The classical social contract tradition of Hobbes, Locke and Rousseau have, in spite of their variation in themes and emphases, enjoyed such fame and acceptance as being basic to the development of liberal democratic theory and practice that it would be almost heresy for any scholar, especially one from the fringes or margins of mainstream (socio-political) philosophical academia, to post frontal, side, arial, rear or sub-surface attack and critique. But the social contract tradition poses challenges that must be accepted on various counts, with new insights and interpretations, given the fluxed reality in contemporary socio-political universe that at once impels extreme nationalism and unavoidable globalism. This becomes all the more important, not simply in order to dislodge the primacy of the loyalty and the reverence of devotion from the followers of this tradition as well as its most virulent critics, but from another perspective which hopes to, if possible, encourage that the anchorage of disclosure be completely implemented - derobing the ideological king of Western political theory for critical anatomical examination.
The hallowed social contract tradition makes certain unusual pronouncements regarding what is natural, what is non-natural and what is merely contrived by humans. It supposes that these unsubstantiated pronouncements are valid and offers what many have contended are rigorous "intuitive", "empirical", "logical", "psychological", "moral", "religio-metaphysical" and other forms of arguments for its assertions regarding contractarianism. Seminal contemporary contributions to the further entrenchment of the intellectual place of the tradition in Western and non-Western political discourse, either by way of affirmation or through coherent critiques have been Rawls, Wolff, Raphael, McBride, etc. I do not intend to go over grounds that they have effectively and efficiently covered, as such a task cannot devolve on me, given the fact that their perspectives bear a verisimilitude with that of the original authors of the contractarianism discussed here, a progeny that I disclaim.
What I offer in this essay is a challenge from the outside. As an outsider who shares no patrimony to the mystique of social contractarianism, I am of the considered opinion that the time is ripe to ask a number of pertinent endogenous and exogenous questions, namely: a) on what empirical data are the material presuppositions of social contractarianism built? b) what are the epistemological and methodological foundations of social contractarianism? c) is social contractarianism not derivable from any other form of sociological presupposition except that of state of nature? d) does any human know a state of nature? Or framed variantly, can any human conjecture a true state of nature? e) given the answers to the above questions, to what extent are the legal and moral foundations of social contractarianism sacrosanct?
I attempt to answer these questions in what can only be a sketch, as time and space (of a World Congress of Philosophy) constraints preclude a longer presentation, but my answers suggest that it is very presumptuous of the social contractarians (Hobbes, Locke and Rousseau; and by extension, those who have embraced the tradition lock, stock and barrel) to suppose that they have captured the basis of social contract and, hence, provide the only logically valid account of 'democratic practice' universally. The challenge has the effect of calling for care in understanding the internal turmoil that 'democratic practice', that is, Western democracy, have persistently generated over the centuries, but especially in this century as humanity turns into the next millennium in another couple of years.
One final note is apposite in this introduction. I have deliberately elected to speak here of 'democratic practice' and of Western democracy. I have not indicated whether liberal or otherwise. This is because, as a bystander to the American political system - a system acclaimed to be the best case of democratic practice in contemporary human polity - I am miffed by the cantankerousness of its principal players (especially the legislators in their ability to vainly pillory the American Presidency for political gain), the freedom without responsibility of the populace and the "holier than thou, I see you today, I am blind tomorrow" foreign policy of official Washington. If I were to qualify 'democratic practice' as I have observed the American system negate the ideals of liberalism, I will not use 'liberal', because of the odium it has generated in its real life American situation, I will prefer to request for "disciplined" democratic practice.
Thomas Hobbes' Leviatha
In The Leviathan, Thomas Hobbes (1651) executes one of the most poignant statements of the Western cultural psyche, an understanding of the moving force behind the evolution and development of culture in the West, without which there would have been unimaginable suffering and destruction, that is, the right to private property. This has resulted in the postulation by Hobbes of what he called the social contract, the state of nature, or the sovereign as the arbiter, the superior power that holds in check the mutual antagonism and the destructive self annihilative war that Western human nature involuntarily, instinctively and compulsively engenders. As Hobbes states,
Again, men have no pleasure, but on the contrary a great deal of grief, in keeping companies, where there is no power able to over-awe them all. For every man looketh that his companion should value him at the same rate he sets upon himself; and upon all signs of contempt, or undervaluing, naturally endeavours, as far as he dare (which amongst them have no common power to keep them in quiet, is far enough to make them destroy each other), to extort a greater value from his contemners, by damage, and from others by example (p. 264. Emphasis mine in italics).
When Hobbes indicates that each man looks to have "his companion should value him at the same rate he sets upon himself", we note that it dramatically inverts the Kantian Categorical Imperative and the Golden Rule of the Christ. While the Kantian principle will have it that we act such that the rule of our action can become a universal law, that is, we should act such that the maxim of our action or the example of the intent and content of our behaviour, may be legislated for humanity because of the justness and moral probity and other regarding nature of such act, and while similarly the position of the Christ would be that we love others as we love ourselves, on the contrary the Western Hobbesian position speaks to our valuing ourselves alone and demanding that others respect this value. It enshrines an egoistic individualism, without a parallel in previous human history, that pervades the Western psyche, an individualism that craves respect without wishing to give same to others their full due except under duress or threat of calamity by an overarching third party; in fact, as is obvious from the Western Hobbesian understanding of human nature, the 'other' person is conceived in oppositional terms - an enemy that must be contained, subjugated or destroyed.
Hoobes identifies three causes of strife in the state of nature as: (a) competition, which causes the invasion of others for gain; (b) diffidence, which causes invasion for safety; and (c) glory, which causes invasion for the maintenance of reputation and defense of the same among their kindred, their friends, their nation, their profession, or their name (p. 264). He argues that when humans lived in a state of nature, life was full of misery:
Hereby it is manifest, that during the time when men lived without a common power to keep them all in awe, they are in that condition which is called war; and such a war, as is of every man, against every man ... on society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short (p. 264-265. Emphasis in the italics mine).
In Hobbes' reasoning, it is clear that the sovereign occupies the position that Deity occupies in monotheistic religious schemes. The sovreign is the law giver (as is drilled into unsuspecting Christian youth in patriarch Moses' decalogue and the Christ's Sermon on the Mount), the upholder of such laws that he deems fit to give and the watchdog over the obedience of such laws as he gives. Without the sovreign, Hobbes is of the opinion that there would be no right or wrong, no justice or injustice, no common values and every act would be permitted for there would be no liberty or commodious living. He says,
The passions that incline men to peace, are fear of death; desire of such things as are necessary to commodious living; and a hope by their industry to obtain them. And reason suggesteth convenient articles of peace, upon which men may be drawn to agreement. These articles, are they, which otherwise are called the Laws of Nature ... (p. 266).
He went on to elaborate with care the distinction between 'right of nature', and 'law of nature' and the nature of the 'contracts' deriving therefrom. But the contracts emanating from the law of nature, which is only a euphemism for the protection of self-interest or self-preservation, becomes void unless there be a sovereign, a 'common power' to monitor obedience of the (egocentered and otherless) contracts so formed by striking fear of punitive expedition greater than the benefits derivable from breaking a covenant into the hearts of those who would have tried to break their sides of the contract; thereby creating injustice, which is no more than the not performance of covenant (see pp. 268-269). In this regard, Hobbes says,
The only way to erect such a common power, as may be able to defend them from the invasion of foreigners, and the injuries of one another, and thereby to secure to them in such sort, as that by their own industry, and the fruits of the earth, they may nourish themselves and live contentedly; is, to confer all their power of strength upon one man, or upon one assembly of men, that they reduce all their wills, by plurality of voices, unto one will: which is as much as to say, to appoint one man, or assembly of men, to bear their person ... as if every man should say to every man. I authorize and give up my right of governing myself, to this man, or to this assembly of men, on this condition, that thou give up thy right to him, to authorize all his actions in like manner. This done, the multitude so united, is called a COMMONWEALTH, in Latin CIVITAS. This is the generation of that great LEVIATHAN, or father, to speak more reverently, of the mortal god, to which we owe under the immortal God, our peace and defense (p. 271).
For Hobbes, then, many consequences, contractual rights, duties and obligations flow from this pact. Some of these are a) that all prior covenants contrary to this new one are voided by the new one; b) that the sovereign cannot do wrong to his subjects or be so accused (as the mortal god) because volenti non fit injuria; c) that the Leviathan cannot be committed to die, and d) he alone can institute what opinions and doctrines are conducive to peace, as he has acquired the collective wisdom of the people who agreed to appoint him.
We may observe here that the Hobbesian social contract ultimately ends in a dictatorship of the Leviathan. Consequently, Hobbes' contractarianism ends in a cul de sac - a dead end as a theory of political organization. We shall examine this further presently, for now, let us turn our attention to the second of our trio contractarians, John Locke.
John Locke's Two Treatises of Civil Government
John Locke was, in my own judgement, one of the most civilized of the intellectuals of his time. His Two Treatises of Civil Government are great testimonials to his intellectual genius and integrity. He started Book 1 with a consideration of the rationality of slavery, and Sir Robert Filmer's apologia for totalitarianism. He concluded, contrary to the general trend of the period, that both slavery and totalitarianism were inconceivable debasements of human nature and rationality. Locke carefully examined the views of Sir Robert, and raised fundamental questions regarding the religious, moral, political, economic, cultural and natural grounds for the supposition that humans were destined to either divine rulership from Patriarch Adam or, for that matter, from either parentage, conquest or necessity. In Book II, titled "An Essay Concerning The True Original, Extent and End of Civil Government", Locke advanced his ideas concerning the true origin of the state and that of political authority in society. While Hobbes postulated a state of nature in which there was perpetual war between contending individuals for the scarce resources available, and the state as the only possible check on the rancour that is innate to human nature, Locke understood human nature as one of,
perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other man (p. 118).
