Consider these excerpts of a codified constitution in effect today. Chapter 2, titled “Rights and Freedoms of Man and Citizen,” contains the following statements. Article 17 proclaims that “Fundamental human rights and freedoms are inalienable and shall be enjoyed by everyone since the day of birth.” Article 19 declares that “All people shall be equal before the law and court.” Article 21, that “Human dignity shall be protected by the state. Nothing may serve as a basis for its derogation.” And finally, Article 29, “Everyone shall be guaranteed the freedom of ideas and speech.”

The enumerated statements recall the spirit of the United States Constitution, the French Declaration of the Rights of Man and Citizen, or the UN Universal Declaration of Human Rights. Moreover, they underpin values essential to any liberal democracy—the rule of law, free speech, and respect for individual freedoms; the constitution in question could easily be that of the United States, France, Germany, or other nations of the free world.

Surprisingly, the constitution in question belongs to Russia, a country not usually lauded by independent analysts for protecting civil liberties. The Economist Intelligence Unit (EIU), which compiles an annual ranking of countries by degree of liberal democracy, gave the nation a score of 3.31 out of a maximum of 10 in 2020, placing it in the category of “authoritarian regimes.”

Russia shows that a country may very well express liberal sentiments in its constitution without adhering to those principles in practice. Thus, a thorny question for proponents of individual liberty arises: to what extent does a codified or written constitution help or hinder individual liberty? While written constitutions provide some fundamental personal freedoms, their codified, centralized nature renders them susceptible to manipulation by autocrats. To support our claim, we will examine the topic in three parts. First, we shall define individual liberty and posit the rule of law as an interpretive framework for evaluating personal freedom while distinguishing the rule of law from the rule by law. Second, we will assess individual freedoms outlined by codified constitutions while highlighting their shortcomings in practice. Finally, using the distinction between the rule of law and rule by law, we will demonstrate that although a codified constitution erects some bulwarks against abuses of power, its nature permits its compatibility with rule by law but not necessarily the rule of law.

Establishing a definition and framework for conceptualizing individual liberty proves fundamental to evaluate the degree to which codified constitutions safeguard personal freedom. This essay, based on Isaiah Berlin’s famous distinction in “Two Concepts of Liberty,” will take individual liberty as “negative freedom” (Berlin, 1969). That is, it shall ignore so-called “positive freedom,” defined as the power of self-realization or self-mastery, in favor of a “negative” conception of liberty—the freedom from interference by society and government. The “negative” notion of liberty enshrines a personal sphere free from state or societal coercion (e.g., Constant, 1819). In this classically liberal or libertarian sense of the word, the greater the individual citizen’s domain of non-interference from the state, the greater their liberty (Berlin, 1969). This identification of liberty will form the basis for our appraisal of a codified constitution’s protection of individual liberty.

Even when narrowed to negative liberty, liberty is too broad and ambiguous of a concept for analysis; it needs an interpretative framework. Therefore, this essay will rely on the idea of the rule of law as a framework for evaluating liberty. In short, we will take the classical position, eloquently stated by the French eighteenth-century philosopher Voltaire, that “liberty consists of depending only upon the law” (Voltaire, as cited in Hayek, 1960). To be free, therefore, means the state may only exercise its coercive apparatus against the individual following the pronouncements of recognized law (Hayek, 1960).

Furthermore, there is a distinction between the rule by law and the rule of law. The rule of law traditionally signifies that law—the rights, duties, and rules regulating the lives of citizens in a state—occupies a status above politics. The independence of the law entails two principles. First, the law must be applied to everyone equally, no matter how powerful or weak. Another criteria, more modern in origin, is that the law must secure the rights and liberties of citizens; the law must protect the individual from overreaches of the state by legally recognizing an individual’s sphere of independence, encompassing private property, freedom of speech, and freedom of religion. Rule by law, in contrast, refers to the instrumentalization of law for political purposes (see, e.g., Rajah, 2012). The law may exist as opposed to an arbitrary state of nature—providing, therefore, some security for the individual—but the sovereign is above legal norms and directs their application. The suppression of individual freedom takes on a “legalistic” form: the state may not subject citizens to despotism in the sense of arbitrary punishments, but it can deploy the law to curtail individual liberty in the negative sense.

