Читать книгу Social Contract, Free Ride - Anthony de Jasay - Страница 9
ОглавлениеPeaceful, mutually agreeable coexistence of persons is tantamount to a measure of social co-operation whether or not such is their conscious intent. Both by design and by spontaneous emergence, their interactions tend severally or jointly to produce results—"positive” but also “negative” man-made variations in the orderliness, agreement, and riches of their own and other people’s lives. The results may accrue wholly or in part to those who co-operate, though not necessarily to all who do, nor to only those who do, for there are “externalities,” spillovers benefiting or harming bystanders. Production of private goods for exchange and the provision of public goods (including under “goods” as much as we decently can of what people want1 for themselves or for others) are the areas of activity where co-operation owes least to affective ties between persons and where contract, command, or both tend to be relied on to ensure reliable commitment to co-operative acts. The diversity of possible relations, including the absence of any discernible relation, between contributions and benefits in these domains is one of the central themes of ethics, economics, and politics, and an anxious preoccupation of this book.
People of course co-operate informally by making unspoken-for and unrequited contributions to the endeavors of others. They “lend a hand,” or a tool, or money; they help out, chip in, give advice, share knowledge, await their turn, give way, go to the end of the queue, refrain from littering in public, and so forth. Unilateral contributors may or may not share in the richer life they help in some measure to bring about. If they do, their share may not perceptibly vary with their own contribution. In any event, expectation of a benefit may not always or wholly explain a contribution which is made unilaterally. By the same token, people may stop contributing without losing much, or any, of their share in the richer life. However, noticeable non-co-operation, unless it is widespread enough to pass for normal, exposes a person to a range of possible sanctions from blame through ostracism, reciprocal non-co-operation in some other endeavor, to positive retaliation. These sanctions obviously involve some opportunity cost to administer, and therefore constitute, so to speak, a second-order co-operation problem on top of the first-order problem involved in the indeterminate nexus between contribution and benefit.
Behind the informal, spontaneous, and ostensibly sanction-free character of unilateral contribution there lurk tacit understandings, quid pro quos, and probable if uncertain penalties, conferring upon it the features of an incipient, incomplete contract. For all its roots in social history and its potential for teaching people about reciprocity without explicit commitment, this form of co-operation has obvious weaknesses in being indefinite, uncommitted, and (at least formally if not always in fact) unenforceable. Consideration of its weaknesses is of some help in grasping the functions and structure of fully fledged contracts, which commit two parties to agreed courses of action that promote the purposes of both, and of command-obedience relations which commit subordinates to contribute to the purposes of superiors.
An avowedly “reductionist” manner of calling reality to some sort of order is to treat the indefinitely many forms of social co-operation as if they all fell into two uniform classes: contract and command. In opting for this, we claim that at least in non-affective contexts the inclusive binary relation whereby all that is not contract-compliance is command-obedience can describe and explain all commitment to social interactions well enough, though next to the fully fledged specimen each class must be understood to include the incipient, the imperfectly enforced, and the embryonic. Where, then, is the place of custom in this structure?
The substantive content of any contract is a matter of agreement between the parties within the “frame” (broad or narrow as dictated by exogenous factors) of contractual freedom. The frame is exogenously fixed simply in the sense that it is independent of the will of the parties to the agreement, who have to stay within it or not agree at all. Formally, the same statement explains the substantive content of contract and of custom. Custom would not be what it is if those adhering to it preferred no agreement to the agreement embodied in the custom, e.g., if people would rather not marry than agree to some customary property settlement.
The sense of custom as a special case, a subclass of the general class of contracts, is that where a custom rules there is usually no room within the “frame” for terms of agreement other than those embodied in the custom. Keep narrowing the frame of contractual freedom within which the terms of agreement may vary and once negotiation has fallen into disuse, contract becomes custom. A “time-honored custom” carries the authority conferred by repeated agreement over time, one that has proved acceptable to successive generations. Whatever its historical origin, the rational-choice explanation of a custom has its least unpromising start in a range or frequency distribution of freely negotiated agreements, whose central core gradually solidifies into custom embodying unvarying terms, for a host of reasons having to do with “face,”2 the difficulties of negotiation, and the greater convenience of dispute-resolution and enforcement when terms are standard.
