Finding The Brake

by Roderick Long

Finding The Brake

In his 1815 Principles of Politics, French liberal author Benjamin Constant defended the monarch’s “right to dissolve representative assemblies.”

Constant’s position might seem surprising. Wasn’t securing the independence of parliaments from the royal will one of liberalism’s hard-won victories?

His reasoning ran as follows. The “tendency of assemblies to multiply indefinitely the number of laws” is the inevitable result of “two natural inclinations in the legislators, the need to act, and the pleasure of believing themselves necessary.” Hence it is only to be expected that legislators should “share out amongst themselves human existence, by right of conquest, in the same way as Alexander’s generals shared out the world.” The function of the monarch is to serve as a check against this tendency. This is why the political executive is customarily entrusted with the power of vetoing legislation; but, Constant maintains, the veto is not enough:

The veto is precisely a direct means of repressing the indiscreet activity of representative assemblies but, when employed too often, it irritates without disarming them. Thus dissolution is the only remedy whose effectiveness is assured.

But what ensures that the monarch will use this power beneficently rather than mischievously? Here Constant’s argument becomes less compelling: as a “neutral power” rather than an “active power,” the monarch has, or should have, only the power to restrain the actions of other parts of the government, but no power to initiate action himself; as a “being apart at the summit of the pyramid,” the monarch floats serenely above the fray rather than becoming involved in partisanship, and serves only to mediate among the different branches of government.

Sounds nice, but how is this to be guaranteed? Despite the tendency among some libertarians nowadays to romanticise monarchy, this is scarcely how the institution has actually worked in history: monarchs have frequently become embroiled in faction, siding with one group against another. Thus while Constant has described the problem brilliantly, his solution is unconvincing.

What Constant neglects to take into account is a principle stressed by Isabel Paterson in her 1943 libertarian classic The God of the Machine: a constitutional function must be assigned to an agency capable of fulfilling that function. (As Aristotle put it, a form can be realised only in suitable matter; one cannot make a saw out of wool.) Paterson and Constant would agree that the mechanism of government requires a brake; but has Constant assigned the braking function to an agency well-suited to exercise it?

The monarch is but a forked animal like the rest of us, with no power of his own to compel the other branches of government to do or refrain from anything; what power he has comes from the willingness of others to support him. Hence the monarch must of necessity be involved in factions; if he were to float serenely above them as Constant recommends, he would be like a mere cork bobbing on the waves, with no power to direct events. Monarchs are not Kryptonians; they cannot rule by their own personal might, and so must rule by patronage. In his Discourse of Voluntary Servitude (read it online or buy it), Étienne de la Boétie described the process well:

It is not the troops on horseback, it is not the companies afoot, it is not arms that defend the tyrant. This does not seem credible on first thought, but it is nevertheless true that there are only four or five who maintain the dictator, four or five who keep the country in bondage to him. Five or six have always had access to his ear, and have either gone to him of their own accord, or else have been summoned by him, to be accomplices in his cruelties, companions in his pleausres, panders to his lusts, and sharers in his plunders. These six manage their chief so successfully that he comes to be held accountable not only for his own misdeeds but even for theirs. The six have six hundred who profit under them, and with the six hundred they do what they have accomplished with their tyrant. The six hundred maintain under them six thousand, whom they promote in rank, upon whom they confer the government of provinces or the direction of finances, in order that they may serve as instruments of avarice and cruelty, executing orders at the proper time and working such havoc all around that they could not last except under the shadow of the six hundred, nor be exempt from law and punishment except through their influence. … And whoever is pleased to unwind the skein will observe that not the six thousand but a hundred thousand, and even millions, cling to the tyrant by this cord to which they are tied.

In light of La Boétie’s analysis, Constant’s ideal monarch turns out to resemble the Randian fantasy of government as a reliable, impersonal robot. The braking function cannot be assigned to the monarch, because a monarch must either participate in faction or remain aloof; but if he remains aloof he lacks the power to serve as a brake, while if he participates in faction he cannot brake the activities he is simultaneously abetting.

