Constitutional Contractarianism

In this paper, I argue that we should restrict fundamentalcontractarian agreements to decision procedures for adjudicatingdisputes over particular assignments of rights. I attempt toshow that neither substantive principles prescribing specificassignments of rights nor specific rights assignments themselvescan be established at the level of the constitutional agreementsby which we move from force to legal procedures to settle ourdisputes. Instead of substantive principles, I make a case forimpartial non coercive procedural principles that promise toeach party to a dispute a more or less equal chance of a favorabledecision. Whenever it is in our mutual interest to save the costof settling disputes by coercion, it is in our mutual interestto adopt impartial procedures to settle these disputes.In this paper, I shall argue that we must justify particularproperty rights in terms of an impartial constitutional contract.I adopt the concept of a constitutional contract from James Buchananand take his perspective as the starting point of my account.For Buchanan a constitutional contract is the basic agreementthat first introduces rights and makes possible both a marketand a collective provision of public goods. For him, the constitutionalcontract is agreed to from an initial position of predation anddefense in which there are no prior constraints on the appealto force and threat-advantage. However, on his view, the costof using coercion to settle disputes normally makes it in ourrational interest to accept a constitutional contract that replacescoercion with non coercive procedures to settle disputes.My paper will have three parts. In the first, I shall argue thatBuchanan is right to suppose a starting point of predation anddefense to establish a rational basis for legal and moral constraintson the use of coercion to settle property rights. However, Ishall make the case that he is mistaken to attempt to establishparticular property rights from that perspective. The constitutionalcontract must be limited to impartial decisionmaking procedures.In the second part, I shall contrast Buchanan's contractarianismwith that of John Rawls and David Gauthier. I shall show thatboth Rawls and Gauthier fail to recognize, as Buchanan does,that we cannot defensibly raise substantive distributive principlesto fundamental constitutional principles. In the third part ofmy paper, I shall build upon the conceptions of impartialityfound in Buchanan, Rawls, and Gauthier in an attempt to formulatethe main requirements of an impartial constitutional procedurefor the non coercive adjudication of disputes regarding rights.My thesis is that a rational consensual resolution of conflictis possible only by deciding property rights by means of impartialconstitutional procedures.     

Freedom and the market

Those who believe that the free market is positively related to both economic efficiency and individual freedom are prone to regard resistance to the establishment of the global market essentially free from any serious sociopolitical constraint as a politically insignificant expression of impatience, ignorance, and hypocrisy. This article attempts to endow the manifestation of discontent with the status quo evident in public protests in Seattle and Washington DC with political significance through explicating it as an expression of a fundamental conflict between economic efficiency and individual freedom inherent in the global implementation of the principle of self-regulating markets. This analysis of the antiglobalization movement is conducted from the perspective of the theoretical foundation of the evaluation of the dynamics of capitalism by Polanyi, Hayek, and Keynes, and its conclusions are brought to bear upon the validity of their contesting views of the relationship between economic efficiency and individual freedom.     

The company you keep: Satisfaction with life,economic freedom,and preference-policy mismatch

We examine the interaction between individual preferences for markets and state-level economic freedom as it relates to Satisfaction with Life (SWL). Fundamental tenets of economic freedom assert that societies free of excessive government involvement are wealthier and, ultimately, happier; individuals who are allowed to pursue self-interest are argued to be more motivated and more productive, and so society as a whole is better off. Though there is substantial empirical evidence that freer societies are wealthier, the evidence connecting economic freedom and happiness is less clear. We explore the relationship between economic freedom and SWL at the individual level. We examine differences between personal preferences for free markets and state policy and how this ‘preference-policy mismatch’ is related to SWL. We then briefly examine the relationship between preference-policy mismatches and individual self-reported voting behavior, including implications for Tiebout sorting. This study is the first to focus on individual economic ideology, i.e. individual level of support for free markets, and SWL in the United States. Combining individual and state level data we offer improvements to prior studies in a number of areas including an enhanced measure of life satisfaction, a richer basis for examining left-right differences than simple political identification, and an examination of the effect of preference-policy mismatches on satisfaction with life. We find significant relationships between SWL and individual support for markets, state-level economic freedom, and preference-policy mismatch. Further, preference-policy mismatch is positively associated with self-reported voting frequency. We find little support for Tiebout sorting.     

