Customary law as a social contract: International commercial law

Merchants broke the bonds of localized political constraints during the tenth and eleventh centuries to establish the constitutional foundations of international commercial law as we see it today. The medieval “Law Merchant” was an international legal system that governed without the centralized coercive power of the state. In order to see how this was possible, the incentives which led to the merchants community's social contract, as well as the rules and institutional arrangements that the resulting contract produced are examined and explained. A process of legal change evolved, participatory institutions were established to adjudicate disputes and effective incentives were implemented to induce compliance with the resulting judgements. The unwritten social contract established by the medieval business community remains in force to this day. International commercial law is still largely independent of nationalized legal systems, retaining many of the basic (though) modernized institutional characteristics of the medieval Law Merchant. James Buchanan suggested that “Free relations among free men—this precept of ordered anarchy can emerge as principle,” under an appropriately structured social contract. The international Law Merchant provides a historical and modern demonstration that Buchanan is indeed correct. This paper was originally prepared for presentation to the Liberty Fund Conference on “Liberty and the Constitutional Foundations of International Order,” Washington, D.C., July 1991. I wish to thank Randall Holcombe, Kevin Refitt, and the participants in the Liberty Fund Conference for helpful comments and suggestions that led to several revisions.     

International order and individual liberty

This article takes issue with the traditional way of conceptualizing international relations as anarchy. While the “anarchy problematique” has become established wisdom of neorealist (structuralist) international relations theory, neither the historical record, nor the analytical power, of this approach is borne out by closer examination. The elimination of questions concerning individual liberty, and the exclusion from analysis of international and domestic institutions serving this end, have been pursued in the vain hope of formulating a systematic and parsimonious theory of international politics. p ]On the basis of an examination of the post-war era, in which issues of stable democratic regimes and liberal international institutions were of primary importance, this article suggests an alternative approach for the study of international politics. By conceptualizing both the domestic and international systems associal systems, differing in degree and kind of institutionalized behavior, particular attention is directed to the link between individual rights and domestic institutions, as well as to the linkage of domestic and international structures. The metaphor of a “game,” constituted by rules and norms, is particularly helpful in providing an alternative research program. This approach is not only more attuned to political practice, it also allows for the stringent examination of normative questions. In preparing this paper, I was helped by the support of the Liberty Fund and by my research assistant, Rey Koslowski. I also thank colleagues Joe Grieco, Joseph Nye, Michaela Richter, David Spiro as well as two anonymous referees of this journal who provided helpful suggestions. Lawrence B. Simon Professor of Political Science; University of Pennsylvania, Philadelphia, PA 19104-6215.     

Mass-Elite Equilibrium of Federal Constitutional Legitimacy

William Riker ((1964) Federalism: Origin, Operation, Significance. Boston: Little Brown) stressed the problem of the contested nature of federal institutions and argued that federations existed amidst the ongoing challenge to their rules, that federal institutions were being continuously endogenously produced in the interaction of political parties rather than serving as self-enforceable constraints on the political process. As parties changed, so did federalism, and eventually the balance was bound to shift to either one or the other extreme as far as the degree of centralization was concerned. An alternative approach to essentially the same problem of federal instability was to conceptualize the underlying game differently, as a game of coordination, so that institutions would be accepted as constraints and would therefore be self-enforceable because they allow the players to avoid the chaos and successfully converge to an outcome with payoffs exceeding their reservation values (Hardin, 1989, Ordeshook, 1992). The third proposed solution, consociationalism, emphasizes the elite effort to overcome the conflictual nature of the institutional choice (Lijphart, 1977). Here, as in the coordination argument, the hope is that one could create incentives for politicians to view the existing rules as advantageous and to avoid redistribution by means of the institutional revision. Yet, just like the coordination argument, it is based on an implicit assumption that politicians are more easily motivated to act “cooperatively” than are their constituencies. The missing step in the literature is the mechanism by which this more or less “cooperative” behavior of elected politicians could be sustainable in the environment of popular accountability. An essential component in building the theory of institutional design is to show the possibility in a democracy of elected politicians cooperating on institutional matters even when each of their constituencies would prefer to adjust the constitutional terms to its own advantage. Elite “cooperativeness” must be sustainable even in the presence of outside challengers promising to stay closer to the constituent preferences. Here, I present a model of mass-elite equilibrium of constitutional legitimacy, which demonstrates the possibility to motivate the incumbents to sustain the institutional stability while at the same time protecting them from electoral defeat. I also discuss the difficulties and limitations that such a solution faces, in particular, in plural societies. JEL classification: H77, D02 In working on this paper, I have benefited from the discussions with Mikhail Filippov, Peter Ordeshook, Charles Kromkowski, Carol Mershon, and from the comments of the participants of the conference on ‘‘Micro-Foundations of Federal Institutional Stability’’ at the MicroIncentives Research Center at Duke University, Durham, NC, April 30–May 1, 2004, and of the Lansing Lee proseminar at the University of Virginia. The responsibility for the many remaining flaws is solely mine.     