Paterson argues that the braking function should be assigned to the people at large. Dispersed and disorganised, the masses cannot realistically exercise the power of initiating action; hence Paterson’s rejection of democracy. But the masses do have the power to block governmental action by refusing to cooperate, and so the function of “mass inertia veto” is properly vested in them:

The property of mass is inertia. In politics, inertia is the veto. A function or factor can only be found where it is. No plan or edict can establish it where it is not. … [In
the Roman Republic] the tribunes of the people [were] invested with the formal veto power. … At one time, the tribunes of the people ‘stopped the whole machine of government’ for a number of years, refusing to approve and thus permit any act of government whatever … until their grievances were redressed. They were able to do so because the power they exercised did inhere in the body they represented. It was there. If the people will not move the government cannot act. Though laws are passed and orders given, if mass inertia is found opposed, the laws and orders will not be carried out. … [T]he function of mass, which is taken for granted by mechanical engineers, and usually ignored by political theorists, was understood by the Romans. They used it where it belongs for stability, by attaching to it directly that part of the mechanism proper to the factor of inertia, the device to ‘cut’ the motor when necessary.

How is this “mass inertia veto” to be institutionally realised? Paterson maintains that by vesting the “power of the purse” in the House of Representatives, the U.S. Constitution ensures that the ability to cut off the fuel on which the government operates is assigned to the democratic element. The problem with this solution, however, is that congressional representatives are government functionaries, invested with the power of initiating legislative action and not merely of restraining the actions of other parts of government. With regard to the tendency of legislatures “to multiply indefinitely the number of laws,” the House of Representatives is obviously not the solution; it’s part of the problem.

One way to improve the situation would be to assign the representative assembly the sole task of blocking government power. (See my reflections on this here and here.) Then the “pleasure of believing themselves necessary” that leads assemblies nowadays to multiply laws in order to be seen as “doing something” might operate in reverse.

But it’s also worth noting that under Market Anarchism, the “masses” exercise their veto function quite naturally. As Ludwig von Mises points out in Bureaucracy (read it online or buy it), “the capitalist system of production is an economic democracy” in which “consumers are the sovereign people”; capitalists and entrepreneurs are “the people’s mandatories,” who “lose their office” if they “fail to produce, at the lowest possible cost, what the consumers are asking for.”

Under Market Anarchism, this economic democracy is simply extended to the production of “governmental” services; there is thus no need to rig up some constitutional mechanism to express the masses’ veto power, as the price system naturallyembodies that power: a service provider who fails to satsify its customers will be “dissolved” as surely by the market as by Constant’s monarch. (And the fact that the masses have to pay for the services they desire also puts a check on the masses’own power; economic democracy thus internalises the externalities associated with political democracy.)

Constant sought to locate the braking function in a monarch; Paterson, in a representative assembly. Both stratagems are unnecessary, since the braking function already exists in the place where the laws of praxeology have put it: in the sovereign consumer.

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5 responses to “Finding The Brake

  1. It was a common place of 1700s Whig (as well as Tory) thought that the Monarch had a role to play as a check upon the legislature. Even Edmund Burke (who spent his life head butting with the servants of George III) accepted the principle of the “Balanced Constitution” (he just thought the servants were trying to unbalance it their way).

    The idea that an elected Parliament should be allowed to do anything it likes is a radical perversion of Whig thought (not in the mainstream of Whig thought) supported by the “Bowood Circle” (J. Bentham and co) of the late 18th century and the Westminster Review crowd of the early 19th century. It is also associated with utilitarianism in philosophy and the rejection of the natural rights – natural law view of the traditional Whigs – Classical Liberals.

    I can think of only one monarch in the Western world who has any (real) veto power – and that is the Prince of tiny Liechtenstein. He seems to use this power fairly well – but a theory based upon one real world example is not very powerful.

    For those not convinced by anarchco-capitalism (*market anarchism” either means anarcho-captialism or we are dealing with Black Flag COLLECTIVISM here – and that need not detain us). The traditional approach had been Constitutional.

    The problem being – who enforces the Constitutional limits on the legislature (or the executive)?

    The history of the United States Supreme Court is not a hopeful one – far from it.

    Relying on a government appointed court to limit government simply has not worked. Perhaps an elected court – or a court picked at RANDOM (constitutional juries) would have worked better.

    One last point needs to be made.

    Time limits.

    There are many crazy laws in Texas – but far fewer than in other States, why?

    It is because the Texas State legislature does not have time to pass them – they only meet a few days.

    The implication is obvious.

    A “legislature” should only meet ONE day every year – enough time to pass (or refuse to pass) a budget for the government – and there should be no “Executive Orders”.

    We do not need “legislation” the LAW (the Common Law found in individual disputes) will do.

  2. This is a vexing and continual problem. The problem is obvious; professional legislators. It seems that the best answer would be to abolish them, and make lawmaking some rare, difficult event. Perhaps a convention every 10 years to review the current statute book for needed changes; the problem being that such a convention would become itself a weak spot targetted by organised activists and movements.

