Brigham Young University
BYU ScholarsArchive
All Faculty Publications
1986
Constitutionalism and the Rule of Law
Noel B. Reynolds
Brigham Young University - Provo,
Follow this and additional works at: https://scholarsarchive.byu.edu/facpub
Part of the Political Science Commons
Original Publication Citation
"Constitutionalism and the Rule of Law," in Constitutionalism and Rights, G. Bryner and N.
Reynolds, (eds.), Provo, Brigham Young University, 1987, 79–104.
BYU ScholarsArchive Citation
Reynolds, Noel B., "Constitutionalism and the Rule of Law" (1986). All Faculty Publications. 1469.
https://scholarsarchive.byu.edu/facpub/1469
This Working Paper is brought to you for free and open access by BYU ScholarsArchive. It has been accepted for inclusion in All Faculty Publications by
an authorized administrator of BYU ScholarsArchive. For more information, please contact , .
, CONSTITUTIONALISM AND THE RULE OF LAW
1986/87?
Noel B. Reynolds
Abstract:
Constitutionalism is the practical science of designing and balancing institutions of public
power and authority so as to prevent monopolies of power or the emergence of tyranny. In spite
of continuing attempts to ground constitutions in moralistic political theories, they are best
understood as formalizations of citizenry agreements to manage their affairs under the rule of law
following rules formulated by their legislatures and applied by their judges, all of which are to be
selected through established procedures. The emergence of rule of law in primitive societies and
in early modern European politics is noted, and the chief contributors to the twentieth century
discussion are identified.
Key Words: constitutionalism, rule of law, natural law, primitive law, F. A. Hayek, Francis
Wormuth, Ronald Dworkin, Charles McIlwain
The bicentennial of the Constitution of the United States of America invites our reflection
on the extraordinary historical success of this document and its attendant institutions. In the
history of mankind, it stands alone as the most successful of the sustained experiments in human
freedom and self-government.
Such reflections may take on some urgency when we note the reduced level of basic
constitutional wisdom which prevails among both the politicians, who are most directly
responsible for maintaining the Constitution, and the political theorists, who provide our political
culture with its self-understanding. It seems that the eighteenth century may have seen the high
tide of such understanding in the western world. And the American Founders were without peer
in their own day.
In this essay I will attempt to articulate the underlying principles which account for the
success of the American constitutional experiment and indeed for similar freedoms that have
been achieved in different degrees and for varying lengths of times in human polities throughout
the world. The same analysis, by contrast, will serve to illuminate failures to achieve freedom
,elsewhere.
One indication of the decline in understanding of these matters over the last century
occurs in the current edition of an authoritative reference work. The author announces somewhat
disdainfully that "constitutionalism is the name given to the trust which men repose in the power
of words engrossed on parchment to keep a government in order."1 Armed with such a narrow
definition it is no wonder that the author is able to insist that "the rise of constitutionalism may
be dated from 1776."2 From this most unpromising beginning the author goes on to develop a
cynical account of the means by which clever lawyers and judges transform the doctrines of the
Constitution over time to make of the document a useful instrument of social control. As if the
Constitution had been intended as a repository or oracle for doctrines to settle all future questions
of fundamental law! The appalling ignorance reflected in this authoritative source is only one
indication of the widespread dearth of constitutionalist wisdom.
As difficult as some of our contemporaries seem to make the understanding of human
freedom, we can find numerous historical examples of its achievement within the framework of
rule of law and constitutional devices. This is important because it emphasizes the universality
of the solutions which were perfected by the American founders.
Primitive Societies
Rule of law through constitutional government is a recurring solution to an ageless
problem in human societies, the problem of controlling the rulers. That there should be no rulers
or government is a thought comprehensible only to a few theorists locked away in their ivory
towers. That rulers need to be restrained has been the eventual discovery of every society.
Constitutionalism is the science of such restraints.
2
, 3
Because of their distance from modern society primitive cultures are often used to
identify those elements of human societies which are universal. Studies of primitive political
systems reveal constitutional arrangements which are designed to prevent the emergence of any
single individual or group as a tyrant, while simultaneously providing for the necessary
government to make orderly and beneficial decisions for communal action.
Our primitive brothers have access to one important control on their authorities that we
have lost in modern secularized society--the requirement that they maintain the approval of the
gods. The disapproval of the gods can be discovered by councils of priests consulting oracles or
interpreting natural or social events. As one might expect, there are always very practical
sanctions available to supplement the theological sanction of divine disapproval.
In most primitive societies political power is balanced and authority is distributed for the
various kinds of community decisions which must be made. Councils are used in most cases to
provide representative decisions. Elaborate rituals of rebellion are enacted annually in some
monarchical societies to remind the king of his dependence on the support of the people. And
without exception kings, chiefs, and councils are not authorized to change the laws and customs
of the people. Furthermore, they are required to enforce those laws and customs and to obey
them in the conduct of their own affairs. The common wisdom of primitive man seems to be that
law or rules must also govern the rulers.
