¹ I presuppose at the outset that consensual decision does not emerge as a self-enforcing norm of collective action. There are structures for which this may be expected: ones in which the defection of any denies the reward of cooperation at all. This so-called “essential coalition” problem has its historical instances: in the cartel, the minimal parliamentary coalition, the Western marriage, the isolated exchange of goods and services, the international alliance between approximate equals. The European Economic Community, especially in light of the Luxembourg Accords (1966), also seems a case of this sort. And in all these cases, consensus is self-enforcing: disagreement opens the prospect of defection, which in turn denies the rewards of joint action to others. But the nation-state deviates decisively from the “essential coalition” ideal for at least three reasons: (1) rela-tions of authority and control permit the repression of deviance, (2) slack permits the toleration of at least minor deviance and defection and (3) substitution permits the recruitment of alternative collaborators in collective action when deviance does occur. For all these reasons, it is no historical surprise that consensual decision, like substantive equality, serves as a normative ideal raised in protest against experience.

² This account is admittedly preliminary and covers a large sweep of arguments: Locke on consent, through Godwin, Mill, Calhoun, to the new political economy on the best structure for governmental decision.

³ The argument here is addressed mainly to Calhoun's doctrine of “concurrent majorities,” Wicksell's laissez faire consensus, and Robert Paul Wolff's “direct unanimous democracy.” Cf. Calhoun, J. C., A Disquisition on Government, ed. Post, Gordon (Indianapolis: Bobbs-Merrill, 1973)Google Scholar; Wicksell, Knut, “Ein neues Prinzip der gerechten Besteuerung,” Finanztheoretische Untersuchungen (Jena, 1896)Google Scholar, abridged and translated as “A New Principle of Just Taxation,” by Buchanan, J. M. in Classics in the Theory of Public Finance, ed. Musgrave, Richard A. and Peacock, Alan T. (New York: St. Martins Press, 1964) pp. 72–118 Google Scholar; and Wolff, Robert Paul, In Defense of Anarchism (New York: Harper & Row, 1970)Google Scholar.

⁴ Buchanan, James M. and Tullock, Gordon, The Calculus of Consent (Ann Arbor: University of Michigan Press, 1962)CrossRefGoogle Scholar.

⁵ Schaar, John H., “Some Ways of Thinking About Equality,” Journal of Politics, 26 (11, 1964) 867–95CrossRefGoogle Scholar.

⁶ This universality defines a nearly constant element of political reform in Europe and the United States from the early nineteenth century forward, as rules of exclusion based on property, race, sex, and religion are constricted and overturned. “All” comes closer and closer to meaning all, even if “consent” does not come closer and closer to meaning consent. In moral philosophy, its analog is the principle of universalizability, e.g., roughly, answers to the question “what if everyone did that?” See, for example, Hare, R. M., Freedom and Reason (London: Oxford University Press, 1963)Google Scholar.

⁷ Were it not enveloped in such a symmetry, its value as an assault on monarchy and aristocracy would of course seem slight. If one asymmetry, why not another?

⁸ ” It is not altogether certain that Locke saw his book in this light. Cf. Plamenatz, John, Man and Society, Vol. I (London: Longman's, 1963), 209 ffGoogle Scholar.

⁹ By “anomic power” I have in mind coercion which does not rely on a public code, as in Hobbes's state of nature or many contemporary cities; by “civil” or “private” power I have in mind control over others based on the use of public codes, as with the rights of ownership.

¹⁰ Locke, of course, goes on to develop a very loose doctrine of consent for “later,” historical acts of government, thus avoiding the issue raised by Godwin and others as discussed below.

¹¹ See in particular Kendall, Willmoore, John Locke and the Doctrine of Majority-Rule (Urbana: University of Illinois Press, 1941)Google Scholar.

¹² Godwin, William, Enquiry Concerning Political Justice (edition of 1798), 3 Vols., Priestley, F. E. L. (Toronto: University of Toronto Press, 1946), book III, chap. 2, p. 193 Google Scholar. In his reference to Rousseau, Godwin evidently has in mind the argument that sovereignty is indivisible as it appears in chaps. 1 and 2 of Book II in the Social Contract.