Starvation and Social Class: Amartya Sen on Markets and Famines

In his recent work, Amartya Sen assesses markets positively because they contribute to freedom. His work on famines, however, harbours a critical stance toward markets. In this paper, I compare Sen's ‘two views’ of markets and argue that his positive assessment is untenable. Markets can undermine freedom and, to show this, I examine the effects of market-dependence in times of famine; I extend the purview of Sen's analysis to include the manner in which subsistence producers who were once relatively autonomous from markets for their survival become dependent on markets. In conclusion, I examine the normative aspects of Sen's work on famines.     

Knowledge at work: Some neoliberal anachronisms

With a predilection for market solutions, neoliberalism upholds that the individual is generally the best judge of his or her interests. Yet markets are never universally applied as a mechanism of allocation and there are reasons, in principle, why capitalism will always have “missing markets.” Concentrating on the application and appropriateness of neoliberal theory to the workplace, this article argues that firms are not markets, despite some tendencies in modern theory to conflate the two. The employment contract is a key characteristic of modern firms, but neoliberal theory is often silent on the distinction between an employment contract and a contract for services, and largely ignores the asymmetrical rights of authority within contracts of employment. Furthermore, the social nature of knowledge represents a challenge to neoliberal theory and policy, because it sometimes makes it more difficult to define individual property rights. Accordingly, with the growth of the knowledge economy, neoliberalism to some extent is an anachronism.     

Constitutional Choice and Prosperity: A Factor Analysis

Forempirical purposes most studies on the influence of freedom on prosperity across nations use either aggregate measuresof economic freedom combined with a measure of political liberty,or single components of these aggregates to describe the freedom-variable.For a scholar of constitutional economics, both these approachesdo not seem to be satisfactory. From his theoretical viewpointhe would favor an approach that focuses on properties of thepolitico-economic order that can be interpreted as appropriateconstraints for preferred outcomes. Factor analysis is the methodused in this paper to extract from a pool of components thatdescribe freedom two main factors, namely (1) the appropriatenessof the framework in which the market operates, and (2) the degreeof political interventions into the market process. It is shownthat these two factors have great influence on the prosperityof nations.     

Constitutionalism,prosperity, democracy: Transition in Eastern Europe

Eastern Europe is now undergoing three distinct transitions: to markets, to democracy, and to constitutionalism. Under current conditions, the transition to constitutionalism is a logical precondition for the transitions to markets and democracy. To protect both of these, it is especially necessary to develop an “economic bill of rights” for inclusion in the new constitutions. This bill of rights should include the rule of law, protection of private property, freedom of contract, occupational liberty, the right to travel within and without the nation, and a prohibition on government monopolies; other similar provisions should be considered as well. The new constitutions should not include general aspirations, duties, or positive rights. The eventual development of an economic bill of rights—a precommitment strategy designed to promote prosperity and democracy—could constitute a new and important contribution to the theory and practice of constitutionalism. In light of the rapid changes in Eastern European constitutional affairs it should be noted that the final draft of this paper dates from August 1991. Karl N. Llewellyn Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago; Co-Director, Center on Constitutionalism in Eastern Europe, University of Chicago. I am grateful to Jon Elster and Stephen Holmes for valuable discussion, and to Richard A. Epstein and Stephen Holmes for helpful comments on a previous draft.     

The Uneasy Case for the Flat Tax

Social contract theories assume thatbecause personal security and private property are at risk ina state of nature, citizens will agree to grant Leviathan a monopolyof violence. But what is to prevent Leviathan from turning onhis citizens once they have lain down their arms? The socialcontract leaves citizens worse off unless Leviathan can fetterhimself, as constitutional democracies seek to do. Self-bindingfetters are hard to find. We suggest that schemes of progressivetaxation, in which marginal tax rates increase with taxable income,may be useful incentives to realign Leviathan's incentives withthose of his citizens. Income taxes give Leviathan an equityclaim in his state's economy, and progressive taxes give hima greater residual interest in upside payoffs. Leviathan willthen demand higher side payments from interest groups beforehe imposes value-destroying regulations.     

