Public Reason and Public Choice
A Synthesis
Kevin Vallier
Bowling Green State University
Department of Philosophy
DRAFT: Do not cite without permission.
“The philosopher may try, in a manner like that of John Rawls, to define the abstract
‘principles’ of justice, liberty, or security that must characterize the social interaction
process. Alternatively … the social scientist-cum-philosopher may concentrate his efforts
in the more limited sense of developing a set of critical attitudes about social process that
seem to be prerequisite to any generalized dialogue on constitutional reform.”
~James Buchanan, Freedom in Constitutional Contract
John Rawls and James Buchanan, two of the great social philosophers of the 20th century, had
similar research programs. They both sought a set of mutually acceptable principles and
constitutional rules that could promote social cooperation between people with diverse goals and
perspectives. Given their similar projects, it should not surprise that many have explored the
connection between Rawls’s work in A Theory of Justice and Buchanan’s various attempts to
formulate a public choice contractarianism. In contrast, however, there is little work on the
relationship between Buchananite contractarianism and Rawls’s work in Political Liberalism.
Briefly, there is no engagement between public reason and public choice.1 This lack of
engagement is unfortunate, I believe, because a synthesis of public reason and public choice can
solve problems that plague the other. In this essay, I shall focus on how public choice aids public
reason.
We can understand public reason roughly as follows. The later Rawls’s research project
was to determine the set of political principles and constitutional rules that citizens have
sufficient reason to endorse given their diverse but reasonable points of view. In contrast to his
earlier work, the later Rawls stressed the problem of reasonable pluralism, the pervasive social
1
In this piece, I’m primarily concerned with public choice as a normative framework, rather than as a branch of
positive social science, which is one reason I draw such a tight connection between public choice political theory
and Buchanan’s contractarianism.
2
condition where the free exercise of practical reasoning regularly produces systematic and
ineliminable disagreement about matters of ultimate importance.2 Consequently, to treat all as
free and equal, Rawls argued that citizens must be subject only to those principles and rules they
all can accept as compatible with their diverse comprehensive doctrines. A theory of justice,
then, is valid only if it is the subject of an overlapping consensus of reasonable comprehensive
doctrines.3 The point of Political Liberalism, Rawls’s great work on public reason, is that his
theory of justice, justice as fairness, can become the object of an overlapping consensus. An
overlapping consensus can only form under certain social conditions, specifically in cases where
citizens are work together on constitutional matters by speaking in terms of public reasons or
reasons that all can accept. Public reason qua research program can therefore be understood
generally as the attempt to identify a conception of justice and a constitution that is acceptable to
diverse but reasonable persons based on a social process of public reasoning that forms and
maintains just, legitimate and stable institutions.
But Rawlsian public reason faces a problem. In the first edition of Political Liberalism,
Rawls largely restricted reasonable pluralism to disagreement about the good. In the paperback
edition, however, he realized that a well-ordered society must also grapple with reasonable
pluralism about justice. If so, it is unlikely that a well-ordered society will converge on a single
conception of justice, rendering obscure the path to an overlapping consensus. Rawls attempted
to solve the problem, but I believe that Rawls’s overlapping consensus solution unravels once we
allow for reasonable pluralism about justice.4 Ultimately, reasonable pluralism about justice
demonstrates that we cannot use the pure theory of justice to determine the set of constitutional
rules that can be the object of an overlapping consensus. The Rawlsian “political liberal” needs a
method of selecting publicly justified constitutional rules that does not require agreement on a
conception of justice that Rawls did not provide.
I contend that public choice helps the political liberal develop a method of constitutional
choice. An advantage of Buchanan’s contractarianism is that he attempts to justify constitutional
rules without trying to first secure agreement on a conception of justice.5 If political liberals
2
John Rawls, Political Liberalism, 2nd ed. (New York: Columbia University Press, 2005)., pp. xl-xli.
Ibid., Lecture IV developed the idea.
4
As Rawls implicitly recognizes in ibid., p. xxxvi.
5
As Buchanan develops, in tandem with Gordon Tullock and Geoffrey Brennan in James Buchanan and Gordon
Tullock, The Calculus of Consent (Ann Arbor, MI: University of Michigan Press, 1962); James Buchanan, The
Limits of Liberty: Between Anarchy and Leviathan (Chicago: University of Chicago Press, 1975); Freedom in
3
3
follow Buchanan’s lead, I argue that we will be able to publicly justified constitutional structures
without agreement on a conception of justice. If so, Buchanan’s approach can remedy a deep
deficiency in Political Liberalism. A modified Buchananite contractarianism can complete
Rawls’s project.
I anticipate five modifications. First, public choice needs a richer conception of practical
reasoning. Public choice contractarianism assumes that contractors are instrumentally rational,
but public reason contractors also have the capacity to be reasonable. Second, public choice
needs a more moralized justificatory baseline. I nother words, the justification of constitutional
rules cannot begin in a Hobbesian state of nature; rather, it must begin with some broad moral
limits on which constitutions can be selected. Third, public choice needs a method of
individuating rules and principles. Individual laws should be the primary subjects of justification.
Constitutional rules will be justified in accord with their ability to reliably block publicly
unjustified legislation and permit publicly justified legislation. The fourth modification arises
from the fact that public reason holds that constitutional rules are publicly justified when each
person has sufficient reason to endorse them. Public choice contractarianism, on the other hand,
holds that constitutional rules are justifiably imposed when each person agrees to the rule
because it increases her subjective utility. Both contracts are rooted in a unanimity rule: all must
sign on to constitutional rules if they are to be legitimate. But the unanimity-maker differs. Thus,
we must retool public choice constitutionalism to use a person’s reasons for action rather than
her actual agreement or her utility. Finally, and relatedly, we need a revised conception of
subjective costs. For Buchanan, all costs are costs to subjective utility, but the Rawlsian works
with reasons-costs or set-backs to a person’s capacity to act on her reasons. Costs to utility and
costs to reasons at times come apart, as we shall see. With these modifications, we can refit
public choice’s normative engine to accept Rawlsian fuel, rendering public choice capable of
solving the problem Rawls could not.
Modifications in hand, I will then develop a two-stage justificatory model for
constitutional choice parallel to the model developed by Buchanan and Gordon Tullock in The
Calculus of Consent. Constitutional choice begins with the selection of constitutional rules and
Constitutional Contract (College Station: Texas A&M University Press, 1977). and Geoffrey Brennan and James
Buchanan, The Reason of Rules: Constitutional Political Economy (New York: Cambridge University Press,
1985)..
4
then moves to the selection of legislative rules compatible with constitutional rules.6 Notably, the
constitutional and post-constitutional stages roughly correspond to the second and third stages of
Rawls’s justification of political institutions.7 The similarities help us to see that public choice
comes in once we eliminate or limit the first stage of Rawlsian justifications for political
institutions, where we select determinate principles of justice. Instead we must detect principles
or institutional functions that will reliably institute publicly justified legislation and reliably
reform or repeal publicly unjustified legislation. Specifically, we must identify constitutional
functions that limit false positives (passing laws that are not publicly justified) and false
negatives (failing to pass widely favored publicly justified laws). I term these the BLOCK and
PASS functions of a publicly justified constitution. I will next index the BLOCK and PASS
functions to two “protective” and “productive” functions of the state that Buchanan identifies in
The Limits of Liberty.8 Peter Boettke draws the distinction as follows: “the protective state refers
to the state as enforcer of agreed to rights that emerged out of the pre-constitutional moment,”
whereas the productive state is “the state as producer of collective goods.”9 A publicly justified
polity must execute both functions. Consequently, we can identify four functions of a publicly
justified state: blocking and passing laws that specify and ensure the execution of the productive
and protective functions of the state.
