The Nature of the State and the State of Nature: a Comment on Grady & McGuire's Paper

In 'The Nature of Constitutions', Mark Grady & Michael McGuire provide a model of the evolution and purposes of constitutions as arising to minimize appropriation by dominants of subordinates. This Comment builds on Grady & McGuire's article in three ways. First, it supplements their analysis by operationalizing a model of constitutional evolution that views constitutions as arising out of the conflict of competing high-ranking individuals to preserve their own authority. From this clash of self-interest of dominant individuals, constitutions are born. This predicts that constitutions will not simply tame all forms of appropriation, but will also hard-wire some forms of appropriation behavior into the permanent constitutional structure. Second, it examines the American constitution in light of this model to show how that constitution reflects the mixture of appropriation and appropriation-taming behavior. Third, this Comment argues that the breakdown of constitutionalism in the United States this century can be explained by a failure to fully appreciate the purposes of constitutionalism in a biological framework.     

回顾“82宪法”及其社会主义宪政思想——纪念现行宪法颁布30周年

＂宪政＂是民主与法制的完美结合。＂82宪法＂突出了＂政治模式归依生活秩序＂与＂制度理性软化阶级专政＂两项特征。前者强调权利实现,后者意味权力限制。它们分别在＂公民权利的具体化与人民代表大会制度的发展＂和＂党政分开与依法执政行政＂方面得以落实。这些在当时蕴含着新意而于当下成为了中国宪政的趋势和重心。     

Oil,Laws, and Female Labor Force Participation

Despite the rapid rise of women’s education and the fall of their fertility rates in the Middle East and North Africa (MENA), female labor force participation (FLFP) rates remain low. This paper argues that oil and gas rents and Islamic family law jointly matter. Controlling for country and year fixed-effects in a long panel dataset, it shows that per capita oil and gas rents reduce FLFP rates in countries with Islamic family law more than others. The results are robust to econometric methodology and to controlling for the interaction of rents and all other time-constant factors that are common across the MENA region, such as culture, social norms, and institutions. Moreover, the results cannot be replicated by substituting historical plough use, a strong predictor of gender discrimination, in place of Islamic family law. Policy implications are discussed.     

How ‘Islamic’ is Islamic Banking?

Islamic Banks hold well over US $700 billion in assets and are growing at over 15% p.a. Islamic Banking and Finance (IBF) involves wider ethical and moral issues than simply ‘interest-free’ transactions. Its advocates argue that these make it more economically efficient than conventional banking and promote greater economic equity and justice. To what extent, then, do actual Islamic Banking practices live up to the ideal, and how different are they from conventional banking? A preliminary investigation shows that, three decades after its introduction, there remain substantial divergences between IBF's ideals and its practices, and much of IBF still remains functionally indistinguishable from conventional banking. This runs counter to claims by IBF advocates that it would rapidly differentiate itself from conventional banking. However, despite not providing an alternative to conventional banking and finance, IBF does strengthen a distinctly Islamic identity by providing the appropriate Islamic terminology for de facto conventional financial transactions.     

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.     

States and Caliphates

ABSTRACT

At the end of June 2014, Abu Baqr al-Baghdadi, the leader of what was to become Da’ish or the Islamic State, announced at the main mosque in Mosul the creation of an ‘Islamic caliphate’ with himself as caliph. With its creation, he announced, the division of the Middle East, forced upon the region by the 1916 Sykes–Picot agreement, was ended, to be replaced by a territorially limitless caliphate for all Muslims. Despite the obvious political rhetoric that the announcement involved, al-Baghdadi’s aspirations raised interesting questions of historical and legal interpretation. Quite apart from what the Sykes–Picot agreement actually established, to what extent, for instance, is there an innate contradiction between visions of state and boundary in international law and the Islamic concept of the caliphate? How have those concepts evolved over the past century and how inimical are contemporary views of ‘the caliphate’ to established principles of territorial delimitation? And, to what extent do the actual territorial delimitations of Middle Eastern states reflect pre-colonial patterns of spatial division rather than simply the consequences of colonial imposition? How distinct, in short, are the apparently opposed concepts of state and caliphate in the contemporary world? This article will attempt to show that the points of similarity between them are probably far greater than is usually recognised.     

