#14 Public Choice theory's Generality Principle for law and politics
Social sciences analyze the relationships between and among persons, groups, and organizations. This inclusive definition incorporates economic, legal, political, and social interactions. In ordinary market exchange, the individual is simultaneously a demander and supplier, a buyer and seller. In social arrangements, the person may be both a care giver and a care receiver, a lover and a beloved, a gift taker and gift giver, a friend and a befriended. By comparison, in law and in politics such reciprocity need not be present. The individual is subject to the law, but he may or may not be a member-participant of the organized entity that makes-changes or enforces the law. In fiscal politics, the individual is subject to the coerced exaction of taxation and to the possible nonexclusive benefits of governmental programs, but he may or may not be a member-voter-participant in the collectivity that makes basic political choices. In either of these cases, in which the individual is subject to but not a participant in the process, reaction rather than explicit reciprocation describes behavior.
Some criterion over and beyond either the dominating motive of personal security or the presumed existence of recognized natural boundaries is needed if the ultimate legitimacy of political coercion is to be established. Quite apart from any estimate of relative economic position, any potential participant would ideally prefer the imposition of restrictive rules on the behavior of others while remaining at liberty to follow or not to follow rules. But each participant will also recognize that others will agree to impose constraints on their own behavior only as a part of a reciprocal "exchange." In this preliminary sense, reciprocation itself implies generality. Constraining rules that emerge from general agreement will tend to be general in application. Rules that apply to others must also be applied to one's own behavior. With relative positions clearly identified, however, different participants may place differing evaluations on alternative sets of rules, and agreement may be impossible.
The sometimes hackneyed term law and order conveys, at least indirectly, the distinctive feature of law that makes the generalization norm more readily acceptable than might seem to be the case with politics. Law, as traditionally understood, provides a framework within which persons carry on their own separate private purposes. Laws establish and enforce the boundaries or limits on admissible behavior. The law, as such, is presumed to have as its primary purpose the facilitation of personal interaction. In this conception, there is no social purpose to the law. Law, as administered and enforced by agents of the state, is not specifically designed to further explicitly defined social goals, whether these be maximization of economic value, full employment of the labor force, distributive justice, or harmony among organized interest groups.
Given the social purposelessness of law, as understood in this sense, the principle of equality under law (often referred to as the rule of law) emerges more or less naturally.
Law defines the rules of the social game, and elementary notions of fairness dictate that the same rules apply to all players.
The widespread adherence, both in rhetoric and in reality, to the generality principle in law offers a basis for the extension of a comparable principle to politics. Equality under law informs public understanding in Western cultures. Violations of the equality norm invoke expressions of demonstrated unfairness accompanied by varying degrees of protest. Why, then, do citizens in Western democracies at the same time acquiesce in a politics that does not embody a comparable generality norm? Why is politics allowed to discriminate overtly among separate persons and groups and without protest when law is held to nondiscriminatory standards?
Politics has been considered to be different from law because it is assigned social purpose on varying interpretations of the whole enterprise. And politics is understood by many (theorists, analysts, and practitioners alike) to be a discovery process aimed at finding the good and the true for the polity treated as some organic unit, with a tenuous relationship, at best, to expressed preferences of citizens-participants. In this conceptual interpretation of political enterprise, it would indeed be difficult to mount persuasive argument in support of the generality precept in the abstract.
For precisely the same reasons applicable to law, a politics that fails to satisfy some variant of the generality-equality norm cannot be deemed to be legitimate. Such a discriminatory politics cannot pass the contractarian test. In reflective equilibrium and behind a veil of ignorance/uncertainty, persons could never agree to the establishment of political institutions that are predicted to discriminate explicitly in their operation. The politics of discrimination would not meet the agreement criterion that defines fairness or justice. And, also importantly, such a politics would necessarily be inefficient in a resource-wasting sense.
Persons who acknowledge the social purposelessness of law may, at the same time, challenge the extension to politics. They may be unwilling to agree that politics has no “social purpose” and that politics is best understood to offer, analogous to law, a parametric framework within which persons may act to advance their own purposes, whatever these may be.
In the conceptualization upon which our analysis rests, politics becomes the setting for collective action in which persons consider it privately advantageous to undertake actions to further shared, but still distinguishable, interests. In this sense, politics, like law, is above and beyond the particularized interests that individuals may seek within the parametric limits.
As it operates … politics is majoritarian, which is, naturally, discriminatory to the extent that participants promote separable interests.
Until and unless we recognize that the distributional politics that we observe is necessarily discriminatory and that this politics may be described in terms analogous to a Hobbesian "warre" of each interest against all others - a warre in which no one's interest is advanced — all efforts at putative reform must fail. Politics must be brought within the constraints defined by norms that can guarantee discussion and argument over general alternatives for collective-political choice.
James M. Buchanan and Roger D. Congleton, Politics By Principle, Not Interest: Toward Nondiscriminatory Democracy, Cambridge 1998 [pp. 3, 6, 9-13]