The constitution of nondomination

Social Philosophy and Policy

Volumn 28, Issue 1, 2011, Pages 261-289

  Pincione, Guido ^a  

^a UNIVERSIDAD TORCUATO DI TELLA   (Argentina)

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EID: 79551572773     PISSN: 02650525     EISSN: 14716437     Source Type: Journal    
DOI: 10.1017/S0265052510000130     Document Type: Article

References (102)

1. See Philip Pettit, "Freedom in the Market," Politics, Philosophy, and Economics 5, no. 2 (2006): 131-49, esp. 144-46.
2. For a contemporary defense of this view, see Loren Lomasky, Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987).
3. For a historical and analytical discussion of the differences between the classical liberal and republican conceptions of freedom, see Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997), 17-126.
4. John Stuart Mill famously argued in On Liberty (1859), chap. V, that slavery contracts are void because the person who sells himself as a slave "defeats . . . The very purpose which is the justification of allowing him to dispose of himself," namely, "consideration for his liberty."
5. I am simplifying a lot here. For detailed analyses, see Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford University Press, 1969), 118-72;
6. Lawrence Crocker, Positive Liberty (The Hague: Martinus Nijhoff, 1980);
7. Gerald MacCallum, "Negative and Positive Freedom," Philosophical Review 76, no. 2 (1967): 312-34;
8. and Horacio Spector, Autonomy and Rights: The Moral Foundations of Liberalism (Oxford: Clarendon Press, 1992), 9-63.
9. For an interesting attempt to show that the republican and negative conceptions of freedom are vulnerable to objections that do not confront "freedom as the nonobstruction of planning" (i.e., something close to personal autonomy), see Steven Wall, "Freedom as a Political Ideal," Social Philosophy and Policy 20, no. 2 (2003): 307-34.
10. Pettit, "Freedom in the Market," 132-38.
11. See also Christian List, "Republican Freedom and the Rule of Law," Politics, Philosophy, and Economics 5, no. 2 (2006): 201-20, at 202 (noninterference is neither sufficient nor necessary for republican freedom). Nevertheless, republican freedom does entail the absence of arbitrary interference.
12. Pettit, "Freedom in the Market," 132-38.
13. Legal realists equate legal rules with certain facts, e.g., judicial decisions. Were they right, I would say that, while negative freedom and personal autonomy consist in nonlegal facts, nondomination consists in those facts which, according to legal realism, are identical to legal rules against arbitrary interference.
14. For a discussion of the variety of meanings of "monopoly," both in economics and in public political discourse, see Murray N. Rothbard, Man, Economy, and State, rev. ed. (Auburn, AL: Ludwig von Mises Institute, 1993), 587-95.
15. An increase in the number of suppliers of an essential good, as well as the new options thus created for consumers, are facts, as opposed to rules or norms, but some such facts have legal consequences. Thus, an increase in the number of suppliers of a certain type of good entails that consumers acquire the legal power to buy elsewhere that type of good. So the thesis that competition averts domination does not involve a shift toward a (purely) factual (including probabilistic) notion of domination, which I, following Pettit, rejected in the previous section.
16. See Christine Swanton, "On the 'Essential Contestedness' of Political Concepts," Ethics 95, no. 4 (1995): 811-27.
17. I explore the tension between essential contestability and the rule of law in Guido Pincione, "Market Rights and the Rule of Law: A Case for Procedural Constitutionalism," Harvard Journal of Law and Public Policy 26, no. 2 (2003): 397-454. In addition to essential contestability, there is what I call "causal" contestability, i.e., persistent disagreement among reasonable persons regarding the most effective ways of bringing about outcomes mandated by the constitution, such as decent housing for all under a constitutional right to decent housing (ibid., 413-15). The present essay counts as evidence, I think, for the claim that freedom as nondomination, in addition to being an essentially contestable conception of freedom (which in turn is, as I pointed out in Section I, an essentially contestable concept), is causally contestable-unless we believe that Pettit and the other writers who claim that some forms of statism fare better than the free market on a scale of domination are uncontroversially correct or mistaken.We will see in Section IV.B why it is important for constitutional design that freedom as nondomination be itself (i.e., as distinct from freedom simpliciter) an essentially contestable notion.
