The Veil of Uncertainty Unveiled

A central assumption of constitutional economics is that in the process of constitutional decisionmaking the players' uncertainty about their post-constitutional positions (veil of uncertainty) serves the useful purpose of making unanimity and fairness at the constitutional level more rather than less probable. The paper argues that this assertion is false if the conventional assumption holds true that social contracts are threatened by a prisoners' dilemma incentive structure. By means of a simple two-person game-model it is shown that, if players are fully aware of all their partial interests, agreement on a Pareto-efficient rule will be the iterated dominance equilibrium of the game played at the constitutional level. A veil of uncertainty cannot do better. It may, however, induce disagreement or discrimination, if the prisoners' dilemma violates the cardinal property often assumed. This raises the question why the choice of rules which typically takes place in full knowledge of the players' post-constitutional positions poses so many problems although, from a theoretical point of view, unanimity seems so easy to achieve. Finally, it is examined, if there is any salutary role the veil of uncertainty is able to play in view of a post-constitutional prisoners' dilemma.