¹³ Mill, John Stuart, On Liberty in Utilitarianism, Liberty, and Representative Government, Everyman edition (New York: E. P. Dutton and Co.; and London: J. M. Dent and Sons, 1951), chap. 1, p. 88 Google Scholar.

¹⁴ As will become apparent, in III below, acts of private harm, combined with static government policy, are critical to the present analysis.

¹⁵ Mill, p. 97, p. 100. I have perhaps unfairly juxtaposed two sentences separated by nearly one hundred lines, but I think they give the main sense of Mill's view as briefly as possible.

¹⁶ Mill's further proposal for a second Chamber composed of intellectuals is meant, evidently, as a method of moral persuasion, not a center of countervailing power against parliament. Cf. Representative Government, ch. 13.

¹⁷ Calhoun, p. 13.

¹⁸ Calhoun, p. 30.

¹⁹ Two antecedents to this argument deserve notice. There is some evidence that the earliest European equivalents for positive law in our sense of that term were made by something like unanimity among local elites. Cf. Weber, Max, On Law in Economy and Society, transl., Shils, Edward and Rheinstein, Max, ed. Rheinstein, Max (Cambridge, Massachusetts: Harvard University Press, 1954), especially, p. 84 Google Scholar. This perhaps corresponds to the “essential coalition” problem, footnote 1 above. A second antecedent is in the doctrine of separation of powers, in its less pragmatic formulations. Cf. Mather, Moses, America's Appeal to an Impartial World (Hartford, 1775) especially p. 8 Google Scholar, where he writes of estates “… armed with a power of self-defense against the encroachments of the other two, by being enabled to put a negative upon any or all of their resolves….“

Cited in Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967) p. 57, 73 Google Scholar. The explicit veto makes the parallel to Montesquieu or Federalist 51 less clear.

²⁰ Alexander Hamilton, Federalist 22. All quotations from the Federalist are as in the edition by Benjamin Fletcher Wright (Cambridge, Massachusetts: Harvard University Press, 1961).

²¹ See Federalists 45 and 58 by Madison, in Wright, and consult Farrand, Max, The Records of the Federal Convention, 4 vols. (New Haven: Yale University Press, 1937)Google Scholar. Particularly revealing are the internal organization of the convention (majority rule by states) and the reaction against the Articles.

²² Rae, Douglas W., “Decision Rules and Individual Values in Constitutional Choice,” and “Political Democracy as a Property of Political Institutions,” both, American Political Science Review, 63 (March, 1969), 40–56 and 65 (03, 1971), 111–19CrossRefGoogle Scholar.

²³ Dahl, Robert A. and Lindblom, Charles E., Politics, Economics and Welfare (New York: Harper & Row, 1953) p. 44 Google Scholar. A more formal argument with similar implications is May, K. O., “A Set of Independent Necessary and Sufficient Conditions for Simple Majority Decision,” Econometrica, 20 (10, 1952), 680–684 CrossRefGoogle Scholar. See also, Reimer, Neal, “The Case of Bare Majority Rule,” Ethics, 62 (10, 1951), 16–32 CrossRefGoogle Scholar.

²⁴ As reported by Madison's notes, in Farrand, p. 99.

²⁵ Barry, Brian, Political Argument (London: Routledge and Kegan Paul, 1965), pp. 245–250 Google Scholar.

²⁶ Hamilton, Federalist 22. Hamilton's example demonstrates an almost clairvoyant intuition for what is now the recent past: “Suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. Suppose the necessity of our situation demanded peace, and the interest or ambition of our ally lead him to seek the prosecution of the war, with views that might justify us in making separate terms. In such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace….”

²⁷ Cf. Plamenatz, John, Man and Society, 2 vols. (New York: McGraw-Hill, 1963), vol. II, chap. 1, pp. 1–36 Google Scholar. A related difficulty, worth noting, is the blindness of the utilitarian doctrine to fair distribution. We will touch on this later, but a particularly useful attempt to offer an alternative doctrine, sensitive to fairness, is Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971)Google Scholar.

²⁸ It would perhaps be more accurate to call it a “tacit assumption” than an axiom, since the present economic theory of utility is reducible in principle to an entirely formal schema.

