- Elgar original reference
Edited by William F. Shughart II and Laura Razzolini
5 Constitutional choice Geoffrey Brennan and Alan Hamlin 1 The nature of constitutional choice Central to the analysis of constitutional choice is a distinction between the ‘constitutional’ and ‘in-period’ level of decision making. The latter is choice within rules; the former is choice of the rules. Or, as James Buchanan sometimes puts it, constitutional choice is the choice among constraints in contrast to choice under constraints, which is the central preoccupation of ordinary economics. However, neither ‘rules’ nor ‘constraints’ should be interpreted narrowly here; the constitutional level of choice is concerned with all those rules, constraints, laws, conventions, customs and institutional arrangements that jointly constitute social order. Equally the idea of ‘choice’ is not limited to some explicit, deliberative process, but is intended to include a considerably wider range of processes by which social order may emerge from individual decision making.1 The idea of ‘constitutional choice’, so understood, is to be distinguished from the choice of capital-C ‘Constitutions’, with the latter understood as legal documents that seek to specify some aspects of the political and economic institutions of a political community. Often, capital-C Constitutions are only a small part of the set of rules that govern ‘in-period’ choices. Equally, capital-C Constitutions often include elements that are not small-c ‘constitutional’ in our sense at all.2 Our use of small-c ‘constitutional’ is, at one level, entirely metaphorical: it gestures at a kind of essentialist conception of capital-C Constitution making, but is neither exhausted by nor exhausts that essentially legal exercise. At another...
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