Abstract
There is a respectable tradition of Burkean constitutional interpretation in legal scholarship whereas Edmund Burke is a relatively neglected figure in constitutional political economy. A comparison of the constitutional interpretations of constitutional political economy and Burkean legal scholarship provides a potentially fruitful outcome for both. This is particularly so given the 18th century intellectual roots of each. An examination of the Burkean tradition demonstrates why it is methodologically inductive, evolutionary and pessimistic, compared to the deductive, individualistic and optimistic approach of the Smithian tradition of constitutional political economy. Interestingly, these sharp distinctions in method produce similar results.
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Notes
It is probably also why there is only one reference to Edmund Burke in The Collected Works of James M. Buchanan. Appendix 1 in The Calculus of Consent is titled ‘Marginal Notes on Reading Political Philosophy’. In it Buchanan says “[o]ur theory of constitutional choice is avowedly individualistic in this analytical-methodological approach. Therefore, we react sympathetically to the works of those political theorists who have most clearly discussed the logic of collective organisation in terms of an individual calculus ... methodologically he [Burke] was clearly anti-individualist, and he vigorously rejected all attempts to explain collective activity on the basis of rational individual choice” (CW, 3: 316–318).
It is important to note that Buchanan does not apply the exchange paradigm to the judiciary. He states that the “judiciary, in its umpire role, must take a truth-judgement approach, an approach that is inappropriate in the workings of ordinary politics” (Buchanan, 1988, p. 137).
Olson (1996) provides a similar cajoling of economists.
It is similar to what Brennan and Hamlin (2004) identify as the conservative disposition.
To borrow a Buchanan line from his comparison of Smith and John Rawls, Burke and Smith are “closer to each other than either would be to the image that intellectual fashion has imposed on him” (CW, 1: 293).
A sample of the variety of interpretations placed on Burke's writings can be found in Kramnick (1999, pp. xxii–xxxiii).
However, there remains some doubt about the seriousness with which A Vindication can be taken as representative of the Burkean view. Originally it was published anonymously and it was only in the second edition that Burke claimed authorship and stated that the book was a satirical or ironical look at the natural order. It is far from clear which version to believe (Rothbard, 1958, Kramnick, 1999).
In his Address to the Electors of Bristol (1774), Burke explained that he was their representative not their delegate.
They also share the distinction of having part of their intellectual legacy questioned on the grounds of consistency. The Edmund Burke Problem is the name given to the difficulties reconciling “his defense of the ancien regime with his endorsement ... of those economic forces that ... would eventually undermine the traditional monarchical, aristocratic, and ecclesiastical order” (Winch, 1996, p. 128). Das Adam Smith Problem is the name given to the difficulties late 19th century German scholars had in establishing consonance “between his writings as a moral philosopher and political economist” (Winch, 1996, p. 35).
It is also accepted that “Smith's political economy furnishes a major clue to Burke's thinking, which in turn helps us understand Smith's politics” (Winch, 1996, pp. 128–129).
While Buchanan agrees that Smith rejected the notion of a social contract he argues that Smith's impartial spectator performs a similar role (CW, 1:298).
Dunn (1941) traces the changes in terminology between the Theory of Moral Sentiments and the Wealth of Nations.
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Considine, J. Constitutional Interpretation: Burke and Buchanan and their 18th Century Intellectual Roots. Constit Polit Econ 17, 71–85 (2006). https://doi.org/10.1007/s10602-006-0004-8
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DOI: https://doi.org/10.1007/s10602-006-0004-8