Abstract
Although public opinion and most of the academic community reject libertarian anarchy, explaining why governments are legitimate remains a major and much neglected problem. This paper discusses the foundations of social-contract theorising with emphasis on the Hobbesian approach. It then examines the constitutional alternatives (including Buchanan’s) and draws three main critical conclusions. First, the Hobbesian construction is not a social contract dictated by nature, since the individuals’ instinct to survive does not necessarily justify the presence of a watchman. Second, the constitutional contract takes the status quo for granted, fails to identify the signatories, and ignores the presence of dissenters. Finally, Buchanan’s version of the constitutional approach shares the Hobbesian perspective, and focuses on describing the bargaining process, rather than on assessing the legitimacy of government. Although it is a fitting description of the context prevailing in today’s Western democracies, Buchanan’s view ends up replacing the rule of law dear to the classical-liberal tradition with the rule of compromise.
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- 1.
The expression “indirect coercion” describes a situation in which the ruler wants to influence B’s choice. In order to do so, the ruler forces agent A, who interacts with B, to modify his (A’s) behaviour and thus affect the alternatives and costs that B is facing. Nudging, compulsory persuasion (or libertarian paternalism) are forms of indirect coercion and are thus in contrast with a free-market vision (Beraldo 2018). This is the case, for example, when the government requires that the seller position his goods on a shelf in a given order to encourage the consumer to buy one item rather than the other.
- 2.
Of course, the fact that libertarian anarchy is unfeasible does not justify the presence of a ruler. Yet, it strengthens the case for government as a lesser evil. This is the basis for a pragmatic view of the social contract . See Spooner (1867–1870), for an early and forceful argument against the legitimacy of all governments and the irrelevance of constitutions; and Huemer (2013) for a more recent contribution on the feasibility of the anarchic option.
- 3.
It is also important to underscore the difference between a club and a (social) community. A club is an association among individuals with a view to producing excludable and non-rival goods (within limits). A social community is a group of people who share a set of conventions. Thus, although a political community is frequently composed by the members of a social community, being part of a social community does not imply the existence of a political community. See also Hume (2001 [1752]), according to whom the agreement that justifies a political community is a set of conventions. In this light, a political community is legitimate only if its members are part of a social community. Of course, this condition would be necessary, but not sufficient.
- 4.
The word “innate” is important. In this context, it means that given individuals have a natural right to rule, a notion in contrast with the principle of men’s moral equality (birth does not justify rent-seeking). The medieval belief in the existence of an innate right to rule differs from the modern notion of an acquired right to rule. The modern notion mentions one’s social upbringing, as argued by Edmund Burke; or historical accident, as argued by a tradition that started at least three centuries ago (Thomas Hobbes ) and is now presented in term of procedural compliance.
- 5.
The same would be true when a very large majority suffices to give birth to a social contract . Those who do not want to subscribe to an agency enhancing cooperation can stay out of the political community or form their own political community, with their own agency. Dissenters might well enjoy a free ride. Yet, if their number is relatively small, the other residents can still create and finance an agency that enhances cooperation, ensures contract enforcement and possibly provides security (police and defence). Some people could find the presence of free riding annoying. However, free riding is not an act of aggression and causes no victims.
- 6.
This situation would correspond to libertarian anarchy (see, for example, Rothbard 1982). In contrast with what suggested in Buchanan (2000 [1975], Chap. 1), anarchy does not necessarily imply Hobbesian warfare and chaos. In fact, anarchy corresponds to an institutional context in which no agency has the monopoly of violence or the authority to prevent people from pursuing their preferences and choosing accordingly.
- 7.
The Rousseauvian and the Rawlsian social contracts reproduce the same pattern: the elites are not legitimised to rule because their policies reflect people’s preferences. Rather, in the Rousseauvian context they govern because they enforce a general will, the meaning of which is defined by the elites themselves. Instead, in the Rawlsian context the elites enforce some form of equalitarianism. The difference between the two approaches is in the principles advanced by the elites: consequentialism in the Rousseauvian case, (social) justice in the Rawlsian framework.
- 8.
Legitimising an institutional arrangement by claiming that its presence involves a Pareto improvement is not unique to Buchanan . For example, De Jasay (1991, 2005) bases his presumption of liberty on a Paretian criterion. However, in De Jasay, the criterion is met when you guarantee freedom to choose, the ownership of one’s own self and private property. By contrast, according to Buchanan the very fact that government is preferable to anarchy seems enough to qualify government as legitimate. This seems to apply even when the government operates in a condition of “constitutional anarchy”, i.e. when it violates the contract it should have enforced.
- 9.
Buchanan ’s notion of “constitutional ” differs from that used by Hayek and E. Ostrom. According to Buchanan , constitutions define both the rules of the game and what governments are allowed and possibly encouraged to produce. By contrast, Hayek emphasises constitutional design with a view to preserving the rule of law, while E. Ostrom uses this term to separate the substance of ordinary law making from the rules of the game within which ordinary law making takes place. This explains why we prefer to use the term “pragmatic” when we refer to Buchanan , and the term “constitutional ” when we refer to the Hayekian tradition.
- 10.
See Colombatto and Tavormina (forthcoming).
- 11.
Interestingly enough, Buchanan does not seem to attach much importance to the legitimacy of the status quo. Yet, it is a crucial point, as emphasised in Vanberg (2004) and Meadowcroft (2014), especially since the status quo is the point of departure for developing a social contract based on unanimous consensus.
- 12.
- 13.
- 14.
An important exception is the legitimacy of the past structure of property rights when a change in regime occurs—see, for example, the transition from communist dictatorship to democracy in Eastern Europe after the fall of the Berlin wall. Of course, it is not clear why expropriation by a democratic ruler is legitimate, while it is not acceptable under a dictatorial regime.
- 15.
- 16.
Some two centuries later, Hayek (1960) suggested a similar line of thinking, by claiming that in a world of uncertainty in which institutions follow a virtuous evolutionary path, a system of (natural) liberty is the best way of redressing and possibly avoiding mistakes. As Rees (1963) promptly pointed out, however, Hayek’s notion of liberty is not equivalent to the absence of coercion, but to freedom of action within norms consistent with the rule of law. In turn, Hayek’s notion of the rule of law corresponds to the absence of privileges.
- 17.
Individuals enter the constitutional moment with the rights and constraints defined by the “natural distribution” (which differs from the natural order), a distribution inherited from a past necessarily characterized by an (almost) undisputed ruler.
- 18.
The Hobbesian hypothetical contract rests on the principle of survival, which is a natural trait of all human creatures. Buchanan ’s and Rawls ’ veils rest on the assumptions that people are necessarily against privileges and on the notion that inequality is bad, respectively. Yet, none of these veils is based on natural principles and, therefore, none of them justifies a hypothetical implicit contract.
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Acknowledgements
I am grateful to Leonardo Baggiani, Paul Lewis, Alain Marciano and John Meadowcroft for their comments on a previous draft.
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Colombatto, E. (2018). Buchanan’s Social Contract Unveiled. In: Wagner, R. (eds) James M. Buchanan. Remaking Economics: Eminent Post-War Economists. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-03080-3_27
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