The Limits of Liberty: Between Anarchy and Leviathan

James M. Buchanan.
Buchanan, James M.
(1919- )
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First Pub. Date
Indianapolis, IN: Liberty Fund, Inc.
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Foreword by Hartmut Kliemt.

Chapter 1Commencement


Those who seek specific descriptions of the "good society" will not find them here. A listing of my own private preferences would be both unproductive and uninteresting. I claim no rights to impose these preferences on others, even within the limits of persuasion. In these introductory sentences, I have by implication expressed my disagreement with those who retain a Platonic faith that there is "truth" in politics, remaining only to be discovered and, once discovered, capable of being explained to reasonable men. We live together because social organization provides the efficient means of achieving our individual objectives and not because society offers us a means of arriving at some transcendental common bliss. Politics is a process of compromising our differences, and we differ as to desired collective objectives just as we do over baskets of ordinary consumption goods. In a truth-judgment conception of politics, there might be some merit in an attempt to lay down precepts for the good society. Some professional search for quasi-objective standards might be legitimate. In sharp contrast, when we view politics as process, as means through which group differences are reconciled, any attempt to lay down standards becomes effort largely wasted at best and pernicious at worst, even for the man who qualifies himself as expert.


My approach is profoundly individualistic, in an ontological-methodological sense, although consistent adherence to this norm is almost as difficult as it is different. This does not imply that the approach is personal, and the methodological individualist is necessarily precluded from the projection of his own values. His role must remain more circumscribed than that of the collectivist-cum-elitist who is required to specify objectives for social action that are independent from individual values other than his own and those of his cohorts. By contrast, the individualist is forced to acknowledge the mutual existence of fellow men, who also have values, and he violates his precepts at the outset when and if he begins to assign men differential weights. He simply cannot play at being God, no matter how joyful the pretense; hubris cannot be descriptive of his attitude.


These limits offer the individualist a distinct comparative advantage in a positive analysis of social interaction. Accepting a self-imposed inability to suggest explicit criteria for social policy, the individualist tends to devote relatively more intellectual energy to analysis of what he observes and relatively less to suggestions about what might be. He cannot stop the world and get off, but the important realization that he is one among many men itself generates the humility demanded by science. The neutrality of his analytics lends credence to his predictions. The wholly detached role of social ecologist is important and praiseworthy, and perhaps there should be more rather than less analysis without commitment, analysis that accepts the morality of the scientist and shuns that of the social reformer. Thomas Hardy in The Dynasts, the aging Pareto in search of social uniformities—these men exemplify the attitude involved, that of the disinterested observer who watches the absurdities of men and stands bemused at the comedy made tragedy by his own necessary participation.


There is, however, something that is itself demoralizing in accepting the mantle of the cynic, the man with little hope or faith, the sayer of social doom. Despite the pessimism of prediction, should we not try responsibly to lend our efforts toward a "better" world? And must we not acknowledge this to be possible? This brings us up to snuff, however, since we have eschewed the simplistic criteria for "betterness" handed out by the omnipresent social reformers. Consistency demands that we list our private preferences as being neither more nor less significant than those held by others, and it thereby dampens our natural lapse into the cocoon of the philosopher-king.


The approach must be democratic, which in this sense is merely a variant of the definitional norm for individualism. Each man counts for one, and that is that. Once this basic premise is fully acknowledged, an escape route from cynicism seems to be offered. A criterion for "betterness" is suggested. A situation is judged "good" to the extent that it allows individuals to get what they want to get, whatsoever this might be, limited only by the principle of mutual agreement. Individual freedom becomes the overriding objective for social policy, not as an instrumental element in attaining economic or cultural bliss, and not as some metaphysically superior value, but much more simply as a necessary consequence of an individualist-democratic methodology. In some personal and private baring of my soul, I may not "like" the observed results of a regime that allows other men to be free, and, further, I may not even place a high subjective value on my own freedom from the coercion of others. Such possible subjective rankings may exist, but the point to be emphasized is that the dominant role of individual liberty is imposed by an acceptance of the methodology of individualism and not by the subjective valuations of this or that social philosopher.