²⁹ Mathematical Psychics (London: Kegan Paul, 1881)Google Scholar. Despite the elegance of his analysis, Edgeworth's contribution is flawed by Victorian prejudice: he manages to use the utilitarian calculus to justify nearly all the major inequalities of his time. See especially pp. 74, 77–82.

³⁰ Apart from the Von Neumann-Morgenstern system on the assumption that risk does not affect utility.

³¹ The Economics of Control (New York: Macmillan, 1944)Google Scholar. See also Arrow, Kenneth, “A Utilitarian Approach to the Concept of Equality in Public Expenditure,” Quarterly Journal of Economics, 85 (08, 1971), 409–15CrossRefGoogle Scholar.

³² And as rational egoists who know what's good for them.

³³ This of course raises the “intensity problem” from democratic theory. Cf. Dahl, Robert A., A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956), especially chap. 4Google Scholar; Kendall, Willmoore and Carey, George M., “The ‘Intensity’ Problem and Democratic Theory,” American Political Science Review, 62 (03, 1968), 5–24 Google Scholar; Rae, Douglas and Taylor, Michael, “Some Ambiguities in the Concept of Intensity,” Polity, 1 (Spring, 1969), 298–308 CrossRefGoogle Scholar. Notice the devastating effect of the present position on any utilitarian argument for majority rule.

³⁴ “Improperly” because it appears that Pareto did not intend the use presently given to his criteria. Cf. Parsons, Talcott, The Structure of Social Action, Vol. 1 (New York: The Free Press, 1937, 1968), 241–249 Google Scholar, and, less importantly, Tarascio, Vincent J., Pareto's Methodological Approach to Economics (Chapel Hill: University of North Carolina Press, 1968)Google Scholar.

³⁵ Cf. III below.

³⁶ Collective Choice and Social Welfare (San Francisco: Holden-Day, 1970), p. 22 Google Scholar.

³⁷ For a brilliant analysis of such cases see Coase, R. H., “The Problem of Social Cost,” Journal of Law and Economics, 3 (10, 1960), 1–44 CrossRefGoogle Scholar.

³⁸ Hypothetical compensation undoes the connection because it lets me carry out a change so long as I gain enough from it that I could have compensated you for your losses. The idea, implicit in Wicksell (see below), is formalized by Kaldor, N., “Welfare Propositions of Economics and Interpersonal Comparisons of Utility,” Economic Journal, 49 (09, 1939), 549 CrossRefGoogle Scholar, which is excellently discussed in Little, I. D., A Critique of Welfare Economics (London: Oxford University Press, 1950), p. 88 ffGoogle Scholar; and Mishan, E. J., Welfare Economics (Amsterdam: North Holland, 1969), p. 38–51 Google Scholar; and Sen, pp. 30-32. A further difficulty, evidently proved by Skitovski, is that the criterion gives intransitive results. Its importance, for us, is that it brings the practical implications of “efficiency” very nearly full circle to the Benthamite position.

³⁹ Ironically, the idea of the social contract seems to have an at least intuitive relation to this analogy in pre-Lockean thought. This is suggested by the multiple contract theory of Althusius', Politica Methodice Diogesta (1603)Google Scholar, as analyzed by Kendall, , John Locke, pp. 46–9Google Scholar. The explicit analogy reappears in Buchanan and Tullock, p. 250 ff.

⁴⁰ Wicksell, pp. 89–90.

⁴¹ Buchanan and Tullock, p. 285.

⁴¹ A concept owing to Buchanan and Tullock, cf. III below.

⁴² Calhoun, , Disquisition, pp. 19–23, 27–31, 35–54 Google Scholar.

⁴⁴ In Defense of Anarchism (New York: Harper and Row, 1970)Google Scholar.

⁴⁵ Wolff, pp. 22–27. Notice the similarity to Rousseau's search for “… a form of association which may defend and protect with the whole force of the community the person and property of each associate, and by means of which each, coalescing with all, may nevertheless obey only himself, and remain free as before.” (Emphasis added.) Social Contract, book I, chap. VI. Rousseau does propose consensus as the basis of a Active social contract, but urges that “the citizen consents to all the laws, even to those which are passed in spite of him….” (book IV, chap. II) . The sense of this consent has always escaped me.

