Constitutional Bargaining Research Articles

Haider Ala Hamoudi, Negotiating in Civil Conflict: Constitutional Construction and Imperfect Bargaining in Iraq (Chicago: University of Chicago Press, 2014). Pp. 328. $95.00 cloth, $35.00 paper.

Haider Ala Hamoudi, Negotiating in Civil Conflict: Constitutional Construction and Imperfect Bargaining in Iraq (Chicago: University of Chicago Press, 2014). Pp. 328. $95.00 cloth, $35.00 paper.

Governance and Residual Claimancy: Property Rights and Non-Discrimination in Western Political Development

I explore how political property rights to revenues from governance relate to generality norms in governance. I do so by examining the rise of Western constitutional liberalism from the perspective of property rights economics and political economy. While it is true that Western political development has been the result of bargains between political elites (Congleton 2011), the implications of the fact that parties to these bargains historically were “owners of the realm” have been underappreciated. I argue the unintended consequence of these political bargains among “owners of the realm” was a de facto supermajority rule, approaching conceptual unanimity for those party to the bargains. In developing this argument I elaborate on the relationship between political and economic property rights, noting that while they were and will continue to be intertwined, there was a hierarchy of rights that became inverted over the course of elites’ constitutional bargains.

A Test of the Unraveling Hypothesis: Constitutional Bargaining and the Quality of African Institutions

This paper focuses on the source of path dependency in institutions. Within a bargaining theory of reform, the domain of bargaining and number of bargains reached determine the path of institutional change. The French and British governments negotiated with their various African independence movements during the 1950s, and produced a relatively large number of relatively liberal independence constitutions. After independence, a series of political and military shocks created natural moments for constitutional reform that unraveled the relatively high-quality political and legal institutions agreed to in the years leading to independence, although some unraveled more than others. The African countries that began with the narrowest domain of constitutional bargaining and experienced the fewest political shocks generally have better contemporary institutions than states that began with less restrictive constitutional rules and experienced more constitutional moments.

Negotiating in Civil Conflict. Constitutional Construction and Imperfect Bargaining in Iraq * The Struggle for Iraq's Future. How Corruption, Incompetence and Sectarianism Have Undermined Democracy

Negotiating in Civil Conflict. Constitutional Construction and Imperfect Bargaining in Iraq * The Struggle for Iraq's Future. How Corruption, Incompetence and Sectarianism Have Undermined Democracy

The Paradox of Administrative Preemption

Administrative preemption is a convenience and contrivance for modern government. But, as uncovered here, it is also a constitutional paradox. Specifically, in the federalism context the Court treats agency action as preemptive under the Supremacy Clause, which provides that certain federal “Laws” shall be supreme over state law. However, if agency action qualifies as “Law,” then it should be void under separation-of-powers principles (and thus ineligible to preempt state law). Meanwhile, if agency action does not qualify as “Law” (thus avoiding a separation-of-powers problem), then it should fall beyond the Supremacy Clause’s purview. Paradoxically, administrative preemption requires that agency action simultaneously qualify as (1) “Law” for federalism purposes and (2) “not Law” for separation of powers. The Founders surely never intended this. Although much has changed since then, resort to the Court’s interpretive glosses for modern government fare no better. For instance, if the Court’s premise behind administrative preemption is that agencies make “Law,” then how should we understand the Court’s longstanding insistence otherwise in the separation-of-powers context? And, if unelected administrative officials can displace state law in Congress’s stead, what are we to make of the Court’s heralded political-safeguards theory of federalism? These inquests underscore the difficulty of settling on a constitutional premise that is both broad enough to justify administrative preemption, yet narrow enough to preserve the Court’s legitimating theories of modern government. Perhaps administrative preemption is right, and the Court’s legitimating glosses for modern government are wrong. Or perhaps the inverse is true. This Article’s insight is that these cannot all be right — at least not without a new constitutional bargain.

