Josselin, Jean-Michel; Marciano, Alain --- "Introduction: The economics of the constitutional moment in Europe" [2002] ELECD 7; in Marciano, Alain; Josselin, Jean-Michel (eds), "The Economics of Harmonizing European Law" (Edward Elgar Publishing, 2002)

Book Title: The Economics of Harmonizing European Law

Editor(s): Marciano, Alain; Josselin, Jean-Michel

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781840646085

Section Title: Introduction: The economics of the constitutional moment in Europe

Author(s): Josselin, Jean-Michel; Marciano, Alain

Number of pages: 24

Extract:

Introduction: The economics of the
constitutional moment in
Europe
Jean-Michel Josselin and
Alain Marciano

INTRODUCTION
Europe provides a fascinating and far-reaching field of investigation for econ-
omists. Agriculture, industrial policy, transport and so on, are many subjects
that are thoroughly dealt with. But what about law? The provision and the use
of law cannot avoid strategic behaviour by individuals or groups of interest.
The creation and development of constitutional frameworks cannot be disso-
ciated from rent-seeking. Judges are granted the right of juris dictio and as
such they have a tremendous power that they can use to further their own
private interest. At the same time, they must deal with possible strategic
behaviour by the plaintiffs and must find rational criteria to provide sound
decisions. Economics is particularly well suited for analysing such topics as
private or public law. Public choice and constitutional political economy
(Buchanan, 1990) are relevant approaches which consist of using economic
tools to understand the choice of rules instead of simply studying individual or
collective behaviour within an exogenously given set of rules. When this set
becomes endogenous, the scope widens to comprehend constitution-making
processes and the various ways of juris dictio by judges. Public choice, consti-
tutional political economy and law and economics are close enough perspec-
tives to all belong to the new political economy. Public choice mainly focuses
on political mechanisms (Mercuro and Medema, 1997, p. 84). The emphasis
can also fruitfully shift from the politician to the judge, ...