The State by Anthony de Jasay (25 page)

3.2.2
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Author: Jasay, Anthony de Title: The State

Anthony de Jasay

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3. Democratic ValuesHow Justice Overrides Contracts
If rational people wish the state to override their bilateral contracts, they must be arguing from equality to justice rather than the other way round.

1. A "scheme of social cooperation" need not be bought twice, first with rewards for burdens, second with a social contract to redistribute the rewards.
   
 

2. Let us revert to the idea of a society where individuals have title to their property and to their personal endowments (capacity for effort, talents) and are free to sell or hire them out on voluntarily agreed terms. Production and distribution in such a society will be simultaneously determined, in the proximate sense, by title and contract, while its political arrangements will be at least closely constrained (though not wholly determined) by the freedom of contract. Only the capitalist state, with the meta-political ends we attribute to it to keep it in its place, can be comfortable within such constraints. The adversary state, whose ends compete with those of its subjects and which relies on consent to gain and keep power, must proceed by breaking them down. In the limiting case, it may substantially abolish title to property and the freedom of contract. The systematic manifestation of this limit is state capitalism.
   
 

3. Short of this, the state will override people's bilateral contracts in the name of a social contract. The policies effecting this will, as far as the coincidence is feasible, serve the state's own ends and help realize democratic values. Broadening the franchise and redistributing income are two typical policies of this sort, though others, too, may achieve a degree of the desirable coincidence. At all events, such policies will in general be capable of being
   

interpreted as maximizing social utility or justice or both, and since these maximands are recognized as ultimate ends (requiring no justification or supporting argument in terms of other ends), the policies will claim to be rational for society as a whole.

1. The interpretation of a policy as ipso facto a maximizing one is a tautology if it depends on the underlying interpersonal comparisons having been favourable to it; for such an assertion is by its nature incontrovertible. By contrast, when it takes the risk of being more than a tautology and invokes conformity to some substantive rule (which cannot be twisted and "interpreted," but can be seen to be either observed, or breached) like "to maximize utility, equalize incomes," "to maximize justice, override contracts in favour of the least advantaged," "to maximize liberty, give everyone the vote" or more cautiously phrased variations on such themes, the claim that the corresponding policies are rational stands or falls with the theory that yielded the rule.
   
 

2. Moved by such considerations, I shall now attempt to try out some implications of one democratic theory that was elaborated over the 1950s and 1960s by John Rawls and finally set out in his Theory of Justice. My choice is dictated, among other reasons by its being, to my knowledge, the only fully fledged theory within the liberal ideology of the state as the prime instrument of the justice of rewards and burdens.*27 The state receives an irrevocable mandate from the parties to the social contract, and hence has unlimited sovereignty, to give effect to the principles of justice.
   
 

3. One way of characterizing Rawls's concept of justice and approaching his conception of it (for the distinction, see his p. 5)
   

is to suppose that at the end of any particular day people have become parties to all the feasible contracts they would like to enter into. Some will then sit up and reflect as follows:*28

So far, I have done as well as circumstances allowed. Others more fortunately situated have done better, though those less fortunate have done worse. Tomorrow, circumstances will have changed and I might do better or worse with new contracts. Some of my old contracts may work out nicely, but others might not look too good under changed conditions. Would it not be "rational to insure (myself) and (my) descendants against these contingencies of the market"? (p. 277, my emphasis). I would then have an "out" for each time I thought that my contracts were not treating me right.

As a matter of fact, I do think so now, for I feel disadvantaged by having less property and personal endowments than some others. I should like to see institutions of justice which would ensure that when my contracts provide me with "rewards and burdens, rights and duties" which I consider less than fair, they should be adjusted in my favour. It is true, come to think of it, that every one of my contracts has another party to it, and if a contract is overridden in my favour, it is overridden in his disfavour. Now why should he agree to a "background institution" which deals with his contracts in this way just when they are the fairest to him and he is happiest about them? Would I agree to it in his place? I would need some inducement, and surely so does he; I am quite happy to offer him something and I hope we can work something out, because without his consent, which must remain binding forever, the background institution I covet will not click into place.

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This looks a candid paraphrase of that part of Rawls's theory which ought to lead to his "contract situation," i.e. to cause the parties in the state of nature (who are assumed to be self-interested, non-altruistic and non-envious) to solicit each other to negotiate a social contract, a sort of omnilateral super-contract ranking above and, in case of conflict, overriding bilateral contracts.*29 Even before starting to wonder about what might be the next step, the substantive content ("the principles of justice") of the social contract, it is pertinent to ask how to create a "contract situation" if someone, whether or not fortunately situated, declines to see the point of negotiating at all? Can this not happen? Can he not argue, (a) that he is doing all right as it is, and will not try to do better under a social contract at the risk of having to accept to do worse? and (b) that the moral position to take about the justice of social arrangements (of which the division of labour is one) is for everybody to keep his word, whether or not it would be to his advantage to go back on it?

3.3.7 Argument (b), for all its Old Testament flavour, is at least consistent with Rawls's requirement that people must have a sense of justice (p. 148). The two arguments (a) and (b) seem to me to provide a quite Rawlsian rationale for prudently staying put and refusing any negotiation which would, in exchange for advantages or inducements to be defined, release others from their contractual commitments. The alternative is the state of nature, with "finders are keepers" in place of the "principles of justice." At this stage, we cannot infer from anything that one is juster than the other, for the sole criterion of the justice of principles on offer is that, given
the appropriate conditions, they would be unanimously chosen. However, appropriate conditions will not evolve through voluntary cooperation, and therefore people will not all wish to negotiate a social contract, if some have rational cause for abstaining.

