contractarianism as liberal conservatism: buchanan's unfinished philosophical agenda

Contractarianism as Liberal Conservatism1:

Buchanan’s Unfinished Philosophical Agenda

HARTMUT KLIEMT [email protected]

Gerhard-Mercator-Universitat-GH-Duisburg, Fachbereich 1/Fach Philosophie, D-47048 Duisburg, Germany

Abstract. This paper distinguishes several types of contractarianism. It argues that Buchanan type con-

tractarianism may be classified as a specific ‘‘formal type’’ of conservatism that grants normative status to

the status quo. How such conservative contractarianism relates to and possibly blends into classical lib-

eralism is sketched and it is suggested that classical liberal ideals along with a specific form of conservatism

rather than the idea of a contract per se should be seen as the core of Buchanan type contractarianism.

JEL classification: A12, B40, B52.

1. Introduction

The term ‘‘contractarianism’’ covers quite heterogeneous strands of thought.2 Inphilosophy what may be called ‘‘counterfactual contractarianism’’ prevails.In counterfactual contractarianism a purely hypothetical initial situation serves asthe status quo, A, that is transformed into a state, B, by a purely hypotheticalcontract. Assuming suitable initial conditions and making certain behavioralassumptions the philosophers imagine some rational, free contractual process thatcould conceivably have brought about the result in question and thereby justify it.But if counterfactual contractarianism is not embedded in a broader (substantive)ethical theory that imposes some constraints on argument (e.g., Rawlsian reflectiveequilibrium) there are so many degrees of freedom to the hypothetical contractargument that one can justify practically everything by some conceivable contract orother. I will not go over such arguments in any detail here since from my point ofview David Hume did ‘‘finish’’ counterfactual contractarianism some 250 years ago.To Hume’s argument I will add only a kind of footnote presenting some examplesthat illustrate how philosophical counterfactual contractarianism tends to run intothe same traps as collectivist ethical views like utilitarianism (Section 2).In ‘‘factual contractarianism’’ a real initial situation serves as the status quo, A,

that is transformed into a state, B, by a real contract or by real agreement of realindividuals. Factual contractarianism eliminates almost all degrees of freedom fromthe justificatory argument. If ever the demanding conditions of factual contractarianagreement were fulfilled what could one object?3 However, real agreement of allmembers of a ‘‘great society’’ will in fact never come forward. I will try to distinguishmore carefully than we normally do between agreement as a necessary and as asufficient condition of legitimacy and on this basis illustrate in some more detail why

Constitutional Political Economy, 15, 171–185, 2004.

� 2004 Kluwer Academic Publishers. Printed in The Netherlands.

we cannot take contractarianism at its word. We must acknowledge that noteverything can be subject to real agreement (Section 3). Real agreement must startfrom some real state of the world, which is in itself not the result of agreement.Therefore the status quo quite naturally must have special normative status.Acknowledging the special role of the status quo a contractarian who insists on realas opposed to merely conceivable consent has become already what I call a ‘‘formalconservative’’ (Section 4.1). Such a reasonable contractarian should stop to think ofagreement as a source of legitimacy and re-interpret contractarianism as expressingthe classical liberal aim to live in a society in which individuals can decide as much aspossible themselves – though in agreement with others (Section 4.2). General con-clusions follow (Section 5).

2. Counterfactual Contractarianism

A contract can be binding only for those who participated in the act. Therefore afictitious contract of fictitious individuals can only bind fictitious individuals. Realindividuals can ignore arguments that suggest obligations stemming from fictitiouscontracts. They should reject them since accepting such arguments would leadexactly into the same traps that contractarians are so fond to put up for utilitarians.For instance, behind a veil of uncertainty everybody would agree to found aninstitution of mandatory living donation of one kidney: Living with one kidney ispractically as good as with two, living on dialysis without a kidney is pretty bad,quality of life with one kidney transplant (with an almost optimal HLA-tissue matchfrom a very large pool of donors) may be almost as good as without ESRF (endstage renal failure). So giving the contingent promise to give up one kidney if calledupon in return for the promise to receive a kidney in case that one needs a transplantis a good bargain for everybody. In a situation in which nobody knows anythingabout her future health prospects in the lottery of life introducing mandatory livingkidney donation is an obviously Pareto superior move.4

If we are truly impartial and therefore start from a counterfactual situation ofcomplete uncertainty about particular interests we all should agree on an institutionof mandatory kidney donation. Implementing this institution furthers the commonweal as explicated by the interest of a representative individual the best (the indi-vidual being rendered representative by some suitable veil of uncertainty about herown position). Still, if anybody should show up at our door and tell us that we betterbe prepared to donate a kidney because this is what the contractarian logic implieswe would tell that person to get out of our way immediately. It would not convinceus as a source of personal obligation that we would have rationally given our assentbehind a veil of uncertainty if asked. We simply have not been asked and thereforecannot be under any personal obligation – at least none derived from agreement.Now, imagine that we live in a society in which an institution of mandatory kidney

donation has been introduced as a Pareto improving insurance scheme. This schemeis insuring everybody against the detrimental effects of ESRF without a transplant.

