The Common Law Character of English Charters: Spontaneous Order in the Constitutions of Clarendon (1164)

The Constitutions of Clarendon are presented as an illustration of the common-law character of English charters. Although formally renounced and abrogated shortly after ratification, the Constitutions remain a fundamental basis for the separation of church and state. Analysis of the historical literature reveals that spontaneous order subsumes many kinds of positive law and designed order. The emergence of spontaneous order in common law is described, defined, and contrasted with positive legislation. Spontaneous order allowed secular society to grow and flourish. It is acknowledged that charters played a secondary role in making positive law, and were precursors to modern positive legislation. The implications of positive versus spontaneously evolved law for economic efficiency are discussed. The historical context and aftermath of the Constitutions is presented, and their content is discussed and analyzed from an economic perspective. The key legal problem the Constitutions addressed was the relationship between competing secular and canon-law jurisdictions, which suffered from inherent conflicts-of-interest. This provided economic decision makers perverse incentives. Prior to the Constitutions, the Church was able to act as plaintiff and judge in civil disputes and intimidate litigants by exercising criminal jurisdiction. Finally, the Constitutions are discussed and presented as an example of spontaneously evolved law, which promoted greater entrepreneurial freedom and economic efficiency. JEL classification: K11, M13, N43, P160     

The impact of charter school attendance on student performance

We employ a panel of individual student data on math and reading test performance for five cohorts of students in Texas to study the impact of charter school attendance. We control for school mobility effects and distinguish movement to a charter school from movement within and between traditional public school districts. We find students experience poor test score growth in their initial year in a charter school, but that this is followed by recovery in the subsequent years. Failure to account for this pattern may lead to potentially misleading estimates of the impact of charter attendance on student achievement. Students who remain in charters largely recover from the initial disruption within approximately 3 years, and there is weak evidence that there may be overall gains from charter attendance within this period. Furthermore, students who return to traditional public schools after just 1 or 2 years in a charter do not appear to suffer a lasting negative impact despite their poor average performance in their first year of charter attendance.     

Rationality and intertemporal choice

The alleged problems associated with self-control, hyperbolic discounting and other examples of seemingly irrational intertemporal choice are examined in the context of an evolution-based neurobiological model that emphasizes the role of the biological evolution of big brains and language and the cultural evolution of institutions. There is no utility function in the brain; it has no central-planner, in fact, the brain is a self-organized complex system, a decentralized spontaneous order. This spontaneous order is coordinated, much like an economy, by a distributed network that maintains and makes available the discounted net value of various options to decentralized and specialized areas in the brain when making decisions. Further, that decision making is embodied and embedded in the decision making environment. For humans, an important part of that environment is the social environment consisting of institutions and other components of culture. It was, in part, the evolution of this environment that made long-range planning possible. Additionally, it is very often the lack of embedded experience with the environment that leads to what seems to be irrational intertemporal choices. In fact, under close examination the evidence for consistent irrational intertemporal choice is weak.     

Henry Sidgwick,moral order,and utilitarianism

Abstract

Henry Sidgwick is today remembered as a later nineteenth-century moral philosopher who struggled with his Christian faith, having difficulty reconciling this with an emergent modern and secular philosophy. In this paper, it is suggested that the only accurate part of this statement relates to the century in which Henry Sidgwick lived. It is argued that modern readers lack sensitivity to questions of faith and religiosity that were commonplace in the later nineteenth century, and that to have doubts in an Anglican faith did not necessarily imply any weakening of Christian faith. Furthermore, a misreading of Sidgwick as a moral philosopher in the modern sense neglects Sidgwick's central role in a Moral Sciences Tripos that included logic and political economy. Only after Marshall extracted political economy and political science from the Moral Sciences Tripos in 1903 did that Tripos become the foundation for a new Philosophy Tripos, and it is an error to read that later configuration back into the Tripos that Sidgwick led from 1883 to 1900.     