In sum, this paper combines the later Rawls’s theory of state legitimacy with the public
choice approach to selecting constitutional principles. The synthesis has three virtues: first, it
resolves a problem in political liberalism that arises from disagreements about justice. Second, it
ties political liberalism to an active, dynamic empirical research program in political economy,
allowing us to make genuine empirical progress on determining the shape of a publicly justified
polity. Finally, the synthesis broadens the variety of contractarian political theories available to
public choice theorists beyond those that rely solely on instrumental reasoning. Public choice
theory all too often adopt a Hobbesian conception of the social contract, where rules are justified
because they are instrumentally rational bargains. Political liberalism bases the social contract on
a broader range of normative considerations, making it more philosophically attractive. If public
6
Buchanan and Tullock, The Calculus of Consent., Part II: The Realm of Social Choice, esp chapter 7, “The Rule of
Unanimity,” pp. 85-96.
7
John Rawls, A Theory of Justice (New York: Oxford University Press, 1971)., pp. 195-200. A worry: who cares
about the isomorphism?
8
Buchanan, The Limits of Liberty: Between Anarchy and Leviathan., pp. 68-70.
9
(http://publicchoice.info/Buchanan/files/boettke.htm)
5
choice theory can be rooted in a broader range of contractarian theories, then it too gains
plausibility.
This paper has eight sections. In section I, I outline the basic form of Rawls’s political
liberalism and some of the motivation for the project. In section II, I show how reasonable
disagreement about justice poses a problem that Rawlsian political liberalism cannot easily
solve. Section III explains the potential of public choice contractarianism to resolve the Rawlsian
problem by “Rawlsifying” public choice, whereas section IV shows how a solution also requires
“Buchananizing” public reason liberalism. Sections V and VI revise the public choice approach
to individuating the objects of justification, along with the public choice conceptions of
consensus and cost. Section VII develops the four functions of a publicly justified constitution.
Section VII concludes by raising some problems that future synthetic work must address.
I: Rawls’s Political Liberalism
I assume familiarity with the mainstream interpretation of Rawls’s political project, an
interpretation that rightfully bores readers some forty years after the framework first appeared.
The problems I discuss, however, arise from an alternative interpretation of Rawls’s project, one
that is more accurate, novel and interesting.
As is well known, Rawls sought to determine the correct principles of justice via a
contractualist procedure – the original position and veil of ignorance apparatus. Briefly, the
original position models our “considered judgments” about what morality requires and attempts
to harmonize them through a method Rawls called reflective equilibrium: “Justice as fairness is a
theory of our moral sentiments as manifested by our considered judgments in reflective
equilibrium.”10 If we can determine which principles of justice would be unanimously selected in
the original position, those principles are the ones that bring us into a state of reflective
equilibrium, and so those that we think most likely to be true.
Early in his career, Rawls saw that we cannot reach reflective equilibrium through mere
rational intuition. Instead, the justificatory problem must be converted into a deliberative
problem, a problem of rational choice: “the question of justification is settled by working out a
problem of deliberation” which “connects the theory of justice with the theory of rational
10
Rawls, A Theory of Justice., p. 104.
6
choice.”11 Following John Harsanyi, Rawls placed the deliberating parties behind a veil of
ignorance, depriving them of information that might bias their selection of principles in favor of
their particular interests. He then had the parties select a member of a quite limited set of
political principles, which he believes will be justice as fairness.12 On justice as fairness, justice
is defined by two principles, one principle that enumerates and protects a limited scheme of
individual liberties to be protected, and the second, over which the first has lexical priority, that
requires social and economic inequalities to be arranged to provide fair equality of opportunity to
all and to maximize the economic position of the least advantaged.13
This much is familiar. But I have only described the first part of the Rawlsian project,
brought off in Parts I and II of A Theory of Justice (hereafter TJ). Most readers of Rawls forget
Part III of TJ, which Rawls repeatedly claimed was crucial to his project.14 The point of Part III
is to show that justice as fairness can possess “inherent” stability such that the institutions
governed by justice as fairness would be self-stabilizing, so that persons will abide by justice as
fairness with only minor amounts of state coercion.15 To put it another way, Rawls wants to
show that justice as fairness can reach equilibrium among members of the public, where each
person sees it as practically rational to comply with the dictates of institutions governed by
justice as fairness, so long as others do likewise. Departure from justice as fairness, then, should
be self-correcting.16 To show this, Rawls argued that people will comply with justice as fairness
because they believe that doing so is part of living a good and flourishing life. If each person
sees compliance with justice as fairness as a proper part of her good, then she will be less
inclined to defect and free-ride on Rawlsian social and political institutions, which would
destabilize the society-wide equilibrium, collapsing into injustice.17
11
Ibid., p. 16.
Justice as Fairness: A Restatement, ed. Erin Kelly (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2001).,
pp. 94-97, 119-120 contain the clearest statement of Rawls’s “first fundamental” and “second fundamental”
comparisons. [Harsanyi cite.]
13
For one of the more canonical, later statements of the two principles, see ibid., p. 42.
14
I find of considerable interest the fact that Rawls stresses the importance of the second stage to Buchanan in one
of his letters, arguing that Buchanan’s work seems more likely to apply to the second stage than the first. See David
Levy and Sandra Peart, "Part 5, the Buchanan-Rawls Correspondence," in The Street Porter and the Philosopher:
Conversations on Analytical Egalitarianism, ed. David Levy and Sandra Peart (Ann Arbor: University of Michigan
Press, 2008)., p. 407 for Rawls’s remarks.
15
Rawls, A Theory of Justice., p. 436.
16
Ibid., pp. 399-400, 434-441.
17
This is the entire point of Chapter IX, “The Good of Justice,” pp. 450-514.
12
7
Rawls’s project therefore always had two stages. The first step was to determine a fair set
of principles of justice that could be the subject of a society-wide equilibrium and then to show
that a society governed by justice as fairness would likely reach such equilibrium under favorable
conditions.
The mainstream gloss on Rawls’s transition to political liberalism rests on two
assumptions. The first is that Rawls realized that the first stage of political justification would
become tainted by reasonable pluralism, the widespread diversity of views about matters of
ultimate import that is the natural outcome of the free exercise of reason. By practically
reasoning under free conditions, citizens will gradually adopt conflicting, but reasonable
comprehensive doctrines. Thus, in order to show that justice as fairness can be justified to all,
Rawls argued that justice as fairness could become the object of an overlapping consensus, an
agreement where justice as fairness is endorsed from each reasonable point of view.18 The
second assumption, based on Rawls’s focus on legitimacy in Political Liberalism (hereafter PL)
is that PL concerns legitimacy, whereas TJ concerns justice.19 Institutions governed by justice as
fairness can only be legitimate – they may only permissibly coerce – if the principles of justice
that regulate them can become the object of an overlapping consensus. To reach an overlapping
consensus, citizens must take on certain ideals in their political lives. These ideals in turn require
citizens to conduct debates and discussions about constitutional essentials in terms of public
reasons or reasons that derive from the shared values implicit in their common, “political”
conception of justice.
