Moral rights in the unconstrained vision are rights to results. Their political and judicial enforcement justify the extension of government power to domains of interest, such as those protected by property rights. Those other interests are not annihilated but are abridged to the extent made necessary to vindicate more fundamental rights and constitutionally protected values. This process involves judges weighing competing values-making complex "constitutional choices" in Laurence Tribe's phrase- rather than simply applying procedural rules.
The Constrained Vision
Much of what the unconstrained vision sees as morally imperative to do, the constrained vision sees man as incapable of doing. Because of the crucial premise that man cannot effectively monitor the social ramifications and reverberations of his individual choices-whether he acts for himself or in the name of society-the constrained vision treats as moot vast ranges of moral principles encompassed under the heading of social justice. There are no "constitutional choices" to make, if man cannot choose social results anyway. Even when the individual's decision has major social impact, it will seldom be the result he intended, given the assumption of the constrained vision that deliberately determining social results rationalistically is beyond the capabilities of man. A central concern of those with the constrained vision is precisely that there will be major social impacts of a kind completely different from the intentions, including the destruction of the rule of law in the quest for an illusory social justice.
In the constrained vision, the principles of justice are subordinated to the possibilities of justice. Oliver Wendell Holmes acknowledged that taking account of the inborn clumsiness of an individual who innocently inflicted damage on others would be a higher form of justice, but dismissed it as a principle of civil litigation beyond human capability. The whole literature on social justice issuing from those with an unconstrained vision is almost totally ignored by those with the constrained vision. Particular issues are covered in both visions, but the general principles of modern social justice theory are neither contested nor evaluated by the leading contemporaries in the constrained vision. Even Hayek, who has paid more attention to this literature than others of his persuasion, spends virtually no time on its general principles, being concerned instead with determining the likely social consequences of attempting to pursue such goals-their actual realization being implicitly deemed impossible.
Social processes are central to the constrained vision. Individual rights originate, take their meaning, and find their limits in the needs of social processes. However, that does not mean that incumbent judges or political leaders are authorized to expand or contract these rights in ad hoc fashion, according to their changing assessments of social needs. On the contrary, these rights are domains of exemption from the judgments of political or legal authorities. The assessment of long-run social expediency is already implicit in that exemption. This is symptomatic of a more general difference between the constrained and the unconstrained visions. They differ not only in the locus of discretion and the mode of discretion, but also in the locus of assessment and the mode of assessment.
In the constrained vision, man is capable of making long-run and general assessments of social processes, comparing constitutional government with alternative governments or competitive economies with politically directed economies, for example. The mode of assessment is experiential, and the revealed preference of the many- especially when they "vote with their feet"is from this perspective more persuasive than the articulation of the few. By contrast, the unconstrained vision implicitly sees man as capable of judging more immediately, and more minutely, when it offers discrete solutions to numerous social problems seriatim.
While those with the unconstrained vision often stress the complexity of the social choices to be weighed by judges and other surrogate decision-makers, those with the constrained vision see such complexity as too great even to attempt to prescribe specific social results, leaving surrogate decision-makers with the more manageable task of applying rules which allow the substantive trade-offs to be made at the discretion of innumerable other individuals.
With ordinary social results so difficult to control, in the world as conceived in the constrained vision, compensatory justice is beyond consideration. The moral rationales of such policies as "affirmative action" receive little or no attention, given the remoteness of any possibility of their being realized. What is examined instead are the incentives created by such policies and their effect on social processes, especially the rule of law as contrasted with the issuance of edicts prescribing results. The argument concerning "stigma" was rejected in the Bakke case, not on grounds that it was not true, but on grounds that it was not part of the constitutional rules which the Supreme Court was authorized to apply.105
In the constrained vision, with justice as with everything else, "the best is the enemy of the good."
Chapter 9
Visions, Values, and Paradigms
Visions differ both morally and intellectually. Moreover, social visions differ in some respectsthough not all- from visions which play an important role in science. A central question from a moral perspective is the extent to which different social visions reflect differences in value premises. A central concern from an intellectual perspective is the very different history of visions of society and visions underlying scientific theories of natural phenomena. It is also useful to understand whether social issues represent conflicts of values, of visions, or of interests.
PARADIGMS AND EVIDENCE
While visions involve assumed facts and assumed causes, a vision is not a "paradigm" in Thomas Kuhn's sense of a theoretical model of causation.' A vision is an almost instinctive sense of what things are and how they work. Kuhn's "paradigm" is a much more intellectually developed entity, including scientific "law, theory, application, and instrumentation together."2 Visions may lead to paradigms, whether in science or in politics, economics, law, or other fields, but visions and paradigms are different stages in the intellectual process. Whether in science or in social thought, visions or inspirations come first, and are subsequently systematized into paradigms, which embrace specific theories, and their narrowly focused hypotheses, which can be tested against evidence.
