Constitutional Choice Research Articles

Bielefeld Game Theory and Indiana Institutional Analysis: Elinor Ostrom and Theories of Common-Pool Resources

This article explores the place of game theory in Elinor Ostrom's groundbreaking studies of nonmarket institutions for managing common-pool resources (CPRs) from the 1980s onward. While game theory had been associated with the study of CPRs since at least the later 1960s, the precise way scholars used the theory varied, depending not only on their home discipline but on the locally specific research program they hoped to develop. Ostrom's use of game theory ultimately looked quite different from that of laboratory psychologists studying “commons dilemmas,” political scientists theorizing about constitutional choice, or economists building formal models of sparse markets, bearing perhaps the closest resemblance to the economist Reinhard Selten's skeptical and heterodox applications of game theory to the study of industrial organization. This account of Ostrom's local adaptation of game theory potentially helps us evaluate critiques of her work that focus on her use of rational choice models.

John Finnis and the central case constitution

This article formulates a novel conception of constitutions based on John Finnis’s jurisprudential work. The ‘central case constitution’ transcends the formal or functionalist analyses currently dominant in constitutional theory by considering a constitution as having a ‘double life’. Constitutions are necessarily and intrinsically normative and factual. The article explores Finnis’s natural law philosophy, emphasizing the central case constitution’s alignment with the practical reasonableness viewpoint and its role in directing a political community towards its common good. Focusing on key elements such as the rule of law and the context of a political community, the central case constitution emerges as a legal determination that structures society, frames political institutions and authoritatively directs communities towards justice. This ontological understanding has theoretical and practical implications, including identifying genuine constitutional purposes, safeguarding private associations from the overwhelming state presence, promoting community identity and accommodating diverse constitutional choices for self-determination.

The Constitutionalization of Social Rights in Italy, Germany, and Portugal: Legislative Discretion, Minimal Guarantees, and Distributive Integration

Abstract In an international social rights debate disproportionately focused on English-speaking countries, redundant emphasis has been placed on justiciability. While constitutionalization does challenge stable relations between powers, especially in the post-colonial and developing world, solid insights for a workable interpretative method can be derived from continental Europe, where the difficulties typically associated with justiciability have long been settled. The constitutions of Italy, Germany, and Portugal take socioeconomic democracy seriously, tempering socialist claims and refuting libertarian stances, and have managed to spur a legitimate judicial increment of substantive equality. Through a threefold comparison, this paper describes the peculiarities of these fundamental texts across the spectrum of possible constitutional design choices, and draws from comparative constitutional caselaw to highlight a cross-national convergence on a set of interpretative standards. These blend together a strong safeguard of legislative discretion with justiciable minimal guarantees, and a value-assertive orientation of balancing coextensive with the integrationist function of constitutionalized social and economic rights.

Structural and functional analysis of Buchanan’s constitutional contract

Buchanan attempted to seek new theoretical construction through the contract method by introducing elements such as ‘individual’, ‘veil of uncertainty’, ‘public choice’, ‘decision costs’, and ‘unanimous agreement principle’. He not only transformed the contract theory model but also interpreted the ideas of consensus politics in an acceptable manner. Specifically, ‘individuals’ are entities of choice and behavior, and the process of choice allows individuals to express different goals and interests. The ‘veil of uncertainty’ prompts individuals to think about issues from a fair point of view when interests cannot be identified and future prospects are unpredictable and to make choices that are beneficial for both themselves and the group. ‘Public choice’ can solve the problem of justice diversity because it does not exclude different or conflicting motivations and goals. ‘Decision costs’ and ‘external costs’ both limit the way collective decisions are made and help identify the normal consequences of constitutional choices. The ‘unanimous agreement principle’ gives everyone equal status, allowing each person the right to pursue their own goals and values and preventing others from abusing their power. The use of the aforementioned theoretical elements not only helps people discuss constitutional choices at a general level but also helps to present the true face of the collective decision-making process, thereby establishing an empirical theory about the actual logic of individual actions in the political system.

Religious Approaches to Constitutionalism: Empirical Scholarship and Exceptionalism

Abstract Nearly half of all countries have official religions or give preference to specific religious traditions. Most countries with an official religion are majority Muslim; however, most of those with a preference for particular religious traditions are majority Christian. This paper considers empirical data related to constitutional references to specific religions as a framework for a discussion of the comparative constitutional histories of Turkey and the Republic of Ireland. Both moved from systems that preferred their majority religions to ostensive neutrality. This analysis reinforces the importance of religion in law and policy regardless of cultural context and constitutional choices. Constitutional drafters have established a number of approaches to the treatment of religion, including freedom of religion, establishment of religion, separation of religion and state, neutrality, official religion, conformity, repugnancy, and sources of law/legislation. Although these linguistic choices are significant, they may not result in consistent practices across jurisdictions.