The mainstream view gets a lot right and a lot wrong. Its first error is claiming that PL
focuses only on legitimacy, while TJ focuses on justice. Rawls was always concerned that
principles of justice be legitimate and stable, and his concern with justice is not diminished in
PL. After all, the principle of legitimacy is also derived in the original position and so has the
“same basis” as the two principles.20 But the more important mistake for our purposes is that
Rawls’s political turn was driven by dissatisfaction with arguments in Part I of TJ rather than
Part III. In contrast to the mainstream view, Rawls explicitly claims “the account of the stability
18
Paul Weithman calls this the “Public Basis View” of what is called Rawls’s “political turn.” See Paul Weithman,
Why Political Liberalism? On John Rawls's Political Turn (New York: Oxford University Press, 2010)., pp. 17-21.
19
Allen Buchanan remarks that “It has been said that while A Theory of Justice is about justice, Political Liberalism
is about legitimacy…. This is almost correct.” See Allen Buchanan, "Justice, Legitimacy and Human Rights," in The
Idea of a Political Liberalism: Essays on Rawls, ed. Victoria Davion and Clark Wolf (Lanham: Rowman &
Littlefield, 2000)., p. 73.
20
Rawls, Political Liberalism., p. 225.
8
of a well-ordered society in part III … must be recast.”21 As Paul Weithman has recently
documented, Rawls began his political turn because he was worried that reasonable disagreement
about the good would undermine inherent stability, the Nash equilibrium that Rawls hoped a
society could reach based on the theory of the good he outlines in Part III.22 Rawls thought that
by internalizing justice as fairness as part of their good, citizens would comply with justice as
fairness so long as most others did likewise. In game theoretic terms, they would not defect,
regarding compliance with justice as fairness as the “best reply” to the actions of others; they
would reach a society-wide Nash equilibrium.
In TJ, citizens only regard justice as fairness as part of their good because they share a
partially comprehensive doctrine. But the fact of reasonable pluralism threatens TJ’s conception
of the Nash equilibrium. Even if justice as fairness reaches a Nash equilibrium among members
of the public, the free exercise of practical reason will lead some citizens to adopt different and
conflicting comprehensive doctrines. Rawls was especially worried about religious citizens in
this regard, as they might prize the achievement of transcendent goods over the goods that
stabilize justice as fairness.23 Once religious citizens prioritize transcendent goods, they may no
longer believe that compliance with justice as fairness is a proper part of their good, which may
lead them to defect from complying with the rules that institutionalize justice as fairness. The
Nash equilibrium will break down. Thus, even well-meaning Rawlsian citizens will undermine
the inherent stability of justice as fairness.
According to Weithman, it was this concern that led Rawls to recast his entire political
theory. The idea of an overlapping consensus had to be introduced to describe a new Nash
equilibrium where each person from within her own comprehensive doctrine could see justice as
fairness as a part of (or at least not incompatible with) her own good.24 The challenge of PL is
that comprehensive doctrines contain distinct conceptions of the person and the good, so each
must find their own moral and political ideals which allow or prompt them to accept justice as
fairness as regulative of their behavior. Towards this end, Rawls argued that members of liberal
democratic societies share a conception of the citizen such that ideals of citizenship will lead to
21
Ibid., p. xvii.
See Weithman, Why Political Liberalism? On John Rawls's Political Turn., especially Chapter VIII, The Great
Unraveling, pp. 234-269.
23
Rawls, Political Liberalism., p. xviii.
24
Weithman, Why Political Liberalism? On John Rawls's Political Turn., Chapter X, Comprehensive Reasons to be
Just, pp. 301-343.
22
9
the new Nash point. Thus, the conception of the person is recast as the conception of the citizen,
just as ideals of citizenship replace ideals of personal good.25 Further, justice as fairness is recast
as a “political” conception of justice whose rationale does not depend on the truth or
reasonableness of any particular comprehensive doctrine.26 Parties to the original position will
select a conception of justice independently of their comprehensive doctrines and then and only
then test the conception against their comprehensive doctrines. Towards this end, Rawls argued
that parties to the original position will select a liberal principle of legitimacy based on their
common ideal of citizenship that will tell them to seek an overlapping consensus on effective
terms, generating a new Nash equilibrium based on diverse reasoning.27 Significantly, the
legitimacy principle requires that they engage in political activity and discourse based largely on
public reasons, reasons derived from the shared ideals on which the political conception of
justice depends.28
In both TJ and PL, Rawls thought that a conception of justice could only be stable if it is
public. That is, each citizen must not only endorse a conception of justice but must know that
others generally do the same and all citizens must see that the conception of justice regulates
their institutions. In addition, citizens should be able to access the common reasons that all
persons endorse the political conception.29 In TJ, publicity was easier to reach given widespread
agreement about the good. To determine whether others have reason to endorse a conception of
justice, you need merely consult the shared conception of the good. But when people disagree
about the good, it is harder to determine whether each person has reason to endorse Rawls’s
principles. To remedy this problem, Rawls argued that citizens must be prepared to offer public
reasons compatible with the political conception. This moral (not legal) requirement is called the
duty of civility.30 The duty of civility can be understood as a norm of informational disclosure,
where citizens use public reasons to reinforce an overlapping consensus when it is subject to
challenge. So long as citizens are prepared to affirm their allegiance to the political conception
by offering and acting upon public reasons, individuals that adhere to other comprehensive
doctrines can rationally believe that justice as fairness is endorsed by all. This common
25
Ibid., p. 288.
Rawls, Political Liberalism., pp. 144-150 works out the three main features of an overlapping consensus.
27
Ibid., pp. 225-7.
28
This restriction is known as the duty of civility. Ibid., p. 217.
29
A Theory of Justice., p. 115 and Political Liberalism., pp. 66-72.
30
Political Liberalism., p. 217.
26
10
recognition should produce and maintain an overlapping consensus, or the new society-wide
Nash equilibrium.
I apologize to the economist readers for lobbing so much Rawlsian jargon in your
direction. If you find yourself mystified, simply take away the following. The original Rawlsian
project was to detect principles that could become the object of a society-wide Nash equilibrium
and then identify great personal goods that justice as fairness can be seen to exemplify or
promote. By identifying these goods, Rawls hoped to show that rational persons would abide by
justice as fairness so long as most others comply because they see compliance as their best reply
to others’ actions given that compliance allows them to achieve these goods. But Rawls later
decided that his list of goods was controversial because free people will disagree about the good,
so he had to recast his project to establish a more plausible set of equilibrating conditions. This
meant that the new Nash equilibrium would hold between persons who disagree about the good.
In this way, political liberalism attempts to identify the new conditions for this equilibrium and
to develop political ideals that can create common knowledge of the equilibrium to keep it in
place. “Public reason” refers to those reasons that individuals use to signal their endorsement of
justice as fairness so as to solve such worries about mutual assurance.
II: The Problem of Pluralism about Justice
I have argued elsewhere that the Rawlsian Nash equilibrium in PL is vulnerable to the same
“diversity dynamic” that led to the collapse of TJ’s Nash equilibrium.31 My co-author and I
reason as follows. In the process of writing PL, Rawls realized that reasonable pluralism would
extend not merely to conceptions of the good but to conceptions of the right and, most
importantly, to conceptions of justice.32 In other words, many reasonable people will reject
justice as fairness as the true or most reasonable conception of justice. If so, justice as fairness
can no longer be the primary object of an overlapping consensus. It becomes merely one of a
family of competing conceptions of justice that can sustain an overlapping consensus. This is a
huge problem. In TJ and the earlier versions of PL, citizens at least agreed on the object of
31
32
[Vallier and Thrasher]
Rawls, Political Liberalism., p. xxxvi.
11
stability, the set of norms that were supposed to be in equilibrium. But now reasonable people
disagree about which set of norms they should equilibrate on.
