From contract to mental model: Constitutional culture as a fact of the social sciences

This paper develops the concept of constitutional culture—the attitude, thoughts, and feelings about constitutional constraints and the nature, scope, and function of constitutionalism. Constitutional culture is approached as a complex emergent phenomenon bridging Hayekian cognitive and institutional insights. It can be studied as a mental model, a series of expectations and understandings about the constitutional order, how it is, and how it ought to be. The “map” and “model” approach from Hayek’s Sensory Order (1952) is employed to understand how individuals and (cautiously) groups of individuals at the national level approach constitutionalism. This paper goes beyond the more traditional one-size-fits-all approach where all individuals respond uniformly to incentives, as provided by the constitution qua contract. Instead, constitutionalism is tied up in the individual’s vision of the world, that is, what Hayek (1948) labels “the facts of the social sciences.” The paper concludes with four areas where constitutional culture can further the insights of constitutional political economy: comparative political economy, constitutional stickiness, constitutional maintenance, and the new development economics.     

Toward a naturalistic foundation of the social contract

This paper delivers a step toward a naturalistic foundation of the social contract. While mainstream social contract theory is based on an original position model that is defined in an aprioristic way, we endogenize its key elements, i.e., develop them out of the individuals’ moral common sense. Therefore, the biological and social bases of moral intuitions are explored. In this context, a key adaptation during evolution was the one that enabled humans to understand conspecifics as intentional agents. Since these behavioral aspects are considered to be an exaptation, they are not amenable to direct genetic explanations or to rationality-based approaches.

论商法的私法本质

商法在本质上是私法,与民法一起构成完整的私法体承。笔者从公法、私法的区别入手,阐明商法的私法本质,并从商法的公法化趋势阐明,现代商法虽然具有了某些公法性质,但这并不改变商法的私法本质。     

The institutions of international treaty organizations as evidence for social contract theory

Treaty organizations are formed via voluntary contracts among national governments that address policy issues of mutual concern. As such, treaty organizations provide evidence about the kinds of institutions that might be adopted via social contract. This paper develops a theory of the design of treaty organizations and examines the domains of authority and decision-making procedures of 22 treaty organizations to determine if any general traits are in evidence. It turns out that most treaty organizations rely upon unanimity or supermajorities for their major decisions and usually have quite narrow (bounded) policy domains.     

A social contract approach to sustainability

This paper asks whether it is possible to derive a concern for future generations (“sustainability”) from an account of the firm as a social contract (SC) among its stakeholders. Two aspects of a leading SC model of the firm limit its usefulness for an analysis of sustainability. First, the stakeholders provide investments to the firm over time. Second, the relationship between contemporaries and future generations is marked by asymmetries of power and knowledge that need to be considered while reconstructing the SC today. I discuss three reformulations of the SC that are all, in principle, capable of introducing within the SC a concern for future generations. The first describes the contractors as heads of families. The second envisages a grand meeting of stakeholders of all generations. The third, which I find most defensible, views the SC as an ahistorical agreement reached behind a thick veil of ignorance. This agreement is based on John Rawls’s norm of reciprocity, whereby the stakeholders adopt today the decision they wish all previous (and future) generations had made regarding the rate of consumption of natural resources and emission of pollutants.     

On the optimal social contract: Agency costs of self-government

In a typical study of political economy, citizens are regarded as the principals, and government as the agent. In contrast, classical theorists of democracy such as Jean-Jacques Rousseau and James Madison were deeply interested in the dual nature of people; they are the principals (citizens sharing the sovereign power) and, at the same time, the agents (subjects under the laws). Government, in their framework, is an intermediate body which helps people solve their self-control problem. Equipped with tools of modern economics, this paper explores the classical problem to see how economic development and political institutionalization relate to the structure of government and the quality of public sector. In particular, I consider repeated games with a large population and incomplete information, in which players decide whether to sacrifice private consumption to provide public goods. Because both people and the executive of the public projects are subject to moral hazard, the people spend resources to monitor the executive and the people themselves. The optimal self-enforcing contract, which can be interpreted as an efficiency upper bound of political systems, is characterized. An analysis of the contract shows that as a country gets more economically developed and politically institutionalized, the agency problem on the people’s side becomes negligible and that poor economic performance of a country might prevent the citizens from establishing a more efficient public sector.     