Endogenous Selection of Institutions and Their Exogenous Effects

Institutions shape social outcomes, yet institutions themselves are products of political choices. When institutional choices are determined by the same political and social processes that they shape, institutions are endogenously selected. Here I address the question of whether this endogenous institutional selection necessarily implies endogenous institutional effects. If it does, the use of institutional parameters as independent variables explaining policy outcomes and properties of the resulting political regimes, widespread in the literature on comparative political institutions, is hard to justify. I argue, however, that strategic choice of the rules of the game implies designers' ability to obtain their preferred institutional effects only under conditions of complete information. Under incomplete information, ex-post institutional effects do not need to be endogenous, since at the time of designing the rules the designers were not in position to control the selection of these effects. The reason why the choice of the rules does not imply the choice of their effects lies in the intervening and interactive (rather than additive) role played by the environmental parameters, including players' own characteristics, that are not revealed at the time of the institutional choice. Additionally to the model which illustrates the logic of the argument and the workings of intervening structural effects, I find supporting evidence in the processes of design of election laws in post-communist Europe, where stages of design and implementation followed each other in a very quick succession yet were characterized by substantial changes in manifested institutional preferences of the key political players.     

威权体制是如何运作的？

周雪光文章与强世功文章的共同之处是关注治理而非改革或体制变迁,既关注正式规则也关注非正式规则,关注做法多于关注文本。两篇文章的主要区别在于抽象层次及探究深度。周文“组织做法”基本上是强文探讨的一般宪法原则的微观变体。两位作者令人信服地指出,有持久的规则塑造中国政治精英之间的行为模式。不过,这些规则是什么,宪法原则与其它制度（及临时政治妥协）的区别何在,仍有待进一步研究。     

Public choice versus constitutional economics: A methodological interpretation of the Buchanan research program

Through conceptual redirections, the Buchanan research program attempts to react to the fact that economic policy advice is often ignored. In terms of positive analyses, the research perspective is focused on institutions, i.e., the rules of economic as well as political games. In terms of normative analyses, the democratic criterion of unanimous consent is substituted for the normative efficiency criterion employed by welfare economics. The underlying idea is to direct positive analyses toward developing informative explanations on which normative analyses can build in order to provide intellectual orientation and thereby to contribute to democratic self-enlightenment. However, large parts of the existing public choice literature can be regarded as empirically oriented welfare-economic analyses of the political sector. Consequently, they run the danger of duplicating the failure of economic policy advice. This is why, during the 80s James Buchanan has changed the name of his research program from public choice to constitutional economics.     

Political entrepreneurship,emergent dynamics,and constitutional politics

Constitutional political economy mostly distinguishes between rules and actions, with rules selected prior to actions within those rules. While we accept the coherence of this distinction, we pursue it within an open rather than closed scheme of analysis. Doing this entails recognition that societies rarely exhibit universal agreement about constitutional provisions. Recognizing the incomplete character of constitutional agreement points to the existence of margins of contestation. Along those margins, political entrepreneurship will be active in promoting support for alternative constitutional interpretations. Within open systems of creative and entrepreneurial action, constitutional reinterpretation is continually injected into society. Acquiescence in the presence of power does not imply agreement about its use. Rather, acquiescence means the constitutional contestation becomes an element of ordinary politics and not an activity that is prior to ordinary politics. It also means that emergent dynamics supplements comparative statics as a method of analysis.     

Calculation of Self-Interest and Constitutional Consensus: The Role of Ideology

Constitutional political economy's veil of uncertainty prevents citizens from identifying their specific interests under political rules and facilitates agreement on rules by moving all individuals to an average position. But the calculation of self-interest in such settings is not straight-forward; citizens require a model of how the economy works to predict the effect of rules on welfare. Political ideologies typically supply such models. Citizens subscribing to different ideological models anticipate differential treatment under a given constitutional rule, breaking down the ability of the veil of uncertainty to achieve consensus. Constitutional consensus is unlikely in the absence of ideological consensus.     

Constitutional “Rules” and Intergenerational Fiscal Policy

This paper analyzes the impact of alternative political institutions on sustainable fiscal policies. We study the choice of intergenerational transfers as outcomes of an infinite social security game among successive selfish median voters. Majoritarian systems accord the current median voter maximum fiscal discretion but no direct influence over future policy. This political arrangement sustains, among others, dynamically inefficient transfers and volatile, non-stationary sequences. Constitutional rules award to the minorities veto power over fiscal policy changes proposed by the majority. This unanimity provision is equivalent to partial precommitment. Under constitutional rules, sustainable fiscal policies feature Pareto efficient, non decreasing transfer sequences.     

