Abstract
This chapter argues that despite the general idea that rule of law principles and the regulatory state collide, these institutional arrangements have a mutually reinforcing relationship. This positive effect can be achieved provided that there is a working constitution in place. A working constitution must satisfy two fundamental standards: on the one hand, in order to be legitimate, it should be the result of the successful coordination of interests of all the relevant agents in a society and, on the one hand, in order to enhance public power, it has to be designed so as to effectively promote coordination among leading agents. It is concluded that such constitutions are central pieces of the normative infrastructure of developed societies. Therefore, a theory that explains and justifies this sort of institutional arrangement plays a pivotal role in contemporary legal and political theory.
Previous versions of this work were discussed in diverse contexts: the Thomas Hobbes Seminar organized by ITAM and UNAM in Mexico City; the “Legisprudence” workshop at the XXV IVR World Congress in Frankfurt; the Vaquerías Seminar in Cordoba, Argentina; the Seminar of the Department of Political Theory at the University Pompeu Fabra, in Barcelona; the Seminar of the Department of Legal Philosophy of the University of Alicante and the 1st US – Latin-American Law Colloquium organized by the Law School of the University of Texas and the Department of Law of ITAM. I deeply appreciate the insights I received in every of such occasions, and naturally remain responsible of any failure remaining in the text.
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Notes
- 1.
- 2.
Oliver et al. (2010).
- 3.
Scott (2010). Although “governance” is a current concept in political theory and public administration scholarship, legal scholars do not use this concept frequently—I am afraid, in contemporary constitutionalism even government is far form being a central concern. Therefore, perhaps a definition could be of some utility:
Governance consists of the traditions and institutions by which authority in a country is exercised. This includes the process by which governments are selected, monitored and replaced; the capacity of the government of effectively formulate and implement sound policies; and the respect of citizens and the state for the institutions that govern economic and social interactions among them (The World Bank 2010: 1).
To be sure, this chapter looks particularly at the second aspect of this definition: the capacity of the government to effectively formulate and implement a sound regulatory policy.
- 4.
- 5.
In fact, as we will see, both sources of the problem are normatively intertwined. As Martin Loughlin has sustained, the central concern of public law is the government through the institutions of law; being constitutions a central feature of modern legal orders (Loughlin 2010, part IV). Consequently, if regulatory governance is found utterly incompatible with a constitutional framework, this would compromise no only the legal status of regulation but, more importantly, this would dissipate any possibility for its legitimacy as government technique.
Needless to say, this framing of the problem is not unproblematic. As it is well known, both “constitutionalism” and “governance” are contested categories, and their relationships with contemporary legal phenomena are, at least, controversial. See, e.g., Pollombella and Walker (2008) and Jordana and Levy-Faur (2004a, b). It is not my purpose in this chapter to participate in that theoretical conversation, but rather focus on its implications from the perspective of constitutional government.
- 6.
There are wide national divergences in this matter that call for alternative and, naturally, more sophisticated explanations. Nevertheless, I consider Mexico—and maybe, Argentina; a country I know definitively less—as a paradigmatic example of this phenomenon. Mexico went through a process of “structural” reforms of the 1980s and 1990s directed, on the one hand, to the reinforcement of constitutional government—consider, e.g., the impulse of constitutional justice as a relevant factor with respect to government control—and, on the other, to the deployment of a regulatory state—consider, e.g., the emergence of most of the regulatory agencies in a period of less than 5 years. Nevertheless, although Mexican economy is regularly ranked among the 15 larger economies in the world (14th, in July 2012), it is still the 98th (of 178) in the light of corruption meters of evaluation, and the 56th (of 169) on human development standards.
Statistical sources: http://www.transparency.org/policy_research/surveys_indices/cpi/2010/results, and http://hdr.undp.org/es/estadisticas/idn
This is not the context for a detailed argument on the causal relationships among institutional environments, governance standards, and social development. Nevertheless, for an introductory approach to the Mexican case, see, e.g., Moreno-Brid and Ros (2009) and OECD (2012).
- 7.
Again, institutional variation is wide, and the tendency to make an ideological reading of facts is extremely large. Nevertheless, as we will see, serious efforts to explain and understand the variation on national performance arrive to the conclusion that state power is, in fact, a sine qua non factor to sustained economic and social development. See, e.g., Mann (1986–2013).
- 8.
There is a vast literature on this topic, but one of the most vigorous examples of it is North et al. (2009).
- 9.
