The State by Anthony de Jasay (32 page)

1. Agreeing to constitutional guarantees, then, is an intelligent move, a gesture to reassure the minority that nothing really harsh is going to be done to them. As disarming the mistrust of the prospective minority is, so to speak, a condition for getting everybody's signature on the social contract, there may very well occur historical conjunctures where it is rational for the state actually to suggest limits to its own power if its purpose is to maximize it. It has long been known that it can be rational for the wolf to put on sheep's clothing and to refrain for a while from eating sheep. It is old wisdom that it can be rational to take one step back before taking two forward; it can also be rational to forestall an objection by stating it first, inoculate against a disease by infecting oneself with it, roll with the punches, spend to save, bend rather than be broken and take the long way round because it is quicker.
   
 

2. It is one thing to say that it is good for the state, or for the majority with whose consent it rules, to lull the minority into a false sense of security by offering constitutional safeguards. It is another to insinuate that states which do agree to constitutions typically have some such crafty motive in their conscious, calculating minds. The latter sort of allegation has its place only in conspiracy theories of history, and they are unlikely ever to be right. The recognition that constitutions limiting power can be positively useful for states seeking (to put it summarily) to maximize power may, however, still contribute to the proper
   

historical appreciation of these matters. Those whose particular intellectual enterprise calls for seeing the state, not as the locus of a single will, but as the shifting and uncertain hierarchy of diffuse and sometimes partially conflicting wills, none of which can be said knowingly to make the state's decisions, might like to suggest that the hierarchy will tend, albeit perhaps clumsily, to grope for the choices most likely to promote its composite good made up of elements of survival, stability, security, growth, and so forth. The fact that in lurching and groping, states do not always reach worthwhile objects but occasionally fall flat on their faces, need not invalidate such a view. It may simply indicate that if there is an institutional instinct conditioning the state's conduct, it is not an unerring one, but nor would we expect it to be.

1. In his brilliant exploration of some paradoxes of rationality, Jon Elster suggests that a society binding itself by a constitution (in fact, it is the state that is bound, but the distinction between state and society is not pertinent to his purpose) follows the same logic as Ulysses having himself bound to the mast to resist the sirens' song.*4 If Ulysses were not tempted at all by the sirens, if he were sure of his strength to resist temptation, or else if he fully intended to yield to it, he would not want to be bound. Equipping himself with a "constitution" which forbids him what he does not want to do, is rational in terms of his wish for an assurance against his own changing states of mind, his own weakness of will. Whether Ulysses stands for society, or for the state, or for a generation looking ahead and trying to commit future generations, it is his own concern that moves him. He truly fears the sirens. Admittedly, he has shipmates but it is not to satisfy their concerns that he has himself bound.
   
 

My own view is different. It is that anything Ulysses-the-state volunteers to do to restrict his own freedom of choice is the result of his reading of the state of mind of his shipmates, their fear of the sirens and their mistrust of his character. It is not the calculus of one interest in the face of a given contingency, but the upshot of at least two, that of the governed and that of the governor. Ulysses asks to be bound lest his crew should want to get rid of so unsafe a captain.

1. The analogy with states and their constitutions is distorted by the bindings. Once bound, Ulysses cannot undo his shackles. Only his shipmates can release him. A state bound by a "law of laws," being at the same time the monopolist of all law enforcement, can always untie itself. It would not be sovereign if it could not. The proper analogy is not with Ulysses and his shipmates approaching Scylla and Charybdis, but with the lady whose lord, reassured by her chastity belt, is safely off to the wars, while she, now mistress of herself, hangs the key of the padlock of the belt on her own bedpost.
   