Constitutional stability

Political scientists in the pluralist tradition disagree sharply with public and social choice theorists about the importance of institutions and with William Riker in particular, who argues inLiberalism against Populism that the liberal institutions of indirect democracy ought to be preferred to those of populism. This essay reconsiders this dispute in light of two ideas unavailable to Riker at the time. The first, offered by Russell Hardin, is that if we conceptualize constitutions as coordinating devices rather than as social contracts, then we can develop a more satisfying view of the way in which constitutions become self-enforcing. The second idea derives from the various applications of concepts such as the uncovered set. Briefly, although institutions such as the direct election of president are subject to the usual instabilities that concern social choice theorists, those instabilities do not imply that “anything can happen” —instead, final outcomes will be constrained, where the severity of those constraints depends on institutional details. We maintain that these ideas strengthen Riker's argument about the importance of such constitutional devices as the separation of powers, bicameralism, the executive veto, and scheduled elections, as well as the view that federalism is an important component of the institutions that stabilize the American political system. We conclude with the proposition that the American Civil War should not be regarded as a constitutional failure, but rather as a success. I have benefitted from the comments of a number of people on earlier drafts of this essay, especially William Riker, Emerson Niou, Kenneth Shepsle, Gordon Tullock, Thomas Schwartz, and Matthew Spitzer.     

Rationality,constitutions, and the ethics of rules

It seems clear that individuals stand to mutually benefit, in a wide variety of situations, from structuring their interactions in terms of constitutional practices. But a commitment to treat the rules defining such practices as setting real constraints on choice—a commitment to what could be characterized as an “ethics of rules”—is hard to reconcile with the standard, consequentialist theory of rational choice, which requires, in effect, that individuals regard any rule as providing no more than a “maxim” for choice. Such a theory of rational choice, then, constrains individuals to settle for a second best outcome in which choice is aligned with practice rules by means of strategies of precommitment and threats. The outcome is second best because such methods yield only partial alignment, and involve the expenditure of scarce resources, as well as a sacrifice of flexibility and freedom. To say this, however, is to identify the corresponding theory of rational choice as havingconsequentially unacceptable implications. A modified theory of choice is presented, which is still consequentially oriented, but which assesses consequences in a more holistic manner. It is then argued that this modified theory can provide a rational choice grounding for the needed “ethics of rules.” The author would like to thank three anonymous referees for their very helpful comments and suggestions.     

Corporate social responsibility and the ‘game of catallaxy’: the perspective of constitutional economics

The paper examines the issue of corporate social responsibility (CSR) from the perspective of constitutional economics, focusing on the distinction between a political community’s constitutional choice of the rules of the “market game,” and the market players’ sub-constitutional choice of strategies within these rules. Three versions of CSR-demands are identified and discussed, a “soft,” a “hard”, and a “radical” version. The soft version is concerned with the issue of how “socially responsible” corporations ought to play the market game within existing rules. The hard version is about how the rules of the market ought to be changed in order to induce “socially responsible” corporate behavior. And the radical version questions the compatibility of CSR and the logic of the market game, calling in effect for adopting some alternative economic regime.

The time-varying independence of Italian peak judicial institutions

The paper investigates the stability of the degree of independence of the judiciary vis à vis both the classical political branches and other independent institutions, such as regulatory agencies, using evidence about the Italian Constitutional Court and the Council of State. Both peak judicial courts feature time varying factors of independence that affect their jurisprudence, especially in the case of the legitimacy review by the Constitutional Court. The less conclusive evidence found in the Council of State related to decisions of independent regulatory authorities might be due to the more complex set of interactions in which the Council operates.     

Liberty and Economic Growth in Adam Smith’s Possible World

Constitutional economics proposes and pursues a solution to public-policy problems, one that supplies rules designed to narrow the opportunity set of rational politicians. This work proposes and pursues “rational policy” as a complementary strategy to solve public-policy problems, where rational policy is public-policy that actualizes Adam Smith’s simple system of natural liberty. When individuals pursue their objectives by means of exchange in Smith’s simple system of natural liberty, they foster the growth of per-capita income. By contrast, all limitations on liberty limit the growth of per-capita income. The paper concludes by presenting two implications that follow from these conclusions. JEL classification: B31, H1     

Feuding,arbitration, and the emergence of an independent judiciary

Constitutional Political Economy - Anthropologists, historians, and political economists suggest that private violence—feuding—provides order and enforces agreements in the absence of a...     

