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From contract to mental model: Constitutional culture as a fact of the social sciences

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Abstract

This paper develops the concept of constitutional culture—the attitude, thoughts, and feelings about constitutional constraints and the nature, scope, and function of constitutionalism. Constitutional culture is approached as a complex emergent phenomenon bridging Hayekian cognitive and institutional insights. It can be studied as a mental model, a series of expectations and understandings about the constitutional order, how it is, and how it ought to be. The “map” and “model” approach from Hayek’s Sensory Order (1952) is employed to understand how individuals and (cautiously) groups of individuals at the national level approach constitutionalism. This paper goes beyond the more traditional one-size-fits-all approach where all individuals respond uniformly to incentives, as provided by the constitution qua contract. Instead, constitutionalism is tied up in the individual’s vision of the world, that is, what Hayek (1948) labels “the facts of the social sciences.” The paper concludes with four areas where constitutional culture can further the insights of constitutional political economy: comparative political economy, constitutional stickiness, constitutional maintenance, and the new development economics. KeywordsConstitutional culture-Mental models-Constitutional political economy-Constitutional maintenance-Informal institutions JEL ClassificationsB52-B53-F59-043-P48-Z13

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... When confronted with impersonal processes, we prefer to see design, purpose and agency" (Tonaka, 2010). For Hayek "the sensory order is an imperfect representation of the physical order, and there are limits to what the human mind can know, as knowledge is acquired from experience" (Wenzel, 2010). The presence of such built-in modes of thought/world maps such as the belief that order requires an orderer (the source of all topdown theories of cosmic and social order) also contribute to "an imperfect representation of the physical order" which can be overcome with sufficient experience. ...
... Without the right model, we make mistakes understanding the world. Widespread use of the wrong model will result in the same mistakes because "similar Hayekian maps (mental models) will lead to similar descriptions of the world among individuals with similar backgrounds and will thus never have exactly identical minds (Hayek 1952, 5.28)" (Wenzel, 2010). This is built on the species-specific structures that also unify us. ...
Chapter
Purpose – To present the connection between modern network theory and Hayek's ideas on the brain and spontaneous orders. Methodology/approach – To show that Hayek's ideas on the brain, spontaneous order, and why socialism cannot work are confirmed by network and self-organization theory, and to use network and self-organization theory to bridge Hayek's theory of the mind to his work on spontaneous orders. Findings – Spontaneous orders are scale-free networks, but humans evolved a preference for hierarchical networks, which are typical of tribes and firms – and socialism. However, hierarchies only work for teleological organizations, not for ateleological spontaneous orders like economies. Part of the human preference for human-organized networks comes from our “intentional stance,” which automatically sees patterns as evidence of an organizer. Research limitations/implications – This work acts as an introduction to possible directions in spontaneous order research. New work in bridging evolutionary and cognitive psychology (which includes Hayek's work) with self-organization and network theory acts as a promising development for neuro-Hayekians. Social implications – Understanding there is an evolutionary bias for certain kinds of networks, even though those are not appropriate for certain kinds of social orders, and understanding the nature of these networks should help us understand the true relationships among individuals, organizations, and spontaneous orders. Originality/value of chapter – This work brings Hayek “up to date,” with network theory and self-organization, showing to what extent Hayek was talking about these concepts. Seeing the similarities and differences between hierarchical and scale-free networks helps one understand how they come about, and in what contexts.
... If the syllabus talks about valuing everyone's time and yet the classroom experience does not reflect that, the syllabus language is useless. Like constitutions (Wenzel, 2010) however, syllabi are useful as a starting point for nurturing a mental model of the rigorous economics inquiry and discourse. ...
... In term of its substantial concern, expressivism focuses on the social and cultural contexts. While self-understanding embodied in the constitutional order may contain various visions, concepts, and beliefs, the one involving constitutionalism presents the "constitutional culture" of the polity, "a series of expectations and understandings about the constitutional order, how it is and how it ought to be." 49 Some scholars broadly define constitutional culture as inclusive of "the ideas, values, attitudes, and opinions people in a given polity hold with respect to law and the constitution." 50 This broad definition may include things that could be pertinent to the constitution but not necessarily be constitutional (for example, an attitude favoring a totalitarian regime), and therefore, may not be qualified as "constitutional culture." ...
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Western liberal constitutionalism has expanded recently, with, in East Asia, the constitutional systems of Japan, South Korea and Taiwan based on Western principles, and with even the socialist polities of China and Vietnam having some regard to such principles. Despite the alleged universal applicability of Western constitutionalism, however, the success of any constitutional system depends in part on the cultural values, customs and traditions of the country into which the constitutional system is planted. This book explains how the values, customs and traditions of East Asian countries are Confucian, and discusses how this is relevant to constitutional practice in the region. The book outlines how constitutionalism has developed in East Asia over a long period, considers different scholarly work on the ease or difficulty of integrating Western constitutionalism into countries with a Confucian outlook, and examines the prospects for such integration going forward. Throughout, the book covers detailed aspects of Confucianism and the workings of constitutions in practice.
... If the syllabus talks about valuing everyone's time and yet the classroom experience does not reflect that, the syllabus language is useless. Like constitutions (Wenzel, 2010) however, syllabi are useful as a starting point for nurturing a mental model of the rigorous economics inquiry and discourse. ...
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