Social contracts for real moral agents: a synthesis of public reason and public choice approaches to constitutional design

Citizens in contemporary democratic societies disagree deeply about the nature of the good life, and they disagree just as profoundly about justice. In building a social contract theory for diverse citizens, then, we cannot rely as heavily on the theory of justice as John Rawls did. I contend that Rawlsian liberals should instead focus on developing an account of constitutional choice that does not depend on agreement about justice. I develop such an account by drawing on the contractarian approach to constitutional choice pioneered by public choice theorists, especially James Buchanan. With some modifications, public choice can help identify mutually justifiable constitutional rules based on the extent to which these constitutional rules produce appropriate laws under normal conditions. This new, synthetic approach to constitutional choice also helps to explain the moral significance of contractarian agreement for the public choice theorist.     

Customary law as a social contract: International commercial law

Merchants broke the bonds of localized political constraints during the tenth and eleventh centuries to establish the constitutional foundations of international commercial law as we see it today. The medieval “Law Merchant” was an international legal system that governed without the centralized coercive power of the state. In order to see how this was possible, the incentives which led to the merchants community's social contract, as well as the rules and institutional arrangements that the resulting contract produced are examined and explained. A process of legal change evolved, participatory institutions were established to adjudicate disputes and effective incentives were implemented to induce compliance with the resulting judgements. The unwritten social contract established by the medieval business community remains in force to this day. International commercial law is still largely independent of nationalized legal systems, retaining many of the basic (though) modernized institutional characteristics of the medieval Law Merchant. James Buchanan suggested that “Free relations among free men—this precept of ordered anarchy can emerge as principle,” under an appropriately structured social contract. The international Law Merchant provides a historical and modern demonstration that Buchanan is indeed correct. This paper was originally prepared for presentation to the Liberty Fund Conference on “Liberty and the Constitutional Foundations of International Order,” Washington, D.C., July 1991. I wish to thank Randall Holcombe, Kevin Refitt, and the participants in the Liberty Fund Conference for helpful comments and suggestions that led to several revisions.     

Out of a slave contract: the analysis of pre-Hobbesian anarchists in the Old Testament

Buchanan’s constitutional economics takes social conflict (the ‘Hobbesian jungle’, ‘Hobbesian anarchy’) as the starting point for the analysis of social contract. Buchanan argues that in the presence of social conflict either some social contract (e.g. some system of formal laws) or some generally shared moral precepts are needed to resolve the predicament that social conflict presents. The present paper argues that a social conflict model also served the Old Testament as an analytical starting point. However, contrary to both standard theological interpretation and Buchanan’s explicit claims, I argue that the Old Testament had already made an attempt to model ‘Hobbesian anarchy’ in order to approach social conflict in an essentially modern, non-metaphysical manner. I argue that figures like Adam and Eve or Jacob, in the tradition of Hobbesian anarchists, questioned godly authority and the associated imposed, authoritarian, metaphysical social contract. In this way, one can detect a modern, contractarian constitutional economics in pre-Enlightenment literature (and in Genesis, specifically) in direct contrast to Buchanan’s claims.     

Rule-governed behavior in evolution and human society

I present a conceptual framework and analytical tools for generalizing existing theory in order to investigate imperfect choice that does not always make optimal decisions based on available information. The resulting analysis implies imperfect choice creates incentives forrule-governed behavior that is adapted only to recurrent situations (rather than adjusting optimally to all conditions), thereby producing a tendency to ignore relevant and even costlessly available information. These principles are applied to recent analysis on the foundations ofconstitutional economics. They are also applied to nonhuman evolution, and to human behavior within exchange environments in order to illustrate the pervasiveness of rule governed behavior, and to suggest a constitutional perspective about the importance of developing rules for governing peoples' ongoing economic and political decisions. I conclude by briefly discussing a basic tradeoff between reaching initial agreement over constitutional rules and the stability of future compliance to them once they are put into practical application. I wish to thank Kenneth Arrow, James Buchanan, Del Gardner, Robert Clower, Andrew Schotter, Giovani Dosi, Mark Machina, Howard Racklin for helpful comments and criticisms, as well as participants in a Liberty Fund conference on constitutional economics during June 1989 in Bonn, West Germany. Of course, I am responsible for the paper's content.     