Poverty as social deprivation: a survey

The concept of poverty is discussed using qualitative and quantitative measures as an indicator for social deprivation. Poverty can be absolute, relative, income based, consumption based, or entitlement based. The variation in the concept of poverty reveals its dimensionality. However, when closely examined, these dimensions are seen to be conceptually interrelated and complementary rather than substitutable. The concept used to define poverty determines the methods employed to measure it. Composite indicators can hide important policy messages inherent in their constituent variables.     

Crafting social rules: Common law vs. statute law,once again

While a considerable literature has arisen seeking to compare the economic efficiency of common law and statute law processes, some scholars have argued that these efforts are misplaced because what should be assessed is not efficiency but stability of expectations. This paper argues that any generic comparison of common law and statute law must be inconclusive, because there is no such thing asthe common law or statute law process. Rather, there are many particular processes, and any claim based on a comparison of generic alternatives will falter because it will fail to reflect essential institutional detail. I am grateful to Charles K. Rowley and Viktor J. Vanberg for valuable comments on an earlier version of this paper, and to the Lynde and Harry Bradley Foundation for its continuing support of my scholarly efforts. I am also grateful to Robert J. Staaf for advice and encouragement on many occasions over the years, traces of which, I am confident, are evident here.     

Limited observability as a constraint in contract design

Limited observability is the assumption that economic agents can only observe a finite amount of information. Given this constraint, contracts among agents are necessarily finite and incomplete in comparison to the ideal complete contract that we model as infinite in detail. We consider the extent that finite contracts can approximate a complete contract. The objectives of the paper are: (i) to identify properties of agents’ preferences that determine whether or not finiteness of contracts causes significant inefficiency; (ii) to evaluate the performance of finite contracts against the ideal optimal contract in a bilateral bargaining model.     

劳动合同法的成本效应分析

很多企业家担心劳动合同法实施后会增加企业成本,因此不少企业赶在该法实施之前采取规避措施.本文通过广泛企业调查,对劳动合同法的成本效应进行了实证分析,发现劳动合同法实施后带来的成本增幅存在较大差异.从规模角度看,对小规模企业影响较大;从不同所有制形式看,对私营企业影响较大;从行业看,对服务业、建筑业等行业的影响较大.文章建议从三方面完善劳动合同法的实施.     

《劳动合同法》实施后的劳动关系再变革

<劳动合同法>不仅仅是保护劳动者的,而且是通过保护劳动者来构建一个规范的和谐的企业劳动关系,促进员工和企业共同发展,实现劳资双赢的.从劳动关系的平衡方式、企业用工制度的规范途径以及和谐劳动关系的构建策略三个方面论述<劳动合同法>,是<劳动法>等相关法规在适应新形势、新发展下的变化的补充,可以加深对<劳动合同法>的理解和应用,从而实现劳动力资源的有序流动和合理配置.     

国际工程合同的评析与借鉴

国际工程合同为我们提供了建造合同、设计和建造合同、EPC/交钥匙合同等多种可供选择的工程承包模式,探讨国际工程合同的优势和缺陷,明确其应用范围,对于克服我国工程承包合同存在的内容简单;操作性不强等问题有积极的意义。     

国际仲裁及其他

国际仲裁FIDIC合同第67款全部与仲裁有关。除前面所提的第67.1款的咨询工程师准仲裁和第67.2款的友好解决尝试外,第67.3款国际仲裁也是一条非常有实际意义的条款。第67.3款〔仲裁〕有关以下方面的任何争端：a.咨询工程师的决定（如果有的话）,未能根据第67.1款规定成为最终决定并具有约束力;以及b.在第67.2款规定的期限内尚未达成友好解决;除非合同中另有规定,均应按国际商会的调解与仲裁章程,由据此章程指定的一名或数名仲裁人予以最终裁决。上述仲裁人（们）有权解释、复查和修改咨询工程师对争端所做之任何决定、意见、指示、确…     

