Constitutional interests in the face of innovations: how much do we need to know about risk preferences?

In constitutional political economy, the citizens’ constitutional interests determine the social contract that is binding for the post-constitutional market game. However, following traditional preference subjectivism, it is left open what the constitutional interests are. Using the example of risk attitudes, we argue that this approach is too parsimonious with regard to the behavioral foundations to support a calculus of consent. In face of innovative activities with pecuniary and technological externalities in the post-constitutional phase, the citizens’ constitutional interests vary with their risk preferences. To determine what kind of social contract is generally agreeable, specific assumptions about risk preferences are needed.

Buchanan’s constitutional political economy: exchange vs. choice in economics and in politics

This article discusses the methodological foundations of Buchanan’s constitutional political economy. We argue that Buchanan is a constitutional economist because he is an economist or a political economist. In other words, Buchanan is a constitutional economist—he insists on the necessity of focusing on constitutions and to analyze the “rules of the social game”—because he defines economics as a science of exchange. Buchanan’s definition of economics is not only specific, it is also opposed to the definition of economics that other economists retain and, above all, opposed to the definition of economics that many public choice theorists use. The latter have, in effect, adopted the Robbins 1932 definition of economics as a science of choice that Buchanan criticizes and rejects. Buchanan’s constitutional economics can be a branch of public choice only under certain conditions.

Constitutional tariffs, incidental protection, and the Laffer relationship in the early United States

This article explores an early attempt to establish a constitutional constraint on tariffs utilizing the Laffer Curve relationship. In 1842 John Calhoun suggested that the curve’s revenue maximization apex could be used to differentiate between “Revenue” and “Protective” tariffs independently from the non-judiciable question of legislative motive. When admitted that a tax must actually be collected to remain constitutionally valid, the apex functions as a de facto upper tariff rate constraint. Despite subsequently falling in disfavor, Calhoun’s argument illustrates the importance of political economy on the constitutional level by recognizing conditions that induce policymakers to rationally raise tax rates at the expense.

The politics of constitutional amendment in postcommunist Europe

This paper analyzes the causes and consequences of constitutional amendments in Eastern Europe. Its results challenge the conventional wisdom that constitutional change is a consequence of institutions and that major changes will increase executive powers and limit rights. It finds that the political and social context rather than institutions is the main cause of amendments. These amendments moreover tend to reduce the power of executives and strengthen guarantees of human rights. The paper attributes these results to the particular circumstances of the postcommunist transition.

Buchanan on monetary constitutions

Buchanan’s reflections on monetary issues have been mostly neglected, despite their great interest both per se and for a deeper understanding of his general constitutional endeavour. We will thus propose a comprehensive assessment of Buchanan’s writings on this topic, focusing in particular on the different political models that have been developed to argue in favour of constitutional constraints on the governmental power to create money and on the implications that one can draw from our author’s monetary papers for the structure and the objectives of his constitutional discourse more generally.

Legal positivism and property rights: a critique of Hayek and Peczenik

Scholars such as Friedrich Hayek and Aleksander Peczenik have criticized legal positivism for undermining constitutionalism and the rule of law, an implication of which is weakened private property rights. This conclusion is far from evident. First, I contend that legal positivism is compatible with a strong support for property rights. Second, the causal relationship between legal positivism and the degree to which property rights are applied and protected is analyzed. The main arguments for a negative relationship—that legal positivism centralizes and politicizes legislation and that it makes the legal culture servile in relation to the political sphere—are considered unconvincing.

Constitutional coordination in unstable party systems: the Brazilian constitution of 1988

Constitutional assemblies are a common feature of many democratic transitions. However, the goal of coordinating constitutional choice would seem nearly impossible when assemblies are comprised of highly fragmented and volatile political parties. Building on Knight’s bargaining model, this article argues that the main challenge to coordination in unstable party systems is the procedural disequilibrium that results from incomplete information over breakdown payoffs. The likelihood of compromise in such circumstances is a function of the ideologies that frame constitutional choice and inform coalition-building. Thus, unstable party systems are not chaotic, although they may be deeply conflict-laden. These issues are illustrated empirically via the Brazilian Constitution of 1988, which demonstrates the possibilities for a stable constitutional order emerging from a fragmented and volatile party system.

Constitutional moments in Eastern Europe and subjectivist political economy

This article provides epistemic foundations for traditional rational-choice political science, to explain when and how ideas matter. Operational codes, epistemic communities and the structural patterns of ideas demonstrates the constitutional moments that occur during crises, and how ideas can underpin and direct the formation of interest groups. The implications for policy reform are discussed, along with an application to the Constitutional Moments during the transition of Central and Eastern Europe.

On good government

Besley’s treatment of principled agents is a major contribution to public choice and political economy. By focusing on politics as an agency problem, he has shown the way to a new generation of research on the interface of politics and economics.

Partially sighted persons and the public debt elephant

Recent data on the accumulation patterns of public debt across OECD countries suggests a synthesis is possible between the theoretical and empirical approaches to public debt and also between the traditional and more recent political economy explanations of public debt accumulation. The inductive approach of recent political economy explanations is combined with the intertemporal constraints highlighted in the Ricardian–Barro theory to present a reinterpretation of cross-country debt accumulations patterns. Like the elephant in the blind men and the elephant fable, the conclusion is glaringly obvious. Formal and informal budgetary constraints matter.

Constitutional choice and European immigration policy

The EU’s immigration policy is evaluated from the standpoint of constitutional economics. The main conclusion is that European immigration policy is trapped in a system of constitutional regulations that is too rigid as it is exclusively oriented towards the protection and securitisation of European borders. As such, it is not capable of allowing the development of a problem-solving capacity based on successive trials, and this produces negative outcomes for the whole of the EU.

