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THE CONSTITUTION OF NONDOMINATION

Published online by Cambridge University Press:  30 November 2010

Guido Pincione
Affiliation:
Philosophy and Law, Torcuato Di Tella University, Buenos Aires

Abstract

Pincione argues that procedural constitutional guarantees of market freedoms best protect individuals from domination. If he is right, Philip Pettit's claim that various forms of state interference with private markets are needed to forestall domination will prove to be unwarranted. Pincione further contends that market freedoms are best protected by procedural rules for political decision-making, as opposed to constitutional guarantees of private property and other substantive rules.

Central to his position are claims that the dispersion of economic power precludes domination, and that free entry into markets furthers such dispersion. As against the idea that the state is in a better position to disperse economic power, Pincione argues that the constitutional provisions needed to implement that idea are contestable, and to that extent require interpretive powers that themselves involve domination. Only a constitution that, as a side effect of its procedures for political decision making, generates full private property rights holds out hope of shielding citizens from domination. This is so, because a plurality of suppliers of goods and services is a structural feature of the free market, in a sense of “structural” that matters for measurements of domination based on fairly uncontroversial claims about persons and resources.

Type
Research Article
Copyright
Copyright © Social Philosophy and Policy Foundation 2011

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References

1 See Pettit, Philip, “Freedom in the Market,” Politics, Philosophy, and Economics 5, no. 2 (2006): 131–49, esp. 144–46CrossRefGoogle Scholar.

2 For a contemporary defense of this view, see Lomasky, Loren, Persons, Rights, and the Moral Community (New York: Oxford University Press, 1987)Google Scholar.

3 For a historical and analytical discussion of the differences between the classical liberal and republican conceptions of freedom, see Pettit, Philip, Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997), 17126Google Scholar.

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 Berlin, Isaiah, Four Essays on Liberty (Oxford: Oxford University Press, 1969), 118–72Google Scholar; Crocker, Lawrence, Positive Liberty (The Hague: Martinus Nijhoff, 1980)CrossRefGoogle Scholar; MacCallum, Gerald, “Negative and Positive Freedom,” Philosophical Review 76, no. 2 (1967): 312–34CrossRefGoogle Scholar; and Spector, Horacio, Autonomy and Rights: The Moral Foundations of Liberalism (Oxford: Clarendon Press, 1992), 963Google Scholar. 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 Wall, Steven, “Freedom as a Political Ideal,” Social Philosophy and Policy 20, no. 2 (2003): 307–34CrossRefGoogle Scholar.

6 Pettit, “Freedom in the Market,” 132–38. See also List, Christian, “Republican Freedom and the Rule of Law,” Politics, Philosophy, and Economics 5, no. 2 (2006): 201–20, at 202CrossRefGoogle Scholar (noninterference is neither sufficient nor necessary for republican freedom). Nevertheless, republican freedom does entail the absence of arbitrary interference.

7 Pettit, “Freedom in the Market,” 132–38.

8 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.

9 For a discussion of the variety of meanings of “monopoly,” both in economics and in public political discourse, see Rothbard, Murray N., Man, Economy, and State, rev. ed. (Auburn, AL: Ludwig von Mises Institute, 1993), 587–95Google Scholar.

10 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.

11 See Swanton, Christine, “On the ‘Essential Contestedness’ of Political Concepts,” Ethics 95, no. 4 (1995): 811–27CrossRefGoogle Scholar. I explore the tension between essential contestability and the rule of law in Pincione, Guido, “Market Rights and the Rule of Law: A Case for Procedural Constitutionalism,” Harvard Journal of Law and Public Policy 26, no. 2 (2003): 397454Google Scholar. 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.

12 Dworkin defends the right-answer thesis in, for example, Dworkin, Ronald, Law's Empire (London: Fontana Press, 1986)Google Scholar. For another defense of interpretive determinacy, see Gaus, Gerald F., Contemporary Theories of Liberalism (London: SAGE, 2003), 106–8Google Scholar.

13 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. 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.

14 See Pincione, Guido and Tesón, Fernando R., Rational Choice and Democratic Deliberation: A Theory of Discourse Failure (New York: Cambridge University Press, 2006)CrossRefGoogle Scholar.

15 Tesón and I discuss democratic consent in Rational Choice and Democratic Deliberation, 204–11.

16 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” (ibid., 147).

17 Tesón and I argue that the discursive pathologies of nondemocratic or nonliberal polities will be more severe than those we diagnose in liberal democracies. See Pincione and Tesón, Rational Choice and Democratic Deliberation, 244–46.

