The Reason of Rules: Constitutional Political Economy
By Geoffrey Brennan and James M. Buchanan
- Ch. 1, The Constitutional Imperative
- Ch. 2, The Contractarian Vision
- Ch. 3, The Myth of Benevolence
- Ch. 4, Modeling the Individual for Constitutional Analysis
- Ch. 5, Time, Temptation, and the Constrained Future
- Ch. 6, Politics Without Rules, I
- Ch. 7, Rules and Justice
- Ch. 8, Politics Without Rules, II
- Ch. 9, Is Constitutional Revolution Possible in Democracy
The Myth of Benevolence
As we suggested earlier, the failure of the contractarian-constitutionalist argument to gain adherents in the broad community of scholarship in social science and social philosophy does not stem primarily from disagreement at the level of scientific analysis. Nor does it arise from basic ideological discord, in the proper meaning of this term, although the rhetoric of nonjoined debate often employs ideological charges to mask the absence of understanding. The problem is one of communication and understanding, at least in important part, rather than one of divergence in fundamental ethical norms. The anticonstitutionalist does not know what we are talking about, quite literally, because he approaches the subject matter of social interaction from an alternative vision.
In Chapter 2, we tried to define and describe the contractarian vision or paradigm. But such a definition-description is not enough. We must also try to understand, as best we can, the opposing vision, the mind-set of the anticonstitutionalist, the foundations on which the same actual and potential world of social interaction is conceptualized. In the Nietzschean metaphor, we must try to look at the world through the
other window in order to understand what it is that makes our own contractarian interpretation be so stubbornly rejected by so many of our peers. And we must do so as sympathetically as possible, forswearing the introduction of easy charges of analytic error or subversive intent.
We do not know much about the relationship between the accumulation of empirical evidence, broadly defined, and shifts in paradigms. We know that for almost all individuals, some such relationship exists, since people do change the way they view the world: Their perspectives shift as they observe more and as they observe indirectly with the aid of science. We also know, however, that people shift their views of the world when they come to understand alternative interpretations of reality based on alternative visions, without the perceived empirical-historical record’s having changed at all.
The difference between the contractarian-constitutionalist, on the one hand, and the anticonstitutionalist, on the other, does not lie in what each actually sees or observes. The difference lies, instead, in the way that each interprets what he observes or in the way that each fits his observations into an integrated structure of meaning. We want, in this chapter, to “explain” how the anticonstitutionalist looks at politics, the term “politics” here being most broadly defined to incorporate all aspects of social interaction. We can then compare and contrast this way of looking, this conceptualization, with that presented in Chapter 2. Since we are not ourselves proponents of the paradigm we seek to explain, our explanation must be treated as hypothesis rather than as an articulated statement comparable to that of Chapter 2.
We commence, in Section II, by plunging directly into the murky discourse circumvented only temporarily in Chapter 2 and promoted by the question of what individuals seek in politics. We must examine the meaning of “public good,” as compared with “private good,” which involves further discussion of the sources of value. Section III continues the discussion with a comparison between politics and science, both modeled as inherently social activities. Section IV is an attempt to demonstrate that the “truth judgment” paradigm leads almost inexorably to the myth of government benevolence. Section V explores the conceptualization of majoritarian democracy within this myth. Section VI then compares and contrasts the paradigm with our own in a more general philosophical setting.
II. Private Good and Public Good
What do people seek when they act in total independence? What do they seek when they participate in social interactions?
The first of these questions can be answered readily. People in isolated settings, Robinson Crusoe before the arrival of Friday, for example, seek what they want to seek: The question posed is relatively uninteresting. Economists might respond by saying that people seek “utility” and then proceed to model behavior in utility-maximizing terms. In this form, however, utility is operationally empty, since it becomes merely “what people maximize.” Any number of comparable terms would be equally suitable: satisfaction, pleasure, happiness, or
x. The point is that for purely private choices made in isolation and outside any social relationship, individuals are presumed to establish their own private and internal value standards.
The second question is far more difficult. The economist who models individual behavior in idealized competitive settings only partially succeeds in escaping the social effects on individual values. In the abstracted model of the perfectly competitive economy, each participant remains totally unaware that he is involved in social interaction. Each buyer and each seller responds to prices that he confronts; his economic dealings remain wholly impersonal.