To what extent, then, does a codified constitution protect individual liberty? A codified constitution provides some necessary bulwarks against abuse of state power. By definition, it represents the supreme expression of the law; in theory, no magistrate, legislator, or politician may go against its assertions, and as a document, it can only undergo modifications through a specified legislative process as opposed to the whims of a despot. A constitution can thereby secure individual liberties as legal rights exercisable against the state—such as in the first ten amendments of the United States constitution—moving the protection of personal freedoms from a purely moral framework into a legal one. It seems, then, that a codified constitution fulfills the two fundamental tenets of the rule of law. Subjecting government to the law reinforces the law’s universality, and the inclusion of rights against the state transfers individual liberties from a uniquely moral consideration into a legal one.

Nevertheless, the existence of a codified constitution in no way guarantees restraint of authority. On the contrary, in the hands of manipulating autocrats, written constitutions can extend power despite being designed to curb its abuse. Indeed, a codified constitution in an authoritarian state provides a veneer of liberal legitimacy for illiberal actions; it may serve as a vehicle for despotism instead of a check on power. For example, Russia’s president, Vladimir Putin, modified the country’s constitution in March 2020 to scrap a rule barring anyone from serving more than two consecutive terms. Following the changes, ratified by the passive Duma or parliament, Putin may still preside over the nation until 2036, when he will be 83, effectively legitimizing rule for life.

Similarly, in Turkey, another country that scores poorly on the EIU Democracy Index, president Recep Tayyip Erdogan passed a wave of constitutional amendments in 2017 that provided him an array of unchecked powers. Erdogan justified his measures through a referendum marred with allegations of ballot mismanagement and illegal changes to the electoral law by his government. Protestors who rallied against the referendum were swiftly arrested and prosecuted.

It is telling that today even strongmen like Erdogan and Putin continue to work in constitutional frameworks despite their blatant rejection of liberal norms. In the twenty-first century, the conditions people mandate for political legitimacy are different from the seventeenth. Sovereigns cannot convincingly rule by divine right but must obey—however deceptively— standards of citizen consent recognized by post-war international human rights charters such as the UN’s 1948 Universal Declaration of Human Rights. In this context, superficial adherence to liberal values through a codified constitution can act as a tool for authoritarianism instead of curtailing misuse of power. By establishing a framework that theoretically binds the governed and the governor, the state can restrict individual liberty while claiming popular consent. An authoritarian regime can construct an entire edifice of constitutional authority to support its illiberal actions. Such is the case with the Islamic Republic of Iran, which suppresses political dissidents, stifles the press, and detains secularists and religious nonconformists—all in the name of its constitution (see, e.g., Tamanaha, 2004). Far from opposing despotism, a codified constitution can fall prey to manipulation legitimizing despotism. Returning to the earlier distinction, codified constitutions can engender rule by law—where the state recognizes the law but lies outside of its stipulations and wields the law to its benefit and the detriment of individual liberty, as witnessed in the cases of Russia, Turkey, and Iran.

The question of why codified constitutions are all too often vectors of autocracy as opposed to safeguards of freedom lies in their compatibility with rule by law and inability, by themselves, to satisfy the rule of law. In the 1970s, the Austrian economist and political philosopher Friedrich Hayek distinguished at length the “rule of law” from the “rule of legislation” (Hayek, 1973). For Hayek, legislation is the product of top-down decision-making by politicians. He contrasts the imposition of rules characteristic of legislation with the evolutionary nature of common law: the former originates by decree, while the latter emerges over centuries through custom and social interactions. While Hayek’s reservations about legislation do not concern us here, his approach of separating law that stems from decree with the law that evolves through custom explains the limitations of codified constitutions.