The Anarchist Utopia


To the individualist, the ideal or utopian world is necessarily anarchistic in some basic philosophical sense. This world is peopled exclusively by persons who respect the minimal set of behavioral norms dictated by mutual tolerance and respect. Individuals remain free to "do their own things" within such limits, and cooperative ventures are exclusively voluntary. Persons retain the freedom to opt out of any sharing arrangements which they might join. No man holds coercive power over any other man, and there is no impersonal bureaucracy, military or civil, that imposes external constraint. The state does indeed wither away in this utopia, and any recrudescence of governmental forms becomes iniquitous. Essentially and emphatically, this utopia is not communist, even in an idealized meaning of this historically tortured word. There are no predetermined sharing precepts. Communes may exist, but hermits may also abound and they may or may not be misers. Cooperative relationships are necessarily contractual, and these must reflect mutual gain to all participants, at least in some ex ante or anticipated stage.


This is a loosely constrained utopia. It allows for much variability in the attainable levels of "desirability," even as idealized. The persons who inhabit this utopia need do no other than respect their fellows, itself a minimal behavioral limit, at least on its face. Within this constraint, wide differences in interpersonal behavior patterns may be conceptually observable. To any single observer, some of these may be "preferred" to others.


The anarchist utopia must be acknowledged to hold a lingering if ultimately spurious attractiveness. Little more than casual reflection is required, however, to suggest that the whole idea is a conceptual mirage. What are to be the defining limits on individual freedom of behavior? At the outset, allowing each man to do his own thing seems practicable. But what happens when mutual agreement on the boundaries of propriety does not exist? What if one person is disturbed by long-hairs while others choose to allow their hair to grow? Even for such a simple example, the anarchist utopia is threatened, and to shore it up something about limits must be said. At this point, a value norm may be injected to the effect that overt external interference with personal dress or hair style should not be countenanced. But this norm would require enforcement, unless there should be some natural and universal agreement on its desirability, in which case there would have arisen no need to inject it in the first place. If there is even one person who thinks it appropriate to constrain others' freedom to their own life-styles, no anarchistic order can survive in the strict sense of the term.


When forced into such discussions of practical organizational problems, however, the philosophical anarchist has other strings to his bow. He may accept the relevance of our example, but he may reject the implications for his own vision of utopia. A notion of interpersonal reciprocity may be introduced, and the argument made that the busybody might agree voluntarily to respect others' freedom. He might do so because he would recognize that, should he fail to do so, other persons would, in their own turn, impose restrictions on his own freedom of personal action. Hence, despite his presumed internal and private preference about long hair, the potential busybody might refrain from interfering because of this fear of reciprocal intrusion into his own behavior pattern.


The anticipated reciprocities may not, however, be comparable in value as among the several actors. If others in the group possess no intrinsic desire to interfere, and especially if interference itself is costly, the busybody may, without fear, continue to forestall the attainment of what will be, at best, the fragile equilibrium of this idealized world. But this particular flaw in the anarchist's vision seems to be remedied once we allow for free exchange among persons, along with agreement on some commonly valued commodity as a numeraire. Such a commodity, a "money," facilitates a comparison of values, and allows others, acting as a unit, to buy off or to bribe a single recalcitrant. The busybody may be induced to refrain from interfering with the personal behavior of others through appropriately settled compensations. Side payments in the commonly valued commodity allow those with disparate evaluations to come to terms. Once such side payments or bribes are introduced, however, a new set of issues arises. If there is potential money in it, individuals will find it to their advantage to be recalcitrant, not because this expresses their internal private preference but because it promises to yield valued returns. If the man who genuinely dislikes long-hairs so much that he is prompted to interfere in the absence of payment is "bought off" by monetary reward, others who care not one whit for hair styles may also commence interfering, motivated by the promise of monetary reward. Order in the anarchist society is not guaranteed by some agreement on a numeraire.


Anarchy as the basic organizing principle for social order begins to break down upon careful analysis even if we stay within the confines of personal behavior, narrowly considered. Its limits become more evident when we shift attention to activities that necessarily involve potential conflict among separate persons. Before introducing these, however, a more positive, if less sweeping, defense of anarchy needs to be made. Even if we acknowledge that the principle fails as a universal basis for social order, we should recognize that its essential properties can be observed to operate over large areas of human interaction. It is important to make this recognition explicitly, since the very ubiquitousness of orderly anarchy tends to draw attention only toward the boundaries where disorder threatens.