 

2. The ultimate mastery of the state over the constitution is masked, in countries with a proper "fixed" Franco-American type of constitution, by the provision of a special guardian-the Supreme Court in the USA, the Conseil Constitutionnel in France-watching over its observance. This guardian is either part of the state, or part of civil society. It cannot be in a third place outside, "above" both. If it is part of civil society, it is subject to the state and can in the last analysis always be coerced not to denounce a breach of the constitution. Failing that, it can have its denunciation denounced by another guardian appointed to replace it. The question is obviously not whether this is feasible or whether a form of words can be found to explain that the constitution is
   

thereby really being respected and on a "higher plane" than hitherto but, rather, whether the stake is worth it. Nature will take its course, and the padlock of the chastity belt will be opened, no doubt in the name of real (as opposed to artificial) chastity, depending essentially on the balance of political support to be gained and to be lost by the move (i.e. Can the state politically afford to do it? and Can it afford not to do it?) and on the contribution, if any, which acting outside the constitution can make to its ends other than to sheer political survival.

1. On the other hand, if the guardian of the constitution is part of the state, there is a presumption that it will not have a separate, sharply divergent conception of the public good or, what is in practice indistinguishable from it, a separate and sharply divergent calculus of the balance of advantages to be reaped from interpreting the constitution one way or the other. The "separation of powers" and the independence of the judiciary are, however, designed to undermine just this presumption. Their intended function is to make it altogether possible for such a divergence to emerge. The device, prior to the Crimean War, of making officers of the British Army independent by letting (and indeed obliging) them to own their commissions, was supposed to ensure that the Army's interest would not diverge from that of property and hence would not become a tool of royal absolutism. The device of selling French magistrates heritable and transferable title to their offices had the effect (though a totally unintended one) of ultimately allowing a divergence of interests to develop between the monarchy and the parlements to such an extent that in 1771, finding themselves confronted by a strong-willed adversary in Maupeou, they were expropriated and the loyal and the complaisant among them became salaried officers of the state.
   
 

Evidently, when the guardian of the constitution is the creature of a previous tenant of state power, the emanation of a majority gone and past, there is quite likely to be a divergence. The American Supreme Court in the face of the New Deal, the French Conseil Constitutionnel in the face of the post-1981 socialist government of the Fifth Republic, are good cases in point. The Supreme Court obstructed or retarded some of Franklin Roosevelt's legislation affecting the rights of property till 1937, when it backed off, sensing that even if the Administration's bill to "reform" it was running into the salutary buffers of bicameralism, it was yet inadvisable for the Court to be seen consistently to oppose the democratic majority. (Legitimacy is obeyed if it does not command much or often.) In time and with average mortality of lifetime appointees, the Court will come to think the way the Administration thinks, though a sharp change of regime can create short-term problems. Even these problems, however, will only deter the benign sort of state which it is not desperately important to deter anyway, for it is unlikely to have unconstitutional designs of major short-term impact on the rights of its subjects. Plainly, no possible conflict with the 1958 constitution would have deterred the overwhelming socialist majority in the French Assembly from nationalizing banking and most large industrial corporations in 1981.*5 It was perfectly understood on all sides that the Constitutional Council might well not survive if it threw out the bill.

4.1.18 A really radical conflict between the conception of right embodied in the constitution and that of public good proposed by the state, particularly at the "dawn of a new era" when there is a bad break in continuity, reflects a revolutionary situation, or a coup d'état (or, as in Russia in October 1917, one on top of the other). Sweeping away an old constitution is in such moments but a minor effort in the spate of other, more portentous ones. In the
face of less radical divergences, a fixed constitution can remain fixed till it is amended.

1. Amending the law of laws is an undertaking quite possibly different in degree, but hardly different in kind from amending a law or some other less formalized arrangement of society (and if there be a law laying down how the law of laws can be amended, that law can be amended, for it is ultimately always possible, by proposing a particular distribution of the resulting benefits and burdens, to assemble preponderant support for the amendment). At worst it may involve a good deal more fuss and legislative time and it may require a wider margin of consent over dissent. If so, a constitution intended to protect the freedom and property of the subject against certain kinds of encroachment by the state, does provide security against lukewarm attempts by an only marginally motivated state. This much, however, is true of any status quo, whether constitutional or just a fact of everyday life, for every status quo represents some frictional obstacle.
   
