Anthony de Jasay is correct: the apparent failure of constitutional provisions to effectively constrain the state within anything close to the bounds that classical liberals endorse must lead them to rethink their analysis of constitutional constraints. And surely de Jasay is right that one fundamental problem is that the interests of the government and its supporters are advanced by expansion of the state’s activities, and in the face of these interests, constraining constitutional provisions tend to be inadequate. Throughout, de Jasay’s focus is on the “incentive-incompatibility” of constitutional constraints and their policing: the interests of government and its supporters run directly against respecting these limits. As he sees it, this shows the limits of “rational choice” theory as a basis for constraining government. To the extent that we understand political actors and citizens as overwhelmingly self-interested, all this strikes me as quite right.
But are interests the whole story? Or even the only part of the story worth paying attention to? At the close of his essay de Jasay turns to “taboos as factors that may limit government in ways the usual conception of rational choice would not do.” The idea of constraints on political action that are not based on interests is, I think far more important and profound than de Jasay realizes: it points to a deeper, and more worrying, reason why the modern democratic state is unbound by the classical liberal’s understanding of the proper limits of government.
“Rule systems,” de Jasay writes, “can be fruitfully divided into two types, conventional rules and rules by and for government.” I think this dichotomy leads de Jasay astray because it leads him to ignore the importance of distinctively moral rules. There is overwhelming evidence that a division of rules into the conventional and the political is too simple: cognitive psychologists have shown that even young children distinguish conventional/prudential rules from moral rules. Laurence Fiddick and others have found evidence that tasks involving social rules related to the “social contract” — such as whether it is permissible to pull other children’s hair — are processed in different parts of the brain than prudential rules that instruct us to avoid dangerous situations. Children recognize that conventional rules can be relative to time and place, and may be put aside in some circumstances, whereas moral rules are held to be categorical (Fiddick, 2006; Nichols, 2005: 171ff). It is probably true that the roots of moral rules lie in the importance of “strong reciprocity” — reflected in cooperative norms whose observance does not depend on iterated interactions — for social life (Gintis, et. al. 2005), but genetic and cultural evolution has proceeded to the point where acceptance of such rules and norms may be considered part of our moral sense.
Now what is really important is that, in contrast to merely conventional rules, moral rules are not subject to being overridden by authority. Even children recognize that an authority figure such as a teacher may legitimately make a rule canceling out a purely conventional rule, but they do not accept that authority can override or cancel moral rules (Joyce, 2007: 136). This is of the first importance. Suppose we accept de Jasay’s assumption that “the concept of ordered anarchy is a standard of reference that must always serve as the background in considerations of the nature and role of government.” If we take seriously the idea of ordered anarchy for humans as the background, it is important to be clear about the nature of actual ordered human anarchy. The mass of recent evidence from evolutionary biologists, cognitive psychologists, and sociologists is that human ordered anarchy is structured not simply by “conventional rules banning torts against life, limb and property, nuisances and incivilities” but by moral rules (or norms). Certainly moral rules include various prohibitions against harming others and some types of deception. Although there is dispute about this, I think there is also considerable evidence that these moral rules include some standards of fair distribution. The norms that enabled human groups to survive and thrive during most of our evolutionary history were not simply coordination rules, but also norms about the fair sharing of goods. As Cristina Bicchieri (2006: ch. 3) has shown, fairness norms are fundamental to social life and we now have a deep “taste for fairness.”
Given all this, if we follow de Jasay and think of the rules of ordered anarchy as the background against which we measure the rules of government, the evidence is that the subjects of authority will accept the legitimacy of government-made rules overriding conventional rules, but they will resist government-made rules that override moral rules. We now see the deep problem for the classical liberal project of holding back the state. If the rules that are fundamental, according to classical liberals, are merely conventional, then citizens will see them revisable by authority. The legitimacy of democratic authority and its laws will override the authority of the conventional rules classical liberals so stress. We do not need an account of how the interests of the state cannot be constrained: it is the weakness of conventional rules that is the real culprit. Of course, if the basic normative commitments of classical liberals were widely conceived of as moral rules, then there would be much deeper resistance to government-made rules that seek to cancel or override them. The problem is that the opposite seems nearer the truth: for many citizens, their understanding of the moral norms related to fairness endorses government-made rules overriding the conventional rules of property. The welfare state reigns supreme not because the state and it allies have tricked the rest of us in a power grab; it reigns supreme because in the eyes of most citizens it conforms to the egalitarian fairness norms that have evolved with humans (Fong, Bowles, and Gintis, 2005). Classical liberals who convince themselves that the New Deal is best explained as a power grab by Roosevelt and his allies are manifestly deluded: it was (and still is) very widely seen as demanded by our sense of fairness.