It might be thought that these primitive constitutional arrangements are ageless as they
occur in different societies. This common western belief proves to be a myth as observers note
the ongoing shifting of such arrangements in almost all such societies. Primitive peoples have
never been immune to the dynamic forces of nature and society that impose continual change on
BYU ScholarsArchive
All Faculty Publications
1986
Constitutionalism and the Rule of Law
Noel B. Reynolds
Brigham Young University - Provo,
Follow this and additional works at: https://scholarsarchive.byu.edu/facpub
Part of the Political Science Commons
Original Publication Citation
"Constitutionalism and the Rule of Law," in Constitutionalism and Rights, G. Bryner and N.
Reynolds, (eds.), Provo, Brigham Young University, 1987, 79–104.
BYU ScholarsArchive Citation
Reynolds, Noel B., "Constitutionalism and the Rule of Law" (1986). All Faculty Publications. 1469.
https://scholarsarchive.byu.edu/facpub/1469
This Working Paper is brought to you for free and open access by BYU ScholarsArchive. It has been accepted for inclusion in All Faculty Publications by
an authorized administrator of BYU ScholarsArchive. For more information, please contact , .
, CONSTITUTIONALISM AND THE RULE OF LAW
1986/87?
Noel B. Reynolds
Abstract:
Constitutionalism is the practical science of designing and balancing institutions of public
power and authority so as to prevent monopolies of power or the emergence of tyranny. In spite
of continuing attempts to ground constitutions in moralistic political theories, they are best
understood as formalizations of citizenry agreements to manage their affairs under the rule of law
following rules formulated by their legislatures and applied by their judges, all of which are to be
selected through established procedures. The emergence of rule of law in primitive societies and
in early modern European politics is noted, and the chief contributors to the twentieth century
discussion are identified.
Key Words: constitutionalism, rule of law, natural law, primitive law, F. A. Hayek, Francis
Wormuth, Ronald Dworkin, Charles McIlwain
The bicentennial of the Constitution of the United States of America invites our reflection
on the extraordinary historical success of this document and its attendant institutions. In the
history of mankind, it stands alone as the most successful of the sustained experiments in human
freedom and self-government.
Such reflections may take on some urgency when we note the reduced level of basic
constitutional wisdom which prevails among both the politicians, who are most directly
responsible for maintaining the Constitution, and the political theorists, who provide our political
culture with its self-understanding. It seems that the eighteenth century may have seen the high
tide of such understanding in the western world. And the American Founders were without peer
in their own day.
In this essay I will attempt to articulate the underlying principles which account for the
success of the American constitutional experiment and indeed for similar freedoms that have
been achieved in different degrees and for varying lengths of times in human polities throughout
the world. The same analysis, by contrast, will serve to illuminate failures to achieve freedom
,elsewhere.
One indication of the decline in understanding of these matters over the last century
occurs in the current edition of an authoritative reference work. The author announces somewhat
disdainfully that "constitutionalism is the name given to the trust which men repose in the power
of words engrossed on parchment to keep a government in order."1 Armed with such a narrow
definition it is no wonder that the author is able to insist that "the rise of constitutionalism may
be dated from 1776."2 From this most unpromising beginning the author goes on to develop a
cynical account of the means by which clever lawyers and judges transform the doctrines of the
Constitution over time to make of the document a useful instrument of social control. As if the
Constitution had been intended as a repository or oracle for doctrines to settle all future questions
of fundamental law! The appalling ignorance reflected in this authoritative source is only one
indication of the widespread dearth of constitutionalist wisdom.
As difficult as some of our contemporaries seem to make the understanding of human
freedom, we can find numerous historical examples of its achievement within the framework of
rule of law and constitutional devices. This is important because it emphasizes the universality
of the solutions which were perfected by the American founders.
Primitive Societies
Rule of law through constitutional government is a recurring solution to an ageless
problem in human societies, the problem of controlling the rulers. That there should be no rulers
or government is a thought comprehensible only to a few theorists locked away in their ivory
towers. That rulers need to be restrained has been the eventual discovery of every society.
Constitutionalism is the science of such restraints.
2
, 3
Because of their distance from modern society primitive cultures are often used to
identify those elements of human societies which are universal. Studies of primitive political
systems reveal constitutional arrangements which are designed to prevent the emergence of any
single individual or group as a tyrant, while simultaneously providing for the necessary
government to make orderly and beneficial decisions for communal action.
Our primitive brothers have access to one important control on their authorities that we
have lost in modern secularized society--the requirement that they maintain the approval of the
gods. The disapproval of the gods can be discovered by councils of priests consulting oracles or
interpreting natural or social events. As one might expect, there are always very practical
sanctions available to supplement the theological sanction of divine disapproval.
In most primitive societies political power is balanced and authority is distributed for the
various kinds of community decisions which must be made. Councils are used in most cases to
provide representative decisions. Elaborate rituals of rebellion are enacted annually in some
monarchical societies to remind the king of his dependence on the support of the people. And
without exception kings, chiefs, and councils are not authorized to change the laws and customs
of the people. Furthermore, they are required to enforce those laws and customs and to obey
them in the conduct of their own affairs. The common wisdom of primitive man seems to be that
law or rules must also govern the rulers.
It might be thought that these primitive constitutional arrangements are ageless as they
occur in different societies. This common western belief proves to be a myth as observers note
the ongoing shifting of such arrangements in almost all such societies. Primitive peoples have
never been immune to the dynamic forces of nature and society that impose continual change on