1. Rawls's key assertion, that "willing social cooperation" yields a net advantage, might perhaps prevent the theory from stopping short in this way. The advantage must manifest itself in an increment of society's index of "primary goods" (provided no one makes a fuss about problems of aggregating such "primary goods" as authority, power and self-respect) for no other advantage would be recognized under Rawls's theory of the good. Unless reflected in an increase in primary goods, there are no such advantages as "greater social harmony" or "no class hatreds." This increment could presumably be distributed so that nobody was worse off and some were better off than under the distribution that is mutually agreed as plain, de facto cooperation unfolds.
   
 

2. Let us, therefore, revert to the ambition of a person B who wants to induce another person A to negotiate a social contract with power to override bilateral contracts. Under the latter, A and B (like everyone else) are already engaged in a scheme of social cooperation, producing a volume of primary goods and sharing them according to what Rawls calls a "natural distribution" (p. 102). Each scheme of cooperation is predicated on a distribution, meaning that the resulting volume of primary goods must be wholly distributed to call forth the sort of cooperation in question. The natural distribution corresponds to de facto social cooperation.
   
 

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Might not, however, another distribution call forth not merely de facto, but also willing social cooperation, of a sort that would yield an increment of primary goods, compared to the de facto one? This can, perhaps, be expected "if reasonable terms are proposed," on which "those better endowed, or more fortunate in their social position, neither of which we [sic] can be said to deserve, could expect the willing cooperation of others" (p. 15). Now if B wants to create a "contract situation," he must convince A that if he were assured more reasonable terms than he is, or is liable to be, getting in the natural distribution, he would cooperate more willingly; his greater cooperation would yield an increment to pay for his "more reasonable" (in the sense of more favourable) terms; and there would be a little something left over for A, too. But can he really deliver the required increment?

1. If he is not bluffing, i.e. if he is both capable and prepared to deliver it, and if the special terms he demands for doing so do not cost others more than this increment, he would already be producing it and he would already be getting the special terms under ordinary, bilateral contracts, for straightforward reasons of market efficiency. He would already by cooperating more willingly for better terms. That he is not, and his contracts do not already incorporate such better terms, is proof that the social contract, interpreted as redistribution in exchange for greater social cooperation, cannot be the unanimous preference of rational persons already cooperating and having agreed to a natural distribution.
   
 

2. Whether those better endowed deserve it or not is, in Rawls's system of choice criteria, irrelevant. The "advantages of social cooperation" are looking very much like something of which everybody is already getting as much as he chooses to pay for.
   

They are insufficient bait to lure him away from the mutually agreed natural distribution and into the social "contract situation." The extra quantity of primary goods that greater social cooperation with its attendant just-distributional requirements, is claimed to yield, can only be forthcoming by redistributing more than the extra quantity obtained (so that at least some must lose).

1. What are we to make of Rawls's contrary assertion that "representative men do not gain at one another's expense... since only reciprocal advantages are allowed" (p. 104)? In a reasonably functioning market, prevailing terms reflect all the reciprocal advantages that can be got. How, by acting on what parameter, does the social contract, with its terms which "draw forth willing cooperation," alter this? If Rawls means the assertion to be one about facts, it is either wrong or unverifiable. (It is the latter if it depends on the purported distinction between willing cooperation and de facto cooperation being what we wish it to be; for instance, willing cooperation would mean a dream world of doubled productivity, no strikes, no inflation, pride in workmanship, no alienation and no command-obedience relation, while de facto cooperation is the poor, shoddy, muddled, unproductive, futile and alienated world we know.) If, on the other hand, it is to be an arbitrary frontier of the area within which the argument is applicable, the theory shrinks to total insignificance.
   
 

2. Still less can the theory get going on the strength of the mere desire of some people to persuade others effectively to let them out of this unattractive situation, though it is the best they could have chosen, and concede more attractive terms under an overriding super-contract. Whichever way we turn it, it is impossible for everybody both to have and not to have conflicting
   

interests, to choose a set of contracts and unanimously to prefer another.

1. Why, however, should we accept the (historically quite unsupported) postulate that the yield (in primary goods) of social cooperation increases as better-than-market terms are offered to the less-advantaged? Why do the better-endowed have to propose "satisfactory terms," in the form of redistribution topping up the rewards afforded by the market, seeing that they are already getting all the cooperation which "terms" can advantageously buy them?*30
   
 

2. And if special, better-than-market terms have to be offered by someone to somebody else to draw forth his "willing" cooperation-which seems totally unsubstantiated-why is it the better-endowed who must do the offering? Nozick took a machine-gun to shoot this sitting duck to shreds, showing that if there is any argument about this, it must be symmetrical and cut both ways.*31 Maybe, if cooperation, or its degree or extent, is in doubt or jeopardy for some unexplained reason, it is the worse-endowed who would have to offer special terms to get the better-endowed to go on cooperating with them (for, as the bitter joke goes, the one thing worse than being exploited is not being exploited at all).
   
 

3. Rawls's book provides no answer why new terms should be necessary or, which seems to amount to the same thing, why rational non-altruists would all accept, let alone seek to negotiate about, distributive justice. It does have a curious answer to why, if overriding terms are necessary, it is the rich who will concede them to the poor rather than the other way round or in some other,