Abstract
The Reason of Rules stands as a key text in the development of Constitutional Political Economy (CPE). While the achievements of the book in further shifting attention towards the constitutionalist perspective and providing a wide ranging discussion of the demand for rules are acknowledged, I suggest that the account of rules provided there and which still forms the core of much constitutionalist discussion in the Buchanan tradition seems limited. This paper revisits the analysis of rules in order to offer a broader perspective that is still consistent with the central ambitions of The Reason of Rules and CPE more generally.
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Notes
In particular, I will say little about the discussion of the relationship between rules and justice that occupies chapters 7 and 8.
The idea of rules as indicating a particular mode of play is discussed by Buchanan explicitly in Buchanan (1989). Where he refers to this type of rule as ‘game plans’ and where he identifies the adoption of ‘game plans’ with personal constitutions that are a form of departure from the strict Homo Economicus position. See Sect. 3 below for further related discussion.
This is one point at which the connection with Searle’s (1995) distinction between constitutive and regulative rules might be fruitful. Roughly, according to Searle constitutive rules create and define institutions, while regulative rules aim to condition activities that are independently defined. The links between such constitutive rules and primary rules and between regulative rules and tertiary rules are at least suggestive.
This list identifies a series of overlapping categories where there are few clear distinctions, but it is clear that items on this list form central elements of social and political theories in a variety of traditions.
Although even cell 1might be challenged in some constitutional traditions. For example, the 1919 constitution of the Weimar Republic was construed as not forming binding law. I am grateful to Hartmut Kliemt for this point.
The law of precedent might be seen as one mechanism whereby emergent modes of play may be granted a form of legal protection.
Of course in countries such as the UK the constitution has no claim to the status of higher law, but even here there is some sense that those laws that have constitutional significance (such as the recently proposed change in the voting system, or the proposal for independence for Scotland) require special consideration, even if that sense is itself not based in law.
Often with Geoffrey Brennan, see for example Brennan and Hamlin (1995, 2000, 2008). There is, of course, an enormous literature on the appropriate formulation of the idea of rationality and the criticism of the Homo Economicus model of motivation, for a selection in a variety of styles see: Williams (1976), Sen (1977), Henrich et al. (2001) and Thaler (2000).
For a detailed account of this argument and its wider implications see Hardin (2003).
It might initially seem that a third category of ‘rule-enforcer’ is also required, but it seems to view rule-enforcement as a special case of rule-following, since the enforcer is simply required to follow further, order rules of various kinds.
The standard prisoners’ dilemma provides an example where rational, self-interested individuals may consent to a tertiary rule, but then fail to comply with that rule. For a discussion of various forms of contractarianism that provides a discussion of the relationship between consent and compliance see Hamlin (forthcoming).
The juxtaposition of Homo Economicus and favourable references to broader motivational ideals is itself a theme in Buchanan’s work. For example, in his Nobel Prize address, in a section headed Homo Economicus, he argues that all that is required is that economic self-interest is a positively valued part of individual motivation and that only ‘over zealous’ theorists have suggested that self-interest is the sole motivation see Buchanan (1987). Similarly, reference to the need for a personal constitution involving rule-following, habits and ethical commitments can be found in works from at least The Limits of Liberty onwards, perhaps most clearly in Buchanan (1989). Despite the fact that Buchanan himself is repeatedly hospitable to motivations that go beyond Homo Economicus, it is nevertheless the case that he also repeats the benefits of the Homo Economicus model, and this model is still taken by many to provide the standard or mainstream CPE position.
In this context and given what I have described as the rather uneasy juxtaposition of Homo Economicus and non-Homo Economicus motivations in Buchanan’s own work, it is interesting that at least two of Buchanan’s major co-authors have developed arguments for motivational structures beyond Homo Economicus that would render rule-following and hence rule-making feasible. In addition to the references already cited in relation to Geoffrey Brennan see Brennan and Lomasky (1993). It is clear the Buchanan was involved in the development of the expressive voting argument at the time of the publication of The Reason of Rules, see Brennan and Buchanan (1984). For key references relating to Viktor Vanberg see Vanberg (1994, 2008). I have also already noted the rule-following element in the work of Elinor Ostrom as displayed in Ostrom et al. (1994). Since my primary focus here is on The Reason of Rules, I do not pursue the Vanberg and Ostrom formulations here but note that the argument sketched here is broadly consistent with their formulations. .
It is also standard to require that A > (C + D)/2 in defining the prisoners’ dilemma, and that is appropriate here.
Of course, if we were to admit of an expressive dimension to rationality it would be possible to argue that in at least some cases individuals might wish to establish a rule to express their commitment to that rule rather than to enforce compliance.
The strategies of recognizing psychological rewards and individual motivations that go beyond self-interest both amount to transforming the apparent payoffs in games such as the prisoners’ dilemma. An alternative strategy is to transform the assumption of agency and move away from an individualistic calculus towards a calculus based on teams or group identification. See, for example, Sugden (2000) and Gold and Sugden (2007). I will not pursue that strategy further here.
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