18. Dworkin defends the right-answer thesis in, for example, Ronald Dworkin, Law's Empire (London: Fontana Press, 1986).
19. For another defense of interpretive determinacy, see Gerald F. Gaus, Contemporary Theories of Liberalism (London: SAGE, 2003), 106-8.
20. I do not think that confining the authority of legislators and judges to arbitration among reasonable interpretations of constitutional rules would impose a significant restriction on the scope of my argument. For the notion of reasonableness is itself de facto contestable.
21. Hence, it is utopian to hope that public policies will enjoy consensual support, and for that reason will not evince domination, if policymakers publicly defend them with arguments that they sincerely believe no one will reject on reasonable grounds. See Gaus, Contemporary Theories of Liberalism, 136-40.
22. See Guido Pincione and Fernando R. Tesón, Rational Choice and Democratic Deliberation: A Theory of Discourse Failure (New York: Cambridge University Press, 2006).
23. Tesón and I discuss democratic consent in Rational Choice and Democratic Deliberation, 204-11.
24. According to Pettit, "I control the interference of the state [and so make it nonarbitrary] so far as that interference is forced to track the interests that I am disposed to avow in common with my fellow citizens" ("Freedom in the Market," 136). If Tesón and I are right, this condition is not met by Pettit's advocacy of various sorts of regulations of markets, as stated, for instance, in the following passage: "Let freedom as non-domination be a central ideal in political life and not only will it be likely to make a case for a variety of forms of regulation, it will also explain how regulation by a coercive state need not be viewed with quite the reluctance that other ideals would generate" Rational Choice and Democratic Deliberation, (ibid., 147).
25. Tesón and I argue that the discursive pathologies of nondemocratic or nonliberal polities will be more severe than those we diagnose in liberal democracies.
26. See Pincione and Tesón, Rational Choice and Democratic Deliberation, 244-46.
27. Wouldn't subsidization by lotteries evade the objection that subsidies cannot help being arbitrary? No, because any characterization of the class of suppliers that the state ought to subsidize will be sincerely contested by some reasonable citizens: they would contest, for instance, whether candidates for the subsidies are to be characterized in terms of the structure of their corporate governance, the nature and price of their products, or the location of their plants.
28. See Pincione and Tesón, Rational Choice and Democratic Deliberation, 194-98, 211-13, and 224-27. The critique of theories of "deliberative democracy" that we mount in that book applies to those versions of republicanism that deny that state interference is arbitrary when it occurs after an open deliberative process that somehow weighs fairly everyone's interests.
29. For a different critique of those versions of republicanism, see Geoffrey Brennan and Loren Lomasky, "Against Reviving Republicanism," Politics, Philosophy, and Economics 5, no. 2 (2006): 221-52.
30. Thus, while Owen Fiss thinks that a constitutional protection of free speech warrants a variety of restrictions on private property, Milton Friedman argues that only a strong protection of private property, and the market freedoms it entails, can afford the amplest opportunities for free speech.
31. See Owen Fiss, The Irony of Free Speech (Cambridge, MA: Harvard University Press, 1996);
32. and Milton Friedman, Capitalism and Freedom (Chicago: Chicago University Press, 1962), chap. 1.
33. The very notion of private property is in turn contested, as shown by such divergences as that between Richard Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985);
34. and Cass Sunstein, The Partial Constitution (Cambridge, MA: Harvard University Press, 1993), chaps. 1-6, on the constitutional underpinnings of the regulatory state in the United States.
35. Leif Wenar offers a nice discussion of the changing interpretations of the takings clause by the U.S. Supreme Court in Wenar, "The Concept of Property and the Takings Clause," Columbia Law Review 97, no. 6 (1997), 1923-46.