Dysfunctional Constitutionalism or Dysfunctional Politics: A Matter of Law, Politics, and Institutional Design

The following reflections are an attempt in constitutional theory to adress the core elements of the U.S. constitutional crisis. It will first identify structural and normative properties of the U.S. Constitution that may become battlegrounds for adversarial ideas, meanings, logics of appropriateness, and, finally, institutional and constitutional missions, all centering around constitutional liberty. In a second step, it will be shown that institutional theory addresses important links between norms/rules/institutions and actors/citizens that are crucial for a constitution and its potential normative battlegrounds. It is alleged that a constitutional crisis is closely related to incommensurable interpretations of constitutional value choices (e.g., liberty) and the ways actors choose to make their interpretations actionable through the institutional channels of a polity. Constitutional theory, hence, should consider institutionalist findings in order to come to grips with the phenomenon of constitutional crisis. Third, in this light it will be discussed whether the prevailing models of (U.S.) constitutionalism are able to assimilate defects in the crucial relationship between the constitution and actors, especially when it comes to factionalized and polarized meanings and interpretations—which in turn trigger adversarial institutional/constitutional missions and may lead to constitutional wars. Fourth and finally, these reflections are taken together for an outlook on the prospects of constitutional development in the United States and the challenges that lie ahead.

Constitutional choice in emerging democracies: adoption of the 2004 Afghan Constitution

ABSTRACT The idea that institutional design and institutional change are best explained by the preferences of institution makers who act rationally and strategically is established both theoretically and empirically. However, this literature draws heavily on the experience of Western European democracies. Presenting evidence from the constitutional selection process in post-2001 Afghanistan, this paper contends that institutional selection in emerging democracies follow a similar logic to that of advanced democracies when they were undergoing transitions. The adoption of the 2004 Afghan Constitution is best explained by bargaining among key domestic political elite. The choice of a highly centralized presidential system reflected the preferences of dominant political elite who wanted to ensure their survival and maintain access to power resources of the state. I use process tracing to examine the circumstances under which the 2004 Afghan Constitution was adopted.

Upholding Peace Settlements Through Constitutional Review in Bosnia and Herzegovina, Kosovo and North Macedonia

This article examines implementation of the peace settlement compromises translated into constitutional arrangements in Bosnia and Hercegovina, Kosovo and North Macedonia. The three countries struggle with their violent past, loss of interethnic trust and political fragmentation. Consequently, the implementation of peace settlement compromises that are translated into constitutional arrangements is hampered. Through analyses of constitutional jurisprudence in three countries this study provides further insights into the effectiveness and enforcement of the constitutional choices in practice. The article concludes that international supporters in the process of negotiation of peace settlements need to revisit the international assistance in constitution-making as a part of peacebuilding projects through the lens of constitutional review practices.

The power of public choice in law and economics

AbstractIn this paper I discuss how Law and Economics can benefit from incorporating some insights from Public Choice into their analyses. Within this argument, I examine the evolution of experimental methods by looking at laboratory, field, and natural experiments; and conducting a very simple scientometrics analysis on the relative frequency of experimental studies in journals such asPublic Choice, European Journal of Political Economy, Constitutional Political Economy, Journal of Law and Economics, andJournal of Law, Economics and Organizationcompared with top economics journals such asAmerican Economic Review, Quarterly Journal of Economics, Journal of Political Economy, Econometrica, orReview of Economic Studies. I also refer to the connectivity of Behavioral Law and Economics and Behavioral Public Choice. The paper then finishes with a discussion of a selected number of topics covering areas such as corruption, tax compliance, shitstorms/firestorms, constitutional choices, globalization, and international organizations; all of which present scientific challenges when applying pure Law and Economics approaches without also implementing a Public Choice analysis.

Empirical research in comparative constitutional law: The cool kid on the block or all smoke and mirrors?

Abstract In recent years, we have observed an explosion of empirical research in the field of comparative constitutional law. This contribution seeks to evaluate the current state of affairs. We analyze select studies from four different areas: the consequences of and the reasons for constitutional design choices, as well as the diffusion and the effectiveness of constitutional rights. We find that the empirical identification strategies of many of the analyzed studies have significant weaknesses, and inspire only limited confidence in their results. Nevertheless, we argue that empirical research in comparative constitutional law is of fundamental importance. It not only draws our attention to issues that would otherwise elude our view, but also gives us a chance to refine the methodology in order to develop better strategies to answer some of the decisive questions preoccupying comparative constitutional law scholarship.