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Putting ourselves in the shoes of the one who became chosen to donate we canimagine that it may be some consolation to be contributing to a scheme that is in themutual interest of all. Moreover, the insight in the common interest may induce us toregard such institutions as legitimate and may make us more prone to support suchinstitutions in our actions.5 This is all possible and may lead those concerned to realacceptance of ‘‘the constitution of mandatory kidney sharing’’.However, to go beyond real personal interest and to use the argument of the

fictitious contract as a criterion of what desirable social institutions should be likerather than referring to real interests directly is a move as dangerous as allowing toargue with ‘‘true’’ as opposed to ‘‘false’’ interests. The argument of the potentialagreement coming forward in a fictitious situation will serve as a camouflage forfundamental coercive power. But we should do everything to unmask such cam-ouflage. For, though it is unavoidable that some coercion exists in society, it isavoidable that we let that coercion appear more harmless than it is. By describingcoercion as the result of free assent we let it appear as something else.6 To do duejustice to the moral problems going along with the application of fundamentalcoercive power we should describe that animal as what it is rather than call coercionby the name of agreement.7

In short, the counterfactual contractarianism of the philosophers is dangerousbecause of its potential ideological abuses for camouflage. It therefore should haveremained finished as it in fact had been since the days of Hume until Rawlsre-introduced it to philosophy. However, the Buchanan type economist’s contrac-tarianism is a different matter. Due to the special weight James Buchanan has alwaysgranted to the status quo and to real as opposed to merely fictitious consent histheory seems to be impervious to the aforementioned criticisms. So let us turn to hisunfinished contractarian agenda in which ‘‘beyond real agreement we cannot go’’.

3. Four forms of (factual) contractarianism

Buchanan often quite loosely speaks of a conceivable contract and the like. But ifseriously challenged, he himself insists on real consent – and rightly so. Real consentkeeps us fromgoing astray badly.However, if we need real consent tomove forwardwemay not be able to get anywhere at all. This raises the issue of whether we can weakenthe condition of real consent in ways that neither give up the basic contractarian idealsof consent nor get us into the old troubles of fictitious consent. The obvious way toweaken consent notions consists in distinguishing between sufficiency and necessity.Basically as a condition of legitimacy the agreement of all concerned in a trans-

formation from a status quo, A, into a state B can be

1. necessary and sufficient (type 1 contractarianism)2. necessary but not sufficient (type 2 contractarianism)3. not necessary but sufficient (type 3 contractarianism)4. not necessary and not sufficient (type 4 contractarianism)

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In each of the types of contractarianism a meaningful condition for the transfor-mation to be justified is given. On this condition, it depends whether the transfor-mation of A into B and the result B itself are deemed to be justified in that variant ofcontractarianism. This can easily be put into a two by two table that provides anoverview over the four possible combinations of necessity and sufficiency of agree-ment as a right-making characteristic of a transformation of A into B (Table 1).Conceivably there could always be two variants of each type of contractarianism, a

strong and a weak variant. According to the strong variant, we say that B is justifiedper se after being brought about by a transformation. According to the weakervariant we might want to say that only the transformation itself was justified. Then Bitself is justified only relative to A by the procedure. In the latter case B per se, eventhough it was reached in some contractarian way or other is not deemed justified. Aswill become clear below the weak variant of a strong type may in fact amount to thesame ting as another type. In discussing the four types of factual contractarianism,I will not always explicitly deal with the strong and the weak variants separatelysince this would make the discussion too tedious. Bearing this in mind let us go overthe four types of factual contractarianism one by one and look at some examples.

3.1. Type 1

If agreement is necessary and sufficient for a transformation A into B and its endstate B to be justified then type 1 contractarianism prevails. In such ‘‘full contrac-tarianism’’ a transformation of state A into B justifies B iff (if and only if) allindividuals concerned are or rather were agreed in A that B should be broughtabout. In full type 1 contractarianism the initial state or status quo, A, is not a crucialelement of the justification, since the agreement of all is always sufficient to renderthe transformation and its end state B justified. In full type 1 contractarianism theinitial state, A, may be important for predicting the outcome B but A is neither ofimportance for the justification of B nor for the justification of the transformation.As Jim Buchanan uses to say ‘‘what comes out comes out’’ and is as such justified bythe mere fact that it came out of a type 1 contractarian agreement.Rather than leaving this reformulation of what ‘‘procedural justification’’ maymean

in the abstract, it may be helpful to look at a specific traditional example: Assume thatall are agreed to change the status quo, A, of anarchy in which there is no governmentinto a state B in which there is a government. According to type 1 contractarianism thegovernmental state B is justified and so is the transformation leading from A to B

Table 1. Four types of factual contractarianism.

