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4 Eur. J.L. & Econ. 5 (1997)

handle is hein.journals/eurjlwec4 and id is 1 raw text is: European Journal of Law and Economics, 4:5-21 (1997) © 1997 Kluwer Academic Publishers The Paradox of Leviathan: How to Develop and Contain the Future European State? JEAN-MICHEL JOSSELIN Universite de Rennes I, Centre National de la Recherche Scientifique-Crefaur ALAIN MARCIANO Universite de Corse-Pascal Paoli, Centre National de la Recherche Scientifique-Greqam Abstract Using a constitutional political economy perspective, we study the paradox of government (how a limited gov- ernment can stay limited) and the different ways in which systems of law try to solve it. We then provide a ten- tative application to a possible European state and assess the relevance of some member countries' constitution- al and administrative law, if they were both to develop and to contain this European state. Keywords: Constitutional political economy, public choice, systems of law, induction, constitutional law, administrative law Economic activity develops within juridical systems that are by no means neutral. On its path toward integration, Europe cannot do without a clear vision of what its constitution- al and legal system might be. Beside positive analysis of European integration (Vaubel, 1994, provides a comprehensive survey), normative suggestions have already been put for- ward (see Schneider's 1992 review and proposals), but we would like to concentrate here on the legal dimension of European integration. A prospective constitutional framework would, of course, determine the corresponding features of a future European state. A recent example of it is the introduction of an administrative procedure code in China (October 1990). This is a benchmark in the relationships between the state and private per- sons. There is no doubt that the new march toward free enterprise in that country is relat- ed to this legal reform and its antecedents in the civil procedure code of 1982. While the weight of legal norms both structures and directs economic and social organi- zation, it also gives birth to the paradox of government: a government shrewd enough to submit to binding rules of conduct may be able to overturn them to further its own purpos- es. This paradox is significant in democratic constitutional choices only. In dictatorial regimes, there is, of course, nothing paradoxical in making rules and infringing them. At the opposite, democratic, constitutional moments must define the means of exercising power and the ways of limiting it. The paradox of Leviathan is a feature of democracy. Limits to the democratic power, such as parliaments or elections, cannot overcome it. In fact, they get at the root of the trouble. Depending on the popular will, the state would be under the control of citizens. However, Riker (1982) demonstrates how illusory this control is. Ordeshook (1992) insists that such regimes favor private interests under the cover of

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