The current crisis in Honduras suggests that substantive and procedural constitutionalism is not sufficient to block dictatorial impulses - this is not, of course, an original intuition. It has been suggested before that the fostering of liberal freedoms depends mainly on whether political groups reach an equilibrium favorable to liberal values - I am referring to the game theoretical notion of equilibrium, that is, the idea that in an equilibrium individuals have incentives to keep behaving as they do. The crisis in Honduras suggests that an equilibrium on liberal values depends on factors that are independent of the incentive structure created by a liberal constitution. Perhaps, the international rejection of the coup and the costs associated with such rejection will create incentives favoring respect for liberal freedoms in Honduras? How is it that - what Rawls and others have called - "overlapping consensus" on liberal values is achieved?
Sunday, September 27, 2009
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Martin- your intriguing post reminded me of an offhand comment made by a professor in an international relations class I took as an undergraduate: the best predictor of whether a coup will occur in a given country is how many coups have occurred there before. If the military has no institutional experience with staging a coup, it will not think of doing so as among its potential courses of action.
ReplyDeleteThis strikes me as an important point more generally: culture (and I use the term very broadly) matters far more than we lawyers might like to admit. As I see it, the crisis in Honduras not only suggests that an equilibrium on liberal values depends on factors independent of liberal constitutions (as you are undoubtedly correct to point out) but also that a liberal constitution is itself only the product of such equilibrium, and not a contributor to it.
Joshua, thanks for your comment! Another issue is what is the role of a bill of rights in advancing a liberal rule of law once that liberal equilibrium has been achieved. Some constititutional scholars coming from the public choice tradition argue that a "substantive" constitution that focuses in civil rights is of no help in fostering liberal freedoms; furthermore, they argue that a procedural constitution actually serves better that aim than a substantive constitution mainly because substantive provisions can be read in many plausible ways - some of those ways may be inconsistent with liberal values and yet be consistent with constitutional constraints. In contrast, a procedural constitution that, say, requires supra majorities for passing certain policies would help maintain that "liberal" equilibrium because it would increase the costs of moving away from it. I have never been entirely persuased by this argument - which is, of course, more complex that this -but I find it very interesting.
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