In response, Rawls resigned himself to defining a “range” of liberal political conceptions
of justice that can all produce a social Nash equilibrium. 33 So long as a society is in an
overlapping consensus on a member of the family of reasonable liberal political conceptions of
justice, such a society can be basically just, legitimate and stable in the right way. Its use of
coercion is thereby legitimate and publicly justified, and so treats all persons as free and equal
and worthy of respect.34 But the range is surprisingly broad. A reasonable liberal political
conception need only meet three conditions: first, it must identify a scheme of basic liberties that
more or less mirror those identified by the liberal tradition as a whole (freedom of speech, press,
religion, democratic voting rights, etc., though not extensive private property rights, which
Rawls regarded as too controversial). Second, it must give those basic liberties a special (though
not necessarily lexical) priority over all other social and political concerns, thus significantly
restricting personal and state interference with those liberties. Finally, a reasonable liberal
political conception must provide citizens with “all-purpose means” to give their liberties
requisite worth by providing them with resources that all them to meaningfully exercise their
liberties.35 Notice that a society can reach equilibrium on a conception of justice that does not
include the difference principle. Rawls maintained that justice as fairness is the most reasonable
liberal political conception, but not the only reasonable one, and that others will reasonably
disagree about which is best. So the difference principle need not be the object of an overlapping
consensus. Given the range, Rawls admits that there are myriad Nash equilibria that a society can
reach and be more or less just, legitimate and stable. This is striking. Rawls’s original ambition
to select the most reasonable conception of justice is considerably chastened by allowing a
society to reach an overlapping consensus on any Nash point in the “liberal” range. No longer
can we expect a priori philosophical reasoning to lead us to agree on determinate principles of
justice.
For our purposes, I shall accept that the range of reasonable political conceptions is
liberal, following arguments given by Rawls and arguments given by Gerald Gaus in his recent
33
Ibid., p. xlvi.
Ibid., p. xxxvii.
35
Ibid., p. xlvi.
34
12
work, The Order of Public Reason.36 I shall not take a stand on which economic liberties are on
the list of basic liberties (the set is limited on Rawls’s view and extensive on Gaus’s).37 But I will
assume for the remainder of the paper that all Nash points protect freedom of speech, press,
religion, the right to vote, the right to a fair trial and the rule of law.
By the time Rawls died, his project was in tatters. One of the attractive features of
Rawls’s project is the attempt to use a contractarian theoretical device identify principles of
justice that can be used to specify constitutional essentials or the basic rules that comprise a
constitution for a free people. But given the diversity of views about justice, we have no rational
means via political philosophy alone to determine which constitutional rules to select. In TJ,
constitutional choice was fairly easy, as it took place after the selection of determinate principles
of justice in Rawls’s four-stage sequence, where parties to the original position choose a
constitution in light of previously selected principles of justice combined with general facts
about the functioning of a particular society (the veil of ignorance is slightly lifted in the second
stage). But Rawls’s “first stage” is now of greatly limited help.
Those interested in political liberalism are therefore left with a perplexing problem. If we
want to engage in constitutional choice, we shall have to draw on other research programs. I
believe we must supplement Rawlsian political liberalism with public choice.
III: The Promise of Public Choice
By appealing to public choice approaches to the social contract, the Rawlsian can solve the
problem of pluralism about justice. Three features of public choice approaches commend
themselves to the now despairing public reason liberal: Buchanan’s contract (i) does not depend
on agreement on principles of justice, (ii) provides a more detailed account of the stages of
constitutional choice, (iii) due to its greater realism, offers a much broader source of information
for determining which constitutional rules can be publicly justified. Let’s examine these features
in turn.
36
Gerald Gaus, The Order of Public Reason (New York: Cambridge University Press, 2011).
Rawls, Political Liberalism., p. 410 maintains that capital ownership is not a basic liberty, but Gaus, The Order of
Public Reason., pp. 509-511 thinks that capital ownership is a basic liberty.
37
13
Starting with (i), recall that Rawls thought political institutions could be justified through
a “four-stage sequence.”38 The first stage involves the selection of principles of justice behind
the veil of ignorance, but the second stage lifts the veil slightly to allow for the selection of a
constitution. Thus, the selection of constitutional rules is determined largely by the principles of
justice, the empirical facts about one’s nation and problems of noncompliance with institutions
that embody the principles. In contrast, Buchanan’s contract begins the justification of a
constitution at Rawls’s “second stage” of the sequence. Buchanan never made the mistake of
attempting to use principles of justice to substantially limit constitutional choice. 39 Instead, his
contract begins with the selection of constitutional rules via a unanimity or consensus standard,
where everyone must agree to a set of constitutional rules to make them legitimate. Buchanan’s
contract is therefore wholly insulated from the threat of pluralism about justice.
Regarding (ii), public choice offers a much more detailed account of the constitutional
and legislative stages of Rawls’s four stage sequence. Buchanan offers the theorist two useful
distinctions towards this end. First, while Rawls distinguishes between the constitutional stage
and legislative stage, Buchanan postulates a more complex and plausible relationship between
constitutional and “post-constitutional” choice.40 To summarize, Buchananite constitutional
choice proceeds via the integration of two cost curves, one that tracks the external cost of a
decision-making rule and one that tracks the internal cost of a decision-making rule. The external
cost is understood as the cost to an individual from a single activity imposed by other voters.41
The internal cost is understood as the cost of decision-making itself.42 The aggregate cost curve
gives us a method of selecting voting rules based on an assessment on their net external and
internal costs. Second, Buchanan distinguishes sharply between the protective and production
functions of the state.43 Rawls of course recognizes that the state should protect rights and
produce public goods. After all, Rawls’s two principles reflect the distinction, as the first
principle protects a set of basic liberties and the second organizes the production and distribution
of wealth.44 But Buchanan’s distinction emphasizes that there are two types of rational
38
Rawls, A Theory of Justice., pp. 171-6.
As the paper’s epigraph illustrates.
40
Buchanan, The Limits of Liberty: Between Anarchy and Leviathan., p. 33.
41
Buchanan and Tullock, The Calculus of Consent., pp. 63-8.
42
Ibid., pp. 68-9.
43
Buchanan, The Limits of Liberty: Between Anarchy and Leviathan., pp. 68-70.
44
Rawls, A Theory of Justice., pp. 52-6.
39
14
justification at the constitutional and post-constitutional stages of political choice. By adopting
his distinction, we can identify two types of public justification at each stage.
Finally, concerning (iii), Buchanan’s contract offers us much more information for
constitutional choice than does Rawls’s. Rawls considers constitutional choice as purely a part of
“moral theory” and actually criticizes Buchanan and Tullock for making the process of
constitutional choice too realistic! So while Rawls gives his parties information about how to
design a constitutional to produce generally just and effective laws45, Buchanan offers us all the
relevant empirical information on the functioning of institutional actors at the legislative stage. 46
And this is all to the good for the political liberal, given that principles of justice place far fewer
constraints on constitutions than Rawls supposed. Information about the real world functioning
of decision-making rules is therefore critical to generating determinate recommendations for
constitutional essentials.
Public choice has much to offer public reason. It promises public reason liberals a
systematic, social scientific method of identifying publicly justified constitutional rules.
However, public choice contractarianism requires a number of modifications before it is suitable
for public reason use.