When states do seek to make rules that clearly violate the moral consciousness of the majority of citizens, the state is much more effectively limited. Even in Louisiana, stealing by the government is not usually tolerated (of course some libertarians will say that taxation is stealing, but this just goes to show how far their moral judgments are from the norm). The recent attempts of the U.S. federal government to make new rules that allow torture have run up against the same limits. It is not so much that government can do whatever it wants, but that the moral views of the majority often endorse its expansion in ways that classical liberals think is wrong and dangerous.
Judging from the last section of his essay, I suspect that de Jasay might reply that this “lay moral code” is based on a “non-interest motive arising from superstition.” To describe it thus, de Jasay adds, is not meant to “belittle” it, but to express “apprehension that religion and lay morals may not be sufficiently impervious to utilitarian enlightenment, the reasoning that is driven by interest.” But the claim that reason operates only on interest seems mistaken, and has been undermined by recent cognitive psychology and experimental economics. Our sense of fairness is as much part of our utility function as is our aim for wealth or other goods (Bolton, 1991); there are no good grounds for equating rational choice, or rational choice theory, with interest-promoting action or choices, and plenty of reasons not to (Gaus, 2007: 24-26, 50-56). Moreover, without a moral sense it is dubious that interest-promoting schemes of cooperation will be stable; indeed, there is reason to think that social groups in which people sacrifice their interests for others may sustain higher levels of cooperation than groups in which each, even over the long-term, maximizes his own interests (Sober and Wilson, 1998).
Now although some would love to do so, we should not draw from this the conclusion that statists and their supporters are on the side of morality while classical liberals are against it. Rather, the real crux of the problem is how to apply our evolved moral norms — or, more broadly, sentiments — to a complex environment in which they did not evolve. Looking at the basis for cooperation under anarchy, I suspect, will only lead us astray, for what we know about actual human existence under anarchic conditions suggests that egalitarianism of some sort is apt to arise.
Our question is the basis for cooperation in far-flung impersonal economic and social orders that have arisen under the modern state. We cannot simply dismiss our moral sense as atavistic, any more than we dismiss our taste for sweets because it evolved to help us focus on calorie-rich food — something we used to need, but which for many in advanced economies is now a dangerous taste. We do, though, need to use our intelligence in determining where and how to employ our moral sentiments (just as we must use it when deciding when to eat sweets). As Hayek often stressed, classical liberals have the difficult task of trying to show how the conditions of a Great Society change the moral landscape. Some apparently obvious applications of our moral concepts — such a treating a far-flung economic order in which each must have an incentive to find his place as if it was a tribe in which the hunt must be fairly shared — are misguided and end up violating other moral notions about freedom and fairness to individuals. The debate is complex, concerning both empirical and moral issues. Few proponents of classical liberalism are willing to engage the debate on these complex grounds (my colleague David Schmidtz is a notable exception), preferring instead to ignore our complex pluralistic moral sentiments by building their case only on self-interest, or retreating to a narrow “natural rights theory” of morality shared by few. It is no wonder that classical liberals are losing the debate about the limits of the justified state. The state grows to a large extent because most citizens think that fair dealing, as well as the protection of everyone’s basic interests, requires it. Until they are willing to engage the moral sense of their fellows, classical liberals worried about the unbound state should look no further then their own failure to convince the vast majority of their fellow citizens that morality does not endorse it.
Bicchieri, Cristina. 2006. The Grammer of Society: The Nature ad Dynamics of Social Norms. Cambridge: Cambridge University Press.
Bolton, Gary E. 1991. “A Comparative Model of Bargaining: Theory and Evidence,” The American Economic Review, vol. 8: 1096-1136.
Fiddick, Laurence. 2006. “Adaptive Domains of Deontic Reasoning,” Philosophical Explorations, vol. 9 (March): 105-116.
Fong, Christina M., Samuel Bowles and Herbert Gintis. 2005. “Reciprocity and the Welfare State” in Gintis et. al. eds., Moral Sentiments and Material Interests (Cambridge, MA: MIT Press): 277-302.
Gaus, Gerald F. 2007. On Philosophy, Politics, and Economics. Belmont, CA: Wadsworth.
Gintis, Herbert, Samuel Bowles, Robert Boyd, and Ernst Fehr. 2005. “Moral Sentiments and Material Interests” in Gintis et. al. eds., Moral Sentiments and Material Interests (Cambridge, MA: MIT Press): 3-39.
Joyce, Richard. 2007. The Evolution of Morality. Cambridge, MA: MIT Press.
Nichols, Shaun. 2004. Sentimental Rules. New York: Oxford University Press.
Sober, Elliot and David Sloan Wilson. 1998. Unto Others: The Evolution of Psychology and Unselfish Behavior. Cambridge, MA: Harvard University Press.