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

I.

Introduction

“Justice” is a familiar value—if an obscure one in much modern discussion. In this chapter, our purpose is to explore the connection between justice and rules and to offer an understanding of the concept of justice that is both coherent and consistent with the broad constitutionalist-contractarian thrust of our position. Our specific claim is that justice takes its meaning from the rules of the social order within which notions of justice are to be applied. To appeal to considerations of justice is to appeal to relevant rules. Talk of justice without reference to those rules is meaningless. If this claim is accepted, it follows that an acknowledgment of justice as a value carries with it, in and of itself, a reason for rules.

In one sense, this emphasis stands much modern discussion of the relationship between justice and rules on its head. Usually, justice is taken to provide an independent norm in terms of which alternative rules or acts can be evaluated. That is to say, orthodox discussion has been preoccupied with the “justice of rules.” Under our alternative conceptualization, rules become the basis of justice: Rules are logically prior.

It is useful to make, at the outset, a distinction between the notion of “just conduct,” on the one hand, and the notion of “just rules,” on the other. The former involves justice within rules; it deals with justice as a criterion for evaluating behavior within an institutional setting defined by preexisting rules. The latter involves justice among rules; it deals with justice as a criterion for evaluating alternative sets of rules. Although we shall draw this distinction sharply, part of our argument here is that justice as a means of evaluating rules can be usefully viewed as an example of justice within rules. That is, the notion of just conduct—not the notion of just rules—is the central one in our argument. The question of just rules is, we shall argue, appropriately treated as a particular instance of justice within rules.

How, then, is “just conduct” to be defined? Just conduct consists of behavior that does not violate rules to which one has given prior consent. The role of consent involves, as a central piece, the proposition that agreement, either implicit or explicit, is required to legitimize rules. Rules, so legitimized, then become the reference point against which the justice of individuals’ behavior can be assessed.

Once this view is taken, justice is seen to be not so much an external criterion for the evaluation of alternative rules and/or social orders as an intrinsic part of the relevant rule structure. Considerations of justice argue not so much for a wholesale reconstruction and reformation of rules as for a proper understanding of which rules actually prevail and for a reconciliation of conflicts, inconsistencies, and ambiguities among those prevailing rules. Justice is seen to demand a harmonization of the rules and possibly an extension of the domain of rule-governed behavior. Justice is not, however, seen to provide an independent norm on the basis of which ab initio design of ideal rules might be structured. It is consensus that performs that basic normative function. In our conceptualization, rules set the terms of justice, rather than the reverse. For this reason, justice takes on a certain “nonteleological,” history-dependent cast. It is no longer possible to give an account of what justice entails—in terms either of conduct or of the nature of rules—that is entirely general, abstract, and decontextualized. What justice requires depends on what particular rules individuals happen to have agreed to.

We shall begin our discussion with the issue of justice within rules—of what it means to behave justly in the context of a well-established institutional order. In Section III, we shall attempt to explain why considerations of justice, in terms of obedience to prevailing rules, have moral force, more or less whatever those rules happen to be. In Sections IV and V, we shall extend the discussion to the question of justice among rules.