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Promoting Consensus in Society through Deferred-Implementation Agreements
- University of Toronto Law Journal
- University of Toronto Press
- Volume 56, Number 2, Spring 2006
- pp. 151-179
- 10.1353/tlj.2006.0007
- Article
- Additional Information
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University of Toronto Law Journal 56.2 (2006) 151-179
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Promoting Consensus In Society Through Deferred-Implementation Agreements†
Ariel Porat
Omri Yadlin
The earth belongs always to the living generation. ... The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. ... Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.1
I Introduction
Unlike private contracts, many social agreements are expected not to maximize wealth but, rather, to redistribute it from one group of citizens to another, typically from the rich to the poor. Social agreement for the redistribution of wealth2 is often unattainable because the poor cannot sufficiently compensate the rich for their contribution. In this article, we submit that in some circumstances, such an agreement may obtain widespread support if and only if it contains a clause postponing the implementation of the redistribution of wealth by a given period of time. Thus, although no consensus can currently be attained on the redistribution of wealth in the present, society can reach an agreement to redistribute wealth in the future. Unlike Thomas Jefferson, who believed that constitutions and laws should be enacted for no more than nineteen [End Page 151] years,3 we submit that some laws should be applied not to the current generation but, rather, to subsequent generations. We term such an agreement a 'deferred-implementation agreement' (DIA) and focus on two reasons that may explain the appeal of such an agreement.4
The first reason that parties may occasionally be more willing to enter into a DIA, as opposed to an immediate-implementation agreement, is that the parties to the former anticipate the possibility of changing sides before redistribution takes place. The fact that the rich could potentially become poor reduces the cost of the agreement to the rich and renders them less reluctant to subscribe to the agreement. Consider, for example, a program to reduce unemployment by restricting the number of weekly hours each employee is allowed to work. Let us assume that such a law cannot be enacted unless both workers and the unemployed reach a social agreement on the matter. Arguably, workers who feel their jobs are relatively secure in the near future will refuse to give up part of their paid work hours. However, if they acknowledge that some of them might join the ranks of the unemployed within ten years, these workers might be less reluctant to back the proposed law, provided that its implementation is deferred by ten years. The possibility that the individuals who make up the group of workers might change sides in the future reduces the cost of the agreement to each such individual and increases the likelihood that they will endorse the deal.
The second reason that parties might accept a DIA, whereas they would reject the same agreement with immediate implementation, is that a DIA often entails the externalization of costs to third parties, thereby reducing its [End Page 152] costs to the contracting parties. Thus, if a rich ethnic majority enters into an agreement with a poor ethnic minority to transfer wealth from the former to the latter, but its implementation is postponed by fifteen years, the present majority is externalizing part of the costs of the agreement to third parties – namely, to the future majority group and to future newcomers. This externalization will reduce the costs of the agreement incurred by the present majority, thereby increasing the willingness of that majority to enter into such an agreement.
In order for the DIA to be an attractive option for parties to social agreements, it is crucial to immunize the agreement from future attempts by the 'rich' party to withdraw from the agreement as the time of implementation approaches. Thus, in the aforementioned unemployment example, there is a substantial risk that in ten years...