COERCION VS. INCLUSION
The rational choice insistence on not assuming that individuals evince any longterm prudential or other-regarding considerations consistent with Enlightened self-interest in decision making led John Rawls to break with both rational choice theory and his earlier claim in Theory of Justice that justice is the most important aspect of a theory of rational choice.[466] Rawls’s later idea of “the reasonable” pivots on the concept of fair play: “If the participants in a practice accept its rules as fair, and so have no complaint to lodge against it, there arises a prima facie duty...
of the parties to each other to act in accordance with the practice when it falls upon them to comply.”[467] It is thus reasonable to be committed to rules of conduct to which one consents, despite the fact that one’s personal payoffs for doing so in each and every instance may not calcul- ably be to one’s advantage. The gap between Rawls and Buchanan, and between classic liberalism and neoliberalism, arises because commitment and fair play cannot be readily defended within the narrow confines of rational choice theory. Commitment, required by Hobbes’s third law of nature, signifies following through with an agreement independent of externally applied coercive sanctions. Fair play entails abiding by rules to which one hypothetically consents, regardless of whether or not there are occasional opportunities for self-gain by exempting oneself from the laws one hopes govern all other actors.The assumption that all individuals are naturally seeking exclusion from laws and promises serves a particular function in neoliberal governance.[468] It permits the conflation of forms of crime that prey on the legally sanctioned system and forms of crime that exist despite the system. Public choice theorists, Buchanan included, see human beings as nothing but calculators that make cost-benefit analyses of each decision to determine what is to their own personal advantage, often expressed in dollars.
Therefore, it is a first principle in Buchanan’s assessment that each individual benefits from participating in a civil society regardless of resource distribution. His dedication to this assumption is evident in the quasi- interpersonally comparable rendition of the Prisoner’s Dilemma he places at the heart of the social contract.[469] No matter how small one’s share is, mutual cooperation is superior to mutual defection. Similarly - and this is key - no matter what one's share is, it is in each individual's equal interest to defect. Buchanan clearly articulates this point: “Once reached, one or all parties may find it advantageous to renege on or to violate the terms of contract. This applies to any assignment [of goods] that might be made.”[470] Accepting the universal rationality of defection is so important that Buchanan clarifies, “The tendency toward individual violation is not characteristic of only some subset of possible agreements.”[471] Neoliberal governance holds that no matter what the distribution of rights, all are alike in their motives to cooperate or to defect from that system of rights. Within this narrative, there is no categorical distinction between the poor individual with few legitimate opportunities and the wealthy banker: each alike has the ever-present incentive to cheat the system; each alike finds mutual cooperation to be superior to mutual defection.Buchanan continued his discussion of social disruption in his article “A Hobbesian Interpretation of the Rawlsian Difference Principle” (1976). In it, he observes, “Honest assessment of life about us should suggest that there has been an erosion in the structure of legal order, in the acknowledged rights of persons, and that, indeed, modern society has come to be more and more vulnerable to disruption and the threat of disruption.”[472] Buchanan finds Rawls’s difference principle, which strives to guarantee that all society’s institutions that are structured in accordance with inegalitarian distribution of resources must provide some benefit to society’s least-advantaged members, to be an attempt to ensure that pockets of disaffected individuals do not arise.[473] He thus, at first, treats difference principle as Hobbesian, because it strategically aids in securing social order by staving off disaffection.
However, ultimately, Buchanan recognizes that Rawls’s solution is different from his own, because it assumes that compliance with the system can be maintained through inclusion and through sharing the spoils of mutual cooperation. He is open about this divergence in the conclusions of public choice in contrast to progressive liberalism. According to Buchanan,
Parts of... [Rawls’] argument may be read to suggest that individuals should not abide by the distribution of rights assigned in the existing legal order unless this distribution conforms to the norms for justice. And persons in the original position should not agree on a set of social arrangements that are predicted to place strains on individual norms of adherence and support.[474]
For Rawls, compliance and the duty to comply are wedded to one’s sense of commitment to the social system; complicity in society demonstrates allegiance to its overriding principles.[475] Therefore, compliance is linked to tacit or express agreement to the terms of the social contract.