Constitutional choices: Uncertainty and institutional design in democratising nations

Why do democratising nations make the constitutional choices they do? Conceiving democratic transition as a critical juncture, we propose a theory of constitutional choice. We place the degree of uncertainty at the centre of our theorising efforts to explain the relationship between constitutional bargains among competing political groups and the type of executive–legislative relations adopted during democratisation. We posit that parliamentarism is more likely to be adopted under high-uncertainty conditions, while presidentialism is more likely under low-uncertainty conditions. Identifying four factors that affect the level of uncertainty in the transition process, we examine how the choices of executive–legislative relations are made under strong influences of historical and geographic factors.

On the Inevitability of Divided Government and Improbability of a Complete Separation of Powers

This paper provides a tightly written overview and modest extension of the constitutional exchange and evolution model developed in Perfecting Parliament and uses that approach to analyze the division of authority that one would expect to see in contemporary constitutional governments. The analysis suggests that constitutions tend to be written, based on the king and council template, and buttressed by a more or less independent court system. Moreover, it suggests that constitutions change at the margin through time as constitutional bargaining takes place. This suggests that a complete separation of power is unlikely to be observed in the long run. Empirical evidence developed from the IAEP data base is consistent with these predictions.

Constitutional Bargaining and the Emergence of Western Democracy

Constitutional Bargaining and the Emergence of Western Democracy

Democracy in America: Labor Mobility, Early Liberalism, and Constitutional Reform

Relatively liberal economic and political institutions emerged earlier in America than appreciated by most social scientists. They did not emerge in one great leap forward, but through a gradual process of experimentation, yardstick competition, and constitutional bargaining during the seventeenth and eighteenth centuries. As in Europe during the nineteenth century, colonial legislative authority gradually increased, privileges and anti-privileges diminished, property and trade institutions liberalized, wealth-based requirements for suffrage gradually reduced, and public education expanded. This paper explores the extent to which economic interests and early liberalism can account for the constitutional and legislative bargains adopted. No revolutions or revolutionary threats were necessary or evident during most of the period of interest.

Les mutations de la gouvernance mondiale : pays émergents et groupes « G »

International cooperation is criticized by emerging powers as too Western-centric. Western powers themselves are equally critical of international cooperation for failing adequately to harness emerging powers. Existing theories of cooperation assume a stable geo-political order, led by countries with a shared conception of the scope and modalities of global cooperation. These assumptions are no longer justified. ‘Western liberal order’ is in a protracted process of transition. However, there is no new hegemon that would be able (or willing) to replace the United States and to push for a redesign of the global governance architecture from scratch. Emerging powers are engaging in global cooperation in their own way and on their own terms. In sum, while there seems to be a growing demand for effective global cooperation, there are no longer universally applicable concepts to analyze it nor a common language with which to describe it. This paper looks at the changing structural conditions of international cooperation in a period of order transition by examining the dynamics between emerging countries and G-x groups. It develops the argument that G-x groupings offer platforms to renegotiate the underlying constitutional bargain of the Western liberal order. The huge asymmetries of power in the post-Cold War international system and the substantial (structural) challenges of the Western liberal order has led to growing recourse to informal institutions. They have come to play a range of critical roles and occupy a vital space between multilateral governance on the one hand and traditional major power diplomacy on the other. This paper develops an analytical framework able to explain the changing nature of cooperation under power transition. ?

Morgan-Jones, Edward. Constitutional Bargaining in Russia, 1990––93: Institutions and Uncertainty (review)

Morgan-Jones, Edward. Constitutional Bargaining in Russia, 1990––93: Institutions and Uncertainty (review)

Perfecting parliament: constitutional reform, liberalism, and the rise of Western democracy

1. On the origins of Western democracy 2. Team production, organization, and governance 3. Organizational governance in the long run 4. The origins of territorial governance 5. Constitutional exchange and divided governance 6. The power of the purse and constitutional reform 7. Suffrage without democracy 8. Ideology, interest groups, and adult suffrage 9. Setting the stage: philosophical, economic and political developments prior to the nineteenth century 10. Liberalism and reform in the transformative century 11. Fine-grained constitutional bargaining 12. An overview of British constitutional history: the English king and the medieval parliament 13. Constitutional exchange in England: from the Glorious Revolution to universal suffrage 14. The Swedish transition to democracy 15. Constitutional reform in the Netherlands: from republic to kingdom, to parliamentary democracy 16. Germany: constitutional exchange in an emerging state during the nineteenth century 17. The Japanese transition to democracy and back 18. The United States, an exception or further illustration? 19. Quantitative evidence of gradual reform 20. Ideas, interests, and constitutional reform Appendix: methodological approach, limits, and extensions.

