Economic Constitution Research Articles

The Application of EC Law by National Courts: The Free Movement of Goods by Malcolm A. Jarvis, Clarendon Press, Oxford, 1998, lxviii + 472 pp and We, The Court: The European Court of Justice and the European Economic Constitution by Miguel Poiares Maduro, Hart Publishing, Oxford, 1998, xii + 194 pp

Journal Article The Application of EC Law by National Courts: The Free Movement of Goods by Malcolm A. Jarvis, Clarendon Press, Oxford, 1998, lxviii + 472 pp and We, The Court: The European Court of Justice and the European Economic Constitution by Miguel Poiares Maduro, Hart Publishing, Oxford, 1998, xii + 194 pp Get access Joanne Scott Joanne Scott Search for other works by this author on: Oxford Academic Google Scholar Yearbook of European Law, Volume 18, Issue 1, 1998, Pages 723–726, https://doi.org/10.1093/yel/18.1.723 Published: 01 November 1998

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.

The Constitutional Dilemma of European Integration

The paper analyzes European integration from a constitutional economics perspective. It is argued that the use of the Prisoners' Dilemma as a description of the advantages of European integration is fallacious. If the situation is a PD, the solution is impossible; if it is not, it is unnecessary.

Henry George's Ingenious Tax

Abstract. Henry George (1839–1897) has left an intellectual legacy which is shrouded under a cloak of controversy. “Professional economists who focused attention on the single‐tax proposal and condemned Henry George's teaching, root and branch, were hardly just to him.” (Schumpeter 1954, p. 865). This essay tries to do justice to Henry George from the point of view of economic theory and relevant economic practical questions in 1997. The single tax proposal is looked at from the point of view of constitutional economics, and the wider applicability of Henry George's basic notions is emphasized.

The Politics of Contemporary Black Conservatism in the United States

At first sight, the themes associated with contemporary black conservatism appear to replicate the concerns of the American right more generally. However, although there are black conservative intellectuals and activists who draw on US constitutional tradition and neo-classical economics, others derive their politics from notions of racial solidarity. This form of black conservatism rests on particular constructions of black masculinity, and invokes images of a past age when black communities were both intact and stable. It regards integrationism with suspicion and hostility. However, it also offers a relatively optimistic vision of future developments that can be contrasted with the more constrained ambitions which characterise ‘mainstream’ American conservatism today.

Reforming the Market or the State? Article 30 and the European Constitution: Economic Freedom and Political Rights

This article takes as its starting‐point the relationship between Article 30 of 30 of the EC Treaty (general rule on the free movement of goods) and the European Constitution. On the one hand, it examines Article 30 in the context of the constitutional dilemmas facing the European Union, particularly the balance of powers to be defined between Member States and the Union, between public power and the market, and between the legitimacy of Community law vis à vis that of national law. On the other hand, it reviews different conceptions of the European Economic Constitution by analysing the role of Article 30 in the review of market regulation.

Positive constitutional economics: A survey

The author distinguishes between normative and positive constitutional economics. Taking the observation that the normative branch of the new discipline is much better developed than its positive counterpart as a starting point, the available positive literature is surveyed nevertheless. The available evidence is arranged into four categories: (1) Constitutional rules and the procedures bringing them about, (2) constitutional rules as the result of preferences and restrictions, (3) constitutional rules channeling constitutional change, and (4) the economic effects of constitutional rules. Additionally, various concepts of the constitution are presented, the tools suited for a positive theory of constitutional economics discussed, and precursors as well as related research programs shortly described.

Competence Catalogues and the Principle of Subsidiarity in a European Constitution

The purpose of this paper is to compare two instruments—the principle of subsidiarity and competence catalogues—which can be used in order to define a balance between powers vested in the European Union and those vested in the member-states. These instruments will be evaluated in the context of constitutional economics. The goal is to clarify the constitutional problem of dual jurisdictions in Europe. The principle of subsidiarity will be criticized because of the static nature of that device: the three main problems in making use of competence catalogues are to find criteria for deciding which competences should be allocated on which level, to protect the system against judicial erosion and to adapt it to changing environments.

Institutional Evolution through Purposeful Selection: The Constitutional Economics of John R. Commons

The paper relates John. R. Commons‘ view on the roleof human design in institutional evolution to the views thathave been advanced on this matter by F. A. Hayek, in German ordo-liberalism,and in constitutional political economy. It is argued that Commons‘concept of ’’purposeful selection‘‘ points in the direction ofa theoretical perspective that consistently integrates the notionsof institutional evolution and constitutional design.

On the concept of the ?economic constitution? and the importance of Franz B�hm from the viewpoint of legal history

During its development, the concept of an economic constitution embraced varying elements. At the birth of the Federal Republic, these elements stood in sharp contrast to each other. After World War I Hugo Sinzheimer associated the concept with theGemeinwirtschaft (publicly controlled economy) as an expression of the organized economy of the Weimar Reichsverfassung. Franz Bohm deserves recognition for having cast the idea of competition into legal forms; thus he laid the foundation of our economic order and opened new horizons for the concept of economic constitution.

Toward ever closer union—or ever larger? Or both? Entry to the European Union from the perspective of constitutional economics

Toward ever closer union—or ever larger? Or both? Entry to the European Union from the perspective of constitutional economics

NAFTA and investment: An economic constitution?

NAFTA and investment: An economic constitution?

