Constitutional Coordination versus Constructivist Chaos

   

In his opening essay, Joshua Ammons highlights the transformative accomplishments of women and men who “organized, resisted, and created new realities” through nonviolent collective action. The Polish Solidarity Movement and other chosen examples are instances of individuals working for improvement from within an established institutional system. This type of reform has the advantage of retaining the overall stability of the social system, and as such is less likely to be destructive of the foundational institutions that make cooperation possible. Yet, nonviolent reforms often proceed at a slower pace than revolutions, and can require cooperation with parties who have enforced or benefitted from oppression. For this reason, revolution has understandably held an appeal to many reformers.

Claudia Williamson Kramer’s essay instead emphasizes the opportunities that are made possible by the wartime destruction of old institutions and powers. She notes that over the past 30 years, there seems to be a correlation between war—particularly civil wars with foreign involvement—and improvements in women’s de jure legal rights. As both she and Ammons note, these gains may or may not be lasting, and there is a great deal of uncertainty surrounding whether or not de facto practices around women’s rights and access to property have changed for the better. Yet, there is certainly an appeal to the vision of Atlas shrugging off the corrupt society holding him back and building anew.

These two visions of social change are a wonderful example of the tension that has long existed in classical liberalism between bottom-up, “spontaneous” reform and the constructivist-style supplanting of less liberal with more liberal institutions. F. A. Hayek often illustrated these two different approaches by contrasting liberal reforms in England with the French Revolution. In Hayek’s view, the English system liberalized through bottom-up experimentation within both markets and common law courts. In contrast, the French Revolution was a bloody winner-take-all affair that resulted in democratic reformation, but undermined the rule of law in a way that ultimately compromised the liberal project of building a free, egalitarian, and cosmopolitan society. 

J.M. Buchanan and his collaborators within the field of constitutional political economy challenged this dichotomy between bottom-up spontaneous reform and top-down constructivist reform by raising a third alternative: bottom-up constructivist reform, or in other words, liberal constitutional democracy. Easier said than convened. In order for a constitutional democracy to retain its liberal, citizen-led character, robust systems of checks and balances must be constantly enforced and retuned in order to maintain accountability. This kind of self-governance (i.e. government by the people) takes a great deal of time, effort, and skill.The lessons of this historical debate are worth remembering when considering whether war-time reforms are likely to lead to a society better capable of protecting women’s rights and freedoms. What are the conditions that enable a society to renegotiate gendered laws and norms, which are often interwoven throughout a society’s institutions and have deep historical roots? Are these conditions likely to emerge during wartime, with its accompanying institutional uncertainty? Or are wartime expansions in rights and protections for women destined to be too top-down and impermanent to be worth their price?