    I think one possible answer would be a second house- in Britain, the “Lords”- appointed by lottery from the electoral register. The House Of Sortition would have a veto power, the right to strike down- or refer to the Commons at least- current legislation and some process by which it could notify the Commons of issues it wants discussed. The “Lords” would serve 2 years, with half the chamber appointed annually. I think this sort of thing might act as a useful brake; the main advantage being that there would be no way for anyone to get into the chamber under their own initiative, thus at least preventing the parties filling it with their own apparatchiks.

    • The problem with all constitutional tinkering is that, however good it might be in itself, there is the question of legitimacy, plus an utterly corrupt ruling class. The Lords were effectively a House of Sortittion, but were swept away the moment they flexed their muscles too hard. They were accused of resisting the “will of the people.” A more random process might bring greater legitimacy, but people have it drilled into their heads that legitimacy comes from a ballot box.

      I don’t have a good answer of my own. The best I can presently suggest is that we should pray for King William V to be a man of principle. He might, at a pinch, have the legitimacy to resume the full executive powers held by Charles I, and to dissolve Parliament for a generation. A showdown between what most people still probably, at the back of their minds, regard as the Lord’s Anointed and a pack of slimebag politicians might just go the right way. I, for one, wouldn’t say a word against Ship Money. Bolting on checks and balances to an already broken order almost certainly won’t work.

      • On reflection, I’m inclined to agree that constitutional tinkering would be counterproductive. If anything, it would confer more legitimacy on the State; and that’s after all one reason I’ve argued that the Great Reform Act was a disaster for liberty. The current growing sense of disconnect and powerlessness can only work in favour of libertarians and reactionaries; constitutional sops that might seem to improve our governance will work against us.

  3. A randomly selected assembly would have various problems – but it would still be better than an elected one.

    As the late William F. Buckley (a conservative not a libertarian) put it – “I would rather be ruled by the first 50 names in the telephone directory than by the people they elect”.

    However, I still see no need for “legislation”. Finally getting round to reading the “great” Maitland (some years ago now) showed to me that even in the 19th century the defence of “statutes” was based on wild lies (he even claims that there has never been an unjust or irrational statute) and philosophy so twisted that is near insanity – with Parliament (a large part of which were scumbags even in Maitland’s day) being described as the nation assembled (I certainly hope not – because that would make “the nation” a bunch of drunks with delusions of omnipotence) who gathered to “make laws” (a terrible way of thinking) for the “social good” the “general welfare” and “public benefit” (all vile – utterly vile, nothing to do with law is about).

    A more healthy attitude was shown by Mark Twain – that the only clear “criminal class” was “the Congress” (any Congress), and that if a man came into contact with a “member of the legislature” he should check to see if his pocket had been picked or his wife and children molested.

    Bruno Leoni was correct (in his “Freedom and the Law”) law is a matter of individual disputes – either criminal. (violations of bodies or goods) or civil (disputes over property and contacts) these can be settled by the courts – without need for “legislation” (indeed legislation tends to make a mess of things – because it is interested in vague nonsense such as the “General Welfare” and the “Public Interest”).

    However, this leaves us the problem of the courts themselves – a problem that Leoni never really dealt with.

    How is choice in courts (the only real protection against the courts becoming a monopolistic mess) to be established and maintained?

    And, in criminal cases, what is the proper relationship between the courts and FORCE (as, for example, a murderer is unlikely to hand himself in to be executed).

    Assembling a posse (from the Latin for gathering or muster) led by a local land owner (under John Jay’s [first Chief Justice of the United States Supreme Court and the man who ended slavery in New York State – deeply unpopular due to his opposition to any but defensive wars, think “Knight of the Shires” type] maxim, taken from 18th century English practice, that “those who own the land should rule it”- like any English speaking gentleman of the 18th century Mr Jay regarded “free hold” as OWNERSHIP and rejected the idea that the King owned the land) will only get things so far – demands for a professional force are likely to grow.

    And what if private professional forces conflict?

    It is the use of force that I think anarcho capitalism breaks down (especially in terms of national defence).

    However, once the state is established how is it to be limited? Is this even possible?

    Remember the decay of the law goes back a long way – and not just in the United Kingdom.

    Even in the 1920s in the infamous “Buck V Bell” case only one Justice of the American Supreme Court dissented from the idea that a woman (who had committed no crime) should be held down by servants of the state and mutilated.

    Eight “Justices” thought that this was lawful – only arch reactionary Judge Pierce Butler dissented. The Progressive Judge O.W. Holmes (who corresponded with Harold Laski and other British luminaries) leading the attack on individual rights in the name of the “social good”.