There are countless activities that require persons to adhere to fundamental rules for mutual tolerance, activities that may be observed to go on apace day by day and without formal rules. They go on because participants accept the standards of conduct that are minimally demanded for order to be established and maintained. Consider ordinary conversation in a multiperson group. Communication does take place through some generalized acceptance of the rule that only one person speaks at a time. Anarchy works. It fails to work when and if individuals refuse to accept the minimal rule for mutual tolerance. Communication on the Tower of Babel would have ceased if all men should have tried to speak at once, quite apart from the distortion in tongues. It is paradoxical to note that modern-day radicals often call themselves anarchists when their behavior in heckling speakers and in disrupting meetings insures nothing more than a collapse of what are remaining elements of viable anarchy.


This is only a single example. Was the university of the 1960s vulnerable to disruption largely because it was organized as an orderly anarchy and, as such, critically dependent on adherence to implicit rules of mutual tolerance and respect? Since the 1960s universities have become less anarchistic; they have moved toward formalized rules as the boundary limits to acceptable behavior were overstepped. To the extent that more and more human interactions exhibit conflicts at the boundaries, institutional means for resolving these will emerge, and the set of formalized rules will expand. If men abide by rules implicitly, formalization is not required. If they do not do so, formalization, implementation, and enforcement become necessary.


The emergence of new conflicts should not, however, distract too much attention away from the analytically uninteresting but comprehensive set of interactions that continue to be carried on in acceptably orderly fashion without formally defined rules for personal behavior. Men and women manage to walk along city pavements. With rare exceptions, they respect queues in supermarkets, in banks, and in airports. There does exist a sense of ordinary respect for his fellow man in the ingrained habit pattern of the average American. This can be observed empirically all around us. Whether this reflects a heritage of Christian or Kantian ethics that were once explicitly taught or whether such habit patterns are even more basic to the human psyche, their existence cannot be denied.*7 The ominous threat posed by the 1960s was the potential erosion of these habit patterns. If Americans lose mutual tolerance for each other; if they do not continue to accept "live and let live" precepts for many of their social interactions independently of governmentally determined coercive rules, the area of civilized life that is both anarchistic and orderly must shrink, with untold consequences in human suffering. As noted earlier, any equilibrium attainable under anarchy is, at best, fragile. The individualist must view any reduction in the sphere of activities ordered by anarchy as an unmitigated "bad." He must recognize, nonetheless, that anarchy remains tolerable only to the extent that it does produce an acceptable degree of order. The anarchistic war of each against all, where life becomes nasty, brutish, and short, will be dominated by the order that the sovereign can impose.


One additional point should be made in this introductory discussion of ordered anarchy, a point that has been suggested earlier but one that is worthy of emphasis. What are the moral attributes of the results that will be produced through voluntary personal interactions in the absence of formalized rules? What are "good" and "bad" results here? The answer is simple, but it is extremely important. That is "good" which "tends to emerge" from the free choices of the individuals who are involved. It is impossible for an external observer to lay down criteria for "goodness" independent of the process through which results or outcomes are attained. The evaluation is applied to the means of attaining outcomes, not to outcomes as such. And to the extent that individuals are observed to be responding freely within the minimally required conditions of mutual tolerance and respect, any outcome that emerges merits classification as "good," regardless of its precise descriptive content. This relationship between evaluation and procedural criteria also applies when nonanarchistic principles of order are considered. Unless it is fully understood to apply in those interactions where anarchy is the organizing principle, however, the more subtle relevance of the relationship in formalized interactions may be difficult to comprehend.

The Calculus of Consent


When he recognizes that there are limits to the other-regardingness of men, and that personal conflict would be ubiquitous in anarchy, the extreme individualist is forced to acknowledge the necessity of some enforcing agent, some institutionalized means of resolving interpersonal disputes.*8 The origins of the state can be derived from an individualistic calculus in this way, at least conceptually, as we know from the writings of Thomas Hobbes as well as from earlier and later contractarians. This essentially economic methodology can be extended to provide conceptual explanations for many of the aspects of political reality that we observe. This was the framework for The Calculus of Consent (1962).*9 In that book, Gordon Tullock and I indulged our fancies and deployed our professional talents in deriving a logically consistent basis for a constitutional and democratic political structure, one which seemed to possess many of the features of the polity envisaged by the Founding Fathers. We offered an understanding of the institutions that have historically emerged in America, an understanding that differs in fundamental respects from that reflected in the conventions of modern political science. The framework for analysis was necessarily contractarian, in that we tried to explain the emergence of observed institutions and to provide norms for changes in existing rules by conceptually placing persons in idealized positions from which mutual agreement might be expected.*10 The Calculus of Consent, as well as other works of my own, might be interpreted as an attempt to impose a "vision of order" on observed institutional and behavioral realities.


