The Idea of a Constitution and Why Constitutions Matter
By Suri Ratnapala
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Every state in the world claims to have a constitution but not all of them have constitutional government. Constitutional government in the classical sense requires a certain type of constitution, one that limits the powers of political authorities and is not susceptible to easy modification or abrogation by transient holders of political power.

The term �constitution� has acquired at least three different meanings. In the most common sense terms, it means a text that has the force of the paramount law in that it prevails over every other law that is in conflict with it. In a second sense, �constitution� means the actual system of government in a country at a given time in history. This is the �living� as opposed to the paper constitution. It is ascertained not simply by reading the paramount text, but also by consulting supplementary legislation, conventions, relevant judicial precedents and by studying the less formal political, economic, moral and cultural constraints that shape the system of government. In philosophical literature, we find a third meaning of �constitution�: namely, the idea of a government subject to limitations that have the capacity� to withstand momentary currents of opinion or political will through a combination of internal mechanisms, supporting institutions and culture. In the latter sense, a constitution represents the realisation of a value or ideal identified by the terms �constitutionalism� and �constitutional government�. Thus only a certain kind of constitution could be regarded as a constitution in the philosophical sense.

Constitutionalism as an ideal cannot be realised fully, but nor can it be wholly rejected while maintaining a functioning society. Some constitutions stand closer to the ideal than others. It is evident from Australia�s constitutional documents, its institutions and its political culture that it not only has a constitution in the descriptive sense but, relative to other countries, also strong constitutional government. Apart from the formal constitutional and legal constraints, the repositories of political power in Australia are subject to a complex web of less formal constraints including the etiquette of political discourse, the traditions of judicial, journalistic and academic independence, and a wide range of active political, economic and cultural organisations.

Constitution as paramount law

A constitution which is the paramount law is of the highest significance as it overrides every other law which is in conflict with it. Such a constitution is almost invariably found in a written form. Some constitutions are general and brief while others are written in great detail.
The detailed constitutions typically: designate the key branches of the government such as the legislature, the executive and the judiciary; lay down the methods of determining their comp-osition; define their powers; prescribe procedures for their exercise; set out, where relevant, the constitutionally protected rights and freedoms of the citizen; and
state the manner in which the constitution itself
may be changed.

If a constitutional text is to serve as the paramount law, it should not be amenable to repeal or modification by an ordinary law. If it is susceptible to such change, it will not be paramount but simply another law in force for the time being. Hence, constitutions in this sense contain provisions restricting the ways in which they can be changed. These restrictions usually take the form of requirements such as special legislative majorities, approval at referenda, the approval of a specified proportion of the legislatures of constituent
states within a federation or combinations of such conditions.

Federal systems of government are usually established on the basis of a paramount law. A federal system is one that distributes political authority between a central entity on the one hand and a number of territorial entities on the other hand, in terms of subject matter and territorial limits of jurisdiction. In the absence of a paramount law, such a distribution will be effected by ordinary legislation enacted by the central legislature which therefore can� abrogate or modify the scheme unilaterally by another ordinary law. Indeed, this is the way local government is created and regulated. A federal system can guarantee territorial autonomy only if the division of authority is clearly stated in a constitution which has paramount force.

Constitution as the system of government

No constitutional text, however elaborate, can provide a complete or perfectly accurate account of the system of government that exists in a country. The meaning of constitutional texts often must be sought in judicial decisions interpreting or applying particular provisions. In countries where courts have the power to review legislative and executive measures for constitutionality, judicial precedents are a major source of constitutional law. Written constitutions are edited and augmented by conventions and traditions which form during the course of constitutional history. In Australia, the most important political office, that of the Prime Minister, finds no mention in the Constitution and is established by convention. In fact, written constitutions which seek to implement the Westminster model of parliamentary government leave unstated many of the conventions upon which the system depends for its operation.