⁴⁶ Wolff, p. 23.

⁴⁷ Godwin's response to the myth of the social contract seems appropriate to the point: How am I obliged? “Surely not upon the contract into which my father entered before I was born?” Enquiry, book lit, chap. 2, p. 189. In his assault on the Pareto principle, Little, I. D. makes essentially the same observation in A Critique, p. 94 Google Scholar.

⁴⁸ E.g., the ith outcome to the first issue, the jth to the second, etc.

⁴⁹ E.g., a good for which exclusion is impossible or expensive, so that its distribution follows the pattern “if any then all,” or at least, “if some then others.” Olson's, Mancur Logic of Collective Action (Cambridge: Harvard University Press, 1965)Google Scholar offers a classic analysis of the incentive problems raised by public goods.

⁵⁰ This three-operator analysis is controversial, but our point would hold for the four- or n-operator case as well. Cf. von Wright, Georg Henrik, Norm and Action (London: Routledge & Kegan Paul, 1963)Google Scholar or Ross, Alf, Directives and Norms (New York. Humanities Press, 1968)Google Scholar. I myself believe von Wright is correct in claiming that these three operators are sufficient to express the content of any law or other rule, given the auxiliary privilege of negation.

⁵¹ ” … government inaction is as much a choice of policy as government action,” Dahl, and Lindblom, , Politics, Economics and Welfare, p. 338 Google Scholar. See also IV below. Two contrary observations need mention. First, it has been suggested that this choice from mutually exclusive alternatives rules out compromise and creates a zero-sum constraint on outcomes. This is simply incorrect: the compromise outcome is an alternative, and does exclude other outcomes. Second, there is no reason whatever to imagine a zero-sum constraint for mutually exclusive alternatives. Consider, for example, an Edgeworth box for two traders. Its points are in the end mutually exclusive, but choices among them are certainly not zero-sum. These erroneous views are expounded by Buchanan and Tulllock, , The Calculus of Consent, p. 253 ffGoogle Scholar. Second, some decisions sug-gest the possibility of multiple outcomes. Say we are awarding medals to national heroes: awarding one may deflate the value of awarding another, but surely does not exclude it. This is correct, but rather superficial. The effective alternatives are lists of national heroes. With n candidates, there would be 2 ⁿ possible lists. But any one list does rule out any other list. A more important example: public works projects as authorized by the American Congress. At the margin, when each new project is considered, it seems irrelevant that others have been approved already, so each may be treated as a separate issue. But the choices are nonetheless forced in two ways: (1) each must be approved in some form or rejected, and (2) one grand list of projects must emerge from each Congress. The current proposal for centralizing the appropriations process in Congress would make this latter point clear even as each project was considered.

⁵² Calhoun, , Disquisition, p. 30 Google Scholar, as cited above, IA.

⁵³ This critical point of interpretation is perhaps counterintuitive, but fits well with the text of Calhoun's essay and is consistent with his tactical position. Calhoun, it will be recalled, had taken a “nullificationist” position against federal tariff policy on behalf of South Carolina in 1828. And, during the 1840s when the present theory was concocted, his region found itself at an increasing disadvantage, in federal policy. Only a doctrine which at once offered a defense against further damage and a recourse against existing policy would suit his need. I believe he found this in the “anarchic consensus” theory as interpreted here.

⁵⁴ I draw this inference in full knowledge that Calhoun rejected the social contract as an historical doctrine, in Disquisition, pp. 3–4. His analytic motive for this seems obvious.

⁵⁵ Wolff, p. 24.

⁵⁶ See, for a main example, Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971)Google Scholar.

⁵⁷ Wicksell. Since Wicksell's system is not symmetrical with respect to the status quo, its structure must be represented in two matrix rows, as follows:

Unanimity is thus required to increase or sustain spending. The system is undefined for cases in which spending is not a relevant variable.

⁵⁸ Landgrebe is Congressman from the Indiana 2nd District and claims to have voted against everv nonmilitary appropriation in the 92nd Congress.

⁵⁹ A limitation which rules out a very great deal: any compromise with consensual decision (agreement by n − 1 members, say) is, in this light, qualitatively indistinguishable from majority-rule or a personal dictatorship. In policy terms, it also entitles me to retain my twenty-seventh fur coat against the feeding of your sick child unless I choose to part with the coat.

