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§ 37 - Constitutionalism - Positive and Negative
In presenting my case that freedom vitally hinges on substantial and efficient government services, I shall now go even a step further. I contend that one may look at some of the central arrangements of freedom as having been consciously picked to be instrumental in bringing about a particularly strong state. To be sure, in that perspective, a powerful state is not an end in itself. Rather, it is desired because it represents the most elemental precondition of freedom. It is this attitude that inspirits the most important contribution of liberalism to the history of human institutions: constitutionalism.
In presenting my case that freedom vitally hinges on substantial and efficient government services, I shall now go even a step further. I contend that one may look at some of the central arrangements of freedom as having been consciously picked to be instrumental in bringing about a particularly strong state. To be sure, in that perspective, a powerful state is not an end in itself. Rather, it is desired because it represents the most elemental precondition of freedom. It is this attitude that inspirits the most important contribution of liberalism to the history of human institutions: constitutionalism.
By constitutionalism I mean the imposition of firm constraints on the state. More specifically, it may be regarded an attempt to direct the energies of the state into the most promising and constructive conduits.
First, however, we ought to discern negative constitutionalism (tracking the ideas of negative rights and negative liberty) from positive constitutionalism (tracking the ideas of positive rights and positive liberty - fore more see § 36).
Negative constitutionalism assumes that in order to achieve personal freedom, we must first and foremost trammel liberty's supposedly worst enemy, the state. In this reading, freedom is attained by keeping the state as small and as inactive as possible, subjecting it to intensive observation, based on a strong presumption against it. Yet, this view leaves unconsidered that liberty is a broader concept than personal freedom. The latter is feasible only because it is enclosed within a wider system of liberty, notably including the positive rule-controlled functions of the state. Which brings us to positive constitutionalism.
Positive constitutionalism understands that freedom is not a residual state of affairs attained by inaction but a creation that needs to be constantly attended to by affirmative action and an appropriate institutional framework regulated (not only but significantly) by the fundamental rules laid down in the constitution.
Although, these constitutional guidelines have extensive implications in the way of stopping possible undesirable state activity, they are equally instrumental in allowing, encouraging, and even demanding the state to take affirmative action conducive to freedom and the common weal.
First, however, we ought to discern negative constitutionalism (tracking the ideas of negative rights and negative liberty) from positive constitutionalism (tracking the ideas of positive rights and positive liberty - fore more see § 36).
Negative constitutionalism assumes that in order to achieve personal freedom, we must first and foremost trammel liberty's supposedly worst enemy, the state. In this reading, freedom is attained by keeping the state as small and as inactive as possible, subjecting it to intensive observation, based on a strong presumption against it. Yet, this view leaves unconsidered that liberty is a broader concept than personal freedom. The latter is feasible only because it is enclosed within a wider system of liberty, notably including the positive rule-controlled functions of the state. Which brings us to positive constitutionalism.
Positive constitutionalism understands that freedom is not a residual state of affairs attained by inaction but a creation that needs to be constantly attended to by affirmative action and an appropriate institutional framework regulated (not only but significantly) by the fundamental rules laid down in the constitution.
Although, these constitutional guidelines have extensive implications in the way of stopping possible undesirable state activity, they are equally instrumental in allowing, encouraging, and even demanding the state to take affirmative action conducive to freedom and the common weal.
Contrary to influential, in certain liberal circles perhaps nowadays even dominant, negative accounts of freedom as implied in negative constitutionalism, it is inaccurate to say that the purpose of a constitution is to shackle the state so that the individual can be free.
At least since the 16th century it has been well understood that the strength of the state is a function of judiciously chosen rules guiding and delimiting governmental competences. To impose such rules on an agent is not at all the same as enchaining it in the manner of stifling a powerfully destructive beast. No less than observing certain traffic rules shackles the ability of an ordinary driver to make the best of having a car at his disposal. Quite to the contrary.
It is advisable to discard some philological biases - "necessary evil," "Leviathan," night-watchman" etc - that easily tempt us to think of the state as a naturally evil institution that must be put in fetters and diminished if anything good is to come of it. Like a knife that is neither naturally a murderous instrument nor naturally a potato pealing instrument, the state is neither naturally evil nor naturally benign. Positive constitutionalism marks the evolutionary and historical stage in which man has learned to turn the state into a facilitator of freedom by by subjecting it to appropriate rules.
As I have argued before, freedom expands concentrically, and she is divisible in that she may apply to some persons and some parts of society but not to others. In the age of positive constitutionalism, freedom's reach and leverage increases dramatically thanks to her instrumentalising one of mankind's most advanced social technologies: the modern state.
Gradually freedom has become the ability to release the enormous positive forces contained in the modern state.
