The Social Contract from Hobbes to Rawls

David Boucher, Paul Kelly

• Publisher: Routledge
• Year: 2003
• ISBN:
  9781134839681
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Politica

First published in 2004. WHAT IS THE ROLE OF THE SOCIAL CONTRACT IN MODERN POLITICAL THOUGHT? The concept of a social contract has been central to political thought since the seventeenth century. Contract theory has been used to justify political authority, to account for the origins of the state, and to provide foundations for moral values and the creation of a just society. In The Social Contract from Hobbes to Rawls, leading scholars from Britain and America survey the history of contractarian thought and the major debates in political theory which surround the notion of the social contract. The book examines the critical reception to the ideas of thinkers including Hobbes, Locke, Rousseau, Hegel and Marx, and includes the more contemporary ideas of John Rawls and David Gauthier. It also incorporates discussions of international relations theory and feminist responses to contractarianism. Together, the essays provide a comprehensive introduction to theories and critiques of the social contract within a broad political theoretical framework.

1
The social contract and its critics
An overview

David Boucher and Paul Kelly

Whilst social contract theory never really fell into abeyance it is certainly true that it has enjoyed a renaissance of interest following the publication of Rawls’s A Theory of Justice in 1971. Since then, not only has it become a recurrent feature of contemporary political philosophy, but also there has been a renewed interest in the historical origins of social contract theory and the classic contractarians, Hobbes, Locke, Rousseau and Kant. With this interest has come attempts to trace the social contract ‘tradition’ further back beyond Hobbes to the ancient Greeks, and to construct ‘models’ or definitions of the social contract which can incorporate all putative contractarian thinkers.¹

Rather than provide a précis of the contributions to this volume, we want in this introductory essay to challenge one of the assumptions of similar commentaries on the social contract, namely that there is a single unified tradition or a single model or definition of the contract. Instead we identify a number of traditions in which the contract takes on a distinct character and serves a specific end. Social contract theories for the purpose of our discussion fall into three broad categories, moral, civil and constitutional. Whilst these are not mutually exclusive categories, there is nevertheless a tendency for one of these types to predominate in any one thinker. The moral and civil theories tend to raise the more philosophically interesting questions, and the contractarians discussed in these essays tend to fall into one of these two categories. Nevertheless, we will also briefly explore the third category to illustrate the diversity of contractarian thinking and to emphasize the disjunctures that exist between these categories in order to undermine the thesis advanced by so many recent commentators that there is a single unbroken tradition stretching back from Rawls and Gauthier through Hobbes to the ancient Greeks. The second theme of this essay will be to illustrate the diversity of responses by anti-contractarians even to the moral and civil versions of contract theory. It is our contention that these anti-contractarian arguments form an integral part of any account of contractarian thinking.

VARIETIES OF CONTRACTARIANISM: MORAL, CIVIL AND CONSTITUTIONAL

The idea of the social contract when examined carefully is seen to have very few implications, and is used for all sorts of reasons, and generates quite contrary conclusions. The reason why it is such a flexible tool in the hands of the theorist is that the choice posited, when one is posited, is variable. The choice may be to create society; civil society; a sovereign; procedural rules of justice; or morality itself. It may be a choice of contract that binds in perpetuity, or one renewed with each succeeding generation. The choice may be historical, ideal or hypothethical, its expression explicit or tacit, and the contractees may be each individual contracting with every other, individuals contracting with their rulers and God (and the various permutations to which such a combination gives rise), the heads of families agreeing among themselves, corporations or cities contractually bound to a superior, or the people as a body contracting with a ruler or king. Furthermore, the motivation for the choice may be a religious duty, personal security, economic welfare, or moral self-righteousness. We are not, then, confronted with one social contract, but with a variety of traditions, each adopting contractarianism for its own purposes.

