Constitutional interpretation and the hobbesian problem
| Autor | Guido Pincione |
| Páginas | 143-159 |
7. CONSTITUTIONAL INTERPRETATION
AND THE HOBBESIAN PROBLEM
Guido PINCIONE*
1. INTRODUCTION
I am very honored by the invitation to contribute to this memorial vol-
ume for Eugenio B. A long time ago, I had the privilege of working
with Eugenio as a teaching assistant in his class on jurisprudence at Buenos
Aires University Law School. His lectures were models of clarity and rigor
that reinforced my burgeoning interest in philosophy. It was in those years
that I read Normative Systems, that seminal contribution to the logic of legal
science that Eugenio coauthored with Carlos A 1. As they ex-
plain therein, actual legal systems differ to various extents from the ideally
consistent, complete, and non-redundant normative systems whose formal
properties they studied in that book. Actual legal systems are less determi-
nate, and so less capable of guiding action, than ideal legal systems are. In
this paper, I want to discuss one kind of legal indeterminacy that is import-
ant in normative political philosophy, since it undermines the ability of a
legal system to overcome the tragic predicament in which individuals nd
themselves in a Hobbesian stateless society. I have in mind indeterminacies
in the most basic rules and principles on which social cooperation depends -
the kinds of rules and principles that are usually contained in a constitution.
Disagreements over constitutional interpretation are deep and com-
mon, even in stable constitutional democracies. We tend to believe that
such disagreements differ in nature and degree from the war of all against
* Department of Philosophy, University of Arizona. E-mail: Pincione@email.arizona.edu.
1 A and B, 1971.
144 GUIDO PINCIONE
all that Thomas H famously depicted in Leviathan 2. Such disagree-
ments, so the thought goes, need not subvert a constitutional democracy
to the point of bringing back the «condition of meer nature», that state-
less condition in which, on H’ account, such war is to be expected 3.
I will argue, though, that constitutional disagreements reect the state of
nature that underlies much political interaction. The structure of incentives
created by typical liberal democracies induces individuals to plunder each
other. (Illiberal regimes, especially if they are nondemocratic, can be seen
as acutely inegalitarian instances of the Hobbesian predicament, ones in
which a few are powerful enough to systematically enslave and plunder
the many). For convenience, I will call this «the Hobbesian Problem,» with-
out passing judgment on the extent to which my discussion of that struc-
ture of incentives and its moral implications reects H’ writings.
The Hobbesian Problem can be formulated as follows. In the state
of nature, individuals lack assurance that they will be able to engage in
mutually benecial interactions, since in the absence of enforceable ad-
judication of disputes no one can rely on anyone else’s promises or on
anyone else’s noninterference with their plans. More specically, no one
can rely on others complying with rules of property and contract that pro-
mote production and trade and discourage plunder. (Henceforth I will use
the term «rules of property and contract» to refer to the rules that bring
about such benecial outcomes.) Practical rationality —«laws of nature»,
in H’ text— recommends individuals to agree on the creation of an
authority powerful enough to pass and enforce such rules 4. Notice that
the assurance problem that individuals face in the state of nature would
emerge even if everyone believes that such rules of property and contract
are valid moral requirements. For the structure of incentives that governs
interactions under those conditions is what game theorists call an «assur-
ance game» 5. Table1 describes this game.
TABLE 1. ASSURANCE GAME
B
Cooperate Defect
ACooperate 4,4 1,3
Defect 3,1 2,2
The player’s payoffs are ordinally ranked, from best(4) to worst (1),
with A’s payoffs to the left of the comma. If each player lacks sufcient as-
2 H, 1651: chapters 13-15.
3 H, 1651: chapter 31.
4 H, 1651: chapters 14-15.
5 For an interpretation of H’s state of nature as an assurance game, see M,
2009. Many writers model H’ state of nature as a prisoner’s dilemma. See, for example,
H, 1986. Since I am going to argue that widespread endorsement of moral rules and
principles is not sufcient to overcome the Hian Problem, the assurance game is a more
pertinent model, regardless of its accuracy as an interpretation of H’ views.
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