There are more serious problems in understanding the nature of a political system as distinguished from its official description. If we examine constitutional documents without regard to their institutional and cultural backgrounds, we can be left with very misleading impressions. History is littered with the shreds of splendid constitutions that were torn up by military might. Even today in many countries, the forcible overthrow of the constitution is an ever present threat. Yet in other countries, constitutional stability is taken for granted. Indeed, in some countries, the state of constitutional government is much stronger than is sug-gested by the constitutional documents while in other countries, the lofty standards prescribed in the constitutions remain largely unrealised. The United Kingdom and New Zealand are examples of nations which enjoy constitutional government to a much greater extent than is apparent from their formal constitutional documents and doctrines.

How do we explain this paradox? Close readings of the constitutional law of the latter nations may provide partial explanations by revealing serious flaws in the constitution itself or in supplementary legislation required for the due operation of the constitution. In some constitutions, the fatal flaw lies in the capacity of the executive to suspend the constitution or critical parts of it on the grounds of emergency with the courts having no jurisdiction to question the presence of the state of emergency. The Weimar Constitution which was regarded as a model for the time was transformed by Hitler into an absolute and brutal dictatorship with the aid of the infamous Article 48 which allowed the President to suspend constitutional provisions and to make law by decree.

Even if a constitution is free from such defects, there are no intrinsic guarantees of its effectiveness or longevity. A constitution in the formal sense, after it has been enacted, has no intrinsic capacity to maintain itself. A paper constitution may command respect through its symbolism and psychological effect on citizens. But it is mainly sustained by� forces that lie outside it in the form of the complex web of formal and informal constraints that make up a people�s political culture. The characteristics of a constitution, particularly the way it disperses power territorially and according to function, and the degree of difficulty that is involved in formally amending the constitution, are crucial determinants of its stability.

These features, however, are maintained not by the magical quality of the language of the constitution but by the behaviour of the elements which comprise the political community. This behaviour is shaped by a whole range of formal and informal constraints, of which the formal constitution is but one. Other constraints include habits, customs, moral codes, attitudes, ideologies, economic conditions and even genetic predispositions. In economic literature, these constraints, together with the higher order rules such as constitutional provisions are known as institutions. Institutions provide the framework of rules within which the game of social life is played out.

The unwritten constitutions

It is evident that a constitution in the sense of the system of government may exist in the absence of a constitution in the sense of a paramount text. The United Kingdom does not have a written constitution which serves as paramount law. The great organs of government, the Parliament, the superior courts, the executive (Prime Minister and Cabinet) and the monarchy derive their composition, powers, privileges and basic procedures from ancient custom and common law,� conventional practice and a few historic and defining statutes. To determine the law relating to the prerogatives of the Crown, or the basic rights and liberties of the citizen, British lawyers turn to judicial precedent rather than to a written constitution.

The most fundamental rule of the constitution, Parliamentary supremacy, is nowhere to be found except in the attitude of the courts never to refuse the application of relevant Acts to the cases before them and never to recognise or enforce any rule or command of any other person or body which contravenes or derogates from an Act of Parliament. This judicial� attitude was unequivocally established only after the Glorious Revolution of 1688. Before that event, it was a real possibility that an Act of Parliament would be invalidated for being against �common right and reason� enshrined in the common law as Chief Justice Coke asserted in Dr Bonham�s Case.1 

The consequence of this attitude is that Parliament has a theoretically unlimited power to make law on any subject and to any effect whatsoever. The authority of Parliament conceivably includes the power to abrogate the most basic rights and freedoms of the citizens and even to disempower or abolish the courts themselves. The chances, however, of the British Parliament enacting such measures are slender given the strength of the formal and informal constraints placed upon it by the institutions and culture that make up the British political system.

In many countries which have parliamentary (as opposed to Presidential) systems of government, the constitution is a written document which nonetheless leaves unexpressed some of the most crucial elements of the constitution. The Australian Constitution expressly vests executive power in the Queen to be exercised on her behalf by the Governor-General.2  Yet it is kindergarten knowledge that the executive power is, by convention, exercised by the Prime Minister and other ministers. The institutions of the Prime Minister and the cabinet, arguably the most powerful political agents in the country, are not recognised in the written constitution but exist by convention. The Governor-General by convention grants assent to every bill passed by the two houses of parliament.

