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

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.