I have come to be increasingly disturbed by this basically optimistic ontology. As several of our right-wing critics have recognized, the "theory of public choice" can be used to rationalize almost any conceivable decision rule or almost any specific outcome under preselected rules. In this, the theory seems analogous to the theory of markets as that theory is used by some of the most extreme advocates of laissez-faire. In this tautological sense, the "theory" in The Calculus of Consent provides no agenda for state or collective action, in either procedural or operational terms. A more important source of misgivings arises from my own perceptions. Increasingly, I have found myself describing what I observe as "constitutional anarchy" rather than any institutional translation of individual values into collective outcomes. In the 1970s, much to be explained does not seem amenable to analysis that incorporates positive-sum institutional processes. Zero-sum and negative-sum analogues yield better explanatory results in many areas of modern politics, and I find myself, like Pareto, more and more tempted to introduce nonlogical models of individual behavior along with nondemocratic and nonconstitutional models of collective choice.


Yet I remain, in basic values, an individualist, a constitutionalist, a contractarian, a democrat—terms that mean essentially the same thing to me. Professionally, I remain an economist. My purpose in this book is to "explain" some of the apparent sociopolitical malaise that I observe with the professional tools of the economist and from the value position stated. In a loose usage of terms here, the approach taken in The Calculus of Consent might be described as the extension of the "theory of public goods," interpreted in a Wicksellian setting, to political structures and to the formation of political decision rules. In similar usage, the approach taken in this book might be described as an extension of the "theory of public bads" to explain apparent failures in political and institutional structure. In this respect, I hope that this book will be complementary to the earlier one. In a broad sense, both are contractarian. In The Calculus of Consent, existing and potential institutions were conceptually explained as having emerged from contractual agreements among participating and rational individuals. In this book, by contrast, existing and potential institutions as well as behavior within certain institutional constraints are explained in terms of the failures of potentially viable contractual agreements to be made or, if made, to be respected and/or enforced. Politico-legal order is a public good; disorder is a public bad. There are two sides to the coin.


The differences between this book and the earlier work should be emphasized. Any analysis of institutional failure necessarily draws attention to the absence of effective rules for social interaction, and, similarly, to an erosion and breakdown in the workings of those nominal rules and institutions that may have once been viable. Here it is essential to examine carefully the working properties of anarchy as an organizational system in the absence of the idealized individual behavior that is characteristic in the utopias of anarchy's romantic advocates. Interpersonal conflict becomes important relative to interpersonal cooperation. When mutuality of gain is emphasized, there is less need to be concerned about the initial assignment of "rights" among persons. In The Calculus of Consent, we did not find it necessary to go behind the assumption that individuals with more or less well-defined rights exist at the initiation of the contractual process. This neglect may have been illegitimate, even there, but when interpersonal conflict becomes more central, the whole set of issues involving the assignment of "rights" in the first place cannot be left out of account.


One additional important difference should be noted. So long as collective action is interpreted largely as the embodiment of individual behavior aimed at securing the efficiency attainable from cooperative effort, there was a natural tendency to neglect the problems that arise in controlling the self-perpetuating and self-enhancing arms of the collectivity itself. The control of government scarcely emerges as an issue when we treat collective action in strictly contractarian terms. Such control becomes a central problem when political power over and beyond plausible contractarian limits is acknowledged to exist.

The Origin of Property


Anarchy necessarily fails when there exists no "natural" or mutually acceptable dividing lines among spheres of personal individual interest. In the life-style examples used earlier, we might plausibly argue that the purely personal elements of behavior would normally be left alone; that this sort of dividing line would be widely observed. Upon moving beyond personal examples, however, we immediately encounter potential for conflict. Robin Hood and Little John meet squarely in the center of the one-man footbridge. What "natural" rule is there to determine who shall be entitled to proceed and who shall withdraw? This can serve as an illustration for the multifarious set of interactions where conflict rather than implicit agreement seems characteristic. Once we are outside those activities that are largely if not wholly internal to persons, strictly private in the meaningful sense of this term, there are few "natural" limits upon which general agreement might plausibly settle. The genuinely anarchistic world becomes a maze of footbridges, and conflict rather than universalized cooperation is its central feature. And unless some modicum of agreement is enforced, even those areas within which anarchy might indeed suffice to generate tolerable order would be subject to gross violations.