The state of nature that Locke describes is one of "equality, wherein all power and jurisdiction is reciprocal, no one having more than another" (p. 118), it is clearly not a state of "license", it is a state in which "reason, which is that law, teaches all mankind who will but consult it" (p. 119). Locke went further to discuss what constitutes a serious theory of punishment, based on reason and derivable from law of nature that unconditionally binds humans everywhere.
Compared with Hobbes, it is obvious that Locke was almost an incurable optimist, regarding human nature and the goodness and rationality innate to that nature. Locke then argues that humans get out of the state of nature through the voluntary choice of entering a compact, contract or consent of association with other humans for the procurement of the facilities of life which would have been beyond their reach had they gone solo (p. 124). But one cannot contribute what one does not have, and one of the powers that humans lack is that of taking the life of oneself or that of the other. Thus, when thieves or enemies attack one, the only justification for the use of force that may ensue in death to an aggressor, according to Locke, is only for the purpose of self preservation, so that irreparable damage or mischief may not be done to oneself in the unlikely event that civil society fails to ensure the protection of one's life (p. 126). For this reason, according to Locke, one cannot, even in the extreme situation of social aberration called slavery, enter into any compact that does not ensure personal safety or promote one's happiness (pp. 127-128).
While one may grant Locke the above with the proviso that it apply to matured humans who have the full understanding of the responsibilities to the self and to others that attend the freedom that they can claim under the Lockean system, it is important that we note that a crude interpretation that ahistorically attributes this freedom to all humans will be errant. It is not obvious the level of freedom that infants can appreciate or properly claim. If we are ready to treat some offenses as originating from minors and meet out corrective measures rather that punishment, then we would be indicating that minors need assistance to mature and be responsible adults. (This notion is seriously abridged in the Western world as painfully illustrated by the consequential events of misplaced education and a culture a-drift in the USA and other Western societies where children discipline is thrown overboard, creating a culture bred of state of nature theory inured in extreme liberalism and fattened on extreme individualism weighing more on the side of superficial children rights and less on responsible child-rearing, forgetting that before children become responsible adults there must be responsive and responsible parenting).
One other minor digression is indicated here. To be very charitable to Locke, one would have to suppose that he was most probably thinking of peonage, not Western slavery when he asseverated that systems that promote personal safety and happiness override other matters. If one does not use this principle of charity, taking Locke in the most favourable reading, one will not be able to understand the failure on the part of Locke to see the evilness of the type of slavery that took place in the New World, by contrast to systems of "slavery" in various other traditional societies except the West. In various traditional systems of servitude, except in Ancient Greece, the human rights of the serves were not denied and the barest essentials of safety and happiness were instituted. In Ancient Greece, as in Trans-Atlantic slavery, the humans involved (that is, the slave owners, the slave masters and the slaves) were not humans: the slave owners were property owning sub-human animals of the state of nature construct, the slave masters were sub-human despots with terrible complexes only assuaged by tyranny over the defenseless slaves while the slaves were sub-human as they were property, to be treated anyway their owners saw fit or unfit. Hence, Locke was either too ignorant or too civil to understand the Western psyche regarding the enslaved "other", and his theory of state was also too civil for his associates - especially those who have found his theories more handy in explaining government and state.
Locke provides a very detailed examination of the origin of civil government; for he examined the fact that children and infants are not forced to remain in the commonwealth, except for as long as they are minors. In providing the contractarian account of the origin of the state and government, Locke says,
Men being, as has been seen, by nature all free, equal, and independent, no one can be put out of his (her) estate and subject to the political power of another without his (her) own consent, which is done by agreeing with other men (women), to join and unite into a community for their comfortable, safe, and peaceable living, one amongst another, in a secure enjoyment of their properties, and a greater security against any that are not of it (p. 164. Parenthesis mine).
While this statement by Locke may not have been recorded in history for direct verification by posterity for accuracy, it is important that we note that this is Locke's understanding of the origin of civil government. The notion of estate indicates property, which is common to other contract theorists, but his notion of estate does not cover property rights in other human beings, such as Western slavery mentioned above. To doubt this, or to think otherwise, would, for Locke, tantamount to embracing false theories and doctrines.
Jean Jacques Rousseau's Social Contract
Jean Jacques Rousseau started the Social Contract with the assertion of the natural freedom of human beings at birth. This freedom is innate, inalienable and basic. It is common to all of humanity. But somehow humans find themselves in chains, in a state of alienated freedom or in a state of contrived unfreedom. Humans lose the natural freedom with which they were born and they are left with only a semblance of the real thing. He says,
Man is born free; and everywhere he is in chains. One thinks himself the master of others, and still remains a greater slave than they. (p. 181)
He was concerned about how this change came about. In trying to unravel the causes of the change, Rousseau took account of diverse factors. The first that he noticed is force (p. 181). Force, for Rousseau, means compulsion. And compulsion means making a person or people do things against his/her or their will. This, he argues, is unnatural; and if a person or people voluntarily obey such force, one cannot complain; while if they resist such force, it is better still; and, to regain their freedom is infinitely better still. All the process of establishing the system under which members of the society shall live constitute the process of determining the social order (p. 182), and the social order is not a natural order; it is devised by humans in society. In my view, Rousseau is correct in regard to the fact that social order is not natural to the extent that it involves the creation of a complex social milieu with complicated educational and sustenance mechanisms that civil society entails. However, it seems to me that Rousseau is flagrantly mistaken in supposing that humans are born free. For the human fetus is a peculiar anomaly which is indefinitely attached to its progeny and parentage through physical, genetic, economic and social forces, first through the umbilical cord, second through provision of first life sustaining facilities without which the infant is doomed to certain death, and lastly through skill forming and culture providing education which makes independence possible for the individual that emerges from years of parental and community nurture and environmental care. It is this singular fact which makes the transmission of cultures and survival of societies a serious possibility, and further, it is this factor of gradual inheritance of independence and learning through apprenticeship to take care of the young which make Rousseau's position valid in his fear of how social order could arise out of force and be maintained by force.
If the process of establishing the social order is determined through the use of superior force, Rousseau would be amazed as to the type of sustenance the arrangement would have and whether it would endure. For, according to Rousseau, force cannot establish right, and the wish of the strongest can only subsist for as long as the strongest remains the strongest. Immediately the position is reversed, or whenever there is the possibility of disobedience without penalty, the obligation, out of need to avoid untoward consequences, to obey the dictates of the force, vanishes, for force does not create right (p. 185):
The most ancient of societies, and the only one that is natural, is the family; and even so the children remain attached to the father only so long as they need him for their preservation. As soon as this need ceases, the natural bond is dissolved. The children (are), released from the obedience they owe to the father, and the father, released from the care he owed his children, return equally to independence. If the remain united, they continue so no longer naturally, but voluntarily, and the family itself is then maintained only by convention (p. 182. Italics and parenthesis mine).
We may immediately note two things in passing here. First, Rousseau spoke of father and son or children because he wrote during a period when there was no gender consciousness that would have informed discourse in a patriarchal, male dominated society in which he lived. This, I believe, accounts for why he speaks as if when the child is born to a father the child is born by the father. The second thing craving our notation is this: Rousseau conjectures that humans were born naturally free which we mentioned earlier. But the fact is that infants were not born naturally free, as they remain attached to their mothers through the umbilical cord and remain dependent, as he observed, for a long time after birth for what he called preservation, sustenance and protection. Since we have commented above on the natural unfreedom of the infant, it remains only to insist here that it may be that the same reason that accounted for the gender bias of his discourse indirectly informs the inability of Rousseau to see that infants (the human young generally) were never born free. The recognition of this factor would be momentous toward a proper understanding of what educational attitude would be beneficial to society! More will be said on this later, time and space permitting.
For Rousseau, the second factor that leads people into unions, apart from force, as noted earlier, is self-preservation. It is this need for self-preservation which makes the child voluntarily relinquish his freedom to his father, in return for care, provision, and protection. The members of the family alienate their liberty (equality and freedom which they possess in their natural states as human beings) only for their own advantage to the head of the family who is their father (p. 182). This deliberate alienation of liberty, freedom and equality by members of the family is repaid by the love that the father has for members of the family. This love, going by Rousseau's understanding of the relationship, is also not an altruistic one; it derives from self-interest, as the father derives pleasure and satisfaction from leading and commanding the family. In the cases of the state, for Rousseau, since there is no immediate filial relationship to engender love for the followers or members of the community and society, the chief derives pleasure from commanding the people.
The third factor that leads people to association, according to Rousseau, are conventions. By convention, Rousseau understands the first original gathering and agreement process by which a people become, so to say, a people. This he calls an original unanimity, on one occasion at least, which, by inference, gives the majority the right to lead the minority electorally (p. 190). But this convention is also a product of expedience, and it is a contrivance that comes about from the necessity to maximize the innate individual self-interest intrinsic to the Western psyche, using the greater pool of force available to more people. This is in contrast with each person trying to accomplish similar objectives separately and at cross purposes. It is also a fiat that may lose its force because of any individual violation of its clauses due to any unilateral minimal modification, without the consent of the persons who have entered into the compact, thereby returning to each the original conventional liberty they had voluntarily renounced in the hope of a greater liberty derivable from the common pool of greater protection that derives from the commonwealth.
Thus, Rousseau says, in chapter 6 on " The Social Compact" (I wish to quote at length from the passage to allow Rousseau to speak for himself here), that,
I suppose men to have reached the point at which the obstacles in the way of their preservation in the state of nature show their power of resistance to be greater than the resources at the disposal of each individual for his maintenance in that state. That primitive condition can then subsist no longer, and human race would perish unless it changed its manner of existence.
