Constitutional Political Economy – Essay #2

Empowering Government Through Rule of LawCompiled by: Alex LetzoThe purpose of this essay is to build a framework of empowering governance, primarily based on Hayek’s “The Constitution of Liberty”. The futuristic goal is to later superimpose this thinking, with that of previous works on limiting government, in order to contrast whether the democratic means employed by the United States political philosophies are capable of achieving the ends sought in the constitution; where we are primarily concerned with the ends of life, liberty, and the pursuit of happiness.

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It has been explained that governance can be limited through a constitution

conjoined with democracy that is limited by a minarchist philosophy. This system is

reliant on the coordinated want of the people to have a limited governance in order to

achieve life, liberty, and the pursuit of happiness. The question remains though, after the

establishment of a constitution, which severely limits the size of the government in order

to grant its citizens freedom, how do we protect individual’s freedom from the will of

others? This question is answered through a second stage of national development, which

establishes a governing rule of law that is guided by the constitution. However, one must

now take into account that establishing a rule of law can severely off-balance the power

limits imposed on the government by providing additional power in the form of coercion

to conform to the rule of law. Additionally, we must relax the embedded assumption that

the coordination of the people is to seek a limited government. This relaxation of limited

government is based on the belief that, with democracy, comes change in the wants of the

majority as the development of the nation and civilization advance. So there must also

exist some doctrine, practiced within the governance, which allows for a wanting to limit

the newly vested powers of the government, other than the system of checks and

balances, which has a bias to increase the power of the government as a whole.

After establishing a constitution that embodies limited government through a

coordinated want of the people, we must consider that a degree of ultimate freedom has

been granted to every individual. Until now, a self-enforced want that was coordinated by

the people allowed for the creation of a constitution that established a limited form of

governance without the need of authoritative power. This self-enforcement is only aimed

at the limiting of governance and upholding the people’s freedom from coercion by an

external source. This self-enforcement does little in attempting to protect individual’s

freedom from the will of other citizens, which is vital for the advancement of the

civilization. Without the freedom of coercion from other individuals, learning cannot take

place due to a created absence of differing ends that are essential for the advance of

civilization. This advance is due to differing ends allowing for new ways and means of

performing actions that don’t necessarily have to be better than commonly practiced

methodology because learning, or knowledge creation, can occur even if we fail, but will

never occur if we do nothing to improve. This concept, classified by Friedrich A. Hayek,

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in “The Knowledge Problem”, where no individual knows what is best for society and the

only way for advancement to occur is through many individuals diffused attempts at

varying ends, which merge into a general system of knowledge creation. So a need for

freedom and liberty flourished from the necessity of advancing the knowledge of man

through the advancement of civilization. “It is the state of civilization at any given

moment that determines the scope and the possibilities of human ends and values. The

mind can never foresee its own advance.” (Hayek, P.24) So therefore, there exist a need

to implement a rule of law parallel to the constitution, which would allow for states to

protect the free action of individuals, while still maintaining a limit on the coercive power

of the state.

Further questions arise on how should we implement a rule of law, whether

through a democratic process of checks and balances, or by establishing an anarcho-

capitalist society where rule of law is privately enforced? We can further arrange the

argument as a question of which system is even capable of achieving the end sought by

means of rule of law? The end sought is considered to be the individual freedom of

coercion from the will of other citizens. Attempting to establish a privately enforced rule

of law in an anarcho-capitalist society would create a system that has a bias to grant itself

more power than necessary. Essentially, there would exist a private group of individuals

enforcing the power to coerce other individuals to follow the rule of law that they

themselves are supposed to adhere to. In matters where this private group of individuals

are directly involved with the coercion of other individuals, such as to obtain property

rights for the group, who is to be the higher authority that will be able to use the power of

coercion against these private groups in order to keep them in check? The assumed

anarcho-capitalist answer is that other private enforcement groups would compete for the

position of enforcement if the will of one group were corrupted. I see this process turning

into a large issue involving biases and alliances, where the faith in the rule of law

amongst the normal citizen is lost and anarchy ensues. This is where I consider anarcho-

capitalism to fail at enforcing the rule of law and thus not actually achieving the end

sought by the people. Now considering the case of democracy, rule of law is enforced by

a system of checks and balances, where the rule of law can also officially be updated and

advanced as the wants and needs of the majority of the population change. Without such

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a process, I see no way for civilization to advance, but one must also keep in mind that

with new powers granted to the limited government of democracy, there also exists the

need for new forms of limitation.

Similar to the self-enforcement philosophy considering the coordination of the

people on a constitution that limits government; we also have the doctrine of liberalism.

Described by Friedrich A. Hayek, “Liberalism is concerned mainly with limiting the

coercive powers of all government, whether democratic or not”. (Hayek, P.103)

Combined with the self-enforcement aspects of the constitution, we have a doctrine that

is able to provide a check and balance with democracy itself. Thus with the concepts of

democracy and majority rules, we can utilize liberalism to help embody the ultimate end

of limited government, regardless of short-term changes in the scope of government

made by democracy. Without such a system, Hayek believed that policy makers would

attempt to increase the range of their power by addressing questions, which the

government had no power vested by the constitution to address. The same can be said

about an anarcho-capitalist society because one must consider what force keeps the

anarcho-capitalist on the right track for it’s ultimate end of limited government coercion

on the people. Markets are effective in relaying signals but cannot establish long-term

aims as well as short-term changes in societal structure. One can successfully apply the

concept of liberalism to anarcho-capitalism, however I see the peaceful implementation

of corrective practices being difficult to achieve due to the lacking of a sound system of

checks and balances. To this day, democracy is the only form of government where

peaceful resolve of conflict and change of power can occur. So when we conjoin

democracy with the liberalist doctrine, it allows for us to make the necessary adjustments

in the rule of law as society advances, while maintaining the long-term aim of limiting

the coercion of all government.

In conclusion, we can see how rule of law, dependent upon democracy and

liberalism, is an essential tool used to empower the government of a nation. Without this

rule of law, limited by the constitution, individuals would be free to coerce other

individuals to do their bidding simply through monopolistic or violent methods. It is also

important that the form of government be a democracy and not an anarcho-capitalist

society. To this day, civilization knows of no other form government that offers a

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peaceful exchange of power, where the laws and their enforcement are kept in check by a

well-defined system of checks and balances. With this system of government, one has the

greatest probability of allowing the advancement of civilization and thus knowledge,

while preserving the ends sought of life, liberty, and property.

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