IV: Rawls’s Two Criticisms of Public Choice
Rawls seldom engaged public choice theory, largely confining his remarks to footnotes and
private letters.47 I can identify only three places in Rawls’s entire body of work where he
addresses public choice economics and Buchanan’s contractarianism in particular. The gist of
Rawls’s criticisms in these passages, therefore, is easy to sum up: the public choice contract is (i)
too instrumentalist and (ii) too amoral. It is too instrumentalist because it excludes the capacity
of persons to be “reasonable,” their drive to play fair and not maximize their share of economic
goods subject merely to the threat advantage of other contractors.48 Rawls’s famous quip that
“To each according to his threat advantage is not a conception of justice” comes to mind. The
45
Ibid., pp. 171-6 details the structure of the four-stage sequence.
Of course, if you like, you could try to pack this information into the knowledge of social science that Rawls gives
the parties to the original position. But Rawls was never very specific about what he meant and clearly means for a
lot of the information public choice economists appeal to be excluding from the process of political justification in
the second stage. See ibid., p. 119.
47
Rawls Lexicon entry, Levy and Peart, "Part 5, the Buchanan-Rawls Correspondence."
48
Rawls, Political Liberalism., pp. 48-54 discusses Rawls’s distinction between the rational and the reasonable.
46
15
public choice contract is too amoral because the baseline for agreement on constitutional rules is
not constrained by previously selected moral principles.49 Rather, contractual bargaining begins
from a Hobbesian peace of non-conflict over scarce goods and services. Buchanan: “Gains are
secured from the reductions in predation-defense effort. This contract, which becomes the initial
leap from Hobbesian anarchy, is the first stage of a two-stage contractual process.”50 Rawls
dissents, since his conception of constitutional choice “is part of a moral theory” and “does not
belong to an account of the working of actual constitutions.” Rawls’s aim “is to formulate a
scheme that will assist us in applying [principles of justice]” such that constitutions should not be
adopted based on “more or less realistic (though simplified) assumptions about political life” or
the “individualistic assumptions of the kind characteristic of economic theory.”51 A moral
contract must place some limits on the initial agreement point for a number of reasons, chiefly so
that the stronger cannot exploit the weaker via an inegalitarian social contract.
Despite their brevity and vagueness, I believe Rawls’s two criticisms are basically
correct, though they are far from dooming Buchanan’s project.52 To neutralize the criticisms, I
recommend two modifications to Buchananite contractarianism. First, constitutional choice must
be at least somewhat limited by broader moral considerations.53 We still need something like
Rawls’s first stage, where contractors select the moral limits to the set of eligible constitutional
rules. In Gausian terms, we must first settle on a “public moral constitution” that constrains the
reach of a political constitution.54 The application of public choice must therefore be bounded by
a pre-political contract that broadly constrains constitutional choice. While I have no room to
detail a moral constitution, I do want to forestall one complaint. A general worry about the use of
moral theory to constrain constitutional choice is that it requires myth-making about what moral
claims people can make in a state of nature.55 Fortunately, we are not reintroducing moral theory
through the back door. Instead, I adopt the Gausian ideal of a public moral constraint, one based
49
I presume that Rawls has in mind Buchanan’s endorsement of a more or less Hobbesian “natural distribution”
from which the contractual negotiation of rights begins. See Buchanan, The Limits of Liberty: Between Anarchy and
Leviathan., pp. 23-5. Also see Freedom in Constitutional Contract., pp. 22-3.
50
The Limits of Liberty: Between Anarchy and Leviathan., p. 28.
51
Rawls, A Theory of Justice., p. 173, ft. 2.
52
Though as we shall see, I sharply differ with Rawls on the matter of allowing the functioning of constitutional
actors in “more or less realistic” conditions to determine which rules are publicly justified.
53
Rawls, A Theory of Justice., p. 116.
54
Gerald Gaus, "On the Appropriate Mode of Justifying a Public Moral Constitution," The Harvard Review of
Philosophy XVIII(2013).
55
Peter Boettke, Living Economics: Yesterday, Today, and Tomorrow (Oakland: The Independent Institute, 2012).
??
16
on a record of our actual social-moral practices, not on abstract theorizing. Choice of constitution
is bounded by a publicly justified “social morality” thereby bypassing the concerns public choice
contractarians have about moralized baselines.56
I also recommend enlarging Buchanan’s conception of practical reason. Buchanan
repeatedly stresses the centrality of rational choice theory in the formation of a social contract,. 57
I cannot explain the familiar idea here, but a quick gloss on it is that all rational action is
understood as effective goal-seeking.58 The rational person chooses the best means to achieve her
ends or goals. For Buchanan and Tullock, “choices must not only be directed toward the
achievement of some objective or goal; the decision-making units must also be able to take such
action as will assure the attainment of that goal.”59
Rawlsian contractors are more than merely “rational” in two ways. First, Rawlsian
contractors can rationally select “final ends” or ultimate goals, whereas ordinary instrumental
reasoners are modeled with final ends as given.60 Second, and more importantly, Rawlsian
contractors have an additional “moral power” to be “reasonable.”61 The idea of reasonableness is
vexed in political liberal theory, but we can understand the idea in the following rough formal
terms: a reasonable contractor is one who is prepared to play assurance games rather than
prisoners’ dilemmas.62 That is, she is a conditional cooperator. She will cooperate when she
believes others are prepared to do likewise even if she could do better by defecting. In Rawlsian
terms, contractors are prepared to meet others “half-way,” but we can understand reasonableness
as applying looser restrictions on the size of the share that a person can demand in social
cooperation, though contractors cannot simply appeal to their threat advantage, the minimal
share required to make cooperation in their instrumental interest.63 Rawlsian contractors are
56
Gaus, The Order of Public Reason., Chapter 1 outlines this approach.
Buchanan and Tullock, The Calculus of Consent., Chapter 4 makes this most clear. To my knowledge, Buchanan
never deviated from employing a subjectivist, instrumentalist form of rational choice theory in his social contract
approach.
58
Useful summaries of rational choice theory employed by economists are legion. I find Gerald Gaus, On
Philosophy, Politics, and Economics (Belmont, CA: Wadsworth, 2007)., pp. 7-27.
59
Buchanan and Tullock, The Calculus of Consent., p. 31.
60
Rawls, Political Liberalism., pp. 50-1: “Yet rational agents are not limited to means-end reasoning as they may
balance final ends by their significance for their plan of life as a whole, and by how well these ends cohere with and
complement each other.”
61
Ibid., pp. 48-50.
62
For this formulation, see Gerald Gaus, "Reasonable Utility Functions and Playing the Cooperative Way," Critical
Review of International Social and Political Philosophy 11(2008).
63
John Rawls, The Law of Peoples with "the Idea of Public Reason Revisited" (Cambridge: Harvard University
Press, 2002)., p. 15.
57
17
reasonable in a second sense as well, because they must recognize what Rawls calls the “burdens
of judgment” or features of practical and theoretical reasoning that lead people to systematically
disagree about what is most important or ultimate in life.64
The Buchanan-inspired economist may be wary of holding that it is practically rational to
engage in reciprocal activity when doing so diminishes one’s (long-term) utility prospects. She
might hold that instrumental reasoning involves compliance with reciprocal rules, but only
because compliance with those rules works promotes her long-term goals (self-interested goals
or no).65 Rawlsian contractors are prepared to act on reciprocal rules even if compliance with
justified rules does not work in favor of their long-term interests (that said, such rules cannot
thwart the common good too much or they cannot be publicly justified). I will attempt to allay
this concern below.
In sum, a public reason liberalism that draws on public choice can proceed if (a) it
recognizes moral constraints on the choice of constitutions and (b) contractors are both rational
and reasonable. In this way, we neutralize Rawls’s two criticisms. But our recasting is
incomplete, for we must now modify two ideas that Rawls and Buchanan appear to share,
namely (a) appealing to constitutions as the object of justification rather than laws and (b) the
idea of consensus as a normative standard. I think laws are the objects of justice and that rational
justification should replace consensus. The second modification matters more, as it both provides
us with a more plausible account of justification but alters our understanding of the costs of
decision-making.