In these general intellectual terms, visions of scientific phenomena and visions of society proceed in parallel ways. However, opposing paradigms in science do not persist for centuries, as paradigms derived from the constrained and unconstrained visions have in politics, economics, law and social thought in general. The phlogiston theory and the oxidation theory did not coexist and endure together in chemistry. Scientific paradigms tend to succeed each other in history, not coexist through centuries. While still in the early states of the development of science, "men confronting the same particular phenomena" might "describe and interpret them in different ways." But these divergences, according to Kuhn, "disappear to a very considerable extent and then apparently once and for all."3 No such process has yet become general in social thought.
The fundamental difference between science and social theory is not at the level of visions, or even paradigms, but at the point where theories produce empirically testable hypotheses. The uncontrollable variations which prevent laboratory experiments with societies prevent the decisive confrontations which shatter particular hypotheses, reverberating backward to shake theories and perhaps even topple paradigms and the visions they embody. Moreover, the biological continuity of the human race means that experiments which fail cannot be begun over again from scratch, as a chemist throws out a batch of chemicals from a failed experiment and tries again with a fresh batch of chemicals. We can never know what Germany would be like today if there had been no Hitler, or how Western civilization would have developed, had there been no decline and fall of the Roman Empire. In short, evidence is not as decisive in social visions. This is due not only to the nature of the evidence but also to the strength of commitments to social values.
Although opposing views be
gin with visions, they do not end there. Visions are only the raw material from which theories are constructed and specific hypotheses deduced. In principle, the opposing conclusions reached can be checked against evidence and the conflict of visions resolved. There are a number of reasons why this does not happen on such a scale as to produce a decisive victory for one social vision over others, though individuals may find particular evidence sufficient to change their thinking.
Definitive evidence cannot be expected on the grand general sweep of a vision. A great deal of partial evidence may be accumulated on each side, but the evidence for and against one's own vision can be weighed differently, and being convinced is ultimately a subjective process. Even in those cases where a clear confrontation in empirical terms can be arranged and evidence produced, every lost battle on one front does not signal the end of the war, much less unconditional surrender. When hypotheses deriving from a particular vision are contradicted by evidence in the form in which they were first asserted, they may nevertheless be salvageable in a less extreme or more complex form.
Evidence is not irrelevant, however. "Road to Damascus" conversions do occur. Even if this conversion is only on a single issue, the repercussions on one's general vision may lead to a domino effect on other assumptions and beliefs. Responses to evidenceincluding denial, evasion, and obfuscation- likewise testify to the threat that it represents. At one extreme in the relationship of evidence to visions is the total subordination of evidence to conclusions based on a vision or the theories deriving from it. Those Western intellectuals who for years ignored, evaded, denied, or explained away the growing evidence of Stalin's mass murders and slave labor camps are a classic example of this phenomenon.
Similar cases can be found for both constrained and unconstrained visions. While evidence on particular issues may be falsified, this phenomenon is itself true and weighty evidence for the power of visions. In many cases, there are no personal economic, political, or career gains to be made by the individual that would explain the falsification. It is done simply for the sake of the vision.
Evidence need not be falsified in order to be evaded. The very formulation of a theory may be such as to insulate it from direct confrontation with contrary evidence. In other words, the theory may be so stated that nothing could possibly happen that would prove it wrong. In this case, the theory is reduced to empirical meaninglessness; since all possible outcomes are consistent with it, it predicts nothing. Yet, though it specifically predicts no single concrete outcome, it may insinuate much and be enormously effective in its insinuation. Malthus' theory of population is a classic example of a theory of this sort, based ultimately on a constrained vision, but in later years adapted by others for use as part of an agenda deriving from an unconstrained vision.
The population principle expounded by T. R. Malthus in 1798 projected a grim picture of a highly constrained world inhabited by highly constrained man. It was explicitly set forth in opposition to the ideas of William Godwin and of Condorcet,4 whose unconstrained visions of man were anathema to Malthus.
Malthus' theory began with two postulates- that (1) "food is necessary to the existence of man" and that (2) "the passion between the sexes is necessary and will remain nearly in its present state." These he called "laws of our nature"5- in short, constraints unlikely to disappear. Implicit also was the law of diminishing returns, so that an increase of population would not lead to a proportionate increase in the food supply as more people grew food.6 Thus there were differential constraints on the increase of population and on the increase of food. It was logically sufficient for his purposes that population could grow faster than food, though by calling the former rate of increase "geometrical" and the latter "arithmetical" he dramatized the difference in a way that made the idea indelible and historic.
