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Constitutional craftsmanship and the rule of law

Author

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  • Shruti Rajagopalan

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  • Richard Wagner

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Abstract

Is “rule of law” anything more than a fictional allusion? After all, “law” is an abstract noun, and abstract nouns can’t rule. Only people can rule. The conceptual framework of constitutional political economy invokes a central distinction between choosing rules and playing within those rules. Claims on behalf of a rule of law require a sharp distinction between the enforcement of agreed-upon rules and arbitrary changes in those rules. This paper explores whether there are constitutional arrangements under which it could reasonably be claimed that governance reflects a deep level operation of a rule of law despite the surface level recognition that it is men who rule. With the exercise of rulership being a social process and not a matter of individual action, the network pattern through which rules are enforced takes on particular significance. In particular, polycentric architectures are generally more consistent with rule of law than monocentric architectures. Copyright Springer Science+Business Media New York 2013

Suggested Citation

  • Shruti Rajagopalan & Richard Wagner, 2013. "Constitutional craftsmanship and the rule of law," Constitutional Political Economy, Springer, vol. 24(4), pages 295-309, December.
  • Handle: RePEc:kap:copoec:v:24:y:2013:i:4:p:295-309
    DOI: 10.1007/s10602-013-9144-9
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    References listed on IDEAS

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    1. Runst, Petrik & Wagner, Richard E., 2011. "Choice, emergence, and constitutional process: a framework for positive analysis," Journal of Institutional Economics, Cambridge University Press, vol. 7(1), pages 131-145, March.
    2. Eusepi Giuseppe & Wagner Richard E., 2010. "Polycentric Polity: Genuine vs. Spurious Federalism," Review of Law & Economics, De Gruyter, vol. 6(3), pages 329-345, December.
    3. Samuels, Warren J, 1972. "In Defense of a Positive Approach to Government as an Economic Variable," Journal of Law and Economics, University of Chicago Press, vol. 15(2), pages 453-459, October.
    4. Samuels, Warren J, 1971. "Interrelations Between Legal and Economic Processes," Journal of Law and Economics, University of Chicago Press, vol. 14(2), pages 435-450, October.
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    Citations

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    Cited by:

    1. Alexander Salter, 2015. "Calhoun’s concurrent majority as a generality norm," Constitutional Political Economy, Springer, vol. 26(3), pages 375-390, September.
    2. Alastair Berg & Chris Berg & Mikayla Novak, 2020. "Blockchains and constitutional catallaxy," Constitutional Political Economy, Springer, vol. 31(2), pages 188-204, June.
    3. George Tridimas, 2018. "On Sortition. Comment on “Proposals for a Democracy of the Future” by Bruno Frey," Homo Oeconomicus: Journal of Behavioral and Institutional Economics, Springer, vol. 35(1), pages 91-100, June.
    4. Richard E. Wagner, 2019. "The Oxford Handbook of Public Choice: a masterful compendium," Constitutional Political Economy, Springer, vol. 30(4), pages 467-479, December.
    5. Vlad Tarko & Andrew Farrant, 2019. "The efficiency of regulatory arbitrage," Public Choice, Springer, vol. 181(1), pages 141-166, October.
    6. Rajagopalan, Shruti, 2016. "Magna Carta revisited: parchment, guns, and constitutional order," International Review of Law and Economics, Elsevier, vol. 47(S), pages 53-59.

    More about this item

    Keywords

    Rule of law; Separation of powers; Constitutional political economy; Polycentrism; Constitutional drift; D85; K10; K40; P48;

    JEL classification:

    • D85 - Microeconomics - - Information, Knowledge, and Uncertainty - - - Network Formation
    • K10 - Law and Economics - - Basic Areas of Law - - - General (Constitutional Law)
    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General
    • P48 - Economic Systems - - Other Economic Systems - - - Political Economy; Legal Institutions; Property Rights; Natural Resources; Energy; Environment; Regional Studies

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