Constitutional Bargaining in Russia, 1990-93. Institutions and Uncertainty

Constitutional Bargaining in Russia, 1990-93. Institutions and Uncertainty

The Basic Law at 60 – Introduction to the Special Issue

For Germany 2009 was a year of constitutional anniversaries: the first democratic constitution (Paulskirchenverfassung of 1849) was promulgated 160 years ago; the 1919 Weimar Constitution would have turned 90; and finally, the country celebrated 60 years of the Basic Law, which was proclaimed and signed in Bonn on 23 May 1949. Despite its birth in the midst of economic and political turmoil and widespread disillusion with politics, the Basic Law has come to be regarded as a “success story.” As is well known, it was never meant to last – the very term “Grundgesetz” (basic law) indicated that it was intended to serve as a temporary constitutional framework until the enactment of a new constitution for the whole of Germany. Yet the Basic Law outgrew its provisional character. Today, not only the political establishment is united in praising the Grundgesetz. The scholarly assessment also has been mostly positive. The constitutional bargain struck in 1949 has been able to achieve what no previous German constitution had managed. The right and the left of the German political spectrum fashioned an enduring compromise that combined democracy, federalism and the welfare state. It is part of the story that the old anti-liberal and nationalist elite had been thoroughly delegitimized by loosing the war. Also, the Allies gave the effort an additional nudge. The progressive changes could then be implemented quite effectively by relying on the juristic culture of the Rechtsstaat that dates back to the bureaucratic legacy of, among others, the Prussian state.

Assessing asymmetrical federal design in the Russian federation: A case study of language policy in tatarstan

This article seeks to further the understanding of language policy in Tatarstan by examining the development of language legislation and policies in the republic in the post-Soviet period and by placing the issue of language policy within a federal – republican context. The article finds that asymmetrical federalism is an appropriate and workable response to Tatarstan's demands for policy capacity over issues pertaining to language. It is Russia's federal design itself, and not processes of ad hoc constitutional bargaining, which creates governance capacity in this policy area and provides Tatarstan with the de jure power to implement measures to protect the Tatar language.

The EU Annual Budgetary Procedure: The Existing Rules and Proposed Reforms of the Convention and Intergovernmental Conference 2002–04*

AbstractThis article analyses the proposed reform of the annual budgetary procedure of the European Union (EU) during the 2002–04 Convention and Intergovernmental Conference (IGC). We offer two findings. First, the European Parliament already has the power to reduce agricultural and fisheries spending subject to support from a blocking minority in the Council. Hence, a reduction of the Union's spending on agriculture and other areas of compulsory expenditure is not dependent on a reform of the budgetary procedure. Second, the proposal from the Convention would have increased EP budgetary powers while the procedure adopted by the IGC strengthens the hand of the Council, removing Parliament's right to overrule it. In constitutional bargaining, we see that Parliament gains in a deliberative forum where unanimity is not required, while it loses in a closed IGC.

Democracy in America: Labor Mobility, Ideology, and Constitutional Reform

Constitutional democracy in the United States emerged very gradually through a long series of constitutional bargains in the course of three centuries. No revolutions or revolutionary threats were necessary or evident during most of the three century–long transition to constitutional democracy in America. As in Europe, legislative authority gradually increased, wealth-based suffrage laws were gradually eliminated, the secret ballot was introduced, and the power of elected officials increased. For the most part, this occurred peacefully and lawfully, with few instances of open warfare or revolutionary threats. A theory of constitutional exchange grounded in rational choice models provides a good explanation for the distinctive features of American constitutional history, as it does for much of the West, although it does less well at explaining the timing of some changes.

