in short, a way of maximizing expected utility.”
  • “A constitution is the institutionalized cure for chronic [ignorance]; it disempowers short-sighted majorities in the name of binding norms…”
  • “… there is no higher moral authority than people’s interests or preferences.”
  • “The central tenet in most conceptions of democracy is that power must be derived from the people and that democracy realizes the popular will. Various constitutional mechanisms contribute to representing the citizens’ opinions in order to define a democratic choice or decision… Democracy demands a connection between citizens’ preferences and society’s collective decision.”
  • “If property rights are clearly defined and enforced, we should expect this to facilitate welfare-enhancing interactions between individuals, as well as the internalization of externalities, and hence to stimulate economic growth.”
  • “An efficient institution can… be defined as one that guides human action in such a way that productive activities are favored instead of unproductive, or even destructive, activities and which therefore leads to economic growth.”
  • “To achieve economic progress, efficient institutions are required. It is hence of central importance to realize that economic development is highly affected by the institutional structure, as it affects how humans choose to behave both in economic and political contexts.”
  • “… political institutions define the rules of the political game and thus heavily influence the working properties of the political process. Among these institutions, the foremost is the formal constitution, which lays down… voting rights, the electoral system, a catalog of rights, the central political units (not the least the relationship between the legislature, the executive, and the judiciary).
  • “Due to the way in which politics works… quite a few decisions will be characterized by shortsighted and special interests rather than a long-term public interest, and e g, with the result that political decisions are made with growth-retarding effects. That may be considered undesirable from the point of view of the long-term interests of the polity… The logic of the game… is somewhat similar to that of the prisoners’ dilemma game… The problem is that the majority in power at any point in time always chooses that which gives their own group the highest payoff. The challenge is to devise the rules of the political game in such a way that… make it easier for the politicians to withstand shortsighted pressure from the public opinion and interest groups.”
  • “The basic idea is that democracy is desirable but that it will only be sustainable in the long run if it gives rise to good results – as evaluated by the citizens themselves. This in turn implies… choice of democratic building blocs, within a framework of minimal basic principles of democracy… some general examples of which [are] (1) rights, (2) decision rules, (3) electoral systems, and (4) the separation of powers.”
  • “If we conceive the rights of the individuals as being what has traditionally been called negative rights, i e, as restrictions upon what others may do to an individual, then constitutionally protecting the individual rights from the interference of temporary political majorities, as well as from other individuals, may have a number of positive effects on human cooperation and hence human welfare. Most fundamentally, they limit – if successfully protected – the costs which other actors, private and political, can impose on individuals, and hence make it worthwhile for economic actors to invest their time and resources in productive efforts. This is, most obviously, the case with such classical negative rights as the right to own property, to contract and trade, etc., without the interference of the government. But protecting such individual rights furthermore lowers the costs of the collective decision-making through a decrease in the decision-making costs of individual action by according to each individual a sphere within which he can ultimately act according to his own judgment. Also, the expected external costs of the choices made by others become lower.”
  • “To the extent that… constitutionally mandated ‘positive’ rights are successfully implemented, the result may easily be a redistribution far beyond what an economy can bear and with significantly negative effects on wealth and productivity. Furthermore, by opening up for constitutional mandates for redistribution, the lid may be taken off a Pandora’s Box of rent-seeking, whereby special interest groups may gain a considerable interest in ensuring that exactly their narrow benefits are institutionalized on a permanent basis. In this way the ‘positive’ rights will increase both the external costs and the collective-decision making costs of the constitution… ‘positive’ rights… have… significant effect on prosperity and economic growth, albeit a negative one… the inclusion of ‘positive’ rights to specific entitlements into the constitutional framework will have a growth-retarding effect over time.”
  • “… the separation of powers with checks and balances between the executive and the legislative, in conjunction with a constitutional court which supervises that the constitution is upheld, can increase social utility, primarily because such an arrangement creates conflicts of interest between the two power centers while they, at the same time, must agree. Thereby, they monitor each other and contribute to the denouncement of power abuse…”
  • “… history has shown that in societies which have obtained a high and enduring level of material wealth, well-defined and protected private ownership rights have been of central importance…”
  • “… political freedom… consist[s] of two essential components: political rights and civil liberties.”
    • Political rights –
      • “Political freedom in the form of political rights are typically in the form of such ‘positive’ rights as the rights of the citizens to participate in the elections, free and open elections, etc.”
      • “… ‘positive’ political rights may also be seen as including the various types of politically provided entitlements, e g to social security, medical care, housing, work, etc.”
    • Civil liberties –
      • “… political freedom in the form of civil liberties is typically conceived of as ‘negative’ rights (other than economic rights), e gfreedom of religion, freedom of speech, freedom of the press, freedom of association, freedom against unreasonable searches, due process, etc, i e what we would often associate with the ‘rule of law’ broadly conceived.”