A view certainly not supported by all liberals today, historically liberalism (or more generally liberty-focussed thinking) can be seen as a strategy to realise the most desirable type of society by making the state as strong as possible.
§ 38 - The Paradox of (Absolute) Power
Prominently among the historical challenges that help father liberalism and shape its agenda are the blazing religious conflicts of the 16th and 17th century. A crucible in which many ideas are forged that exercise the political mind to this day, such as issues relating to the tension between power and diversity of opinion. Witnesses of gruesome religious strife, authors like Machiavelli, Hobbes and Bodin, struggle to understand the nature of power, its position in the battles of the day, and its calling and ability to mould the people and the times.
In their view, nothing is worse than anarchy. Even a malign authority is better than none, oppression is preferable to civil war. Hindering subjects from killing one another is the most basal demand on the highest earthly possible authority. Naturally, power gains centre stage in the deliberations of these thinkers. And so they discover that power has its subtleties, its aporias and tricky implications.
Great is the temptation to equate unrestricted exertion of force with effectiveness in dominance. The idea that power is the source that lends authority to law, rather than its content and substantive quality, legal positivism, as this doctrine will be called in later time, is an offspring of an arrogant and callous or simply a desperate flirt with absolute power. If religion is fragmented and cannot be reverted to for generally binding decisions then perhaps this competence should devolve on the temporal sovereign, the uncommanded commander. If we, prone to gridlock, cannot keep peace among ourselves by virtue of our own authority, then a higher third party authority may be needed and thus justified in ordaining peace. But what does it take to invest a party with this peacekeeping power?
Incidentally, here we have again a case of transrational amelioration - see also § 13 - a way of redirecting the energies of intractably opposed reasoning into calmer channels.
In his thinking, Jean Bodin prefigures my earlier observations on the human competition for structures of maximal power - see The State - (2) - [Draft]. All striving for power converges on the selection of an unassailable supreme wielder of power. Much of the most egregious harm man may ever be exposed to is the result of (a) the absence or (b) the unfinished installation of a monopolistic centre of power. Our reasoning is therefore irresistibly drawn to the serviceable prospects of absolute power. But there are obstacles on the way to its promises, no less for the doer than for the thinker.
Absolute power may actually be an illusion, or really just a short-lived prelude to catastrophe, to mayhem, to anarchy, and ultimately, by much blood, sweat, and tears, to more reasonable forms of power. As we have seen in The State - (6) - [Draft], no matter how powerful, the state's discretion is never unconditional. The complexity and large number of influences working on a state, let alone the state embedded in a democratic environment, bring forth a plethora of constraints that no sovereign can divest himself of. In fact, acting as if these constraints did not exist eventually saps the strength of him who proceeds with overbearing might. The very exercise of power will tend to be accompanied by conflicts and collisions that remind the sovereign harshly where to tread and where better not to. Maximising power is the process of adapting to (a) the hindrances obstructing the sovereign's unbridled will and (b) the counterforces awakened by the exertion of profuse power. Maximising power is the process of sounding out the ever present, ever changing conditions of power.
Bodin is compelled to concede that the sovereign, whom he accords the largest possible range of discretion, including the ultimate authorship of the law, is
not free
§ 39 - Resolving the Paradoxes of (Absolute) Power
Absolute power is one of those terms that do have meaning, but lack anything corresponding in the real world. For quite naturally power is adulterated with conditions, limits, and counterforces pushing it back. In every era, human society must cope with two problems most fundamental to it: violence and mistrust. Likewise, the wielder of power needs to find a reasonable balance between a critical minimum of trust and an intolerable excess of violence. The holders of power must manoeuvre to find that balance. Distrust and destructiveness can eat them up.
But the ultimate taboo for the rational holder of power is self-destruction. In not ruling properly, i.e. paying careful attention to the limits of his power, the sovereign runs the risk of destroying himself. Power must be wielded judiciously to be lasting power.
Subjecting herself to certain restrictions, binding herself to rules that she will not overrule, is an indispensable means for the ruler to increase her effective power.
Continued here.
At least since the 16th century it has been well understood that the strength of the state is a function of judiciously chosen rules guiding and delimiting governmental competences. To impose such rules on an agent is not at all the same as enchaining it in the manner of stifling a powerfully destructive beast. No less than observing certain traffic rules shackles the ability of an ordinary driver to make the best of having a car at his disposal. Quite to the contrary.
It is advisable to discard some philological biases - "necessary evil," "Leviathan," night-watchman" etc - that easily tempt us to think of the state as a naturally evil institution that must be put in fetters and diminished if anything good is to come of it. Like a knife that is neither naturally a murderous instrument nor naturally a potato pealing instrument, the state is neither naturally evil nor naturally benign. Positive constitutionalism marks the evolutionary and historical stage in which man has learned to turn the state into a facilitator of freedom by by subjecting it to appropriate rules.
