Mashaw, Jerry --- "Public Law and Public Choice: Critique and Rapprochement" [2010] ELECD 308; in Farber, A. Daniel; O’Connell, Joseph Anne (eds), "Research Handbook on Public Choice and Public Law" (Edward Elgar Publishing, 2010)

Book Title: Research Handbook on Public Choice and Public Law

Editor(s): Farber, A. Daniel; O’Connell, Joseph Anne

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847206749

Section: Chapter 1

Section Title: Public Law and Public Choice: Critique and Rapprochement

Author(s): Mashaw, Jerry

Number of pages: 30

Extract:

1 Public law and public choice: critique and
rapprochement
Jerry Mashaw


Introduction
Public choice theory is a theory of how government works and therefore of how public
law is made and applied. But it is not a theory like the general theory of the second
best, that is, a single proposition that articulates a general truth. It is better understood
as a field whose practitioners share some general commitments and whose boundaries
remain fuzzy. Public choice is a part of the more general fields of law and economics or
of political science. It has affinities and overlaps with fields that use different labels, such
as `social choice' and it is difficult to distinguish from the work of those who style them-
selves as contributors to positive political theory, but who would not necessarily identify
themselves as public choice theorists.
For purposes of this chapter I will not attempt to distinguish carefully among Public
Choice Theory (PCT), Positive Political Theory (PPT) and Social (or Collective) Choice
Theory (SCT). For they all share a basic assumption: that political actors ­ the indi-
viduals, groups, and politico-legal institutions that make public law ­ act on the basis of
rational self-interest. And they all seek to understand what types of decisions and legal
arrangements will emerge from the interactions of individual or organizational prefer-
ences and particular institutional arrangements for decision making. This is a micro-level
form of analysis that does not rely on descriptions or predictive hypotheses employing
broader sociological constructs such ...