V. Individuation of Proposals
To identify publicly justified constitutional rules, we must delineate the unit or object of public
justification, that which is to be justified. For traditional political liberals, the objects of
justification are “constitutional essentials,” or coarse-grained rules that cover an enormous
number of different laws and political procedures. But recent work in political liberalism claim
64
65
Political Liberalism., pp. 54-58.
Buchanan, The Limits of Liberty: Between Anarchy and Leviathan., p. 4.
18
that laws are to be justified. I will follow the recent work on this matter.66 I do so because finely
individuating coercion has two important advantages. First, we have a clearer idea of whether
people have net reason to endorse a law rather than a constitution because the effects of
particular laws are more concrete and predictable. We can better evaluate the effects of a
healthcare bill than the current French constitution. Second, coarse-grained objects of
justification allow too many regime types to be publicly justified. Any regime type or
constitution that members of the public all regard as better than no constitution will be eligible
for public justification. Given the importance of having some constitutional order, members may
be willing to endorse constitutions that are highly illiberal. More fine-grained individuation helps
us to restrict the set of potentially justified laws to options that better fit with our sense of the
genuinely eligible options for public justification in a free society.
While I have only addressed this matter briefly, I stress that the objects of justification
have a great impact on how to justify constitutional rules. By adopting laws as the object of
justification, we can only determine whether a constitutional rule is publicly justified based on
the types of laws political economy tells us they will regularly produce. Constitutional rules are
publicly justified based on a reliability test, based on whether a rule will tend to output publicly
justified laws and block or review them.
VI. Consensus, Rational Justification and Reason-Costs
In their mature contract theories, both Buchanan and Rawls seem to hold that the ultimate
normative standard is consensus, acceptance and/or agreement. For Rawls, a political conception
is one that “citizens should be able to accept” given their comprehensive doctrine. And in his
more canonical formulation, the use of coercive state power is only permitted “when we
sincerely believe that the reasons we offer for our political action may reasonably be accepted by
other citizens as a justification of those actions.”67 Buchanan similarly holds that “consensus” is
66
Jonathan Quong, Liberalism without Perfection (New York: Oxford University Press, 2011)., ch.10 and Gaus,
The Order of Public Reason., Chapter V, section 15 and Chapter VIII, section 23.2 for arguments for fine-grained
individuation of proposals.
67
Rawls, Political Liberalism., pp. 97, xliv. This is only the mainstream understanding of Rawls’s ultimate
normative foundation. I do not believe that he was a consent theorist.
19
what “performs [the] basic normative function” in contractarianism.68 Obviously “consent” is a
master concept in his moral-philosophical work.
In contrast to the mainstream interpretation of Rawls, I do not believe that he employed
consensus as the normative foundation for contractarianism. First, Rawls’s contract was never
meant to describe real persons behind the veil of ignorance. Instead, the parties to the original
position are descriptions of our shared conception of the person (and later, the citizen), so the
choosers are models of our normative commitments. Rawls makes this clear when he argues that
his moral psychology is “philosophical, not psychological.”69 The original position is meant to
model our moral reasons for action by aiding the process of reflective equilibrium. Thus, the
normative force of the OP is that it is the best unification and harmonization of all of our
considered judgments about justice.
Rawls had good reason to prefer this form of rational justification to consent, as consent
standards have notorious problems (problems Buchanan does not take very seriously). For
instance, consent can be based on irrational beliefs, vicious motives and strategic interests. To
hold that constitutional rules and the coercion they employ are based on a consensus standard is
to allow people to be coerced on the basis of irrational and vicious considerations. Second,
consent is impractical. For large-scale social orders, the massive coordination involved in
generating actual consent is unrealistic, as is the expectation that all people would actually agree
to a constitution based on their limited knowledge and imperfect motives. Buchanan seems
relatively sanguine about these problems, but public reason liberals cannot be.
What is the alternative? Gaus has that public reason liberals really want a justificatory
liberalism, one that vindicates liberal institutions by showing that the coercion involved in
institutionalizing liberal principles and rights can be justified to each person based on her
reasons, the considerations that favor certain actions and beliefs to which she is rationally
committed based on her other beliefs, values and goals.70 Thus, the master normative concept for
the public reason liberal is rational justification.
68
James Buchanan and Geoffrey Brennan, The Reason of Rules: Constitutional Political Economy (New York:
Cambridge University Press, 1985)., p. 98.
69
Rawls, Political Liberalism., pp. 86-8.
70
Gerald Gaus, Justificatory Liberalism: An Essay on Epistemology and Political Theory (New York: Oxford
University Press, 1996)., Chapter 9 provides the critical problems with mere consensus or “populist” accounts of
public justification and offers a justificatory alternative.
20
Rational justification, however, is not justification based on an individual’s present
beliefs and values, as these might be grossly mistaken and biased. Instead, public reason liberals
idealize away these plainly inconsistent and biased commitments in order to better model our
real reasons for action and belief. We have no reason to believe contradictory propositions, so if
our set of beliefs (at least ones closely related) contain contradictory beliefs, public reason
liberals idealize them away, not counting reasons derived from contradictory beliefs towards a
rational justification for a coercive law.
There are a great many worries about idealization, ones that I believe can be resolved, but
they bear mentioning.71 One common concern is that idealization is condescending – the theorist
tells people what their reasons are, rather than the people themselves. So the theorist’s
idealization models conveniently vindicate her political commitments, which are then imposed
on others on the grounds that this is what their own reason demands.72 Another concern is that
treating persons in accord with their reasons at a high degree of idealization is to treat them in
accord with reasons that they cannot grasp or see as their own. The former concern is not really
an objection to idealization, but an objection to its abuse. And the latter concern, while quite
serious, only succeeds against radical or extreme forms of idealization.73 I have elsewhere
constructed a model of moderate idealization that I believe avoids these concerns.74 Moderate
idealization raises worries of its own, as it does not eliminate all inconsistencies in an
individual’s beliefs and valuings, opening it up to the same problems as mere consensus, as with
Buchanan’s view. But for now we can set these matters aside and focus on my general point in
this section: that the integration of public reason and public choice requires employing rational
justification as the ultimate normative standard rather than consensus and consent. In this way,
we bring Buchanan’s contract closer to that of the later Rawls and to Gaus.
Moving from a consent standard to a reason-based standard has means altering the
conception of “cost” used to determinate whether laws are publicly justified. Buchanan’s view
on this matter is not entirely satisfactory. On Buchanan’s view, constitutional rules are justified
in terms of their general costs, which he understands radically subjectively. As Buchanan notes,
71
I document and reply to these concerns at length in my ms, Chapter 5.
Christopher Eberle, Religious Conviction in Liberal Politics (New York: Cambridge University Press, 2002)., pp.
180-2.
73
Nicholas Wolterstorff, "The Paradoxical Role of Coercion in the Theory of Political Liberalism," Journal of Law,
Philosophy and Culture 1, no. 1 (2007).
74
Ms., ch. 5.
72
21
[C]ost becomes the negative side of any decision, the obstacle that must be got over
before one alternative is selected. Cost is that which the decision-taker sacrifices or gives
up when he makes a choice. It consists in his own evaluation of the enjoyment or utility
that he anticipates having to forego as a result of the selection among alternative courses
of action.75
This conception of opportunity cost is, as Buchanan notes, a logical rather than a predictive
concept because there is an opportunity cost for any choice by definition. Thus when evaluating
a constitutional rule, we include all of its subjective costs, understood in a maximally subjective
and formal fashion.