The issue is one of defining limits, and anarchy works only to the extent that limits among persons are either implicitly accepted by all or are imposed and enforced by some authority. In the absence of "natural" boundaries among individuals in the activities that they may undertake, there arises the need for a definitional structure, an imputation among persons, even if this structure, in and of itself, is arbitrary. The logical foundation of property lies precisely in this universal need for boundaries between "mine and thine." Escape from the world of perpetual Hobbesian conflict requires an explicit definition of the rights of persons to do things. At this point I dare not enter into the sometimes murky discussions of "theories of property," but it is useful to be specific about some matters at the outset. There has been relatively too much emphasis on the normative function of property, and the concept of property itself has been too much tied to physical-spatial dimensions, producing an overly sharp distinction between closely related sets of human actions. As used here, property rights may or may not have spatial dimensions. To return to our life-style example, a person may possess the right to let his hair grow long, which means that he can exclude others from cutting it. But even this personal right may be circumscribed; he may not possess the right to allow his head to become lice-infected. Few, if any, rights are absolute in either a positive or a negative sense. Consider the familiar right of land ownership. This normally allows the person designated as an owner to exclude others from carrying out certain activities on the land (hunting, poaching, camping, farming, and so on), but it may not extend to the exclusion of others from carrying out other activities (easements for utility companies). The ownership right may also allow the owner to carry out certain of his own desired activities on the land, but this set is itself restricted. He may be prohibited from doing just what he pleases (for example, by zoning rules, by land-use requirements) despite his legal designation as owner.*11


The basic function of property in any social order that embodies individual liberty as a value must be clearly understood. By allocating or parcelling out "rights" among individuals in a community, the fundamental organizing principle of anarchy can be extended over wide reaches of human behavior. If Robin Hood and Little John know, and in advance, which one has the "right" to cross the bridge when potential conflict emerges, and, furthermore, if they know that this "right" will be effectively enforced, they can go about their ordinary business of life without detailed supervision and control. If Little John is given ownership rights in the footbridge, Robin Hood can use the facility only after obtaining Little John's permission through trade or otherwise. The delineation of property rights is, in effect, the instrument or means through which a "person" is initially defined.


Conceptually, we may think of locating a "person" along a spectrum.*12 At the one extreme, that of pure and complete slavery, the human being has no rights whatsoever. He is allowed to carry on no activity of any sort, anywhere, anytime, without explicit direction by someone else. At the other extreme, that of absolute dominance, we might think of a human being who is allowed to do everything possible within physical constraints. There is quite literally nothing that he is prevented from doing; no activities are forbidden, not even those relating to other members of the human species. It is, of course, mutually contradictory that more than one person in the same interaction could occupy a position at either end of this conceptual spectrum. Once we accept the presence of many persons in social interaction, it should be obvious that the set of rights granted to any one person must lie somewhere between the extremes, and that there is really no categorical distinction to be made between that set of rights normally referred to as "human" and those referred to as "property." Does A's right to speak, sometimes labelled a "human right," encompass the authority to enter a house that B owns, a "property right," and shout obscenities? A second point to be noted is that it is impossible for any imputation of rights to be completely equalitarian even in a conceptually idealized sense. A single footbridge exists; either Robin Hood or Little John must be granted some right of priority in its usage. Both men cannot simultaneously possess such a right, which would, of course, be equivalent to the abolition of all rights, from which the Hobbesian conflict emerges once again. And, of course, it is precisely in those situations where separate persons and groups have conflicting claims that most of the problems of social interaction arise. But enough about these later in this book.


Without some definition of boundaries or limits on the set of rights to do things and/or to exclude or prevent others from doing things, an individual, as such, could hardly be said to exist. With such defined limits, however, and regardless of the sources of their derivation, an individual is clearly an entity distinct from his fellows. Equipped with this set of rights, informed about them, and similarly informed about the rights held by others, the individual is in a position to initiate agreements with other persons, to negotiate trades, or, in more general terms, to behave as a free man in a society of men. Robinson Crusoe is a man who is free to do more or less as he pleases, within the limits imposed by the physical environment, but, until Friday arrives, he is not free to enter into agreements and trades with other men. If a person lives in society, he is defined by his "rights" to undertake certain things at certain times and at certain places, "rights" that he may, or may not, trade with others. If Tizio is a free man and not a slave, he may work for whom he pleases; hence, he may reach agreement with Caio to exchange or to trade work for corn. To be able to carry out his part of the bargain, Caio must hold "rights" to the corn, rights which include his ability to transfer the commodity to Tizio and to implement the transfer.