Looking back to the 1970s and Governor Ronald Reagan’s showdown with unruly protestors by engaging helicopters with tear gas as a means of crowd control, the impassioned political theoretic debate between Buchanan and Rawls set the stage for the ensuing neoliberal era of community policing via military technologies and mass incarceration for even pedestrian violations of law. In the mid-1970s, Buchanan, reaches the uncompromising conclusion that
[Rawls’] difference principle can be identified as emerging from contractual agreement in the initial position only if the participants make the positive prediction that leastadvantaged persons and/or groups will, in fact, withdraw their cooperation in certain situations and that the threat of this withdrawal will be effective.65
Buying in potentially disaffected parties via implementation of the difference principle is necessary to Buchanan only when enforcement fails.
In his view, the potential gains of mutual cooperation, despite disparate distribution, should be sufficient to secure cooperation when sanctions are used for enforce contracts. He writes,My own efforts have been directed toward the prospects that general attitudes might be shifted so that all persons and groups come to recognize the mutual advantages to be secured from a renewed consensual agreement on rights and from effective enforcement of these rights. Rawls may be, in one sense, more pessimistic about the prospects for social stability. [For Rawls, e]nforcement may not be possible unless the prevailing distribution meets norms of justice, and notably those summarized in the difference principle.66
Buchanan decisively concludes, “Whereas I might look upon the breakdown of legal enforcement institutions in terms of a loss of political will, Rawls might look on the same set of facts as a demonstration that the precepts of a just society are not present.”67 Rawls argues that consent and fair play flow from long-term prudential considerations and are necessary for and consistent with maintaining political stability via an ongoing process of inclusion guaranteed by the difference principle. By contrast, Buchanan looks to force to maintain law and social order without consideration of the distribution of individuals’ endowments. His justification of property rights based on existing endowments derived from the power of possession prior to incorporation into a civil society renders the constitutional moment one of leveraging terms through the coercive bargaining tactics of issuing credible threats. Since this forms the founding
rational choice theorists consider to be the PD structure of emerging from anarchy and maintaining the social contract was found to be inconsistent with strategic rationality; Theory of Justice, 1971, 265-270; for discussion, see Amadae, Rationalizing Capitalist Democracy, 2003, 258-273.
65 Ibid.
66 Ibid.
67 Ibid.
moment of organized society under sovereign rule, the socioeconomically empowered are justified and capable of manipulating the threat point of mutual defection to minimize the outcome for underprivileged individuals and to thereby have the wherewithal to negotiate a social contract favoring those with means.[476]
What is missing from the neoliberal view of governance is the crucial role of consent in legitimizing both the foundational practices grounding the exercise of personal autonomy, property rights, and voluntary contract characterizing the free trade and citizens participatory self-rule through democratic government. Although Enlightenment-era liberalism did not encourage the state to play a role in redistributing resources, it did rest on the firm assumption that in any contract setting, individuals’ consent to the terms of the agreement provides a rationale for their ensuing compliance with the contract. In neoliberalism, agreement does not play a role in motivating action.[477] Therefore, the content of terms, apart from its relation to the respective bargaining power of the participants, is immaterial. Virtually any terms may be enforced with sufficient force or “political will.” Thus, where Hobbes builds up from the voluntary two-person exchange with individuals obliged to one another to obey the sovereign and their own agreements, Buchanan builds up from the Prisoner’s Dilemma model of exchange to suggest that strategic actors will pursue personal gain as monads without the dyadic or collective cohesion to self-identify as one nation or public or to organize relationships without inviting external surveillance and enforcement to foster even one’s own conformity.
To be charitable to Buchanan’s line of thought, we can appreciate the neoliberal hope to study the interactions of self-interested agents, without assuming that they have concern for one another, as contemporary societies largely operate on faceless interactions. The Prisoner’s Dilemma construed as a multiparty problem seems well-suited to describe large joint actions in which it appears gratuitous to suggest that each acts to further others’ interests, as well as personal goals. However, the stakes in this debate are high. According to one view of the individual and society, each of us acts to maximize expected utility regardless of the effects on others. Law steps in as a public good that realizes prospects for joint gain when myopic self-interest would otherwise leave everyone worse off; law motivates by imposing penalties on would-be cheaters.