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III.: Justice and Promise Keeping - Geoffrey Brennan, The Collected Works of James M. Buchanan, Vol. 10 (The Reason of Rules: Constitutional Political Economy) 
The Collected Works of James M. Buchanan, Vol. 10 (The Reason of Rules: Constitutional Political Economy) Foreword by Robert D. Tollison (Indianapolis: Liberty Fund, 1999).
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Justice and Promise Keeping
So far we have argued that a person who violates a legitimate rule acts unjustly toward those who acted with the expectation that the rule would be followed. The question naturally arises as to what makes a rule, or the expectations a rule gives rise to, legitimate. Under what conditions, in other words, will violating a rule constitute unjust behavior? And what gives the notion of justice, so defined, moral force?
There are no surprises in our answer here. A rule is legitimate, and violations of it constitute unjust behavior, when the rule is the object of voluntary consent among participants in the rule-governed order. Why is this so? Because the provision of consent on a voluntary basis amounts to offering a promise to abide by the rules. Just conduct is conduct in accord with promises given. A person breaks a promise if he acts differently than, for morally proper reasons, those to whom the promise was made believe he will act. The morality of justice is, then, the morality of promise keeping. In this, we do no more than echo Thomas Hobbes:
... it is in the laws of the Commonwealth as in the laws of gaming: whatsoever the gamesters all agree on is injustice to none of them.1
From that law of nature ... there followeth a third; which is this that men perform their covenants made: without which, covenants are in vain and but empty words, and ... we are still in the condition of war. And in this law of nature consisteth the fountain and origin of justice. For where no covenant hath preceded ... every man has right to everything, and consequently no action can be unjust. But when a covenant is made then to break it is unjust; and the definition of injustice is no other than the not performance of covenant. And whatsoever is not unjust is just.2
This formulation raises three questions, however. First, what is it that one’s agreement commits one to do? Second, what are we to understand by “voluntary” agreement, and how does the requirement that the agreement be voluntary affect obligation? Third, how broadly can we interpret “agreement” or “consent” for the purposes of this argument? Let us deal with these questions in turn.
In response to the first, we offer only a minor clarification. When one freely agrees to the rules, one promises to do rather more than pursue what is best for oneself under the terms of the agreement. Specifically, although the rules will typically include instructions as to how violations are to be handled and what punishments are to attach to such violations, and although these instructions are therefore contained within the inclusive agreement, it seems wrongheaded to say that agreement implies only a willingness to accept the defined punishment for violations. Consent is to the rules, and the moral force of promise keeping is such that one is obligated to other players to play by those rules. To violate the rules may sometimes be personally profitable, but it will not be “just,” and it will not become “just” simply by virtue of one’s acceptance of punishment. “Just conduct” will consist in keeping one’s promises to other players, that is, in abiding by agreed-on rules. A player, for example, who punches another with his fist in American football concedes a fifteen-yard penalty. But he also endures the moral opprobrium of having committed an “unjust” act, and it is expected that this purely moral dimension—the player’s sense of justice—will carry weight in moderating his behavior.
It is important to make this point because, in some economists’ discussions of the law, one obtains the impression that choosing whether to abide by the rules is like selecting a drink at a soft-drink machine; that is, one either abides by the rules and pays no penalty or fails to abide by the rules and simply pays the price of so doing, as reflected in the rules. But the legislated punishment is not to be construed simply as the “price” of an alternative course of action; it also symbolizes the fact that a “wrong” has been committed. Making a choice among alternative drinks is a morally neutral act; choosing between legitimate and illegitimate modes of behavior is not morally neutral (at least not if the legitimacy springs from the prior consent of the chooser).
The second question is related to the circumstances under which an agreement may be said to be genuinely voluntary. Clearly, a promise to abide by the rules that is obtained under duress is not binding in the way that a freely offered promise is binding. The victim of a holdup who promises to pay a million dollars from his bank account in exchange for his life does not fail to meet a totally legitimate expectation when he subsequently refuses to pay. In the same way, a starving man who agrees to run inordinate risks for a crust of bread cannot necessarily be held to be bound to the agreement, although he is presumably more bound than he would be had he refused, despite his adversity, to agree. In other words, the moral force of an obligation to keep a promise is blunted (but not necessarily eliminated) if the circumstances surrounding the giving of the promise involve nonvoluntary elements.
We must be careful here not to extend the argument too far. To say, for example, that the agreement is nonvoluntary if the bargaining strengths of the parties to it are not precisely equal seems absurdly restrictive. It seems that only in cases of extreme duress or outright coercion does agreement to the rules not morally bind the players. When A and B agree to marry, for example, we do not normally demand that their bargaining strengths or premarriage “threat strategies” or income positions or beauty or physical strength (or whatever each brings to the marriage) be equal (or even not unduly unequal) before the exchange of vows can be regarded as binding. We do not typically inquire whether A and B had other offers of marriage or could have had such offers. All that is required to give the “covenant” moral force is the absence of extreme duress. Indeed, even the presence of the paternal shotgun is not normally construed to remove the moral obligations entailed in the marriage entirely (and sometimes not to blunt those obligations at all).