Cognition,competition, and catallaxy in memory of Friedrich August von Hayek

The paper focuses on central elements of the scientific work of Friedrich A. v. Hayek since the 1930s. In a first part, his epistemological position and its implications for his understanding of the tasks of the social sciences are presented as he set them out particularly in theSensory Order (1952). Then, it is shown how his findings in economic theory as well as in the analysis of economic and societal systems are formed by these foundations. His emphasis on the subjectivity and the constitutional limitations of human knowledge is identified as a precondition for the outstanding analytical insights which he gained with regard to the functioning of a market order and the role of institutions in societal development. Furthermore, it is argued that Hayek's enduring campaign for freedom and against the socialist tendencies in welfare states was not simply a matter of personal conviction. It was also the result of his analysis in constitutional political economy which revealed to him that freedom as a normative basis of economic and societal institutions is the key to the explanation of European cultural evolution.     

Liberal constitutionalism,constitutional liberalism and democracy

The tension that is often seen to exist between the ideals of liberalism and of democracy is examined in this paper in light of the distinction between two liberal outlooks at constitutional regimes, namely, on the one side, a liberal constitutionalism that focuses on the need to provide institutional safeguards of individual liberty as private autonomy and, on the other hand, a constitutional liberalism that focuses on the need to respect the freedom of individuals to choose the constitutional environment in which they wish to live. It is argued that a liberalism that consistently extends its fundamental ideal of individual sovereignty to the level of constitutional choice can be reconciled with the basic democratic ideal of citizen sovereignty.     

Property and contract rights in autocracies and democracies

We present and test empirically a new theory of property and contract rights. Any incentive an autocrat has to respect such rights comes from his interest in future tax collections and national income and increases with his planning horizon. We find a compelling empirical relationship between property and contract rights and an autocrat's time in power. In lasting—but not in new—democracies, the same rule of law and individual rights that ensure continued free elections entail extensive property and contract rights. We show that the age of a democratic system is strongly correlated with property and contract rights.     

Robert Brenner on political accumulation and the transition to capitalism

This paper is an immanent critique of Robert Brenner’s writings on the transition from feudalism to capitalism. The concept “immanent” is defined as a logic of implication, according to which a text or theory is evaluated within the terms that it sets for itself, to determine whether its objectives and assumptions are true in the way they are said to be true. Using this method of critique, the paper shows how Brenner’s concept of “political accumulation” undermines his own initial claim that the balance of class forces between lords and peasants determined the long-term trends of preindustrial Europe, in that this concept points toward intralord struggles dominated by military interests. The paper also discusses why Brenner’s account of France’s tax/office state seriously weakens his postulate that “surplus extracting relations” were the “fundamental” relation of fuedalism, on the grounds that office-holding reflected an unequal distribution of property based upon status. Finally, the paper draws out the theoretical implications of these contradictory instances, to delineate ways in which Brenner’s basic theory may be sublated within a more comprehensive account.     

Appropriate contract durations in the German markets for on-line reserve capacity

This paper explores the economic implications of different contract durations in markets for on-line (primary and secondary) reserve capacity in Germany with the crucial feature of separate markets for spot energy and reserve capacity provision. The analysis is based on an equilibrium model developed by Just and Weber (Energy Econo 30:3198–3221, 2008) for reserve markets. It reveals the implicit trade-off for the bidders and implicit interdependencies between the reserve and the spot markets. Even if the markets are not explicitly coordinated, they are interrelated through the dispatch decisions of the power plant owners. The paper concludes that the current German reserve market design is inefficient and should be improved. The results clearly show that shorter periods (with resulting lower variations in overall electricity demand) lead to more efficient dispatch and market results. Not only prices in the reserve capacity markets are expected to be lower, but also spot market prices. As these benefits can be partially reaped by owners of large generation portfolios also under longer contract durations, it discriminates against smaller generation companies and can potentially deter market participation. Further, the paper takes a broader perspective and discusses security concerns against shorter contract durations. It is shown that the opportunity costs character of the reserve market implies sufficient incentives for supplying online reserve capacity. The concerns do not appear to be predominant and it should be possible to manage them appropriately.     