I label as “canonical” the different conceptions covered by the neo-constitutionalist wave: Robert Alexy, Luigi Ferrajoli, Gustavo Zalgrebelski, etc. But I think that maybe Dworkin’s approach to the role and contents of a constitution could be a more concrete reference of what I have in mind.
- 10.
I rather talk of a “thee-level argument” instead of three arguments because, in my view, they are just elements of a unitary instrumental and “welfarist” conception of public law. As will be transparent, these levels do not clear cut usual divides like descriptive and normative discourses; function and justification, and efficacy and justice. My strategy is to formulate a persuasive argument by the coherence among the particular statements of each level, instead of formulating independent, although convergent, conclusions.
- 11.
This is the power to do collectively the sort of things that no one, either an individual or a private corporation, regardless its quantum of distributive power, can do by himself. I borrow the concepts collective and distributive power form Parsons (Parsons 1960: 199–225). Michael Mann sums up this notions in the following terms: “Distributive power is the power of an actor A over an actor B. For B to acquire more distributive power, A must lose some. But collective power is the joint power of actors A and B cooperating to exploit the nature or other actor, C” (Mann 1986–2013: 2). As it is well know, canonical constitutionalism deals almost exclusively with distributive power problems, being actors A and B, e.g., government and citizens; different branches of government, or different agencies of the Executive Branch. In this approach I propose to shift our attention to problems of collective power as constitutional matter, being constitutional arrangements social instruments to generate coordination for collective action between A and B, either oriented to transform nature, or to increment their (common) capabilities to control effectively actor C—i.e., a social agent (private or public) with potential ability to resist or distort collective action.
- 12.
See Oliver et al. (2010).
- 13.
Naturally, those decisions can be described in much more detail, and their institutional consequences are far for simple and unproblematic. Actually, as it is well know, the implications of “playing by a Constitution” are both theoretically and practically significant, and have been “the” central matter for Public Law at least for the last two centuries.
- 14.
I am, of course, aware that there is controversy on the nature of those social goals, and that there lies the philosophical (political, social, moral, etc.) dimension of constitutionalism. This is not a conversation in which I want to participate now. What I want to highlight is a much less controversial feature of constitutionalism: its instrumental nature.
- 15.
Otherwise, a constitutional theory that could not formulate a convincing grounding for both the “making” the Constitution and for the social-institutional practice of “playing” by the Constitution, would be metaphysical dream.
This “strategy” is, actually, an instance of the two-step justification presented by Rawls is his seminal article “Two Concepts of Rules” (Rawls 1955), and later developed in his A Theory of Justice (Rawls 1971). This constructivist approach to the foundation of our institutions and, more importantly here, to the standards of justice belong to a long tradition in liberal thinking that reaches back, at least, to pre-liberals such as Hobbes. Nevertheless, letting aside its liberal pedigree, I think that most of its relevance in contemporary constitutionalism springs from the unequivocal artificial character of the argument, which contrasts with the implicit naturalism that pervades contemporary neo-constitutionalism.
- 16.
Of course, I do not claim originality in this claim. On the contrary, in the next paragraph I closely follow Russell Hardin (Hardin 1999), although for the sake of parsimony I will not elaborate on his suggestive, and complex, approach to constitutionalism, democracy and markets as mutual advantage strategies. On the role of coordination in Hume’s political theory as an “improvement” of Hobbes contractualist argument, see, Hardin (2007).
Apart from that, Hardin argument is not completely original; on the contrary, it is deeply rooted in the liberal tradition within which modern constitutionalism emerged. See, e.g., Holmes (1995).
- 17.
For the sake of simplicity, in what follows I will assimilate the ideas of constitutionalism, order, state and government.
- 18.
That is, “sociologically, a mutual advantage theory is therefore de facto a coordination theory. The government that coordinates interests in more likely to sustain support that the government that evokes moral commitments” (Hardin 1999: 3–4).
- 19.
Although, in my mind, it is a platitude, it may be worth recalling in the current zeitgeist that the question of government legitimacy is conceptually and functionally dependent of the question of government possibility. Therefore, a theory of the first that does not give a satisfactory account of the second is, at least, superfluous.
- 20.
