The Strategic Constitution

Making, amending, and interpreting constitutions is a political game that can yield widespread suffering or secure a nation's liberty and prosperity. Given these high stakes, Robert Cooter argues that constitutional theory should trouble itself less with literary analysis and arguments over founders' intentions and focus much more on the real-world consequences of various constitutional provisions and choices. Pooling the best available theories from economics and political science, particularly those developed from game theory, Cooter's economic analysis of constitutions fundamentally recasts a field of growing interest and dramatic international importance. By uncovering the constitutional incentives that influence citizens, politicians, administrators, and judges, Cooter exposes fault lines in alternative forms of democracy: unitary versus federal states, deep administration versus many elections, parliamentary versus presidential systems, unicameral versus bicameral legislatures, common versus civil law, and liberty versus equality rights. Cooter applies an efficiency test to these alternatives, asking how far they satisfy the preferences of citizens for laws and public goods. To answer Cooter contrasts two types of democracy, which he defines as competitive government. The center of the political spectrum defeats the extremes in "median democracy," whereas representatives of all the citizens bargain over laws and public goods in "bargain democracy." Bargaining can realize all the gains from political trades, or bargaining can collapse into an unstable contest of redistribution. States plagued by instability and contests over redistribution should move towards median democracy by increasing transaction costs and reducing the power of the extremes. Specifically, promoting median versus bargain democracy involves promoting winner-take-all elections versus proportional representation, two parties versus multiple parties, referenda versus representative democracy, and special governments versus comprehensive governments. This innovative theory will have ramifications felt across national and disciplinary borders, and will be debated by a large audience, including the growing pool of economists interested in how law and politics shape economic policy, political scientists using game theory or specializing in constitutional law, and academic lawyers. The approach will also garner attention from students of political science, law, and economics, as well as policy makers working in and with new democracies where constitutions are being written and refined.

Historically, Canada's Constitution has been principally viewed as a federal framework or a rights bulwark. This book offers a new interpretation. The "Strategic Constitution," as proposed by Irvin Studin, is a framework for understanding the capacity of Canada to project strategic power in the world. First, Studin provides a wide-ranging audit of the Constitution in terms of its treatment of factors of strategic power. He then applies the Strategic Constitution framework to four policy case studies. Provocative and well-argued, this book makes the case for the Constitution being a flexible national framework that quietly harbours seeds of national strategic potency.

What happens when previously autonomous firms from different countries, each with their own identities, routines, and capabilities, come together inside a single multinational corporation? Can a cooperative strategy be established that advances the development of the multinational as a whole, or do mutual misunderstandings and the unintended consequences of strategic interaction among the players lead instead to endemic conflict and disintegration? This book tackles these novel and important questions through an empirical study of the strategic constitution of an 'actually existing' multinational. It does so by tracing the historical construction of the multinational corporation from the confluence of multiple formerly independent firms and analyzing the interacting web of strategies pursued by different actors within it. The analysis reveals how workers, unionists, subsidiary managers, and corporate executives pursue separate strategic games rooted in their local contexts, whose global outcome contrasts sharply with idealized views of the multinational as an integrated and coordinated organization. By comparing these findings to those of the broader literature, the book proceeds to a theoretical examination of the challenges of managing the multinational, and the difficulties of resolving them through conventional organizational means. The authors propose new procedural solutions aimed at fostering mutual recognition and knowledge exchange within the multinational corporation, and explore how a multinational public may be created to press for the necessary reforms in corporate governance. As the success of such reforms is far from preordained, the book concludes with a series of alternative scenarios that illustrate the many obstacles to a smooth continuation of the globalization process. This is an important and original study of significance for researchers, academics, and advanced students of international business, business strategy, economics, organizational studies, economic sociology, economic geography, and international political economy.