Because population is ultimately constrained by the food supply, the empirical implication of the original Malthusian theory is that the observed rates of growth of the two must be similar. According to Malthus, "the population constantly bears a regular proportion to the food that the earth is made to produce."7 This is the crucial conclusion from Malthus' two postulates, and it constitutes the empirical test of the truth or falsity of Malthusian theory. If, in the long run, the food supply grows faster than the population, then the average nourishment per person rises and the Malthusian theory is false. Given two possible outcomes which would, respectively, confirm or deny the Malthusian theory, there would seem to be little room for controversy after sufficient time had passed and sufficient data had been collected.
Yet no such clear confrontation of evidence and theory has occurred, because of Malthus' shifting formulations under stress of critical attack. In later years, Malthus declared that higher incomes among the masses could lead to either of "two very different results"- an increase of population or "improvements in the modes of subsistence."8 With both possibilities now being considered consistent with the Malthusian principle, there was no possible evidence that could conceivably prove it wrong- whether it was in fact right or wrong. In reality, as census and other data accumulated over the years, the food supply- and other elements of the general standard of living- tended to increase faster than population. Yet the Malthusian population theory has survived and flourished.
Malthus clearly had a constrained vision. "To prevent the recurrence of misery, is alas! beyond the power of man,"9 he said, and he even doubted whether there had ever been a permanent increase in the span of life.10 He spoke of "laws inherent in the nature of man, and absolutely independent of all human regulations,"11 and declared: "The vices and moral weakness of mankind, taken in the mass, are invincible."12 However, though Malthus' theory of population was within the tradition of the constrained vision, it was not the only population theory consistent with that vision. Adam Smith's theory of population was quite different in analysis and conclusion.13 Moreover, the Malthusian population principle has re-emerged, with modifications, on the political left, among people with an unconstrained vision.
In the modified version, overpopulation is neither inherent nor invincible, but simply cannot be effectively prevented by relying on the discretion of individuals. However, with political leadership, which may range from hortatory to draconian, there is a "solution" through birth control and abortions. In short, ideas originating in one vision may be adapted to another. But, for the Malthusian population theory to last long enough for this to happen, it first had to survive more than a century of contradictory evidence. Its success in doing so suggests that evasions and tautological formulations may protect a theory against evidence as effectively as outright falsification.
While falsification is clearly a conscious decision, evasion is not necessarily conscious, and misperceptions of what constitutes evidence still less so. Theories may persist because the difficult task of bringing them to confrontation with evidence has simply not been performed with sufficient skill and care. This may be especially so when the person testing the theory has a different vision of his own, and reads the opposing vision in his terms, rather than in its own terms. This happened in a celebrated controversy in economics which erupted right after World War II, between distinguished economists of radically different schools of thought- and voluminous evidence failed completely to resolve the issue.
The traditional economic theory was that artificial imposition of wage rates (by government or labor unions) higher than those emerging in a competitive labor market would tend to cause employment to be less than it would be otherwise. This was a direct corollary of the more general economic principle that more of anything tends to be bought at a lower price than at a higher price. In order to test this theory, a critic of this view sent questionnaires to hundreds of employers, asking how they had acted or would act, under various possible conditions involving wage rates. Most employers did not indicate in their replies that they would react to wage increases by firing workers. The critic regarded this as disproof of the prevailing economic theory.14
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bsp; However, the prevailing economic theory was not set forth in terms of what individual employers would say, but in terms of what the economy as a whole would do. While this survey asked employers for their own chosen mode of adjustment, the economic theory being tested dealt with the opposite phenomenon- how a competitive economy imposed modes of adjustments on individuals. For example, an employer might well react to a wage increase by maintaining employment and trying to pass the cost increase along to consumers in higher prices, but if this price increase results in a decline in the sales of his product, forcing him then to reduce production and employment, the net result is the same as if he had deliberately chosen to fire workers because of the imposed wage increase.
The real issue was whether externally imposed wage increases reduce employment, not whether this takes the particular form of (1) individual employer decisions to lay off workers; (2) the bankruptcy of marginal firms; (3) a reduction in the number of new firms entering the industry; or (4) a decline in sales and employment as cost increases are passed on to the consumer. In short, the theory being tested was a systemic theory of market adjustments, while the questionnaire asked about individual intentions among surviving businesses. The voluminous evidence collected was irrelevant to the issue.