How good are these arguments? Briefly, they do not add up to much. Firstly, Buchanan’s assertions, as well as those of Buchanan and Tullock noted above, in support of the free markets suffer from a fatal logical flaw. They define specific economic arrangements as voluntary or involuntary according to whether these are made by the market or by the government; and then proceed to establish the superiority of market arrangements to those made by the government. But this is not a logical result at all; only a restatement of a definition! Secondly, it is not empirically a fact that (political) individual liberties are better taken care of in societies where markets are freer and government intervention minimal than where they are less free and government intervention is large. Thus, in free-market economies (e.g., the United States) the civil and political rights of the blacks have been freely trampled on; while in Scandinavian countries, with ‘nanny’ governments, political liberties are much better safeguarded together with a stellar economic performance record [Allen Buchanan (1985); pp. 78-79]. While this piece of empirical evidence does not prove that ‘nanny’ governments and suppressed markets are always better, it does prove that markets need not be altogether unfettered to produce better economic results and a superior record of political and civil freedoms. Thirdly, guaranteeing individual economic and political freedoms may produce efficient results in the Paretian sense (that, no one’s substantive freedom can be enhanced without reducing the freedom of someone else), and yet this fact (of giving absolute priority to liberty) does not say anything about the equally important issue of equity in the distribution of freedoms. Indeed, the efficiency outcome positively complicates the distribution problem: “the problem of inequality gets magnified as the attention is shifted from income inequality to the inequality in the distribution of substantive freedoms and capabilities” [Sen (1999b); p. 119; italics in the original].
Fourthly, the ‘unanimity’ and ‘impartiality’ achieved at the constitution-making stage do not make a society any better from the egalitarian point of view. Also, the constitution-makers cannot always ensure compliance with what they prescribe; nor can they foresee all the distributional issues in the post-constitution making stage, especially those which result from the working of the capitalist system itself. Fifthly, the unanimity achieved at the constitution-making stage can be extraordinarily conservative: it need never permit any social change which benefits all but one person, who can block it no matter what the rest of society wants. True, unanimity about a change in the status-quo can somehow be achieved through public discussion and debate and by a trading of compromises among themselves (which is equivalent to a log-rolling process), yet vested interests would not voluntarily endorse it. Finally, Buchanan and Tullock’s theory is essentially positivist: what it aims to show is that the unanimity principle can be achieved entirely by self-interested individuals: “the uncertainty that is required in order for [the] individual to be led by his own interest to support constitutional provisions that are generally advantageous to all individuals and to all groups seems likely to be present at any constitutional stage of discussion” (p. 78). It is not meant to resolve any ethical or distributional issues. The fact is that all this is no more than a smart sleight of hand. It may deepen the neo-classical’s unbounded admiration of the state of self-interestedness; but it will not satisfy the curiosity of those concerned about the larger issues of human existence.
b) Non-Consequentialist “Moral Rights”
Nozick’s (1974) theory of ‘entitlement’ and ‘historical justice’ goes a step further – beyond the standard libertarian’s (e.g., Hayek’s (1960)) position that individual liberty is instrumental in preventing coercion. He deems liberty to be intrinsically valuable. In other words, individuals have some inalienable moral rights, which are regarded as deontological ‘side-constraints’ on action that must be satisfied regardless of any (adverse) social, economic or other consequences of doing this duty.7 But this is a particularly restrictive (indeed, perverse) view of moral rights because it in effect instructs the potential rights violators: “Do not violate the moral rights of others no matter what – not even to stop others from an imperfect compliance of these instructions (that is, when some violate the rights of others)”. It is not for individuals to minimise the incidence of moral-rights violations but rather to act within the bounds of given moral rights; which, if voluntarily observed by all individuals, will not be violated in the first place. The reward of this state of studied inaction is some kind of ‘political egalitarianism’: no one has a greater right to liberty than anyone else. In this framework of thought, selfishness is itself a moral right, to be defended no matter what and markets must remain unfettered even though the outcome of such ‘unfetteredness’ is mutually disadvantageous. This extremist view of the innate morality of the (moral) right to private property, including that in the means of production, rests on the sufficiency of observing legitimate procedures in acquiring it: “The general outlines of the theory of justice in [property] holdings are that the holdings of a person are just if he is entitled to them by the principles of justice in acquisition and transfer, or by the principle of rectification of justice (as specified by the first two principles). If each person’s holdings are just then the total set is just” [Nozick (1974); p. 153]. He recognises that “past injustices” may shape “present holdings in various ways”, but fails to pursue the allimportant question of the “rectification” of past injustices, nor does he suggest any principle of redress, even in a mild form. On the contrary, he specifically rules out any “patterning” of the existing structure of property (by the government) because “from the point of view of an entitlement theory, redistribution is a serious matter, indeed; involving, as it does, the violation of people’s rights” (p. 168). Nozick recognises that past injustices may directly contribute to significant inter-generational inequities, a socially undesirable inequitable distribution of income and wealth, and great poverty. Yet, while all this is “morally unfortunate” or merely unfair – a state of affairs which rich people should be encouraged to remedy by voluntary charity – it is not morally unjust because no one (even the starving poor) has a moral right to aid!8 Hence, people cannot be forced to be charitable by any coercive government action.
This seemingly impenetrable defence of moral rights has, however, several holes in it. Firstly, as Hayek (1960) maintains, not all distributive patterns or end-states are disruptive of moral rights – e.g., providing minimum sustenance to the poor and the implementation (for redistributive purposes) of long-standing publicised laws specifying tax obligations. Nor are these end-states incompatible with the existence of a stable pattern of expectations which is the essence of the “rule of law”. He explicitly states that “coercion, however, cannot be altogether avoided because the only way to prevent it is by the threat of coercion” (p. 21). Secondly, Nozick neglects the need for a balance between charity and efficiency that is necessary for greater social cohesion. The point is that, as Arrow (1974) notes, the act of giving is an “expression of individual volition” based on “an implicit social contract such that each performs duties for the other in a way calculated to enhance the satisfaction of all” (p. 348). More generally, “ethical behaviour is a socially desirable institution which facilitates the achievement of economic efficiency” (p. 354). In other words, downplaying the ethical aspects of social life – e.g., distributive justice, charitable giving, etc., – would erode the efficiency of Nozick’s liberty-preserving free markets. Thirdly, it is idle to expect that extreme poverty or distributive inequity can be remedied by uncoordinated voluntary acts of charity on the part of the rich, even assuming that they are morally upright people of altruistic disposition: “the laudable desire [on the part of the rich] to be effectively beneficent may be self-defeating where coercion is absent” [Allen Buchanan (1985); p. 73]. The reason is that the free-rider and assurance problems, noted above, are likely to block the generation of a large enough