This book was written mainly during the Spring periods of 2008 and 2009, when the ?rst author was visiting Maastricht University. Financial s- port both from the Dutch Science Foundation NWO (grants 040. 11. 013 and 0. 40. 11. 082) and from the research institute METEOR (Maastricht Univ- sity) is gratefully acknowledged. Jerusalem Bezalel Peleg Maastricht Hans Peters April 2010 v Contents Preview to this book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi Part I Representations of constitutions 1 Introduction to Part I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. 1 Motivation and summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. 2 Arrow’s constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. 3 Arrow’s Impossibility Theorem and its implications. . . . . . . . . 4 1. 4 Ga ̈rdenfors’s model. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1. 5 Notes and comments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2 Constitutions, e?ectivity functions, and game forms . . . . . . 7 2. 1 Motivation and summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2. 2 Constitutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2. 3 Constitutions and e?ectivity functions . . . . . . . . . . . . . . . . . . . . 12 2. 4 Game forms and a representation theorem. . . . . . . . . . . . . . . . . 16 2. 5 Representation and simultaneous exercising of rights. . . . . . . . 19 2. 6 Notes and comments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 3 Nash consistent representations. . . . . . . . . . . . . . . . . . . . . . . . . . . 21 3. 1 Motivation and summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 3. 2 Existence of Nash consistent representations: a general result 22 3. 3 The case of ?nitely many alternatives. . . . . . . . . . . . . . . . . . . . . 24 3. 4 Nash consistent representations of topological e?ectivity functions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 3. 5 Veto functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 3. 5. 1 Finitely many alternatives. . . . . . . . . . . . . . . . . . . . . . . . . 34 3. 5. 2 Topological veto functions. . . . . . . . . . . . . . . . . . . . . . . . . 36 3. 6 Liberalism and Pareto optimality of Nash equilibria. . . . . . . . . 40 3. 7 Notes and comments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 vii viii Contents 4 Acceptable representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 4. 1 Motivation and summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

He discusses several heresthetical maneuvers that made the Federalists' narrow victory possible, such as their proposal of a constitution that was broader than most citizens would have preferred, and their design of the ratification process as a take-it-or-leave-it proposition, so that they could prevent any ratifying state from altering it. Riker concludes by examining the relationship between rhetoric and heresthetic. He shows that both were necessary for the Federalist victory: rhetoric, to build support for Federalist positions, and heresthetic, to structure the choice process so that this level of support would be sufficient.

"This volume analyses the social and political forces that influence constitutions and the process of constitution making. It combines theoretical perspectives on the social and political foundations of constitutions with a range of detailed case studies of constitution making in nineteen different countries. In the first part of the volume, leading scholars analyse and develop a range of theoretical perspectives, including constitutions as coordination devices, mission statements, contracts, products of domestic power play, transnational documents, and as reflection of the will of the people. In the second part of the volume, these theories are examined through in-depth case studies of the social and political foundations of constitutions in countries such as Egypt, Nigeria, Japan, Romania, Bulgaria, New Zealand, Israel, Argentina, and others. The result is a multidimensional study of constitutions as social phenomena and their interaction with other social phenomena. The approach combines social science analysis of the nature of constitutions with case studies of selected constitutions"--

"A Practical Guide to Constitution Building provides an essential foundation for understanding constitutions and constitution building. Full of world examples of ground-breaking agreements and innovative provisions adopted during processes of constitutional change, the Guide offers a wide range of examples of how constitutions develop and how their development can establish and entrench democratic values. Beyond comparative examples, the Guide contains in-depth analysis of key components of constitutions and the forces of change that shape them. The Guide analyzes the adoption of the substantive elements of a new constitution by looking at forces for the aggregation or dissemination of governmental power, and forces for greater legalization or politicization of governmental power, and examining how these forces influence the content of the constitution. It urges practitioners to look carefully at the forces at play within their individual contexts in order to better understand constitutional dynamics and play a role in shaping a constitution that will put into place a functioning democratic government and foster lasting peace."--

There is a great difficulty in the way of a writer who attempts to sketch a living Constitution-a Constitution that is in actual work and power. The difficulty is that the object is in constant change. An historical writer does not feel this difficulty: he deals only with the past; he can say definitely, the Constitution worked in such and such a manner in the year at which he begins, and in a manner in such and such respects different in the year at which he ends; he begins with a definite point of time and ends with one also. But a contemporary writer who tries to paint what is before him is puzzled and a perplexed: what he sees is changing daily. He must paint it as it stood at some one time, or else he will be putting side by side in his representations things which never were contemporaneous in reality.