The Reason of Rules

Anglo-American jurisprudence emphasizes the rule of reason; it grossly neglects the reason of rules. We play socioeconomic–legal–political games that can be described empirically only by their rules. But most of us play without an understanding or appreciation of the rules, how they came into being, how they are enforced, how they can be changed, and, most important, how they can be normatively evaluated. Basic “constitutional illiteracy” extends to and includes both the learned and the lay. We note with a mixture of admiration and envy those clever strategists who manipulate existing rules to their own advantage. It is these persons in the role of spivs rather than the sages that all too many emulate. Intelligence abounds, but wisdom seems increasingly scarce.

Our hypothesis is corroborated by the veneration Americans accord their Founding Fathers. James Madison, Benjamin Franklin, Thomas Jefferson, and their peers are distinguished by their essential understanding of the reason of rules in political order, an understanding they implanted in the constitutional documents, the “sacred” texts that have, indeed, worked their influence through two centuries. The wisdom and understanding of the Founders have been seriously eroded in our time. The deterioration of the social–intellectual–philosophical capital of Western civil order is now widely, if only intuitively, sensed.

At the most fundamental level, rules find their reason in the never ending desire of people to live together in peace and harmony, without the continuing Hobbesian war of each against all.