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121 Chapter 4 Crown and Charter Fundamental Conventions as Principles of Authority Nor is the rule concerning the stability of possession the less derived from human conventions, that it arises gradually, and acquires force by a slow progression, and by our repeated experience of the inconveniences of transgressing it. On the contrary, this experience assures us still more, that the sense of interest has become common to all our fellows, and gives us a confidence of the future regularity of their conduct: And ’tis only on the expectation of this, that our moderation and abstinence are founded. —Hume (T 3.2.2.10, SBN 490) Nor is it sufficient to say, that example and precedent can never authorize vices: Examples and precedents, uniform and ancient, can surely fix the nature of any constitution, and the limits of any form of government. There is indeed no other principle by which those land-marks or boundaries can be settled. —Hume (H 5.583, note KK; emphasis added) [T]acit conventions are sometimes harder to destroy than explicit ones, existing in potentially recalcitrant minds rather than on destructible paper. —Thomas Schelling1 This chapter will discuss Hume’s theory of fundamental conventions, of how “examples and precedents” come to count as “uniform and ancient.” Few deny that Hume regards both private and public law as matters of convention ; Hume repeatedly uses the word himself. But few have recognized that he regards certain conventions as fundamental: immune to alteration (except in the extremely long term, at least generations and more likely centuries) by the usual methods of political power and social change. The claim that Hume 122 Chapter 4 does believe in fundamental conventions, that he rests a distinctive form of constitutionalism on the foundations of custom and mutual advantage, is unusual . It finds little support in Hume’s philosophical works, only in the less familiar History. Justifying it will require more detailed citation of the History than in other parts of this work. Part of the problem is that Hume for deliberate and political reasons avoids saying what counts as fundamental and how it becomes so. As always, he refuses to bring to matters of authority the level of theoretical clarity that might force disagreement on first principles and thereby risk civil strife. One of the only times he uses the phrase “fundamental laws” is in a passage asserting their existence but denying that we can know what they are with sufficient certainty “to set bounds to the legislative power, and determine how far it may innovate in the principle of government” (T 3.2.10.14, SBN 561). But the part of the phrase “fundamental law” that causes Hume to worry— because it might lead to crises of authority that he dreads, and might justify the kind of revolutions he thinks are almost never worth it—is “law,” not “fundamental.” The development of fundamental conventions, in contrast, could be seen as the central story of the History of England. These conventions are both below and above ordinary laws. Below, because their fundamental status can never be codified as such. Above, because they limit, at least arguably , the authority of the lawmaking body, whose own right to enact positive law itself derives from fundamental conventions.2 This may explain Hume’s tendency to refer to fundamental laws as anything but laws. He describes them as “rules,” and a constitutional government is “regular,” from the adjective form of rule. In particularly strong cases they are “foundations” or “fundamentals ” (the latter used as a noun in the singular). The norm of observing such fundamentals is a “maxim”; subjective or conscious attachment to it is a “principle,” a motive for action; the whole constitutional scheme, when not called simply the “constitution,” is a “plan,” “system,” or “fabric.”3 Once one looks, it is not hard to determine what Hume regards as England ’s constitutional fundamentals: on the one hand, the codified and universally recognized rules of succession that constitute a “regular” monarchy; on the other, Magna Charta with its various accretions (habeas corpus, the Bill of Rights). To abolish monarchy or Magna Charta are almost certainly beyond the authority of either parliament or rogue monarchs. I would claim— though there is no space here to pursue the claim—that these conventions implicate not only authority but identity. If England ceased to be a monarchy , or formally abolished its liberties, it would fundamentally cease to be the same country (politically speaking), the same polity. It would be a...

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