自然权利·政治正当性·宪政——西方宪政民主政体的理念脉络探析

本文从政治哲学角度考察自然权利、政治正当性与宪政三要素的基本涵义及其逻辑关系，意在探析西方宪政民主政体的理念脉络。文章的基本论点是，在西方政治体系中，自然权利理念不仅为统治与被统治关系的政治正当性提供根本依据，更作为宪政民主政体的基本规范为宪政、民主及法治的正当程序奠定基础。     

We start from here

As James Buchanan often asserted, in constitutional design “we start from here” which is to say we design a constitution to fit the institutions, social practices and so forth that we already have. Comparison of the complicated case of the US constitution and the failed attempt at constitutionalism in contemporary Egypt suggest that many societies are not yet ready for serious constitutional design. The English civil wars were about religion; the US constitution ignores religion and thereby avoids the grim conflict of church and state.     

Should Bangladesh Export to Countries with Better Institutional or Comparatively Similar Institutional Form?

Using panel data for the years 2006–2015, this study empirically investigates the effect of rule of law as an institution on Bangladesh's exports to 28 European Union countries (EU28) based on gravity model analysis. Two-step econometric results suggest that institutional rule of law is strongly associated with Bangladesh's exports, and institutional quality provides evidence of this significant effect. Furthermore, exports of Bangladesh are driven by economic size, market size, and the real exchange rate as well as rule of law. These results are suggestive of an important joint role for both trade and institutions in the long run.     

构建我国纳税人诉讼制度的理论基础

纳税人诉讼制度是公民财政监督权的具体体现,是实现财政民主与财政法治的重要途径。文章逐次分析了纳税人诉讼制度的政治学、经济学以及法学基础,指出“税收契约”、“税收价格”和“．税收债权债务理论’’都是纳税人诉讼赖以建立的理论基础,而宪法中关于人民主权、财产权、监督权的规定是纳税人诉讼得以建立的直接依据。     

Islamic Banking in Malaysia: Unchartered Waters

This paper explores the Islamic banking business in Malaysia since its beginning in 1983. The Islamic banking sector has achieved its target of 20% market share in assets and deposits in 2010. To boost the industry's competitiveness and efficiency, the demands of the market forces will have to be delicately balanced with the dictates of the Shari'ah. The search for niche Islamic banking products warrants enhancements in the current regulatory, legal, and fiscal infrastructure for Islamic banking, without which these products cannot be a viable alternative to the conventional ones. While the prevailing infrastructure is conducive to Islamic banking products that hold similar characteristics with interest‐bearing loans, Shari'ah compliance can be a futile exercise when the purpose of the law (maqasid al‐shari'ah) is overlooked, for there is much more to Islamic banking than the elimination of interest.     

The co‐development of economies and institutions

In this study, we model the Schumpeterian growth theory in a simple discrete‐time framework in which both economies and institutions need to be developed. Individuals need to borrow from an imperfect financial market to develop an economy. A government can adopt two potential strategies for improving the borrowing capacity of individuals and, as a result, enhancing economic performance: ‘the rule of law’ and ‘industrial policies’. We interpret market‐oriented reform in transition economies as a shift from ‘industrial policies’, exemplified at the extreme by the traditional planned economy, to ‘the rule of law’. The presented model shows that both strategies could be the best choice at different stages of development.     

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.     

《信访条例》立法缺陷评析

2005年的《信访条例》存在重大立法缺陷。其一,信访权利实质上是宪法赋予公民的直接监督权,在没有最高国家权力机关有关法律规定作为立法依据或经最高国家权力机关授权的情形下,行政法规无权对公民的直接监督权进行法律规制;其二,《信访条例》有许多明显违背中国宪法的条款规定,对宪法确立的人民代表大会制度和社会主义法治原则构成重大侵蚀;其三,信访工作的属地管理原则有违一般的逻辑常识,不但不利于信访困境的解决,反而有可能积累、加剧社会矛盾,同时,条例对违反相关规定的行政机关及其公职人员的处分主体机关规定模糊不清,表明信访监督机制仍不够完善,不利于建立畅通的信访秩序。     