A Social Contract Account for CSR as an Extended Model of Corporate Governance (I): Rational Bargaining and Justification

This essay seeks to give a contractarian foundation to the concept of Corporate Social Responsibility (CSR), meant as an extended model of corporate governance of the firm. It focuses on justification according to the contractarian point of view (leaving compliance and implementation problems to a related article, [Sacconi 2004b, forthcoming in the Journal of Business Ethics]). It begins by providing a definition of CSR as an extended model of corporate governance, based on the fiduciary duties owed to all the firm’s stakeholders. Then, by establishing the basic context of incompleteness of contracts and abuse of authority, it analyses how the extended view of corporate governance arises directly from criticism of the contemporary neo-institutional economic theory of the firm. Thereafter, an application of the theory of bargaining games is used to deduce the structure of a multi-stakeholder firm, on the basis of the idea of a constitutional contract, which satisfies basic requirements of impartial justification and accordance with intuitions of social justice. This is a sequential model of constitutional bargaining, whereby a constitution is first chosen, and then a post-constitutional coalition game is played. On the basis of the unique solution given to each step in the bargaining model, the quest for a prescriptive theory of governance and strategic management is accomplished, so that I am able to define an objective-function for the firm consistent with the idea of CSR. Finally, a contractarian potential explanation for the emergence of the multi-fiduciary firm is provided.

Malay Nationalism, Islamic Supremacy and the Constitutional Bargain in the Multi-ethnic Composition of Malaysia

In the 30 years since independence, Islam has become increasingly prominent in the public domain of Malaysia, which is a multi-ethnic and multi-religious federation. This may be attributed to the influence of a worldwide Islamic revival and the consequent politicization of Islam. The race for Malay political parties to out-Islamicise led to the then Prime Minister Mahathir Mohamad's declaration that Malaysia was already an Islamic state. This push towards increased Islamicization at the governmental level alienates the non-Malays and betrays the government's commitment to multi-culturalism and multi-ethnicity as part of the constitutional bargain. With Islam increasingly becoming a major symbol of Malay-ness, the ethnic division is widened by religious divide between Muslims and non-Muslims, creating a distinct, acute awareness of the 'Other'. This article examines Malaysia's constitutional history, the inter-communal bargaining during the drafting of the independence Federal Constitution and the scope of Islam as the religion of the Federation as background to the legal and poltiical developments arising from Malay nationalism (Ketuanan Melayu) and demands for Islamic supremacy. This article argues that the aggressive push for Malay and Islamic supremacy constitutes a betrayal of the constitutional bargain and threatens the rights of minority communities.

Constitutionalizing Patents: From Venice to Philadelphia

Patent law today is a complex institution in most developed economies and the appropriate structure for patent law is hotly debated around the world. Despite their differences, one crucial feature is shared by the diverse patent systems of the industrialized world even before the recent trend toward harmonization: modern patent regimes include self-imposed restrictions of executive and legislative discretion, which we refer to as constitutionalized systems. Given the lucrative nature of patent monopolies, the long history of granting patents as a form of patronage, and the aggressive pursuit of patronage in most societies, the choice to confine patents within a legal framework that minimized the potential for gain by current office holders requires explanation. Why choose to constitutionalize patents? This paper answers these questions by examining three salient constitutionalizng events through the lens of public choice theory. First, the ground breaking Venetian statute of 1474, the first modern patent system; second, the British experience with patents that led to the 1624 Statute of Monopolies, one of the key foundations of the U.S. patent system; and lastly, the American Founders' adoption of Article I, Section 8, Clause 8 of the Constitution, which grants the power to, and sets forth the manner in which, the national government can issue patents. We argue that creating constitutional patent law institutions offered the opportunity to both increase the durability of the bargain between the state and the inventor and, in some cases, to limit the grant of patents to those most likely to increase the general welfare. Based on the historical analysis, we derive three desirable features for patent law institutions: (1) strong constraints on the type of patents that can be issued, limiting them to areas in which there is evidence that the costs of the limits to competition imposed are justified by the benefits produced by the incentives created; (2) an independent institution capable of reviewing the grant of a patent in a timely and final manner, to ensure the constitutional bargain is kept; and (3) patents that provide their owners with a sense of security in the validity and scope of their property right, to maximize the value of the bargaining chip offered to inventors. Our analysis thus offers lessons for countries considering new patent law institutions or modifying existing ones.