Pluralism and the Hobbesian Logic of Negative Constitutionalism
| DOI | 10.1111/1467-9248.00189 |
| Author | Duncan Ivison |
| Published date | 01 March 1999 |
| Date | 01 March 1999 |
| Subject Matter | Article |
Pluralism and the Hobbesian Logic of
Negative Constitutionalism
DUNCAN IVISON*
University of Sydney
According to an essentially Hobbesian account of political order, the claims of
cultural and national minorities within a state to some form of constitutional or
institutional recognition are morally suspect and politically undesirable. Underlying
this Hobbesian logic is a particular understanding of the relation between law and
politics. `Negative constitutionalism' is focused primarily on limiting the damage
government can do. However the pursuit of constitutional minimalism runs up
against the challenges presented by deeply diverse political communities. By investi-
gating the manner in which Hobbes has been invoked in arguments concerning the
relation between the rule of law and the `politics of recognition', I argue (i) that the
distinction between the rule of law and politics is fundamentally unstable, and
(ii) that in invoking Hobbes, modern theorists have missed an important element of
Hobbes's own argument ± namely, his appreciation of this instability. As an example,
I examine the way Hobbes is used in some of John Gray's recent writings on
pluralism and liberalism.
According to an essentially Hobbesian account of political order, the claims of
cultural and national minorities within a state to some form of constitutional or
institutional recognition are morally suspect and politically undesirable. The
`politics' of such claims ± a term we shall have to unpack ± is said to have
undesirable consequences for the constitutional order of a political community.
Underlying this Hobbesian logic is a particular understanding of the relation
between law and politics; call it `negative constitutionalism'. The focus here is
primarily on the extent to which the constitution is meant to limit the damage a
state can do. But this seems an incomplete formulation of what constitution-
alism means. Constitutions are partly about preventing abuses of power, but are
also about more positive things too. The pursuit of constitutional minimalism
runs up against the challenges presented by deeply diverse political commu-
nities.
By investigating the manner in which Hobbes has been invoked in arguments
concerning the relation between the rule of law and the politics of recognition,
I hope to show (i) that the distinction between the rule of law and politics
is fundamentally unstable and (ii) that in invoking Hobbes, modern theorists
have missed an important element of Hobbes's own argument ± namely, his
appreciation of this instability.
#Political Studies Association 1999. Published by Blackwell Publishers, 108 CowleyRoad, Oxford OX4 1JF, UK and 350 Main
Street, Malden, MA 02148, USA.
Political Studies (1999), XLVII, 83±99
* I am grateful to Annabel Brett, Barry Hindess, Matt Matravers, Susan Mendus, Philip Pettit
and various anonymous readers for their generous help and comments with regard to this paper.
John Gray, for example, invokes Hobbes as a kind of post-modernist avant la
lettre. In his Oakeshottian days, Gray appealed explicitly to such a reading.
Even now, after apparentlyabandoning this `postliberalism' for a purer form of
pluralism, Hobbes hovers in the background as the source of a vital truth about
the justi®cation of government even as it becomes pluralized. Gray's dizzying
variation of political allegiances is dicult to follow, but his invocation of
Hobbes at dierent points is instructive to map. As I will try to show, I think he
gets it wrong; both when he was a defender of the New Right and now as a
scourge of Rawlsian liberalism.
Positive versus Negative Constitutionalism?
Emphasis has been placed recently on identifying and distinguishing between
the negative and positive elements of liberal constitutionalism.1There are two
ways in which this has been carried out. Firstly, by focusing on the apparently
paradoxical insight that limited government can be more eective than
unlimited government: that is, how constitutional constraints can be enabling.
Secondly, the negative/positive distinction has been mapped onto dierent
accounts of the legal and political form of the constitution. Legalistic, negative
constitutionalism is opposed to more positive `political' variants. Though the
enabling (i.e. `positive') consequences of institutional constraints complicates
greatly any simple distinction between negative and positive constitutionalism,
this negative conception deserves further examination.
What is a constitution and what does it do? A constitution both constitutes
and regulates. A constitution constitutes The People who in turn constituteit. It
establishes the form of government and the rules and norms which in turn
regulate and govern it. The striking fact about any constitution that actually
binds (and where sovereignty resides in The People) is that it is essentially self-
enforcing. How it comes to be self-enforcing is part the need for coordination in
political life, and part collective self-limitation (i.e. institutional design). A
constitution coordinates society to a de®nition of the state and speci®es its
territorial and institutional domain.2It includes a set of institutions, practices,
procedures and norms that structure society, empowering and constraining
actors and agents in various ways. By `structure' I mean provide mechanisms
that facilitate the coordination of political action.3It is at this stage that
important dierences emerge as to exactly how constitutions help coordinate or
frame political action.
The more positive, `political form' of a constitution is said to provide the
mechanisms and space for The People (constituted as a collective body) to
re¯ect upon (and improve) the conditions for a `good' political order.4
1For a comprehensive survey of negative constitutionalism see Susan Bander, `The negative
constitution: a critique', Michigan Law Review 88 (1989), 2271±347; also Cass Sunstein, `Demo-
cracy and Shifting Preferences', and John Ferejohn, `Must Preferences be Respected in a Demo-
cracy?' in David Copp, Jean Hampton, John E. Roemer (eds), The Idea of Democracy,(New York,
Cambridge University Press, 1993) pp. 196±241.
2P. C. Ordershook, `Some rules of constitutional design', Social Philosophyand Policy, 10 (1993)
p. 202.
3R. Hardin, `Why a Constitution?', in Bernard Grofman and Donald Whittman (eds), The
Federalist Papers and the New Institutionalism (New York, Agathon, 1989); Ordershook, `Some
Rules of Constitutional Design', pp. 199±202.
4U. Preuss, Constitutional Revolution: The Link Between Constitutionalism and Progress (New
Jersey, Humanities, 1995) p. 18.
84 Negative Constitutionalism
#Political Studies Association, 1999
To continue reading
Request your trial