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The Elgar Companion to Law and Economics, Second Edition

Edited by Jürgen G. Backhaus

This thoroughly updated and revised edition of a popular and authoritative reference work introduces the reader to the major concepts and leading contributors in the field of law and economics. The Companion features accessible, informative and provocative entries on all the significant issues, and breaks new ground by bringing together widely dispersed yet theoretically congruent ideas.
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Chapter 13: Constitutional Economics II

Ludwig Van den Hauwe


Ludwig Van den Hauwe Introduction The term ‘constitutional economics’ or ‘constitutional political economy’ was introduced in the 1970s to designate a distinct strand of research that emerged from the somewhat older public choice branch of economics.1 In the 1990s, constitutional economics developed into a major research programme. At a time of massive worldwide constitutional change, it came as no surprise that the focus of public choice discussion was shifted away from ordinary political choices to the institutional–constitutional structure within which politics takes place. However, the subject matter is not new. Broadly conceived, constitutional economics is an important component of a more general revival of the classical approach. It draws substantial inspiration from the encompassing theoretical perspective and the reformist attitude that were characteristic of Adam Smith’s vision. Buchanan’s constitutional political economy can be considered the modern-day counterpart to what Smith called ‘the science of legislation’, an academic enterprise that seeks to bring closer together again the economic, social, political, philosophical and legal perspectives that were once part of the study of ‘moral philosophy’. One might be tempted to characterize constitutional political economy simply – and somewhat narrowly – as ‘the economic analysis of constitutional law’. It cannot be denied that the examination of real-world constitutions using the perspective of modern constitutional political economy is an interesting exercise and may provide a kind of test for the usefulness of this approach. Reference can be made to several interesting case studies.2 However, such a definitional strategy may tend to be somewhat misleading....

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