The knowledge problem,determinism, and <Emphasis Type="Italic">The Sensory Order</Emphasis>

The arguments presented in Hayek's The Sensory Order suggest that the mind/brain is a decentralized spontaneous order. The decentralized nature of decision-making and the central role of classification in perception, cognition, and action, are solutions to the knowledge problem that confronts the system. The nature of this decentralized complex system suggests that the ordering is deterministic and that free will in the sense of a decision-maker being able to stand outside the circle of cause and effect is an illusion. If determinism is correct, how can we hold individuals responsible for their actions? It is argued that the evolution of responsibility, blame and credit are the products of a second Hayekian spontaneous order. Responsibility and the allocation of credit and blame are part of an implicit social contract that facilitates cultural evolution, political freedom, and economic growth. It is responsibility, not the existence of free will, that makes freedom possible.     

The Evolution of the Social Contract

Two transitions in the evolution of the social contract are considered, the first from the dominance hierarchies of the great apes (used as a proxy for our prehuman ancestors) to the egalitarian political structure of non-sedentary hunter-gatherer bands, and the second, to the reintroduction of hierarchical institutions of governance, primarily a result of living in fixed settlements after the inception of agriculture. The first transition was a product of biological and cultural evolution, which brought about big brains, language, higher consciousness, and a lower rate of time preference that enabled early man to sustain an egalitarian social contract and thereby escape the domination that confronted his prehuman ancestors. The second transition was a product of cultural evolution alone. The high costs of enforcing the hunter-gatherer social contract caused it to break down and be replaced by hierarchy when the domestication of plants and animals gave rise to a sedentary existence and increased populations. However, it is shown that the very biological and cultural adaptations that made hunter-gatherer egalitarianism possible were a necessary foundation for the spontaneous creation of complex culture and the evolution of institutions that would once again eventually make freedom possible and economic prosperity possible.     

Culture and the regulation of entry

Does culture affect the manner in which a society regulates the entry of new firms? Our results suggest it does. We find more individualistic countries regulate entry more lightly. We investigate how culture matters presenting evidence of significant interactions between individualism and formal legal and political institutions. Individualism has a greater impact on entry regulation in societies with democratic political institutions or a common law tradition. This outcome is consistent with the idea that culture influences social preference for regulation, and political and legal institutions determine the degree to which those preferences are expressed as policy outcomes.     

The Politics of Capital Flight in the Global Economic Crisis

This paper studies the effects of economic governance and political institutions on portfolio investment during the Global Economic Crisis of 2008–2009. Leveraging a unique cross‐national dataset on portfolio flows immediately following the collapse of Lehman Brothers in September 2008, it shows that countries with “better institutions” – those with more (or less) democratic, more (or less) constrained or more accountable political systems – were no less vulnerable to portfolio outflows than countries with “worse institutions.” However, countries with better governance prior to the crisis – those with better regulatory apparatuses, rule of law, property rights, and those considered less politically risky – experienced lower net portfolio capital outflows after Lehman. Governance is in fact the strongest predictor of portfolio capital flows during the global flight to liquidity, while political institutions perform poorly. The findings shed light onto the political factors that mediated how the collapse of Lehman affected national financial markets the world over, and have implications for literatures on the political economy of foreign investment, as well as for broader topics of institutions, governance, and economic performance.     

IMPACT OF JOINING THE WTO ON CHINA's ECONOMIC, LEGAL AND POLITICAL INSTITUTIONS

Abstract.  This essay applies a historical–institutional approach to assess the impact of WTO membership on China's economic, legal and political institutions. In each case historical and institutional trends are described, and the effects of WTO membership on these trends are examined. The topics include changes in economic structure and the rate of growth of GDP, formal legal institutions and the legal behavior of the Chinese people, and the forces contributing to the development of democratic political institutions in China.     

The determinants of interest rates in microfinance: Age,scale and organizational charter

This study compares the responsiveness of microcredit interest rates with age, scale of lending, and organizational charter. It uses an unbalanced panel of 300 microfinance institutions (MFI s) from 107 developing countries from 2005 to 2015. Three key trends emerge from the results of a 2SLS regression. First, the adoption of formal microbanking practices raises interest rates compared with other forms of microlending. Second, large‐scale lending lowers interest rates only for those MFI s that already hold legal banking status. Third, age of operation in excess of 8 years exerts a negative impact on interest rates, regardless of scale and charter type of MFI . Collectively, our results indicate that policies that incentivize mature MFI s to share their knowledge will be more effective in helping the nascent institutions to overcome their cost disadvantages compared with reforms to transform them into licensed banks. For MFI s that already hold permits to operate as banks, initiatives to increase loan sizes are key strategic pricing decisions, irrespective of the institution's age. This study is original in its differentiation of the impact on interest rates of regulations that promote formal banking principles, credit market extension vis‐à‐vis knowledge sharing between mature and nascent MFI s.     

