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The purpose of this paper is to integrate classical elite theory into theories of constitutional bargains.

Qualitative methods/surveys/case studies.

Open-ended constitutional entrepreneurship cannot be forestalled. Constitutional entrepreneurs will almost always be social elites.

The research yields a toolkit for analysing constitutional bargains. It needs to be used in historical settings to acquire greater empirical content. Need to be applied to concrete historical cases to do economic history. Right now it is still only institutionally contingent theory.

Formal constitutions do not, and cannot, bind. Informal constitutions can, but they are continually evolving due to elite pressure group behaviors.

Liberalism needs another method to institutionalize itself!

Open-ended nature of constitutional bargaining overlooked in orthodox institutional entrepreneurship/constitutional economics literature.

This chapter examines jury nullification, through which American juries refuse to convict criminal defendants in the face of overwhelming evidence of guilt to express disapproval of specific criminal laws or of their application to particular defendants, through the political theory of Carl Schmitt. It distinguishes liberal components of American jurisprudence, especially the rule of law, from democratic sovereignty, and shows how the two are in deep tension with one another. In light of this tension it argues that jury nullification amounts to democratic sovereignty applied counter to the liberal state in a way that paradoxically upholds individual liberty.

The purpose of this paper is to explore the “ethics and transparency‐accountability” paradox in which the oft‐repeated mantras of ethical luminosity, such as transparency and accountability, appear designed to assure one that all is well when such confirmation is, possibly, no more than part of an illusion – a superficiality purporting to confirm that what is seen is the only reality of public ethics.

Utilizing an analytical approach based on the comparative analysis of historical and contemporary isomorphisms this paper suggests that despite post‐modern voices about fracture, the multiplicity of “realities” and possible futures, there still remains an almost paradigmatic conviction that “visibility” is politically more efficacious than “invisibility.” Rendering situations visible supposedly exposes violations of ethical standards, professional norms and protects one from “criminogenic” elites. This paper questions whether light always cast out darkness and whether “Dark Times” demand relentless transparency?

This paper finds that constructing “realities” has always involved a manipulation of what is seen and not seen – what is real and what is illusionary. “Shadows” and “disorder” are also important in understanding how visibility, invisibility and ethics are parts of the pervasive apparatus of political and economic hegemony. This paper also finds that the translucence of accountability policies, supposedly encompassing the pillars of professional propriety/integrity, might be encompassed within Offe's “procedural ethics”.

The social implications of this paper involve the development of a public administration able to calibrate whether the fluxing of visibility/invisibility/ethics is constructive or destructive of social capital and legitimacy.

This paper concludes that a public administration solely focused on transparency not only misdirects attention and political resources, but also is actually self‐defeating, leaving citizens less informed and more subjugated than before.

It is important to realise that the company is a public institution and not just a private arrangement created by contract; it cannot, therefore, be fully determined by economic factors alone, but, is, importantly, also partly determined by political and social factors. Sometimes these political and social factors can become more deterministic in shaping its destiny than the economic factors. This tends to be the case when the legitimacy of business institutions is called into question. In these circumstances, the normal economic determinants of business practice can be superseded by political events and the environment of business practice can change radically. The purpose of this study is to propose a theory, which can help to explain this change in the company form, that is its legal code of governance. An evolutionary theory is briefly outlined and supported by historical evidence. The possibility of a coming business legitimacy crisis is then speculated upon in the conclusion.

While liberals agree that the best society is one that supports the equal exercise of personal liberty, there is little agreement among them on what policies best achieve this end. Conflicts within liberalism over the place of socially derived goals vis-à-vis personal liberty and autonomy create tension and skew public discourse on policy alternatives. In this article, I characterize the debate among dominant strands of liberal ideology and consider the effort of Charles Taylor to resolve these tensions. Finding his resolution unsatisfying, I explore the alternative conception offered by American pragmatism. I argue that liberal theories fail because they fall prey to the problem of principles-they attempt to justify axiomatic thinking rather than perpetuate society and culture. Pragmatism provides a justification for liberal public discourse as the best mechanism for constructing, evaluating and revising policies that support cultural adaptation to social, economic and technological contingencies.