But, as men cannot engender new forces, but only unite and direct existing ones, they have no other means of preserving themselves than the formation, by aggregation, of a sum of forces great enough to overcome the resistance. These they have to bring into play by means of a single motive power, and cause to act in concert.
The sum of forces can arise only where several persons come together: but, as the forces and liberty of each man are the chief instrument of his self-preservation, how can he pledge them without harming his own interests, and neglecting the care he owes to himself? This difficulty, in its bearing on my present subject, may be stated in the following terms:
'The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before'. This is the fundamental problem of which the social contract provides the solution (pp. 190-191).
The important consequence of the contract so ordained by each man with the other man is the creation of the sovereign. The sovereign, in Rousseau's reasoning, is not a person, but an authority. It is not even an aristocratic group, but an aggregation of the individual voices and wills of the contracting members of the society. Because of this, the sovereign cannot become law unto itself in a way that people in the state has not deign it fit to be the individual and several recipient of the benefits derivable thereof. Thus,
Each of us puts his person and all his power in common under the supreme direction of the general will, and in our corporate capacity, we receive each member as an individual part of the whole.
At once, in place of the individual personality of each contracting party, this act of association creates a corporate and a collective body, composed of as many as the assembly contains voters, and receiving from this act of unity, its common identity, its life, and its will (p. 192).
The social contract, once formed, engenders minor inconvenience for those who may not realize that it is in their interest to be obedient to its authority. It involves the possibility of coercion, where 'renegades' are 'forced to be free' or forced to obey the laws that they have freely made for their self-protection (p. 195). This is not an evil as such, for it prevents the greater evil of individuals fending for themselves and failing in the process, ending up with the greater inconvenience of having to live in the state of nature. Through the aggregation of the individual wills there emerges the collective will which is stronger and more able to effectively and efficiently guarantee the individual rights that would otherwise have been threatened because of individual incapacity to protect their rights on their own.
The appeal of this theory, like the creation story found in the Genesis consists first and foremost in its intuitive appeal, conceptual simplicity and theoretical elegance. In fact, the social contract theories have captured the imagination of all many, becoming almost as divine as the system of Euclid in Western scholarship. And one cannot but be impressed by the acuity and perspicacity of the trio contractarians that we have examined here. But the genius that provided the impetus to the development of this type of democratic construct has not gone without serious challenge from various directions. Before we conclude this discussion, we will examine some of the criticisms of the social contract theory - both the endogenous types that have suggested complete rejection of the theory and those endogenous ones that have suggested emendations to remove the weak points of the theory.
Criticisms of Contractarianism
The usual criticisms of contractarianism have been endogenous to Western cultural orientation and, because of that, have not been audacious enough to challenge the fundamental assumptions of contractarianism. Some of the criticisms have, in fact, been anticipated by the contractarians. For example, the criticism that the state of nature was never a historical reality experienced by humans was carefully discussed by John Locke, who, perhaps, was the most intellectually robust of the three classical contractarians we have discussed in this essay. His response was that the history of human society makes clear determination difficult for the historicity or non-historicity of the postulated compact. In a sense, the admission that this contract was never supposed to have been a real life one deflates the seriousness of the critique, but nevertheless, it is clear that after admitting that the compact was not a historical one, one still finds that contract theorists still use their postulate to warrant the sovereign and the allegiance people are supposed to owe to state authority as "constituted authority".
Another, similar but not the same, criticism has been the argument that the "social contract" indicated in the contractarian theory is simply a hypothetical one, designed as an analogical apologia to justify the legitimacy of democratic principles and practice on which Western societies have sought to found governmental systems and nothing more. But then, it is suggested by the critic, this hypothetical methodology is prospectively stretched too far as if it were a factual reality, thus creating the logical gap between the intention and the actual outcome of discourse. Hobbes and Rousseau are partly guilty of this error, but it is clear that what the contractarians were doing was more important than mere hypothesizing. They were concerned with the justification, more than the mere historical origin, of government.
It has also been argued that the government that is derivable from the contractarian contraption is not uniformly the same; that Hobbes derives a Leviathan dictator, Locke a state that is shot through with democratic principles that surpasses the mere legalisms of contractarianism; while Rousseau came up with a state that indicates minor incongruities of forcing dissenting members to be free, even against the wishes of these 'recalcitrant' members. One way of assuaging the implications of this particular criticism is to look at the historical factors that led to the development of these contrasting contract approaches by each of the contractarians. These are complex social, historical and intellectual issues beyond the scope of this present discussion, and as such, could be addressed in another study by people competent in these intellectual areas.
The contractarians all suppose that the state of nature is one in which human nature tends only toward negative expressions. This is very much similar to the understanding of human nature found the Christian religion where the negation of the good in human personality, albeit through the sinister artifice of the Serpent typified as the Great Fall of Patriarch Adam and Mother Eve from Divine Grace, leads to the projection of the good ad infinitum to the supernatural, such that a dependency of humans on the supernatural becomes inevitable, to counterbalance the inherent weakness and predatory nature of humans, and also to bring about redemption and ultimately lead to the realization of the positive that has been in abeyance, latent and negativised by the negatives in human nature.
In the case of the contractarians, the balance of the negatives in the human socio-political and economic nature inexorably leads to the creation of the state, a big brother who is permanently breathing down the necks of the recalcitrant humans who would never have done the right thing unless coerced. Or, minimally, the state enforces the wiles and ideas of the individual person who needs the enforcer.
By painting the picture of gloom and doom, the stage is perfectly set for the state authority as an inevitability. But even if we grant this gloomy picture of human nature in its 'natural' state, the inevitability of the contractarian state as the only possible arbiter is not logically established, as there are societies that have not, given this picture, gone to the point of setting up state powers as they have remained stateless societies. Hence, it has been contended, that if the fear of the gloom has not compelled some societies to statecraft it can only evidence the logical gap in the contractarian argument, namely, that the gloomy picture painted in which humans in the state of nature are in perpetual grief because of mutual suspicion, the avarice and covetousness that arise as a result of the natural scarcity of resources and mutual exclusivity of conflicting needs are not inevitable paths to statecraft.
Upon a careful analysis of the contractarianism of Hobbes, Locke and Rousseau, it will be seen that there is no doubt that the position which private property has occupied in Western consciousness has indicated the contractarian apologia for statecraft as the only means of averting the extinction of humanity through inordinate greed, dispossessive quest for personal enrichment to the detriment of other equally deserving humans in the same environment and the mutual self-destruction that would have followed the war of all against all which is intrinsic to human nature in Western culture.
It is clear that Western culture is built on the position that only the fear of violence and mutual annihilation impels humans, through passions, to peace. In other words, peace arises out of the recognition of the futility of the antagonistic war of all against all (omnium bellum contra omnes). On the contrary, the critic will argue that it is not passion but reason that leads to the human need to contemplate the arrangement for peace and statecraft; that is, the state as a craft, a contrivance of the highest human genius. This is evident from the simple fact that passion has no time to contemplate, but only to gratify in whichever way possible, but only reason can be used in the service of passion to work out the best means of gratifying the needs that passion forces upon humans.
Also, when Hobbes conjectures that humans place a value upon themselves and desire that others recognize this value, exerting through force this recognition, if need be, it is clear that Hobbes has inverted the Kantian Categorical Imperative and the Golden Rule of the Christ. Clearly, it is obvious that forming a compact with others to pursue the recognition of the store of value one places on oneself only goes to show that one should place equal value first on the other human, in order to be able to get into a contractual relation with the other, based on trust. Obviously, the development of concepts of self valuation, contract formation and trust are not concepts that passion is capable of forming, nor ones which persons in states of passion can adumbrate. Hence, the conviction, on our part, that the contractarians did humanity a disservice by enunciating a one-sided notion of human nature. This failure on the part of the contractarians deliberately creates a fiat, it supposes that there was a point in the human past that steps were left unadopted to protect the weak and the young in so far as it did not pander to the glory and psychological gratification of some person(s). Herein lies the weakness of the suggestion that fatherly love is selfish gratification of base ingratiation and that leadership could not have developed from genuine need to create a better society for the self, contemporaries and generations unborn.
Finally, the idea of the dependence of infants on parents as arising from the need for self-preservation is jejune. If the human infant ever has any serious ability to procure self-preservation at all, it is as a dependent, as the severance of the umbilical cord that unites the infant to the mother is a painful one, as this cord had always been the means of nurture for the infant in-situ. At birth the dependence is natural, and no amount of contractarian contraption could will away the dependence of the human infant, unlike most other animals, on their parents. Saying that the father (one would imagine here that the contractarian here properly means the mother) derives pleasure (and fulfillment from maternal caring for the infant) for the service provided, through directing and presiding over the affairs of the family, is not good reason to warrant the labours that go into the nurture of the human infant. In fact, this is good enough reason to say that humans were never born free, but only come to acquire freedom in maturity.
Government need not derive from the state of nature
The state of nature theories (and, by extension, theorists) and Western political philosophy (mutantis mutandis, Western political philosophers) have assumed that the only way for deriving representative, just, humane, democratic culture and practice is through the formal consent, compact, or contract that the electoral systems have formalized. In making the assumption, they have undertaken to impose on other societies a mode of civil government that is not intrinsically indigenous, though not totally alien to their historical experience and the aspirations that their civilizations have developed over numerous millennia. In other words, Western intellectuals only conceive of civil society as a means of preserving individuality while other older societies have seen the individuality has no meaning outside of community.