  • “With economic freedom one would typically associate a free market economy, i e the property rights of individuals, freedom of choice and voluntary exchange, freedom of contract and the enforcement of contacts, the absence of taxation, regulation, etc.”
  • “Countries which have higher economic freedom (lower taxes, smaller public sector, more deregulated markets and trade, lower inflation, etc.) tend systematically to have greater wealth and higher economic growth than other countries.”
  • “… there is a statistically significant positive relationship between economic freedom and per capita national income.”
  • “… economic growth leads to an increase in political freedom…”
  • “… economic freedom promotes economic growth…”
  • “… an increased level of income leads to political freedom.”
  • “… the formal constitutional guarantees of various rights seems to be the real protection of such rights…”
  • “… the rule of law… stimulat[es] prosperity…”
  • “The stronger the delineation and constitutional protection of property rights, the smaller the poverty and the higher the extent of human development, which may be interpreted as a clear sign that the safer the property rights, the greater the opportunity to engage in wealth-maximizing behavior.”
  • “… if a government contemplates reforming its constitution, and to the extent that economic progress is made a high priority, it is wise to consider the following institutional arrangements:
    • Upholding negative economic rights, especially secure private property rights
    • An electoral system favoring strong, non-fragmented majorities
    • Some form of a decentralized-hierarchical or federal – structure in the public sector, with a vertical separation of powers
    • Some form of horizontal separation of powers at each level of government
    • Levels on spending, taxes, and public debt
    • The possibility of popular initiative for certain types of decisions, e gtaxes, or the possibility of requiring referendums on expropriation, new taxes, regulation, etc.
    • Strict budget processes in legislatures.”
  • “Institutions are rules of human conduct whose violations attract sanctions of some sort. Appropriate institutions can help people with limited cognition to make sense of the complex and evolving reality, in other words help to ease the knowledge problem. They also help to constrain selfish, opportunistic behavior, promote order, avert conflict and help to settle unavoidable conflicts expediently. All this serves to reduce the transaction costs in markets (as well as the costs of running organizations)… The term ‘institution’… must not be confused with ‘organizations’, which are more or less durable associations of production factors. Organizations may, of course, embody certain institutions that affect their effective operation… We distinguish between two basic types of institutions, according to their genesis:
    • Internal institutions, or internal rules, evolve within a community in the light of experience.
    • External institutions, or external rules, are, by contrast, designed and imposed by a political authority (collective action), and their violations incur formal, i e organized sanctions.”
  • “Constitutions are sets of overriding, durable rules, frequently of an abstract, general character. Political and economic constitutions should create order among individual rules and provide meta rules that guide us in how to interpret and reconcile specific rules.”
  • “Written constitutions tend to contain external institutions… their interpretations often draw on internal rules… Any living constitution has to stand on two legs – external and internal rules.”
  • “Constitutional and other rules are not a purpose in its own right. They are tools to achieve individual human aspirations, specifically a plurality of fundamental human values, which define a well-run society: freedom, security, justice, equity, peace, prosperity, and the conservation of a liveable environment.”
  • “The key quality of institutions to look out for if one wants effective rule systems is universality… An institution is universal if it is:
    • Certain and simple, making the institutions knowable and predictable
    • Abstract and general, avoiding case-specific rules and discrimination amongst people
    • Open in the sense that existing rules give guidance to as-yet-unknown future situations
    • In addition, there should be consistency among rules and the orders they create…”
  • “Any institution (or set of institutions) can only have a normative effect on human behavior if it remains reasonably stable over time.”
  • “It is desirable to have constitutional provisions in place which facilitate the process of re-evaluation and which act as a framework for re-tuning the rules in orderly, non-violent ways.”
  • “… a community’s social and economic life is a most complex process of open-ended evolution.”
  • “… the constitution[‘s]… most fundamental function [is] to create an abstract framework, in which institutions are changed expediently, and peacefully, maintaining order in the process.”
  • “… a constitution appropriate to today’s fast-changing world must enhance the collective capacity for recognizing changing circumstances and for altering the shared external rules. Given the innate inflexibilities of public choice, it also seems useful to reduce the areas, which are subject to collective rules by deregulation and privatization and to foster the creation and enforcement of internal rules (deregulation, liberalization and small government).
  • “Governing a country involves… the enforcement of laws. This task, in turn, contains the obligations of making the laws known to people, of supervising people’s conduct, including obedience to … laws, and of reacting when laws are broken.”
  • “… laws are public goods…”
  • “… lack of profit-making entrepreneurs is a problem. If there are no actors like that, how are the good societies, to which the individuals are supposed to move, created?”

Thanks for reading!