Here is a parody of law review format - the following paragrapohs
comprise ONE footnote in an article by Mark Kelman. But I think it's an
interesting of Buchanan's argument for designing constitutions around
the assumption that politicians are scoundrels.
---------------------------------
n80 Unlike the Chicago School adherents, Buchanan (at least on occasion)
specifically renounces the idea that the picture of a world of
wealth-maximizers is likely to
be especially accurate, even as a useful descriptive approximation. See
Brennan & Buchanan, The Normative Purpose of Economic "Science":
Rediscovery of an
Eighteenth Century Method, in The Theory of Public Choice -- II, supra
note 23, at 382, 384-86. Instead, Brennan and Buchanan have argued that
it is worthwhile
to construct fundamental political institutions, even knowing it is not
accurate. See id. at 386-91.
Brennan and Buchanan can most plausibly be interpreted to make three
basic arguments for this position. The first claim rests on an
instructive parable: they assert
that just as people who enter contractual relations believe they are
dealing with honest people but write contracts as if they were dealing
with crooks, so should
constitutional "contract drafters" establish a policy that protects
against crookedness even though one assumes one won't invariably face
it. Id. at 389. This argument
seems especially odd, both in the sense that the authors seem to
misdescribe so thoroughly the practice of contract-drafting and in the
sense that it would not clearly
be appropriate to draft constitutions as one would draft contracts. They
have surely said nothing to bolster the counterintuitive claim that in
the sorts of routine
commercial contracts they describe, between a building contractor and a
homeowner, contracts are drafted "as if" the parties intend to fleece
one another, to act in
bad faith. It is hard to test the claim because it would not clearly be
selfishly worthwhile (in traditional transaction-cost terms) for even
the most suspicious parties to
specify (and contract against) all the possible disappointments one
might expect. But while Brennan and Buchanan do not even suggest what an
optimal contract for
a suspicious selfish agent looks like, one would probably expect to see
terms such as penalty clauses for lateness or highly punitive liquidated
damage clauses
triggered by the discovery of substandard performance. The standard form
contracts I have looked at here in Palo Alto contain no such provisions;
instead, they
often contain what strike me as inadequately suspicious provisions
revealing great trust in the contractor (e.g., nonfixed price cost-plus
contracts with few explicit
monitoring mechanisms).
More significantly, if one is to fathom why the contract example might
be germane, one should think about how one would specify contracts in
which one wanted to
nurture traits other than self-seeking. A contract that implied each
party suspected the other of cheating could well lead the parties to act
more selfishly for fear of
being taken advantage of. Moreover, once one explicitly prohibits a
great deal of self-seeking in detail, it is not implausible that one
will be deemed to have permitted
everything else. Overly tightly controlled suspicious restrictions on
conduct may be counterproductive: for instance, tightly constrained
labor contracts reflecting a fear
of shirking might mitigate monitoring problems at the cost of squelching
judgment and innovation. It is also not at all clear that a divorcing
parent, for instance, who
wanted to encourage a previously uninvolved spouse to become more
involved with the children after separation, would mandate a certain
number of visit days, on
the supposition that he should be treated as a selfish person who would
never visit otherwise; mandating "altruism" may squelch its development.
See Landes &
Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An
Economic Study of Law and Altruism, 7 J. Legal Stud. 83 (1978).
But it is not obviously relevant to think about designing private
contracts at all when one thinks about designing constitutions. It may
be reasonable to think that
contracts occur fundamentally at the margin of social life: one arguably
seeks, in private life, a significant but limited range of
satisfactions, ones that take for granted
the tastes and resources of the seeker. But these latter factors
themselves surely cannot be created wholly individually: anyone who
thinks he (or a group of people
with whom he can plausibly contract) created or can recreate the culture
that he was born into and inhabits is a fool. Self-conscious collective
political conduct is
hardly able instantly to transform social life or culture either, but it
is surely in some large part about the creation of culture and meaning
systems. If the bulk of
political activity perfectly substituted for other forms of private
gain-seeking, within a set context of tastes and meanings, it might be
more germane to think about
how one protects oneself in the contract context; if it is instead
significantly about creating selves, the image of designing devices
capable of protecting one's interests
becomes quite hard to fathom.
Brennan and Buchanan's second argument seems peculiarly narrow: they
suggest that the sole virtue of collective institutions (e.g., the
market, a state) lies in their
capacity to transform self-interest into public good, so that we must at
least assume self-interest if the institutions are to be virtuous. See
Brennan & Buchanan, supra,
at 388, 390. At a broad level, the claim seems preposterous.
Institutions can "attain public good" in many ways: for instance, by
enabling altruism to manifest itself or
by developing personality traits that make people more productive, less
self-destructive, or less likely to define their interests in ways
antagonistic to others. Brennan
and Buchanan must be making a narrower point, perhaps that the role of
political institutions is to harness the self-interest of would-be
governors, so that whatever
ends people in the polity have for their institutions (whether
establishing structures that encourage altruism or simply establishing
other institutions, like the fabled
market, that harness selfishness), they will want their political
institutions to harness that self-interest. But that point must echo the
contract example and be wrong in
just the same way: it is surely not clear a priori that one is better
off writing limited contracts with people one suspects of cheating than
seeking, and expecting to be
able to find, more trustworthy agents.
The third point (which I believe to some extent Brennan and Buchanan
suggest, though they never explicitly make it) is that the constitution
one would draft to deal
with selfish thieves is just like the constitution one would draft to
deal with people who have conceptions of the public good different from
one's own. See id. at
389-90. From this perspective, those who disagree with you are just like
those seeking financial gain: they care less for your interests than
their own.
But this argument surely won't work either: to the extent we both
acknowledge the need for some sorts of collective decisions, then the
inevitability of losing out in
manifesting your most preferred vision must simply be accepted. One
cannot live in a culture that both tolerates and wholeheartedly condemns
abortion; whether we
permit the decision about which we are to do to be made collectively by
particular institutions (the basic constitutional design issue) surely
depends on whether we
believe that the battle will be fundamentally about private economic
interests (a desire by illegal abortionists for monopoly profits, a
desire by pregnant women to
save money) or about morality (the sanctity of fetuses, control by women
of their bodies).
--
Prof. Bryan Caplan [EMAIL PROTECTED]
http://www.gmu.edu/departments/economics/bcaplan
"We may be dissatisfied with television for two quite different
reasons: because our set does not work, or because we dislike
the program we are receiving. Similarly, we may be dissatisfied
with ourselves for two quite different reasons: because our body
does not work (bodily illness), or because we dislike our
conduct (mental illness)."
--Thomas Szasz, *The Untamed Tongue*
