Consti - Ethics or Ontology ?

It occurred to me while setting off on holiday that, just as in philosophy there is sometimes said to be a divide between those who focus on 'Ethics as First Philosophy' (I'm quoting Levinas) and those who regard the primary questions as ontological ('the miracle of being,' if you like), the same might be said of Consti.

That is, before we discuss whether we have the Constitution that we ought (whatever that might be), there is the remarkable but little-remarked fact that we have a Constitution at all. I mean by this not that there is Text X of Age Y for State Z - that's nearly universal - but that there is a reasonably stable governmental system that operates in a relatively fair and predictable way. That is rather rarer.

One view is I suppose summed up best by the dictum attributed to Harry Calvert, that even Al Capone's gang had a constitution - 'Do what Big Al says, or else.' I guess that this was the way of things - otherwise he would have become Little Al or Dead Al rather quickly - but I'm not so sure that this amounts to a constitution.

This is for two - er, three - reasons.

Firstly, this suggests that the corrupt policeman who points a gun at you and says 'bribe me or I shoot you' is in some sense making law. Even most positivists would reject that conclusion.

Secondly, this does not really cover anything like the variety of decisions that the gang or its members must take. Certainly if Big Al has pronounced - yes, that is what happens (or a shootout). But what if he has not ? Or does not think it necessary ? Or does not care ? (eg precisely who takes which moll). One might either extend the constitutional analogy and say 'Ah, but there are conventions and customs' (really ?) - or one might say that there is no real constitution here and it is more a matter of 'survival of the fittest' with people forming and breaking alliances according to their perceived self-interest.

'That's politics,' you say - well, perhaps. But it's not Consti. Consti is more about the mechanisms and principles by which these questions are resolved without resort to a Hobbesian state of nature - which would seem to me to be probably a better analysis of Calvert's example, with the Capo for the time being as Leviathan - for the time being.

Thirdly, there are Lon Fuller's points about the morality of law - that is to say, that 'laws' must have certain basic properties (intelligibility, non-contradictoriness, etc) before they will deserve the title 'laws.' Until then, they are no more deserving of that title than the highwayman[=person]'s 'Stand and Deliver.'

This, of course, is more controversial, but I think that applied to Consti it would also derail Calvert's example - which was doubtless meant as hyperbole, but tends to be taken rather literally by students and textbook-writers.

This would both deny to some states (others may decide which) the claim to possess a 'constitution' (as oppposed to a piece of paper with that heading) and also re-open our eyes to the 'miracle of being' in Consti - how remarkable it is that some states are governed, and have been for some time so that we can expect it to continue into the future, in an orderly and predictable way. This would then, perhaps, cause us to be less confident that a functioning constitution is a natural and inevitable stage in a state's history (the Whig interpretation of Consti, shall we call it ?) and more concerned about what would be the most suitable conditions for that putative state to acquire and retain one.

I gather that Samuel Huntington has a book out on this ('Political Order in Changing Societies' (ppb 2006)), which I shall get around to reading at some stage and revert to you about.