Lawyers and politicians: the impact of organized legal professions on institutional reforms

Organized legal professions often play a central role in successful institutional development. The paper’s model examines how legal professions affect institutional reform. Professional review of reform proposals solves a politician’s informational problem in a way that makes democracy, political stability, and professional power substitutes. The model’s applicability is examined by showing that its predictions track the fortunes of lawyers in the USSR and early transition and are consistent with events in 1688 in England and 1789 in France, indicating why these two revolutions had different consequences. The model suggests why and when civil law and common law systems differ.

Saving government failure theory from itself: recasting political economy from an Austrian perspective

The economic approach to politics revolutionized the way scholars in economics and political science approached the study of political decision-making by introducing the possibility of government failure. However, the persistent and consistent application of neoclassical models of economics also seemed to suggest that once the full costs were accounted for, this failure was an illusion. This paper counters these arguments, typically associated with George Stigler, Gary Becker and Donald Wittman, by focusing on the underlying economic theory. We develop an alternative model of political economy grounded in the Austrian conception of the dynamic market process.

America’s neglected debt to the Dutch,an institutional perspective

America’s early constitutional development owes a good deal to the experience and policies of the Dutch republic. Many of the parallels are direct: In the late 16th century, the Dutch fought a successful war to secede from a major empire. They wrote a declaration of independence and adopted a federal model of Republican governance almost exactly two hundred years before the Americans. Somewhat later, the Dutch republic and its political institutions subsequently inspired and protected enlightenment scholars. Its leading political family and army played a crucial role in curtailing English absolutism in England and in England’s American colonies, and its federal template provided a model for early American institutions.

Constitutions and economic reforms in transition: an empirical study

Experiences of countries undergoing post-socialist transition in Central and Eastern Europe, as well as Central and Southwestern Asia, during the last 17 years, reveal great variety in economic reform paths and their successful implementation. At different moments of transition varying constitutional rules have also emerged in these countries. In our empirical study we find a significant relationship between constitutional rules and the economic reform process in post-socialist countries of Europe and Asia after 1989. In principle, the results confirm the arguments of the so-called negative constitutionalists, according to which the main function of the constitution for economic reforms in transition is its functioning as a commitment mechanism. The conclusions constitute an important step towards verification of different and often conflicting theories proposed by constitutional economists and allow to formulate practical recommendations for constitutional legislators and other actors capable of influencing constitutional change in countries encompassed by the study.

The European Union: confederation,federation or association of compound states?

The European Union of today is neither a confederation nor a federation, but rather an association of compound states. It is shown that this mixture of two forms of constitutional contracts implies inconsistencies prone to political deadlocks. A Buchanan/Tullock/Rawls approach to a reform suggests a clear choice between either a confederation or a federation. In this paper, however, it is proposed to follow a Hayekian approach in which issue fields are allocated to a confederation or to a federation, respectively depending on the revealed homogeneity of preferences of the citizens across the Member States. Hence both, Council and European Parliament, would remain the central decision makers but with separate tasks. Suggestions are made how to improve their election and their decision rules. The paper should contribute to the debate on reforming the European institutions which emerged after the rejection of the constitutional draft by the French and Dutch voters in 2005.

Social Market Economy: origins,meanings and interpretations

This paper investigates various possible meanings of ‘Social Market Economy’—60 years after its political initiation in Germany. We focus on the variety of intellectual sources that influenced the formation and interpretation of the concept in Germany during the first half of the last century. Our particular attention is on Müller-Armack’s definition of a rather dualistic concept of ‘social’ versus ‘market economy’ and the subtle differences it has with an original (Freiburg School) view of ordo-liberalism that lends itself more easily to a constitutional economics perspective.

Transaction tax and stock market behavior: evidence from an emerging market

This study examines the impact of a stamp tax rate increase on market behavior, using data from two stock exchanges in China. We find that when the tax rate increases from 0.3 to 0.5% (which implies that the transaction cost increases by about 1/3) trading volume decreases by 1/3. This implies an elasticity of turnover with respect to a stamp tax of −50% and an elasticity of turnover with respect to transaction cost of −100%. The markets’ volatility significantly increases after the increase in the tax rate. Furthermore, the change in the volatility structure indicates that the markets become less efficient in the sense that shocks are less quickly assimilated in the markets.

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The interrelations between legal and economic processes: a consideration of the reactions

The responses to my 1972 article on the interrelations between legal and economic processes are summarized and critiqued. The principal authors are James Buchanan, Peter Boettke, and William Fischell. My replies center on the normative character of their proposed alternative interpretations vis-à-vis my strictly positive approach. My positivist approach considers law as made rather than found; that law is not something transcendental and given but a matter of human social choice through pragmatic processes; that belief system and material interest influence law making and the law that is made influences belief system and material interests. The article thus is a defense of undertaking an objective, positivist analysis of law and government as they exist in actual political economies (legal-economic nexuses).

Principles and politics: Like oil and water

In a democracy, public policies require majority support to be enacted, so politicians must enlist the support of others to further their political agendas. Successful politicians are those who can negotiate in the political marketplace to steer outcomes their way, and to succeed, politicians must be willing to set their principles aside and trade their votes away to get something better. In contrast with the principled politician whose support cannot be bought, the unprincipled politician’s support must be bought, so unprincipled politicians accumulate political IOUs that they cash in to advance their agendas. Democratic politics by design reinforces unprincipled behavior and punishes principled behavior.