It is worth making this point clearly so as to guard against the prospect of admitting alien concepts of “justice” through the back door under the cover of the “voluntariness” constraint. In some literature, the “justice” of abiding by an agreement is made entirely contingent on the justice of the status quo, the latter notion of “justice” usually making appeal to the relative income positions of the parties. We emphasize that the voluntariness of agreement is not to be so construed in our conception. It is only in those circumstances in which a promise would be held to be nonbinding (extracted by force or under conditions of total duplicity by one of the parties) that the requirements of justice, as we have defined it, would be waived.
The third general question raised by this conception of justice involves the issue of how broadly agreement or consent to the rules can be construed. Clearly, in most social contexts, players do not explicitly agree to the rules that apply to their interactions. Drivers do not, for example, construct the rules of the road by explicit consensus. How, then, can considerations of promise keeping be construed to apply in such cases? This question is central and long standing in any “social-contract” theory. Some scholars have sought to establish a presumptive obligation on the part of citizens to abide by the “rules” of a prevailing social order3 on the basis of what “would have been agreed to.”4 To the extent that such obligations can be established, considerations of justice apply. For such purely hypothetical consent, however, the argument seems less than totally persuasive. It is not clear exactly how a person can be bound by promises he has not made, or how a person can be construed to have agreed to rules simply on the grounds that those rules can be presumed to make him better off.
Tacit, or implicit, consent, however, is another story. Tacit consent can be construed to be given to rules of a game by participants when they voluntarily participate. The mere fact of participation obligates each participant, as if by an explicit promise, to abide by the rules, provided that the participants have a genuine option not to participate if they so choose. Failure to abide by the rules would then be to treat other participants “unjustly.” Participants’ expectations that others will play by the rules become “legitimate” by virtue of the voluntariness of participation by all players. If, for example, a person asked to join an existing poker game and was permitted entry, he would seem to be no less obligated by considerations of justice to obey the rules than the other players, who had given explicit consent.
A similar point can be made with respect to another important group of “participants” in the social order—those who administer the rules. Again, we do not require the explicit agreement of judges, umpires, and enforcers on the structure of the rules in order to argue that these agents would be acting “unjustly” were they to violate or modify the rules in accordance with personal preferences. Those who administer a race presumably accept the rule that the first person across the finish line will win. Those who administer the legal system purport to be acting within the rules of that system. Those who enter the “game” in either case do so on the basis of an understanding of the rules, and in some sense the existence of rules amounts to an implicit promise made by administrators to all participants (actual and potential) that the rules will be administered faithfully.
If participation in a sporting event or parlor game—either as a player or as an administrator, judge, or enforcer—is sufficient to obligate all parties to abide by the rules, by virtue of considerations of justice can we not extrapolate such obligation to all social settings? Whether or not we can depends on whether individual participants in a given social order can be construed to be voluntary participants. For administrators of the rules and for those who voluntarily join (free immigrants, for example), the obligation seems clearly applicable. For general citizens, voluntariness of participation is not so clear. The problem is, of course, that participation amounts to playing the “only game in town.” There may be no effective alternatives. Even in this case, however, there is some sense in which violation of the rules is “unjust” to other participants. Just what this sense is deserves some attention. Suppose that A, B, ..., N are participants in a game the rules for which have been decided unilaterally by Z. Suppose, furthermore, that these rules have traditionally been observed—that A, B, ..., N have played by them for some time. If A were now to inflict harm on B by breaking the rules, would we not say that B did not deserve to be harmed? Would not A’s harming B be unjust in this sense? Would not B’s reasonable expectation that A would continue to hold by the rules be a legitimate basis for B’s conduct? Does not the mere fact that such rules have prevailed for a long time contribute to the legitimacy of B’s expectations? If so, rules may be considered to be given tacit consent simply by virtue of their history or regular observance—even if there is no effective option to not playing and participation is involuntary in that sense. Of course, such tacit consent as a source of obligation to abide by existing rules does not imply quiescence toward efforts to change the rules. But this is a matter we shall discuss below.
Where does all this leave us with respect to the relation between rules and justice? It indicates that prevailing rules, simply by virtue of their existence, project an aura of justice. Behavior that contravenes prevailing rules amounts to unjust treatment of other participants in the social arena, because the others have legitimate expectations that all persons will behave in accordance with the rules. The legitimacy, not the reasonableness, of the expectations is crucial, and this legitimacy arises because, and to the extent that, participation in the activities governed by the rules is, or can be construed to be, voluntary. Voluntary participation amounts to agreement to the rules. It constitutes a tacit promise to abide by prevailing rules, and the breaking of such a promise is equivalent to unjust conduct because it involves treating others in ways in which they do not deserve to be treated.
[1. ]Thomas Hobbes, Leviathan (1651) (New York: Everyman Edition, 1943), part 2, ch. 30, p. 185.
[2. ]Ibid., p. 74.
[3. ]As is the object in Hobbes, Leviathan.
[4. ]As in the writing of John Rawls and others in the “justice as fairness” tradition. See John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971).