Constraining Leviathan

This article commemorates James M. Buchanan and his contributions to public choice and constitutional political economy. It focuses on what Buchanan had to say about constraining the State, or as he often referred to it, Leviathan. It concentrates on a handful of his major works that I think capture important elements of his thinking. It discusses Buchanan’s writings on public debt and government deficits; the size of the state; federalism; and taxation, among other things. It is argued that the main emphasis in Buchanan’s work as it pertained to constraining the State was to include provisions in the constitution that could achieve this end. These included a balanced budget amendment, rules governing the expansion of the money supply, constraints on the types of taxes that could be levied, linking expenditure proposals to the taxes that would finance them, earmarked taxes, and a generality principle, which would avoid a majority coalition’s exploitation of a minority. The article also includes a discussion of the current constitutional crisis in the United States.     

Politics as exchange: the classical liberal economics and politics of James M. Buchanan

James Buchanan advocated the market mechanism for allocating resources because it is based on voluntary exchange. People engage in market transactions only when they believe they benefit from doing so. Buchanan depicted the political process the same way. People engage in collective activities to accomplish together ends that they would be unable to accomplish individually, or through bilateral exchange. Buchanan’s vision of politics as exchange is a normative framework for evaluating the rules within which political activity takes place. Rules that meet the criterion of agreement are desirable constitutional rules, and Buchanan recognized that not all government activity satisfies that criterion. Buchanan is the father of the subdiscipline of constitutional political economy, and his “politics as exchange” approach provides the foundation for much work in that area. Buchanan has created a foundation that is rich in ideas, but leaves behind a number of unanswered questions that point the way toward a further development of the research program in constitutional political economy.     

Buchanan’s constitutional political economy: exchange vs. choice in economics and in politics

This article discusses the methodological foundations of Buchanan’s constitutional political economy. We argue that Buchanan is a constitutional economist because he is an economist or a political economist. In other words, Buchanan is a constitutional economist—he insists on the necessity of focusing on constitutions and to analyze the “rules of the social game”—because he defines economics as a science of exchange. Buchanan’s definition of economics is not only specific, it is also opposed to the definition of economics that other economists retain and, above all, opposed to the definition of economics that many public choice theorists use. The latter have, in effect, adopted the Robbins 1932 definition of economics as a science of choice that Buchanan criticizes and rejects. Buchanan’s constitutional economics can be a branch of public choice only under certain conditions.

James M. Buchanan’s contractarianism and modern liberalism

This paper contrasts Buchanan’s contractarian–constitutional liberalism with Hayek’s evolutionary liberalism and Rothbards free-market liberalism as representative branches of the classical liberal tradition. While Hayek and Rothbard focus on individual liberty as private autonomy, Buchanan posits that individual sovereignty should be recognized as the fundamental normative premise of liberalism. He insists that a consistent application of this premise requires liberals to respect individuals as sovereigns not only in their capacity as private law subjects but also at the constitutional level of choice where, as sovereign citizens, they choose, jointly with their fellow citizens, the rules under which they wish to live. It is argued that by supplementing the notion of individual liberty as private autonomy with the concept of individual sovereignty in constitutional matters Buchanan lays the theoretical foundation for complementing the well-developed liberal theory of the market with a consistent liberal theory of democracy.     

Degrees of Connection: A Critique of Rawls’s Theory of Mutual Disinterest

John Rawls's solution to the problem of justice between generations is premised on the idea that “a generation cares for its immediate descendants, as fathers say care for their sons” (John Rawls 1971: 288, emphasis added). This paper brings mothers into the Rawlsian social contract. I argue that, when children have more than one parent, there is a contradiction between the assumption of concern for descendants, which underpins Rawls's account of justice between generations, and the mutual disinterest assumption, which characterizes parties negotiating in the “original position.” Concern for descendants creates connections within generations as well as across generations. The critique is internal and nonradical, but its implications are subversive. It demonstrates that an “add women and stir” liberal feminist reworking of Rawls's theory cannot be successful; bringing sexual reproduction out of the realm of nature and into the social contract necessitates a radical reconstruction of Rawls's theory.     