36. Authoritarian regimes characteristically repeal constitutional bans on presidential reelection-procedural rules, in my terminology. Interestingly, such regimes take care to follow quite cumbersome procedural rules for the requisite constitutional amendment, even though they feel no social pressure to refrain from jailing dissidents, confiscating hostile newspapers, and taking other tyrannical measures that violate substantive constitutional protections of free speech and other civil liberties. It would seem that tyrannies manage to retain, at least in the eyes of many, an aura of constitutional/democratic legitimacy by abiding by procedural rules only. The 1949 constitutional amendment under Juan Perón in Argentina illustrates this point: ample majorities in the Senate and the House allowed General Perón to repeal the constitutional ban on reelection, thereby enabling his second presidential term and its attendant suppression of civil liberties. Interestingly, the military revolution (with considerable popular support) that deposed Perón in 1955 and banned the Peronist Party on the grounds that it supported "tyranny" (meaning the suppression of substantive civil liberties) was followed by several decades of frequent military takeovers, with Peronists urging the "end of dictatorship" (meaning the return of majority rule).
37. See Félix Luna, Perón y su Tiempo, 2nd unified edition (Buenos Aires: Editorial Sudamericana, 1993), esp. 217-42.
38. See note 11.
39. An example of the extensive literature in favor of this indirect form of utilitarianism is the early John Rawls. See his "Two Concepts of Rules," The Philosophical Review 64, no. 1 (1955): 3-32.
40. See James D. Gwartney and Richard E. Wagner, "Public Choice and the Conduct of Representative Government," in James D. Gwartney and Richard E. Wagner, eds., Public Choice and Constitutional Economics (Greenwich, CT: JAI Press, 1988), 29-56;
41. and Pincione and Tesón, Rational Choice and Democratic Deliberation, 8-64.
42. See Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994).
43. For a discussion of degrees of contestability of legal rules, see Gaus, Contemporary Theories of Liberalism, 75-77.
44. The concept of private property I am using here, and arguably the one assumed by the framers of the U.S. Constitution, takes the right to private property to encompass the rights to possess, use, exclude others from the use of, and voluntarily transfer a certain thing (e.g., by selling, donating, or bequeathing it). By definition, fraud renders transfers of property involuntary.
45. See Wenar "The Concept of Property and the Takings Clause."
46. Whether judicial balancing of conflicting rights makes an otherwise noncompossible system of rights compossible depends in part on how we conceive of a legal system. If we take judicial decisions and/or the doctrines they adopt, along with certain rules of precedent and legal hierarchy, as components of the legal system, then it may be possible to reconstruct a legal system whose general rules establish mutually conflicting rights as a compossible legal system. The argument that follows in the text does not turn on any specific view on such conceptual issues.
47. I assume that rational agreement on factual claims is easier to obtain than rational agreement on normative matters, yet I am not assuming moral skepticism. My argument purports to show that a regime of private property rights is less prone to domination than statist alternatives. For a detailed classical analysis of the notion of private property, or "full ownership," involved here, see Tony Honoré, "Ownership," in G. A. Guest, ed., Oxford Essays in Jurisprudence (Oxford: Clarendon Press, 1961), 107-47.
48. For illustrations of the idea that even abstract rights to property and contract have indeterminate particular applications, see Arthur Ripstein, "Authority and Coercion," Philosophy and Public Affairs 32, no. 1 (2004): 2-35, at 26-32.
49. For an overview of procedural constitutional rules that generate private property rights on particular things, with due allowances for the production of public goods (see Section IV), see James D. Gwartney and Richard Wagner, "Public Choice and Constitutional Order," in Gwartney and Wagner, eds., Public Choice and Constitutional Economics, 44-49.
50. For a seminal contractarian defense of procedural constitutional rules that protect market freedoms and help overcome market failures (see Section IV.B), see James Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor: University of Michigan Press, 1962).
51. Notice that economic approaches to constitutional design need not be procedural. Examples of largely substantive (and welfarist) discussions of the constitutional protection of market freedoms are Dennis Mueller, Constitutional Democracy (New York: Oxford University Press 1996), 209-36;
52. and Robert Cooter, The Strategic Constitution (Princeton, NJ: Princeton University Press, 2000), 241-308.
53. Murray N. Rothbard offers an argument of this sort in "Society without a State," in Tibor R. Machan, ed., The Libertarian Reader (Totowa, NJ: Rowman and Littlefield, 1982), 53-63, at 54.
54. For versions of this critique, see G. A. Cohen, "Capitalism, Freedom, and the Proletariat," in Alan Ryan, ed., The Idea of Freedom: Essays in Honor of Isaiah Berlin (Oxford: Oxford University Press, 1979), 9-26, esp. 12;
55. and Spector, Autonomy and Rights, 14-22, esp. 20.
