Social Contract Theory for a Diverse World

Beyond Tolerance

Ryan Muldoon

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781134793617
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

Very diverse societies pose real problems for Rawlsian models of public reason. This is for two reasons: first, public reason is unable accommodate diverse perspectives in determining a regulative ideal. Second, regulative ideals are unable to respond to social change. While models based on public reason focus on the justification of principles, this book suggests that we need to orient our normative theories more toward discovery and experimentation. The book develops a unique approach to social contract theory that focuses on diverse perspectives. It offers a new moral stance that author Ryan Muldoon calls, "The View From Everywhere, " which allows for substantive, fundamental moral disagreement. This stance is used to develop a bargaining model in which agents can cooperate despite seeing different perspectives. Rather than arguing for an ideal contract or particular principles of justice, Muldoon outlines a procedure for iterated revisions to the rules of a social contract. It expands Mill's conception of experiments in living to help form a foundational principle for social contract theory. By embracing this kind of experimentation, we move away from a conception of justice as an end state, and toward a conception of justice as a trajectory.

Listen to Robert Talisse interview Ryan Muldoon about Social Contract Theory for a Diverse World on the podcast, New Books in Philosophy: http://tinyurl.com/j9oq324

Also, read Ryan Muldoon's related Niskanen Center article, "Diversity and Disagreement are the Solution, Not the Problem, " published Jan. 10, 2017: https://niskanencenter.org/blog/diversity-disagreement-solution-not-problem/

1Taking Diversity Seriously

As we have seen, we live in a world of increasing diversity. Historically, liberal political theory was the tool that was brandished to deal with diversity. In this chapter, I will demonstrate that much of contemporary liberal theory fails to fully appreciate the degree to which diversity changes the structure of political communities. Rawlsian public reason liberalism, the most promising and prominent effort to put diversity at the heart of its analysis, given its focus on “reasonable pluralism,” will be the focus of my attention.

The main reason for Rawlsian public reason’s diversity problem is that public reason, as exposited by Rawls, Larmore, Freeman, Quong, and others, is ultimately an account of sameness, not difference. The mechanism by which these liberal theories try to resolve the challenges posed by diversity is to develop an account of how diverse individuals actually all share the same political conception. For Rousseau (2009), this took the form of the General Will, which was distinct from the Will of All precisely in that it was meant to be a shared political conception of our needs and responsibilities as citizens rather than simply the aggregate of our wants as individuals. The strongest endorsement of this requirement of a shared conception in contemporary political philosophy comes from Habermas, where he says of public reason that “the consensus brought about through argument must rest on identical reasons able to convince the parties in the same way” (Habermas 1995, 339). The structure of the Original Position in A Theory of Justice is similarly demanding, albeit taking a different form than Habermas. Rawls moved toward a weaker form of consensus in Political Liberalism, in the form of overlapping consensus, but even there, justification requires a shared political conception. Freeman, in an explication of Rawls’ account of public reason, says “political justification addresses others in terms of their shared political self-conception, namely, in their capacity as reasonable and rational democratic citizens” (Freeman 2004, 2065). Even if this is a weaker form of shared reasoning than what came in A Theory of Justice in that it allows for a variety of reasonable comprehensive moral doctrines, it explicitly requires a shared political conception.

The general structure of the political liberal solution is that agents with diverse comprehensive moral doctrines, culture, and other private-sphere features adopt some common view of themselves as citizens.¹ From this (supposedly neutral, universal) perspective, they assess what citizens of a diverse society owe to each other, and what basic principles and rules they should be bound by. This shared, neutral perspective heavily restricts what arguments agents can offer each other. From this constrained perspective, we generate a set of principles or a regulative ideal at which we ought to aim. The agreement of the agents in this idealized scenario is supposed to be normatively binding for us in the real world as it models a subset of our reasons – those that count as public. We are to find the arguments compelling precisely because the negotiators are “neutral” – they are not weighed down by the biases that are found in our normal reasoning. It is worth noting that even this basic step can easily be seen to be problematic. While morally motivated agents might all be able to think of themselves in a citizen role, there is little reason for believing that all agents conceive of what it is to be a citizen in the same way. In fact, part of the substance of our political disagreements is about that very idea. The notion of a citizen is not a mere descriptive truth, but instead a signifier of a number of political values and substantive claims about on what terms we are to engage with each other, and about what. Simply assuming that there is a single account, and that this account is neutral across competing political conceptions, is to at best miss out on an important source of disagreement, and at worst disadvantage one’s political opponents by denying them the expression of their conception of citizenship. However, for our purposes we can bracket this worry for now and instead focus on the structure of justification found once we take reasoning as citizens for granted.