Types of right-making

contractual transformations Agreement is sufficient Agreement is not sufficient

Agreement is necessary 1 2

Agreement is not necessary 3 4

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whatever the status quo.Whether A, was paradise or hell B is justified by the consent ofall. Even if after the fact all should be agreed that B was not an improvement over Aand that it would have been better not to leave A it was justified and justifies B iff allagreed in A to bring about B.Moreover, in type 1 contractarianism the new status quo,B, cannot be changed or reversed unless all are agreed.The preceding is clearly focused on the strong variant of contractarianism in which

the state B is justified per se. I do not deny that the weak variant of type 1 con-tractarianism is meaningful. But I suggest that type 1 contractarianism be identifiedwith the strong or absolute variant since the weak variant seems to be covered bytype 2 and type 4 contractarianism. So let me directly turn to type 2 contractarianism.

3.2. Type 2

In type 2 contractarianism a transformation of the status quo, A, cannot lead in ajustified way to a justified state B unless B was brought about by agreement. In type 2contractarianism agreement is not sufficient. There are conditions that can block thejustificatory power even of the agreement of all. These conditions are regarded asmore important in evaluative considerations than the agreement per se.Again an example may be helpful to illustrate what is at stake. Assume all people

of the relevant community decide to form a suicide club to kill themselves in aspectacular event. The condition of agreement as necessary is met then. Yet theremay be forms of ‘‘contractarianism’’ that would nevertheless rule out the result.They would classify it as illegitimate even though real agreement had been forth-coming. Likewise some forms of contractarianism would classify an agreement to selloneself into slavery as void.At the same time, type 2 variants of contractarianism would insist that nothing

may be imposed on individuals without their agreement. Non-imposition is theguiding principle of type 2 contractarianism. As in the foregoing example, therecannot be a legitimate transformation like the founding of a state B in an anarchicstatus quo, A, without the consent of each and everyone. When we have alreadyentered the realm of collective choice – and in a way the necessity of agreementrenders all choices collective since everybody in a relevant group must be agreed –type 2 contractarianism grants (‘‘moral’’) veto power to each concerned. It is fairlyclose to theories of natural rights in that regard since in type 2 contractarianismeverybody has a trump – veto – against all others.8

3.3. Type 3

Since in type 3 contractarianism agreement is not necessary for a transformation ofthe status quo, A, into the end state B to be justified, a justified end state B can bebrought about without the consent of all concerned. In type 3 contractarianismagreement is neither necessary for justifying a transformation from A to B nor forjustifying B itself. Nobody has a veto against transformations. But if forthcomingthen independently of the status quo, A, an agreement of all on B has overwhelming


justificatory power. B is justified no matter what A was if all were agreed to trans-form A into B.9

If an end-state B can become justified by a transformation independently of whatthe initial state A was then the Lockean–Nozickean (see Nozick 1974) endless chainin which one can get a justified result only from a justified starting point by a justifiedtransformation is broken. In type 3 contractarianism (and for that matter in type 1)agreement has what may be called ‘‘chain breaking’’ characteristics. As opposed tothat in the non-chain breaking case of just-transformations the justificatory status ofthe end state B remains dependent on whether or not A as the initial state of thetransformation into B was justified.Again an example may be useful. If in a status quo with no state, all individuals

agree to found the state then – at least according to the strong variant – the state isjustified. However, in type 3 contractarianism the state may emerge without indi-vidual consent and may still be seen as justified for reasons other than consent.10

Likewise, if all individuals in a relevant group are agreed to kill themselves then asopposed to type 2 contractarianism in which some counter argument could still beoffered, type 3 contractarianism deems unanimous agreement sufficient for the col-lective suicide to be justified.On a more general level it may be noted that the Pareto principle in its standard

interpretation is clearly seen as a sufficient condition for action though not as anecessary one. If economists argue that the Pareto principle is a weak normativeprinciple they are implicitly alluding to the view that type 3 contractarianism ismerely a sufficient condition of the legitimacy of a transformation. On the otherhand as Buchanan has very well noted the sufficiency of unanimous agreementimplies that even a slave owner society is justified if agreement comes forward (seeBuchanan 1975). If real consent as in factual contractarianism is required thisconclusion, though problematic, would not seem outlandishly mistaken – eventhough agreement ‘‘point of a gun’’ then would have normative force as well.