56. Gaus embraces a presumption against nonmoralized interference, and takes it to be the kernel of the limited-government ideal advocated by classical liberals. Following Stanley Benn, he contends that "there is a basic asymmetry between you acting and another interfering with your actions" (Gaus, Contemporary Theories of Liberalism, 223). As it stands, this claim is not vulnerable to the circularity objection, because it refers to purely physical interference. However, some of Gaus's illustrations of the presumption against interference rely on a moralized conception of interference. Thus, he argues that "a specific national health care scheme could only pass the test of liberal legitimacy if there is a conclusive justification-a justification that no citizen has sound reasons for rejecting-that there be some sort of national health care. . . . If there is no conclusive justification for a principle or a type of policy, then the 'wait and see' stance seems dictated by the Liberal Principle: if thus far no conclusive justification has been given, then thus far no government action is justified" (ibid., 221). But is government not "taking action" when it protects people's private property rights to the resources that would otherwise be redistributed (typically, through taxation) to the national health care scheme? It would seem that at some point Gaus's argument shifts from a physicalist to a moralized notion of interference; to that extent, his argument for the sort of limited government praised by classical liberals is circular.
57. See Pettit, "Freedom in theMarket," 142;
58. and John Gray, "Against Cohen on Proletarian Unfreedom," in John Gray, Post-Liberalism: Studies in Political Thought (London: Routledge, 1996), 123-55, at 149-54;
59. reprinted from Social Philosophy and Policy 6, no. 1 (1988): 77-112.
60. For an overview of the economics of antitrust law, see Richard A. Posner, Economic Analysis of Law, 5th ed. (New York: Aspen, 1998), 309-46.
61. For the view that antitrust law is counterproductive, see Thomas Sowell, Knowledge and Decisions (New York: Basic Books, 1996), 202-13.
62. See also notes 52 and 53 below.
63. Publications such as the Index of Economic Freedom (http://www.heritage. org/Index/), by the Heritage Foundation and the Wall Street Journal, offer the kind of evidence that might be invoked by the argument I am considering.
64. See David Zimmerman, "Coercive Wage Offers," Philosophy and Public Affairs 10, no. 2 (1981): 121-45;
65. and Allen Buchanan, Ethics, Efficiency, and the Market (Oxford: Clarendon Press, 1985), 87-95.
66. Notice that free marketeers cannot say that wage offers constitute exercises of the right to private property, which entails the alienability of labor, and that for this reason wage offers are not coercive: that move would presuppose the very property rights that are in need of justification. Such an argument would therefore be guilty of the kind of circularity I diagnosed earlier in this section.
67. Indeed, such behavioral adjustments pose a serious threat to proposals such as an unconditional basic income, which might be thought to circumvent the worries about arbitrariness that affect traditional welfare schemes. For a related point, see the text accompanying note 18.
68. See David Schmidtz, "Taking Responsibility," in David Schmidtz and Robert E. Goodin, Social Welfare and Individual Responsibility: For and Against (Cambridge: Cambridge University Press, 1998), 1-96;
69. and Tyler Cowen, "Does the Welfare State Help the Poor?" Social Philosophy and Policy 19, no. 1 (2002): 36-54.
70. As Cowen argues, granting equal rights to immigrants would render welfare states financially unsustainable.
71. See Roderick Long, "Toward a Libertarian Theory of Class," Social Philosophy and Policy 15, no. 2 (1998): 303-49.
72. For a seminal rational-choice analysis of such asymmetries, see Mancur Olson, The Logic of Collective Action (Cambridge, MA: Harvard University Press, 1965).
73. See note 35, especially the reference to Sowell.
74. See also William C. Mitchell and Randy T. Simmons, Beyond Politics: Markets, Welfare, and the Failure of Bureaucracy (Boulder, CO: Westview Press, 1994), esp. chaps. 4-11.
75. See Thomas Hobbes, Leviathan (1651), Part II;
76. David Hume, Enquiry Concerning the Principles of Morals (1751), chap. IV and appendix 2;
77. and H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), chap. 5.
78. Hobbes, Leviathan, chap. XIII.
79. For an explication of the notion of potential explanation involved here, see Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 6-9.