China's Post-Listian Rise: Beyond Radical Globalisation Theory and the Political Economy of Neoliberal Hegemony

While China's rise has been much discussed, its meaning continues to be contested. This is true in radical international political economy, where, for example, it was the subject of (often polarised) debates between Giovanni Arrighi and David Harvey prior to Arrighi's death in 2009. This reflected a broader debate in IPE between development theory and radical globalisation analysis. The key point of contention is whether China's rise represents a challenge to or further consolidation of neoliberal hegemony on a global scale. This article critically scrutinises some of the key assumptions of the radical globalisation approach, specifically, that China represents another form of the ‘competition state’ whose development aspirations have been radically constrained by global ‘new constitutionalism’ and American monetary power so as to conform to neoliberalism. Deploying a structurationist approach to global governance and an eclectic/regulatory analysis of the Chinese state, I argue that China has challenged neoliberalism by projecting its growing power through constitutionalised global governance. In the face of (declining) American power, global constitutionalism has provided an opportunity structure that may help China consolidate its long-term strategy of consensual development. Far from anchoring ‘neoliberal hegemony’, global economic governance is increasingly central to its unravelling.     

Does Benford’s Law hold in economic research and forecasting?

First and higher order digits in data sets of natural and socio-economic processes often follow a distribution called Benford’s law. This phenomenon has been used in business and scientific applications, especially in fraud detection for financial data. In this paper, we analyse whether Benford’s law holds in economic research and forecasting. First, we examine the distribution of regression coefficients and standard errors in research papers, published in Empirica and Applied Economics Letters. Second, we analyse forecasts of GDP growth and CPI inflation in Germany, published in Consensus Forecasts. There are two main findings: The relative frequencies of the first and second digits in economic research are broadly consistent with Benford’s law. In sharp contrast, the second digits of Consensus Forecasts exhibit a massive excess of zeros and fives, raising doubts on their information content.     

湖湘文化对青年毛泽东法律思想的影响

毛泽东青年时期的文章和书信,对法律有着大量的论述,蕴涵着丰富的法律思想和法理,涉及了宪法,婚姻法、经济法等众多部门法领域。其法律思想也经历了一个曲折发展的过程,其间,“善法恶法论”、“民治”观点等清晰可见,“宪政”和“法治”的法律理念已依稀可辨。湖湘文化在四个方面深刻影响着青年毛泽东的法律品格。     

Sukuk vs. conventional bonds: A stock market perspective

The last decade witnessed a wide expansion of Islamic finance in Middle Eastern and Southeast Asian countries. Sukuk issues, which are Islamic financial instruments structured to replicate the cash flows of conventional bonds, have notably proliferated, fuelling the debate on the similarity between Islamic and conventional finance. Using an event study methodology on a sample of Malaysian listed companies, we investigate whether stock market investors react differently to the announcements of sukuk and conventional bond issues. We find that the stock market is neutral to announcements of conventional bond issues, but it reacts negatively to announcements of sukuk issues. We attribute this finding to the excess demand for Islamic investment certificates and to an adverse selection mechanism that favors sukuk issuance by lower-quality debtor companies.     

Googling Investor’s Sentiment: Powerful Measure in Conventional and Islamic MENA Financial Markets

ABSTRACT

The objective of this paper is to investigate whether investors' sentiment measured by the Internet search behavior constitutes a valid measure of investor’s sentiment on Islamic and conventional indexes of emerging and frontier financial markets in MENA countries. In fact, we examine the relation between googling investor’s sentiment and monthly Islamic and conventional index returns during the period 2004–2016. Using the Dynamic Conditional Correlation, the BEKK-GARCH and the wavelet coherence models, we confirm that googling investor’s sentiment is a perfect indicator of investor’s sentiment measure. Indeed, we find that this measure has the ability to reflect major events such as subprime financial crisis, oil crisis and Arab spring revolution affecting MENA Islamic and conventional index markets. Our finding indicates that investors can use googling investor’s sentiment as an indicator to predict returns and volatility of emerging and frontier markets since it reflects the behavior and emotions of investors in MENA financial markets.