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.     

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.     

Freedom and the Strong State: On German Ordoliberalism

Ordoliberalism is the theory behind the German social market economy. Its theoretical stance developed in the context of the economic crisis and political turmoil of the Weimar Republic in the late 1920s. It is premised on the strong state as the locus of liberal governance, and holds that economic freedom derives from political authority. In the context of the crisis of neoliberal political economy and austerity, and debates about the resurgence of the state vis-à-vis the economy, the article introduces the ordoliberal argument that the free economy presupposes the exercise of strong state authority, and that economic liberty is a practice of liberal governance. This practice is fundamentally one of social policy to secure the sociological and ethical preconditions of free markets. The study of ordoliberalism brings to the fore a tradition of a state-centric neoliberalism, one that says that economic freedom is ordered freedom, one that argues that the strong state is the political form of free markets, and one that conceives of competition and enterprise as a political task.     

Markets and Regulation: On the Contrast Between Free-Market Liberalism and Constitutional Liberalism

A liberalism that does not close its eyes to the constitutional level of choice must seek to extend the same fundamental logic that it applies in its theory of the market to the questions of what the sovereignty of the individual can mean, and how it can be secured, in constitutional matters. The problems that arise with such an extension to the constitutional level may well be more difficult than those that the liberal theory of the market has to deal with, and the conclusions that a constitutional liberalism arrives at may be less determinate that what the free-market approach pronounces. Yet, if these difficulties are inherent in the subject matter, and if the indeterminacy follows from arguments that we are required to accept, then denying them does not seem to be a promising strategy for strengthening the liberal paradigm.     

A libertarian theory of rights and future generations

The central question in preserving the rights of future generations is how to ground a theory of rights that is also acceptable to the present generation, including staunch Republicans, without self-contradiction. Such a theory of rights consists of the three principles of a minimalist liberatarian theory (that of Robert Nozick), and demonstrates that environmental degradation is a violation of this theory of rights; a theory that is compatible with a free enterprise corporate culture. It is shown that no appeal to liberalism is necessary. It is shown that the case is not based on some ideals of justice but on three politically conservative principles that all modern societies accept as being fundamental to the continuation of those societies. Earlier versions of this paper were presented at Cornell University and at Wissenschaftszentrum Berlin für Sozialforschung, Berlin. I would like to thank Dr Udo E. Simonis for his helpful comments, but I alone am responsible for any remaining errors. This research is financed by the Social Sciences and Humanities Research Council of Canada, grant#410-94-1221.     

Adolph Lowe on Freedom,Education and Socialization

The lifework of Adolph Lowe (1893–1995) was greatly motivated by his struggle with the problem of “freedom and order”. This paper explores Lowe's largely overlooked and under-examined writings on education and political philosophy, important components of his “political economics”. Lowe's concern with the socialization function of education is highlighted and related to his notion of “spontaneous conformity, as well as the ideas of Vygotsky on imaginative children's play and C. S. Peirce on habit-change. Taking Gorman's critique of Schutz's conception of freedom as a point of departure, and drawing on the work of C. Wright Mills, Lowe's own conception of freedom is critically examined. For Lowe, the stronger the commitment to community, the greater is the possibility for individual autonomy without the threat of social disruption.     

Capitalism and democracy in the 21st Century: from the managed to the entrepreneurial economy*

 This paper explains how and why the developed countries are undergoing a fundamental shift away from a managed economy and towards an entrepreneurial economy. This shift is shaping the development of western capitalism and has triggered a shift in government policies away from constraining the freedom of business to contract through regulation, public ownership and antitrust towards a new set of enabling policies which foster the creation and commercialization of new knowledge. The empirical evidence from a cross-section of countries over time suggests that those countries that have experienced a greater shift from the managed to the entrepreneurial economy have had lower levels of unemployment.