⁶⁰ See Buchanan, and Tullock, , The Calculus of Consent, especially pp. 63–96, 249–262 Google Scholar; and section IIG above.

⁶¹ Wicksell imagines this as achieved by parliamentary decision with proportional representation (pp. 96–97), while Buchanan and Tullock focus mainly on direct decision. The word each is very important, for the logic of the efficiency argument collapses even under minor deviations.

⁶² Buchanan and Tullock, p. 285; above, p. 1276–1277.

⁶³ Barry, pp. 245–250. Also Hamilton, Federalist 22, and Franklin as cited above, and Baumol, William, Welfare Economics and the Theory of the State (Cambridge: Harvard University Press, 2nd ed., 1965) p. 42ffGoogle Scholar.

⁶⁴ The notion is Herbert Simon's. See, for example, “Theories of Decision-Making in Economics and Behavioral Science,” American Economic Review, 49 (06, 1959), 253–283 Google Scholar.

⁶⁵ Notice that no sinister motive need be attributed to an elite under this account; a merely self-centered search for alternatives will suffice. It is to Calhoun's credit that he sees the possibility of extractive out-comes without recourse to evil motive: Disquisition, especially pp. 3–7. The classic formulation is Michels, Robert, Political Parties, trans. Eden, and Paul, Cedar (1915; rpt., New York: Dover Books, 1959), especially pp. 377–392 Google Scholar.

⁶⁶ Wicksell, as quoted above, p. 1276. Wicksell has a different consensus structure in mind, but this happens to coincide exactly with the stasis structure under consideration for the present case: both the status quo and the laissez faire solutions would leave real incomes undisturbed.

⁶⁷ In the spatial interpretation given as Figure 2, it is analogous to decision D _ik a or D _ij.

⁶⁸ Lerner and Arrow give far subtler arguments. The simple case made here appears in Jencks, Christopher et al., Inequality (New York: Basic Books, 1972), p. 5ffGoogle Scholar.

⁶⁹ Wicksell, p. 95–96. Given a laissez faire status quo, his argument would apply to the stasis consensual scheme as well.

⁷⁰ People of Plenty (Chicago: University of Chicago Press, 1954), p. 113 Google Scholar.

⁷¹ The phrase is Potter's, , People of Plenty, p. 121 Google Scholar.

⁷² Cf. Buchanan and Tullock, pp. 249–262.

⁷³ The literature of pessimistic economics grows daily. I have in mind, for example, the Committee of Rome's argument as expressed in Meadows, Danella H. et al., The Limits to Growth (New York: Universe Books, 1972)Google Scholar. A very concise and pointed analysis of material limits on growth is Cook, Earl, “Energy for Millenium Three,” Technology Review, 75 (12, 1972), 16–23 Google Scholar.

⁷⁴ See, for example, Runciman, W. G., Relative Deprivation and Social Justice (Berkeley: University of California Press, 1966)Google Scholar and Easterlin, Richard A., “Does Money Buy Happiness?”, The Public Interest, 30 (Winter, 1973), 3–10 Google Scholar.

⁷⁵ The institutionalization of side-payments is discussed in Coleman, James S., “Political Money,” American Political Science Review, 64 (12, 1970), 1074–87CrossRefGoogle Scholar, and Buchanan and Tullock, pp. 265–81.

⁷⁶ It should be clear that these shortcomings are not unique to consensual decision. It is obvious that implication (1) does not hold for other structures: All other structures permit changes opposed by some persons and thus brook the possibility that efficiency-undecidable choices will result. Implication (2) is also violated by other structures: efficiency-dominant outcomes may be passed up. Biased search is perhaps universal; many structures, such as majority voting, invite strategic manipulation. (See, for instance, Farquharson, Robin, A Theory of Voting (New Haven: Yale University Press, 1969)Google Scholar. Finally, other structures fail to enforce equalitarian outcomes even where these may arguably serve to maximize total welfare. See Riker, William, “Bargaining in a Three-Person Game,” American Political Science Review, 61 (09, 1967), 642–56CrossRefGoogle Scholar. For an introduction to the related “games of fair division” problem, see Luce, Duncan and Raiffa, Howard, Games and Decisions (New York: John Wiley, 1967) pp. 363–68Google Scholar.

