Social contracts for real moral agents: a synthesis of public reason and public choice approaches to constitutional design

Citizens in contemporary democratic societies disagree deeply about the nature of the good life, and they disagree just as profoundly about justice. In building a social contract theory for diverse citizens, then, we cannot rely as heavily on the theory of justice as John Rawls did. I contend that Rawlsian liberals should instead focus on developing an account of constitutional choice that does not depend on agreement about justice. I develop such an account by drawing on the contractarian approach to constitutional choice pioneered by public choice theorists, especially James Buchanan. With some modifications, public choice can help identify mutually justifiable constitutional rules based on the extent to which these constitutional rules produce appropriate laws under normal conditions. This new, synthetic approach to constitutional choice also helps to explain the moral significance of contractarian agreement for the public choice theorist.     

Economics and the Supreme Court: The Case of the Minimum Wage

In the United States, laissez-faire has been the policy advocated in good times, while social legislation has been called for during crises. One instance of this dichotomy concerns the transformation of the American understanding of minimum wage laws during the early 20^th century. During this time, the view of minimum wage laws changed from one that viewed such laws as theft, to one that saw such laws as being required for distributional justness. We examine the legal-historical debate concerning whether the Supreme Court renounced its policy of laissez-faire individualism in its 1937 ruling finding the minimum wage law constitutional, arguing that it did not. We investigate the free market standard that the Court used to find minimum wage laws unconstitutional in 1923. We demonstrate how the economic conditions of the Depression, coupled with the development of economic theory, explain how the Court eventually found the minimum wage law constitutional.     

Causal Laws,Functional Relations and Tendencies

This paper draws upon critical realism to argue that the widespread use of functional relations and laws in economics is misconceived. This misconception stems from the inappropriate use of a deductivist mode of theorising; an empirical realist ontology; and a notion of causality as mere regularity or constant conjunction, all of which are associated with functional relations and laws. Not only does critical realism identify the cause of the misconception, it sustains an alternative causal/explanatory mode of theorising; a stratified ontology; a notion of causality as powers; and an alternative notion of law as tendency. Marx's ideas on the tendencies to employment and unemployment are used as an example of economic theory consistent with these alternatives.     

知识产权涉外担保融资的法律适用

在信息经济社会，知识产权成为企业担保融资的主要标的。在知识产权国际担保融资中，虽然担保合同作为从合同，适用主合同的准据法，但在担保的登记和效力实现问题上，由于各国法律制度的差异，必须确定具体的法律适用。     

Organic constitutions and common law

Constitutions may be viewed as purely political instruments developed by wise and strong leaders and imposed on a loosely organized society. The alternate view taken in this paper sees a nation's constitution as being rooted in the norms of individuals that form communities and states. Constitutions grow from within; they are not imposed from outside. The history of constitutional development in England is part and parcel of the history of Common Law, which growing informally from small groups finally encompassed the nation-state to form a basis for constitutional government. The integrity of the law was rooted in the integrity of the individuals that formed the constitutional community. Alumni Professor of Economics, Clemson University. The author expresses appreciation to anonymous referees of this journal and to Liberty Fund, Inc. for supporting a conference during which the ideas for this paper were formed. He acknowledges an intellectual debt owed to Robert Staaf for ideas reflected in this paper.     

Constitutional craftsmanship and the rule of law

Is “rule of law” anything more than a fictional allusion? After all, “law” is an abstract noun, and abstract nouns can’t rule. Only people can rule. The conceptual framework of constitutional political economy invokes a central distinction between choosing rules and playing within those rules. Claims on behalf of a rule of law require a sharp distinction between the enforcement of agreed-upon rules and arbitrary changes in those rules. This paper explores whether there are constitutional arrangements under which it could reasonably be claimed that governance reflects a deep level operation of a rule of law despite the surface level recognition that it is men who rule. With the exercise of rulership being a social process and not a matter of individual action, the network pattern through which rules are enforced takes on particular significance. In particular, polycentric architectures are generally more consistent with rule of law than monocentric architectures.     

Gordon Tullock’s implicit analytical history of government

Gordon Tullock wrote widely on the emergence and effects of political and legal institutions. Although he did not provide an analytical narrative, perse, his work provides explanations for the emergence of the state, civil law, constitutional law, and democracy. When his work is organized as a historical narrative, it becomes clear that conflict, rather than trade or cooperation, are at the core of Tullock’s approach to constitutional political economy.     