Thus, the constitution in the sense of the actually operating system of government will deviate often from the constitution in the sense of the official description of the system of government. To ascertain the �real� constitution, we have to examine the ways in which officials and citizens behave when it concerns the organisation of the state and the conduct of government.

Constitution in the philosophical sense

Constitution in the philosophical sense is a constitution of a particular type. It is one that limits the powers of rulers by subordinating them to enduring laws which the rulers themselves cannot abrogate. Such a constitution is inextricably associated with the ideal of the Rule of Law which seeks to ensure that people are not at the mercy of the momentary will of a ruler or a ruling group, but enjoy� a degree of stability with respect to life, liberty and property.

The need for a constitution in the philosophical sense arises as a consequence of the rise of the state. It is observed that in the evolution of social groups, a point is inevitably reached when common needs arise which are met most efficiently by collective action. Collective action can be effected through the agreement of group members. This is indeed the way various types of social clubs, trading corporations and private charities attain their goals. We notice, however, that with respect to the achievement of certain types of ends such as the defence of the group
from external threats, the maintenance of internal peace, the protection of the person and property of individuals and the provision of other public goods, the selected means is almost always the coercive state. It may be assumed that the coordination problems involved in the performance of these tasks, including the problem
of free riding, are not easy to solve through entirely voluntary private arrangements. Whatever may be the reasons, the coercive state is ubiquitous. The problem is that once established, coercive authority is difficult to control. Like all possessors of valuable assets, the wielders of coercive authority tend to employ their power in
the service of their private ends. This is the principle of human nature which Lord Acton hyperbolised in his famous epigram: �Power corrupts and absolute power corrupts absolutely.�� Since private ends are ever changing, the exercise of power becomes not only corrupt, but also arbitrary. The arbitrariness of rulers destabilises people�s rights, destroys personal autonomy and diminishes the capacity for self-fulfilment. Here we have the perennial problem of the state: how do we simultaneously create authority and prevent its abuse? Throughout the recorded history of ideas, philosophers and statesmen have been attracted to the idea of the �constitution� as the solution to this problem.

The crucial realisation of constitutionalists was that the cure for the abuse of power was not the establishment of even greater power or the replacement of one arbitrary power holder with another. Greater uncon-trolled power poses greater danger. We may gain transient relief by replacing a villainous despot with a benevolent one, but in the absence of restraints we cannot prevent the relapse to tyranny. There is an assumption implicit in authoritarian political theory that there is good and bad arbitrary power and that bad arbitrary power may be controlled by good arbitrary power. This is a logical and empirical fallacy. It is like saying that fire can be extinguished by more fire or that moisture may be removed by more moisture. Arbitrary power can be tamed only by its opposite, the absence of arbitrary power or the presence of regularity. Of course, arbitrariness cannot be altogether eliminated from human affairs but it can be reduced in the hands of governments by the supremacy of general rules. The essence of the constitution in the philosophical sense then is the limitation of power and the prevention of its arbitrary exercise by the rule of law.

The evolutionist case for constitutionalism and the rule of law

Evolutionary epistemology asserts that some knowledge claims have survived selection pressures and are hence worthy of retention until they are falsified. In relation to the law, the evolutionary viewpoint is not that laws exist because we can give some foundationally true interpretations of them and apply them into foundationally correct determinations of fact. Rather, laws emerge because certain persons happened to have common understandings of how to behave in their relations with others. From this point of view, the emergence of social order and the law is contemporaneous. Where no common understandings arose, there were no laws and no societies. Language and law are thus products of common understandings. Such understandings are not perfectly congruent, but are sufficiently common to give rise to the semi-stable relations which we call society.