Thus, while the expedience of electoral practice might be the only 'objective' barometer for clear measurement of contemporary governmental popularity and legitimacy in the complex arena of international politics, it is important that the point be made that democratic cultures had developed and thrived in ancient civilizations outside the West without the acute contentiousness, intrinsic mutual antagonisms and warring fratricidal destructiveness that is typical of the possessive Western individualist, whose sense of community is forged only as a matter of self-preservation and not because of the natural and inescapable innate social inclinations of humans. Not to recognize this fact will tantamount to telling only one side of the story about human political organization. It will be telling one true story as if it were the only true story instead of telling that one story as one of the many true stories about the development of similar phenomena.
In cultures where ownership of property is not the first principle of association, where the recognition of the existence of others as the crucible within which one's existence is made possible and meaningful is understood, where there is mutual trust between members of family that transcends that temporary link forged by incapacity on the part of infants to fend for themselves and the transient obligation of parents and adults to provide for minors, where, even when there are wants and needs that scarcity may make difficult not to contend with others to fulfill but such contentiousness are not without the primary understanding that life is more important and associations and associates more permanent than immediate material satisfaction and gratification, it will not be difficult to see why deriving good political cultures from neighbourliness, and, consequently, hypothesizing political cultures that endorse first social and communal well being as the harbinger of individual and personal well being of members may be a better alternative and why civil society would have developed and prospered without any prejudice to the nature and internal peculiarity of Western political history. It is no wonder that civil society developed in older civilizations of the world before Western civilization was mid-wived by these older civilizations, especially that of the Nile Valley.
1. The Role of the Social Contract
1.1 Distinctiveness of the Social Contract Approach
The aim of a social contract theory is to show that members of some society have reason to endorse and comply with the fundamental social rules, laws, institutions, and/or principles of that society. Put simply, it is concerned with public justification, i.e., “of determining whether or not a given regime is legitimate and therefore worthy of loyalty” (D’Agostino 1996, 23). The ultimate goal of state-focused social contract theories is to show that some political system can meet the challenge Alexander Hamilton raised in Federalist no. 1 of whether “men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force” (Hamilton 1788). Going further, David Gauthier argues that any system of moral constraints must be justified to those to whom it is meant to apply. “What theory of morals,” Gauthier asks, “can ever serve any useful purpose, unless it can show that all the duties it recommends are truly endorsed in each individual’s reason?” (1986, 1).
The ultimate goal, then, of social contract theories is to show, in the most general sense, that social (moral, political, legal, etc.) rules can be rationally justified. This does not, however, distinguish the social contract from other approaches in moral and political philosophy, all of which attempt to show that moral and political rules are rationally justifiable in some sense. The true distinctiveness of the social contract approach is that justification does not rely on some exogenous reason or truth. Justification is generated by rational agreement (or lack of rejection in T. M. Scanlon’s version), not by the reasons that generate agreement. That is, the fact that everyone in a society, given their individual reasoning, would agree to a certain rule or principle is the critical justification for that rule, rather than certain correct or sound reasons that sufficiently rational individuals would appreciate and, if appreciated, would lead to agreement.
Although contractarians differ in their account of the reasons of individuals, with some being attracted to more objectivist accounts (Scanlon 2013), most follow Hobbes in modeling individual reasons as subjective, motivationally internal, or at least agent-relative. This may be because of skepticism about moral reasons generally (Gauthier 1986, Binmore 1998), a conviction about the overwhelming importance of self-interest to the social order (Hobbes 1651, Buchanan 2000 , Brennan and Buchanan 1985), a concern to take seriously the disagreement of individual view in modern society, and this includes differences about objectivity (Gaus 2016, 2011a; Muldoon 2017; Moehler 2014, 2015, forthcoming) or because this approach is consistent with the most well-developed theories of rational choice in the social sciences (Binmore 2005, Buchanan 2000 ). In any case, the reasons individuals have for agreeing to some rules or principles are importantly their own reasons, not “good reasons” from the impartial perspective. Of course, those same individuals may care about what they perceive to be the impartial good or some other non-individualistic notion—they need not be egoists—but what they care about, and so their reasons will differ from one another. This point, as Rawls highlights in his later work, is crucial to understanding political justification in a diverse society where members of a society cannot reasonably be expected to have similar conceptions of the good (Rawls 1996). Recent contractarian accounts put even greater weight on heterogeneity (Southwood 2010, Gaus 2016, Muldoon 2017, Moehler forthcoming, Thrasher 2014b, Thrasher and Vallier 2015, Thrasher 2015).
1.2 The Social Contract as a Model
Given these features, we can think of social contract theories as having a general schematic form. Social contract theories are a model of justification that have several general parameters that are set differently in different theories. What distinguishes contractarian theories is how they specify these general parameters. The goal of the model is to represent our reasons for endorsing and complying with some set of social rules, principles or institutions. This is done by showing that some model representatives choosers who would agree to these rules in some specified choice situation. Critically, there are two sets of relevant individuals (I and I*). The first set is the model choosers (I) constructed in the “device of representation” such as the original position. The second set is composed of real individuals (I*) whose terms of interaction are to be guided by the contract. If the deliberations of the contractors (I) are to be relevant to the actual participants (I*), the reasoning of the former must, in some way, be shared by the latter. Another variable is the deliberative setting (M) in which the model choosers (I) endorse some principles or rules, principles, or institutions (R). Given all of this, we can identify a general model of social contract theories:
General Model of the Social Contract:I chooses R in M and this gives I* reason to endorse and comply with R in the real world insofar as the reasons I has for choosing R in M are (or can be) shared by I*
The social contract, then, is a model of rational justification translating the problem of justification (what reasons individuals have) into a problem of deliberation (what rules they will agree to). As Rawls argues:
Understood this way the question of justification is settled by working out a problem of deliberation: we have to ascertain which principles it would be rational to adopt given the contractual situation. This connects the theory of justice with the theory of rational choice” (Rawls 1999, 16).
At the simplest level, models take something complex and make it simpler. Along these lines, both the economist Ariel Rubinstein (2012) and the philosopher Nancy Cartwright (1991) compare models to fables. Fables are stories that communicate some important lesson in a simple, easy to understand fashion. Fables, like models, communicate important general rules through particular, though fictional, cases.
Models involve abstraction and idealization, but they do more than that: they help us see what our key assumptions are, identify the factors that we see as relevant (Gaus 2016, xv-xvii). Michael Weisberg concurs that models, as techniques of idealization, do more than abstract (2007a, 2013). Consider the periodic table of the elements. It is an abstraction, but not a model according to Weisberg. He calls abstractions like the periodic table abstract direct representations to distinguish them from models (2007b). Modeling seeks to isolate the important features of the target phenomena, allowing the modeler to understand and manipulate important elements of the phenomena in simulations. John Rawls’s representatives to the original position, for instance, are not only abstractions of real persons. They are idealizations that isolate particular aspects of persons that are relevant to justification as a choice, specifically their thin theory of rationality, and their values (in the form of primary goods). Isolating these features is important for modeling the agreement procedure in Rawls’s theory.
The social contract models our reasons for endorsing and complying with some set of social rules or institutions. How the theory does this depends on the assumptions made and the specification of the parameters.
2. Modeling the Parties
2.1 Reductionist vs. Non-Reductionist
How the contract theorist models the parties to the agreement is determined by our (actual) justificatory problem, and what is relevant to solving it. A major divide among contemporary social contract theories thus involves defining the justificatory problem. A distinction is often drawn between the Hobbesian (“contractarian”) and Kantian (“contractualist”) interpretations of the justificatory problem. These categories are imprecise, and there is often as much difference within these two approaches as between them, yet, nevertheless, the distinction is useful in isolating some key disputes in contemporary social contract theory. Among those “contractarians” who—very roughly—can be called followers of Hobbes, the crucial justificatory task is, as Gauthier (1991, 16) puts it, to resolve the “foundational crisis” of morality:
From the standpoint of the agent, moral considerations present themselves as constraining his choices and action, in ways independent of his desires, aims, and interests…. And so we ask, what reason can a person have for recognizing and accepting a constraint that is independent of his desires and interests? … [W]hat justifies paying attention to morality, rather than dismissing it as an appendage of outworn beliefs?
If our justificatory problem is not simply to understand what morality requires, but whether morality ought to be paid attention to, or instead dismissed as a superstition based on outmoded metaphysical theories, then obviously the parties to the agreement must not employ moral judgments in their reasoning. Another version of this concern is Gregory Kavka’s (1984) description of the project to reconcile morality with prudence. On both these accounts, the aim of the contract is to show that commitment to morality is an effective way to further one’s non-moral aims and interests. Here the justificatory problem is satisfactorily answering the question “why be moral?” This “contractarian” project is reductionist in a pretty straightforward sense: it derives moral reasons from non-moral ones. Or, to use Rawls’s terminology, it attempts to generate the reasonable out of the rational (1996, 53).
This approach is appealing for several reasons. First, insofar as we doubt that moral reasons are genuine or motivationally effective, such a reductionist strategy promises to ground morality—or at least a very basic version of it—on the prosaic requirements of instrumentalist practical rationality (Moehler forthcoming). The justificatory question “why be moral?” is transformed into the less troubling question “why be rational?” Second, even if we recognize that moral reasons are, in some sense, genuine, contractarians like Kavka also want to show that prudent individuals, not independently motivated by morality would have reason to reflectively endorse morality. Furthermore, if we have reason to suspect that some segment of the population is, in fact, knavish then we have good defensive reasons based on stability to build our social institutions and morality so as to restrain those who are only motivated by prudence, even if we suspect that most persons are not so motivated. Geoffrey Brennan and James Buchanan argue that a version of Gresham’s law holds in political and social institutions that “bad behavior drives out good and that all persons will be led themselves by even the presence of a few self-seekers to adopt self-interested behavior” (2008 , 68). We need not think people are mostly self-seeking to think that social institutions and morality should be justified to and restrain those who are.
