Consent
Ultimately what sets apart the classical liberal and [law and] economic conceptions of rights and liability rules is the case in which liability rules are thought sufficient to justify a transfer....
For it can never be any part of the classical liberal account that by compensating someone for taking what is his without his consent, an injurer respects the victim’s rights; whereas the core of [rational choice] economic analysis is the possibility that by compensating a victim, an injurer (at least sometimes) gives his victim all that he is entitled to, thereby legitimating the taking.Jules Coleman, 19881
Richard Posner’s law and economics, on examination, is even more distribu- tionally biased in favor of wealthier individuals than Buchanan’s minimal constitutionalism. Buchanan’s use of the unanimity principle to capture the importance of voluntary consent is at least designed in principle to enable individuals to veto conditions that would erode their current status, even if it fails to live up to this promise given the inevitability of coercive bargaining and de facto possession. Posner’s law and economics, on the other hand, overtly privileges wealthy individuals by asserting that resources should be in the hands of those who value them most, as measured by agents’ willingness and ability to pay for them. In effect, Posner’s scheme puts resources up for auction to the highest bidder.2 Rights themselves are subject to dispersion based on considerations of power. The concept of consent that Posner uses to ground his law and economics method is attenuated at least to the extent of Buchanan’s unanimous agreement, if not more so.
Posner is one of the most prolific living public intellectuals in the United States, having published at least forty books, and is also a presiding judge on the
1 Jules Coleman, Markets, Morality and the Law (Cambridge: Cambridge University Press, 1988), 62-63.
2 Discussed in ibid., 87-91, especially 90-91.
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US Court of Appeals for the 7th Circuit.[490] The legal program he tirelessly promotes can be summarized by the mantra “justice is wealth maximization.” According to the law and economics school, the role of law is to ensure that resources are granted to those who can best use them, with use evaluated in terms of the ability to generate wealth. According to Posner, law only has the positive function of enforcing rules. It does not reflect privileged moral values. It is not inherently normative.[491]
In defending his view of law, Posner attempts to retain the classic liberal claim that rights reflect individuals’ freedom to enter into voluntary exchange at the same time that he upholds the position that markets are superior to any other form of economic organization because they result in the most efficient production of value. Liberal political economy has typically embraced the unity of its commitment to individual liberty and its belief that such a system of liberty will spontaneously yield optimal outcomes measured in preference satisfaction or social welfare.[492] This linkage between freedom and social efficiency was consistently challenged in late twentieth-century political economic theory because either the principle of individual liberty or the principle of market efficiency is prioritized at the expense of the other.[493] Buchanan and public choice theorists unequivocally privilege individual liberty and downplay that efficiency has its own metric independent of the exercise of individual choice. Posner and law and economics scholars emphasize the achievement of efficiency measured in terms of wealth maximization to the exclusion of a robust concept of individuals’ freedom of choice.
Ahead I explore how Posner works to maintain that his slender defense of consent is meaningful, even if it is ultimately more vacuous than Buchanan’s unanimity, which retains agents’ ex ante veto power over outcomes. The first section examines Posner’s concept of consent, and the following section analyzes his use of the Kaldor-Hick’s compensation principle, which permits policies that create welfare improvements to some at a cost to others. These sections lay the groundwork for explaining Posner’s neoliberal replacement of ex ante consent with ex post facto consent as the basis of consumer’s exercise of choice.