Even as our simple examples suggest, "rights" will normally be different as among separate persons. If everyone should be, in fact, identical in all conceivable respects, including the precise specification of rights, mutual agreements could not emerge except in cases of increasing returns to specialized production. In a world of equals, most of the motivation for trade disappears. Exchange of rights takes place because persons are different, whether these differences are due to physical capacities, to some assignment of endowments, or to differences in tastes or preferences.

Equal Treatment for Unequals


In Chapter 2 and beyond, I shall discuss in some detail the specific assignment of rights among persons. At this point, I must examine an apparent contradiction. The approach was described earlier as democratic or individualistic, in that each person counts for one, and for as much as any other. This essentially normative foundation for the analysis must be reconciled with the positive statement that men will necessarily differ among themselves and in any assignment of rights. Individuals differ, one from another, in important and meaningful respects. They differ in physical strength, in courage, in imagination, in artistic skills and appreciation, in basic intelligence, in preferences, in attitudes toward others, in personal life-styles, in ability to deal socially with others, in Weltanschauung, in power to control others, and in command over nonhuman resources. No one can deny the elementary validity of this statement, which is of course amply supported by empirical evidence. We live in a society of individuals, not a society of equals. We can make little or no progress in analyzing the former as if it were the latter.


In Hobbesian anarchy, individual differences would manifest themselves by varying successes in the continuous struggle for survival. But our interest lies in analyzing a social order that is nonanarchistic, at least in the sense that institutional means of resolving interpersonal conflicts exist. This implies the existence of some structure of individual rights, regardless of how these may have emerged and regardless of differences among persons, as well as the existence of some collective agency, the state. It is essential that the whole set of problems involving the assignment of rights among individuals and groups in society be separated from the set of problems involving the enforcement of the assignment that exists. Monumental but understandable confusion arises and persists from a failure to keep these two problem sets distinct.


Persons are defined by the rights which they possess and are acknowledged by others to possess. If two persons undertake trades or exchanges, one with another, each party must perforce respect, and respect equally, the defined rights of the other. If this were not the case, if the claims of one party to an exchange are respected by the second, but there is no reciprocal respect by the first party for the claims of the second, there has been no escape from anarchy, and exchange in the true sense is not possible. That is to say, mutual agreement on an assignment of rights implies equal and reciprocal respect for these rights, as assigned. The assignment of rights further implies that the enforcing agent, the state, must behave neutrally in its task, that it must treat all persons equally in the organization and implementation of enforcement. Individuals are treated equally because their assignment of rights implies such neutrality, not because they are equals.*13 Descriptively, persons are and must remain unequals. Hence, the neutrality condition translates into equal treatment for unequals, not equals. Confusion often arises because equality in treatment is itself taken to be an attribute of descriptive equality. In different terms, there is often the false presumption that equality in treatment implies equality in fact in some relevant sense, or, at the least, equality as a norm for social progress. Thomas Jefferson might have avoided much confusion had his deism allowed him to make a slight variation on his statement. Had he said, "to their creator, all men are equal," rather than "all men are created equal," he might have conveyed more adequately what seems to have been his basic intent. The equal-treatment norm emerges directly from the identification and definition of persons, as persons, and neither implies equality as fact nor infers equality as a requirement for the legitimacy of equal treatment.*14

Quis Custodiet Ipsos Custodes?


To the individualist, utopia is anarchist, but as a realist he recognizes the necessity of an enforcing agent, a collectivity, a state. As a minimal procedural norm, any such entity must treat equally all who qualify as members, as persons, even when interpersonal differences are acknowledged. "Equality before the law," "uniformity in the application of the law," "the rule of law," "rule by law and not by man," "rules, not authorities," "justice is blind"—these are but a few of the more familiar phrases that variously reflect this fundamental norm of an individualistic social order. But what is "the law"? Or, perhaps more appropriately, what are the limits of law? The necessity for an enforcing agent arises because of conflicts among individual interests, and the enforcing role for the state involves the protection of individual rights to do things, including the making and carrying out of valid contracts. In this role, the enforcing agent starts from or commences with the assignment of rights as these exist. The state has no role in setting out or in defining these rights if we stay within the dichotomy indicated.