⁷⁷ Notice that this history is exactly the “market case” in which successive gains from trade drive partners toward a contract locus from which further gains are impossible. This is the very heart of the “market analogy.”

⁷⁸ Here is the account given by Buchanan and Tullock, p. 91:

… if decisionmaking costs are neglected, this test [consensus] must be met if collective action is to be judged “desirable” by any rational individual calculus at the constitutional level. We may illustrate this point by the classical example of Pigouvian welfare economics, the case of the smoking chimney. Smoke from an industrial plant fouls the air and imposes external costs on residents in the surrounding areas. If this represents a genuine externality, either voluntary arrangements will emerge to eliminate it or collective action with unanimous support can be implemented. If the externality is real, some collectively imposed scheme through which the damaged property owners are taxed and the firm's owners are subsidized for capital losses incurred in putting in a smoke-abatement machine can command the assent of all parties. If no such compensation scheme is possible (organizing costs neglected), the externality is only apparent and not real. The same conclusion applies to the possibility of voluntary arrangements being worked out. Suppose that the owners of the residential property claim some smoke damage, however slight. If this claim is real, the opportunity will always be open for them to combine forces and buy out the firm in order to introduce smoke-abatement devices. If the costs of organizing such action are left out of account, such an arrangement would surely be made. All externalities of this sort would be eliminated through either voluntary organized action or unanimously supported collective action, with full compensation paid to parties damaged by the changes introduced by the removal of the externalities.” This is an unconventional use of “externality.” But, as will be seen momentarily, it is also incorrect analytically.

⁷⁹ See Barry, p. 256 ff, in connection with this and succeeding criticisms of Buchanan and Tullock.

⁸⁰ See note 79.

⁸¹ Buchanan and Tullock, p. 186 recognize this prospect where side-payments are available.

⁸² Buchanan and Tullock, p. 45.

⁸³ Ibid., p. 39.

⁸⁴ Ibid.

⁸⁵ Above, Section IC, or Buchanan and Tullock, p. 285.

⁸⁶ Ibid., pp. 43-62.

⁸⁷ Ibid.

⁸⁸ Olson, Mancur Jr., “The Principle of ‘Fiscal Equivalence’: the Division of Responsibilities among Different Levels of Government,” The American Economic Review, Papers and Proceedings, 59 (05, 1969), 479–87Google Scholar, the point in question is at p. 480.

⁸⁹ If the probability of an exception is some small number, p, and there are n citizens with independent chances of being harmed, I should expect the hypothesis to stand in only one out of (1 − p) ⁿ trials. With p greater than, say, .01, and n greater than 1,000, this comes to practically nothing. And regardless what non-zero value p takes, the relevant function approaches zero as n increases toward infinity.

⁹⁰ But such a system of courts would be odd: judges could not make law, and could not therefore cope with ambiguity. This suggests, however, either that the courts would be virtually inert or that the law would be very different from any law we presently know. It would be utterly mechanical and lack “open texture” of the sort Hart, H. L. A. describes so interestingly in The Concept of Law (Oxford: Oxford University Press, 1961)Google Scholar.

⁹¹ The relevant literature is stupendous. Two at once entertaining and informative analyses are offered by Baxter, William F., “A Parable,” Stanford Law Review, 23 (05, 1971), 973–77CrossRefGoogle Scholar, and Thomas Schelling, “Hockey Helmets, Concealed Weapons, and Daylight Saving,” Kennedy School Discussion Paper No. 9, 1972. Schelling's, famous paper, “On the Ecology of Micromotives,” Public Interest, 25 (Fall, 1971), 61–98 Google Scholar, is also worth consultine. alone with Barry p. 256ff.

⁹² The nearest historical approximation seems to occur within certain small Utopian communities such as the Hutterite colonies of Western Canada. Cf. Peters, Victor, All Things Common (Minneapolis: University of Minnesota Press, 1965)Google Scholar.

⁹³ See Hirschmann, Albert, Exit, Voice and Loyalty (Cambridge, Mass.: Harvard University Press, 1970)Google Scholar.