18 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.

19 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. For a different critique of those versions of republicanism, see Brennan, Geoffrey and Lomasky, Loren, “Against Reviving Republicanism,” Politics, Philosophy, and Economics 5, no. 2 (2006): 221–52CrossRefGoogle Scholar.

20 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. See Fiss, Owen, The Irony of Free Speech (Cambridge, MA: Harvard University Press, 1996)Google Scholar; and Friedman, Milton, Capitalism and Freedom (Chicago: Chicago University Press, 1962), chap. 1Google Scholar. The very notion of private property is in turn contested, as shown by such divergences as that between Epstein, Richard, Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985)Google Scholar; and Sunstein, Cass, The Partial Constitution (Cambridge, MA: Harvard University Press, 1993), chaps. 1–6Google Scholar, on the constitutional underpinnings of the regulatory state in the United States. 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), 1923–46CrossRefGoogle Scholar.

21 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). See Luna, Félix, Perón y su Tiempo, 2nd unified edition (Buenos Aires: Editorial Sudamericana, 1993), esp. 217–42Google Scholar.

22 See note 11.

23 An example of the extensive literature in favor of this indirect form of utilitarianism is the early Rawls, John. See his “Two Concepts of Rules,” The Philosophical Review 64, no. 1 (1955): 332CrossRefGoogle Scholar.

24 See Gwartney, James D. and Wagner, Richard E., “Public Choice and the Conduct of Representative Government,” in Gwartney, James D. and Wagner, Richard E., eds., Public Choice and Constitutional Economics (Greenwich, CT: JAI Press, 1988), 2956Google Scholar; and Pincione and Tesón, Rational Choice and Democratic Deliberation, 8–64.

25 See Steiner, Hillel, An Essay on Rights (Oxford: Blackwell, 1994)Google Scholar. For a discussion of degrees of contestability of legal rules, see Gaus, Contemporary Theories of Liberalism, 75–77.

26 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. See Wenar, “The Concept of Property and the Takings Clause.”

27 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.

28 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 Honoré, Tony, “Ownership,” in Guest, G. A., ed., Oxford Essays in Jurisprudence (Oxford: Clarendon Press, 1961), 107–47Google Scholar.

29 For illustrations of the idea that even abstract rights to property and contract have indeterminate particular applications, see Ripstein, Arthur, “Authority and Coercion,” Philosophy and Public Affairs 32, no. 1 (2004): 235, at 26–32CrossRefGoogle Scholar. 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.

30 For a seminal contractarian defense of procedural constitutional rules that protect market freedoms and help overcome market failures (see Section IV.B), see Buchanan, James and Tullock, Gordon, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor: University of Michigan Press, 1962)CrossRefGoogle Scholar. 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 Mueller, Dennis, Constitutional Democracy (New York: Oxford University Press, 1996), 209–36Google Scholar; and Cooter, Robert, The Strategic Constitution (Princeton, NJ: Princeton University Press, 2000), 241308Google Scholar.

31 Rothbard, Murray N.offers an argument of this sort in “Society without a State,” in Machan, Tibor R., ed., The Libertarian Reader (Totowa, NJ: Rowman and Littlefield, 1982), 5363, at 54Google Scholar.

32 For versions of this critique, see Cohen, G. A., “Capitalism, Freedom, and the Proletariat,” in Ryan, Alan, ed., The Idea of Freedom: Essays in Honor of Isaiah Berlin (Oxford: Oxford University Press, 1979), 926, esp. 12Google Scholar; and Spector, Autonomy and Rights, 14–22, esp. 20.

33 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.

34 See Pettit, “Freedom in the Market,” 142; and Gray, John, “Against Cohen on Proletarian Unfreedom,” in Gray, John, Post-Liberalism: Studies in Political Thought (London: Routledge, 1996), 123–55, at 149–54; reprinted from Social Philosophy and Policy 6, no. 1 (1988): 77–112Google Scholar.

35 For an overview of the economics of antitrust law, see Posner, Richard A., Economic Analysis of Law, 5th ed. (New York: Aspen, 1998), 309–46Google Scholar. For the view that antitrust law is counterproductive, see Sowell, Thomas, Knowledge and Decisions (New York: Basic Books, 1996), 202–13Google Scholar. See also notes 52 and 53 below.

36 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.

37 See Zimmerman, David, “Coercive Wage Offers,” Philosophy and Public Affairs 10, no. 2 (1981): 121–45Google Scholar; and Buchanan, Allen, Ethics, Efficiency, and the Market (Oxford: Clarendon Press, 1985), 8795Google Scholar.