Politics as exchange: the classical liberal economics and politics of James M. Buchanan

James Buchanan advocated the market mechanism for allocating resources because it is based on voluntary exchange. People engage in market transactions only when they believe they benefit from doing so. Buchanan depicted the political process the same way. People engage in collective activities to accomplish together ends that they would be unable to accomplish individually, or through bilateral exchange. Buchanan’s vision of politics as exchange is a normative framework for evaluating the rules within which political activity takes place. Rules that meet the criterion of agreement are desirable constitutional rules, and Buchanan recognized that not all government activity satisfies that criterion. Buchanan is the father of the subdiscipline of constitutional political economy, and his “politics as exchange” approach provides the foundation for much work in that area. Buchanan has created a foundation that is rich in ideas, but leaves behind a number of unanswered questions that point the way toward a further development of the research program in constitutional political economy.     

The role of constitutions on poverty: A cross-national investigation

We construct and use a new historical data set on economics and social rights from the constitutions of 195 countries and an instrument variable strategy to answer two important questions. First, do economic and social rights provisions in constitutions reduce poverty, measured as headcount income and health outcomes? Second, does the strength of constitutional language of the economic and social rights matter? Constitutional provisions can be framed either more weakly as directive principles or more strongly as enforceable law. Our results suggest three findings. First, we do not find an association between constitutional rights generally framed and poverty. Second, we do not find an association between economic and social rights framed as directive principles and poverty. Third, we do find a strong negative association between economic and social rights framed as enforceable law and poverty when we use legal origins as our IV. These results persist for indices of constitutional rights and also when we restrict the sample to non-OECD countries. The policy implication is that constitutional provisions framed as enforceable law provide effective meta-rules with incentives for policymakers to initiate, fund, monitor and enforce poverty reduction policies.     

宪法学的知识界碑——政治学者和宪法学者关于制宪权的对话

制宪权与基础规范是宪法学知识疆域的同一界碑的两面,遮蔽制宪权的那一面,宪法的效力便寄托在基础规范这个纯粹的理智虚拟之上。引进制宪权概念,可以直接论证《共同纲领》作为新中国宪法的正当性,诠释新中国的建国时间。借助于“制宪权——宪定权”的二分法,宪法学可以形成一个清晰的中国政治结构图,辨识中国的立宪时刻,阐释“改革宪法”的内在悖论,同时可以嘹望宪法实施的远景,择选合适的宪法守护者。     

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.     

CLEAN INDOOR AIR LAWS AND THE DEMAND FOR CIGARETTES

This paper empirically tests the effect of clean indoor air laws on smoking. Public place clean indoor air laws restrict cigarette smoking in public places such as restaurants. Private place clean air laws regulate smoking in private work places as well as in public places. This study uses a time series of cross sections of the 50 states of the United States and Washington, D.C., from 1975 through 1985, to estimate single equation and simultaneous equation models of cigarette demand. The single equation results indicate that both the public place law and the private work place law have a negative effect on cigarette demand. However, a test for endogeneity shows that the enactment of clean indoor air laws is a function of cigarette demand. Results from a simultaneous equations model indicate that the public place law has a significant negative impact on cigarette demand, while the work place law has no effect on cigarette demand. Although these results demonstrate that only states with low levels of smoking have passed work place clean air laws, the results do not imply that the level of smoking would not decrease if such a law were imposed in all states.     

中国宪法中的不成文宪法——理解中国宪法的新视角

本文从中国宪法文本与宪政实践之间的背离问题入手,提出了从不成文宪法的角度来理解中国宪政秩序的新思路。基于对英美宪法学说与宪政实践的分析,作者区分了古典的政制与现代的宪法律、政治宪法与法院宪法,进而主张任何国家的宪政运作实际上都依赖不成文宪法,从而奠定不成文宪法的法理学基础。在此基础上,文章选择中国宪法中关于国家建构中四个关键性问题,着重探讨中国不成文宪法的四个主要渊源,即成文宪章、宪法惯例、宪法学说及宪法性法律,并呼吁宪法学应当从中国现实的宪政生活中提炼具有普遍意义的宪政原理和制度。     