Given the diversity of the character of social contract theory it would be unwise to try to give an operational definition of something so heterogeneous. In developing our thesis that there is not one contract tradition but at least three, there is no better place to start than ancient Greece. Many commentators trace the source of social contract theory to the ancient Greeks’ distinction between nature and convention. The idea of an agreement as the source of the origin and organization of political society can, it is claimed, be found in the sophists Antiphon and Hippias, as well as in Thrasymachus and Glaucon. The writings of Epicurus are similarly taken to ground justice in self-interest. Socrates’ Crito, on the other hand, is taken to illustrate the implied contract and its concomitant obligations between citizen and state.²

The case for putative Greek founders is at best tenuous. Glaucon in criticism of conventional moral constraints attributes the origin of justice not to a natural aversion to inflict injuries, but to a desire to avoid them being inflicted upon oneself by others.³ This merest of hints can, of course, be related to Hobbes’s theory where it is argued that there is no justice or injustice in the state of nature, it being only the will of the sovereign subsequent to the social contract that establishes right and wrong. Hobbes’s theory, however, is more a theory of the origin and legitimacy of political obligation and sovereignty than an attempt to ground morality in mutual consent. (The civil as opposed to the moral character of Hobbes’s argument is emphasized in Forsyth’s Chapter 2.) Indeed, it is Hobbes’s denial of the possibility of morality by agreement that makes the sovereign necessary to impose it.

Moral contractarianism

Perhaps a better comparison can be made between Glaucon and modern moral contractarians such as John Harsanyi, John Mackie and especially David Gauthier, all of whom in their different ways ground moral principles in the creative self-interest of individuals who adopt constraints on their behaviour in order to maximize benefits.⁴ In this category we can also include James Buchanan, although his position is perhaps more ambiguous than that of Gauthier or Mackie because his moral scepticism makes him less inclined to offer his arguments as an alternative foundational morality, nevertheless that is in effect what he offers. Gauthier, on the other hand, clearly attempts to ground morality in the rational agreements of utility maximizers who from their different bargaining positions negotiate constraints.⁵ His is not, however, a utilitarian theory in that its concern is not with the aggregate benefit of all or the majority, but rather with the relative benefit of each individual. That said, Gauthier’s argument is intended only to ground a very narrow conception of ‘morality’ as he claims the bargain applies only to the distribution of the ‘cooperative surplus’, that is the difference in the economic product of a society that results from social cooperation. The bargaining position from which each individual starts is shaped by a Lockian conception of property rights. Consequently, what each individual bargains for is the ‘maximum relative benefit’, or the maximum benefit that an individual could hope to achieve compared with what each would have achieved by the deployment of his or her property in the absence of social cooperation. It is precisely this restriction in the scope of the bargain and Gauthier’s own account of what might be called the original position from which the bargain has been struck that has lead to the criticism that he cannot be said to provide a contractarian basis for morality. (See Moore’s Chapter 12.)

It is true that at a superficial level Glaucon and Gauthier appear similar in offering a contractarian ethics in that they both deny a distinction between moral and prudential rationality; deny the claim that justice is anything more than an instrumental good, and refuse to attribute content to individual rationality. Gauthier is, nevertheless, significantly different in that his conclusions, unlike Glaucon’s, depend on a reasoned justification of instrumental rationality related to a theory of bargaining out of which contractually binding moral constraints emerge. To the question ‘why should I act morally?’ Gauthier answers, because it is rational to do so—instrumental rationality and morality are equated. (Moore’s essay is an examination and critique of this claim.)

Glaucon’s position is quite different: he argues that the weak benefit at the expense of the strong, and that the powerful are irrational for agreeing to constraints on their behaviour. Possession of Gyges ring is but an extreme illustration of this point. It is the force of law and the fear of sanctions that constrain Glaucon’s maximizers, whereas it is the gentler force of reason and the fear of long-term reduced benefits that constrain Gauthier’s utility maximizers.

Whereas moral contractarians such as Gauthier want to limit the moral and governmental constraints on individuals, that is not the purpose of the Greek ‘contractarians’ Antiphon, Hippias, Glaucon, Thrasymachus and Epicurus. Instead of legitimizing society and authority by grounding them in consent, they ridicule the conventional basis of law and morality. The only Greek theorist that appears to have some claim to use a contract as a constraint on the scope of law is Lycophron, the evidence for which is a brief mention by Aristotle. In arguing that the purpose of government is to promote virtue, Aristotle contends:

Otherwise, the political association becomes a mere alliance differing only in respect of place from those alliances whose members live at some distance from one another; and the law becomes mere convention, ‘a guarantor of mutual justice’, as the sophist Lycophron said, powerless to make the citizens into good and just men.⁶

Civil contractarianism

When compared with the non-Hobbesian classic contract theorists of the seventeenth and eighteenth centuries the Greek connection is even more dubious. These theorists (including to some extent Hobbes himself) are best described as civil contractarians. Civil contractarianism is that form of social compact, whether historical or hypothetical, whose role is either to legitimize coercive political authority, or to evaluate coercive constraints independently of the legitimation of the authority from which they derive. The contract may include provision for a governmental compact as in Grotius or Pufendorf, or merely determine where sovereignty lies, as in Locke or Rousseau. Most importantly the civil contractarians posit moral and rational constraints upon conduct that are not merely the result of preferences, but which are consolidated, extended or transformed by the social contract.