全民健康保障制度:建构理念、政府支持的合意水平与成本测算

运用罗尔斯的正义论、阿玛蒂亚.森的可行能力与实质性自由理论、人权、健康权以及社会保障权等理论,提出要重构农村健康保障制度建设的理念,进而提出"从社区健康融资走向全民健康保障制度"的理论设想,并初步测算了政府在"全民健康保障制度"中的财政责任。政府在全民健康保障制度中应该承担的成本与目前对新农合的支持力度差距都非常大。政府须从"经济建设型政府"向"公共服务发展型政府"转型,以有可能从财力和精力方面提供包括基本健康保障在内的基本公共品。     

Public justification and democratic adjudication

Contractualists seek to publicly justify moral principles, but it seems doubtful that a set of specific principles or policies can be definitively justified. In this sense, the contractualist project has an indeterminate result: the precise content of liberal morality is open to reasonable dispute. Liberal citizens thus find themselves disagreeing about the demands of liberal morality. They require, as Locke argued, an umpire to resolve their disputes. This paper analyzes what is required of such an umpire, and then employs a four-stage argument to show that constitutional representative democracy is the uniquely justified umpiring procedure for resolving these disputes. Democratic politics, on this view, is the continuation of ethical dispute by other means. I would like to thank Fred D'Agostino, William Nelson and Jonathan Riley for their very helpful written comments. I also greatly benefitted from discussions with Julian Lamont, Loren Lomasky, Philip Pettit, Jeremy Shearmur and Stuart Warner and from Daniel Shapiro's response to an earlier version of this paper. My thanks too to the journal's readers.     

Political Learning: The Neglected Precondition of Constitutional Reform

This paper analyses the claim of constitutional economics that liberal economic policy requires far-reaching constitutional reform. The paper starts with a restatement of this claim and reinforces the rationale of the currently most influential variants of constitutional economics as represented by contractarian constitutional economics (Brennan, Buchanan), on the one hand, and Hayek s evolutionary theory, on the other. However, these constitutional proposals have shortcomings because the institutional preconditions of constitutional reform are not sufficiently reflected. Instead, I argue that, in face of economic crisis, a revision of in-period politics requires no more collective rationality than constitutional reform does. As a consequence, the introduction of new constitutional rules depends on political learning. The article concludes that constitutional rules in the sense of CPE can stabilise political learning but they cannot replace it.     

The common law process: Efficiency or order?

The common law applies to conflicts not covered by statutes or the U.S. Constitution. Because constitutional law and common law are applicable (common) to all members of the community, they both confront aggregation problems of the sort discussed by Buchanan and Arrow. p ]Recent writings in law and economics view the common law as an efficient process that promotes the evolution of efficient rules through an auction-like mechanism. Because the common law applies to all individuals, however, the auction analogy fails to cope with the problem of aggregating preferences. Moreover, the belief that the efficiency of the common law is enhanced by assigning disputed rights so as to lower transaction costs is also flawed. The common law provides a form of unanimity by allowing individuals to contract around the rule and provides order by maintaining transitivity, through the use of precedent, in the application of the rule to new situations. The authors thank Terry L. Anderson, Peter H. Aranson, Thomas E. Borcherding, James M. Buchanan, Henry N. Butler, William R. Dougan, Ross D. Eckert, D. Bruce Johnsen, Michael E. Libonati, Fred S. McChesney, Roger E. Meiners, Timothy J. Muris, Elinor Ostrom, Vincent Ostrom, Paul H. Rubin, Jeffrey E. Stake, Gordon Tullock, Bruce Yandle Jr., Jack Wiseman, and an anonymous referee of thisJournal for helpful comments. De Alessi was Visiting Research Professor, Workshop in Political Theory and Policy Analysis, Indiana University, Bloomington, during part of the research.     

30 years after the nobel: James Buchanan’s political philosophy

There are three main foundations of Public Choice theory: methodological individualism, behavioral symmetry, and “politics as exchange.” The first two are represented in nearly all work that identifies as “Public Choice,” but politics as exchange is often forgotten or de-emphasized. This paper—adapted from a lecture given on the occasion of the 30th year after Buchanan’s Nobel Prize—fleshes out Buchanan’s theory of politics as exchange, using four notions that are uniquely central to his thought: philosophical anarchism, ethical neutrality, subjectivism, and the “relatively absolute absolutes.” A central tension in Buchanan’s work is identified, in which he seems simultaneously to argue both that nearly anything agreed to by a group could be enforced within the group as a contract, and that there are certain types of rules and arrangements, generated by decentralized processes, that serve human needs better than state action. It is argued that it is a mistake to try to reconcile this tension, and that both parts of the argument are important.     