James M. Buchanan’s contractarianism and modern liberalism

This paper contrasts Buchanan’s contractarian–constitutional liberalism with Hayek’s evolutionary liberalism and Rothbards free-market liberalism as representative branches of the classical liberal tradition. While Hayek and Rothbard focus on individual liberty as private autonomy, Buchanan posits that individual sovereignty should be recognized as the fundamental normative premise of liberalism. He insists that a consistent application of this premise requires liberals to respect individuals as sovereigns not only in their capacity as private law subjects but also at the constitutional level of choice where, as sovereign citizens, they choose, jointly with their fellow citizens, the rules under which they wish to live. It is argued that by supplementing the notion of individual liberty as private autonomy with the concept of individual sovereignty in constitutional matters Buchanan lays the theoretical foundation for complementing the well-developed liberal theory of the market with a consistent liberal theory of democracy.     

RELATIONSHIP BETWEEN ILLICIT DRUG ENFORCEMENT POLICY AND PROPERTY CRIMES

Some justify the law enforcement emphasis on controlling illicit drug markets by contending that drug users attempting to finance their habits often are responsible for property crime. Yet, in Florida at least, the increased effort to control drug markets has been accompanied by increasing property crime. The fact is that law enforcement resources are scarce, and many resources now being devoted to enforcing drug laws have been shifted away from enforcing laws pertaining to other crimes. This has reduced deterrence for property crime and, as a result, such crime has increased. Thus, the resource reallocations accompanying strong drug law enforcement lead to more property crime.     

Public justification and democratic adjudication

Contractualists seek to publicly justify moral principles, but it seems doubtful that a set of specific principles or policies can be definitively justified. In this sense, the contractualist project has an indeterminate result: the precise content of liberal morality is open to reasonable dispute. Liberal citizens thus find themselves disagreeing about the demands of liberal morality. They require, as Locke argued, an umpire to resolve their disputes. This paper analyzes what is required of such an umpire, and then employs a four-stage argument to show that constitutional representative democracy is the uniquely justified umpiring procedure for resolving these disputes. Democratic politics, on this view, is the continuation of ethical dispute by other means. I would like to thank Fred D'Agostino, William Nelson and Jonathan Riley for their very helpful written comments. I also greatly benefitted from discussions with Julian Lamont, Loren Lomasky, Philip Pettit, Jeremy Shearmur and Stuart Warner and from Daniel Shapiro's response to an earlier version of this paper. My thanks too to the journal's readers.     

Standards policy and international trade: Multilateralism versus regionalism

We develop a simple model of policy coordination on domestic standards and examine whether domestic standards policy can lead to regional and multilateral harmonization of standards under the principle of national treatment. This paper focuses on mandatory product and process standards affecting the characteristics of a final good that control negative consumption externalities (e.g., vehicle emissions control and safety standards, restrictions on the use of pesticides for agricultural goods, and safety standards for electrical products). Only the products that meet a country's national standards are allowed to circulate in that country's market. Raising standards reduces negative externalities caused by consumption of a traded good but increases firms’ costs. We use the core as the solution concept. A standards regime is considered to be in the core if it is not blocked by any coalition within countries. The main finding is that a multilateral agreement on standards that maximizes world welfare is only in the core if externalities are local or slightly transboundary. Otherwise, only a regional agreement on standards is in the core. As extensions, we consider many and asymmetric number of firms, asymmetry in market size, fixed costs for different standards, and a multilateral agreement on different standards.     

Enforcing Constitutional Constraints

I examine the enforcement of constitutional constraintson government. Citizens must be able to identify and prevent(or correct) observed violations of the constitution to successfullyenforce constraints. Identification requires specialized knowledgenecessitating employment of experts in constitutional law. Collectiveaction and coordination problems can also plague constitutionalenforcement efforts. I argue that judicial review is a relativelyefficient enforcement mechanism which substantially mitigatesthese problems.     

Hayek on corporate social responsibility

Hayek published a piece in 1960 that criticized corporate social responsibility as a norm for economic organizations, although he regarded corporate actions to be subject to essentially the same moral rules as individual action. This article identifies and reorganizes Hayek’s criticisms of social justice, the rule of law and morality, his comparison of the open society and the closed society, and his treatment of charity and altruism. The aim is to clarify the Hayekian perspective on CSR. These considerations explain why the ‘social’ perspective on responsibility is considered dangerous in a free society, how to separate legal compliance and morality from concerns about social justice.