ECONOMY

ussell hardin 301
is the result of popular acquiescence to the regime rather than of genuine approval or
support of it. Acquiescence might be readier once a government gains great power
to block opposition. To get initial coordination on a constitution and its regime,
however, is likely to require a fairly broad degree of support. But it does not require
continuing support to maintain a regime that once has power and control of the
mechanisms of office.
The core issue in constitutionalism is how a government under a constitution is
empowered (especially initially). Once it is, it can maintain social order and it can resolve
prisoner’s dilemma and other interactions, including other coordination problems.
Trivially, for example, it can establish orderly traffic laws. Constitutionalism is
a two-stage problem. At the first stage temporally, we coordinate on a constitution
and its form of government. At the second stage, that government then enables us to
maintain order and to resolve various ordinary problems, many of which are between
individuals or small groups of individuals rather than, like the constitution, at the
whole-society level.
Finally note that in the law, contracts have been pushed in two directions against
the simple, classical model implicit in the discussion here. First, many issues have
been taken out of the realm of binding contractual agreement no matter what we
agree to. For example, your apartment lease might say you cannot have house pets
but the law may say you can, and the contract for the lease is not binding even
though you might sign it. Second, many issues in especially complex deals cannot
be easily adjudicated by courts, so that relevant contracts are not enforceable by legal
authorities but must be self-enforcing (Williamson 1985). They may, for example,
be enforced by the incentives we have to maintain good relations or good reputations.
In this respect, contracts have become more like constitutions. One could say
that the meaning of contract has changed or that we have displaced it with other
devices. A defender of the social contract tradition could, falsely, say that finally
we have developed a conception of contract that fits what the tradition has really
been about.
4 What Constitutions Do
.............................................................................
To achieve justice and social order we must design institutions or norms to bring
about just resolutions. Hence, justice is inherently a two-stage concern. It will bring
about mutual advantage but the actions we take within the justice system will not
each by itself necessarily bring about mutual advantage. It is the whole scheme of
justice that is mutually advantageous, not its adjudications in specific cases.
We might object and say that the system ought to be corrected and overridden
when it does not produce the more mutually advantageous outcome in a particular
case. Rawls (1955) demolishes such views in his argument that we create an institution,
whosedesigndeterminestherolesofindividualswithinit,andtheserolesdetermine