While Buchanan’s conception of cost is useful in economic analysis and critical for
evaluating many policy proposals, it is not suitable as the foundational ideal of cost in public
reason liberalism. For the public reason liberal, a law is publicly justified when each person has
sufficient reason to comply with it. The choice set can be defined in different ways, but in the
simplest case, a citizen must evaluate the addition of a coercive law requiring ɵ-ing to a state of
mere liberty permitting non-ɵ-ing in terms of the reasons she has to endorse the law. Thus, for
the public reason liberal, costs and benefits are understood more narrowly in terms of one’s
balance of reasons for action. The cost of a law is its cost in reasons and the benefit of the law is
its benefit in reasons. A law will both block an individual from acting on some reasons (such as
reasons to act contrary to the law) and enable the individual to act on other reasons (such as
reasons to act in accordance with the law now that it is in place). If the balance of reasons is
positive, public reason liberals say that the person has sufficient reason to endorse the law. A law
is publicly justified when each person has “net reason benefit” to endorse the law.
I recognize the apparent oddity of the language in the previous paragraph, so let’s try to
clarify matters further. For the subjectivist economist, a law will have costs and benefits
understood in terms of individual preferences.76 The Rawlsian implicitly reinterprets the
economist’s preference-based utility function into a reasons-based utility function, where
75
James Buchanan, Cost and Choice: An Inquiry in Economic Theory (Chicago: University of Chicago Press,
1969)., pp. 42-3.
76
Daniel Hausman, Preference, Value, Choice and Welfare (New York: Cambridge University Press, 2012).,
chapter 1, has an excellent account of controversies over the concept of preference.
22
actions, proposals, rules and laws are ranked in accord with what the person takes herself to have
most reason to do. Preference-utilities and reason-utilities do not always recommend the same
course of action. For instance, a person might regard herself as paying net preference-utility costs
for acting on her reasons. To illustrate, suppose that John promises Reba at their wedding that he
will care for her in sickness and in health. Now imagine that Reba comes down with Lou
Gehrig’s disease. Caring for Reba will have devastating preference-utility costs for John. He will
have to sacrifice enormous financial resources and free time to care for her and he will have to
remain loyal to Reba by not cheating on her, meaning that he will have to suppress his desire for
sex with other women. But outside of economics, nearly everyone recognizes that John has
sufficient reason, given his promise, to pay these costs. So reason-costs can be distinguished
from the broad preference-based notion of cost. Thus, while there is a strong correction between
preference-utility and reason-utility, they sometimes come apart, most often when a publicly
justified moral requirement makes an individual worse off all things considered.77
The political liberal is concerned merely with reasons-costs in determining which laws
are publicly justified. So, the fundamental cost-benefit functions that Buchanan appeals to in
constitutional choice must be translated into reasons-functions. This may considerably alter our
assessment of constitutional rules.
VII. The Four Constitutional Decision-Rules in a Publicly Justified Polity
I propose that any publicly justified constitution must reliably execute four functions:
(1) Review, reform and repeal legislation that unjustifiably specifies and protects basic
rights. (Protective-BLOCK function)
(2) Develop and pass publicly justified legislation protecting and specifying basic rights.
(Protective-PASS function)
(3) Review, reform and repeal legislation that unjustifiably finances and produces public
goods. (Productive-BLOCK function)
77
If some economists insist on characterizing John as gaining net benefit from caring for Reba, that’s fine with me.
However, in doing so, they must employ a very formal notion of utility. I anticipate extensional equivalence
between such a view and my reasons-costs standard.
23
(4) Develop and pass publicly justified legislation concerning the financing and production
of public goods. (Productive-PASS function)
Following Buchanan, I distinguish between the state’s protective and productive functions. So
the first two functions protect against false negatives and false positives regarding rights. The
Protective-BLOCK function ensures that publicly unjustified legislation concerning basic rights
will not pass, or that if such is passed it will be reformed or repealed in a publicly justified
fashion. The Protective-PASS function ensures that publicly justified legislation protecting and
specifying rights will be passed, so there are no failures to pass needed publicly justified laws.
The next two functions concern the productive function of the state. The third function,
Productive-BLOCK, ensures that publicly unjustified production of public goods are reliably
reformed or repealed, whereas Productive-PASS ensures that publicly justified production of
public goods are reliably passed.
The relative priority of these functions is impotant, as they will often conflict. For the
public reason liberal unjustified coercion is morally worse than a failure to enact publicly
justified coercion, all else equal. So initially it seems that we should give strong priority to the
BLOCK functions over the PASS functions. But the priority cannot be too strong, since
sometimes publicly justified coercion is greatly needed, so much so that it will often be
worthwhile to risk publicly unjustified coercion, especially if the constitution has a reliable
method of reviewing and repealing unjustified laws. So in cases of conflict, BLOCK functions
should have only limited priority.
The protective functions are more important than the production functions. A state that
does not protect basic rights is illegitimate and oppressive, whereas a state that fails to provide
public goods is merely incompetent or derelict. Thus, it is more important for the state to spend
its resources properly specifying and protecting rights than producing public goods. So if the
productive and productive functions conflict, the protective function is more urgent. For this
reason, we give a similar defeasible priority to Protective functions over Productive functions.
Finally, we must determine the priority of the Protective-PASS and Productive-BLOCK
functions. Productive-BLOCK has the advantage of blocking publicly unjustified coercion, but
given the arguably greater urgency of specifying and protecting basic rights, Protective-PASS
trumps. As such, we can rank the functions in order, (1), (2), (3) and (4).
24
To quantitatively specify these four functions, I appeal to Buchanan and Tullock’s
integration of the internal and external costs of decision-making. The external costs can be
understood as the reliability voting rules will output publicly justified legislation and block,
revise or repeal publicly unjustified legislation. The internal costs I understand in terms of the
standard public choice model, where there are great costs of putting together coalitions as we
approach unanimity and relatively fewer costs as we approach majority rule (reversing the trend
below majority rules).78 We can therefore employ the k-rule analysis that Buchanan and Tullock
popularized, which I reproduce here.79
In the standard analysis, D represents internal costs, which increase from 0 to N at a low but
increasing rate. C represents the external costs of voting, which decrease as we move from 0 to
N. The external-costs function is understood in terms of the costs paid by a single individual with
respect to a single activity given the collective action of others who are required to agree before a
political decision is made. Buchanan and Tullock’s analysis suggests that the more people
required to pass a bill, the lower the external costs will be, because the individual’s opinion will
have an increasing impact on the outcome, and so lower the costs he pays from getting a decision
he dislikes.80
78
May be a complication here.
Buchanan and Tullock, The Calculus of Consent., p. 76.
80
Ibid., Part III, xxx for an argument external costs are not negative.
79
25
The C + D line aggregates the two cost curves into one, and point K is where aggregate
costs are minimized. The k-rule prescribes the voting rule at K. Some economists think K is a
simple majority rule, but other think the K-value is supermajoritarian. But the synthesis of public
reason and public choice requires us to restructure the external costs curve. To simplify, let’s
focus on the two productive functions (Productive-BLOCK and Productive-PASS). Let’s also
assume that each voter’s reasons-cost concern only her or her family, religion, etc. Thus, her
reasons-function includes only reasons regarding her personal projects and principles. She now
has two priorities: blocking unjustified legislation and passing justified legislation.81
Given these two priorities, I draw two external cost curves, one for publicly justified
legislation and the other for publicly unjustified legislation. Like Buchanan and Tullock’s model,
the x-axis represents the number of voters required to pass or repeal a law. But the y-axis
represents (i) reasons-costs and reasons-benefits, not general costs, and it represents (ii) both the
external benefits of the publicly justified legislation rule and the external costs of the publicly
unjustified legislation rule.