3.4. Type 4

In type 4 contractarianism agreement is not necessary and it is not sufficient forjustifying a transformation of a state A into a State B. In type 4 contractarianism,there may be value considerations other than agreement that have overriding force.Agreement is only one value consideration in a multi-dimensional evaluation. It mayitself lack overriding force. Even though all may be agreed on some issue or other, intype 4 contractarianism this may not be decisive since it concerns only one dimensionof evaluation. But is type 4 contractarianism still contractarianism ‘‘proper’’?In type 4 contractarianism, there may be circumstances in which agreement is used

as a sufficient argument rendering a transformation of A into B as well as B itselfjustified. Imagine a theory that contains some ethical criteria of general acceptabilityof states of affairs. Assume that A and B are generally acceptable then a just-transformation may be sufficient to justify B. And there may be states A and B inwhich the lack of agreement may still be an overriding critical concern and thus

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agreement of all may be necessary for a legitimate transformation from A to B. Theposition can still be contractarian in the sense that contractual agreement is seen asan important value concern but its force becomes dependent on the initial state Aand possibly on the acceptability of the emerging state B. At the same time there isno universal ‘‘veto’’ or individual right to block the legitimacy of transformationsbut sometimes (i.e., if basic interests are involved) each may be granted a right toveto even in type 4 contractarianism.11

Type 4 contractarianism may be called ‘‘embedded’’ contractarianism. Dependingon the normative status of both status quo, A, and end state, B, agreement issometimes sufficient, sometimes necessary, sometimes both necessary and sufficientand sometimes neither necessary nor sufficient. Type 4 contractarianism possiblyviolates unrestricted domain of what may legitimately be chosen by restricting thechoices individuals may make (by denying sufficiency). It also does not requireagreement as a necessary condition of normative acceptability. For instance if a stateof affairs B is for some reason or other ethically very desirable – at least as comparedto A – then in type 4 contractarianism (substantive) ethics may override the need foragreement.It seems that type 4 factual contractarianism becomes almost as arbitrary as

counterfactual contractarianism. To get desired results we just plug in whateverethical theory or premises are needed to come up with a certain conclusion. When itcomes in handy we talk of agreement and if not so we say that there are overridingethical concerns that are more important than agreement. Rawls tried to restrict thatarbitrariness by his notion of a ‘‘decision procedure for normative ethics’’ leading toa ‘‘reflective equilibrium’’.12 Buchanan though being on the relatively safer side byinsisting on real consent must do something about that problem, too, since theconsent of all – whether necessary or sufficient – will not come forward in the realworld. What are we to say if agreement of all is not forthcoming?If we intend to stick to factual contractarianism we are stuck with type 4 con-

tractarianism. To impose some discipline here we can grant a special role to thestatus quo as a starting point of transformations and single out a special class oftransformations as furthering the aim of maximizing the role for agreement andminimizing coercion without being based on agreement as a source of legitimacy.The first suggests that we adopt some kind of conservatism and the second to goback to classical liberalism. Taking together these two features yields a pretty goodcharacterization of Buchanan type contractarianism as a conservative proceduraland status quo based approach.

4. Accepting and Transforming the Status Quo

4.1. Accepting Status Quo

In substantive conservatism it is assumed that the mere fact that the status quo existsindicates that there is in all likelihood a substantial good reason for its existence. It is


not only acknowledged that the status quo as a brute fact is what it is and shouldtherefore form a ‘‘convenient’’ starting point of further agreement it is also assumedthat the status quo emerged from decisions ‘‘for a reason’’ and that it is therefore nota mere convenience to respect it as a starting point.13 The view of some economists(particularly of the Chicago type) and for that matter biologists (see for a statementto that effect Zahavi and Zahavi (1997), chap. 1) that what is should be approachedunder the presumption of being efficient may serve as an illustration here: For anyapparent inefficiency, on a deeper level of understanding, there will be a good‘‘efficiency’’ reason that is ‘‘waiting’’ to be discovered.14 Once we discover suchdeeper reasons we become aware of (typically interest based) ‘‘reasons’’ (which willin fact typically be mere causes) for seemingly inefficient states or features of theworld.15

As opposed to substantive, formal conservatism does not raise a substantial claimabout the efficiency of the status quo. It treats the status quo as one might treatverdicts of a (supreme) court. Some of us, for instance, think that we have a goodreason for accepting whatever the court rules simply because it springs from thatauthorized source. According to this view it is in a wide range of cases moreimportant that things should be settled at all by some kind of ‘‘authority’’ than howthey are settled (substantially). The mere convenience of having one provides areason for accepting the ruling of the authority even though there may not be any orat least no good substantial reasons for the content of the rulings of that authority.16