Economists recognize, of course, that the idealized construction is just that, and they acknowledge that even in the most competitive markets, descriptively identified, there may remain elements of a genuinely social relationship. Individuals, as buyers or as sellers, confront other persons on the reciprocal side of the market, persons whom they recognize as members of the human species. In such cases, the economic relationship is
At precisely this point, economic theory branches in two separate methodological directions. To the extent that a positive, predictive theory is sought, individuals who participate in economic exchanges continue to be modeled as if they do not recognize reciprocal trading parties as such. In order for operationally meaningful statements about choice behavior to be made, what individuals seek to maximize must be specified in advance.
Homo economicus enters the scenario; individuals are postulated to seek only their own identified private interest, summarized in objectively measurable net wealth.
Quite another direction can be taken, however, if the economic theorist aims only at offering a logical explanation of the whole exchange network. In this approach, the person who recognizes the social nature of the exchange relationship may be allowed to incorporate the interests of the party on the other side of the potential exchange, and such incorporation may be allowed to modify choice behavior. In other terms, an objectively measurable maximand need not be specified. Nonetheless, even in this construction, the value to be maximized by the individual remains
internal to his own psyche. This value may, as suggested, include some reckoning of the interests of the other party in exchange. But it is an interest subjectively experienced by the party other than the one on whom it is presumed to have an effect.
The point here is a subtle one, and it is a source of much confusion. Some detail may be warranted. Persons A and B engage in economic exchange; A recognizes the social nature of the relationship. Because he does so, he may not seek to maximize only his own net wealth. He may place some value on the well-being of person B, as he, A, evaluates this well-being. But such evaluation remains internal to A; it cannot be B’s evaluation of B’s well-being. The latter evaluation could not possibly influence the choice behavior of A.
This discussion of simple economic exchange is, again, useful largely because it aids in the analysis of the much more complex interaction of “politics.” Initially, we may think of “politics” in an all-inclusive definition to refer to all interpersonal dealings other than the basic two-party, buyer-seller exchange that lies strictly in the domain of economics. As we indicated in Chapter 2, politics is modeled as “complex exchange” in the contractarian vision. But the motivation for individual behavior in such exchanges is necessarily more problematic than in simple economic exchange. In the latter, Wicksteed’s methodological presumption of “nontuism”
*14 allows the participants to be modeled as net wealth maximizers
in the exchange process itself, while enabling the analyst to postulate any degree of altruistic behavior outside this process. The analyst of exchange concentrates on the in-exchange motivation and neglects beyond-exchange behavior, considering it to be outside the limits of his interest.
In “politics,” however, no such presumption can readily be made. Consider a complex interaction in which
all members of a politically organized community are potentially affected by the outcome of a decision that must be made between two courses of action. In other words, the setting is one in which “public good” or “public bad” is characteristic of the choice alternatives, “publicness” carrying the standard technical meaning here. If we now model the behavior of the individual as straightforward wealth maximization, we are postulating that the imputed interests of persons other than the individual examined are excluded. Clearly, this is a more extreme and hence less acceptable model of behavior than the comparable market exchange model. For this reason, social scientists, especially noneconomists but also many economists, have remained reluctant to work with net wealth maximization postulates for individual behavior in politics.
This reluctance is fully understandable, but a basic error is made when the postulate is dropped and analysis takes the alternative direction of allowing utility or preference functions to remain open. What do individuals seek in politics if they do not seek to maximize their own expected net wealth?
The idealists among us want to respond by postulating that participants seek “public good,” that persons try, as best they can, to take the interests of all members of the community into account when they make in-politics decisions. The extent to which individuals are motivated in this way remains, of course, an empirical question. The point to be emphasized, however, is that any degree of “other-regardingness” can be incorporated, without difficulty, into the basic contractarian paradigm. The contractarian, or complex exchange, model of politics depends not at all on the postulated motivation of the individual actors.
The contractarian model does depend, however, on the presumption that the “public good” or “private good,” or whatever mixture of these might be relevant, is
internally conceived and hence is
subjective to the person who acts. A person may, for example, behave strictly in accordance with the idealist’s norm; he may try to take into account the interests of all others in the community. But such interests enter as arguments in the choice calculus internally to the participant; the interests of others are imputed to them as estimated by the participant. These interests cannot reflect expressions of others in any direct manner.