For civil contractarians there is no question of agreement creating morality, although agreements may generate moral or political obligations. The institution of civil or political society in a social compact is designed to secure pre-existing moral rights and duties. For Grotius, Pufendorf and Locke the state of nature, whether historical or hypothetical, is a social condition regulated by God’s moral law.⁷ (On the context of Locke’s argument see Thompson’s Chapter 4.) Grotius is emphatic that the contract that establishes civil society constitutes a legal community consonant with man’s natural sociability, and consistent with the mutual recognition and protection of his moral rights. The obligation to keep our agreements is not a consequence of living in civil society, but the necessary corollary under the natural law of our rationality and sociability.⁸ For Pufendorf, unlike Hobbes, justice and injustice do not depend upon a sovereign.⁹ Individuals have natural obligations in a state of nature, some congenital and others adventitious or incurred by agreement. These obligations are, however, imperfect given that their discharge is uncertain. The civil sovereign created by the elaborate three-stage compact, comprising two contracts and one decree, converts imperfect into perfect obligations by adding to them the weight of civil law and authority. Both imperfect and perfect rights and obligations, as Haakonssen rightly suggests, ‘have an equal moral foundation in natural law’.¹⁰

Both Pufendorf and Locke identify two natural obligations which predispose us to institute political society and sovereignty. We have a duty to God under the natural law of self-preservation and in so far as it is consistent with this, the preservation of others.¹¹ For Locke self-preservation and the preservation of mankind are rights derived from prior duties imposed upon men by God. The inconveniences of the state of nature, particularly the uncertainty of application, interpretation and execution of the law of nature makes the discharge of our obligations to God precarious. The establishment of a political power to which each individual is subject, and the continuing legitimacy of that power depends upon the consent of the people. Because each person is naturally free, equal and independent, no one can become politically subjected to another without his consent.¹² (See Waldron’s Chapter 3.) Does consent, then, constitute the ground for political obligation? It is unlikely that Locke would have viewed the matter in these terms. (See Thompson’s Chapter 4.)

The obligation to preserve mankind in general and ourselves in particular seems difficult to discharge in the state of nature, and the enjoyment of our property which is a condition of self-preservation seems particularly precarious in the state of nature. Political society is meant to remedy these defects, and comes into existence when the executive power of each in the state of nature is given up to society as a whole, and when a legislative authority is empowered to give the law of nature certainty and an executive power is authorized to enforce it.

It is, then, our obligation of self-preservation, which appears to be a right against other people, but which is in fact an obligation to God who having made us, owns us, which is the rational basis for being obliged to a go...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• CONTRIBUTORS
• PREFACE
• 1. THE SOCIAL CONTRACT AND ITS CRITICS: AN OVERVIEW
• 2. HOBBES’S CONTRACTARIANISM: A COMPARATIVE ANALYSIS
• 3. JOHN LOCKE: SOCIAL CONTRACT VERSUS POLITICAL ANTHROPOLOGY
• 4. LOCKE’S CONTRACT IN CONTEXT
• 5. HISTORY, REASON AND EXPERIENCE: HUME’S ARGUMENTS AGAINST CONTRACT THEORIES
• 6. ROUSSEAU, SOCIAL CONTRACT AND THE MODERN LEVIATHAN
• 7. KANT ON THE SOCIAL CONTRACT
• 8. HEGEL’S CRITIQUE OF THE THEORY OF SOCIAL CONTRACT
• 9. MARX AGAINST THE SOCIAL CONTRACT
• 10. CONTRACTARIANISM AND INTERNATIONAL POLITICAL THEORY
• 11. WOMEN, GENDER AND CONTRACT: FEMINIST INTERPRETATIONS
• 12. GAUTHIER’S CONTRACTARIAN MORALITY
• 13. JUSTIFYING ‘JUSTICE’: CONTRACTARIANISM, COMMUNITARIANISM AND THE FOUNDATIONS OF CONTEMPORARY LIBERALISM
• 14. ECONOMIC JUSTICE: CONTRACTARIANISM AND RAWLS’S DIFFERENCE PRINCIPLE