In codified constitutions, constitutional authority revolves around a single piece of legislation: the constitution. Thus, if an aspiring despot can muster a legislative majority or supermajority, depending on the requirements, they can modify the constitution for their purposes, creating a situation of rule by law. Accordingly, even with the doctrine of separation of powers present in almost every modern codified constitution, which aims to secure the independence of the law, an empowered executive can wield power unchecked if they control the means to change the constitution. Contrast this with constitutional authority in uncodified constitutions, such as the United Kingdom. In the UK, constitutional law considers acts of parliament such as the 1689 Bill of Rights and a wide range of common law, influenced by centuries of custom. To instrumentalize such a constitution for political purposes—creating a situation of rule by law instead of the rule of law—proves inconvenient since it would require revoking previous charters and acts of parliament, as well as challenging centuries of common law precedent. Even more important than having a “separation of powers,” there exists a separation of constitutional authority; constitutional legitimacy is dispersed in such a system, making it hard for would-be authoritarians to extend their reach while claiming to respect the popular will embodied in the constitution.

The inability of codified, written law to secure individual freedom was commented on by Aristotle almost two millennia ago: “a man may be a safer ruler than the written law, but not safer than the customary law” (Aristotle, Politics). Although codified constitutions today detail fundamental individual liberties and design governing institutions to be independent, they remain centralized documents: the ability to control the constitution entails the power to rule unchecked. The law can thus fall prey to political abuses, creating a situation of rule by law instead of preserving its independence—the rule of law.

All too often, liberals persuade themselves that the guarantee of liberty comes with the proclamation of a constitution. But as Putin’s Russia, Erdogan’s Turkey, Khamenei’s Iran, and countless other examples testify, securing liberty means going beyond constitutionalism. Other institutions—for example, a strong common law tradition in the United States, a free and unmolested press in Western Europe—are necessary for individual freedom to prosper. Just as John Stuart Mill showed in On Liberty that democracy can be a recipe for despotism as much as a source for freedom, liberals should remember that the same lesson stands true for codified constitutions.

References:

1. “Constitution of the Russian Federation.” Retrieved June 05, 2021. http://www.constitution.ru/en/10003000-03.htm
2. “Democracy Index 2020: In sickness and in health?” The Economist Intelligence Unit. Retrieved June 05, 2021.
   https://www.eiu.com/n/campaigns/democracy-index-2020/
3. Berlin, Isaiah. (1969). “Two Concepts of Liberty.” In Four Essays On Liberty. Oxford University Press.
4. Constant, Benjamin. The Liberty of Ancients Compared with that of Moderns. Online Library of Liberty. Retrieved June 20, 2021. (Original work published 1819) https://oll.libertyfund.org/title/constant-the-liberty-of-ancients-compared-with-that-of-mo derns-1819
5. Hayek, Friedrich. (1960). The Constitution of Liberty. University of Chicago Press.
6. Rajah, Jothie. (2012). Authoritarian Rule of Law: Legislation, discourse and legitimacy in Singapore. Cambridge University Press.
7. (2020,03,14). “Russia’s president reluctantly agrees to 16 more years in power.” The Economist. https://www.economist.com/leaders/2020/03/12/russias-president-reluctantly-agrees-to-1 6-more-years-in-power
8. (2017,04,22). “Recep Tayyip Erdogan gets the power he has long wanted—at a cost.” The Economist. https://www.economist.com/europe/2017/04/22/recep-tayyip-erdogan-gets-the-power-he- has-long-wanted-at-a-cost
9. Tamanaha, Brian. (2004). On The Rule of Law: History, politics, theory. Cambridge University Press.
10. Hayek, Friedrich. (1973). Law, Legislation and Liberty, Volume 1: Rules and order. University of Chicago Press.
11. Aristotle (1988). The Politics and Constitution of Athens (Everson, Stephen, Trans.). Cambridge University Press. (Original work published ca. 350 BCE)
12. John Stuart Mill. (1989). ‘On Liberty’ and Other Writings. (Collini, Stefan, Ed.). Cambridge University press. (Original work published 1859)