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The great medieval scholar Thomas Aquinas, father of modern natural law theory, died on this day in 1274.
Russell Hardin (1999, pp. 88-89) gives three reasons why a constitution is NOT like a contract. First, according to Hardin, a constitution is designed to create a government for a large group of people; a contract, by contrast, is designed to solve a prisoner’s dilemma between two parties. Second, a constitution does not require an explicit agreement among the people to be effective once it is adopted, while an essential element of contracts is mutual agreement between the parties to the contract. Third and last, constitutions are self-enforcing; contracts are enforced by courts. Alas, Hardin is wrong. Let’s examine each one of these arguments in reverse order:
* Constitutions are self-enforcing; contracts are enforced by external sanctions (the courts). What does it mean to say that constitutions are “self-enforcing”? The U.S. Constitution, for example, allocates to the political branches the power to enforce various provisions of the constitution, or as Hamilton wrote in The Federalist, the Congress has the power of the purse, while the President has power of the sword. Frankly, whether these enforcement powers are internal or external is just a play on words. In addition, many contracts are just as self-enforcing as constitutions are, especially long-term agreements or so-called “relational contracts” in which the parties care about their reputations and have more to lose by breaking their promises than keeping them.
* Constitutions are designed for large groups of people; contracts are designed to solve a prisoner’s dilemma between two parties. No, this claim is not right, for both contracts and constitutions are designed to solve prisoner’s dilemmas. In the case of a constitution, the prisoner’s dilemma involves a larger group of people, to be sure, but the underlying strategic problem in creating a government (via a constitution) is whether to cooperate (obey the laws of the new government) or defect (every man or clan for himself). In a previous paper (Guerra-Pujol, 2008), for example, we used the “stag hunt” model to describe the strategic nature of the process of constitutional ratification. Without getting into all the technical details (this is a blog post, after all), a stag hunt is a special kind of group prisoner’s dilemma (see image below): without a constitution, it is in most factions’ individual interest to defect and go it alone; with a constitution, it is in most factions’ interest to play by the rules (or game the rules) and cooperate.
Is our disagreement with Hardin just another trivial academic squabble? I, for one, actually agree with Hardin’s larger point about the strategic nature of constitutions. My main point here is that commercial transactions and most contracts also share many of the same strategic elements that constitutions do. But again, why does any of this matter? If constitutions are often like contracts (or vice versa, if contracts are often like constitutions), this observation should inform the role of the courts in enforcing these two types of agreements. In a word, judges should be humble …
Welcome to our eclectic scholarly jungle! Our Spring Break is still a week away, but here is what we’ve been reading or rereading or will start reading over our break:
- Unwritten Rules, an essay by Stephen Sniderman.
- Fides et Ratio (pictured below), Pope John Paul II’s encyclical on the relation between faith and reason.
- The Art of Game Design, a comprehensive, interdisciplinary guidebook for game designers written by Jesse Schell.
- Ten Great Ideas about Chance (pictured below), a history of the main breakthroughs in probability theory written by Brian Skyrms and Persi Diaconis.
- Chapters 3 and 4 of Russell Hardin’s book Liberalism, Constitutionalism, and Democracy. (Chapter 3 is titled Contract or Coordination?; Chapter 4 is Agreement or Acquiescence?)
- Chapters 1, 3, 5, and 10 of Playing to Learn with Reacting to the Past, a collection of essays about role play games in education (edited by C. Edward Watson and Thomas Chase Hagood).
- Framing Contract Law, an interdisciplinary treatise by Columbia University law and economics professor Victor Goldberg. (My friend, colleague, and fellow contract law scholar Dan O’Gorman and I will be meeting on weekends to discuss the main ideas of this book.)
As Daddy Yankee raps in the Spanish version of Camila Cabello’s beautiful song Havana: la libertad que bien te sabe! According to Wikipedia, copyleft is the Internet-era practice of allowing people the right to freely distribute copies and modified versions of an original work with the stipulation that the same rights be preserved in derivative works down the line. (As an aside, we’re not the only ones who love the song “Havana” or who can’t wait for the Cuban people to be free.)
That is the title of our first submission to The Journal of Brief Ideas. In brief (pun intended), The Journal of Brief Ideas is an open access scholarly digest of micro papers that set forth new ideas in 200 words or less. Here, then, is our first micro research paper (consisting of 162 words): “Why do juries emit binary verdicts, i.e. guilty or not guilty? Why not allow each juror to emit a “Bayesian vote” reflecting his/her subjective degree of belief in the probability of the defendant’s guilt? Under this alternative method of Bayesian voting, jurors would “score” the evidence presented by the parties at trial on a scale of 0 to 1 or some other scale. (Whatever scale is used, the higher one’s score, the greater one’s subjective degree of belief in the defendant’s guilt, while a midpoint score, such as 0.5, means the juror is undecided about the question of guilt.) Such a simple system of scoring would then produce a numerical verdict, a Bayesian verdict, consisting of an average value or sum total of the jurors’ individual scores. Under this method of voting, the moving party would prevail only if the average value or sum total, as the case may be, of the jury’s collective score exceeds some critical threshold value.”