The methodological-epistemological difference between the contractarian and the noncontractarian emerges at precisely this point. When the noncontractarian postulates that the individual participant in politics seeks “public good,” what is sought is presumed to have an external existence, outside the values and the evaluation activity of the person who is expressing himself through his choice behavior. It is the objective quality of what is sought that differentiates the noncontractarian from the contractarian position; it is not a postulated difference in motivation.
If “public good” does exist in such an independently objectifiable sense, it follows directly that the person who seeks this goal is deriving his values from some source external to himself. Where such values come from is never clear, and, of course, there may be many alleged sources. We need not examine these here; we stress only that the postulated existence of such objectively definable “public good” is not consistent with what we have called the contractarian vision.
III. Science, Truth, and Politics
We can clarify the discussion by making a distinction between two types of social interaction: between science and politics of the ordinary sort. This distinction is helpful because science is a social activity pursued by persons who acknowledge the existence of a nonindividualistic, mutually agreed-on value, namely
truth, and who, furthermore, accept this value as the common goal of all participants in the enterprise. Science cannot, therefore, be modeled in the contractarian, or complex exchange, paradigm. Science is categorically different from the relationship that is the domain of economics. The contractarian contends that politics is best modeled as being analogous to the economic relationship; the noncontractarian contends that politics is best modeled as being analogous to scientific activity.
Science does, of course, make use of agreement, but it does so only in the epistemic sense noted in Chapter 2. Agreement among informed scientists is a test for the establishment of the truth of a proposition. But such agreement, in itself, does not ultimately validate the proposition. The validity as such remains conceptually independent of the belief of any scientist or of the commonality of belief among many or even all scientists. For this reason, any proposition is always subject to refutation, even if there exists unanimous agreement on its validity at a single point in time. The world was not flat in the Middle Ages because all “scientists” thought it was; nor is the world curved today because all scientists think it is. That which actually exists can never be known. But in the Middle Ages, the best available test supported the proposition of flatness, just as today the best available test supports the hypothesis of curvature. Our point is that in science, “what exists” is acknowledged to be wholly independent of the subjective judgment of any scientist or scientists.
In participating in the scientific enterprise, the individual scientist expresses a belief that certain propositions are “true.” In so doing, he is not placing an individually derived value on the set of propositions as such. He is applying his own truth test or truth judgment. He is asking, “Is the proposition true?” He is not asking, “Is the proposition good for me?” or “Is the proposition good for society?” No value in a scientific proposition is akin to the value that the individual places on an economic result or outcome. It is appropriate for the participant in economic exchange to ask, “Is the extra orange good for me?” or “Is the extra orange good for the whole set of interacting traders?”
The question comes down to that of the place of politics in these two clearly contrasting paradigms. The anticontractarian-anticonstitutionalist’s model of the social enterprise of politics is much like the model of science. Persons are seen to be engaged in a collectively organized, cooperative endeavor aimed at “discovering” some “public good” that is external to their own preferences or values. This “public good” exists, “out there,” waiting to be found through the activity of politics. “Public good” is the holy grail. Finding it is fully analogous to finding truth in the scientific search process. By contrast, to the contractarian-constitutionalist it is inappropriate for the participant in politics to ask, “Is candidate A better than candidate B in promoting a ‘public good’ that is external to and common to us all?” Instead, the participant in politics should ask, “Is candidate A or candidate B best for me, in terms of my private interests?” or, perhaps more appropriately in a moral sense, “Is candidate A or candidate B best for the whole community membership, in my own assessment of that question?”
The jury as an example
The legal institution of the jury offers an example of the difference between the two conceptualizations of politics; it also allows us to construct a bridge between the discussion here and that of majoritarian democracy in Section V. The activity of the members of a jury is analogous to the activity of scientists. The jury is an institution charged with the task of establishing the truth or falsity of a proposition, and this truth or falsity is acknowledged to be totally independent of the subjective values of the jurors. The proposition that Mr. X is guilty of the crime with which he is charged admits one of two mutually exclusive judgments: Mr. X is guilty, or he is not guilty. But the finding of the jury does not in itself resolve the factual issue. Even if Mr. X is acquitted, he may remain factually guilty, and even if he is found guilty, he may be factually innocent. There is no direct relationship between the expression of the jurors and the fact of guilt or innocence.
