Here is an example of what I mean by the sense that in the eurozone crisis, law is a follower, not a leader, and at most a negotiable hold-up. This is drawn from one of my favorite economists, the Very Great Tyler Cowen, on how to exit the eurozone. From the end of his post (emphasis added):
Let’s sum up which problems have been addressed and which not. The domestic banking system is saved, at least provided the new conversion rate is credible enough that no one expects a repeat of the depreciation. It’s key to make that first announcement a real surprise, good luck! A negative wealth shock will come anyway and my plan has accelerated the arrival of that shock; the best one can do is to combine it with monetary expansion and the positive export shock from devaluation. To fix the external banks, the wealthier countries will need to exercise and perhaps improve their LOLR [Lender of Last Resort] powers, but that is the case under any plan, not just this one.
Admittedly this plan makes the wealth loss in Ruritania quite transparent, which may be politically unpopular, but that transparency eases the economics of the transition.
Voila! Rinse and repeat as necessary. A lot of this would be eased by high inflation from the eurozone itself but a) that would involve collateral costs on the healthier economies, and b) in any case it doesn’t look like it will happen. I’m sticking with what a small country can do on its own.
No need to write in the comments section that this is “illegal.” Breaking the three percent deficit rule, as France and Germany did, was illegal too. Ruritania will not be hauled before a court of law and I also predict Ruritania will not be ejected from EU per se. Maybe their agricultural subsidies will be cut, let them eat floating exchange rates I say.
This is drafted, from my international contracts lawyer point of view, the way a business person would draft a term sheet – a summary roadmap through the practicalities of business, finance, and some political considerations. But the legal and regulatory issues are essentially treated as revisable or else some form of negotiable hold-up; problems for the lawyers to work out but not as deeply part of the economic deal. They act as constraints on this account, transaction costs that must be paid off – but not truly “constitutional” constraints.
I mean by that, constraints in law that are more than just “hard” to change, but which are hard to change because they are part of a constitutional order, in which the constraints carry important legitimacy all their own that arise because they are, well, constitutive. Built into the structure in a way that is hard to change because people wanted it that way, to tie their hands into the future in a mutual undertaking in which people came together to tie not just each other’s hands but their genuinely collective hands, people together – and to tie the hands of the people who would come after. This idea of the independent power of legitimacy, and the function of constitutionalism as more than just a “really big holdup” is, in my experience, very hard to convey to economists, mostly because their world-view doesn’t make room for the underlying concept. At most, there’s some handwaving in the direction of “Oh, you mean institutional economics.” Actually, I mean more than that. I mean “constitutional law.”
But then Tyler Cowen points to a rather serious problem for my argument above. For years, we have been told in endless academic papers, books, symposia – mostly funded, however, by the EU in its one-way ratchet of ideological integration – that the EU is indeed a constitutional order, but of a special kind, a new phenomenon in the world, one that has th