On the other hand, “contractualists,” such as Rawls, John Harsanyi (1977), Thomas Scanlon (1998), Stephen Darwall (2006), Nicholas Southwood (2010) and Gerald Gaus (2011) attribute ethical or political values to the deliberative parties, as well as a much more substantive, non-instrumentalist form of practical reasoning. The kinds of surrogates that model the justificatory problem of ‘you and me’ are already so situated that their deliberations will be framed by ethico-political considerations. The agents’ deliberations are not, as with the Hobbesian theorists, carried out in purely prudential or instrumentalist terms, but they are subject to the ‘veil of ignorance’ or other substantive conditions. Here the core justificatory problem is not whether the very idea of moral and political constraints makes sense, but what sorts of moral or political principles meet certain basic moral demands, such as treating all as free and equal moral persons, or not subjecting any person to the will or judgment of another (Reiman 1990, chap. 1). This approach, then, is non-reductionist in the sense that not all of morality is derived from the non-moral.
A benefit of the non-reductive approach is that the choosers in the contractual procedure (I) share many of the normative concerns of their actual counterparts (I*). This should ensure a closer normative link between the two parties and allow for the contract to generate a thicker, more substantive morality, presumably closer to that already held by I*. Whether this is so, however, depends on how closely the non-reductionist model of rationality is to the reasoning of actual individuals.
At this point, the debate seems to be centered on two positions, which we might call the robustness and sensitivity positions. According to the proponents of robustness, whatever else moral agents may disagree about, we can safely assume that they would all be committed to basic standards of rationality (Moelher 2017, 2013). We should thus suppose this same basic, shared conception of rationality and agency: when people fall short of more moralistic ideals and virtue, the contract will still function. It will be robust. According to this view, we are better off following Hume (1741) in assuming every person to be an instrumental knave, even though that maxim is false in fact. The sensitivity position rejects this, holding that, if in fact individuals in I* are not resolutely self-interested, the problems of I, resolutely self-interested individuals, and their contractual solutions, will be inappropriate to I. Perhaps whereas I* can count on social trust, the self-interested contractors will find it elusive and arrive at second-best alternatives that trusting folks would find silly and inefficient. Indeed, the sensitivity theorist may insist that even if the self-interested agents can talk themselves into acting as moral agents they do they do so for the wrong sort of reasons (Gaus 2011, 185ff).
2.2 Idealization and Identification
The core idea of social contract theories, we have been stressing, is that the deliberation of the parties is supposed to model the justificatory problem of “you and me.” Now this pulls social contract theories in two opposing directions. On the one hand, if the deliberations of the hypothetical parties are to model our problem and their conclusions are to be of relevance to us, the parties must be similar to us. The closer the parties are to “you and me” the better their deliberations will model you and me, and be of relevance to us. On the other hand, the point of contract theories is to make headway on our justificatory problem by constructing parties that are idealizations of you and me, suggesting that some idealization is necessary and salutary. To recognize that some forms of idealization are problematic does not imply that we should embrace what Gaus has called “justificatory populism” that every person in a society must actually assent to the social and moral institutions in question (Gaus 1996, 130–131). Such a standard would take us back to the older social contract tradition based on direct consent. But, as we argue in §3, modern contract theories are concerned with appeals to our reason, not our self-binding power of consent.
Despite possible problems, there are two important motivations behind idealization of the deliberative parties. First, you and I, as we now are, may be confused about what considerations are relevant to our justificatory problem. We have biases and false beliefs; to make progress on solving our problem of justification we wish, as far as possible, to see what the result would be if we only reasoned correctly from sound and relevant premises. So in constructing the hypothetical parties we wish to idealize them in this way. Ideal deliberation theorists like Jürgen Habermas (1985) and Southwood (2010), in their different ways, are deeply concerned with this reason for idealization. On the face of it, such idealization does not seem especially troublesome, since our ultimate concern is with what is justified, and so we want the deliberations of the parties to track good reasons. But if we idealize too far from individuals and citizens as they presently are (e.g., suppose we posit that they are fully rational in the sense that they know all the implications of all their beliefs and have perfect information) their deliberations may not help much in solving our justificatory problems. We will not be able to identify with their solutions. For example, suppose that hyper-rational and perfectly informed parties would have no religious beliefs, so they would not be concerned with freedom of religion or the role of religion of political decision making. But our problem is that among tolerably reasonable but far from perfectly rational citizens, pluralism of religious belief is inescapable. Consequently, to gain insight into the justificatory problem among citizens of limited rationality, the parties must model our imperfect rationality.
2.3 Homogeneity vs. Heterogeneity
Secondly, social contract theories are pulled towards some representations of the parties in order to render the choice situation determinate. This goal of determinacy, however, can have the effect of eliminating the pluralism of the parties that was the original impetus for contracting in the first place. In his Lectures on the History of Political Philosophy Rawls tells us that “a normalization of interests attributed to the parties” is “common to social contract doctrines” and it is necessary to unify the perspectives of the different parties so as to construct a “shared point of view” (2007, 226). Here Rawls seems to be suggesting that to achieve determinacy in the contract procedure it is necessary to “normalize” the perspectives of the parties.
The problem is this. Suppose that the parties to the contract closely model you and me, and so they have diverse bases for their deliberations—religious, secular, perfectionist, and so on. In this case, it is hard to see how the contract theorist can get a determinate result. Just as you and I disagree, so will the parties. Rawls (1999, 121) acknowledges that his restrictions on particular information in the original position are necessary to achieve a determinate result. If we exclude “knowledge of those contingencies which set men at odds …. ” then since “everyone is equally rational and similarly situated, each is convinced by the same arguments”(Rawls 1999, 17, 120). Gaus (2011a, 36–47) has argued that a determinative result can only be generated by an implausibly high degree of abstraction, in which the basic pluralism of evaluative standards—the core of our justificatory problem—is abstracted away. Thus, on Gaus’s view, modelings of the parties that make them anything approaching representations of you and me will only be able to generate a non-singleton set of eligible social contracts. The parties might agree that some social contracts are better than none, but they will disagree on their ordering of possible social contracts. This conclusion, refined and developed in (Gaus 2011a, Part Two) connects the traditional problem of indeterminacy in the contract procedure (see also Hardin 2003) with the contemporary, technical problem of equilibrium selection in games (see Vanderschraaf 2005, Thrasher 2014a). A topic we will explore more in §3 below.
It is possible, however, that determinacy may actually require diversity in the perspective of the deliberative parties in a way that Rawls and others like Harsanyi didn’t expect. The reason for this is simple, though the proof is somewhat complex. Normalizing the perspectives of the parties assumes that there is one stable point of view that has all of the relevant information necessary for generating a stable and determinate set of social rules. There is no reason, antecedently, to think that such a perspective can be found, however. Instead, if we recognize that there are epistemic gains to be had from a “division of cognitive labor” there is good reason to prefer a diverse rather than normalized idealization of the parties to the contract (see: Weisberg and Muldoon 2009, Gaus 2016, Muldoon 2017, Muldoon forthcoming). There is reason to conclude that if we wish to discover social contracts that best achieve a set of interrelated normative desiderata (e.g., liberty, equality, welfare, etc.), a deliberative process that draws on a diversity of perspectives will outperform one based on a strict normalization of perspectives (Gaus 2011b, 2016).
2.4 Doxastic vs. Evaluative
Any representation of the reasoning of the parties will have two elements that need to be specified: 1) doxastic and 2) evaluative. These elements, when combined, create a complete model that will specify how and why representatives in the contractual model choose or agree to some set of social rules. The first (doxastic) is the specification of everything the representatives in the original position know or at least believe. Choice in the contractual model in the broadest sense, is an attempt by the parties to choose a set of rules that they expect will be better than in some baseline condition, such as “generalized egoism” (Rawls, 1999: 127) a “state of nature” (Hobbes 1651) or the rules that they currently have (Binmore, 2005; Buchanan 2000 ). To do this, they need representations of the baseline and of state of the world under candidate set of rules). Without either of these doxastic representations, the choice problem would be indeterminate. Rawls famously imposes severe doxastic constraints on his parties to the social contract by imposing a thick veil of ignorance that eliminates information about the specific details of each individual and the world they live in. James Buchanan imposes a similar, but less restrictive “veil of uncertainty” on his representative choosers (Buchanan and Tullock 1965 ; Buchanan 1975; see also Rawls, 1958).
In addition to specifying what the representatives believe to be the case about the world and the results of their agreement, there must also be some standard by which the representative parties can evaluate different contractual possibilities. They must be able to rank the options on the basis of their values, whatever those may be. Rawls models parties to the contractual situation as, at least initially, having only one metric of value: primary goods. They choose the conception of justice they do insofar as they believe it will likely generate the most primary goods for them and their descendants. This specification of the evaluative parameter is uniform across choosers and therefore, choice in the original position can be modeled as the choice of one individual. Insofar as there is evaluative diversity between the representatives, more complex models of agreement will be needed (see §3).
If we think in terms of decision theory, the doxastic specification individuates the initial state of affairs and the outcomes of the contractual model, while the specification of the evaluative elements gives each representative party a ranking of the outcomes expected to result from the choice of any given set of rules. Once these elements are specified, we have a model of the parties to the contract. We still need to model how they actually come to an agreement to understand the ultimate reasons we have for finding the contractual model to be normatively compelling.
