Comparison of Guatemala and the US Constitutions

There is no secret that some countries are more prosperous and developed than others. Why are some countries poor and there is nothing we can do about it? Is the answer culture, weather, economics, geography, bad policies, or simple bad luck? This is probably the most important question facing the world today, especially for the over three billion people that live in less than $2.50 a day. Economists, political philosophers and political figures have been trying to come up with a solution to fix this problem for hundred of years. The book “Why Nations Fail: The Origins of Power, Prosperity and Poverty” by economists Daron Acemoglu and James Robinson state that while economic institutions are vital to prosperity, it is man-made political institutions that determine if a country is prosperous or poor.1 This is concluded because any economic institution is implemented by the political class that work within the framework of a pre set legal tradition and political system, generally contained in a country’s Constitution and other society foundation documents such as the Declaration of Independence. Therefore, the framework that leads to prosperity (or lack of it) is as follows; the people enact a Constitution based on a core set of founding principles, that sets forth a society’s goals, the political class then implements economic institutions that in turn determine how prosperous a country is. But why do similar theoretical political institutions and legal traditions work so differently in practice? The answer lies in the philosophical foundations of societies.

Latin America is a region that has never really developed and in which most people live in poverty. Why is it that this region is so rich in resources and has not been able to achieve sustainable economic development? Philosophical foundation can be understood as the intellectual basis or framework upon which an organized society is first organized, as the roots of a given society. The political and economic institutions that are enacted in a society have to be based on the original framework set forth in the Constitution and cannot directly contradict them. The Theory of Social Contract is the view that persons’ morals and/or political obligations are dependent upon a contract or agreement among them to form the society in which they live.2Even though every version of the Theory of Social Contract looks to reconcile individual preferences with collective rules, the differences in the method and reasoning behind every version is the reason why they all arrive at different meanings about the role of man in society that then leads to different outcomes.
Jean-Jacques Rousseau and John Locke each published a version of The Theory of Social Contract. Even though both theories are similar regarding the existence of a social contract, they have a different reasoning and justification. Countries in Latin America were founded upon a philosophical foundation set forth in Rousseau’s conception of the theory, while the United States was founded upon Locke’s version theory. By comparing both theories and analyzing their influences I will concluded that this has been the main reason why the United States has become the world’s leading superpower and countries in Latin America have never really lived up to their economic potential and are still mostly underdeveloped.

In Rousseau’s essay “Discourse on the Origin and Foundations of Inequality Among Men” he explains that humans originally lived peaceful and solitary lives in which their basic need were satisfied by nature. The population growth lead to the need for people to live in groups which gave rise to the division of labor and certain discoveries that made life easier for humans. Then came what he considered the “invention” of private property which led to the foundation organized civil society. For Rousseau such invention made humanity “fall from grace” and brought humanity out of the state of nature into one governed by inequality, greed and competition. Inequality was brought due to the fact that few people had private property and forced others to work for them. The owners created a government to ensure the protection of their property; this government was established by a contract that Rousseau argues it was theoretically to guarantee protection for all, but in reality it was formed only to protect the interest of the owners. Rousseau wanted to eliminate the problems that aroused by the social contract so he considered that we cannot ignore history or the causes of our problems, but we can choose how to resolve those problems and decide how we must live within society. He considered that progress had substituted our natural freedom with service to others, through economic and social inequalities. He believed that the return to the original state was impossible so the purpose of politics is to restore freedom for the people. The State is then created when equal persons come together and form a collective body (the State) that will do well for all. Government, which is the State’s natural offshoot will then direct its actions towards the common good, which should be understood and agreed to collectively. This theory of social contract implies a strong democracy in which individuals are subjected to the will of the majority (basically with no limit), to the point that Rousseau even said that individuals must be “forced to be free” , that is to conform themselves and accept the wisdom of the general will. In short words, Rousseau’s conception of society is based on the evils of private property and is of a collective nature in which the individual will must give away to the collective will if a majority so decides and it is possible a leader can have the knowledge of the general will. This in my opinion an inherently authoritarian concept. John Locke was an English philosopher who also came up with his own version of the theory of social contract years before Rousseau’s. Locke’s theory appeared in his 1689 “Second Treatise of Government”. 3 For Locke, a man’s state of nature is one of complete liberty to live one’s life as one sees fit without the interference of others bound only by the law of nature (life, liberty and property)4, which he considers to be the basis for morality and is given to us by God. Locke regarding the state and law of nature said that “the state of nature has a law of nature to govern it, which obliges every one: and reason, which is the law, teaches mankind, who will consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty and possessions.”5 Locke argued that the law of nature restricts humans from harming one another, as we all belong to God and we cannot take away that is his, which is why the state of nature is relatively peaceful. Essentially he believed that the only limit to a man’s right was the rights of another man, as one could not infringe upon the rights of another without going against natural law. Locke state that even though the state of nature was one of relative peace, instances could arise in which this could turn violent as no authority existed to protect the life, liberty and property of individuals and that without such authority people would have no security of the respect for their rights and would live in fear. Accordingly Locke then argued that all individuals would agree to come together and form a State. The State would provided a neutral judge which would act to ensure that the law of nature is respected. Locke considered that organized civil society is formed when individuals agree to give up the absolute power they posses to protect themselves and punish those who infringe the law of nature and hand over that power to the public (in form of the government), in exchange for the protection of their rights and the law of nature. With the creation of an organized civil and political society, individuals get the tools to ensure that the law of nature is followed: namely laws, judges and an executive power that can enforce these laws. Equally as important to Locke’s theory, was his conception that the end of law is not to abolish or restrain freedom, but rather to preserve it6 and as such citizens have the right to revolt if the law restrains freedom. In contrast to Rousseau’s version of a strong and virtually unlimited democracy, Locke considered that the power of the majority was always bound by the law of nature and more importantly stressed the importance of democratic institutions (general elections), which Rousseau did not. Property is the cornerstone of Locke’s theory of social contract because men create organized society in an effort to protect and ensure the respect of their property. Accordingly, it is then upon the recognition of private property as God’s given to man and as a way to ensure that property is protected, that civil political society is organized and government is created. The preamble of a Constitution is the opening statement of a Constitution is the opening statement of a Constitution, in which the framers set forth the goals of society and in which the various sources (historical, moral, political and philosopher) that influenced the Constitution are encapsulated. 7 Both the preambles of the Constitution of Guatemala and of the Declaration of Independence of the United States allude to the enactment of the Constitution and subsequent creation of government as coming from the people, who come together in writing the Constitution and essentially organizing society. This uniting of the people to organize society to form government and recognize its authority, limitations and purpose, is essentially an acceptance of the theory of social contract. It can be categorically said that some form of the social contract theory was accepted upon the organization of each of these countries and consequently influenced the legal and political development of the countries. Which countries were influenced by Rousseau’s philosophy? Which country was influenced by Locke’s?