Polycentric structures nurturing adaptive food quality governance - Lessons learned from geographical indications in the European Union

In contrast to harmonised international food quality standards, local producers of food that is protected as geographical indication can adapt production rules. In a comparative multi-method case study approach, we analyse how constitutional and collective choice rules affect the negotiation of diverse interests and the adaptability of food quality standards in France, Italy and Austria. In France, a national organisation with a plurality of technical expertise guarantees the coherence of geographical indications based on notions of terroir and heritage. Italy's rural development approach secures very elaborated voting rules for producer groups and broader interaction on the regional level to accomplish broadly legitimated decisions. In the Austrian intellectual property rights approach, producers self-define the constitutional and collective choice rules and have the fullest autonomy and responsibility in standard setting. We conclude that polycentric interlinkages across scales and sectors – though delaying adaptation – support the long-term conservation of the products' identity via broad legitimisation. Both, the autonomy of local producers to innovatively adapt to change as well as a strong product identity are key for the long-term viability of geographical indications.

Party Fragmentation, the Proportional System and Democracy in Slovenia

In Slovenia, political parties have been the key actors in opting for a proportional electoral system and constitutional choice of a parliamentary system, both of which are believed to help to develop a consensual type of democracy. However, a vicious circle involving a fragmented party system and a proportional electoral system has not only led to polarisation within the party system, but has also contributed to problems of democratic governability and legitimacy. The destabilisation of the party system since 2011 has not only caused a crisis of political legitimacy and accountability, but has also contributed to a recent trend of de-democratisation. At the moment, there does not appear to be a realistic alternative to the existing electoral rules in the near future, in spite of recurring calls by an anti-communist party (Slovenian Democratic Party) to introduce a majoritarian system.

Estado, separação dos Poderes e a legitimidade democrática do juiz: uma leitura prática do controle judicial da discricionariedade administrativa

Se alguma dúvida há sobre o critério democrático da atuação do Estado-juiz, certamente ocorre em função da (para alguns, em alguns momentos) ´incômoda´ realização de suas atividades primordiais de poder realizar o Direito ao caso concreto, mesmo se tal atividade encontrar barreiras executivas e legislativas, conforme escolha constitucional estabelecida no art. 5.º, XXXV, da CF/1988. Atende, ao que parece, à legitimidade democrática exigida para qualquer manifestação estatal a atividade jurisdicional que aplica a lei e os preceitos constitucionais no cumprimento do seu legítimo mister, bem como que oportunize aos isonomicamente qualificados para tanto a possibilidade de participar de seus quadros para, assim, atuar em nome da Constituição e do povo que a representa.

Transitions, populism, and democratic decline: evidence from Hungary and the Czech Republic

ABSTRACT Although both Hungary and the Czech Republic have seen populists arrive in power over the past decade, only Hungary has experienced a measurable deterioration in the quality of its democratic institutions and rule of law. The different circumstances of the transition after 1989, particularly the differences in constitutional choices and transitional justice measures, help explain the cleavages, polarization, and erosion of trust that characterized Hungarian politics in the run up to the 2010 election. Jointly with a highly disproportionate electoral system, these structural factors made Hungary more prone to the de-democratization observed under Viktor Orbán than the Czech Republic.

Stability of the liberal order, moral learning, and constitutional choice: an unresolved tension in James Buchanan’s political economy

Buchanan mentions at several points in his oeuvre the necessary role for a constitutional attitude. This attitude is both explanatory and evaluative; it explains why citizens value liberty but also highlights one of the necessary conditions for the stability of a free society. We argue that Buchanan’s idea of a ‘constitutional attitude’ is extremely relevant, though underdeveloped. Firstly, it remains an open question what exactly a constitutional attitude means in practice and it is unclear what kind of institutions would foster it. Secondly, we believe that the success of his constitutional political economy project depends on some account of moral learning. Although Buchanan stresses the individual aspect of the process of self-constitution, he doesn’t take sufficient account of how the institutional environment and our social relationships structure this process. We discuss to what extent a broadly neo-Aristotelian account of moral learning can provide a more robust foundation for Buchanan’s ideas.

The IAD-SES-ILT model in assessing the governance of a river basin

This paper presents the IAD-SES-ILT heuristic model built from the combination of the Institutional Analyzes Development (IAD) framework of Elinor Ostrom and the Institutional Legal Theory (ILT). Using the grammatical syntax for the examination of institutional statements, proposed by Crawford and Ostrom, the structure of the Action Situation levels (Constitutional, Collective and Operational Choice) that make up the governance of the Hydrographic Basin of the Metropolitan Region of Fortaleza was analyzed . It was possible to show that the legal view introduced to the IAD-SES by ILT added new values to the institutional approach, allowing an assessment of governance regarding the respect for the principles indicated by the OECD as necessary for good governance of water resources.