See Hardin (1999: 103 ff.). On other grounds, this effectiveness principle has been formulated also in the legal theory. For example, Neil MacCormick has approached this prerequisite of constitutional effectiveness in the following terms:
Given a constitutional order that is by-and-large efficacious, it makes sense to treat the constitution as that which ought to be respected. That is, it makes sense to act on the footing that state coercion ought to be exercised only in accordance with provisions laid down by constitutional founders, and that all other forms of coercion ought to be repressed as legally wrongful […] Two points need to be made. First, this presupposes that we know what a constitution is. This knowledge in necessarily based on […] the functions of allocating powers and establishing checks and balances among them. That is, from the appreciation of the functioning of a territorial legal order with a judiciary, executive and legislature in some kind of working interrelationship that can explain what goes into a constitution. Secondly, the existence of a constitution is not primarily a matter of the adoption, by whatever procedure, of a formal document that purports to distribute powers of government […]. It is, again, an issue of functionality, to do with the response of political actors over time to the norms formulated in the text of a constitution. These are or are not taken seriously as governing norms of conduct. To some variable degree, but at least in the great majority of relevant situations, conduct must be oriented toward these norms by actors, and understood by reference to the same norms by those acted upon. Only those that are in this sense taken seriously do really exist as working constitution, (MacCormick 2007: 45 f.).
- 21.
This does not entail, of course, neither that all sources of governmental power are legal-administrative, nor that all mechanism of control of such power are constitutional. In his impressive study of the organization of social power, Michael Mann identifies four sources and organizations of power that interact in multiple overlapping and intersecting socio-spatial networks: ideological, economic, military and political (Mann 1986–2013). Although constitutional conversation has traditionally focused in the problem of controlling political power, governmental power is linked to all these sources and organizations of power, that require, I contend, a more comprehensive theory of constitutionalism. See, e.g., Larrañaga (2011).
- 22.
See, also, Oakeshott (1983: 119 ff.).
- 23.
- 24.
- 25.
“The state conceived not as a partnership but as a corporate association […] Corporate bodies of this type united ‘persons associated in respect of such identified common purpose, in the pursuit if some acknowledged substantive end, or the promotion of some specified enduring interest” (Loughlin 2003: 17), and with respect to Oakeshott (1983: 203).
- 26.
“[T]he ruler of a state when it is understood as societas is the custodian of the loyalties of the association and the guardian and administration of its conditions which constitute the relationship of socii […] Its government (whatever its constitution) is a nomocracy whose laws are understood as conditions of conduct, not devices instrumental to the satisfaction of preferred wants”, Oakeshott (1983: 218).
- 27.
- 28.
Obviously, the combination of the two modes of association and the two conceptions of authority adds up to four analytical “models”. Nevertheless, for the sake of parsimony I will consider only the most contrasting among them: potestas/societas and potentia/universitas. Much of what follows in this section is inspired by Loughlin (2010: ch. 6, 11 and 14).
- 29.
See, e.g., Summers (2010).
- 30.
As it is well known, this is particularly true in the Lockean version that influenced, over any other intellectual source, the liberal aspiration to abolish arbitrary power as an inherent moral value of the law, See, e.g., Fuller (1969: ch. 2). For a liberal, but less emphatically moralist view of the “virtue” of the Rule of Law, see, e.g. Raz (1977).
- 31.
Although John Stuart Mill’s “positive constitutionalism” focuses in the democratic dimension of liberal institutions, I think that most of Mill’s insights in this matter can be extended to the diffusion of knowledge of in constitutional governance. See Holmes (1995: 178 ff.).
- 32.
For a very suggesting approach to these organizational functions of law that deserves more attention by public law scholars than that received up today, see Llewellyn (1940).
- 33.
Social theory has been interested in this process of the “juridification” of social life for a long time. See, e.g., Habermas (1998) and Unger (1976). Nevertheless, this problem has regained actuality precisely as a consequence of the sociological analysis of the conditions of an effective regulatory state. See, e.g., Teubner (1987).
- 34.
Actually, the depth of the process of “juridification” of the public sphere sets the public/private divide in crisis. See, e.g., Oliver (1999).
- 35.
An additional quotation of Laski seems timely:
How that power is organised is rather a matter of form that of substance. It may, of course, be organised in such a way that it cannot, as in the Czarist Russia, attain the end which theory postulates for it. Power, that is to say, is always a trust, and is always held upon conditions. The will of the State is subject to the scrutiny of all who come with the ambit of its decisions. Because it moulds the substance of their lives, they have the right to pass judgement upon the quality of its effort. They have, indeed, the duty to pass judgement; for it is the plain lesson of historic record that the wants of men will only secure recognition to the point that they are forcibly articulate. The State is not ourselves save where we identify ourselves with what it does. It becomes ourselves as it seeks to give expression to our wants and desires. It exerts power over us that it may establish uniformities of behaviour which make possible the enrichment of our personality. It is the body of men whose acts are directed to that end. Broadly, that is to say, when we know the sources from which governmental acts derive we know the sources of State’s will (Laski 1931: 53 f. Emphasis added).