Rousseau’s social contract theory was the philosophical foundation upon which all countries in Latin America were founded. Democracy is emphasized as the pillar of society as a way to essentially put every person on an equal standing, favoring order and equality over liberty. Revolutionary and Independence movements in Latin America were very different from the American Revolution and Independence. In Latin America, native born ruling elites had broad political and economic power which allowed them essentially to govern themselves even before Independence. 8 When Independence was achieved the elite creoles in power (who are the equivalent of the founding father of the region) did not want to cede or share the power they had and moved to impose order as an effort to maintain the prevailing status quo.9 To be able to achieve this, they resorted to Rousseau’s theory of the social contract and its authoritarian nature to serve as philosophical foundations for their Constitution and the societies they formed. Rousseau’s influence resulted in that the different Constitutions enacted in the region privileged order over liberty (when opposition between them) and gave the government strong powers over the individual. When combining this with Rousseau’s contention that democratic institutions are inherently corrupt and could be dispensed of, because leaders with knowledge of the general will would emerge and rule us, it is not surprising that the region has been historically plagued with charismatic despots, dictators and populists who claim they embody the general will. The preamble of the Constitution of Guatemala embodies Rousseau’s ideas and his influence can be seen simply by reading it. The preamble says the following:

“We, the representatives of the people of Guatemala, elected freely and democratically, meeting in the National Constituent Assembly in order to organize the State juridically and legally; affirming the primacy of the human person as the subject and purpose of the social order; recognizing the family as the primary and fundamental genesis of the spiritual and moral values of the society and, the State, as responsible for promoting the common good, the consolidation of the regime of legality, security, justice, equality, freedom, and peace; inspired by the ideals of our history and epitomizing our traditions and cultural legacy; decided to promote the complete implementation of Human Rights within a stable, permanent, and popular institutional order, one where the governed and the governors act with absolute loyalty to the law.” The Founding Fathers of the United States organized the country relying on Locke’s philosophy and openly admitted such influence, thus the Declaration of Independence and the Constitution heavily influenced by Locke’s philosophy, which serves as a foundation for the country. The first part of the Declaration of Independence of the United States says the following: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” From the reading of the first paragraph of the Declaration of Independence it is pretty clear that Locke’s philosophy heavily influenced it and as such is the philosophical foundation of American society and the underlying cause of the country’s development. I would like to emphasize that, as opposed to the social oriented preamble and philosophical foundation of Guatemala’s Constitution (and all other Latin American Constitutions) the Declaration of Independence of the United States of America is individual oriented, focusing on equality under the law and promotes not only natural rights but a man’s right to pursue his own happiness, for his own sake and not society’s. This I believe, is the fundamental difference in the philosophical foundation of the United States of America with respect to Latin American countries and as such the underlying reason why the United States is developed and has been, until recently, of economic prosperity, equal opportunity, liberty and freedom. Individual laws in these countries may be similar in text, but become fundamentally different when considered the meaning and scope given to them in their interpretation and enforcement within the political system and legal tradition of each country, which explains why some “laws” work in some countries and not in others. In conclusion, when discussing the philosophical foundation of a country, one has to see the preamble and text of a country’s Constitution (and Declaration of Independence if a country has one). From it one can imply the conception of the theory of social justice used by the founding father of the country and understand the role of man in society and the role of government in that society. It is these underlying philosophical principles that can explain the political culture of a country, the economic development and the legal tradition. Countries, like the United States, that were influenced by John Locke’s theory of the social contract have a more individual based system, in which all men are naturally given certain rights, are equal only under the law and can pursue their own happiness freely in an environment of liberty and little to no interference from the government, which is put in place to securing these rights and is elected representatively. Alternatively, countries like all Latin American countries, that were influenced by Rousseau’s theory of social contract have a more social based system, in which men are forced to be equal and in which property is considered (by majority) n evil or a form by exploitation. In Latin America, man under the mantra of social justice has to serve society, to the extent that the general will decides, which can be directly democratically elected in which it is assumed “knowleadgeable” leaders will emerge and guide society to good, resulting in political systems and legal traditions that promise development, equality and better life by decree. This “all knowleadgeable” are expected to know what is good for society and impose their own views of social good and justice, many times in violation of what Locke considered natural law, upon others (to no and sometimes catastrophic results), under the mantra of the general will. It is ironic that it was Rousseau who said “People who know little are usually great talkers, while men who know much say little.”10 The founding fathers of Latin American countries, when organizing them, were greatly influenced by Rousseau’s conception of the social contract and man’s role in society, thus influencing the country’s culture, politics, legal tradition, economic performance and ultimately the country’s lack of development.