The jury, as an institution, is an instrument designed to facilitate the discovery process. If it is efficient, as an institution, it may be the best available means of ascertaining judgments of guilt or innocence in situations in which one or the other of these verdicts is socially required. In its operation, the jury may use agreement among its members as a criterion for determining any collective judgment of the group. Individual members, like scientists, express their beliefs in the validity or invalidity of the proposition in question.
Because agreement is only a criterion that is instrumental to the institutional functioning, there is nothing intrinsic in agreement per se that dictates the appropriateness of the unanimity rule or, indeed, of any other decision rule. The best rule is the one that, on balance, seems to generate results that are in closest correspondence to the “truth,” defined as that set of propositions that are ultimately nonrefuted. For the same reason, the jury itself, because it exists only as an institutional means of producing or discovering required judgments on the validity or invalidity of guilt-innocence propositions, may well be proved inefficient and replaced by alternative institutional forms. The random process of selecting jurors may, in particular, prove less efficient than some alternative that might rely only on “experts.” Or as in many jurisdictional areas of law, a single judge may, as an “expert,” be the most “efficient” vehicle for producing correspondence with independently desired results.
In the anticontractarian-anticonstitutionalist paradigm, politics is modeled as if the whole process were jurylike and concerned with finding or discovering “public good,” just as the jury is concerned with determining guilt or innocence. Politics as a social activity is indeed like science. Values are external to the persons who participate, and agreement is only one of the instruments that may be employed to locate such values.
IV. The Authoritarian Imperative
The “politics as science” or “politics as truth judgment” conceptualization of the social interaction process is both authoritarian and antiindividualistic. These terms are intended to be descriptive rather than pejorative. The authoritarian imperative emerges directly from the extraindividual source of valuation of “public good.” If “public good” exists independently of individuals’ evaluations, any argument against the furtherance of such good because of some concern for individual liberty becomes contradictory. If “public good” exists separately from individuals’ preferences, and if it is properly known, it must assume precedence over (although, of course, it could embody) precepts for maintenance of personal liberties.
The “politics as science” paradigm is antiindividualistic because it locates the ultimate source of value outside the psychological domain over which participants may express effective preferences. In a sense, the paradigm is “organic” or “organismic” in that it embodies a definition of “good” in application to the whole community of persons rather than to individual members. In such a definition, however, there need be no crude postulation of some organic unit—for example, “the state” or “society.” Individuals may still be reckoned to be the ultimate units of consciousness; no supraindividual being need be hypothesized. The “good” defined in application to the community remains, nonetheless, supraindividual because individuals cannot question its independent existence. Implicitly, all persons must agree that what is “good” would be properly promoted if what is “good” could ever be found.
Once again the analogy with science is helpful. Michael Polanyi has called the scientific community “a society of explorers.” Implicit in this conception is the presumption that individual scientists share the same ultimate objective, truth, and that it is not legitimate for an individual scientist to claim respect for his own beliefs merely
because they are his own. As it may actually be organized, the scientific community may or may not appear to be working well in its avowed task of truth discovery. It must nonetheless be conceived to be working within the limits of its defined objective, the attainment of truth. For example, a hierarchically organized laboratory may be deemed less efficient than a decentralized laboratory, but scientists in the former are still modeled as behaving within the limits of the overall objective. Because they are so modeled, any overt limits or restrictions on their freedom of action must be imagined as closing off possible directions of exploration. To impose “constitutional constraints” on the activities of scientists, postulated to be united in their search for truth, would seem itself authoritarian rather than its opposite.
This analogy with science may suggest why anticontractarians view with genuine fear and loathing modern proposals to impose constitutional limits on the exercise of political authority. In the mind-set described, politics as an activity to be constrained makes no sense. Those who advance proposals for such limits appear to be taking it upon themselves to prejudge that for which the whole procedure is established. Constitutional constraints on governments are like rules that prevent scientists from entering certain territories for investigation. To the person who views politics from this perspective, there is no logical basis for constitutional contract at all.