Overconfidence as a social bias: Experimental evidence

The overconfidence bias is discussed extensively in economic studies, yet fails to hold experimentally once monetary incentives and feedback are implemented. We consider overconfidence as a social bias. For a simple real effort task, we show that, individually, economic conditions effectively prevent overconfidence. By contrast, the introduction of a very basic, purely observational social setting fosters overconfident self-assessments. Additionally, observing others’ actions effectively eliminates underconfidence compared to the individual setting.     

Antidumping law as a collusive device

Abstract. In the United States many antidumping petitions are withdrawn before the investigations are completed. Prusa (1992) argues that petitions are used by domestic industries to induce foreign industries into collusive agreements. In his model, all antidumping petitions should be withdrawn, which is not the case. This paper provides a model in which only some petitions are withdrawn. Withdrawal depends on two key parameters: coordination cost and bargaining power of domestic and foreign industries. A new data set is constructed to test the model on the U.S. experience for the period 1980–97. The econometric analysis supports the theoretical conclusions of the model. JEL classification: F13; D43     

国际工程合同的评析与借鉴

国际工程合同为我们提供了建造合同、设计和建造合同、EPC/交钥匙合同等多种可供选择的工程承包模式,探讨国际工程合同的优势和缺陷,明确其应用范围,对于克服我国工程承包合同存在的内容简单;操作性不强等问题有积极的意义.     

International law as a negotiation tool in Banking Union; the case of the Single Resolution Fund

EU’s response to the recent Euro-crisis has involved a mixture of EU and international law, with the latter being linked to all the arrangements that may have fiscal implications for national Member States. The SRF embodies all the controversial characteristics of Banking Union. This article illustrates the legal implications that this political choice creates, and how the interrelation between the SRM, the SRF and the ESM, allows leading economies, including Germany, to control the resolution framework both before and after crisis. This raises questions as to the direction that European Integration is taking and its highly nationalised character.     

The evolution of sanctioning institutions: an experimental approach to the social contract

A vast amount of empirical and theoretical research on public good games indicates that the threat of punishment can curb free-riding in human groups engaged in joint enterprises. Since punishment is often costly, however, this raises an issue of second-order free-riding: indeed, the sanctioning system itself is a common good which can be exploited. Most investigations, so far, considered peer punishment: players could impose fines on those who exploited them, at a cost to themselves. Only a minority considered so-called pool punishment. In this scenario, players contribute to a punishment pool before engaging in the joint enterprise, and without knowing who the free-riders will be. Theoretical investigations (Sigmund et al., Nature 466:861–863, 2010) have shown that peer punishment is more efficient, but pool punishment more stable. Social learning, i.e., the preferential imitation of successful strategies, should lead to pool punishment if sanctions are also imposed on second-order free-riders, but to peer punishment if they are not. Here we describe an economic experiment (the Mutual Aid game) which tests this prediction. We find that pool punishment only emerges if second-order free riders are punished, but that peer punishment is more stable than expected. Basically, our experiment shows that social learning can lead to a spontaneously emerging social contract, based on a sanctioning institution to overcome the free rider problem.     

文字交往为准

FIDIC合同特别强调的一条就是所有交往以文字为准,绝不能轻信“一言为定”,这点很重要。文字记录是一种永久性的记录,它在项目管理的过程中属令人信服的资料,比口头交往要准确和有效得多,而且可以在事后反复引用。FIDIC合同第1.5款和第2.5款里都强调一切必须书面往来,包括业主、咨询工程师给承包商的函件,承包商给他们的函件等。另外,任何人都不得无故扣压或拖延有关文件的传送。要注意一事一函、简明扼要、思路清晰、符合逻辑、突出事实,尽量使用工程及法律用语,同时描述用词不能太笼统,不能出现前后矛盾的情况。第1.5款〔…     

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.