Likewise, as formal conservatives we think that we have a good reason to accept thestatus quo or what is, while acknowledging that there may not be good substantialreasons why it should be so.17 In short, by our ‘‘moral rule of recognition’’18 weendow the status quo with normative authority and accept it as the starting point ofagreement and of normative argument independently of any substantial normativeargument in its favor.19

We could in fact operationalize the amount of status quo legitimacy or formalconservatism by the parameter of majority that we require for change. For instance,founding fathers of a constitution who impose a super-majority of, say 2/3, of thevote in a referendum for constitutional change implicitly start with the presumptionthat the status quo legitimacy of the normative system of the constitution ought to beregarded as that high. More generally speaking, we have a very simple – Calculus ofConsent type20 – numerical measure of conservatism with regard to a legal orderhere. Using that measure we can treat any constitutional status quo implicitly as ifemergent from a procedure that can bestow some degree of legitimacy on its results ingeneral and on the status quo in particular by requiring a certain super-majority forchanging it.

4.2. Transforming the Status Quo

Taking a moral principle seriously and to apply it to extreme situations tends to takeus to extremes itself. If we stick to the requirements of unanimity and real ratherthan merely presumed consent, contractarianism tends to become pretty extreme.

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A type 1 or 2 contractarian who is insisting on real consent must regard practicallyall changes of political institutions as illegitimate transformations between whichnormative political theory cannot differentiate in terms of contract. On the otherhand if contractarians give up non-imposition and become of type 3 or 4 they mayhave given the game away. At least they have given up the crucial feature thatdistinguishes their approach from views like utilitarianism. They cannot use a con-tract or agreement based argument to rule out most of the weird proposals of suchethical theories.I think that there is no way out of the difficulty as long as we take contractarianism

at its word and thus as referring to consent and contract as sources of legitimacy. Are-interpretation of contractarianism in terms of classical liberal ends may be helpfulhere. We must acknowledge then that using the term contractarianism is a commonbut somewhat misleading way to express the end of living in a free society thatexhibits certain features of the legal-constitutional status quo of a mature westernsociety. Such a society may be regarded the better the more it enhances the scope forindividual decision making. But as long as we are not in a position to rank ordersocieties according to a measure of freedom that is generally accepted we are notmuch further. Under the roof of ‘‘contractarianism as maximizing liberty’’ collec-tivist right or left wing positions would still fit as well as libertarian individualistones. Liberty in the sense of so-called negative liberty as well as in the sense ofparticipatory claims or freedoms would both be viable concepts. Discriminatingbetween these views would require additional criteria.21

Since classical contractarian arguments of unanimous consent will not deliverthose criteria the whole burden of normative argument must be shifted. A generalpreference for forms of private organization over government organization, for exitover voice, for freedom over loyalty may express the relevant normative commit-ments best. There is a western ideal of the good life that simply states that we shouldlet others decide themselves as far as possible and that we would like to be left aloneourselves by collectives if we chose so. I think that contractarianism, if the term isinterpreted more ‘‘liberally’’, does in fact boil down to such a broad orientation. Butif so, then other principles as for instance the so-called principle of subsidiarity maybe more instructive in expressing the relevant ideals of organizing a free society thanany notion of unanimous agreement. With Abraham Lincoln’s classic words

The legitimate object of government is to do for a community of peoplewhatever they need to have done but cannot do at all, or cannot do so wellfor themselves in their separate and individual capacities. In all that peoplecan do individually as well for themselves, government ought not to interfere.(Speech 1854)

Subsidiarity may be seen as a kind of ‘‘internal federalism’’. According to thatprinciple individuals may form ‘‘clubs’’ – in the sense of Buchanan’s theory of clubs –that provide collective goods for their members. Moreover, pushing the argumentslightly further we can look at societies as a whole as if they were clubs. Traditionally


such a conceptualization of society has been seen with great skepticism by many.Nevertheless, it is clearly a viable option for the contractarian who insists on realconsent to base his argument on implicit agreement as expressed by remaining amember of a club. So let us turn to this ‘‘club’’ contractarianism which has a longtradition in philosophy and social theory.