The part of custom which, at least in the Germanic cultures, has little by little found its way into the law carries evidence of its consensual origin. The (albeit factually somewhat inaccurate) notion of an evolution from free agreements to custom, from custom to law, explains the high public regard for the common law which, unlike statute law, did not have to be enacted before it was accepted. The same sort of evolution seems to explain the rise of criminal law out of tort law, and of tort law out of agreements to compensate, to buy off revenge—an explanation which is adequate, logically whole, regardless of its contested historical accuracy. Customary terms of the service tenure of land, rents, tolls, wages, professional fees, customs regulating early forms of banking and marine insurance, and, of course, above all the prices and specifications of traded goods all bear plausible traces of earlier contractual or para-contractual origin. Unless we resign ourselves to the idea of an endless chain stretching into the past where every custom is born of another earlier custom, or to the idea that customs can be decreed into existence by command, contract is the only residual hypothesis to account for them. We can then look upon custom as ossified contract whose terms have become standardized. In the case of the just price and the more general scholastic category of the just contract (conceived as the sole morally deserving case of “zero-sum” transactions, where “neither party gains” instead of one losing what the other gains), standard terms have even been invested with moral value.
There is a demonstrable advantage to any two parties in not having to adhere to custom but having the broadest possible frame within which the terms of a contract can be adjusted to their particular “circumstances.”3 Offsets against the advantage of adjustability are provided by the reduced transaction and information costs, and the greater peace of mind associated with customary terms. If such offsetting advantages predominate, the spontaneous rise and survival of a custom are broadly consistent with rational choice and it can be explained as if it were itself a result of agreement.
The significant particularities of custom are that terms are standard rather than ad hoc (though, as the great diversity of “customary” medieval and early modern terms and conditions for property holding, inheritance, marriage, master-and-servant relations, commercial ventures, etc. demonstrate, there was usually some room for negotiated agreement about which custom would apply); that a reciprocal promissory obligation to perform often remains inexplicit, or is made explicit only in some weak form; and that sanctions to ensure conformity to the custom are of widely varying reliability and strength. While bearing these features in mind, I see no harm in letting custom submerge under contract in what follows.
Implicit in social criticism, much of normative political theory, and much of economics outside the neo-classical mainstream is the position that the contract-command dichotomy is at best verbal and empty of real empirical content, and at worst a tendentious semantic fraud.
The contract-command distinction is upheld in everyday discourse by the imprecise but robust connotation that seems inseparable from the two concepts: contract is understood as being freely entered into, hence compliance is by voluntarily assumed obligation; while command is obeyed under coercion or, of course, the probable threat of it. The arguments denying that such a distinction is possible have roughly the following form.
1. Contracts are generally not entered into freely, though it is just possible to claim that unimportant ones may be. The consequence of not entering into a given contract is to incur an opportunity cost, which is the difference between the value a would-be contracting party places on the expected consequences of entering into this contract and the expected consequences of taking the next-worse alternative available to him. The next-worse alternative may be quite bad. There may be, in everyday language, “no alternative.” The opportunity cost of declining the best alternative in favor of the next-worse one may be such that he “just can’t afford it"; “. . . being free to choose . . . has got to include the idea that not going along with the deal that is being offered is an acceptable state of affairs.” 4 Unless society is just or rich (beyond scarcity) or both to begin with, so that it does not put people before unacceptable alternatives, the contracts that really make a difference to one’s well-being cannot be refused, i.e., they are “unfree.” A related though different claim is that a society of scarcity and injustice will not, in general, be made richer and juster by letting contracts take their course.
2. Admittedly, it is easy to dismiss as naive the idea of a binary division between “acceptable” and “unacceptable,” for one does not end and the other does not begin at a particular line or point in the universe of states of affairs. Must “unacceptable” mean starvation, or is “relative deprivation” bad enough? And when is it “acceptable” to be humbled by yielding in a negotiation? A state of affairs can be “unacceptable” only in the sense that another one within reach is more acceptable to a particular person. If we must at all costs seek a binary relation of either/or, “acceptability” is not going to furnish a generally recognizable dividing-line.
A more sophisticated account of free choice might replace preferences for available states of affairs by preferences for states of affairs of varying degrees of probability, so that “not going along with a deal” could be interpreted as evidence, not or not only of the definite availability of a (more) acceptable alternative but also of certain probabilities, “hopes” of more acceptable ones. Such an interpretation, by making room for error of probability judgment and wishful thinking, could at least give coherent meaning to a person “not going along with a deal” although he actually prefers it to the “unacceptable” next-worse alternative that is “being offered"—for taking his chances on the probability distribution of yet other “deals,” not “offered” but possible, ranks higher than either of the offered deals in his preference order. Whichever way we turn and refine the notion, however, “acceptability” is hardly a promising test of the freedom of entering into a contract.
