NDLI: Constitutional Contractarianism

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Constitutional Contractarianism

Content Provider	Springer Nature Link
Author	Ehman, Robert R.
Copyright Year	1997
Abstract	In this paper, I argue that we should restrict fundamentalcontractarian agreements to decision procedures for adjudicatingdisputes over particular assignments of rights. I attempt toshow that neither substantive principles prescribing specificassignments of rights nor specific rights assignments themselvescan be established at the level of the constitutional agreementsby which we move from force to legal procedures to settle ourdisputes. Instead of substantive principles, I make a case forimpartial non coercive procedural principles that promise toeach party to a dispute a more or less equal chance of a favorabledecision. Whenever it is in our mutual interest to save the costof settling disputes by coercion, it is in our mutual interestto adopt impartial procedures to settle these disputes.In this paper, I shall argue that we must justify particularproperty rights in terms of an impartial constitutional contract.I adopt the concept of a constitutional contract from James Buchananand take his perspective as the starting point of my account.For Buchanan a constitutional contract is the basic agreementthat first introduces rights and makes possible both a marketand a collective provision of public goods. For him, the constitutionalcontract is agreed to from an initial position of predation anddefense in which there are no prior constraints on the appealto force and threat-advantage. However, on his view, the costof using coercion to settle disputes normally makes it in ourrational interest to accept a constitutional contract that replacescoercion with non coercive procedures to settle disputes.My paper will have three parts. In the first, I shall argue thatBuchanan is right to suppose a starting point of predation anddefense to establish a rational basis for legal and moral constraintson the use of coercion to settle property rights. However, Ishall make the case that he is mistaken to attempt to establishparticular property rights from that perspective. The constitutionalcontract must be limited to impartial decisionmaking procedures.In the second part, I shall contrast Buchanan's contractarianismwith that of John Rawls and David Gauthier. I shall show thatboth Rawls and Gauthier fail to recognize, as Buchanan does,that we cannot defensibly raise substantive distributive principlesto fundamental constitutional principles. In the third part ofmy paper, I shall build upon the conceptions of impartialityfound in Buchanan, Rawls, and Gauthier in an attempt to formulatethe main requirements of an impartial constitutional procedurefor the non coercive adjudication of disputes regarding rights.My thesis is that a rational consensual resolution of conflictis possible only by deciding property rights by means of impartialconstitutional procedures.
Starting Page	215
Ending Page	224
Page Count	10
File Format	PDF
ISSN	10434062
Journal	Constitutional Political Economy
Volume Number	8
Issue Number	3
e-ISSN	15729966
Language	English
Publisher	Kluwer Academic Publishers
Publisher Date	1997-01-01
Publisher Place	Boston
Access Restriction	One Nation One Subscription (ONOS)
Subject Keyword	Constitutional Law Political Science
Content Type	Text
Resource Type	Article
Subject	Sociology and Political Science Philosophy Law Economics and Econometrics

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