4.3. Club Contractarianism or Shades of Gray

Club contractarianism assumes that individuals express their agreement with a legalorder by either not emigrating or not joining. The social contract is implicit ratherthan explicit. But according to the adherents of this version of contractarianism ithas the same force as a source of legitimacy as full-fledged explicit contractarianism.Those who remain members of a club that they could have left are bound by thebylaws and statutes of that club. If there was no breach of rules and issues have beendecided according to the rules of the club then there is a legitimate expectation thatclub members will comply with what the club specifies – or so it seems.Club contractarianism has a long history in social discourse reaching from the

emigration argument of Socrates in Plato’s Crito to Nozick’s ‘‘framework for uto-pia’’, Hirshman’s categories of ‘‘exit, voice and loyalty’’, or, for that matter,Thiebout’s federalism. The argument has some force but less than its adherentsassume. First, if people did indeed join the club by an explicit act as in case of theimmigration to the U.S. we might want to say that they are bound to that agreementno matter what. But this will not be true for second generation immigrants who areborn into membership. As towards them the argument that they have bestowed thepower to enact rules and to fix decisions on those who rule seems even more pre-carious than as towards first generation club members. Second, as a justification ofthe state or of government per se club contractarianism has not much bite sinceindividuals could hardly emigrate into a state free zone of anarchy (in a world inwhich governments as a matter of fact do exist and occupy the surface of the wholeearth). Third, if the rules of rule enactment in a club are used for evil purposes couldwe say that club members who did not exit immediately – and how could people dothat – have by not leaving given their assent? As compared to all normal uses of theterm agreement or assent this seems very far-fetched. Fourth, in a free society therewill hardly be any measure of collective importance to which not some dissent isvoiced. Therefore on the individual level the contractarian norm of unanimousagreement must exclusively rely on the exit option.If we go back to Plato and the original emigration argument we become imme-

diately aware of the problem that an individual is modeled as having agreed to therules of a community by non-exit regardless of how weird the rules might be. Plato’sdialogue can in fact be read as a ‘‘reduction to the absurd’’ argument against clubcontractarianism. To see why, recall that Socrates argues that he by not emigratinghas given his assent to whatever comes out of the procedural rules of the politicalsystem of Athens. According to this logic Socrates is under a contractual obligationto die. For Plato who did not accept the democratic system of Athens at all this use

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of the emigration argument in club contractarianism must been patently absurd. Buteven for a democrat it is implausible to base a contractual obligation to obey the lawon the omission of acts of emigration. To give another example, were Jews whoremained in the Weimar Republic thereby bound to accept the authority of the Nazis(who, arguably, got into power according to the rules of rule change of the oldsystem)? To use omission of emigration independently of all substantial criteria as asufficient argument for the legitimacy of collective action seems far fetched.Still, one can make the point that we should not think of real contractarian

agreement as a dichotomous quality that is either present or not. Agreement and freeconsent come in ‘‘shades of gray’’ rather than as a ‘‘black and white quality’’. Tostart with the black side of the spectrum, one could say that there is always someconsent and thus agreement of a very weak kind. The normative force of theomission of emigration or of non-exit is then ranked as a function of the freedom todisagree. According to this view the most evil and oppressive governments of sayStalin, Hitler or Sung Il can still have some legitimacy from consent. Even in suchsystems there must always be some individuals who are voluntarily acting on behalfof the dictator because otherwise he could not keep in power and reign. And theordinary citizen by not engaging in acts of violent resistance, by not trying to shoothis way out of the country etc. is expressing implicitly a minor kind of consent to theregime. (To opt for life in slavery rather than death was once seen as some sort oflegitimization of enslaving those who lost a war.)To render the argument more general and more specific at the same time let us

assume that an individual who did not exit or dissent at costs c from a polity therebyexpresses consent of value 1/c. With this measure in hand we can construe a contin-uum of polities reaching from the ‘‘black’’ extreme to the ‘‘white’’. Each allows for lesscostly exit or dissent options. Let us for the sake of illustration assume that it is in factone and the same community that transforms in the course of time along the notionalblack to white spectrum from totalitarian oppression to a more and more free society.The club contractarian envisioned here then would have to say that real agreement togovernment at each of the stages of the process grows. The contractarian legitimacybecomes stronger and stronger. At each stage the club contractarian has a measure ofthe legitimacy of the political rules in place. At each stage the status quo that is reachedis seen as increasingly legitimized to the extent 1/c by implicit consent (omission of exitat cost c).

The following observations may deserve noticing

1. The strength of the legitimacy derived from agreement completely hinges on howfar we have approached a free society and how low the costs c became.

2. To maximize the force of implicit agreement we must pursue exactly the projectof classical liberalism and maximize liberty. That is, to further instances foragreement becomes an aim or end of constitutional choice rather than the sourceof legitimacy of such choice.

3. Agreement – at least not unanimous agreement – does not guide the constitu-tional process that aims at reducing c or, inversely expressed, agreement is not at


root of the constitutional process that aims at increasing the occasions forexpressing dissent or disagreement at lower and lower costs.