Although we will never attain perfect knowledge, it is evident that we have, both individually and collectively, a great deal of valuable knowledge. Much of this knowledge is genetically inherited.� There is other knowledge that we gain culturally through convention and formal instruction. Our language displays both types of inheritances. At least since Chomsky�s groundbreaking work, we know that we inherit rule systems that enable us to speak, which we cannot derive from experience by induction, abstraction or analogy. Although language skills develop under the triggering effect of experience, the capacity for communication that it bestows on us far exceeds that experience. Two members of the same speech community can understand each other not only when they talk about things that they have both experienced but also when they converse on entirely new topics. Likewise we gain knowledge of the rules of conduct both genetically and culturally. This knowledge is far from perfect, but it has allowed us to survive and prosper in our daunting environment. Language also conferred upon the human race an incomparable evolutionary advantage.

Language allows us to construct theories about our condition and to test them. Laws are essentially theories about how a society should be ordered. We inherit many of these laws genetically and culturally. The laws that we inherit genetically and culturally are necessarily general. As outcomes of spontaneous processes, they form abstract properties of our makeup. If we are genetically pre-disposed to the care of our children, we will care for them whoever happens to be our partner in procreation. If we follow the custom of keeping promises, we are likely to keep promises generally and not just in relation to our friends.� Because, however, of the capacity for language, the human race alone can change the rules by which its members live. This capacity is called legislative power. Unlike genetically and culturally inherited rules, laws made by legislative power are not necessarily general. Herein lies the great threat to the Rule of Law.

The emergence of legislative power

Legislative power is the socially sanctioned power to change coer-cively the behaviour or status of others. The attainment of language is not sufficient to generate legislative power, though it is a necessary condition of it. Without being able to state a new law, we cannot expect anyone to follow it; but the mere stating of a new law does not bring about others� obedience of it. Whereas members of a society, by definition,� habitually observe the spontaneously grown rules, the dictate of a single person or of a group does not automatically command obedience. Legislative power emerges only when an organisational structure (whether democratic or not) capable of determining norms of behaviour and of enforcing them becomes established. Most societies show convergent evolution of certain basic features of social organisation such as headship institutions, the division of labour, food storing, urban dwelling, and collective security. Convergent evolution tends to take place when there are strong selective pressures and there are only a limited number of ways in which certain things can happen. It appears that some form of government emerges in most functioning societies and with it, some degree of legislative power.

It is possible to speculate about the nature of the selective pressures which may lead to government formation. The idea of a single coordinator or communications clearing house has been suggested by Guetzkow (1961: 187-200) and Campbell (1965: 29). Campbell has suggested for the evolution of species from the solitary to the social state generally, the selective advantages of the economy of cognition (information sharing), the economy of specialisation and division of labour, and the economy of mutual defence (1965: 44-45). Whatever may have been the causes, it is evident that government having legislative power is a common occurrence in social emergence. Once legislative power is established, it is not easy to limit its exercise to particular purposes or forms. Its immense value generates competition for its possession and for its employment for particular purposes. As history demonstrates, this power can be used to the great advantage of society as well as to its utter detriment. It can be used in the public interest as well as for the private ends of the rulers, their friends and supporters including, as in the case of modern democracy, the interest groups that deliver power at the ballot box.

Legislation takes different forms but three types are prominent. They are statutes which: (1) enact general rules of conduct; (2) establish and regulate organisations which make up the government; and (3) confer specific benefits on individuals or classes of persons or impose on them specific deprivations. In practice, of course, a statute may achieve all of the above objects, which only means that there can be three different kinds of laws enacted by the same statute.

Evolutionary advantages conferred by general laws

Lon Fuller argued� that there were eight desirable qualities which made up law�s inner morality and claimed that to the extent that a legislator failed to endow law with these qualities, she fails to make law. The qualities are:� generality; prospectivity;� promulgation;� clarity;� consistency (within and among laws); constancy (infrequency of� rule changes);� possibility of compliance; and congruence between proclamation and enforcement (Fuller 1964: Chp II). Laws which are endowed with these qualities have great advantages over laws that lack them. Laws that are applied patternlessly from case to case, or are unannounced, or which penalise past lawful conduct, or are� incomprehensible, contradictory and ever changing, or are impossible to observe, or are arbitrarily enforced by officials, have little capacity to guide human behaviour or to facilitate co-ordination among members of a society. By contrast, laws that are blessed with Fuller�s eight qualities bestow three great evolutionary advantages on human communities.