20
15
10
Reasons Benefit
5
Reasons Costs
Reasons Utility
0
1 10 20 30 40 50 60 70 80 90 100
-5
-10
The first line (in blue) represents the external reasons-benefits of the publicly justified legislation
rule, whereas the second line (in red) represents the external reasons-costs of the publicly
unjustified legislation rule. The reasons-benefit line depicts how much gain to one’s evaluative
81
Publicly justified legislation, I must stress, is not costless. There is still a cost to being coerced, but with publicly
justified legislation, the individual’s reasons-function holds that the law has net benefits. So, even the rule for
passing publicly justified legislation must include the costs of coercion, which will depress it further vis-à-vis the
rule that requires avoiding publicly justified coercion. I set this complication aside for our purposes.
26
standards we can expect from voting rules as the number of voters increases. At unanimity, the
reasons-benefits are low, as the laws that everyone regards as an improvement are few in
number. If only one voter is required to pass legislation, the benefits will also be low, but not
because some will be unjustifiably coerced, as those costs are reserved for the external costs
curve (the red line). Reasons-benefits are low because different persons prefer different pieces of
legislation, such that they will conflict and frustrate each other’s goals. For instance, if two
individuals have different views on health policy, their laws will prescribe contradictory legal
rules. The reasons benefits will rise as we approach a majority rule, as the potential for
conflicting legislation decreases. However, a majority rule does not prevent this problem, as
different majorities may still pass conflicting legislation. Presumably supermajority rules will
block more conflicts, though they permit the ratification of fewer publicly justified laws, so it is
hard to say how the curve is shaped here. I have represented the aggregate external curve (in
yellow) as increasing to a three-fifths majority and then sharply decreasing.
At unanimity, the external costs of publicly unjustified coercion are quite low. They are
not zero, since sometimes a publicly unjustified law may be ratified unanimously. This means
that what is publicly justified and what is endorsed by actual legislators comes apart on
occasion.82 At one vote, the reasons-costs are high since voters can pass laws publicly justified to
them but not to anyone else. Such a process will surely lead to a great deal of publicly unjustified
coercion. However, such proposals may conflict, as legislators can alter and repeal each other’s
legislation. As a result, the external costs are not extraordinarily high. I think it safe to assume
that the curve slopes downward, with decreasing costs from one to unanimity.
We may now aggregate the two reasons-costs curve, the reasons utility function (blue)
and the internal costs function (in red) into a single curve (in yellow). To do so, we cannot
simply average costs and benefits, since the BLOCK function has limited priority over the PASS
function. Instead, the aggregate curve should weight BLOCK more heavily than PASS since
being coerced without justification is worth than being unable to pass publicly justified coercion,
all else equal. Accordingly, we can assign BLOCK a weight of .6 and PASS .4. To select the
correct decision rule, then, we need only aggregate the combined external cost-benefit curve with
the internal costs curve. I graph the external costs in blue, the internal costs in red and combined
costs in yellow:
82
The issue of actual voters tracking idealized reasoning. Problems might be severe.
27
8
6
4
2
Reasons Utility
0
-2
1 10 20 30 40 50 60 70 80 90 100
Internal Costs
Combined Costs
-4
-6
-8
-10
VIII. Conclusion
Rawls’s research program requires an account of how a society can reach a Nash equilibrium on
principles of justice given their diverse conceptions of the good. But given reasonable pluralism
about the right and justice, the equilibrium will break down. As a result, we need a method of
publicly justifying constitutional rules that only requires agreement only agreeing on a broad
range of moral limitations on constitutions. Public choice theory shows that we can select
decision rules without agreement on justice if we minimize the combined external and internal
decision rules. Translating this strategy into Rawlsian terms, we combine the costs and benefits
to our evaluative standards (not our generic utility) and then institute the decision rule that
maximizes benefits and minimizes costs.
If we can synthesize public reason and public choice, an array of future research
questions appear. First, we will need to determine which constitutional rules are publicly
justified. Second, we will have to structure the legislative stage following the constitutional
stage. Third, we must address reasonable disagreement about decision procedures and address
cases where we cannot demonstrate that one constitutional rule is superior to another. The work
required is significant, but I believe it will have a significant pay-off.
Works Cited
28
Boettke, Peter. Living Economics: Yesterday, Today, and Tomorrow. Oakland: The Independent Institute,
2012.
Brennan, Geoffrey, and James Buchanan. The Reason of Rules: Constitutional Political Economy. New
York: Cambridge University Press, 1985.
Buchanan, Allen. "Justice, Legitimacy and Human Rights." In The Idea of a Political Liberalism: Essays
on Rawls, edited by Victoria Davion and Clark Wolf, 73-89. Lanham: Rowman & Littlefield,
2000.
Buchanan, James. Cost and Choice: An Inquiry in Economic Theory. Chicago: University of Chicago
Press, 1969.
———. Freedom in Constitutional Contract. College Station: Texas A&M University Press, 1977.
———. The Limits of Liberty: Between Anarchy and Leviathan. Chicago: University of Chicago Press,
1975.
Buchanan, James, and Geoffrey Brennan. The Reason of Rules: Constitutional Political Economy. New
York: Cambridge University Press, 1985.
Buchanan, James, and Gordon Tullock. The Calculus of Consent. Ann Arbor, MI: University of
Michigan Press, 1962.
Eberle, Christopher. Religious Conviction in Liberal Politics. New York: Cambridge University Press,
2002.
Gaus, Gerald. Justificatory Liberalism: An Essay on Epistemology and Political Theory. New York: Oxford
University Press, 1996.
———. On Philosophy, Politics, and Economics. Belmont, CA: Wadsworth, 2007.
———. "On the Appropriate Mode of Justifying a Public Moral Constitution." The Harvard Review of
Philosophy XVIII (2013): forthcoming.
———. The Order of Public Reason. New York: Cambridge University Press, 2011.
———. "Reasonable Utility Functions and Playing the Cooperative Way." Critical Review of
International Social and Political Philosophy 11 (2008): 215-34.
Hausman, Daniel. Preference, Value, Choice and Welfare. New York: Cambridge University Press, 2012.
Levy, David, and Sandra Peart. "Part 5, the Buchanan-Rawls Correspondence." In The Street Porter
and the Philosopher: Conversations on Analytical Egalitarianism, edited by David Levy and Sandra
Peart, 397-416. Ann Arbor: University of Michigan Press, 2008.
Quong, Jonathan. Liberalism without Perfection. New York: Oxford University Press, 2011.
Rawls, John. Justice as Fairness: A Restatement. edited by Erin Kelly New Delhi: Universal Law
Publishing Co. Pvt. Ltd., 2001.
———. The Law of Peoples with "the Idea of Public Reason Revisited". Cambridge: Harvard University
Press, 2002.
———. Political Liberalism. 2nd ed. New York: Columbia University Press, 2005.
———. A Theory of Justice. New York: Oxford University Press, 1971.
Weithman, Paul. Why Political Liberalism? On John Rawls's Political Turn. New York: Oxford University
Press, 2010.
Wolterstorff, Nicholas. "The Paradoxical Role of Coercion in the Theory of Political Liberalism."
Journal of Law, Philosophy and Culture 1, no. 1 (2007): 101-25.