3. Modeling Agreement
Social contract theories fundamentally differ in whether the parties reason differently or the same. As we have seen (§2.3) in Rawls’s contract everyone reasons the same: the collective choice problem is reduced to the choice of one individual. Any one person’s decision is a proxy for everyone else. In social contracts of this sort, the description of the parties (their motivation, the conditions under which they choose) does all the work: once we have fully specified the reasoning of one party, the contract has been identified.
The alternative view is that, even after we have specified the parties (including their rationality, values and information), they continue to disagree in their rankings of possible social contracts. On this view, the contract only has a determinate result if there is some way to commensurate the different rankings of each individual to yield an agreement (D’Agostino 2003). We can distinguish four basic agreement mechanisms.
The traditional social contract views of Hobbes, Locke, and Rousseau crucially relied on the idea of consent. For Locke only “consent of Free-men” could make them members of government (Locke 1689, §117). In the hands of these theorists—and in much ordinary discourse—the idea of “consent” implies a normative power to bind oneself. When one reaches “the age of consent” one is empowered to make certain sorts of binding agreements—contracts. By putting consent at the center of their contracts these early modern contract theorists (1) were clearly supposing that individuals had basic normative powers over themselves (e.g. self-ownership) before they entered into the social contract (a point that Hume (1748) stressed), and (2) brought the question of political obligation to the fore. If the parties have the power to bind themselves by exercising this normative power, then the upshot of the social contract was obligation. As Hobbes (1651, 81 [chap xiv,¶7) insisted, covenants bind; that is why they are “artificial chains” (1651, 138 [chap. xxi, ¶5).
Both of these considerations have come under attack in contemporary social contract theories, especially the second. According to Buchanan, the key development of recent social contract theory has been to distinguish the question of what generates political obligation (the key concern of the consent tradition in social contract thought) from the question of what constitutional orders or social institutions are mutually beneficial and stable over time (1965). The nature of a person’s duty to abide by the law or social rules is a matter of a morality as it pertains to individuals (Rawls 1999, 293ff), while the design and justification of political and social institutions is a question of public or social morality. Thus, on Buchanan’s view, a crucial feature of more recent contractual thought has been to refocus political philosophy on public or social morality rather than individual obligation.
Although contemporary social contract theorists still sometimes employ the language of consent, the core idea of contemporary social contract theory is agreement. “Social contract views work from the intuitive idea of agreement” (Freeman 2007a, 17). Now one can endorse or agree to a principle without that act of endorsement in any way binding one to obey. Social contract theorists as diverse as Samuel Freeman and Jan Narveson (1988, 148) see the act of agreement as indicating what reasons we have. Agreement is a “test” or a heuristic (see §5). The “role of unanimous collective agreement” is in showing “what we have reasons to do in our social and political relations” (Freeman 2007, 19). Thus understood the agreement is not itself a binding act—it is not a performative that somehow creates obligation—but is reason-revealing (Lessnoff 1986). If individuals are rational, what they agree to reflects the reasons they have. In contemporary contract theories such as Rawls’s, the problem of justification takes center stage. Rawls’s revival of social contract theory in A Theory of Justice thus did not base obligations on consent, though the apparatus of an “original agreement” persisted. Recall that for Rawls (1999, 16) the aim is to settle “the question of justification … by working out a problem of deliberation.”
Given that the problem of justification has taken center stage, the second aspect of contemporary social contract thinking appears to fall into place: its reliance on models of hypothetical agreement. The aim is to model the reasons of citizens, and so we ask what they would agree to under conditions in which their agreements would be expected to track their reasons. Contemporary contract theory is, characteristically, doubly hypothetical. Certainly, no prominent theorist thinks that questions of justification are settled by an actual survey of attitudes towards existing social arrangements, and are not settled until such a survey has been carried out. The question, then, is not “Are these arrangements presently the object of an actual agreement among citizens?” (If this were the question, the answer would typically be “No”.) The question, rather, is “Would these arrangements be the object of an agreement if citizens were surveyed?” Although both of the questions are, in some sense, susceptible to an empirical reading, only the latter is in play in present-day theorizing. The contract nowadays is always hypothetical in at least this first sense.
There is a reading of the (first-order) hypothetical question “Would the arrangements be the object of agreement if___” which, as indicated, is still resolutely empirical in some sense. This is the reading where what is required of the theorist is that she try to determine what an actual survey of actual citizens would reveal about their actual attitudes towards their system of social arrangements. (This is seldom done, of course; the theorist does it in her imagination. See, though, Klosko 2000). But there is another interpretation that is more widely accepted in the contemporary context. On this reading, the question is no longer a hypothetical question about actual reactions; it is, rather, a hypothetical question about hypothetical reactions—it is, as we have said, doubly hypothetical. Framing the question is the first hypothetical element: “Would it be the object of agreement if they were surveyed?” Framed by this question is the second hypothetical element, one which involves the citizens, who are no longer treated empirically, i.e. taken as given, but are, instead, themselves considered from a hypothetical point of view—as they would be if (typically) they were better informed or more impartial, etc. The question for most contemporary contract theorists, then, is, roughly: “If we surveyed the idealized surrogates of the actual citizens in this polity, what social arrangements would be the object of an agreement among them?”
Famously, Ronald Dworkin has objected that a (doubly) hypothetical agreement cannot bind any actual person. For the hypothetical analysis to make sense, it must be shown that hypothetical persons in the contract can agree to be bound by some principle regulating social arrangements. Suppose that it could be shown that your surrogate (a better informed, more impartial version of you) would agree to a principle. What has that to do with you? Where this second-stage hypothetical analysis is employed, it seems to be proposed that you can be bound by agreements that others, different from you, would have made. While it might (though it needn’t) be reasonable to suppose that you can be bound by agreements that you would yourself have entered into if given the opportunity, it seems crazy to think that you can be bound by agreements that, demonstrably, you wouldn’t have made even if you had been asked. This criticism is decisive, however, only if the hypothetical social contract is supposed to invoke your normative power to self-bind via consent. That your surrogate employs her power to self-bind would not mean that you had employed your power. Again, though, the power to obligate oneself is not typically invoked in the contemporary social contract: the problem of deliberation is supposed to help us make headway on the problem of justification. So the question for contemporary hypothetical contract theories is whether the hypothetical agreement of your surrogate tracks your reasons to accept social arrangements, a very different issue.
It is almost a commonplace today that contemporary social contract theory relies on hypothetical, not actual, agreement. As we have seen, in one sense this is certainly the case. However, in many ways the “hypothetical/actual” divide is artificial: the hypothetical agreement is meant to model, and provide the basis for, actual agreement. Understanding contemporary social contract theory is best achieved, not through insisting on the distinction between actual and hypothetical contracts, but by grasping the interplay of the hypothetical and the actual.
The key here is Rawls’s (1996, 28) distinction among the perspectives of:
- you and me
- the parties to the deliberative model
- persons in a well-ordered society
The agreement of the parties in the deliberative model is certainly hypothetical in the two-fold sense we have analyzed: a hypothetical agreement among hypothetical parties. But the point of the deliberative model is to help us (i.e., “you and me”) solve our justificatory problem—what social arrangements we can all accept as “free persons who have no authority over one another” (Rawls 1958, 33). The parties’ deliberations and the conditions under which they deliberate, then, model our actual convictions about justice and justification. As Rawls says (1999, 514), the reasoning of the hypothetical parties matters to us because “the conditions embodied in the description of this situation are ones that we do in fact accept.” Unless the hypothetical models the actual, the upshot of the hypothetical could not provide us with reasons. Gaus describes something like this process as a “testing conception” of the social contract (2011a, 425). We use the hypothetical deliberative device of the contract to “test” our social institutions. In this way, the contemporary social contract is meant to be a model of the justificatory situation that all individuals face. The hypothetical and abstracted (see §2) nature of the contract is needed to highlight the relevant features of the parties to show what reasons they have.
Samuel Freeman has recently stressed the way in which focusing on the third perspective—of citizens in a well-ordered society—shows the importance of actual agreement in Rawls’s contract theory. On Freeman’s interpretation, the social contract must meet the condition of publicity. He (2007b:15) writes:
Rawls distinguishes three levels of publicity: first, the publicity of principles of justice; second, the publicity of the general beliefs in light of which first principles of justice can be accepted (“that is, the theory of human nature and of social institutions generally)”; and, third, the publicity of the complete justification of the public conception of justice as it would be on its own terms. All three levels, Rawls contends, are exemplified in a well-ordered society. This is the “full publicity” condition.
A justified contract must meet the full publicity condition: its complete justification must be capable of being actually accepted by members of a well-ordered society. The hypothetical agreement itself provides only what Rawls (1996, 386) calls a “pro tanto” or “so far as it goes” justification of the principles of justice. “Full justification” is achieved only when actual “people endorse and will liberal justice for the particular (and often conflicting) reasons implicit in the reasonable comprehensive doctrines they hold” (Freeman 2007b, 19). Thus understood, Rawls’s concern with the stability of justice as fairness, which motivated the move to political liberalism, is itself a question of justification (Weithman, 2010). Only if the principles of justice are stable in this way are they fully justified. Rawls’s concern with stability and publicity is not, however, idiosyncratic and is shared by all contemporary contract theorists. It is significant that even theorists such as Buchanan (2000 , 26–27), Gauthier (1986, 348), and Binmore (2005, 5–7)—who are so different from Rawls in other respects—share his concern with stability.
It is perhaps no surprise that the renaissance in contemporary contact theory occurred at the same time as game-theoretic tools and especially bargaining theory began to be applied to philosophical problems. Bargaining theory, as it was developed by John Nash (1950) and John Harsnayi (1977) is a rigorous approach to modeling how rational individuals would agree to divide some good or surplus. In its most general form, the bargaining model of agreement specifies some set of individuals who have individual utility functions that can be represented in relation to one other without requiring interpersonal comparisons of utility directly. Some good or goods for division is specified and if the individuals involved can agree on how to divide the good in question, they will get that division. If, however, they cannot agree they will instead get their disagreement result. This may be what they brought to the table or it could be some other specified amount. One example is a simple demand game where two people must write down how much of given pot of money they want. If the two “bids” amount to equal or less than the pot, each will get what he or she wrote down, otherwise each will get nothing.