We have entitled this chapter “The Myth of Benevolence” because of the implications of the paradigm. We can clarify these implications by thinking of the social scientist or social philosopher who tries to examine his raison d’être. In such an intellectual setting, the scholar does not, and cannot, model his own behavior in any participatory capacity, because he cannot acknowledge that his own values (or anyone else’s) count. The activity of politics as such is carried out by professional political leaders, whose behavior is described as that of disinterested seekers after “public good” in the context of the various issues that may be confronted. In this paradigm, these leaders are neither agents for citizens, nor representatives of citizens’ interests and values. The scholar, on the sidelines, must almost by necessity model his own behavior as that of a disinterested seeker one stage removed, in a role as adviser or consultant to those who are more active participants. The scholar is like the scientist in almost all respects, seeking “good” in lieu of the scientist’s “truth.”
The scholar we describe here seems immune to the Wicksellian charge that he proffers advice “as if” to a benevolent despot. He does so because he does not understand the charge. Unless politics is modeled in some version of the contractarian, or complex exchange, paradigm, outcomes do not emerge from a process in which separate interests and values are somehow amalgamated through a set of decision-making institutions. Political outcomes are, instead, chosen by whoever seeks the “good” in accordance with his own best judgment of what such good is. There is no question as to the potential compromise or adjustment of separate interests. Those who disagree with the definition of the “good” are misinformed and in error; they can be made to “see the light” through the rhetoric of politics. In this setting, there is no way the individual scholar can envisage a role for himself other than that of the disinterested searcher for the “good,” who has a claim to be better informed than the ordinary citizen.
As he takes on the role as adviser to princes, whether imaginary or real, the scientist-philosopher must oppose all suggestions for constitutional reform that involve additional limits on governmental authority, and, for like reasons, he must support all proposals for relaxation of existing constraints. Any overt restriction on political authority impinges on the scholar’s freedom of choice once removed. In the idealized search for political “good,” the scholar-scientist needs to roam the universe of potentially feasible space. The possibility set must remain as open and inclusive as observed environmental parameters allow.
V. Majoritarian Democracy in the Noncontractarian Paradigm
We have suggested that the noncontractarian position sketched in this chapter is authoritarian and antiindividualistic. We have not, to this point, classified the position as nondemocratic, because vociferous advocates of “democracy,” particularly of its majoritarian variants, are among those who most strongly oppose constitutional change. The paradigm in which politics is analogous to science seems to allow the development of an argument supporting democratic institutions of collective decision making. Such institutions, perhaps best exemplified by majority voting rules in elected legislative assemblies, are defended, however, on grounds that are totally different from those that might be adduced from the contractarian paradigm.
The electoral machinery of democracy, considered as an institutional structure that generates collective outcomes, is conceptualized in a manner fully analogous to the conceptualization of a jury operating under unanimity or qualified majority voting rules. The machinery of democracy is supported because of its alleged efficacy in discovering “public good.” Proponents of this position may, of course, acknowledge that democratic electoral processes, including plurality and majority voting rules, seem grossly imperfect when judged against some ideal standard. The plausible defense of democracy requires, however, only that these institutions be estimated to be less imperfect than suggested alternative arrangements.
In this context, majoritarian democracy may, indeed, find stout defenders, as the historical record surely suggests. Nonetheless, it should be evident that the intellectual foundations of democratic institutions in this noncontractarian perspective are weaker by an order of magnitude than those in the contractarian perspective. Democratic institutions stand or fall on their alleged superiority in generating the attainment of an independently existing “public good.” The whole defense is necessarily based on
efficiency. At a secondary level of argument, proponents of democracy in the noncontractarian paradigm acknowledge that majority rule is less imperfect than its alternatives in part because “public good” is not readily discernible. And, indeed, these very proponents may argue that nondemocratic methods of reaching collective decisions are more efficient when “public good” is more clearly outlined, as, for example, in war emergency.
By dramatic contrast with the defense of democracy in the noncontractarian perspective, the contractarian defense of democratic institutions, as constitutionally derived, is based on their ability to facilitate the expression of
individual values. These institutions are not understood to be “discovering public good,” even if at some deeper philosophical level the existence or nonexistence of such “public good” may be a subject of further inquiry. Since there is no external standard against which institutions can be evaluated in efficiency terms, any evaluative criteria must be applied directly to the institutional processes themselves. In such perspective, constitutional democracy, which may embody majoritarian voting rules in specified circumstances, is
categorically distinct from all other governmental-political forms of authority. For the noncontractarian, on the other hand, there can be no categorical difference between, say, majoritarian democracy and hereditary monarchy. These are simply alternative forms of politics, both aimed at finding “public good”; the former is preferred to the latter only because it is more effective in achieving the purpose.