3. It could be held, instead, that the idea of freely entering into a contract suffers from the same conceptual weakness as the idea of free acts in general. Not entering into a given contract entails an opportunity cost in the same way that an act runs into a constraint; if we would rather not incur the cost, or not bump against the constraint, we will (trivially speaking) “choose” not to do so. We will do the other thing instead, but what is the sense of calling the other thing, namely our resulting alternative action, “free"? On this view, it is senseless to speak about choice, with the overtone of freedom that the word carries, once a complete preference-ranking of alternative courses of action is supposed to exist, since the preferred one must ex hypothesi be taken. At worst, this is complete determinism; at best, it shifts the domain of freedom from the choice of actions to the choice of the preferences which wholly prejudge the action that must be taken in conformity with them. At the level of actions, however, “freedom” is a useless attribute for distinguishing contract from command, since one is just as “unfree” as the other.
4. Instead of putting another inclusive binary relation, “either free or unfree,” in the place of “either acceptable or unacceptable,” a continuity argument may be used. It may reasonably be held that while all acts—except perhaps unimportant ones—are unfree, the unfreedom of accepting or refusing contractual and command-obedience relations, as well as of the acts of subsequent compliance, is a function of opportunity cost. Unfreedom of an act decreases as the opportunity cost of not doing it diminishes, i.e., as the value or utility difference between the consequences of doing one thing and doing the next-worse thing gets smaller, and hence the reason for doing the more valuable of the two acts becomes less compelling. In the limit, there are free acts. They are the ones that have no sufficient reason, that are gratuitous in the literal sense of being costless, of having no opportunity cost because the next-worse, forgone alternative was just as worthwhile or just as worthless as the one actually taken. All other non-gratuitous acts are unfree5 to a degree depending on the alternatives, i.e., on the facts of the case. A priori, in abstraction from the circumstances, nothing valid can be said about contract being more (or less) free than command.
The arguments we have sketched ("unacceptable” alternatives cannot be said to leave room for “free” acceptance of less unacceptable ones; there are no free acts anyway; freedom varies inversely with opportunity cost, so that the better the reason for an act, the less free it is) underpin two special pleas.
One arises out of the Marxist view of proletarian existence, of wage labor. The wage contract, despite its outward form, is ostensibly agreed to but in reality it is imposed and functions as if it were command. For the proletariat as a class or for labor as a factor there is no acceptable alternative to selling itself to capital. Capital does have an acceptable alternative to buying labor, namely not buying it, for it does not starve while it abstains. All the great contracts governing the “relations of production” under capitalism—those between capital and labor, the industrialized and the underdeveloped, the center and the periphery, whites and coloreds, urban ghetto and suburbia—are of this unequal sort with no “real” choice but acceptance on the part of the weaker party. This argument draws its logical coherence from the holistic definition of the parties. If “capital” and “labor” are each a single contracting party, it is much easier to see the terms of a contract between them as being primarily a result of bargaining, hence favoring “bargaining power,” than if both capital and labor are merely conventional expressions standing for a multitude of parties who can, in the nature of things, hardly avoid competing among themselves, and cannot impose a bargain.
However, objections to rigging the terms of the debate by holistic definition will unleash other, unanswerable arguments about domination and the use of the political, legal, and cultural “superstructure” to ensure that the predetermined result is in fact produced. The terms of social co-operation will end up being what they must, not matters of free argument but the commands of historical necessity.
The other plea for the contract-command identity is contractarian. It claims that legitimate command whose authority is, however indirectly, derived from valid law must, for its proper understanding, be taken as if it were contracted for. Command to suppress socially destructive conduct, to make free rides costly or otherwise unattractive, to overcome myopia, perversity, and irrationality, falls most clearly into the “as if contracted for” category. People freely obey such commands, or would do so if made to face the consequences of massive disobedience, because they realize their beneficial effects, because the commands emanate from recognized authority, or, at worst, because they are backed by reserve powers of coercion. However, if there were no such authority, it would be constituted anew and equipped with coercive power, “as if” by unanimous consent. All prudentially motivated persons would want to be mutually assured that none of them could upset or frustrate the expected advantages of everybody else’s command-obedience. This als ob result, which would be reached by free and unanimous agreement if it had not been reached by some other “real-time,” historical process, is of course the social contract as an explicatum arising from rational choices. Its terms reflect the general will. “Particular general wills” have to submit to the post-contract commands ("social choices") of the general will. If they preferred to disobey and face sanctions, they could actually be forced into specific performance. Such coercion is essentially contract-enforcement, voluntarily agreed to in the social contract because implicit in its logical structure.
