The Other Kind of Social Contract Theory

by Tim Sommers

The “Crito” by Plato opens with Socrates in prison (circa 399 B.C.E.) awaiting execution, having been unjustly convicted of corrupting the youth of Athens and teaching false gods. When his friend Crito assures him that he can get him out, no problem, that “some people only need to be given a little silver”, Socrates has a surprising response. Suppose Athens were to say to me, he says, “Socrates, did we not agree on this, we and you, to honor the decisions the city makes?” Because the city has basically given birth to me by marrying my father and my mother so they could conceive me. And Athens made me who I am, educating me in the arts and gymnastics and so much more. And I could have left any time. But I stayed. How can I now, having been duly, even if not justly, convicted, leave and put myself above the law?

This may be the earliest extant example of a social contract argument.

Flash forward to 1651. Thomas Hobbes was the first modern philosopher to offer a social contract justification for the state. In “Leviathan” which John Rawls called, “Surely, the greatest work of political philosophy ever written in English,” Hobbes argued that the “state of nature” is “a war of all against all”, and that, in that state, there are “No arts; no letters; no 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.” (Voltaire is alleged to have quipped, that it was not life in a state of nature, but Hobbes himself, that was “solitary, poor, nasty, brutish and short” (which is demonstrably false since Hobbes was over six feet tall)).

In any case, Hobbes argued that life in the state of nature is so bad that we ought to be willing to agree to almost any sovereign power, in fact, that we need the terror inspired by a Leviathan of absolute power to enforce the law. Hence, absolute monarchy. (And yet, perhaps, there was some small, sly subversion in suggesting that it was not the divine right of kings, but the consent of the governed that the power of the monarch must rest on.)

John Locke, just shy of 40 years later, had only to argue that the state of nature was not as bad as all that, that people therein were, and could be, still be bound by the laws of morality, to reject Hobbes’ absolutism in favor of a social compact on a government to the protect “the lives, liberty, and property” of its citizens. (In theory. In practice, Locke may be overrated as a friend of liberty. Maybe.)

Locke was also more sensitive than Hobbes to the question of how a hypothetical contract, or hypothetical consent, could bind decidedly non-hypothetical people to a very real state. As Ronald Dworkin would later put the charge to Rawls, “A hypothetical contract is not simply a pale form of an actual contract; it is no contract at all.”

So, Locke fell back on the idea of tacit or implied consent. Like Athens to Socrates, Locke asks each of us, ‘If you don’t consent to the government you live under, why haven’t you moved?’

I don’t want to defend this “consent” version of the social contract. What I want to do is distinguish it from and defend a “content” version of the social contract. It’s not that, as on the consent version, the contract explains why we are obligated to do something; rather the point is that the contract explains what it is that we are obligated to do. The idea is that justice is what people would agree to under certain defined circumstances.

For example, John Rawls says justice is what people would agree to in an original position behind a veil of ignorance (which prevents them from knowing their social or economic class or status, their religion and/or view of the good, their gender, their race, and more) where all they know is that there are certain primary social goods that everyone desires (like money, opportunity, and basic rights) even if they are only self-interested. What would people agree to? That justice means everyone is entitled to certain basic rights, liberties, and freedoms, to fair equality of opportunity, and (more surprisingly, perhaps) a distribution of wealth that makes the least well-off as well-off as possible (the difference principle).

T.M. Scanlon tries to generalize Rawls’ approach, moving from “justice”, specifically, to “wrongness”, and he tries to do away with the original position and the veil of ignorance. “An act is wrong,” Scanlon says, “if its performance under the circumstances would be disallowed by any set of principles for the general regulation of behavior that no one could reasonably reject as a basis for informed, unforced, general agreement.” Why “wrong” rather than “right”? Scanlon wants to leave open the possibility that while some things are definitely wrong, more than one thing might be right. And that is the tip of a very big iceberg. But I don’t want to defend Scanlon here – or even Rawls. I just want to point to what I take to be the good kind of social contract argument.

Take Rawls’ claim that in a just society the least well-off would be as well-off as possible (the difference principle). Why? Again, because that is what people would agree to under appropriately defined circumstances. But it’s not that people have agreed to that, even tacitly. Or that they would vote for it if you presented it to them for a vote. It’s what people should agree to.

The agreement is a device of representation. The reason you are shielded from knowledge of your own social class, race and gender by the veil of ignorance is that a theory of justice must not privilege the interests of anyone, including the well-off, the white, or the male. The question always is, does the original position adequately model the correct reasoning? The question is not whether any of us are ever in the original position. We are not.

The reasoning that leads to the difference principle is that, assuming reasonably favored social circumstances, people should care more about avoiding the very worst positions in society than about whatever marginal gains they might achieve by not maximizing the minimum position. In game theory, the difference principle is called “maximin”, and it is considered the rational decision principle to use under uncertainty.

One kind of challenge to this argument has come from people who say that, from the original position, one should just maximize overall well-being, since this would maximize the expected well-being of each individual – though, granted, at the risk of being one of the people who are among the worse off. Rawls’ hypothetical contractors are too risk adverse, the criticism goes. One shouldn’t just focus on the worst case scenario, but on the odds overall.

But Rawls, via the veil of ignorance, excludes knowledge of the odds – so this approach never gets off the ground. This does not make Rawls right, of course. It may make the question more visible and, maybe, more tractable, however. Maybe, Rawls should alter this feature of the original position, and, maybe, we should then all be utilitarians – just maximize overall well-being. But consider now the question of how risk adverse you should be when deciding on your total, overall life prospects. Maybe, you should be, as Rawls thinks, completely risk adverse.

If you are pretty well-off, it’s very hard to put yourself in the original position and take seriously that you might not have been so lucky – and so hard to take seriously what you could lose. Which is everything. The utilitarian argument says that justice can tolerate having some people very poorly off, even living as slaves, if that contributes to a net gain in how everyone else is doing. Is that really acceptable from the point of view of justice?

Rawls says, “Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many.”

One more twist. Suppose you buy most of that, but propose this alternative. From the original position, why not choose to have a social minimum, so that no one is too badly off, but otherwise let the distribution of wealth be whatever maximizes the amount of wealth overall? Fair enough. But how do we set the social minimum? Here’s one proposal. The minimum should be set as high as possible. And there’s the difference principle, again.

Don’t get me wrong. The point is not whether the difference principle is the right position to take on what a just distribution of wealth would be. I don’t think it is. (I believe in what I call “range egalitarianism” (no one should fall below a certain minimum of means nor exceed a certain maximum)). The point is that talking about what principles would be the outcome of a hypothetical contract is a pretty good way of talking about which principles are right. The contract doesn’t bind. It models how we might arrive at the correct principles. If features of the contract position are wrong, maybe, we should know the odds of being well-off or the least well-off, for example, or we maybe we should know if we are a woman or a man. But we don’t have to abandon the circumstances of the contract altogether, just change them in the relevant way. And this gives you a new way of asking questions. For example, should our theory of justice vary based on how well-off we are or our gender? Or not?