Constitutions and Political Theory

Martin Edelman

Constitutions have become "hot". With the collapse of the Soviet Union and the end of the Cold War, ostensibly democratic states have emerged throughout the areas formerly designated as the Second and Third Worlds. The establishment of these new regimes has invariably been accompanied by the promulgation of written constitutions. For public law scholars, this sequence has posed the question of the utility of written constitutions: what, if anything, do these documents add to nation, State, and society? As his title indicates, Jan-Erik Lane explores what help political theory, both traditional and empirical, provides for answering this most important question. Professor Lane plainly sees all the complex, interrelated issues involved, and he takes a straightforward approach in addressing them. At the outset, he lays out the basic issues: Why are there constitutions? Where did constitutions originate? Do constitutions matter? How is the constitutional State related to democracy? He then proceeds to tackle them systematically. The emphasis is on the word ‘systematic.’ Professor Lane’s method is to break each basic issue into subordinate issues and then to canvass and summarize the relevant literature. Only in the summaries of each chapter does he provide some indication of his own insights. As a result, the reader gains a handy, brief compendium of the literature on a wide variety of topics. The reader loses, however, the ability to follow a clearly developed and strongly supported argument. The virtue of this method is that Professor Lane is invariably clear and precise. For example, he notes that the word ‘constitution’ sometimes refers to a written document outlining the institutional structures of the State, their assigned powers, and the rights reserved to the people. Sometimes ‘constitution’ refers to the governing institutions as they are actually practiced in ongoing State activities. (ch.1). The confusion is compounded by the fact that "in every State there is a gulf between the codified constitution and the real constitution." (118). No State lives 100 per cent in accordance with its written documents. Customary law, convention, court decisions play a major role even in the most text conscious nation. The real issue is how actual practice diverges from the formal constitution. At one extreme are the ‘camouflage constitutions’ like those of Josef Stalin; at the other, there is the importance of constitutional law in the actual politics of the United States and Germany. As Professor Lane notes, if actual practice diverges strongly from the formal document [or recognized, established practice in nations without written constitutions like the United Kingdom and Israel], the constitution ceases to confer legitimacy. (124). Professor Lane roots that legitimacy in widely held ideas about the utility of constitutions (constitutionalism). His chapter 8 on ‘why constitutions’ is a model of conciseness. He reformulates traditional political theory arguments in the language of empirical political theory. "The State is an institutional device for handling the prisoners’ dilemma problem. Its existence may be derived from a theory about the consequences of free riding for collective action. And some kinds of collective action are necessary for any society.... In the last resort only a State can protect such vital institutions." (178). "And a constitution is necessary to regulate the State due to the principal-agent problems that arise in the State. ...The rules of the constitution identify what the common objectives of the principal and agent are, what activities the agent may never take, how policies are to be enacted and implemented by the principal and the agent and how conflicts about the interpretation of the constitution are to be resolved." (179-180). This is only a brief extract of how Professor Lane utilizes social choice theory to provide a really neat explanation for the near universal appeal of constitutionalism. In turn, this formulation enables him to provide a clear theoretical linkage between constitutionalism and democracy. While not all constitutional states NEED be democracies, all democracies must be constitutional states. Constitutions provide the procedural regularity and for the protection of human rights necessary for public participation in governance. (ch. 11) The clear, concise exposition of such basic propositions is the great strength of this work. On the other hand, the discussion of the institutions needed to support a constitutional regime is tedious. For example, Professor Lane canvases the literature on presidential versus parliamentary states, unitary versus federal states, strong judicial review versus weak judicial review. He concludes that much, if not all, depends upon the nation’s political culture. In sum, CONSTITUTIONS AND POLITICAL THEORY is a valuable compendium of a vast literature. It often provides useful and concise reformulations of important matters that are all too frequently overlooked in current discussions of the utility of constitutional provisions in political life. But it unlikely to prove a useful classroom text; its style is too dry and several chapters are not very insightful. It deserves a place on the bookshelf of academics interested in issues related to constitutions and constitutionalism.