Chapter 8: ‘Auxiliary Precautions’ in Our Time
8.1 Introduction Writing in 1985, Geoffrey Brennan and James Buchanan argued that 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. ([1985b] 2000, p. XV; emphasis in original) Continuing, Brennan and Buchanan aver that, whereas ‘James Madison, Benjamin Franklin, Thomas Jefferson, and their peers are distinguished by their essential understanding of the reason of rules in political order’, that understanding has been eroded.1 In their account, 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. How can social order be established and preserved? All social science and philosophy must address this question either directly or indirectly. (p. XV) I take as my point of departure that Brennan and Buchanan are right; that the ‘wisdom and understanding of the Founders have been seriously eroded’. I suggest, moreover,...
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