Abstract
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.
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Notes
For an overview of Buchanan’s constitutional policy economy, see Congleton (2014).
One could pack this information into the knowledge possessed by parties to the original position. But Rawls (1971, 119) excluded much of the information public choice economists appeal to.
Note that the state of liberty is not a state of license, but rather a state where each person is required to act only on her private judgment of what morality requires; this contrasts with Buchanan’s state of nature where agents act simply on self-interest. In this way, my state of nature contains agents who acknowledge some moral requirements, but no publicly recognized arbiter to interpret those requirements, similar to John Locke’s state of nature, though my view does not draw on a conception of natural law.
Economists may represent John as gaining net benefit from caring for Reba; that’s fine, but this representation requires a purely formal notion of utility that allows rankings of reasons, which may imply extensional equivalence between such a view and my reasons-costs standard.
The idea of a weighted sum contains considerable complexity that I focus on in the Sect. 7.
There may be more than one collective action that is better than nothing.
Tullock is responsible for this geometric device, a point I owe to Roger Congleton.
Buchanan and Tullock’s cost curves already include the interest in getting good legislation passed, but I split up the representation in order to show how the public reason-refit works.
Publicly justified legislation is not costless. There is still a cost to being coerced, but with publicly justified legislation, the individual’s reasons-function holds that the law has net benefits.
My approach resembles a utility-based rather than a cost-based k-rule analysis, similar but distinct from the approach in Dougherty and Ragan 2016.
Representing the minimization of type-1 and type-2 errors as maximizing benefits allows for clearer representation than representing the minimization of error as the minimization of costs.
Buchanan and Tullock showed that contradictory coalitions can form even under majority rule.
Here I understand an undominated rule as one that at least some members of the public rank as superior to other rules in the eligible set. There is no rule that is Pareto superior to it among members of the public as a whole.
Though public reason is not committed to allowing any evaluative standards to be reasonable; public reason liberals often use the idea of reasonableness to rule out particularly immoral and wicked evaluative standards; I have followed them in this in Vallier 2014, 147-8, though my standard of reasonableness is much more inclusive than what is typically found in the public reason literature.
For Gaus, agents are collectively indifferent between elements of the set.
Constitutional rules are publicly justified if and only if they protect primary rights, minimize legislative error, and prove stable for the right reasons. I’ve omitted a discussion of the stability condition in this paper, but I discuss it at length in Vallier 2017.
Contra Rawls (2005, 49), I think valuing reconciliation does not always require that citizens be disposed to provide one another with public justifications. Reconciliation can be achieved through life under publicly justifiable rules.
Save some radical libertarians.
References
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Acknowledgements
This paper has taken a number of forms over the years, and more have added to the paper than I can list, so I apologize if anyone has been left out. I am grateful to a number of audiences where I presented the paper, especially audiences at George Mason University, University of Birmingham, UNC Chapel Hill, Brown University, and McGill University. I am especially grateful for comments from Paul Billingham, Peter Boettke, Geoffrey Brennan, Hun Chung, Roger Congleton, Jerry Gaus, Adam Gjesdal, Alan Hamlin, Keith Hankins, Brian Kogelmann, Peter Leeson, Jacob Levy, Andrew Lister, Stephen Macedo, Fred Miller, Ryan Muldoon, Mike Munger, Fabienne Peter, Jonathan Quong, Geoff Sayre-McCord, Thomas Sinclair, Vernon Smith, Stephen Stich, John Thrasher, Chad Van Schoelandt, Steve Wall, Paul Weithman, Jeremy Williams, Bart Wilson, Alex Worsnip, and many anonymous referees.
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Vallier, K. Social contracts for real moral agents: a synthesis of public reason and public choice approaches to constitutional design. Const Polit Econ 29, 115–136 (2018). https://doi.org/10.1007/s10602-018-9259-0
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DOI: https://doi.org/10.1007/s10602-018-9259-0
Keywords
- Public reason
- Public choice
- James Buchanan
- John Rawls
- Constitutional choice
- Public reason liberalism
- Contractarianism