To the extent that a prejudgment has been made to the effect that majoritarian voting rules are more efficient in generating “public good” than are any of the alternative forms of political authority (for example, hereditary monarchy, aristocracy, oligarchy, rule by committee of a single party, or dictatorship by a military junta), any constitutional constraints on the “will of the majority” will tend to be opposed. Such opposition need not be based on any notion that the majority is always right; the notion is that the majority is more likely to be right than any other instrument for making collective judgments. To impose constitutional limits on the exercise of majority will must, therefore, imply that a majority in one period can claim superior wisdom to a majority in subsequent periods. Such a claim finds no reasonable basis for support in the noncontractarian framework of argument. Hence, majorities must be allowed to work their wills. The task of education remains one of informing political leaders and citizens about the content of “public good.”
VI. The Aim of Politics
We set out in this chapter to explain the noncontractarian-nonconstitutionalist vision of politics that stands in intellectual opposition to our own position, which we discussed in Chapter 2. In our attempts to do this, we frequently found it useful to introduce comparisons and contrasts with our own position. Our purpose in this section is to extend this comparison and contrast of the two paradigms to a more general setting. Central to the analysis will be the distinction between the application of evaluative criteria to end states or outcomes, on the one hand, and to processes or rules, on the other. The discussion will be related to the familiar distinctions made by philosophers between consequentialist and nonconsequentialist argument or, alternatively, between teleological and deontological arguments. As the discussion will demonstrate, it is relatively easy to classify the contractarian-constitutionalist position in terms of these categories; it is much more difficult to classify the noncontractarian position.
The contractarian-constitutionalist position is almost necessarily nonconsequentialist and deontological. Evaluative criteria must be applied to rules or processes rather than to end states or results, at least in any direct sense. As such, there is no means of evaluating any end state, because there is no external standard or scale through which end states can be “valued.” End states must be evaluated only through the processes that generate them. What emerges from a process is what emerges and nothing more. If the process is such that individuals seem to be allowed to give due and unbiased expression to
their own values, however these may be formed and influenced, the results must be deemed acceptable. (The particular posttrade allocation of apples and oranges between the two traders has
no evaluative significance.) This process-oriented evaluation need not rule out possible feedback between outcomes and evaluations of processes. Patterns of outcomes generated under particular processes or rules may be such as to make the processes themselves unacceptable.
In this paradigm, however, politics as such has no aim or objective. Politics, broadly defined, is a complex institutional process through which persons express the values they place on the alternatives with which they are presented. It is internally contradictory to refer to “national goals,” although, of course, individuals in a polity may share certain objectives.
As noted, it is much more difficult to place one of the familiar philosophical rubrics on the noncontractarian position outlined in this chapter. Again, however, the “politics as science” metaphor may be helpful. Politics in this paradigm is consequentialist and teleological in the same sense that science fits within these categories of argument. The activity as such remains nonconsequentialist and nonteleological because there is no predetermined objective that is known to participants and toward which all efforts within the activity are directed. Like science, politics is modeled as a discovery process, aimed at finding “public good.” This end state, this good, is not known outside the activity of the search itself. But there is a critically important sense in which the whole argument is teleological. The activity of discovery, in science or in politics, is carried on under the continuing and pervasive presumption that what is sought exists independent of the expression of individual values in the search itself. Another way of putting this is to say that participants would agree that if the ultimate objective were known, all effort would be directed toward its achievement. Politics becomes a never-ending search for the grail of “public good.” This “good” is not to be defined by the values of the persons who conduct the search. Such persons seek something outside themselves.
Ethics 77 (July 1967): 303-10; reprinted in James M. Buchanan,
Freedom in Constitutional Contract (College Station: Texas A&M University Press, 1977), pp. 64-80. More recent related discussion is contained in James M. Buchanan, “Sources of Opposition to Constitutional Reform,” in
Constitutional Economics: Containing the Economic Powers of Government, ed. Richard McKenzie (Lexington, Mass.: Lexington Books, 1984), pp. 21-34.
The Common Sense of Political Economy (London: Macmillan, 1910).