80. Hobbes defends the rationality of obeying the law in his imaginary discussion with "the Fool," in Leviathan, chap. XV. Some of Hobbes's insights here anticipate modern analyses of iterated prisoner's dilemmas, as theorized by Robert Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984).
81. See also Russell Hardin, Liberalism, Constitutionalism, and Democracy (New York: Oxford University Press, 1999), 82-119;
82. and Gregory Kavka, Hobbesian Moral and Political Theory (Princeton, NJ: Princeton University Press, 1986), chaps. 3-6.
83. The metaphor of the invisible hand was famously introduced by Adam Smith in The Wealth of Nations (1776), Book IV, ii.
84. See Olson, The Logic of Collective Action;
85. and Robert Tollison, "Rent Seeking," in Dennis C. Mueller, ed., Perspectives on Public Choice: A Handbook (Cambridge: Cambridge University Press, 1997), 506-25.
86. That dominating power is exerted through intentional interference was implicit in my analysis in Section II. See also Pettit, "Freedom in the Market," 135;
87. and Guido Pincione, "Welfare, Autonomy, and Contractual Freedom," in Mark White, ed., The Theoretical Foundations of Law and Economics (New York: Cambridge University Press, 2009), 214-33.
88. The argument I am offering holds, mutatis mutandis, for a monopsony (i.e., a single buyer) as well. Thus, a single employer (i.e., a buyer of labor) can threaten disobedient employees with dismissal.
89. Such ability rests on the fact that the demand curve for the monopolist's output becomes more inelastic just above the competitive price, a fact that enables the monopolist to obtain, beyond that point, per-unit gains that are higher than required to compensate for a reduction in sales.
90. For a fuller, though still nontechnical, explanation, see David Friedman, Law's Order: What Economics Has to Do with Law and Why It Matters (Princeton, NJ: Princeton University Press, 2000), 244-46.
91. See Rothbard, Man, Economy, and State, 586-620 and 632-60. The relatively short history of the personal computer contains many examples of what David Friedman calls "serial competition," i.e., dominant (in a sense, monopolistic) products quickly replaced by other dominant products.
92. See Friedman, Law's Order, 259.
93. See Alan M. Feldman and Roberto Serrano, Welfare Economics and Social Choice Theory, 2d ed. (New York: Springer, 2006), 119-93.
94. For a simplified formal proof of the inefficiency of externalities-a major source of market failure-see Alan M. Feldman and Roberto Serrano, Welfare Economics and Social Choice Theory, 2d ed. 2006 ibid., 143-50.
95. Fernando Tesón and I defend standard rational-choice assumptions in Rational Choice and Democratic Deliberation, 65-86.
96. The realism and verifiability of the assumptions under which standard economics proves the inefficiency of monopolies have been questioned by the Austrian school of economics, as illustrated by Rothbard, Man, Economy, and State, 560-660.
97. See also note 35.
98. For a formal analysis of institutions that economize on virtue, see Geoffrey Brennan and Alan Hamlin, "Economizing on Virtue," Constitutional Political Economy 6, no. 1 (1995): 35-56.
99. These are provisions of the Argentine Constitution, section 14bis. (Section 14bis is a section introduced by amendment between sections 14 and 15.) 60 For a study of the capture of Argentine society by vast amounts of special-interest legislation dressed up in a rhetoric of constitutional rights, see Jorge E. Bustamante, La Argentina Corporativa (Buenos Aires: EMECE, 1988).
100. Notice that a free market, on the understanding of it that I adopted in Section I, excludes appeals to the types of rights illustrated by the passage from the Argentine Constitution quoted above.
101. See Amnesty International USA, http://www.amnestyusa.org/all-countries/ cuba/page.do?id=1011139; Freedom House, http://www.freedomhouse.org/template. cfm?page=22&country=7592&year=2009; and Human Rights Watch, http://www.hrw.org/en/search/apachesolr-search/Cuba.
102. See Robert Cooter, "The Rule of State Law versus the Rule-of-Law State: Economic Analysis of the Legal Foundations of Development," in Edgardo Buscaglia, William Ratliff, and Robert Cooter, eds., The Law and Economics of Development (Greenwich, CT: JAI Press, 1997), 101-48.