 

2. The task of every state, from the most repressive discretionary dictatorship to the purest legitimate commonwealth, is the reciprocal adjustment, to its best advantage, of its policies to the balance of support and opposition they engender. Though this degree of generality almost renders the statement trivial, at least it helps dissolve the notion of the "law of laws" as some sort of ultimate rampart or "side constraint" where the state pulls up hard, and behind which the individual subject can safely relax.
   
 

Author: Jasay, Anthony de Title: The State

Anthony de Jasay

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4.
RedistributionBuying Consent

Majorities must be paid for out of minority money; this condition leaves the state little choice about the redistributive pattern to impose.

1. In competitive electoral politics the winner's reward is profitless power.
   
 

2. A given state-of-nature society unmarked by a state, can be told apart from others by its given set of initial distributions of all the unequal attributes which distinguish its members. These are, as we have seen in another context, virtually countless in number. The various distributions, ceaselessly shifting in historical time, are "initial" only in the sense that logically they precede the activities of the state. A relatively small number of them may
   

yield to attempts at levelling. If a state is superimposed on this society, and if it relies on its subjects' consent to stay in power, it may, and under competitive conditions it will, find it advantageous to offer to change some "initial" distribution in such a way that the redistribution will gain it more support (in terms of clout, or votes, or whatever "mix" of the two it considers relevant to power).

1. Such a redistributive offer is obviously a function of the initial distribution. For instance, in a society where some people know a lot and others only a little, where knowledge is prized by both and (tall order!) absorbing knowledge is painless, the state might gain support by obliging the knowledgeable to spend their time, not in cultivating and enjoying their knowledge, but in teaching the ignorant. Likewise, if some people own a lot of land and others only a little, the former might advantageously be obliged to give land to the latter. A redistributive offer in the opposite direction, involving transfer of a good from the have-nots to the haves, would presumably prove to be inferior inasmuch as there would be much less to transfer. Poor-to-rich transfers would, in typical democratic circumstances, produce a less favourable, indeed a downright negative balance between support gained and lost.
   
 

2. If there are any number of inequalities (though only a few will really yield to levelling), the state can at least propose or pretend to level a number of them. If so, it is impossible to predict the most efficient redistributive offer from the initial distributions alone. Even the presumption that transfers from the haves to the have-nots (rather than the other way round) are politically superior, may not stand up if clout matters much more than votes and it is the haves who have the clout.*6
   
3. In order to make a determinate solution possible, it would help to have a political culture where most inequalities were accepted as untouchable, so that neither the state nor its competitors would include them in a redistributive offer. In such a culture, for example, children would be allowed to be raised by their own (unequal) parents; non-income producing personal property would not have to be shared; people could wear distinctive dress; unpleasant work would be done by those who could not get any other, etc. Obviously, not all societies have this sort of culture, though those we call consent-based by and large do. Culture, then, would severely narrow down the possible variety of political offers. However, to rule out any freak programme and cultural revolution, it will be best to consider first a society where only one inequality is "politically" perceived at all: the amount of money people have.
   
 

4. Money looks the natural object for redistribution because, unlike most other interpersonal differences, it is par excellence measurable, divisible and transferable.*7 But it has a subtler advantage, too. At least conceptually, there are political processes which run their course, achieve their objective and comes to an end. The class struggle between capital and the proletariat is conceived in Marxist thought to be such a process. Once this terminal conflict is resolved and there is no exploited class left for state power to oppress, politics comes to a full stop and the state withers away. Likewise, if politics were about latifundia and landless peasants, or the privileges of the nobility and clergy, or other similar inequalities which, once levelled, stayed level, the state's purchase of consent by redistribution would be an episode, a once-for-all event. At best it could be history made up of a succession of such episodes. However, with money as the object,