The economics of “Certaine Lewd and Ill-Disposed Persons”: Comment on Leeson

In The Invisible Hook, Peter T. Leeson explores “the hidden economics of pirates.” The implications of his work are many, and there are several clear ways in which scholars can build on his insights. First, exploring piracy helps us better understand the rent-seeking societies of mercantilist Europe. Second, public and private policy toward pirates helps us better understand the institutions and organizations that emerge in order to govern and manage common resources. Third, the nearly universal condemnation of pirates by religious authorities and political leaders as well as the association of pirates with the demonic and satanic suggests further directions for research into the interactions between ideology, politics, and economic institutions.     

Emerging from the Hobbesian jungle: Might takes and makes rights

The conflict over scarce resources in the Hobbesian jungle may be avoided if rules of obligation delineating property rights develop along with institutions of governance. One possibility is a “duress contract” as the strongest individual threatens others who agree to enslavement. Thus, “might takes rights.” Alternatively, individuals with similar capacities for violence may enter a “consent contract” establishing rules of obligation and then voluntarily participating in governance. They will not agree to a rights assignment that produces less wealth than they expect through violence, however, so “might makes rights.” A might-takes-and-makes-rights analysis is outlined to explain the continuum of legal institutions and property rights allocations that can evolve between these two extremes of duress and consent. Increasingly finely delineated private property rights tend to evolve under institutions produced by consent contracts, while common pool problems tend to arise near the duress contract end of the spectrum. This paper draws from a larger project on “The Evolution of Law” which has been supported by the Earhart Foundation. Discussions with and comments by Randy Holcombe, Kevin Reffit, and two anonymous referees led to significant improvements in the development and presentation of the arguments, as did discussant comments on a related paper made by Douglas Ginsburg and participants in the Friedrich August von Hayek Symposium on “Competition Among Institutions” in Freiburg, Germany, June 1–4, 1994, sponsored by the International Institute at George Mason University and the Walter Eucken Institute, Freiburg.     

Explaining constitution-makers’ preferences: the cases of Estonia and the United States

This article is concerned with the effects of the kinds of framers involved in constitution-making on the content of constitutional provisions proposed during the drafting process. It tests the hypotheses that predict framers’ constitutional preferences on the basis of their institutional position, partisan background and constitutional expertise with two specific cases: the Constitutional Assembly of Estonia (1991–1992) and the Federal Convention (1787) of the United States. The case studies show that most of the hypotheses find only partial confirmation in both instances of constitution-making. The institutional position of a framer (being a member of existing legislature or executive) and constitutional expertise does not necessarily influence his or her constitutional preferences in the predicted way. The only theoretical proposition that is corroborated in both cases concerns the importance of group interest in a constitutional choice of electoral system and modes of representation: in the Estonian case, the design of the constitutional electoral rules was strongly influenced by partisan interest; in the US case, the interests of territorial subunits played a major role.     

Subsidies on low-skilled workers’ social security contributions: the case of Belgium

In recent decades, many “Making Work Pay” policies have been implemented in OECD countries. These policies aim at improving the financial incentives for work, while maintaining high levels of social protection. Examples include the Earned Income Tax Credit in the USA and the Working Families’ Tax Credit in the UK. While these policies are proven to be quite effective with respect to poverty alleviation, many worry that they may discourage labor supply on the intensive margin. We consider an alternative measure implemented in Belgium: the Workbonus, which subsidizes social security contributions for low-skilled workers. This program differs from other measures in that the eligibility and the level of the subsidy are based on full-time equivalent earnings. The instrument therefore distinguishes between low skill and low effort and avoids the above-mentioned disincentive effect. We assess the effects of the Workbonus on labor supply using a particular discrete-choice labor supply model, in which individuals are assumed to choose among jobs belonging to individual-specific latent choice sets. In particular, we compare the Workbonus with a tax credit system temporarily implemented in Belgium in 2001–2004. Results show that both measures have a positive impact on labor supply. However, the Workbonus is more efficient in terms of cost per additional full-time equivalent position created and avoids the “part-time trap” implicit in the tax credit system.     

Institutional changes and shifting ideas: a constitutional analysis of the Euro

This paper uses the logical tools of Constitutional Economics to analyze the creation of the Euro, considering the entire process as the outcome of a conflict between different rules or, if you will, between different monetary systems, moving from the system of flexible exchange rates to a system of fixed exchange rates and ultimately to the single currency. The conflict between monetary systems has been acted out according to the single states’ collective preference functions, with both full employment and price stability figuring among the weights of said preference functions. The “solution” of the single currency was conceived when the body of information available to the policymakers was “simplified” by the new classical macro-economy taking a hegemonic role.