4. In club contractarianism agreement can be read off only ex post. If consent comesforward in the sense that individuals are not exiting the club then any impositionof rules in and by the club is legitimate to the extent c (and even more so if theimposed measure reduced c).

After the foregoing description the differences between club contractarianism andliberal conservatism are very minor. Both look at the status quo of a free society asbasically legitimate because it is the status quo of a free society. The differences arecomparable to those between a theist who conceives of God as an abstract power orcause of all things without ascribing any personality to that entity and an atheist whomerely refrains from calling the alleged cause of the universe God. There is a verbalbut no substantial difference.Club contractarianism avoids standard problems of contractarianism as far as it is

reduced to liberal conservatism. However, if we take contractarianism more seri-ously than club contractarians then traditional problems crop up again: If we cannotuse the criterion of real unanimity because there simply is no instance of it, how canwe then distinguish in contractarian ways between just-transformations and othertransformations of a status quo? For instance, should we say that a transformationimposing something on a single person is unjust because it violates agreement as anecessary condition? If we are true individualists can it be more unjust if two ormany individuals suffer from such impositions rather than only one? Is there incontractarian terms a qualitative difference between violations of different numbersof individuals? Should the numbers count to determine shades of gray and does thatleave us with any of the original force of contractarianism in which the veto figuredso prominently? These questions remain unresolved by club contractarianism andusing the term contractarianism for club contractarianism leaves them at that.As indicated the term contractarianism is in the context of ‘‘club-contractarian-

ism’’ not better justified than the use of the term God among the so-calledenlightened believers. It must be noted however that, as in the case of religion theterm God, the term contract can be used as a vehicle for transporting certain ideasthat go much beyond what is warranted by reason. Whether such usage be good orbad it is political rather than philosophical.

5. Conclusions

If present and acknowledged as sufficient the consent of all concerned can render thetransformation of A into B and the result B of the transformation justified. Necessityof unanimity amounts to veto power of each concerned. It rules out private decisionsof any proper sub-group to go forward without the agreement of others and therebyputs everything in the collective domain of decision-making (see Kliemt 1994b).22

This feature of contractarianism emerges because unanimous agreement is needed to

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justify the contractarian claim of inter-subjective validity of the contractarianargument as against any opponent. In that regard unanimity serves as the ethicalnon-cognitivist’s substitute for the traditional ethical cognitivist’s claim to inter-subjectively valid ethical knowledge.That contractarianism is going strong among economists is presumably related to

the fact that economists tend to be meta-ethical non-cognitivists who subscribe to theview that rationality can tell us about the right choice of means to given ends but mustremain silent about the ends themselves (a view echoing Lionel Robbins’ famousstatement to the same effect in which he expressed that normative economics is aboutmeans-ends relations rather than about ends, see Robbins (1932/1984)).23 At the sametime economists would like to have an inter-subjectively valid argument in hand todecide fundamental practical matters. But the ideal of liberty of individuals to arrangethings by agreement can be pursued without unanimous agreement. It is an ideal or avision of the good life and if we have to impose that vision on others why not?Certainly I myself would join the contractarians in supporting the Western ideal of afree society but I would part company if some of the more specifically contractarianclaims about supporting that ideal by agreement are made. With Buchanan I shareformal conservatism, the epistemological perspective (non-cognitivism) and a pref-erence for liberty (classical liberalism, principle of subsidiarity, respect for individualautonomy). These are substantial values that I and he accept. At the same time Ihesitate to refer to my position as contractarian since I feel that the term ‘‘socialcontract’’ has connotations that make us less aware of the fact that politics is in theend always about coercion. Though politics cannot be based on contract andagreement, good politics is about minimizing externalities as emerging from impo-sitions of values. Clearly the ideal of enlarging what may be called ‘‘the realm of non-imposition’’ is at root of the Buchanan enterprise. If that is contractarian rather thanconservative libertarian so be it. But let us not forget that even the meta-ethical non-cognitivist cannot substitute substantive values by formal agreement notions. In theend a good society must be based on substantive values even if those express pref-erences for procedures and raise no claim to knowledge.

Notes

1. Paper prepared for the ‘‘Blacksburg continuing colloquium’’. I thank in particular H. G. Brennan,

J. M. Buchanan, D. Mayo, N. Reynolds, A. Spanos and V. Vanberg for their often rather strongly

critical comments at the conference. Alan Hamlin’s written suggestions were extremely helpful in

improving the paper – of course the conventional disclaimer applies.

2. The view on contractarianism presented here is one-sided since it intends to deal specifically with the

status of the status quo in contractarianism. For a more balanced account looking at contractarianism

through a different but related window, see Hamlin (2001).

3. At least an ethical non-cognitivist as Buchanan or I could not object that we know the agreement to be

wrong from independent sources of cognition.