On the Design of Economic Constitutions

Constitutional divisions of powers among various levels of governments are of three types: unitary, federal and confederal. A unitary country has a single or multi-tiered government in which effective control rests with the national government. A unitary form facilitates centralized decision making to further national unity objectives. A large majority of countries have adopted this form. A federal form has a multi-tiered structure with decision making shared by all levels of government. It is more conducive to decentralized decision making. In a confederal form, central authority merely coordinates the decisions of sovereign members. Economic theory suggests that decision making should occur at the lowest level of government consistent with allocational efficiency. Thus optimal size jurisdiction would vary with specific instances of economies of scale and benefit/cost spillovers. Achieving the optimal number and size of jurisdictions requires voting with feet, voting by ballots or other community formation processes, and redrawing jurisdictional boundaries. Developing and transitional economies are more centralized than industrial countries were in their early stages. Strong emphasis on central planning in developing countries has contributed to the centralization of authority and worked as an impediment to innovative responses to local issues by local governments. Further, it has stymied private sector development. Experiences of industrial countries suggest that decentralization of authority should be the guiding principle (the so called subsidiarity principle) unless a convincing case can be made for centralization of a specific responsibility. Fiscal decentralization can contribute to more efficient provision of local public services by allowing a better matching of expenditures with local priorities. Accountability is promoted through a clearer and closer linkage of the benefits of local public services with their costs. These considerations are especially relevant for large and diverse countries. Increased fiscal autonomy could also be instrumental in mobilizing more revenues from local sources, thus contributing to a country's overall fiscal position. More

Public choice versus constitutional economics: A methodological interpretation of the Buchanan research program

Through conceptual redirections, the Buchanan research program attempts to react to the fact that economic policy advice is often ignored. In terms of positive analyses, the research perspective is focused on institutions, i.e., the rules of economic as well as political games. In terms of normative analyses, the democratic criterion of unanimous consent is substituted for the normative efficiency criterion employed by welfare economics. The underlying idea is to direct positive analyses toward developing informative explanations on which normative analyses can build in order to provide intellectual orientation and thereby to contribute to democratic self-enlightenment. However, large parts of the existing public choice literature can be regarded as empirically oriented welfare-economic analyses of the political sector. Consequently, they run the danger of duplicating the failure of economic policy advice. This is why, during the 80s James Buchanan has changed the name of his research program from ‘public choice’ to ‘constitutional economics.’

Legal cartels and social contracts

A cartel is a group of oligopolistic firms that agree to act collectively as a monopolist in some industry or economic enterprise. Discusses the social contract of the Southwest Conference (a legal cartel) using some of the principles of constitutional economics. Viewed from a contractarian framework (following Sobel and Holcombe), the Southwest Conference represent an inter‐university constitution or social contract, whose successes and failures are analysed with graphic models and historical evidence.

Vibert's vision: Constitutional theory in search of a constitution

Frank Vibert's book, Europe: A Constitution for the Millennium, draws on constitutional economics to describe how a European constitution should be developed to govern a European political union. Vibert's theoretical constitutional framework is solid, but his analysis has two shortcomings. First, he discusses constitutional theory but never presents any specific constitutional provisions that would be based on that theory. This makes the feasibility of drawing up an acceptable constitution appear more straightforward than it actually is. Second, he assumes that Europe will eventually be politically unified in much the same manner as the United States, and does not consider alternatives. Rather than having a single European government, as Vibert suggests, a better alternative would be to have European nations united through a variety of treaties, agreements, and multinational organizations.

Pure eclecticism?The tool kit of the constitutional economist

It is claimed here that the epistemics of constitutional economics has hitherto at best played a minor role but that dwelling on the epistemics might prove useful to understand why the positive branch of constitutional economics is not as far advanced as its normative counterpart. Four possible methods-namely comparative institutional analysis, economic history, conjectural history, and laboratory experiments-are analyzed with regard to their epistemic potential. It is hypothesized that conjectural history promises only little potential while the other three methods can be used to complement each other.

Vibert's European union: A United Nations or a United States?

In his book, Europe: A Constitution for the Millennium, Frank Vibert explores every major issue that will arise in the design of a constitution for a European political union. Can the theoretical constructs of constitutional economics be used to aid in the practical design of a European constitution? This is what Vibert attempts to do in his book. This review contains a more detailed discussion and analysis of a few of Vibert's main theses. In particular, it focuses, on several key issues that will be the major determinants of whether the European Union will achieve lasting success.

Preparing Africa for the twenty-first century: Lessons from constitutional economics

In the 1960s, when most African countries gained independence, they had an opportunity to select new political and economic institutions to promote growth and development. After more than three decades of political autonomy, it now appears that the opportunity made possible by decolonization was wasted and never fully utilized to promote sustainable development in the continent. As a result, after more than thirty years of independence, most of Africa remains poor and highly deprived. Political economy in the continent is characterized by opportunism, promoted by political coalitions whose primary objective is to subvert the rules to generate benefits for themselves. The end of the Cold War and the subsequent cessation of superpower rivalry, in addition to the demise of apartheid in South Africa, has provided policy makers in Africa another opportunity to choose new institutions to lead Africans into the twenty-first century. Public choice and constitutional economics provide guidelines that can be utilized to develop efficient and self-enforcing institutions to enhance development and effect significant increases in social welfare in Africa in the next century.

Constitutional politics within the interest-group model

I examine constitutional politics using the interest-group model of politics. Constitutional economics argues that rent seeking is inevitable in majoritarian democracy and genuine reform is possible only at the constitutional level. By implication the constitutional equilibrium must differ from the political equilibrium. I examine reasons that such a difference might exist but find weak prospects for a general-interest victory over the special interest in constitutional politics. Although implicit constitutional change (for example, through Supreme Court reinterpretation) and explicit violation are substitute means of altering the constitution, the former dominates the latter. This suggests that a third factor participates in constitutional politics in addition to the general and special interests, which is support for the Constitution itself. Effective rules to restrain rent seeking need to ensure the congruence of the constitutional and general interests.