If, however, the collectivity is empowered to enforce individual rights, how is it to be prevented from going beyond these limits? What are the "rights" of the enforcing agent itself, the state? If we are able, conceptually, to discuss the enforcement of rights and of contracts involving exchanges of rights among persons apart from questions involving exogenous changes in the assignment of rights, we must also be able to specify, again conceptually, the rights of the collectivity to do things. We cannot simply move one step further back and conceive of the appointment or selection of some superior enforcing agent, one that will protect and limit the rights of both individuals and the state. The enforcement hierarchy must stop somewhere, and for our purpose it is well to restrict discussion to the first level. It is relatively easy to think of the collectivity fulfilling its role in protecting person and property from "unlawful" acts carried out by persons. It becomes much more difficult to think of means through which individuals can enforce and protect their rights from "unlawful" acts on behalf of the collectivity itself. How can Leviathan be chained? This problem has worried political philosophers of all ages, but no fully satisfactory answer has been advanced, either as an ideal to be approached or as a practical program to be experienced.


Two distinct means of limiting collective power have been proposed and tried. First, there have been various institutional devices which are designed to restrict overall collective interferences with individual rights. The Roman republic attempted to share executive power among two or more officials appointed simultaneously to the same position. Medieval Europe opposed a decentralized feudal nobility against a centralized church and, later, against the emerging nation-states. Montesquieu discussed effective division and separation of state power along procedural lines. The Swiss have used federation effectively in keeping their society more or less free for centuries.


Second, there has been the explicit promulgation of the mystique of some "higher law," one that guides the actions of sovereigns as well as ordinary men. This, too, has taken many forms. The tablets of Moses and the Book of Mormon provide ancient and modern examples of "laws" derived from God. Philosophers have searched for "natural laws" that are inherent in man himself, laws that might be applied as norms for collectivities. Scholars of the Enlightenment evoked the social contract to explain the origin as well as the limits of governmental powers. The written constitution, carrying with it a specified historical date, presumably had as its primary objective the offering of some predictable stability concerning the limitations of state power. Heritages of the institutional devices and of the sources of mystique are mixed variously in the social orders of Western collectivities. In the United States, the Founding Fathers joined Montesquieu's separation of powers to the federal principle and attempted to secure these by a written constitution which reflected both contractarian and natural law presuppositions.


Can anyone attribute success to their efforts in the perspective of the 1970s? Viable federalism, as a means of checking dominant central-government power, has scarcely existed since the horrible civil war of the 1860s. Fortuitous circumstances alone held back the growth of federal government until the 1930s. Since the Great Depression, we have witnessed continuing and accelerating growth in our own Leviathan. Descriptively, we live in what might be called "constitutional anarchy," where the range and extent of federal government influence over individual behavior depend largely on the accidental preferences of politicians in judicial, legislative, and executive positions of power. Increasingly, men feel themselves at the mercy of a faceless, irresponsible bureaucracy, subject to unpredictable twists and turns that destroy and distort personal expectations with little opportunity for redress or retribution.


The naive among us invoke man's ultimate right of revolution as the final limit on government's power. But, as Gordon Tullock has demonstrated, the genuine revolutionary threat to ongoing collective agency is, and must be, miniscule in significance.*15 Individuals, as individuals, cannot be expected to generate the "public good" that is romantic revolution, even under the most oppressive of tyrannies. The "natural distribution" of effective power must be heavily weighted in favor of existing states, qualified only by some occasional "changing of the guard," either through formal electoral processes or through more violent and less predictable coups d'etat.


The 1970s present a paradox. There are demands from all quarters for a dismantling of bureaucracy, for a reduced governmental presence, for personal relief from accelerating tax pressures. By widespread agreement, the state has become too powerful, too pervasive in its influence over private affairs. At the same time, however, demands for extensions in public control abound. We observe government on the loose but at the same time the minimal order presumably secured by collective enforcement of rights seems to be disappearing. Is there a connection here? Has the state become too large, too powerful, too clumsy, to carry out effectively its own raison d'être? Or is the causal link reversed? Has the state presence itself generated an erosion of the ordered anarchy on which society depends? In abiding by unenforced rules for behavior in social intercourse, individuals create "public good." As these rules are violated, "public bad" emerges, but it may be folly to expect collective correction, especially when the state itself may have been a partial source for the shift. (Those who might have thought otherwise may find these statements more persuasive after Watergate.) It seems questionable whether any government, any political party, any politician, can restore the sense of community that might be required for acceptable order in the 1970s. Yet, lacking an alternative, the state responds and the paradox deepens.