The first advantage is that we have much more knowledge about the likely effect upon us of such laws than about the effect of laws authorising the making of end specific decrees. A general law applies to all persons or an indefinite number of unknown persons, but one could quite easily predict beforehand which kinds of persons or actions would attract its force. The general rule that prohibits the sale of heroin tells us that if we sell heroin we are liable to the prescribed punishment. On the contrary, if legislation prohibits trade in any substance that has not been approved by a government agency, there is great difficulty in predicting who will be advantaged and who will be disadvantaged by the law. This means that laws of general application, when consensually determined, are likely to embody more knowledge than laws whose content is determined from case to case at the momentary will of an authority. Since we have greater knowledge of how general laws affect us, we also have greater ability to evaluate their operation through the democratic process and to repeal them or modify them where they prove harmful.

The consequences of laws which fail to prescribe rules, but provide for patternless official interventions in the lives of individuals and in the order of society, are difficult to track and to correct. Legislators who enact these laws always justify them with reference to some theory of the social good or some moral standard. However, since the law applicable to one person is not the law applicable to another and because we also have no knowledge of the facts relevant to each case, it is difficult to determine whether official actions advance or impede the aims of the statute in the individual case or cumulatively. It is true that, with respect to some kinds of discretionary powers, official actions are not entirely unpredictable as decision making tends to settle into certain patterns dictated by the policy and the philosophy of the statute. This kind of regularity is very different to the regularity of spontaneously emergent rules or general laws enacted by legislatures which exist independently of anyone�s momentary will. The regularities of official behaviour exist as a matter of official convenience and hence do not create binding rules or enforceable expectations. All of this indicates that it is much easier for a community to agree on general rules of conduct than to agree on the way an open ended statute should operate in the individual case.

The second advantage of laws that possess Fuller�s qualities arises from their greater predictability. Human beings live in an uncertain world. In addition to their physical environment, humans have created for themselves a complex cultural environment which, in many ways, have reduced the uncertainties of the physical environment. To take the two most obvious examples, as a result of culture, we have protection from the elements and a degree of control over disease. Culture can, however, create its own uncertainties. Laws which do not announce their normative content beforehand but empower officials to determine rights and duties in the individual case introduce a new source of uncertainty which makes our task of survival harder.

The third advantage is closely related to the second but is distinguishable. Rules that possess the eight qualities leave individuals much greater scope to utilise knowledge that they alone possess and hence to adapt better to their own conditions. This is because they leave wide areas of autonomy within which individuals may arrange their own affairs. The utilisation of this knowledge improves the adaptiveness of the social order as a whole.

The evolutionary theory of law herein supported holds that all deliberate legal change consists of hypotheses about public or private interests. A serious implication of this view is that our capacity to design or remodel society to our liking through legislation is severely limited. This implication seems counter-intuitive to minds accustomed to no other explanation of� human achievement than that of rational design. It is argued that we can proceed as if we have prescience because of our proven extraordinary capacity to interpret present reality and to predict the future. This is true in relation to most of our routine activities when we trust our senses and act on instincts. When we walk, talk, eat, cross the road or sleep, we make countless predictions. Without this kind of predictive capability, we cannot live for more than a few moments. As Hume pointed out, even these� predictions depend on our experience accumulated as custom and, we might add, on our genetic inheritance of instincts. It is, however, a serious mistake to think that the social order is susceptible to such engineering. To understand the nature of this mistake, we must consider two other dimensions of the evolutionary process which we have not discussed thus far, namely complexity and the nested hierarchy of selective retention processes.