As Rawls recognized in his 1958 essay “Justice as Fairness” one way for parties to resolve their disagreements is to employ bargaining solutions, such as that proposed by R.B. Braithwaite (1955). Rawls himself rejected bargaining solutions to the social contract since, in his opinion, such solutions rely on threat advantage and “to each according to his threat advantage is hardly a principle of fairness” (Rawls 1958, 58n). Gauthier, however, famously pursued this approach, building his Morals by Agreement on the Kalai-Smorodinsky bargaining solution (see also Gaus 1990, Ch. IX). Binmore (2005) has recently advanced a version of social contract theory that relies on the Nash bargaining solution, as does Ryan Muldoon (2017) while Moehler (forthcoming) relies on a “stabilized” Nash bargaining solution. Gauthier has since adopted a less formal approach to bargaining that is, nevertheless, still closer to his original solution than to the Nash Solution (2013). In addition to Rawls’s concern about threat advantage, a drawback of all such approaches is the multiplicity of bargaining solutions, which can significantly differ. Although the Nash solution is most favored today, it can have counter-intuitive implications. Furthermore, there are many who argue that bargaining solutions are inherently indeterminate and so the only way to achieve determinacy is to introduce unrealistic or controversial assumptions (Sugden, 1990, 1991). Similar problems also exist for equilibrium selection in games (see Vanderschraaf 2005 and Harsanyi and Selten 1988).
Many of the recent developments in bargaining theory and the social contract have adopted dynamic (Muldoon 2017, Vanderschraaf forthcoming) or even evolutionary approaches to modeling bargaining (Alexander and Skyrms 1999, Skyrms 2014). This highlights a general divide in bargaining models between what we can call axiomatic and process models. The traditional, axiomatic, approach to the bargaining problem going back to John Nash, codified by John Harsanyi, and popularized by R. Duncan Luce and Howard Raiffa (1957). Out of this tradition has come several core bargaining solutions. Each uses a slightly different set of axioms to generate a unique and generally applicable way to divide a surplus. These include, most notably, the egalitarian (Raiffa 1953), the Nash (1950), the stabilized Nash (Moehler 2010), the Kalai-Smordinsky (1975), and Gauthier’s minimax relative concession (1986). The main point of contention among these theories is whether to employ Nash’s independence axiom or to use a monotonicity axiom (as the egalitarian, Kalai-Smorodinsky, and minimax relative concession do), although, to one degree or another all of the axioms have been contested.
For instance, one key axiom that all bargaining theories employ is a symmetry axiom. This axiom states that bargainers in the situation will reason the same, that is, I will not be willing to give or take more than you in the same situation. This axiom seems reasonable, but it does not follow that the denial of symmetry is somehow a denial of reason. Indeed, Thomas Schelling (1959) was an early critic of the symmetry assumption in bargaining theory and more recently, John Thrasher (2014) has argued that the symmetry assumption is inconsistent with the traditional model of the social contract. Symmetry is necessary to generate a unique solution to the bargaining problem, however. A rejection of symmetry will likely entail a rejection of uniqueness, at least in axiomatic bargaining theory.
The other approach to bargaining models of agreement is what we can call a process model. Instead of using various axioms to generate a uniquely rational solution, these theorists rely on some procedure that will generate a determinate, though not always unique result. Process approaches use some mechanism to generate agreement. An example is an auction. There are many types of auctions (e.g., English, Dutch, Vickrey, etc.), each has a way of generating bids on some good and then deciding on a price. Posted price selling, like one often sees in consumer markets, are also a kind of bargain, though an extremely asymmetric one where the the seller has offered a “take or leave it” ask. Double-auctions are more symmetrical and have a clearer link to the initial bargaining model. Although auctions are not typically used to solve pure division problems, there are some examples of auction mechanisms being used to solve public goods problems in interesting ways that guarantee unanimity (Smith 1977). Dworkin also uses a kind of auction mechanism in his work on equality, though he doesn’t develop his approach for more general application (Dworkin 1981, Heath 2004) Despite its promise, however, auction theory and its potential application to social contract theory has largely gone unexploited.
The main process approach to bargaining derives from the influential work of Rubinstein (1982) and his proof that it is possible to show that an alternating offer bargaining process will generate the same result as Nash’s axiomatic solution in certain cases. This result added life to Nash’s (1950) early observation that bargaining and the rules of bargaining must be the result of some non-cooperative game with the idea being that it might be possible to unify bargaining theory and game theory. This approach, called the Nash Program, is championed most notably by Binmore (1998), whose evolutionary approach to the social contract relies on biological evolution (the game of life) to generate the background conditions of bargaining (the game of morals). Both can be modeled as non-cooperative games and the later can be modeled as a bargaining problem. By using this approach, Binmore (1998, 2005) claims to be able to show, in a robust and non-question-begging way, that something very much like Rawls’s “justice as fairness” will be the result of this evolutionary bargaining process.
A more empirically minded approach follows Schelling’s (1960) early work on bargaining and game theory by looking at the way actual people bargain and reach agreement. The pioneers of experimental economics used laboratory experiments to look at how subjects behaved in division problems (Hoffman et. al. 2000, Smith 2003). Some of the most interesting results came, perhaps surprisingly, from asymmetric bargaining games like the ultimatum game (Smith 1982). Since these early experiments, considerable experimental work has been done on bargaining problems and cooperative agreement in economics. Much of the most philosophically relevant work involves the importance of social norms and conventions in determining the result (Bicchieri 2016, Vanderschraaf forthcoming).
Although appealing to a bargaining solution can give determinacy to a social contract, it does so at the cost of appealing to a controversial commensuration mechanism in the case of axiomatic bargaining or of moving to process approaches that must ultimately rely on the empirically contingent outcome of social and biological evolution. Although the importance of bargaining in the social contract has been moribund for some time, recent work is changing that (see Alexander 2007, Thrasher 2014a, Thoma 2015, Muldoon 2017, Moehler forthcoming, Vanderschraaf forthcoming).
We might distinguish bargaining from aggregation solutions. Rather than seeking an outcome that (as, roughly, the Kalai-Smorodinsky solution does) splits the difference between various claims, we might seek to aggregate the individual rankings into an overall social choice. Arrow’s theorem and related problems with social choice rules casts doubt on any claim that one specific way of aggregating is uniquely rational: all have their shortcomings (Gaus 2008, chap. 5). Harsanyi (1977, chaps. 1 and 2; 1982) develops a contractual theory much like Rawls’s. Reasoning behind a veil of ignorance in which people do not know their post-contract identities, he supposes that rational contractors will assume it is equally probable that they will be any specific person. Moreover, he argues that contractors can agree on interpersonal utility comparisons, and so they will opt for a contract that aggregates utility at the highest average (see also Mueller 2003, chap. 26). This, of course, depends on the supposition that there is a non-controversial metric that allows us to aggregate the parties’ utility functions. Binmore (2005) follows Harsanyi and Amartya Sen (2009, Chap. 13) in arguing that interpersonal comparisons can be made for the purposes of aggregation, at least some of the time. One of the problems with this approach, however, is that if the interpersonal comparisons are incomplete they will not be able to produce a complete social ordering. As Sen points out, this will lead to a maximal set of alternatives where no alternative is dominated by any other within the set but also where no particular alternative is optimal (Sen, 1997). Instead of solving the aggregation problem, then, interpersonal comparisons may only be able to reduce the set of alternatives without being able to complete the ordering of alternatives.
There is a long tradition of thinking of the social contract as a kind of equilibrium. Within this tradition, however, the tendency is to see the social contract as some kind of equilibrium solution to a prisoner’s dilemma type situation (see Gauthier, 1986 and Buchanan, 2000 ). Brian Skyrms (1996, 2004) suggests a different approach. Suppose that we have a contractual negotiation in which there are two parties, ordering four possible “social contracts”:
- both Alf and Betty hunt stag
- both hunt hare;
- Alf hunts stag, Betty hunts hare;
- Alf hunts hare, Betty hunts stag.
Let 3 be the best outcome, and let 1 be the worst in each person’s ranking (Alf’s ranking is first in each pair). We thus get Figure 1
|Hunt Stag||Hunt Hare|
Figure 1: A Stag Hunt
The Stag Hunt, Skyrms argues, “should be a focal point for social contract theory” (2004, 4). The issue in the Stag Hunt is not whether we fight or not, but whether we cooperate and gain, or each go our separate ways. There are two Nash equilibria in this game: both hunting stag and both hunting hare. Alf and Betty, should they find themselves at one of these equilibria, will stick to it if each consults only his or her own ranking of options. In a Nash equilibrium, no individual has a reason to defect. Of course the contract in which they both hunt stag is a better contract: it is Pareto superior to that in which they both hunt hare. The Hare equilibrium is, however, risk superior in that it is a safer bet. Skyrms argues that the theory of iterated games can show not simply that our parties will arrive at a social contract, but how they can come to arrive at the cooperative, mutually beneficial contract. If we have a chance to play repeated games, Skyrms holds, we can learn from Hume about the “shadow of the future”: “I learn to do a service to another, without bearing him any real kindness; because I foresee, that he will return my service, in expectation of another of the same kind, and in order to maintain the same correspondence of good offices with me and with others” (Skyrms 2004, 5). Sugden, along different lines, also suggests that repeated interactions, what he calls “experience” is essential to the determination of which norms of social interaction actually hold over time (1986).