As I have argued before, freedom expands concentrically, and she is divisible in that she may apply to some persons and some parts of society but not to others. In the age of positive constitutionalism, freedom's reach and leverage increases dramatically thanks to her instrumentalising one of mankind's most advanced social technologies: the modern state.
Gradually freedom has become the ability to release the enormous positive forces contained in the modern state.
A view certainly not supported by all liberals today, historically liberalism (or more generally liberty-focussed thinking) can be seen as a strategy to realise the most desirable type of society by making the state as strong as possible.
§ 38 - The Paradox of (Absolute) Power
Prominently among the historical challenges that help father liberalism and shape its agenda are the blazing religious conflicts of the 16th and 17th century. A crucible in which many ideas are forged that exercise the political mind to this day, such as issues relating to the tension between power and diversity of opinion. Witnesses of gruesome religious strife, authors like Machiavelli, Hobbes and Bodin, struggle to understand the nature of power, its position in the battles of the day, and its calling and ability to mould the people and the times.
In their view, nothing is worse than anarchy. Even a malign authority is better than none, oppression is preferable to civil war. Hindering subjects from killing one another is the most basal demand on the highest earthly possible authority. Naturally, power gains centre stage in the deliberations of these thinkers. And so they discover that power has its subtleties, its aporias and tricky implications.
Great is the temptation to equate unrestricted exertion of force with effectiveness in dominance. The idea that power is the source that lends authority to law, rather than its content and substantive quality, legal positivism, as this doctrine will be called in later time, is an offspring of an arrogant and callous or simply a desperate flirt with absolute power. If religion is fragmented and cannot be reverted to for generally binding decisions then perhaps this competence should devolve on the temporal sovereign, the uncommanded commander. If we, prone to gridlock, cannot keep peace among ourselves by virtue of our own authority, then a higher third party authority may be needed and thus justified in ordaining peace. But what does it take to invest a party with this peacekeeping power?
Incidentally, here we have again a case of transrational amelioration - see also § 13 - a way of redirecting the energies of intractably opposed reasoning into calmer channels.
In his thinking, Jean Bodin prefigures my earlier observations on the human competition for structures of maximal power - see The State - (2) - [Draft]. All striving for power converges on the selection of an unassailable supreme wielder of power. Much of the most egregious harm man may ever be exposed to is the result of (a) the absence or (b) the unfinished installation of a monopolistic centre of power. Our reasoning is therefore irresistibly drawn to the serviceable prospects of absolute power. But there are obstacles on the way to its promises, no less for the doer than for the thinker.
Absolute power may actually be an illusion, or really just a short-lived prelude to catastrophe, to mayhem, to anarchy, and ultimately, by much blood, sweat, and tears, to more reasonable forms of power. As we have seen in The State - (6) - [Draft], no matter how powerful, the state's discretion is never unconditional. The complexity and large number of influences working on a state, let alone the state embedded in a democratic environment, bring forth a plethora of constraints that no sovereign can divest himself of. In fact, acting as if these constraints did not exist eventually saps the strength of him who proceeds with overbearing might. The very exercise of power will tend to be accompanied by conflicts and collisions that remind the sovereign harshly where to tread and where better not to. Maximising power is the process of adapting to (a) the hindrances obstructing the sovereign's unbridled will and (b) the counterforces awakened by the exertion of profuse power. Maximising power is the process of sounding out the ever present, ever changing conditions of power.
Bodin is compelled to concede that the sovereign, whom he accords the largest possible range of discretion, including the ultimate authorship of the law, is
not free
- to choose his successor, or
- to sell parts of the kingdom, as if it were his private property, or
- to levy taxes without consent, or
- to violate just and reasonable conventions and covenants, whether of his own or of prior volition, or
- to force magistrates to obey or execute royal ordinances that are held by them to be unjust or dishonest, or
- to refuse to listen to the humble supplications and requests of his subjects.
§ 39 - Resolving the Paradoxes of (Absolute) Power
Absolute power is one of those terms that do have meaning, but lack anything corresponding in the real world. For quite naturally power is adulterated with conditions, limits, and counterforces pushing it back. In every era, human society must cope with two problems most fundamental to it: violence and mistrust. Likewise, the wielder of power needs to find a reasonable balance between a critical minimum of trust and an intolerable excess of violence. The holders of power must manoeuvre to find that balance. Distrust and destructiveness can eat them up.
But the ultimate taboo for the rational holder of power is self-destruction. In not ruling properly, i.e. paying careful attention to the limits of his power, the sovereign runs the risk of destroying himself. Power must be wielded judiciously to be lasting power.
Subjecting herself to certain restrictions, binding herself to rules that she will not overrule, is an indispensable means for the ruler to increase her effective power.
Continued here.
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