Complexity and the nested hierarchy of selective retention processes

One of the basic facts about evolution is that only certain kinds of things can evolve as opposed to simply change. A piece of metal left exposed to the elements changes over time but we do not say that it evolves. Nor do we say that the steam trapped within a kettle is in a state of evolution. In the first case, the system is too static and in the second, too chaotic. Evolution by natural selection requires three conditions at the minimum. It needs change, the preservation of what is produced by change and a selection system which retains some but not the other products of change. Thus the evolutionary process applies only to semi-stable systems which display both the capacity for change and order. Scientists call these complex systems.3  The elements of a living system obey certain general laws but are not controlled as to their detailed behaviour. A human society is a living system. Most of its members obey the law most of the time, while pursuing different ends through differing means. Complexity in living systems results from the unpredictable behaviour of elements (whether they be molecules, cells, individuals, or societies of individuals) towards their local conditions which nonetheless generate overall order capable of withstanding� local perturbations (homeostasis). Complex systems arise not from a micro designed circuit plan but from a bottom up process of accumulation of local actions (Levy 1992: 127). This process has been described as self-organisation or spontaneous order.

The evolutionary process is further complicated by the fact that selective retention of living systems occurs simultaneously at different levels in a nested hierarchy. The environment that selects the genotype includes the phenotype of the organism, the physical surroundings and the cultural environment. Each of these levels has levels within them. Simpler lower level systems coagulate to form the complex upper level systems which in turn provide the ecologies for future selection at the lower levels, causing systems at the lower levels to change further (Campbell 1987; Hahwleg 1989). The survival of systems depend on their capacity to maintain their stability through this two-way feedback. This makes the task of controlling living systems to produce desired results that much harder.

The paradox of complexity: the need for simplicity and generality

An important feature of complex living systems is their ability to coordinate complex behaviour of distant elements. This is the flip side of the capacity to maintain order while allowing flexible and unpredictable behaviour on the part of its elements.

Let us see what this means in terms of human relationships. In a simple system such as a family, coordination is easy as all the members know each other and are aware of each other�s needs, aspirations, abilities and so forth. Each can reasonably predict the others� behaviour. In contrast, most members of� large societies are strangers who cannot predict each other�s behaviour except in the most general terms. Yet� society can coordinate the activities of these millions of strangers. The actions of thousands of individuals working in production, trans-portation, wholesaling and retailing are coordinated with my own, when I buy a cake of soap at the supermarket. This coordination is achieved by a very simple general rule of law which requires parties to voluntary agreements to honour them.

The startling paradox is that complexity is actually made possible by the simplicity of laws. If there is no law at all, my prospects of buying a cake of soap at the supermarket, or indeed of the supermarket existing, would be nil. There would be chaos which prevents coordination. But if the law was complex and dictated the behaviour of each person in great detail, the capacity of the system to utilise each individual�s knowledge about his or her own circumstances and wishes would diminish, and with it, the system�s capacity to coordinate the actions of countless strangers. Such a system will be less, not more, adaptive. This is a point which Hayek first made in 1973 in his book Rules and Order. More than two decades on, scientists investigating complexity and the laws of self-organisation are coming to similar conclusions from experimental data (Kauffman 1995: 86-92). In his incisive book, Simple Rules for a Complex World, Richard Epstein argues persuasively that our complex social world works best on a handful of simple rules.

Of course, it is not physically possible for governments to regulate in detail all aspects of social and economic life. Instead, they control particular aspects and interfere continually in private transactions to produce specific outcomes. Even this kind of intervention seriously dislocates a complex order. As Hayek pointed out: �the reason why such isolated commands requiring specific actions by members of the spontaneous order can never improve but must disrupt that order is that they will refer to a part of a system of interdependent actions determined by information and guided by purposes known only to the several acting persons but not to the directing authority� (1973: 59). In his classic exposition of the complexity of society, Hayek argued that the idea that complex orders can only be sustained by complex laws is a logical and empirical fallacy. He urged that the very complexity of modern society means that we cannot preserve it by the method of directing its members, but only indirectly by enforcing and improving the abstract rules upon which spontaneous order rests (Hayek 1973: 50-51).