Natura naturans,natura naturata

In this paper, which is concerned with philosophical methodology as it might affect social science and ethics, the endeavor is to explore the depth and implications of Buchanan’s interest in Spinoza. After establishing their connection, the paper explores the parallels between Spinoza’s “dualism” and Buchanan’s own dualism and how that can shed light on Buchanan’s distinction between constitutional and operational modalities. Given their analogous perspectives, the paper then considers the possibility of dimensional shifts in the dualism, such that what was once a constitutional perspective becomes operational and how that ability to shift might affect various research agendas in the social sciences and ethics. Finally, we raise the question of how separate are the two levels and can they be brought together. In a Spinozistic framework, they ultimately would collapse into a monism, but the conclusion here is that for Buchanan there must always be a gap between them. As a result, the effort to resolve the tension between the dimensions may signal future research agendas in ethics and political economy.     

Foundational explorations for a normative theory of political economy

I set out an individualistic and pragmatic choice framework for a normative theory of political economy, and argue that, given pluralism with respect to individual ends, a consensus on any political or economic institution presupposes that it is perceived to serve as a public means to private ends. Concerning the crucial question of the distribution of the benefits that political and economic cooperation can make possible, I argue that the various models typically employed—those pertaining to competitive market interaction, decision making under uncertainty, bargaining theory, and social choice theory—fail to provide for a stable consensus, i.e., one that is resistant to non-compliance and renegotiation. Since, however, such instabilities are mutually disadvantageous, these approaches fail to establish how rational individuals can capture all the gains that cooperation makes possible. Appealing to a modified version of the social-psychological construction that Rawls introduces in chapter 8 ofA Theory of Justice I argue that stability is a function of a perceived sense of mutual concern. I conclude by arguing that Rawls own egalitarian/efficiency principle gives natural expression to such a concern, and thus can serve as the object of a stable consensus.     

The ethical foundations of constitutional order: A conventionalist perspective

This paper presents a conventionalist or modified contractarian perspective on constitutional and legal theory as a platform from which to address five important questions about the connections between critical morality and constitutional order. It finds that natural law and critical morality are inappropriately linked to constitutions and laws, but that there is nonetheless a clear moral dimension to all law. Furthermore even though law is explained as a function of human agreements, the very process of agreement commits law to an inherent set of standards which distunguish laws based on agreement from those which rest on coercion. These standards are more familiarly known as the principles of the rule of law.     

Old (Chicago) school,new century: the link between Knight and Simons’ Chicago plan to Buchanan’s constitutional money

James Buchanan had long been a champion of the early Chicago school’s emphasis on the essential role that institutions play in framing the market process. In his post-2009 analysis of the financial crisis, Buchanan echoed his old Chicago mentors like Frank Knight and Henry Simons in arguing that the Great Recession, like all previous financial crises, was primarily a failure of the rules governing our monetary-financial system. This “old Chicago” emphasis on the institutional “rules of the game” formed the basis of his essential post-2009 argument that the financial crisis fundamentally represented not a market failure, per say, but a constitutional failure. In this paper, I connect the dots in Buchanan’s post-2009 analysis of the Great Recession and his reaffirmation of the need for “constitutional money” to his old Chicago mentor’s strikingly similar calls for a radical restructuring of the monetary-financial system in the Chicago Plan of the 1930s. Though Buchanan’s twenty-first century resurrection of these ideas has yet to conjure up the academic support of his predecessors, certain elements of his “old school” monetary-financial reforms have experienced a strong revival since the financial crisis, as has Buchanan’s more general call to “constitutionalize money.”     

Sir Edward Coke and the struggle for a new constitutional order

Modern struggles to form constitutional orders based on liberal principles are fraught with risk. There may be little in the way of private reward for those who lead the struggle. Such things as free markets, property rights protection amd freedom to contract are public goods. Ideology is apparently important. At the same time, the successful leader must be equipped with a number of scarce skills, including knowledge of markets and how they operate. Lessons learned from England's 17th century constitutional revolution tell us that constitutional entrepreneurs do emerge. Sir Edward Coke, England's most eminent lawyer of that period, was such a person. Over his lifetime, Coke led an intellectual and political struggle based on his belief that fundamental law came from the people, that kings and parliament were subservient to Common Law and the Magna Charta. These were to be the basis of England's constitution. Coke's legal decisions and arguments contain far more than mere assertion. They reflect impressive understanding of the market process, monopoly restrictions, free trade, and the fundamental force of freedom to contract. His leadership, fueled by an ideological commitment, was coupled with extraordinary intellect. The author expresses appreciation for helpful comments and criticisms to William Breit, Robert Ekelund, Roger Meiners, Robert Staaft, Robert Tollison, Richard Wagner and an anonymous referee of this journal.