The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface
• The Reason of Rules
• 1.: The Constitutional Imperative
• I.: Introduction
• II.: Reasons For Rules
• III.: Rules of Games
• IV.: Rules of the Road
• V.: Rules of the Market Order
• VI.: Rules of Political Order
• VII.: The Importance of Rules
• 2.: The Contractarian Vision
• I.: Introduction
• II.: Noncontractarian Constitutionalism
• III.: Individuals As Sources of Value
• IV.: Contract and Exchange
• V.: Politics In the Exchange Perspective
• VI.: Unanimity As the Contractual Ideal
• VII.: Agreement On Rules and the Veils of Ignorance and Uncertainty
• VIII.: Conclusions
• 3.: The Myth of Benevolence *
• I.: Introduction
• II.: Private Good and Public Good
• III.: Science, Truth, and Politics
• IV.: The Authoritarian Imperative
• V.: Majoritarian Democracy In the Noncontractarian Paradigm
• VI.: The Aim of Politics
• 4.: Modeling the Individual For Constitutional Analysis
• I.: Introduction
• II.: Homo Economicus In Politics: the Argument For Symmetry
• III.: Science and the Empiricist Defense
• IV.: A Methodological Defense of the Differential Interest Model of Behavior
• V.: Social Evaluation and Quasi-risk Aversion
• VI.: Gresham’s Law In Politics
• VII.: Summary
• 5.: Time, Temptation, and the Constrained Future *
• Preface
• Part 1.: Individual Private Choice
• I.: Introduction
• II.: The Ultimate Z ’s
• III.: Preferences For Preferences
• IV.: Past, Present, and Future
• Part 2.: Individual Public Choice
• I.: Introduction
• II.: Society With a History
• III.: Temporal Interdependence
• IV.: An Illustration
• V.: Moral Rules And/or Constitutional Commitment
• 6.: Politics Without Rules, I: Time and Nonconstrained Collective Action
• I.: Introduction
• II.: The Social Discount Rate
• III.: The High-tax Trap
• IV.: The Inflation Trap
• V.: The Public-debt Trap
• VI.: Other Examples
• VII.: Conclusions
• 7.: Rules and Justice
• I.: Introduction
• II.: Just Conduct and the Notion of Desert
• III.: Justice and Promise Keeping
• IV.: Justice Among Rules
• V.: Just Rules, Agreed-on Rules, and Just Conduct
• VI.: Conclusions
• 8.: Politics Without Rules, II: Distributive Justice and Distributive Politics
• I.: Introduction
• II.: Distributive Justice: the Conventional View
• III.: The Constitutional Perspective and Institutional Incidence
• IV.: The Incidence of Unrestricted Majoritarianism
• V.: Tax Rules and Distribution Under Majority Rule
• VI.: Direct Constitutionalism and Distributive Justice
• VII.: Summary
• 9.: Is Constitutional Revolution Possible In Democracy?
• I.: Introduction
• II.: Pareto-superior Change and Wicksellian Unanimity
• III.: Distributional Limits and Prospective Rules
• IV.: Status Quo Entitlements and Distributional Envy
• V.: Constitutional Change and Free Riders
• VI.: The Role of Norms
• VII.: Toward a Civic Religion

II.

Noncontractarian Constitutionalism

As we emphasized in Chapter 1, the hallmark of the constitutionalist is the categorical distinction he makes between outcomes generated within defined rules and the rules themselves. Once this distinction is made, the effects of rules in constraining potential outcomes become obvious. Simple recognition of this linkage then prompts attention to the rules of social order as an object of inquiry and tends, almost necessarily, to generate an extended time dimension in all considerations of social policy or social change.

The constitutionalist, so defined, however, need not at the same time be contractarian. Understanding of, and respect for, the distinction between the rules that constrain behavior and the results of actions taken within the rules need not be derived from, or be the basis for, a contractarian position. Perhaps the most obvious example is the extreme conservative, the person who places value on existing rules because they do exist and have existed. Such a person may be constitutionalist in the full sense of the term; indeed, he may claim to be the only true constitutionalist since the ideal is a never-changing set of constraining rules.

A somewhat less extreme but closely related position is based on the recognition of the difference between rules as constraints and action within constraints but at the same time embodies the notion that the rules of social order are not artifactual creations subject to change. In this perspective, rules change slowly during the evolution of society. Although change takes place in the basic structure, it does so only through an organic evolutionary process. Hence, “reform” of the basic rules (of the constitution, broadly defined) is internally contradictory. The ordering function of social rules operates only because they are unchangeable in any directed sense.

A third position may retain apparent constitutionalist elements, but for reasons quite different from those that seem appropriate to the contractarian. A two-level structure of law may be envisaged, with the “higher law” embodying protection for a set of “natural rights” that people possess as human beings. In this interpretation, the “constitution” is that structure of institutions or rules that involves the protection of such natural rights, leaving to ordinary politics all other actions. And whereas the existing constitution may be modified, either in the direction of a closer correspondence with the desired protection of natural rights or in the direction of a further divergence from such idealized protection, there can be no change in the definition of the set of rights as such.

It is not our purpose to elaborate arguments that have been made in support of any one of the three positions sketched. Our intention is merely to indicate that each of the positions may have elements that seem constitutionalist in the common dialogues of the day. The contractarian rejects the first two positions because of the basically negativist implications they generate. If the rules of the socioeconomic-political game are not themselves artifacts subject to constructive change, there is little left to do but to endure the forces of history. The arguments advanced by both the status quo reactionary and the nonconstructive evolutionist are perhaps good counters to the romantic ramblings of those who speak naïvely about human perfectibility, but surely we must be given hope that the institutions of social order are subject to reform and change. If for no other reason, there would seem to be a moral obligation on the part of the social philosopher to provide such hope.

The differences between the contractarian and natural-rights theorists arise from quite other sources than do the differences between status quo reactionaries and evolutionists. The contractarian derives all value from individual participants in the community and rejects externally defined sources of value, including “natural rights.” The discussion in Section II is as germane to the argument against the natural-rights position as it is to all other positions that derive value from external and nonindividualistic sources.