Conclusion

It is more difficult to formulate a legal law than a scientific law, yet legislators are much more confident in the conduct of their business than scientists. There are several important differences between the exact sciences and legislative activity which we can disregard only at our peril. First, scientists proclaim new laws (theories) of science or modify existing ones usually after testing them. Scientists can test their theories because they can determine, though imperfectly, the initial conditions, limit perturbations and measure results. Legislators have no such capacity. Secondly, scientists usually do not have to conduct their tests on human beings. Legislation is always tested on human beings.� Thirdly, human beings are free most of the time to ignore scientific theories because they are descriptive and not normative. Legislation is always normative and difficult to ignore. Fourthly, there is much greater incentive for scientists to get it right objectively. Science is by no means free from bias and corruption. The fact, however, that scientists cannot impose theories upon others (without the aid of legislators) but must rely on their acceptance according to scientific criteria and the fact that they are testable by competitors, creates powerful incentives to minimise bias. These factors give rise to institutional settings that promote a culture of caution and objectivity. By contrast, legislators have great incentives to be biased. It is this lack of caution and objectivity
that makes legislatures and executives which control them the great threats to the Rule of Law that they have become
in this age of mass democracy.

A social order which is subject to the Rule of Law has a constitution in the philosophical sense. Such a constitution limits the opportunities for the exercise of arbitrary power. It is beyond this undertaking to consider at length the conditions which help to create and maintain such a constitution. Clearly, the separation of legislative, judicial and executive powers, the territorial distribution of powers according the principle of subsidiarity, the placing of substantive limitations on the powers of the government to take away the basic individual rights and liberties of the citizen, the independence of the judiciary, the representative principle and impediments to hasty or expedient constitutional alteration, all assist in securing such a constitution. But, as history repeatedly demonstrates, the best constitutions require many more supporting institutions to survive. These institutions have to be built and nurtured where they do not form part of the historical legacy of the nation.

References

Campbell, D.T. 1965, �Variation and Selective Retention in Socio-Cultural Evolution,� in H.R. Barringer, G.I. Blanksten and R.W. Mack (eds.), Social Change in Developing Areas: A Re-interpretation of Evolutionary Theory, Schenkman Publishing, Cambridge.

-�� 1987, �Evolutionary Epistemology,� in� W.W. Bartley and G. Radnitzsky (eds.), Evolutionary Epistemology, Theory of Rationality and Sociology of Knowledge, Open Court, La Salle, Illinois.

Epstein, R. 1995, Simple Rules for a Complex World, Harvard University Press, Harvard.

Fuller, L. 1964, The Morality of Law, rev. ed., Yale University Press, New Haven.

Gell-Mann, M. 1995, The Quark and the Jaguar: Adventures in the Simple and the Complex, Abacus, London.

Guetzkow, H. 1961, �Organisational Leadership in Task Oriented Groups,� in B. Bass and L. Petrullo (eds.), Leadership and Interpersonal Behavior, Holt, Reinhart and Winston, New York.

Hahwleg, K. 1989, �A Systems View of Evolution and Evolutionary Epistemology,� in Issues in Evolutionary Epistemology, State University of New York Press, New York.

Hayek, F.A. 1973, Law, Legislation and Liberty: Rules and Order, Vol. 1, Chicago University Press, Chicago.

Kaufmann, S. 1995, At Home in the Universe: The Search for the Laws of Self-Organisation and Complexity, Viking, London.

Levy, S. 1992, Artificial Life: The Quest for a New Creation, Pantheon Books, New York.

Author

Suri Ratnapala is Associate Professor of Law at The University of Queensland. This article is an edited version of a paper presented to the Special Regional Meeting of the Mont P�lerin Society in Bali, Indonesia on July 11, 1999.

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