Can we hope for the genuine "constitutional revolution" that might truly reorder the rights of both individuals and government? Can American constitutional democracy function when the central government is so much more extensive than those limits envisaged for it by the Founding Fathers? Can participatory democracy, interpreted as the rights of individuals to make their own collective choices, as government "by the people," exist at all when the range of governmental-political controls is so sweeping?

God, Man, and the Good Society


These and other similar questions may not greatly concern those who take the truth-judgment approach to politics. If politics and political-governmental institutions, whether or not these are democratic, exist only as means or instruments through which the true and unique nature of the "good society" is discovered and/or revealed, there is really no difference between the behavior of the bureaucrat, the federal judge, the political party leader, the congressman, or, indeed, the practitioner of civil disobedience. If "truth" exists in politics, "out there" for the finding of it, then, once found, does it really matter very much whether or not it is self-selected, chosen in a majority vote, imposed by judicial fiat, or obtained by a bureaucratic ukase?


To those of us, individualists and nonidealists, who reject the truth-judgment approach, the questions present genuine challenges of overriding importance. We cannot claim to play as God, and we can scarcely carry off the pretense that our own private preferences reflect his "truth." Our emphasis must lie in diagnosis rather than in dreams. There are features of modern American society that suggest "sickness" to many critics. One of my purposes in this book is to offer procedural diagnoses, a step that is required before we can begin to answer the larger questions. I offer one political economist's interpretation, informed by the perspective of an individualist. My analysis employs a few critical concepts, some of which have been mentioned: the assignment and enforcement of rights among persons, the limits of collective power. As these are elaborated, two somewhat more technical concepts emerge. The first is the "publicness" of law itself, law defined as rules for behavior, whether these rules be voluntarily chosen or externally imposed. The second is the capital investment characteristic of adherence to rules. The social capital that a law-abiding society of free men represents can be "eaten up." The American society of the 1970s may well be one that has allowed elements of its capital stock to be destroyed at an excessive rate.

Notes for this chapter

For additional examples along with a more comprehensive discussion, see Roland N. McKean, "The Economics of Trust, Altruism, and Corporate Responsibility," in Altruism, Morality, and Economic Theory, ed. E. S. Phelps (New York: Russell Sage Foundation, forthcoming). Also see Diane Windy Charnovitz, "The Economics of Etiquette and Customs: The Theory of Property Rights as Applied to Rules of Behavior" (M.S. thesis, University of Virginia, Charlottesville, Virginia, 1972).
There are exceptions. Murray Rothbard argues that conflicts could be resolved by the protective associations or clubs that would be formed voluntarily in genuine anarchy. See his For a New Liberty (New York: Macmillan, 1973). His approach fails to come to grips with the problem of defining rights initially, the issue that is central to my discussion.
James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor: University of Michigan Press, 1962; paperback ed., 1965).
Although our approach was somewhat more narrowly economic, the analytical setting is closely related to that employed by Rawls in deriving principles of justice from contractual process. See John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971).
In terms of the historical controversy, my approach is more closely related to the Germanic-feudal concept of property than to the Roman. On this distinction, as well as on many other aspects relating to the theory of property, see Richard Schlatter, Private Property: The History of an Idea (New Brunswick: Rutgers University Press, 1951), p. 9.
For a similar discussion, see Richard Taylor, Freedom, Anarchy, and the Law (Englewood Cliffs: Prentice-Hall, 1973), p. 9.
Cf. J. J. Rousseau, The Social Contract, vol. 38, Great Books of the Western World (Chicago: Encyclopaedia Britannica, 1952), p. 394. See also Henry Maine, Ancient Law (Boston: Beacon Press, 1963), p. 89.
The French Declaration of the Rights of Man, issued in 1789, is more confusing than Jefferson's statement in the Declaration of Independence. The relevant statement in the former reads: "Men are born, and remain, free and equal in rights." (Italics supplied.)

The fallacious implication that men must be, or must be made to be, equals in fact before they can qualify for the equality of treatment in democratic polity is one source of the modern confusion surrounding research in genetics.

See Gordon Tullock, "The Paradox of Revolution," Public Choice II (Fall 1971): 89-100.

End of Notes

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