4. Of course this example echoes what has become known as the survival lottery; see in particular Harris

(1975), Kliemt (1994a), for the quite fascinating details of cadaveric kidney allocation as a sponta-

neous institutional arrangement stemming from private initiative see Ahlert and Kliemt (2001).


5. At least in foro interno of our opinion formation and perhaps in foro externo in low cost expressive

acts at the voting booth; see Brennan and Lomasky (1983, 1985, 1993), Kliemt (1986).

6. Anthony de Jasay makes the same argument about justice, see Jasay (1996).

7. Otherwise we would be doing to agreement what the Marxists used to do to the word freedom.

8. What to do with future individuals who are yet unborn and individuals who have already died? Should

we say that they have no moral weight?

9. In a weaker formulation one would say that any Pareto superior move from A to B as determined by

the actual consent of all individuals is alright even though B might not be because the starting point A

was inacceptable. Again I prefer the stronger formulation that agreement per se is a sufficient con-

dition. Pareto-superior moves that are based on unanimous consent lead to a full justification of B as

standing alone since the other view is covered by type 4 contractarianism.

10. For instance we may be of the opinion that there is no anarchic equilibrium after large scale social

organization has been invented.

11. Horacio Spector made me aware that there may be a structural relationship to John Mackie’s ref-

erence to Stove’s notion of an ‘‘inus’’ condition (an insufficient, non-redundant, unnecessary part of a

sufficient condition), see Mackie (1974). Clearly non-violable constitutional rights may be seen as

expressing a veto for individual right holders under certain conditions.

12. See on this precarious way to bring normative argument closer to factual argument Daniels (1979),

Hahn (2000), Rawls (1951, 1971).

13. Quite clearly in the thought of the later Hayek the status quo is there for good reasons. That it exists

indicates success in evolutionary selection. It is no mere ‘‘convenience’’ to start form the status quo

since there are forces that brought it and can keep in existence.

14. This is one of Watkins’ ‘‘all-and-some’’-sentences guiding our intellectual activities on a fundamental

practical level – an even more fundamental being ‘‘every effect has a cause’’. The ‘‘some’’ part is not

falsifiable – one might not have searched long enough for the efficiency reason – while the ‘‘all’’ part is

not verifiable – there may come up structures of a different kind.

15. That states are efficient, of course, rules out the hope for Pareto superior moves and thus change based

on real consensus. That the status quo position may form an equilibrium, for example an evolu-

tionarily stable one, seems plausible in cases in which adaptation had time to run its course. But even

then that would be true only in a backward looking manner relative to a given set of rules that might

be changed in Pareto superior constitutional choices as Buchanan has always rightly claimed. Finally

whether an equilibrium is reached and whether it is efficient are two completely different matters. Even

in the case of conventions with common interests risk dominance quite often seems to rule out

efficiency and therefore suggest some kind of efficiency enhancing constitutional intervention, see

Berninghaus, et al. (2002).

16. Needless to say that Niklas Luhmann expressed views very close to that.

17. In efficiency terms, the status quomay be inefficient but we still accept it as a starting point that may be

changed only consensually.

18. The parallel with a legal rule of recognition in Herbert Hart’s sense is of course entirely intended, see

Hart (1961).

19. There may be diverse reasons for that. For instance we may believe that we have a stronger interest in

the existence of some commonly known and accepted starting point than in what it is like, but there

may be other reasons as well.

20. Of course, in the Calculus the focus is on externalities whereas here it is on conservatism but regardless

of this re-interpretation the structure of the argument is similar, see Buchanan and Tullock (1962).

21. See on the problem of abilities and freedoms for instance Jasay (1991), Spector (1992).

22. As quite clearly stated in the Calculus of Consent the necessity of getting the assent of all minimizes

the externality from impositions at the cost of maximizing the externalities stemming from inabilities

to act. Contrary to Buchanan I would interpret this insight of the Calculus and the trade off model of

selecting a majority parameter as a statement of the limits of contractarian argument.

23. Many economic theorists have claimed that a non-cognitivist should be less inclined to exert moral

externalities (positive or negative) on others because she is skeptical about her own knowledge claims

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in practical matters. However, there is no ‘‘systematic’’ reason why a non-cognitivist should be more

inclined to be tolerant or liberal in her dealings with competing views than a cognitivist. Quite to the

contrary, a non-cognitivist has good reason to impose externalities on others if her interests should

recommend that as a means of having her way. Likewise a cognitivist (like Kant) who believes to

know that respecting other individuals is the right thing to do has a good (in his view) cognitive reason

to be tolerant or liberal.

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contractarianism as liberal conservatism: buchanan's unfinished philosophical agenda

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