At the risk of violating blog etiquette, I am not (for now, anyway) writing an introductory post. Suffice it to say that I agree with my co-bloggers that libertarianism and social justice go together and that libertarians should not ignore social justice. That said, I move on to something I’ve thought about for a long time, though this specific formulation is prompted by events in Wisconsin.
Many libertarians seem to applaud Governor Walker’s efforts. I think this may be mistaken—even if the sort of state he wants to bring about is pretty close to the sort of state I would consider ideal. (I do not know what sort of state he really wishes to bring about, but for now I will just assume its my sort of libertarian state—even though I have doubts.) I’ll explain why.
A friend of mine recently posed a question that went something like this: “assume Governor Walker’s desired policies were the norm and that state employees were agitating for the sorts of rights they now take for granted. What would justify granting them those rights?” As a thought experiment asking us whether or not there is justification for those rights as they are, this seemed to me quite useful. On the other hand, I am not sure it is particularly useful for thinking about the justice of what is going on in Wisconsin now. I think the situation there is more like one where people have certain legal rights now and what is being considered is the revoking of those rights. Revoking rights, I think, destabilizes what Lon Fuller called “interactional expectancies” (see his The Principles of Social Order, Second Edition, 2002, 218-224). Put differently, people have legitimate expectations of receiving the sorts of benefits they have long been promised and so unilaterally removing those benefits is illegitimate.
To be honest, I’ve not read the actual legislation under consideration. I’ve got in on my hard drive, but it’s not a priority. I am less interested in the actual events then I am in the principles at issue. So, what I am actually looking for are answers to 2 questions.
First and more importantly: What would make it permissible to unilaterally change the contracts of state employees (or any employees)?
Secondarily, why do so many seem to think its OK to do so?
I don’t have an answer to either question; perhaps my co-bloggers or readers will have suggestions.
For my part, it seems to me that employers’ unilaterally changing contracts—that is, changing the terms of the contract without any input from employees—is impermissible. I’d likely admit that employers can tell their employees that when their contracts are complete, the terms will change and that if they do not like the new terms, they are free to leave. Some employees, of course, will stay on while others will leave. But unilaterally changing the terms of a contract while the contract is in force seems to me to undermine the entire point in having contracts. (Importantly, I think that when we are talking about tenured professors the contract has no end date. Whether tenure is a good idea or not is a separate question.) When those that cherish systems of contract are willing to endorse such acts, it seems to me to undermine the very ideal they seek. Perhaps I am missing something, but it seems to me that we have to achieve the ideal without violating contracts or otherwise acting immorally. The ideal must be “morally accessible” as Allen Buchanan says. It “should be achievable without unacceptable moral costs” (see his Justice, Legitimacy, and Self-Determination, 2004, 61).
I recognize that some will say that the situation in Wisconsin is a bit different then what I have (loosely) described. It is, after all, a government that is the employer and government contracts are different (subject to different laws, etc.). That sort of thinking strikes me as both too statist and too easy. Indeed, it seems to me to beg the question in favor of the state’s right to dismiss genuine contracts. If a government can make a contract, it should be a contract in exactly the same way any other contract is—and so should only be changeable by the same rules.
Part of the problem, I think, is that governments have long built absurd clauses into the contracts they use. I’ve heard of a state university whose contract was one page but referenced a "University Handbook" (or some such) that was completely unavailable for a 2 year period (it was in the process of being revised, if I recall correctly). New hires signed the “contract,” of course, ignorant of what they were agreeing to. This is not, I think, an unusual circumstance. Some contracts at state universities have clauses such that the entire “contract” is subject to rules that the legislature puts in place at any time.
A second part of the problem, I think, is that our culture teaches people to "just trust" that such agencies would not do anything wrong (hence signing the above sort of contract is supposed to be OK). Really, the message is “contracts are not worth the paper they are written on” (and, I suppose, “promises are just words”). So, I shouldn't be surprised when my students hand assignments in late and expect no penalty (my syllabus indicates the penalty). Or when editors are shocked that I get them a referee report by the agreed-upon date (I can’t be the only one, can I?). All of this strikes me as rather unfortunate. I’d rather we take contracts more seriously.