Between the ‘Real’ and the ‘Right’: Explorations Along the Institutional-Constitutional Frontier

The aim of this chapter is to offer some fragments of a theory of institutional (and by extension constitutional) change that might shed some light on the interplay between idealism and realism at the heart of this volume. The chapter first lays out some sources and influences for my own understanding of that interplay, using the work of Maurice Hauriou (1856-1929) as the point of entry into the discussion. Hauriou was perhaps France’s greatest administrative law scholar of the late-nineteenth and early-twentieth centuries and, more importantly for our purposes, the progenitor of the ‘theory of the institution and the foundation’. More clearly than any other theorist in my view, it was Hauriou who articulated the ‘special phenomenon of the institution [as] the transformation of an organization of fact into an organization of law, of the real into the right’. Building on Hauriou’s insights (particularly as to the role of ideas in institutional evolution), this chapter attempts to distill out elements of a theory of institutional change in three primary dimensions – functional, political, and cultural – while also introducing certain extensions and complications. From there, the discussion turns to a particular form of interaction between the ‘real’ and the ‘right’: the transformation of a set of ‘institutions’ into a robust ‘constitution’ for a political community. This transformation may be analogized to a kind of ‘phase transition’, to use the language of the natural sciences. Its key manifestation is the manner in which certain institutions attain a legitimacy to exercise not merely regulatory or normative power but also the power of compulsory mobilization, whether human (defense or policing) or fiscal (taxation, spending, and borrowing). Legitimate compulsory mobilization, this discussion suggests, is a crucial element in the political metabolism of a community, converting social resources into work for public ends. It is the ultimate boundary – the Rubicon, if you will – between a merely ‘institutional’ regime as opposed to a robustly ‘constitutional’ order for a particular political community. To illuminate the significance of this institutional-constitutional frontier, the chapter concludes with discussion of an historical example – the emergence and evolution of supranational governance in Europe over the last six and half decades.