Law Professor shows how contract doctrine tackles real-world constitutional problems

26 May 2011

On 25th May, Professor Tom Ginsburg from the University of Chicago delivered a lecture in which he outlined his argument that, contrary to prevailing theories, contract thinking is far from redundant in explaining how constitutions are negotiated and maintained, and that in fact, modern developments in contract theory provide a set of valuable tools to understand constitutional design. 

The lecture, entitled 'Constitutions as Contract, Constitutions as Charter', was held at the Manor Road Building in Oxford, and came in response to an earlier workshop in the FLJS programme investigating social and political foundations of constitutions, in which Professor Russell Hardin (NYU) proposed a model of coordination as a more useful one than contract in constitutional theory.

Professor Ginsburg began by addressing the principal criticisms of contract theory, rebutting objections based on consent, third-party enforcement, and ongoing governance. He cited examples of popular acquiescence by majorities in generally unpopular constitutional settlements, such as that over the disputed election between George Bush and Al Gore, and argued that minorities that are subjected to unjust constitutional settlements frequently acquiesce because of coercion or suppression, rather than for purposes of coordination.

Turning to more recent examples of constitution-making in an age characterized by failed states and international interventionism, Professor Ginsburg argued that the nation-building efforts in Afghanistan have seen third parties such as the UN and US become enforcing agents in that constitutional contract. 

The second part of the lecture showed what we can learn about constitution-making and constitutional design by examining it through the lens of contract theory. Here, Professor Ginsburg alluded to the situation in Iraq, in which the new constitution, rather than being a coordination of all the ethnic groups in the country, was developed through a bargaining process between only the three most powerful groups: the Sunni, Shi'ites, and Kurds. These, he termed 'spoilers', in that they held the potential to upset the constitutional settlement if excluded from the negotiating table. It is clear, then, that it is the groups that have a viable option to secede from the constitutional contract which wield the greatest bargaining power and influence over the final drafting of the constitution.

Professor Ginsburg went on to identify the incentive to hide information in the constitutional bargaining process, for instance, to disguise the nature of assets held by a party in order to gain more than an equitable settlement in constitutional negotiations. Moreover, minority parties are incentivized to argue for what he termed 'insurance provisions' such as judicial review, whereby concessions that they would be too weak to demand in the initial constitution-drafting process may be attained with constitutional review and revision in the future.

The lecture was the first in a summer series investigating the social and political foundations of constitutions. The next event in this series is the FLJS Annual Lecture 2011, on 15th June. For further details and to reserve your place, visit the Constitutions Programme page.