Securing Constitutional Government: The Perpetual Challenge
Ratnapala, Suri, Independent Review
Every country in the world claims to have a constitution, but only some have constitutional government, and most of the world's people do not live under constitutional government. The term constitution once was synonymous with constitutional government that meant a particular type of political order in which the rulers' authority, including their legislative power, was limited through appropriate institutional devices, and both rulers and citizens were subject to the general law of the land. However, the term has been so debased that the Encyclopaedia Britannica (1987 edition), the most widely read encyclopedia, informs its readers that in the simplest and most neutral sense every country has a constitution no matter how badly or erratically it may be governed.
Constitutional government is an ideal, and like all ideals it can be achieved only as an approximation. Even the countries that appear to be near the ideal are revealed on examination to be not so near. Constitutional government, to the extent it is achieved, reflects a state of affairs that remains under constant threat from power seekers, ideological opponents, ill-informed social engineers, and manipulative special interests. It is also being eroded in the postindustrial era through a serious depletion of social capital, weakening the institutional foundations of constitutional government (Fukuyama 1999). In the more unfortunate countries, economic circumstances, cultural constraints, and entrenched ruling classes create seemingly intractable obstacles to the attainment of acceptable levels of constitutional government. This predicament harms seriously not just the unfortunate people of these countries but also the industrialized democracies of the world.
Deepening our understanding of the conditions that make constitutional government possible thus remains an intellectual task of the highest priority. In the past two decades, scholars have done a tremendous amount of work in this regard. My aim in this article is to make a modest contribution along these lines. I argue specifically that nations achieve constitutional government in the sense used in this article to the extent that they realize the following conditions: (1) prevalence of this particular conception of constitutional government as a dominant ideology; (2) an official constitution in written or customary form that adopts this conception of constitutional government; (3) an institutional matrix that sustains the official constitution and translates it into the experience of the people; and (4) a healthy economy that supports the institutional foundation of constitutional government. It is immediately evident that the third and fourth conditions are interdependent, each being a cause of the other. There is nothing unusual in nature or in culture about reciprocal causation. However, it raises important questions about prospects for breaking and reversing vicious cycles that grip countries whose economic conditions undermine institutions in ways that cause further economic decline. I consider some of these questions and propose that the integration of these countries into the market economy and hence into the liberal constitutional order is an unqualified good for both the industrialized democracies and the Third World.
F. A. Hayek called the ideal of constitutional government under discussion here the constitution of liberty. Its pedigree traces back to the evolutionist thought of the eighteenth century. In The Constitution of Liberty (1978), Hayek presented a restatement of the principles of a free society. He completed this restatement in his monumental three-volume intellectual defense of the rule of law and individual freedom, Law Legislation and Liberty (1976-83). These treatises together explain the constitution of liberty: the logic and the institutional framework of the political order that sustains human freedom. The constitution of liberty is not a specific constitution but a coherent set of general principles that characterize a constitution capable of securing freedom. …