Emergent meta-order

The Constitution and By-Laws of the Hopi Tribe went into effect on December 16, 1936. Prior to this, the tribe was in a constant state of chaos and mayhem for a thousand years.
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No, actually, the tribe was governed peaceably and well by customary law, including customary constitutional law. That is, there were always rules that governed interactions between people and among groups of people within the Hopi tribe, and there were always higher-order rules about how rules would be adopted or modified. They were often tied into the Hopi religious system. They may not have been written down, but they were as real a force in Hopi life as the written constitution of 1936 is today.
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One of the major motivations for a written constitution was that the United States government had gradually taken over the land around them (and around the Navajos, whose present-day reservation encircles Hopi land) and they were also beginning to be absorbed into the US economy. They were increasingly interacting with the expanding US—sometimes voluntarily, but not always so—a novel situation to the tribe and therefore not part of its constitutional and legal system. For exapmle, the distribution of land had previously been handled by customary law, with land owned by clans and assigned to members of clans; new land began to be cultivated and passed down in accordance with US law, which required updating the Hopi legal system.
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The law & economics fields deals largely with emergent law, but the constitutional political economy field seems mainly to focus on what features would make for good constitutional design. Granted, it is much harder to study implicit constitutions, and in the modern era we think of constitutions as something a single entity creates consciously. Also, the field of constitutional political economy has been concentrated in and on the United States, where a written constitution is in force. But Britain, for example, has an implicit constitution, not created but emergent. By better understanding emergent constitutions the field would be better able to cross-pollinate with fields like development. If our logic is good—and it is—we can take it far.Discount Oakley sunglasses

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  • SantiagoG

    Makes me think of possible disadvantages of having written constitutions. Like you say the Hopi’s before 1936 and Britain are two examples of implicit constitutions. It seems the appeal of having a constitution down “on paper” is clarity and permanence. But it would seem to me that having it written down does not help permanence but actually makes it easier to change constitutions because 1) clearly pinning down norms makes it an easier target to attack in the same way that shooting a fixed target is easier than shooting a moving one. 2) Instead of having implicit norms where there is much more subjective application/enforcement, semantic issues become more prevalent when written down (perhaps the subjectivity of application/enforcement is the same for implicit and for written constitutions) 3) I guess that for any set of norms you want some combo of permanence and adaptability written constitutions are less adaptable in a particular way such that once written, the emergent process (individuals interacting and having conflicts and resolving them) is disconnected from process through which the set of norms changes once written down.