Neo-Liberalism, State-Capitalism and Ordo-Liberalism: ‘Institutional Economics’ and ‘Constitutional Choices’ in Multilevel Trade Regulation

Abstract Reforms of international trade and investment law and institutions are hampered by conflicting economic paradigms. For instance, utilitarian Anglo-Saxon neo-liberalism (e.g. promoting self-regulatory market forces privileging the homo economicus), constitutional European ordo-liberalism (e.g. protecting multilevel, constitutional rights and judicial remedies of European Union citizens), and authoritarian state-capitalism (e.g. protecting totalitarian power monopolies of the communist party in China) pursue different legal and institutional designs of trade and investment agreements. Globalization and its transformation of national into transnational public goods (PG s) require extending constitutional and institutional economics to multilevel governance of transnational PG s in order to enhance the wealth of nations. Maintaining the worldwide legal and dispute settlement system of the World Trade Organization (WTO) – and interpreting its regional and national exception clauses broadly in order to reconcile diverse, national and regional institutions of economic integration and of ‘embedded liberalism’ – remains in the interest of all WTO member states.

Political Parties in Constitutional Theory

In this paper, I first provide an idealized functional account of political parties and party systems. I argue that parties are difficult to regulate constitutionally because of their Janus-faced public-private character. The key function they perform, when functioning as they ought to function, is to facilitate a mutually responsive relationship between public policy and popular opinion by acting as an intermediary between a state and its people. They perform this intermediary function in a unique manner, because of their bi-directionality and their plenary character. When they perform this function effectively, political parties significantly reduce four key information and transaction costs which would otherwise make democratic governance impossible: political participation costs, voters’ information costs, policy packaging costs, and ally prediction costs. This idealised account helps us identify pathological parties and party-systems and ground four principles that constitutions should seek to optimise in relation to political parties. The second part of this paper outlines and defends these four principles. Here I argue that state constitutions: i. should guarantee maximum autonomy for the formation, organisation, and operation of political parties, moderated by the restrictions necessitated by their purpose of winning (a share in) state power (for fixed terms) in competitive elections by acting as intermediaries between the state and its people (the ‘purposive autonomy principle’); ii. should try to optimise the party system such that the total number of serious political parties is large enough to broadly represent every major ‘voter type’, but not so large that the information costs on judicious voters are too high (the ‘party system optimality principle’); iii. should ensure a separation of parties and the state (the ‘party-state separation principle’); and iv. should discourage the factionalization of political parties (the ‘anti-faction principle’). These political principles are drawn from the value of democracy itself. They are likely to bring real world political parties and party systems closer to their idealised form, thereby improving and deepening democratic governance. As such, they should—alongside other relevant political and constitutional norms—inform fundamental constitutional design choices.

Welfare without rent seeking? Buchanan\u2019s demogrant proposal and the possibility of a constitutional welfare state

In a number of works, James M. Buchanan set out a proposal for a ‘demogrant’—a form of universal basic income that applied the principles of generality and non discrimination to the tax and the transfer sides of the scheme and was to be implemented as a constitutional rule outside the realm of day-to-day politics. The demogrant has received surprisingly little scholarly attention, but this article locates it in Buchanan’s broader constitutional political economy project and shows it was a logical application of his theoretical framework to the problem of inefficient and unfair welfare systems when reform to the basic institutions of majoritarian democracy was not forthcoming. The demogrant aims to end the problems of majority cycling and rent seeking that plague contemporary welfare states and therefore offers a model of welfare without rent seeking—a constitutional welfare state. We compare Buchanan’s demogrant model to other universal basic income and negative income tax models and consider the most important criticisms. We conclude that rescuing the demogrant model from relative obscurity would be a fruitful future task of applied constitutional political economy and public choice.

Stability of the Liberal Order, Moral Learning, and Constitutional Choice: An Unresolved Tension in Buchanan’s Political Economy

Buchanan mentions at several points in his oeuvre the necessary role for a ‘constitutional attitude’ – at the individual (‘the private man’) and social level (‘the public man’). Buchanan’s constitutional attitude is both explanatory and evaluative; it explains why citizens value liberty but also highlights one of the necessary conditions for the stability of a free society. We argue that Buchanan’s idea of a ‘constitutional attitude’ is extremely relevant, though underdeveloped. First, it remains an open question what exactly a constitutional attitude means in practice and, consequently, it is unclear what kind of institutions would foster it. Second, and more fundamentally, we believe that the success of his constitutional political economy project depends on some account of moral learning. Although Buchanan stresses the individual aspect of the process of self-constitution, he doesn’t take sufficient account of how the institutional environment and our social relationships structure this process. We discuss to what extent a broadly neo-Aristotelian account of moral learning can provide a more robust foundation for Buchanan’s ideas. We discuss supporting empirical evidence from behavioral economics and derive some normative implications regarding the institutional contexts that would foster a constitutional attitude.