Abstract
When Buchanan discusses the constitutional changes that members of society would agree to, he uses the status quo as the default. If no agreement occurs, we continue with the constitutional rules that are currently in place. This article argues that this choice results in an unjustified status quo bias. To make this point, I examine and challenge three possible arguments in favor of using the status quo as the default. Then, I give two arguments in favor of a form of contractarianism that does not use the status quo as a default.
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Notes
Buchanan might not support a government enforcing those rules unless the members of society actually do agree to it, but he does attempt to identify and recommend what would be mutually agreeable.
As discussed in Brennan and Hamlin (2004, 127–128).
Buchanan resisted this characterization of his view because he believed that his contractarian perspective could be used to criticize the current rules of society. As he says, “the establishmentarian would be one who defends the established way of doing things, which is far from my own position.” (Buchanan and Samuels 1975, p. 25). Tollison also defends Buchanan in this way in his Preface to Calculus of Consent (Buchanan and Tullock 1962, p. x). While Buchanan’s view might be used to criticize prevailing rules, his approach would also make it difficult or costly to make changes from those prevailing rules. It is for this reason that it takes a conservative stance.
To be complete, Buchanan’s conservative stance is the result of two features of his view; (a) his use of the status quo as default and (b) he insistence on unanimity for change. Changing either of these features would decrease the degree of conservatism, but I take the second feature to be more central in Buchanan’s thought.
Importantly, the contrast here is just between the status quo, SQ, and an alternative set of arrangements, A. Buchanan does not give any reason to condemn a shift from SQ to A. While Buchanan might ultimately praise a shift from SQ to a society that members would unanimously agree is better, SQ*, the shift from SQ to SQ* is different from the shift from SQ to A.
He also says, “It seems self-evident that if the status quo defines a structure of basic constitutional rights, these cannot be arbitrarily changed” because doing so would mean that they were not truly rights (1975, p. 106). Yet, this is also a strange remark because Buchanan does not give us adequate reason to see the “if” clause as being true. Why should we see the status quo as defining a structure of basic constitutional rights (rather than merely a structure of coercively imposed rules that establish expectations)?
A reviewer suggests that we regard Buchanan as merely offering advice to those that already have the goal of only reforming society in ways that are unanimously agreeable. Yet, Buchanan is surely choosing to give advice to those with that goal over those with alternative goals, and we can ask what justifies advising only those with the goal of reforming society in unanimously agreeable ways.
One point that is worth emphasizing here is that Buchanan was still insistent that his use of the status quo is a value-neutral choice in 2004. He writes, “a too-early or too-eager intrusion of eternal and independent value norms into the discussion will serve only to reduce the usefulness of the whole Wicksell–Pareto construction, which, as noted, remains value-free save the minimal normative weight assigned to the individualistic presupposition” (p. 140).
Such an argument is consistent with the view that Hartmut Kliemt labels “formal conservatism” (2004, p. 178). Such a view does not argue for the status quo on the basis of substantive merit but in order to have some definitive basis for rules.
Alternatively, one might argue that we do not act from perfect knowledge when we use the status quo as a default, but we act with greater knowledge than the alternatives. Even if this were true, we would need some reason why the greater degree of knowledge is significant enough to justify the status quo as baseline.
My emphasis. Also “my defense of the status quo stems from my unwillingness, indeed inability, to discuss changes other than those that are contractual in nature.” (ibid., p. 27).
Likewise, if we restrict changes to those that are unanimously agreeable from the status quo, then we restrict the possible constitutional structures to a given set of constitutions S (where each member of S is a constitutional structure that is unanimously preferred over the status quo). If everyone agrees to reform the current constitutional structure, then the switch is not coerced. However, the members of society are still forced to live according to one of the constitution in set S. They did not choose to limit their options to set S. If I imprison my friend but give them the option to move from cell 1 to cell 2, he is not free from coercion because he can improve his cell. He is, despite the Pareto Improvement, still imprisoned.
In his correspondence with Samuels, he identifies the point of The Limits of Liberty as offering this kind of ideal; “I have been trying, with only partial success, to derive a concept or theory of government as it might have emerged out of Hobbesian anarchy. This involves first a description of this anarchy and then a discussion of the basic contract, with its emendations. From this I get into the role of government in its various forms. I plan to then use this derivation as the basis for diagnosing what is wrong now.” (Buchanan and Samuels 1975, p. 22).
Rather than identifying the “largest proportion,” it would be more correct to say that defection costs will be lowest when the society approximates a compromise vision that is weighted towards the values of those with a higher likelihood to defect from the rules of a society.
As I would understand it, this “compromise vision” may or may not resemble Rawls’s imagined “modus vivendi” (Rawls, 2005, 147). When social order is characterized by as a mere modus vivendi, people stand ready to oppose other members of society. In a compromise vision, people may compromise around a vision of society with greater unity.
There is some irony in my making this argument because this argument is similar to G.A. Cohen’s “incentives” objection to Rawls, and I have elsewhere defended Rawls from that objection (Melenovsky 2016). However, the distinction I make there between evaluating institutions and individual action does not apply to the distinction between constitutions and laws.
One possible response to this line of argument is to suppose that “act however you want during in-period politics” is itself a part of the constitution of society. In that case, commitment to the constitution would allow for constitutional rule-followers to act however they want. Yet, I would want more argument to show that this would be unanimously agreed to over alternatives.
He wanted to differentiate himself from “other social scientists and social philosophers” that “felt themselves obligated to propose changes that are derived from external ethical criteria.” Instead, he was “involved in working out possible compromise modifications that would be agreeable to larger numbers of persons in the community” (1975, 111).
Hartmut Kliemt defends a related conclusion in his article, “Contractarianism as Liberal Conservativism” (2004). For him, the way to use Buchanan’s ideals in a way that advocates for a particular social structure is not to appeal to hypothetical choice as other contract theories do. Instead, we use those principles to advocate for a society that increases the individual capacity for choice about their own world.
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Melenovsky, C.M. The Status Quo in Buchanan’s Constitutional Contractarianism. Homo Oecon 36, 87–109 (2019). https://doi.org/10.1007/s41412-019-00088-3
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DOI: https://doi.org/10.1007/s41412-019-00088-3