The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface
• The Limits of Liberty
• 1.: Commencement
• 2.: The Bases For Freedom In Society
• 3.: Postconstitutional Contract: the Theory of Public Goods
• 4.: Constitutional Contract: the Theory of Law
• 5.: Continuing Contract and the Status Quo
• 6.: The Paradox of “being Governed”
• 7.: Law As Public Capital
• 8.: The Punishment Dilemma
• 9.: The Threat of Leviathan
• 10.: Beyond Pragmatism: Prospects For Constitutional Revolution
• Selected Bibliography

Preface

Precepts for living together are not going to be handed down from on high. Men must use their own intelligence in imposing order on chaos, intelligence not in scientific problem-solving but in the more difficult sense of finding and maintaining agreement among themselves. Anarchy is ideal for ideal men; passionate men must be reasonable. Like so many men have done before me, I examine the bases for a society of men and women who want to be free but who recognize the inherent limits that social interdependence places on them. Individual liberty cannot be unbounded, but the same forces which make some limits necessary may, if allowed to operate, restrict the range of human freedom far below that which is sustainable.

We start from here, from where we are, and not from some idealized world peopled by beings with a different history and with utopian institutions. Some appreciation of the status quo is essential before discussion can begin about prospects for improvement. Might existing institutions conceptually have emerged from contractual behavior of men? May we explain the set of rights that exist on basically contractual grounds? How and why are these rights maintained? The relationship between individual rights and the presumed distribution of natural talents must be significant for social stability. Social order, as such, implies something that resembles social contract, or quasi-contract, but it is essential that we respect the categorical distinction between the constitutional contract that delineates rights and the postconstitutional contract that involves exchanges in these rights.

Men want freedom from constraints, while at the same time they recognize the necessity of order. This paradox of being governed becomes more intense as the politicized share in life increases, as the state takes on more power over personal affairs. The state serves a double role, that of enforcing constitutional order and that of providing “public goods.” This duality generates its own confusions and misunderstandings. “Law,” in itself, is a “public good,” with all of the familiar problems in securing voluntary compliance. Enforcement is essential, but the unwillingness of those who abide by law to punish those who violate it, and to do so effectively, must portend erosion and ultimate destruction of the order that we observe. These problems emerge in modern society even when government is ideally responsive to the demands of citizens. When government takes on an independent life of its own, when Leviathan lives and breathes, a whole set of additional control issues comes into being. “Ordered anarchy” remains the objective, but “ordered” by whom? Neither the state nor the savage is noble, and this reality must be squarely faced.

Institutions evolve, but those that survive and prosper need not be those which are “best,” as evaluated by the men who live under them. Institutional evolution may place men increasingly in situations described by the dilemma made familiar in modern game theory. General escape may be possible only through genuine revolution in constitutional structure, through generalized rewriting of social contract. To expect such a revolution to take place may seem visionary, and in this respect the book may be considered quasi-utopian. Rethinking must precede action, however, and if this book causes social philosophers to think more about “getting to” the better society and less about describing their own versions of paradise once gained, my purpose will have been fulfilled.

I am fully conscious of the fact that, as a professional economist, I am straying beyond my disciplinary boundaries. I am motivated by the importance of the issues and by the conviction that contributions in many subjects may be made by outsiders looking in as well as by insiders talking among themselves. I treat here of issues discussed by learned philosophers through the ages, whose discussions have themselves been discussed by specialists. I have read some, but by no means all, of these primary and secondary works. To have done so would have required that I become a professional political philosopher at the cost of abandoning my own disciplinary base. As an economist, I am a specialist in contract, and to my fellows a contractarian approach carries its own defense once individual values are accepted as the base materials. To those scholars, early or late, who have tried to demolish contractarian constructions, my efforts will not seem responsive to their criticisms. This is not my purpose, and those who reject the contractarian approach out of hand will find little in an economist’s attempts at clarification.

In this book, as in earlier works, I emphasize the necessity of distinguishing two stages of social interaction, one which involves the selection of rules and one which involves action within these rules as selected. The critical importance assigned to this distinction reflects the general influence of “my professor,” Frank H. Knight, and, somewhat more directly, the outcome of discussions with my colleague Rutledge Vining during several years of my tenure at the University of Virginia.

In its specific form, this book emerged as my own interpretation, elaboration, and extension of a more recent discussion that continued over a period of two years in Blacksburg at the Center for Study of Public Choice, Virginia Polytechnic Institute and State University. This discussion involved the participation and contributions of many colleagues and students, only a few of whom can be noted here. Gordon Tullock and Winston Bush were central figures, and the influence of each man on my own thinking was substantial. Each read early drafts of this book by chapter as these were produced. After a quasi-finished draft of the book was finished, and external to the initial discussion, William Breit, Dennis Mueller, Richard Wagner, and Robert Tollison made helpful and detailed comments. At a final revision stage, Nicolaus Tideman offered highly useful suggestions.

As for Mrs. Betty Tillman Ross, only the name is slightly changed from that which appeared in several of my earlier books. Her cheerful cooperation in general and her particular assistance in getting my manuscripts processed through various stages remain essential inputs in my own production function.

Financial support for my own research at various stages of the project was provided by the National Science Foundation.

• Blacksburg, Virginia

March 1974