- 36.
See Oliver et al. (2010).
- 37.
As it is well know, constitutionalist ideology is embedded in a sound liberal skepticism regarding the proper use of governmental power; particularly, with respect to the tendencies of the state to “colonize” society and of government to “capture” public interest. These are risks concomitant to any arrangement of and for authority. Nevertheless, as I will try to show in the next section, there is nothing to gain form circumventing this problem by means of ideological commitment, and a lot to improve in our institutional designs by the acknowledgement of a necessary balance between the social goal of a powerful state and the risk of misuse of that power.
- 38.
See Gorski (2003).
- 39.
Cf. above n. 18.
- 40.
Of course, the quality of elites is a function of social capital, and this is, again, in a mayor part a product of state potentia, as it is effectively implemented in public policy: education, health, infrastructure, etc. The obviousness of the virtuous circle between social development and governance does not make easy to find out the springs to start its movement.
Of course, as it could be easily recognized much of what is been said here and in the next section in close to Weber’s contrast between patrimonial and bureaucratic systems. See Weber (1978: 220 ff.).
- 41.
Of course, I do not want to suggest that the “workability” of the constitution is the only factor—not even the main factor—to explain the resilience of those societies as natural states. My argument only goes as far as saying that a common factor among societies that exhibit high degree of constitutional governance is that they are, in fact, open access orders. This can be a sine qua non, but definitively not a per quam relation.
- 42.
This approach makes a distinction between adherent organizations and contractual organizations. Whereas, in the first case, organization does not depend on the a third party to back agreements, and cooperation among the members of the organization must always be compatible with the individual incentives, the second, in contrast, requires the backing of a third party to support organization, and to make possible agreements that, in some cases, are not aligned with the incentives of participants. Perhaps someone might find this approach to social order as contractual organization incompatible with my presentation, in the first section of the paper, of constitutionalism as mutual advantage strategy. Nevertheless, this supposed incompatibility fades by making the distinction between reasons for constitutionalism and reasons of the constitution. I have stressed the point that, as mutual advantage strategies, social and constitutional orders depend on the fact of serving the interest of the relevant individuals in a society; and that the existence of a working constitution—i.e., one which produces coordination under the constitution—is a condition for reasons of the constitution to become reasons for constitutionalism. I think that this is not at all incompatible with sustaining, following Hobbes, that constitutions work by authoritative means: i.e., by establishing obligations that are independent to other incentives of those regulated by the constitution. Commitments are essential features of any constitution, and their binding character depends, precisely, on the existence of the constitution in question (see, above, n. 18). This is why, mutual advantage arguments provides both an answer to the question of why constitutions are made, in first place—in my opinion, the only persuasive answer—, and a justification of why, ones established, constitutions are binding along the time: the pragmatic obligation to obey to what is in my interest—i.e., maintaining a working constitution.
- 43.
Although they focus on the conditions for the control of social violence, I suggest, nevertheless, that their framework is useful to give an account of the collective power required to procure any other form of social welfare besides and beyond peace. In this sense, in the light of an strategic approach to constitutionalism sketched in the first section, I consider—with Hobbes and with liberals, in general (Holmes 1995: ch. 2)—, that the same cluster of passions is the source for our demand of order (peace) and of welfare in general:
The Passions that encline men to Peace, are Feare to Death; Desire of such things as are necessary to commodious living; and a Hope by their industry to obtain them. And Reason suggesteth convenient Articles of Peace, upon which men may be drawn to agreement (Hobbes [1651] 1996: 90).
Constitutionalism is, thus, one of those “Articles”—for peace, and welfare— upon which we may be drawn to agreement. Much has been said about the role of fear in Hobbes theory of human conduct, although very little has been commented by legal and political scholars about the desire of welfare and the hope for a productive life. These are “cold” and “positive”—at least, non destructive— passions, more familiar to the economic branch of liberalism, and have been considered by some as quintessentially bourgeoises. I claim, nevertheless, that this call to welfare is a fundamental influence of the more contemporary idea of regulatory state. See, e.g., Hirschman (1994); I have further developed this welfarist approach to constitutionalism in Larrañaga (2009: ch. 5) and Larrañaga (2011).
- 44.
In a nutshell, the basic contrast between open access societies and natural states is that, whereas the first “regulate economic and political competition in a way that uses the entry and competition to order social relations”, the second “uses political power to regulate competition and create rents; the rents order social relations, control violence and establish social cooperation” (North et al. 2009: xii).
- 45.
See, above, n. 9.
- 46.
See North et al. (2009: 112 ff.).
