Choice, emergence, and constitutional process: a framework for positive analysis

Abstract

Constitutional theorizing typically employs a bi-level analytical framework wherein the choice of rules precedes the actions that people pursue within those rules. Constitutions are thus products of planning and are prior to the spontaneous ordering that characterizes market processes. This paper explores an alternative conceptual framework wherein rules and actions are coeval and not sequential. Hence, constitutions are subject to spontaneous ordering just as are ordinary market processes. All societies necessarily possess constitutional frameworks that frame the actions of participants; however, those frameworks are not fully settled prior to action but rather evolve through action, which means, in turn, that constitutions, like societies, are living entities and not background precepts against which societal life evolves. *We are grateful to two referees for offering comments and suggestions that helped us to clarify ambiguities that were present in the original version.

The limits of generality for constitutional design

“…To wit, there is a 'constitutional moment' which establishes the framework within which 'ordinary politics' then plays out over time Buchanan and Tullock, 1962;Brennan and Buchanan, 1980). While the stylized two-stage framework is often very useful, that does not change the fact that ordinary politics is tied up with the constitutional contestation in any society (Salter and Wagner, 2018: 282; also see Runst and Wagner, 2011).…”

Are institutional transplants viable? An examination in light of the proposals by Jeremy Bentham

“…In this sense, the foundation of institutions is of critical importance when we consider the problems of institutional design and institutional change (Kingston and Caballero, 2009; see also Runst and Wagner, 2011). In light of our previous discussion, and following the terminology used by Boettke et al .…”

Emergent politics and constitutional drift: the fragility of procedural liberalism

“…Wagner (2016; see also 2007, 2012, and Eusepi and Wagner, 2017) has developed a theory of political catallaxy the furthest; our framework here explicitly builds on his work. Perhaps most similarly, Runst and Wagner (2011) devise a constitutional framework that diverges from the conventional “pre-” and “post-constitutional” stages of rule selection. Rather than a sequential selection of constitutional rules, they argue that the process occurs simultaneously within a spontaneous order.…”