Contractarian Political Economy and Constitutional Interpretation
从契约主义视角探讨宪法解释问题，主张以交换范式替代最大化范式，并分析其对司法能动主义、立法尊重等争议的启示。
At the meetings in 1974, I presented a paper entitled, A Contractarian Paradigm for Applying Economic Theory (printed 1975). In that paper, along with others (see my 1979 book), I argued that our subject matter is centrally a of or a science of contract,' and that the exchange paradigm should take precedence over the maximizing paradigm. This shift in the focus of positive inquiry carries normative implications. Conceptions such as aggregate efficiency in the allocation of resources become, at best, examples of functionalist error, along with the more explicitly normative variants of the social welfare function. The contractarian or catallactic approach to economic interaction suggests that systems or subsystems be evaluated in terms of the comparative ease or facility with which voluntary exchanges, contracts, or trades may be arranged between and among members of the community. Normative judgments take the form of statements that array better and worse processes (rules, laws, institutions) within which exchanges are allowed to take place. These judgments are categorically distinct from those that array and evaluate results or outcomes. This shift in normative political economy has implications for the issues of constitutional interpretation debated by legal scholars and philosophers. These issues involve disputes along several related and intersecting dimensions: between judicial activism and nonactivism; between judicial deference to legislative authority and judicial independence; between strict constructivism and pragmatism; between original intent and legal environmentalism; between teleological and deontological conceptions of law. My purpose here is to discuss some of these contractarian implications for constitutional interpretation. This is a limited purpose, and I advance no direct and extended argument on either general philosophical issues, or on points of debate in particular legal settings. Any identifiable contribution of the contractarian political economist must emerge from the differentially abstracted order that his perspective imposes on social reality. Section I covers the familiar distinction between an individualistic and a communitarian starting point. The implication for legal interpretation of constitutional rules is almost self-evident. In Section II, I again go over analysis, developed elsewhere, that extends the catallactic paradigm from the economy to the political order, and, in particular, to the design, selection, and enforcement of constitutional rules. Section III examines the implications for judicial interpretation of the political constitution, and, in particular, the implications for the debate between strict constructivism and pragmatism and between original intent and legal environmentalism. In Section IV, the argument is extended to the contractarian's stance in interpretative confrontation with rules that cannot find a logic in any contractarian ideal.