- 47.
See, e.g., Culebro and Larrañaga (2012).
- 48.
- 49.
Although formulated in another context, I think that the idea of regulatory regimes as control systems developed by Hood, Rothstein and Baldwin in the book The Government of Risk. Understanding Risk Regulation Regimes (Hood et al. 2001) is fitted for my expositive purposes, and consequently in what follows I will be very close to their approach.
We use the term ‘regime’ to denote the complex of institutional geography, rules, practices, and animated ideas that are associated with the regulation of a particular risk or hazard. Institutional geography can vary in features such as scale, from international to national to local jurisdiction; integration, from a single agency handling all features of regulation to high fragmented administration and complex overlapping systems controlling related aspects of risk; and specialization, from risk-specific and hazard-specific expertise to general-purpose administration […] Three basic features of the regime approach deserve to be noted briefly here.
First, we see risk regulation regimes as systems. We view them as sets of interacting or at least related parts rather than as ‘single-cell’ phenomena. So we are interested just as much in what ‘street bureaucrats’ and front-line people do on the ground as in the activity of standard-setters and policy-makers, and in the relationship, if any, between the two.
Second, we see regulation regimes as entities that have some degree of continuity over time. Of course, regulatory systems seldom are, if ever, completely static. Risk regulation regimes have their sudden climacterics as well as their incremental adjustments and steady trends […]
Third, as with any system-based approach to organization, regimes are conceived as relatively bounded systems that can be specified at different levels of breath. (Hood et al. 2001: 9 ff. Emphasis added).
- 50.
Mexico suffers of a particularly inefficient information management that, in my opinion, has not been significantly improved by the “transparency policy” in recent years. To be sure, there is an enormous quantity government of information available, but there is much to be done with respect to the relevance criteria of a large part of such information. Sadly, as any contractor with any government level (Federal. Local or Municipal) and any participant in market competition in Mexico has experienced, very often the official available information does not give any clue on what makes the difference at the end of the day. For example, the Federal Government policy of “publish it all” in the websites of the Secretariats and Agencies and the Supreme Court’s policy of broadcasting their “deliberations” are, I am afraid, so bluntly inadequate measures for its manifested purpose that, probably, deserve to be considered mere simulations or shams. The CFC (the antitrust federal agency) has not made public the Board’s criteria for ruling in different aspects of competition policy for more than 15 years, and as any patient follower of the Supreme Court debates knows, it is really very difficult to recognize clear nexus between what is “said” by the Justices in Court and the content of the Court’s final “rulings”. Of course, members of the dominant coalition know that information hides the information, and any effective measure in this respect—e.g., improving decisional processes of the CFC or the Supreme Court through reorganization, without necessarily expand their already generous budgets to despair of many—would reduce the “revenue” of privileged access to that information, enhance competition and, therefore, contribute to a more open access society. No wonder there is so much indulgence for the “argumentative” character of our Supreme Court doctrine and the “technical” content of our Agencies resolutions. See, e.g., Larrañaga (2008) for a general approach to transparency policy in Mexico, and for an evaluation of the decisional processes in regulatory agencies in Mexico, see, e.g., Centro de Estudios Espinosa-Yglesias (2009).
- 51.
See, e.g., Dahl and Lindblom (2000: ch. 2).
- 52.
The quality of infrastructure (transportation, utilities, telecommunications, etc.) is, probably, the most accurate standard to evaluate the “openness” of a society. It is so not only because of its very well known effect in social productivity, but mainly because it reflects the both the commitment and the capacity of a society to produce public goods—i.e., to open universal access to these goods. Mexico suffers of a dramatic deficit in infrastructure every domain—form gas pipes to sewers. There are three causes of this deficit, closely linked to the ways in which standards, goals and targets are settled: (1) the lack of planning for longer periods that one administration—in the Municipal level, 3 years—; (2) the strong linkage of infrastructure planning with political representation, and (3) the extremely high levels of corruption in this sector. Very little has improved by the privatization policy of the last decades. Since infrastructure projects require of considerable financial support, as a consequence of extraordinarily expensive financing, only few actors can compete in this sector—actors that, of course, can externalize their financial opportunity costs through their monopolistic rents.
- 53.
- 54.
See, e.g., Daintith (1997).
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Larrañaga, P. (2013). The Role of Constitutionalism in Regulatory Governance. In: Wintgens, L., Oliver-Lalana, A. (eds) The Rationality and Justification of Legislation. Legisprudence Library, vol 1. Springer, Heidelberg. https://doi.org/10.1007/978-3-319-00062-6_5
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