Why Human Constitutions Must Remain Contingent, Contestable, and Institutionally Limited

 Introduction

The contingent, contestable, and institutionally limited character of constitutions and laws is not an accidental defect of political life. It follows from the kind of thing law is and from the kind of beings we are. Scientific laws, on standard philosophical accounts, aim to describe regularities or necessities in nature; human laws, by contrast, are part of a normative order that depends on social facts, institutions, interpretation, and enforcement. Constitutionalism itself is the project of legally limiting political power, while the rule of law names a set of formal and procedural ideals - clarity, publicity, stability, prospectivity, and regular administration - through which such limitation is pursued. Human constitutions therefore do not stand outside history like laws of physics; they are artifacts of collective agency, designed to govern persons who disagree, speak imperfect languages, pursue conflicting ends, and wield power under conditions of uncertainty.

Positive law is made rather than found

The first reason we must accept contingency is that positive law is made rather than found. In the positivist tradition, the existence and content of law depend on social facts rather than on the law’s moral merits. Legislatures, courts, and constitutional assemblies exercise normative powers: they create, alter, interpret, and repeal legal rights and duties. Even natural law theory does not erase this point at the level of positive law. As Finnis emphasizes, a moral principle is not yet part of a legal system merely because it is morally sound; it becomes law only when it is given determinate legal form and coherence within an institutional order. That is why no actual constitution is necessary in the way gravity is necessary. It is always historically situated, path-dependent, and responsive to the concrete circumstances of a people. Human law is contingent because it arises from human choice under conditions not of our own making, not because justice is unreal. 

Epistemic finitude

The deepest source of that contingency is epistemic finitude. Human beings do not possess complete information, unlimited computational (cognitive) power, or transparent access to the consequences of institutional design. Simon’s account of bounded rationality is directly relevant here: actual decision-makers cannot optimize across all possibilities, so they govern under severe cognitive and informational constraints. A constitution is therefore never drafted from a God’s-eye point of view (τὸ Ἕν). Its framers do not know the full future, the full range of social transformations, or the full set of cases their language will later have to decide. Because lawmakers are finite knowers, constitutional orders must remain revisable, corrigible, and incomplete. The opposite aspiration - a final constitution that perfectly anticipates all future disputes - would require superhuman foresight.

Ontological constraints

Ontological constraints are fundamental rules or limitations defining what entities, properties, or relationships can exist and how they behave within a specific domain, model, or reality. These constraints, often modeled as logical axioms or semantic rules, ensure consistency by restricting possibilities and defining the essential structure of reality, such as "an object can only participate in an activity if it exists".

Ontological constraints - the limitations imposed by the specific structure, categories, and assumptions through which we view reality - inherently restrict our understanding. These constraints shape what we perceive, define, and consider possible, effectively shaping and limiting our knowledge.

Ontological constraints - defined as the limitations inherent in structuring or classifying reality (the "furniture" of the world) - actively limit our understanding by forcing phenomena into rigid, pre-defined categories. This constraint is a necessary condition for intelligibility (requiring determinate identity), but it is also inherently restrictive, often failing to account for phenomena that defy binary classification (e.g., being vs. non-being or quantum superposition).

Moral and political pluralism

A second source of contestability is moral and political pluralism. Rawls argues that free societies are characterized by the “burdens of judgment”: even conscientious and reasonable citizens will disagree about religion, morality, and the good life because the relevant evidence is complex, values conflict, and people reason from different experiences. That is why modern political liberalism does not expect deep agreement on comprehensive truth, but seeks instead publicly justifiable terms of cooperation for constitutional essentials and matters of basic justice. Public reason is necessary precisely because disagreement is permanent. Waldron presses the point further: disagreement about rights does not disappear when issues are handed to courts, because judges also disagree. The implication is decisive. Constitutions and laws are contestable not because citizens are irrational, but because rational and decent persons can still disagree about justice, liberty, equality, and authority.

Linguistic and interpretive limitation

A third source of contestability is linguistic and interpretive limitation. Law governs through language, yet legal language is not self-applying. Mark Greenberg notes that legal interpretation centrally concerns how texts such as constitutions and statutes are to be understood, while Timothy Endicott emphasizes that laws expressed in vague language can be indeterminate in borderline cases. Vagueness is not merely a failure of drafting technique; it reflects the generality that law needs in order to govern many cases at once. A constitution must use terms such as “equal protection,” “due process,” “cruel,” “reasonable,” or “speech,” because no legal text can specify every application in advance. The result is that interpretation is not a removable imperfection but a structural feature of legality. Since human beings must govern through general language rather than direct access to moral essences, disagreement over constitutional meaning is unavoidable.

Motivational imperfection

A fourth source is motivational imperfection. Madison’s constitutional insight was not that institutions can eliminate ambition, faction, or the misuse of power, but that institutions can channel them. The familiar arguments of Federalist No. 51 assume that officeholders are not angels; power must therefore be checked by countervailing power, and parchment barriers alone are insufficient. The institutional architecture of separation of powers and checks and balances exists because humans are susceptible to self-interest, factional solidarity, and domination. The same point applies beyond the American case: constitutional limitation presupposes that rulers may overreach and that majorities may threaten minorities. Human constitutions are institutionally limited because they are designed not for morally perfect beings but for agents whose motivations are mixed and whose exercise of power requires external restraint.

Sheer complexity and historicity of social life

A fifth source is the sheer complexity and historicity of social life. Law does not regulate inert matter; it regulates dynamic associations of persons, practices, technologies, markets, faiths, and identities. For that reason, the limits of law are not only moral but practical. As the philosophical literature on the limits of law notes, lawmakers face “means-end” limits: legal attempts to produce certain social outcomes can misfire. The rule of law’s formal ideals - publicity, clarity, generality, stability, prospectivity - are themselves acknowledgments of these constraints. Law cannot successfully do everything at once: it cannot be maximally precise, maximally adaptable, maximally democratic, and maximally stable without tradeoffs. It cannot make citizens virtuous by decree, abolish disagreement by adjudication, or render every value commensurable in a single code. Institutional limitation is thus not merely a weakness of current institutions; it is built into the medium of law itself. 

Concluding remarks

For these reasons, we must accept the contingent, contestable, and institutionally limited character of constitutions and laws because the alternative would require denying basic truths about human beings. We are finite knowers (epistemic, ontologic), bounded reasoners (cognitive), plural evaluators, imperfect speakers, self-interested actors, and historically situated agents. Positive law therefore cannot be necessary like a natural law, unanimous like a revealed creed, or unlimited like an omniscient morality. Its dignity lies elsewhere: in making coercive power answerable to public forms, distributable across institutions, revisable through procedure, and justifiable to persons who remain free and equal despite disagreement. Constitutional maturity begins when we stop demanding from law the finality of science and instead ask of it what finite political institutions can genuinely provide: order without absolutism, authority without infallibility, and justice pursued under conditions of permanent human limitation. 

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