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James Buchanan on chaining Leviathan (1975)

One of the founders of the Public Choice school of economics, James M. Buchanan (1919-2013), asks the fundamental question of political science – “who will guard us from the guardians”? His answer is a call for a “constitutional revolution” which will “chain Leviathan”:

If, however, the collectivity is empowered to enforce individual rights, how is it to be prevented from going beyond these limits? What are the “rights” of the enforcing agent itself, the state? If we are able, conceptually, to discuss the enforcement of rights and of contracts involving exchanges of rights among persons apart from questions involving exogenous changes in the assignment of rights, we must also be able to specify, again conceptually, the rights of the collectivity to do things. We cannot simply move one step further back and conceive of the appointment or selection of some superior enforcing agent, one that will protect and limit the rights of both individuals and the state. The enforcement hierarchy must stop somewhere, and for our purpose it is well to restrict discussion to the first level. It is relatively easy to think of the collectivity fulfilling its role in protecting person and property from “unlawful” acts carried out by persons. It becomes much more difficult to think of means through which individuals can enforce and protect their rights from “unlawful” acts on behalf of the collectivity itself. How can Leviathan be chained? This problem has worried political philosophers of all ages, but no fully satisfactory answer has been advanced, either as an ideal to be approached or as a practical program to be experienced.

Quis Custodiet Ipsos Custodes?

To the individualist, utopia is anarchist, but as a realist he recognizes the necessity of an enforcing agent, a collectivity, a state. As a minimal procedural norm, any such entity must treat equally all who qualify as members, as persons, even when interpersonal differences are acknowledged. “Equality before the law,” “uniformity in the application of the law,” “the rule of law,” “rule by law and not by man,” “rules, not authorities,” “justice is blind”—these are but a few of the more familiar phrases that variously reflect this fundamental norm of an individualistic social order. But what is “the law”? Or, perhaps more appropriately, what are the limits of law? The necessity for an enforcing agent arises because of conflicts among individual interests, and the enforcing role for the state involves the protection of individual rights to do things, including the making and carrying out of valid contracts. In this role, the enforcing agent starts from or commences with the assignment of rights as these exist. The state has no role in setting out or in defining these rights if we stay within the dichotomy indicated.

If, however, the collectivity is empowered to enforce individual rights, how is it to be prevented from going beyond these limits? What are the “rights” of the enforcing agent itself, the state? If we are able, conceptually, to discuss the enforcement of rights and of contracts involving exchanges of rights among persons apart from questions involving exogenous changes in the assignment of rights, we must also be able to specify, again conceptually, the rights of the collectivity to do things. We cannot simply move one step further back and conceive of the appointment or selection of some superior enforcing agent, one that will protect and limit the rights of both individuals and the state. The enforcement hierarchy must stop somewhere, and for our purpose it is well to restrict discussion to the first level. It is relatively easy to think of the collectivity fulfilling its role in protecting person and property from “unlawful” acts carried out by persons. It becomes much more difficult to think of means through which individuals can enforce and protect their rights from “unlawful” acts on behalf of the collectivity itself. How can Leviathan be chained? This problem has worried political philosophers of all ages, but no fully satisfactory answer has been advanced, either as an ideal to be approached or as a practical program to be experienced.

Two distinct means of limiting collective power have been proposed and tried. First, there have been various institutional devices which are designed to restrict overall collective interferences with individual rights. The Roman republic attempted to share executive power among two or more officials appointed simultaneously to the same position. Medieval Europe opposed a decentralized feudal nobility against a centralized church and, later, against the emerging nation-states. Montesquieu discussed effective division and separation of state power along procedural lines. The Swiss have used federation effectively in keeping their society more or less free for centuries.

Second, there has been the explicit promulgation of the mystique of some “higher law,” one that guides the actions of sovereigns as well as ordinary men. This, too, has taken many forms. The tablets of Moses and the Book of Mormon provide ancient and modern examples of “laws” derived from God. Philosophers have searched for “natural laws” that are inherent in man himself, laws that might be applied as norms for collectivities. Scholars of the Enlightenment evoked the social contract to explain the origin as well as the limits of governmental powers. The written constitution, carrying with it a specified historical date, presumably had as its primary objective the offering of some predictable stability concerning the limitations of state power. Heritages of the institutional devices and of the sources of mystique are mixed variously in the social orders of Western collectivities. In the United States, the Founding Fathers joined Montesquieu’s separation of powers to the federal principle and attempted to secure these by a written constitution which reflected both contractarian and natural law presuppositions.

About this Quotation:

The fundamental problem in political theory, as Buchanan is very well aware, is two-fold: there is a pressing need for some kind of “enforcing agent” which will protect the individual from violations of his/her liberty and property rights, and following on from this there is the problem of how to ensure that any “enforcing agent” which is chosen does not in its turn become a violator of the very same liberty and property rights it was originally set up to protect? In the ancient Latin formulation of the problem “Quis Custodiet Ipsos Custodes?” [who will guard us from these guardians?]. The solution to this problem which emerged in the 18th and 19th centuries in western Europe and North America was constitutional government which was accountable to the people, strictly limited in its powers, and a rule of law based upon notions of individual liberty and private property. By the time Buchanan was writing these words in the mid-1975s the experiment in limited constitutional government was starting to unravel and the kind of states which were emerging in the 1970s were more like “the leviathan” state described by Thomas Hobbes in the 1650s than the very limited states envisages by classical liberals in the 18th century. Buchanan then reframed the question – “How can Leviathan be chained?” – and sought an answer in the application of economic insights to the study of political and bureaucratic behaviour. As he states a bit further on in this quotation, he called for a “constitutional revolution” based upon public choice economic theory in order to put the 18th century experiment on a sounder footing.

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