Culture,legal heritage and the regulation of labor

According to cross-cultural psychologists, cross-country differences in individualism vs. collectivism constitute an important dimension of cultural variation. Legal-economic theorists argue that legal philosophies such as common law and civil law have developed differently over centuries and have persistent effects. In this paper, we argue that the effects of culture and institutions should not be analyzed in isolation from each other, as this disregards their interactions. We merge the two separate literatures on cultural attributes and legal origin theories, and derive a hypothesis regarding their joint effects on labor market regulations. We hypothesize that the effect of individualism on the political determination of labor regulations should be particularly pronounced in more market-oriented economic systems (as in British common law countries) compared to more rigid and bureaucratic state-centered systems (as in French civil law countries). Market oriented economies give individual effort and ability greater room to flourish, which in individualistic cultures yields weaker labor regulations. The effect of individualism should be smaller in state centered systems. Using data on the average rigidity of labor regulations during the years 1950–2004 in 86 countries, we find that the negative effect of individualism on the rigidity of labor regulations is enhanced by the presence of a common law legal system. In fact, individualism has no effect on the rigidity of labor market regulations in civil law countries. Analogously, the negative effect of common law legal origin on labor market regulations is found to be conditional on the level of individualism. Individualism and common law legal systems are complements in the determination of labor regulations.     

The Institution,the Economy and the Market: Karl Polanyi's Institutional Thought for Economists

This paper aims to clarify the logical structure of Karl Polanyi's concept of institution, especially with regard to his most important contribution to political economy—the conception of self-regulating markets as institutions. Although Polanyi did not provide a well-developed concept of institution, this article argues that such a concept exists in his work. Moreover, there is in Polanyi's work a sophisticated institutionalist account of the self-regulating market that has been largely overlooked as Polanyi does not present it explicitly. Analyzing the economy as an institutionalized process, as Polanyi does, reveals that the market is neither a natural nor a spontaneous phenomenon—a conclusion that runs counter to conventional economic thinking. Polanyi's approach enables us to view capitalism (the ‘market society’ in Polanyi's language) through a highly specific cultural fact: the fiction of the self-regulating market. This institutional perspective needs to be reassessed beyond new-institutionalist theoretical constructions.     

The emergence of English commercial law: Analysis inspired by the Ottoman experience

Thirteenth-century England was a commercial backwater whose trade was dominated by foreigners. To accommodate and encourage foreign merchants, England modified its legal system by creating legal institutions that were available to both domestic and foreign traders. Among the most important of these institutions were streamlined debt collection procedures and mixed juries composed of both Englishmen and foreigners. By introducing institutions that treated locals and foreigners equally, England created a level playing field that enabled English merchants to become increasingly prominent in the later Middle Ages. England's ability to modernize its law was facilitated by the secular nature of English law, the representation of merchants in Parliament, and legal pluralism. Medieval England contrasts sharply with the early modern Ottoman Empire. The latter created special institutions for foreign merchants, which eventually put Ottoman Muslims at a competitive disadvantage.     

Endogenous legal traditions and economic outcomes

Outcomes are deeply influenced by the set of institutions used to aggregate the citizens’ preferences over the harshness of punishment, i.e., the legal tradition. I show that while under common law appellate judges’ biases offset one another at the cost of legal uncertainty, under civil law the legislator chooses a certain legal rule that is biased only when he favors special interests, i.e., when preferences are sufficiently heterogeneous and/or political institutions are sufficiently inefficient. Thus, common law can produce better outcomes only under this scenario. To test this prediction, I construct a novel continuous measure of legal traditions for 49 transplants, many of which reformed the transplanted institutions, and I devise an instrumental variables approach dealing with the endogeneity of both legal and political institutions. The evidence I obtain is robust across several strategies, confirms the model implications, and stresses the relevance of distinguishing between proxies measuring only the technological efficiency of the law and those picking up also the citizenry’s satisfaction with its cultural content.     