38 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.

39 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.

40 See Schmidtz, David, “Taking Responsibility,” in Schmidtz, David and Goodin, Robert E., Social Welfare and Individual Responsibility: For and Against (Cambridge: Cambridge University Press, 1998), 196CrossRefGoogle Scholar; and Cowen, Tyler, “Does the Welfare State Help the Poor?Social Philosophy and Policy 19, no. 1 (2002): 3654CrossRefGoogle Scholar. As Cowen argues, granting equal rights to immigrants would render welfare states financially unsustainable.

41 See Long, Roderick, “Toward a Libertarian Theory of Class,” Social Philosophy and Policy 15, no. 2 (1998): 303–49CrossRefGoogle Scholar.

42 For a seminal rational-choice analysis of such asymmetries, see Olson, Mancur, The Logic of Collective Action (Cambridge, MA: Harvard University Press, 1965)Google Scholar.

43 See note 35, especially the reference to Sowell. See also Mitchell, William C. and Simmons, Randy T., Beyond Politics: Markets, Welfare, and the Failure of Bureaucracy (Boulder, CO: Westview Press, 1994), esp. chaps. 4–11Google Scholar.

44 See Thomas Hobbes, Leviathan (1651), Part II; David Hume, Enquiry Concerning the Principles of Morals (1751), chap. IV and appendix 2; and Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961), chap. 5Google Scholar.

45 Hobbes, Leviathan, chap. XIII.

46 For an explication of the notion of potential explanation involved here, see Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 69Google Scholar.

47 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 Axelrod, Robert, The Evolution of Cooperation (New York: Basic Books, 1984)Google Scholar. See also Hardin, Russell, Liberalism, Constitutionalism, and Democracy (New York: Oxford University Press, 1999), 82119CrossRefGoogle Scholar; and Kavka, Gregory, Hobbesian Moral and Political Theory (Princeton, NJ: Princeton University Press, 1986), chaps. 3–6Google Scholar.

48 The metaphor of the invisible hand was famously introduced by Smith, Adam in The Wealth of Nations (1776), Book IV, iiGoogle Scholar.

49 See Olson, The Logic of Collective Action; and Tollison, Robert, “Rent Seeking,” in Mueller, Dennis C., ed., Perspectives on Public Choice: A Handbook (Cambridge: Cambridge University Press, 1997), 506–25Google Scholar.

50 That dominating power is exerted through intentional interference was implicit in my analysis in Section II. See also Pettit, “Freedom in the Market,” 135; and Pincione, Guido, “Welfare, Autonomy, and Contractual Freedom,” in White, Mark, ed., The Theoretical Foundations of Law and Economics (New York: Cambridge University Press, 2009), 214–33Google Scholar.

51 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.

52 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. For a fuller, though still nontechnical, explanation, see Friedman, David, Law's Order: What Economics Has to Do with Law and Why It Matters (Princeton, NJ: Princeton University Press, 2000), 244–46Google Scholar.

53 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. See Friedman, Law's Order, 259.

54 See Feldman, Alan M. and Serrano, Roberto, Welfare Economics and Social Choice Theory, 2d ed. (New York: Springer, 2006), 119–93Google Scholar.

55 For a simplified formal proof of the inefficiency of externalities—a major source of market failure—see ibid., 143–50.

56 Fernando Tesón and I defend standard rational-choice assumptions in Rational Choice and Democratic Deliberation, 65–86.

57 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. See also note 35.

58 For a formal analysis of institutions that economize on virtue, see Brennan, Geoffrey and Hamlin, Alan, “Economizing on Virtue,” Constitutional Political Economy 6, no. 1 (1995): 3556CrossRefGoogle Scholar.

59 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 Bustamante, Jorge E., La Argentina Corporativa (Buenos Aires: EMECE, 1988)Google Scholar.

61 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.

63 See Cooter, Robert, “The Rule of State Law versus the Rule-of-Law State: Economic Analysis of the Legal Foundations of Development,” in Buscaglia, Edgardo, Ratliff, William, and Cooter, Robert, eds., The Law and Economics of Development (Greenwich, CT: JAI Press, 1997), 101–48Google Scholar.

64 Perhaps less transparently, welfarist political moralities also seem responsive to the value of freedom as nondomination. Thus, I have argued elsewhere that welfarist and autonomy-based arguments converge on justifying a strong presumption of contractual freedom and are ultimately based on a hypothetical contract that embodies the value of freedom as nondomination. See Pincione, “Welfare, Autonomy, and Contractual Freedom.”