Philosophy Dictionary of ArgumentsHome
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| Constitutional structures: Constitutional structures are the fundamental framework that establishes the organization and powers of government within a country. They outline the separation of powers, the checks and balances between different branches of government, and the rights and responsibilities of citizens. See also Constitution, State (Polity), Society, Rights, Law._____________Annotation: The above characterizations of concepts are neither definitions nor exhausting presentations of problems related to them. Instead, they are intended to give a short introduction to the contributions below. – Lexicon of Arguments. | |||
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Public Choice Theory on Constitutional Structures - Dictionary of Arguments
Parisi I 189 Constitutional structure/Public choice theory/Farber: The choice between parliamentary and presidential government is one of the major dividing lines among democratic governments. Disappointingly, public choice does not provide clear insights into the relative merits of the two systems. Parliamentarism: Empirical studies are also inconclusive, although there is some evidence that parliamentary systems are more robust on average (Ginsburg, 2010(1), pp. 271-272). Federalism: There is a much richer body of literature about federalism.* The essential benefit of decentralizing governance is that it allows laws to be tailored more closely to public preferences. If there are no spillover effects between jurisdictions, then decentralization allows each locality to adopt policies catering to its own preferences rather than imposing a "one size fits all" national uniformity. The advantages are similar to allowing consumers to buy a variety of goods rather than limiting production only to a single model preferred by a majority. This argument provides a justification for local voice by showing how it might be useful to allow existing local populations to pick their own laws. That is an argument for local voice. But besides voting on local policies, individuals can also express their preferences by moving to jurisdictions with congenial policies. This power of exit can result in better alignment between preferences and laws (Cooter, 2002(2), ch. 6). >Federalism/Public choice theory. Parisi I 192 Constitutional structure/Public choice theory/Farber: (…) majority voting by itself is not enough to produce coherent, stable outcomes except in some circumstances. In some parliamentary regimes, the solution is to delegate power to a Prime Minister or a cabinet, who can only be dislodged with difficulty before the end of her term. Governmental structures: One of the fundamental insights of public choice is that structures such as bicameralism and gatekeeper committees can limit cycling. (Cf. >Arrow’s Theorem). The reason is simply that adding veto points cuts the "win set" of proposals that can defeat any specific proposal. Essentially, giving multiple groups veto power blocks cycling except when (1) there is an identical cycle in the preferences of each of these groups, and (2) at least one proposal in the cycle is preferred to the status quo by each of these groups. In the extreme case of unanimous consent requirements, each legislator has a veto, making cycling impossible (though at the price of heavily privileging the status quo). ((s) Cf. >Veto player.) Procedural rules: Procedural rules may prevent observation of cycles in practice even in cases where the legislator's preferences do cycle. The agenda setter can potentially arrange a series of votes that will result in majority adoption of the agenda setter's preferred item in the cycle as the final outcome. Parisi I 193 Procedural rules may also limit the issue space—for instance, a committee may only have jurisdiction over a single-issue dimension, making it more likely that preferences will be single-peaked and therefore not open to cycling. The implication of these insights for statutory interpretation (Noll, McCubbins, and Weingast, 1994)(3) are an open and highly contested question (Eskridge, Frickey, and Garrett, 2006(4), pp. 219-257). Some scholars argue that courts can identify the key decision-makers and their goals well enough in the legislative history to take these views into account in interpreting statutes. Others view the process as too opaque for judicial investigation and instead argue that judges should abandon the idea of legislative intent when interpreting statutes (Easterbrook, 1983)(5). Preferences: (…) the existence of incoherent preferences does not necessarily translate into indeterminate meaning, quite apart from public choice theory. Given full information and zero drafting costs, we could infer that the actions of key agenda setters and veto gates must have combined to support the proposal over an alternative that was identical other than in its application to the circumstances in question. But even with those strong assumptions, there would be no need to reconstruct the preferences of those individuals in order to interpret the statute. * See Hills, R. M. (2010) "Federalism and Public Choice," in D. A. Farber and A. J. O'Connell, eds. Research Handbook on Public Choice and Public Law, 207-233. Northampton, MA: Edward Elgar. 1. Ginsburg, T. (2010). "Public Choice and Constitutional Decision," in D. A. Farber and A. J. O'Connell, eds., Research Handbook on Public Choice and Public Law, 261-282. Northampton, MA: Edward Elgar. 2. Cooter, R. D. (2002). The Strategic constitution. Princeton, NJ: Princeton University Press. 3. Noll, R., M. McCubbins, and B. Weingast (writing as "McNollgast") (1994). "Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation." Law and Contemporary Problems 57(1):3-37. 4. Eskridge, W. N., P. P. Frickey, and E. Garrett (2006). Legislation and Statutory Interpretation. 2nd edition. St. Paul, MN: Foundation Press. 5. Easterbrook, F. H. (1983). "Statutes' Domains." University of Chicago Law Review 50(2): 53 3— 552. Farber, Daniel A. “Public Choice Theory and Legal Institutions”. In: Parisi, Francesco (ed) (2017). The Oxford Handbook of Law and Economics. Vol 1: Methodology and Concepts. NY: Oxford University Press_____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments The note [Concept/Author], [Author1]Vs[Author2] or [Author]Vs[term] resp. "problem:"/"solution:", "old:"/"new:" and "thesis:" is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition. |
Public Choice Theory Parisi I Francesco Parisi (Ed) The Oxford Handbook of Law and Economics: Volume 1: Methodology and Concepts New York 2017 |
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> Counter arguments against Public Choice Theory
> Counter arguments in relation to Constitutional Structures
Ed. Martin Schulz, access date 2024-04-28