Sir Edward Coke and the struggle for a new constitutional order

Modern struggles to form constitutional orders based on liberal principles are fraught with risk. There may be little in the way of private reward for those who lead the struggle. Such things as free markets, property rights protection amd freedom to contract are public goods. Ideology is apparently important. At the same time, the successful leader must be equipped with a number of scarce skills, including knowledge of markets and how they operate. Lessons learned from England's 17th century constitutional revolution tell us that constitutional entrepreneurs do emerge. Sir Edward Coke, England's most eminent lawyer of that period, was such a person. Over his lifetime, Coke led an intellectual and political struggle based on his belief that fundamental law came from the people, that kings and parliament were subservient to Common Law and the Magna Charta. These were to be the basis of England's constitution. Coke's legal decisions and arguments contain far more than mere assertion. They reflect impressive understanding of the market process, monopoly restrictions, free trade, and the fundamental force of freedom to contract. His leadership, fueled by an ideological commitment, was coupled with extraordinary intellect. The author expresses appreciation for helpful comments and criticisms to William Breit, Robert Ekelund, Roger Meiners, Robert Staaft, Robert Tollison, Richard Wagner and an anonymous referee of this journal.     

Economic and legal institutionalism: What can they learn from each other?

The main argument of this paper is that both constitutional political economy and institutional legal theory can benefit from adopting certain central notions from each other. On the one hand, the legal notion of validity can help to clarify certain obscurities concerning the mode of existence of institutions in constitutional political economy. On the other hand, the economic notion of voluntary choice can serve as a point of departure for institutional legal theory in developing substantive criteria for the evaluation of legal systems without appealing to natural law ideas. The author wishes to thank Bob Lieshout and Bernard Steunenberg for their comments.     

ACCOUNTABILITY AND CORRUPTION: POLITICAL INSTITUTIONS MATTER

This study uses a cross-country panel to examine the determinants of corruption, paying particular attention to political institutions that increase accountability. Even though the theoretical literature has stressed the importance of political institutions in determining corruption, the empirical literature is relatively scarce. Our results confirm the role of political institutions in determining the prevalence of corruption. Democracies, parliamentary systems, political stability, and freedom of press are all associated with lower corruption. Additionally, common results of the previous empirical literature, related to openness and legal tradition, do not hold once political variables are taken into account.     

Turning values concrete: the role and ways of business selection in local currency schemes

Alternative consumption schemes require the selection of producers and traders according to criteria and through processes that should make alternative values concrete. The way values turn concrete is crucial for the effectiveness of such projects. This paper investigates the ways criteria and processes are defined and their real meanings and uses through the case of associative local currencies. Drawing on the framework of proximities, it analyses local currency schemes as combining proximities (geographical and non-geographical) and selection processes set up for providers wishing to join. Selection processes may be based on a charter, an approval committee and screening criteria. The objectives of the selection, its measures in principle, the way in which it is applied as well as the practical consequences are discussed. Even when charters and formal participatory schemes for selecting providers are established, proximities appear as the keystone of selection and trust.     

Charter school quality and parental decision making with school choice

Charter schools have become a very popular instrument for reforming public schools, because they expand choices, facilitate local innovation, and provide incentives for the regular public schools while remaining under public control. Despite their conceptual appeal, analysis has been hindered by the selective nature of their student populations. This paper investigates the quality of charter schools in Texas in terms of mathematics and reading achievement and finds that average school quality in the charter sector is not significantly different from that in regular public schools after an initial start-up period but that there is considerable heterogeneity. Perhaps more important for policy, however, is the finding that the parental decision to exit a charter school is significantly related to school quality. The magnitude of this relationship is substantially larger than the relationship between the probability of exit and quality in the regular public school sector and consistent with the notion that the introduction of charter schools substantially reduces the transactions costs of switching schools.     

Law and Finance in Transition Economies

This paper offers the first comprehensive analysis of legal change in the protection of shareholder and creditor rights in transition economies and its impact on the propensity of firms to raise external finance. Following La Porta et al. (1998), the paper constructs an expanded set of legal indices to capture a range of potential conflicts between different stakeholders of the firm. It supplements the analysis of the law on the books with an analysis of the effectiveness of legal institutions. Our main finding is that the effectiveness of legal institutions has a much stronger impact on external finance than does the law on the books, despite legal change that has substantially improved shareholder and creditor rights. This finding supports the proposition that legal transplants and extensive legal reforms are not sufficient for the evolution of effective legal and market institutions.