Copyright © 1998 by Barnabas D. Johnson
1998 Note: This essay has been prepared at the request of Armenian educators seeking an introduction to the fundamentals of constitutional democracy aimed at readers aged 14 and older. This essay might require its youngest readers to "stand tall" on their intellectual toes in order to intercept its message, but that is as it should be. Constitutional democracy is an "elevated message" whose medium must not cater to over-simplification. Students must be encouraged to confront the Great Issues of life and civilization as they are, not as the peddlers of quick fixes portray them.
2014 Note: Hotlinks and minor editorial changes were added after this essay was incorporated into the Jurlandia website, starting around 1999. See especially Lowry Wyman's essay, Federalism and Separation of Powers: An Overview of U.S. Theory and Practice (1990), prepared for readers within the Soviet Bloc.
People differ from animals in many significant ways. Perhaps the most significant is that we can reflect upon ourselves, our society, our history, and can then "make law" to improve our lives, our future, our evolving global civilization. How good laws are made how healthy constitutional democracies govern themselves requires continuous self-reflection and self-improvement. See Learning Empathy.
A country and its laws form each other and evolve together. That is, they are "co-causal" and "coevolving" each affecting the development of the other. Not all laws are good, obviously, and even the best societies have many flaws. Some of what is called "law" is so bad that it should not be called law, but should instead be called "tyranny" or "stupidity" or something similar.
Because law and society are co-causal and coevolving, each must be understood with reference to the other. Such "second order" thinking is complicated, but there is no alternative. Oversimplifying these matters is common, and dangerous. Constitutional democracy should not be "dumbed down" and involves much more than periodic elections and majority rule. Let us explore the fundamentals.
The ancient Greeks said "know yourself" understand what being human means so that you can govern yourself. That is the starting point. The Rule of Law must be based on the Rule of Reason. By "reason" we mean more than logic, more even than the scientific method, as precious as both of these are. Legal reasoning focuses not on what we know, or how we know it, but on what we do with this knowledge what we make of ourselves, our society, and our system of government most broadly defined. This creative activity of governance is not a science but an art the art of living, and learning, and consciously participating in Creation.
Over time, slowly and with many backward glances, humans have learned much. We live and learn, as individuals and as societies. We are learning organisms. Our global civilization is a learning organism. Constitutional democracy is a complex "engine" of individual and social self-knowledge and self-improvement, and its fuel is free-flowing information and feedback. That is the key to understanding the necessity for free inquiry, expression, and association, as well as for free and fair elections. It is impossible to understand the concept of constitutional democracy unless one first appreciates the importance to all learning organisms of feedback.
Numerous models of government have been tried. The concept of "government" has itself coevolved with civilization. What has this societal life taught us? Above all, we have learned that all our deepest insights and wisdoms are themselves coevolving. Each is necessary, none alone is sufficient. Most require balancing with others. For example, we all value liberty, but we also recognize the necessity for order. Sometimes these values seem to conflict. Finding the right balance among them, at each specific decision point, constitutes the art of good government. See Ordered Liberty. Let us explore one such balance. It might be the most fundamental. Judge for yourself.
Long ago, people took for granted that we ought to be governed by the "best" whatever that means. Usually that meant government by a person, a chief or king (for example), who had the power even the right to tell others what to do, how to live, etc. This meritocracy principle probably has deep biological origins, and early hunter-gatherer societies governed themselves somewhat as groups of chimpanzees, gorillas, baboons, and wolves do. In later primitive human societies, such a chief was usually assisted by a group of counselors often a council of elders. This form persists among primitive hunter-gatherer tribes today.
With the development, about 10,000 years ago, of agricultural settlements, larger and more complex societies were able to develop, but these needed increasingly complex systems of central administration. For example, the civilizations of Egypt and Mesopotamia required irrigation systems which, in turn, required engineers, stone-cutters, builders of many kinds, soldiers for defense against enemies, numerous workers of other kinds and chief assistants to assistant chiefs. Above all, however, they required chief chiefs, or kings, plus a "court" or group of expert counselors to help coordinate the activities of hundreds, or thousands, or even hundreds of thousands of people. All these societies were governed according to some variety of the meritocracy principle.
However, the meritocracy principle led to instability and even civil wars whenever two or more persons claimed to be the "best" that is, claimed the right to govern. To avert such wars, various countries experimented with several remedies. Over time, these remedies evolved into what we now call constitutional democracy. First, without abandoning the meritocracy principle, societies balanced it with the majority principle: essentially, an agreement among all citizens that they would periodically choose their government using some kind of election procedure. Note that this majority principle is essentially a "diversity principle"; without the fact of human diversity, the theory of constitutional democracy would be a solution looking for a problem. Second, advanced societies abandoned the idea of a human "best" in favor of rules, laws, written constitutions, and fundamental "unspoken agreements" that govern all humans, including those chosen to hold governmental positions. That is the essence of the concept of Government under Law the Rule of Law based on the Rule of Reason.
This concept, the Rule of Law based on the Rule of Reason, is not self-defining. It has a long history, and as such can only be grasped within its historical context. Above all, it is an evolving concept, yet its evolution is itself governed by "abiding principles" that do not change (or change very slowly, and only for compelling reasons). Some of these principles are impossible to spell out with precision. The most important of these is Due Process of Law: whatever a government official or agency does, and whatever "society at large" does that affects the rights of individuals and minorities, must be done with "fundamental fairness" that is, the decision or action must be based on reliable information, following an opportunity for all sides to be heard, and must be accompanied with an explanation, with reasons, that can be examined and debated and usually reviewed by others, especially by the highest judicial authority. This is a goal, an ideal. Achieving this goal is never easy. But seeking ways to convert this ideal into reality is one of the highest goals of any civilized society.
Another abiding principle, even harder to define, has to do with what some have called the "self-evident truth" that each participant in society is equal before the law, and has certain "inalienable rights" rights that nobody has the right to give up, or to take from another without Due Process of Law including life and liberty. Yes, the group is important; yes, majority rule is sacred; but there are things which no person, no group, not even a powerful majority, may require such as choice of a marriage partner, an occupation, a religion, or none. The rights of individuals and minorities are protected in a constitutional democracy because all who compose the majority know that tomorrow they might be in the minority, or even have to stand alone against a crowd. By protecting minorities and individuals we protect ourselves.
In a sense, the most important "government official" in a constitutional democracy is each citizen. Unless all citizens take the trouble to understand their rights and responsibilities, and act accordingly, this most advanced form of "government by the best" will not work well, and runs the risk of failure. Truly, the worst enemy of democracy is incompetent varieties that fail, and then lead people to give up on democracy without ever having tried a competent variety. With this in mind, we might ponder the following attempt to define a constitutional democracy:
A constitutional democracy is a government under law in which coalition and majority rule is balanced by minority and individual rights, and in which most  rights are balanced by responsibilities including the responsibility of each citizen to study the history of constitutional government in order to illuminate it in ways that no definition ever can and in order, thereby, to allow it to evolve further in light of ancient wisdoms and the needs of our evolving global civilization. See Conversation of Democracy.
 2006 Note: The rights of children and the infirm, for example, do not require their contemporaneous "reciprocal responsibilities" to understand the origins of those rights. We accord such rights based on a broader sense of reciprocity: For example, if as children we "had" such rights, or if as adults we now wish we had had them, then as adults we must concurrently secure those rights for succeeding generations; and, to secure them, we must strive (among other endeavors) to understand them. Constitutional democracy requires that, at any given time, an "informed consensus" of responsible adults will secure constitutional democracy as an "intellectual endeavor" which they care, at least minimally, to understand. (Go back)
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