COERCIVE BARGAINING AND UNANIMITY

One is left with the impression that terms will be generated through coercive bargaining, and that sanctions will be threatened in accordance with terms that reflect agents’ strength, as demonstrated through their threat advantages.

In free markets, no individual is required to give up that to which he already has a legitimate claim. The unanimity rule provides each person with a veto over any policy that imposes net costs on him or anyone else. This feature of the unanimity rule is usually discussed favorably in the context of bargaining over the terms of the constitutional contract specifying the conditions of the move from anarchy to polity.¹⁴

Thus, according to Buchanan, possession precedes the social contract as a function of actors’ power to acquire and hold, which sets the basis for incor­porating that original state of access into a property rights regime. Second, negotiations take place according to the de facto power each individual has based on personal holdings.¹⁵ By putting together the idea that each individual has a set of pre-constitutional property holdings defended forcibly, and that these holdings provide each agent with a specific bargaining strength in nego­tiating the terms of the constitution, legislation, and individual one-off exchanges, the full implications of Buchanan’s position are apparent. His delineation of the Archimedean agreement that some form of government is jointly beneficial regardless of the specific terms enshrines pre-constitutional property rights gained by de facto power into a constitutional order that is sustained by applying coercive sanctions to maintain distributional differences negotiated by credible threats.

Buchanan is not overly concerned with the precise topology of differential allocations because he specifically privileges property rights in accordance with the status quo distribution. He tacitly assumes the legitimacy, or at least inevit­ability, of coercive bargaining or threat advantage at the same time that he argues that any distribution defended by the force of coercive government is universally accepted as superior to the alternative of a chaotic and violent state of nature.

One cannot help admiring the elegance of Buchanan’s defense of a constitu­tional order that automatically privileges the status quo and locates a universal point of agreement amid a sea of moral relativism and social conflict over distributional claims. Buchanan combines a surly pragmatism with a minimal­ist, uncontroversial normative pivot point in unanimous consent to achieve that which neither Robert Nozick nor John Rawls was able to. Nozick, although not too far from Buchanan in rejecting any specific claims that free markets actually deliver general utility or well-being, was still unable to account for the origins of his deontological property rights system by frustrating even undergraduates with his unapologetic claim that “individuals have rights.”¹⁶ Rawls, whose original position many readers found to be too hypothetical and remote, ulti­mately moved beyond rational self-interest in grounding his constitutional order.1⁷ Buchanan seems to strike the right balance between pragmatically accepting that agents come to civil society with property previously acquired through forceful conquest, and maintaining, in accord with generally accepted

1 ⁴ Ibid., 286

1 ⁵ Ibid.

1 ⁶ Robert Nozick, Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974), 182, xix.

1 ⁷ Discussed in S. M. Amadae, Rationalizing Capitalist Democracy (Chicago: University of Chicago Press, 2003), chap. 8. Some see Rawls as differentiating himself from liberalism further in his Political Liberalism (New York: Columbia Classics, 2005). wisdom, that civil society is virtually universally esteemed over either pre­market society or society rife with corruption.

The salient, though consistently overlooked, point is that in this derivation of the unity in preferring mutual cooperation to mutual defection, the neoliberal application of Pareto efficiency is itself a function of threat advantage. The achievable part of the curve versus the portion that relies on one person being made worse off is determined by the disagreement point, which can be defined as the outcome if both sides exercise credible threats on the other. Determining the minimum that the least-well-off individual must gain to achieve an improve­ment over mutual defection in the Prisoner’s Dilemma game is the product of the physics of coercive threats (see Figure 2 in Chapter 2).

Ultimately Coleman worries that Buchanan’s dual hope to eliminate distri­butional conflict from the constitutional moment and to privilege status quo distributions through the acceptance of bargaining via threat advantage will run into two devastating difficulties. On the one hand, it is not clear that distribu­tional conflict can ever be surmounted. Not only will distribution be a constant source of antagonism, but also any government that does arise will only provide the occasion for rent seeking by which government officials support institutions and policies that regularly pay them or their associates, regardless of whether they add value. Thus, the unanimity that is supposed to supply the glue for the constitutional order is both indicative of strategic positioning in accordance to bargaining strength and devoid of motivational content because agents will continually seek to augment their terms vis-a-vis others. Buchanan’s unanimity that is put forward to balance between accepting de facto property rights derived from might and providing a rationale for government proves unable to provide the consensual cement that is necessary to prevent individuals from endlessly squabbling over the outcome of every transaction and the personal implications of every law, not to mention actors’ perpetual incentive to break any rule when it pays.

These considerations bring us back full circle to the debate between Buchanan and Rawls over what the most convincing constitutional principles are for a liberal political order, and over the character of agreement and unanimous consent. Whereas Rawls assumes that agreement to terms has motivational impact, Buchanan and other theorists upholding rational decision theory assume that agreement over social norms and laws is only indicative of aligned preferences. A genuine consensus entails each individual agreeing to the normative validity of general rules and signifies compliance secured by internalizing the rationale informing rules as a guide to personal action. By contrast, Buchanan’s unanimity principle implies no more than that given a pair-wise choice over outcomes, a body of agents exhibits the same preference. The difficulty is that the universe of social outcomes is much more replete than a choice between mutual cooperation and mutual defection. This superficial expression of similar interest is thus readily shattered as soon as each individual seeks to press personal advantage either through rent seeking or negligent compliance.