New Horizons in Law and Economics series
Edited by Alain Marciano and Jean-Michel Josselin
Introduction: The economics of the constitutional moment in Europe
Jean-Michel Josselin and Alain Marciano INTRODUCTION Europe provides a fascinating and far-reaching field of investigation for economists. Agriculture, industrial policy, transport and so on, are many subjects that are thoroughly dealt with. But what about law? The provision and the use of law cannot avoid strategic behaviour by individuals or groups of interest. The creation and development of constitutional frameworks cannot be dissociated from rent-seeking. Judges are granted the right of juris dictio and as such they have a tremendous power that they can use to further their own private interest. At the same time, they must deal with possible strategic behaviour by the plaintiffs and must find rational criteria to provide sound decisions. Economics is particularly well suited for analysing such topics as private or public law. Public choice and constitutional political economy (Buchanan, 1990) are relevant approaches which consist of using economic tools to understand the choice of rules instead of simply studying individual or collective behaviour within an exogenously given set of rules. When this set becomes endogenous, the scope widens to comprehend constitution-making processes and the various ways of juris dictio by judges. Public choice, constitutional political economy and law and economics are close enough perspectives to all belong to the new political economy. Public choice mainly focuses on political mechanisms (Mercuro and Medema, 1997, p. 84). The emphasis can also fruitfully shift from the politician to the judge, from the vote to the court decision. A law and economics perspective has to focus on the...