The problem with equilibrium solutions is that, as in the stag hunt game, many games have multiple equilibria. The problem then becomes how to select one unique equilibrium from a set of possible ones. The problem is compounded by the controversies over equilibrium refinement concepts (see Harsanyi and Selten 1988). Many refinements have been suggested but, as in bargaining theory, all are controversial to one degree or another. One of the interesting developments in social contract theory spurred by game theorists such as Skyrms and Binmore is the appeal to evolutionary game theory as a way to solve the commensuration and equilibrium selection problem (Vanderschraaf 2005). What cannot be solved by appeal to reason (because there simply is no determinate solution) may be solved by repeated interactions among rational parties. The work of theorists such as Skyrms and Binmore also blurs the line between justification and explanation. Their analyses shed light both on the justificatory problem—what are the characteristics of a cooperative social order that people freely follow?—while also explaining how such orders may come about.
The use of evolutionary game theory and evolutionary techniques is a burgeoning and exciting area of contract theory. One of the many questions that arise, however, is that of why, and if so under what circumstances, we should endorse the output of evolutionary procedures. Should one equilibrium be preferred to another merely because it was the output of an evolutionary procedure? Surely we would want reasons independent of history for reflectively endorsing some equilibrium. This problem highlights the concern that social contracts that are the product of evolutionary procedures will not meet the publicity condition in the right kind of way. If the publicity condition seems harder to meet, the evolutionary approach provides a powerful and dynamic way to understand stability. Following Maynard Smith, we can see stability as being an evolutionarily stable strategy equilibrium or an ESS (1982). Basically this is the idea that an equilibrium in an evolutionary game where successful strategies replicate at higher rates is stable if the equilibrium composition of the population in terms of strategies is not susceptible to invasion by a mutant strategy. An ESS is an application of the Nash equilibrium concept to populations. A population is evolutionarily stable when a mutant strategy is not a better response to the population than the current mix of strategies in the population. This gives a formal interpretation of Rawls’s conception of “inherent stability” and to Buchanan’s notion that social contracts should be able to withstand subversion by a sub-population of knaves. This new conception of stability combined with the dynamic nature of evolutionary games provides interesting new ways for the social contract theorist to model the output of the contract.
4. The Object of Agreement
Social contract theories differ about the object of the contract. In the traditional contract theories of Hobbes and Locke, the contract was about the terms of political association. In particular, the problem was the grounds and limits of citizen’s obligation to obey the state. In his early formulation, Rawls’s parties deliberated about “common practices” (1958). In his later statement of his view, Rawls took the object of agreement to be principles of justice to regulate “the basic structure:”
The basic structure is understood as the way in which the major social institutions fit together into one system, and how they assign fundamental rights and duties and shape the division of advantages that arises through social cooperation. Thus the political constitution, the legally enforced forms of property, and the organization of the economy, and the nature of the family, all belong to the basic structure. (Rawls 1996, 258)
For Rawls, as for most contemporary contract theorists, the object of agreement is not, at least directly, the grounds of political obligation, but the principles of justice that regulate the basic institutions of society. Freeman (2007a: 23), perhaps the preeminent student of Rawls, focuses on “the social role of norms in public life.” Buchanan is concerned with justifying constitutional orders of social and political institutions (2000 ). Gauthier (1986), Scanlon (1998), Darwall (2006), Southwood (2010), and Gaus (2011a) employ the contract device to justify social moral claims.
The level at which the object of the contract is described is apt to affect the outcome of the agreement. “A striking feature of Hobbes’ view,” Russell Hardin points out, “is that it is a relative assessment of whole states of affairs. Life under one form of government versus life under anarchy” (2003, 43). Hobbes could plausibly argue that everyone would agree to the social contract because “life under government” is, from the perspective of everyone, better than “life under anarchy” (the baseline condition). However, if a Hobbesian sought to divide the contract up into, say, more fine-grained agreements about the various functions of government, she is apt to find that agreement would not be forthcoming on many functions. As we “zoom in” (Lister, 2010) on more fine-grained functions of government, the contract is apt to become more limited. If the parties are simply considering whether government is better than anarchy, they will opt for just about any government (including, say, one that funds the arts); if they are considering whether to have a government that funds the arts or one that doesn’t, it is easy to see how they may not agree on the former. In a similar way, if the parties are deliberating about entire moral codes, there may be wide agreement that all the moral codes, overall, are in everyone’s interests; if we “zoom in” in specific rights and duties, we are apt to get a very different answer.
In multi-level contract theories such as Buchanan’s (2000  and Michael Moehler’s (forthcoming), each stage has its own unique object. In Buchanan’s theory, the object of the constitutional stage is a system of constraints that will allow individuals to peacefully co-exist, what Buchanan calls the “protective state” (2000 ). On his view, the state of nature is characterized by both predation and defense. One’s ability to engage in productive enterprises is decreased because of the need to defend the fruits of those enterprises against those who would rely on predation rather than production. We all have reason to contract, according to Buchanan, in order to increase the overall ability of everyone to produce by limiting the need for defense by constraining the ability to engage in predation. Once the solution to the predation-production conflict has been solved by the constitutional contract, members of society also realize that if all contributed to the production of various public goods, the productive possibility of society would be similarly increased. This second, post-constitutional stage, involves what Buchanan calls the “productive state.” Each stage is logically distinct though there are causal relationships between changes made at one stage and the efficacy and stability of the solution at the later stage. The distinction between the two stages is analogous to the traditional distinction between commutative and distributive justice. Although these two are often bound up together in contemporary contract theory, one of Buchanan’s novel contributions is to suggest that there are theoretical gains to separating these distinct objects of agreement.
Moheler’s (2017) “multi-level” contract has several aspects. First, drawing on their pluralistic moral commitments individuals seek to agree on social-moral rules that all can endorse as a common morality. This object of this agreement is similar to that of Darwall’s, Gaus’s and Southwood’s models. The second-level agreement is appropriate to circumstances in which pluralism is so deep and wide no common morality can be forged. Rather than moral agents, the parties are reconceived as instrumentally rational prudential agents: the object of this second level is rules of cooperation that advance the interests of all when a deeper moral basis cannot be uncovered.
5. What Does the Contract Show?
Suppose, then, that we have arrived at some social contract. Depending on the initial justificatory problem, it will yield an outcome R (principles, rules, etc. that have some normative property N—such as justice, morality, authority, obligation, legitimacy, mutual benefit, and so on. But, supposing that the contract has generated a principle, rule, etc. with the relevant normative property, precisely what is shown by the fact that this principle or rule was generated through the contractual device?
Throughout we have been distinguishing the justificatory problem from the deliberative model. Now the strongest that could be claimed for a contractual argument is that the outcome of the deliberative model is constitutive of both the correct solution of the justificatory problem and the conclusion that “R has N.” On this “constructivist” reading of the outcome of the deliberative model, there is no independent and determinate external justification that R has N, which the contractual device is intended to approximate, but, rather, that R is the outcome of the deliberative model is the truth-maker for “R has N”.
Rawls, along with Gauthier and Buchanan, was sometimes attracted to such a reading. Rawls (1999, 104) describes the argument from the original position as invoking “pure procedural justice”—the deliberative situation is so set up that whatever principles it generates are, by the fact of their generation, just. But, his considered position is that the outcome of the deliberative model is indicative (not constitutive) of the correct solution to “the question of justification” (1999, 16).
We might say that the deliberative model is evidence of the proper answer to the question of justification. However, this is still consistent with Rawls’s “constructivism” because the answer to the justificatory problem is constitutive of R’s having N. So we might say that Rawls’s two principles are just—simply because they are in reflective equilibrium with the considered judgments of you and me and that they would be chosen in the original position is indicative of this.
The weakest interpretation of the contract is that the contractual result is simply indicative of the correct answer to the justificatory problem, which itself is simply indicative of the fact that R has N. One could be a “realist,” maintaining that whether R has N is a fact that holds whether or not the contract device generates R has N, and independently of whether the correct answer to our justificatory problem (i.e., what we can justify to each other) is that R has N. There is still logical space for a type of contractualism here, but an indicative contractualism of this sort would not be a form of “constructivism.” Some, for example, have argued that Scanlon’s theory is actually based on a sort of natural rights theory, where these rights are prior to the contract (Mack 2007). Even if this is correct, Scanlon can be a sort of social contract theorist. The diversity of possible approaches within social contract theory indicates the variety of different uses to which social contract theory can be applied.
6. Conclusion: The Social Contract and Public Justification
The social contract theories of Hobbes, Locke, and Rousseau all stressed that the justification of the state depends on showing that everyone would, in some way, consent to it. By relying on consent, social contract theory seemed to suppose a voluntarist conception of political justice and obligation: what counts as "justice" of "obligation" depends on what people agree to—whatever that might be. Only in Kant (1797) does it become clear that consent is not fundamental to a social contract view: we have a duty to agree to act according to the idea of the “original contract.” Rawls’s revival of social contract theory in A Theory of Justice did not base obligations on consent, though the apparatus of an “original agreement” persisted as a way to help solve the problem of justification. As the question of public justification takes center stage, it becomes clear that posing the problem of justification in terms of a deliberative or a bargaining problem is a heuristic: the real issue is “the problem of justification”—what principles can be justified to all reasonable citizens or persons.
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In September 2008, Gerald Gaus became a co-author of this entry for the purpose of maintaining it and keeping it current. In December 2011, Gaus was joined by co-author John Thrasher. Changes introduced in these versions reflect joint modifications to the entry which had been solely authored and maintained by Fred D’Agostino. Since 2017, subsequent versions have been updated by Thrasher and Gaus.