Constitutions as Coordinating Devices

Abstract

Why do successful constitutions have the attributes characteristically associated with the rule of law? Why do constitutions involve public reasoning? And, how is such a system sustained as an equilibrium? In this paper, we adapt the framework in our previous work on “what is law?” to the problem of constitutions and their enforcement (see Hadfield and Weingast 2012, 2013a,b). We present an account of constitutional law characterized by two features: a system of distinctive reasoning and process that is grounded in economic and political functionality; and a set of legal attributes such as generality, stability, publicity, clarity, non-contradictoriness, and consistency. We argue that constitutions have developed their distinctive structure, at least in part, to coordinate beliefs among diverse individuals and thus to improve the efficacy of decentralized rule enforcement mechanisms, the only way in which constitutions can be enforced. In our account, constitutions involve a specialized system of reasoning that seeks to converge on the categorization of actions as either “constitutional” – that is, acceptable – or not, the latter warranting punishment/action. We contend that a designated system of specialized reasoning helps coordinate beliefs by undertaking two tasks: reducing ambiguity and thus serving as a focal point around which people can coordinate their enforcement behavior; and providing a process of public reasoning that, among other things, extends and adapts existing rules to novel circumstances.