It also follows from the contractarian analysis of terms that interest-antagonism, let alone domination-subjection between state and civil society, is a contrived misstatement of post-contract states of affairs. Conflicts between the propertied and the propertyless, taxpayers and tax beneficiaries, are negotiable in a political market-place where certain exchanges can make some better off without having to make others worse off. They are part and parcel of consensual adjustment processes and fully consistent with unanimity about the terms of the social contract itself.
Both the Marxist plea that “unequal” contract is really command, even if technically it has been agreed to, and the contractarian plea that command which it is in our prudential interest to obey is really contract, even though it has not been formally agreed to, are of course heavily normative. They operate through a reinterpretation of social arrangements and through a classification of the actions of the parties involved as being either “ostensibly” free or “really” free, according to what is required for the plea to be successful.
Avoiding Freedom-Talk and Rights-Talk
There is no need to seek a foolproof distinction between contract-based and command-based social co-operation by references to the freedom, or degrees of unfreedom, of entering into the relevant commitments and of acting in compliance with them. On the contrary, there are reasons against trying to base robust concepts upon frail ones. Avoidable recourse to concepts of freedom can only too easily lead to the graveyard of philosophical reputations, due to a person’s freedom being an awkward function of constraints set both by nature and by the acts and omissions of other free persons. Nature is a datum, but how to deal with the freedom of others? Are there not more unknowns than equations?
Circularity or an infinite regress is involved in defining the freedom of each in terms of the freedom of others: witness the vacuous formulae “equal freedom” (Kant, Herbert Spencer), or “greatest freedom compatible with like freedom for everybody else” (Rawls).6 As freedom cannot be grasped and explicated by reference to itself, freedom-talk invariably spills over into rights-talk, “rights” defining freedoms and serving as the exit from circularity to a firm fulcrum on which to rest freedom concepts. A person’s freedom, then, is confined within his rights; his rights, in turn, are constrained by the rights of others. Why, however, should a person have a particular right to begin with? Why should his rights (assuming he has any) stop, and those of others start, at a particular borderline? Rights can only serve as an Archimedean firm stopping-point if they do not themselves suffer from the logical disability which makes freedom-talk circular. Barring recourse to a transcendental, ultimate stopping-point in God’s will or in a natural order, it seems to me hard to feel much optimism on that score.
The other reason for not getting involved in unpromising and intractable issues of freedom and rights has to do with Occam’s razor. There is a simple, minimal way of establishing and using the contract-command distinction in terms of the minimum amount of explanation needed by each.
Let the object of a contract be some entity, whether money, utility, or concord, of which both parties would rather have more than less, i.e., which is a good for both, and let there be forms of possible co-operation between them which are expected by each to result in more of the good to the two of them taken together, and in not less of it to each separately. Minimal rational-choice assumptions help establish the probability, or make it greater than it would have been otherwise, that a contract will be concluded committing the two parties to the co-operative acts needed to produce the expected incremental surplus good, as well as settling in advance its distribution between them. An additional, relatively easy, assumption of no deceit, no entrapment, can exclude any solution of the bargaining problem involved in the distribution of the surplus which does not leave any of the parties at least as well off as if he had not entered into the contract.
The crucial difference in a command-obedience relation compared to contractual co-operation is that the former always requires some additional explanation; the surplus good expected to result from the giving and carrying out of commands is an insufficient reason for the existence of the relation. Unlike the contract, the object of the command is not always a good for both the superior and the subordinate; often it serves the superior alone. (Nor, incidentally, is the distribution of the surplus between superior and subordinate a matter of the two of them solving a bargaining problem.) Historical explanations of command would discover real-time causes, such as the residual effects of conquest, authority springing from inherited status, or the sheer force of character, and perhaps above all the “threat potential” inherent in uneven distributions of force. Functional explanations would furnish reasons drawn from the contribution or benefit structure of a potential co-operative arrangement which would set obstacles to contractual agreement and call for command. Regulating city traffic, keeping a classroom silent, cultivating sugarcane in an impossible climate, fighting a war on foot-and-mouth disease might not lend themselves to contract at all or only with very indifferent success. The functional explanation will in some cases complement the historical, explaining the longevity and resistance to wear and tear of a command-obedience relation originating in history. Explanations of the state are often of this latter kind.
Reliance on minimal explanation for contract and the need for non-minimal ones for command seem to me a simpler, less unsatisfactory way of dividing non-affective co-operative social arrangements into contract and command than the recourse to slippery notions of freedom and rights. Even so, the dividing-line remains blurred.