Is liberalism premised on an unrealistically individualist anthropology? In one regularly told story about modernity, the earliest liberals grounded their arguments for political liberty in a picture of human nature that centered on our moral autonomy, perhaps epitomized best in Kantian thought. However, a range of critics have now compellingly argued that such accounts of our agency are descriptively inaccurate, and that normative social projects beginning from such flawed foundations are thus unstable. While this paper accepts this criticism of individualist anthropologies, it proposes that this need not identify a problem with liberalism overall. To make this case, this paper turns to Adam Smith, who grounded his early advocacy of liberalism in an anthropology grounded in natural theology that depicts us as morally interconnected, rather than as autonomous, and as always morally impressionable. As it will explain, Smith presumed an account of character as integrally related to and influenced by the agent’s social context, for both better and worse. Furthermore, he wove his attentiveness to this complex interaction between the agent and their context into both his economic analyses and political proposals. Smith’s social vision thus illustrates how a strong regard for individual liberty is fully compatible with a sophisticated anthropology that recognizes our malleability as moral agents – and even with political proposals that capitalize upon this malleability. Smith’s thought thus offers useful resources for contemporary proponents of liberalism who wish to value the dignity of individuals without basing that valuation in unrealistic abstractions, or ignoring the responsibilities engendered by the fact of our ongoing moral formation by our social contexts.

In recent decades, Homer's millennia old story of Ulysses and the Sirens has become a popular and frequently used metaphor for illustrating the importance of institutions, not least constitutional ones (cf., e.g., Elster, 1985; Finn, 1991, 3ff; Elster, 2000; Zakaria, 2003, pp. 7 and 250). In one retelling the story goes like this:The Sirens were sea-nymphs who had the power of charming by their song all who heard them, so that the unhappy mariners were irresistibly impelled to cast themselves into the sea to their destruction. Circe directed Ulysses to fill the ears of his seamen with wax, so that they should not hear the strain; and to cause himself to be bound to the mast, and his people to be strictly enjoined, whatever he might say or do, by no means to release him till they should have passed the Sirens’ island.Ulysses obeyed these directions. He filled the ears of his people with wax, and suffered them to bind him with cords firmly to the mast. As they approached the Sirens’ island, the sea was calm, and over the waters came the notes of music so ravishing and attractive that Ulysses struggled to get loose, and by cries and signs to his people begged to be released; but they, obedient to his previous orders, sprang forward and bound him still faster. They held on their course, and the music grew fainter till it ceased to be heard, when with joy Ulysses gave his companions the signal to unseal their ears, and they relieved him from his bonds.¹

The sudden rise of the socio-political importance of security that has marked the twenty-first century entails a commensurate empowerment of the intelligence apparatus. This chapter takes the Investigatory Powers Act 2016 as a vantage point from where to address the political significance of this development. It provides an account of the powers the Act grants intelligence agencies, concluding that it effectively legalizes their operational paradigm. Further, the socio-legal dynamics that informed the Act lead the chapter to conclude that Intelligence has become a dominant apparatus within the state. This chapter pivots at this point. It seeks to identify, first, the reasons of this empowerment; and, second, its effects on liberal-democratic forms, including the rule of law. The key reason for intelligence empowerment is the adoption of a pre-emptive security strategy, geared toward neutralizing threats that are yet unformed. Regarding its effects on liberal democracy, the chapter notes the incompatibility of the logic of intelligence with the rule of law. It further argues that the empowerment of intelligence pertains to the rise of a new threat-based governmental logic. It outlines the core premises of this logic to argue that they strengthen the anti-democratic elements in liberalism, but in a manner that liberalism is overcome.