There are three main dangers that I wish to highlight about this approach. First, it supposes that moral agents have excellent, if not complete, epistemic access to the world. Second, implicit in this approach is the idea that political equality relies on sameness. Third, this sameness is held up as an ideal of Rawlsian public reason. The rest of this book aims to eliminate those assumptions in any considerations about justice, but first we should examine why they are problematic.

The first danger is that we give both ourselves and our theorized moral agents too much epistemic credit. Since Rawls, we often suppose that individuals can reason as if they do not know who they are in society, and this is meant to help us distinguish between morally relevant and irrelevant information. In Chapter 3 I will challenge the idea that veil-of-ignorance-style arguments can be successful, but for now I want to highlight that even if we can correctly determine which information is biased versus unbiased, we have no assurances that we have all, or even an adequate amount of information to make any moral or political judgments with any reliability. Social contract theory has tended to require unmodifiable contracts that settle matters with a “condition of finality” (Rawls 1999, 116–17). As Rawls says, “the original agreement is final and made in perpetuity, there is no second chance. A person is choosing once and for all the standards which are to govern his life prospects” (Rawls 1999, 153). But for this to even make sense as a philosophical strategy, it must be the case that the contracts get it right. The contractors must have all of the information, principles, and considerations relevant to justice available to them, or at least all that will be available for the foreseeable future. Not only that, but they have to be able to come to the uniquely correct set of principles based on this information. This of course presupposes that there is a uniquely correct set of principles, which we have no compelling reason to believe is the case. In fact, given the diversity of reasoning, of culture, and of environment that humans face, it would be rather surprising to find that there is a uniquely correct set of principles that is best across all these different circumstances.

Given that we do not consider political philosophy to be a completed project, this should be a suspicious strategy. Regulative ideals should only be compelling if we are confident in their correctness.² But we cannot be confident in the correctness of a regulative ideal if we are unsure as to whether all relevant considerations have been taken into account. Since we do not even know what the full space of reasons is, how can we know if we have covered it? And even if we had, do those reasons apply equally across different social and environmental circumstances, such that we always end up with a uniquely correct set of principles?

A defender of Rawls might reply that I misinterpret the Rawls passage I quoted above. Rawls’ goal was simply to ensure that contracting agents couldn’t take a gamble on a contract, find that they lost out, then attempt to renegotiate. I agree that this is Rawls’ intention, but it creates an important problem for how we understand what’s going on with the structure of justification in the Original Position – that is, are questions of justice resolved within it or (at least in part) outside of it. If we enter into something like the Original Position to reason about justice, then we should want the resources available within the Original Position to be sufficient to answer the question. If justice is determined at least in part outside of the theory, such that we can (externally) develop new reasons as we go and then deploy them internal to the Original position, then what is determined within the Original Position is far from stable. Not only that, but it then would appear that the conditions upon which one enters into the Original Position become normatively important, even though the normative force of the Original Position stems from stripping away those conditions in the first place. Further, we have at least some evidence that Rawls had a fair amount of faith in the status of the argument from the Original Position.

Rawls himself has compared the status of the argument from the original position as being analogous to constructive proofs in mathematics (see Rawls 1993, ch. 3, sect. 3). But this hardly seems an apt analogy: mathematics is grounded in an axiom system, and there is a widespread agreement on what constitutes a proof. In political and moral theory, we do not have those luxuries. We cannot even always gain consensus over the relevant objects of inquiry, let alone whether our arguments succeed. By making analogies such as these, political philosophers give the appearance that we are on firmer, more well-known ground than we actually are. Of course, this isn’t to say that political philosophy is completely unmoored from any foundations. We have no doubt made progress on the question of justice. But claiming that we are better than we were before is a far cry from claiming that we have a complete picture of all the relevant factors that go into considerations of justice.

Standard discourse in the reasons literature demonstrates why this is the case. It is simply false to say that reasons provide evidence for a proposition in a way that respects a monotonicity condition. That would be, if we have four reasons in favor of some proposition, a fifth reason, were we to find it, will just give us more reason to favor the proposition. Instead, we can have so-called trumping reasons. A new reason can come to light that overwhelms all of the previous reasons and gives us cause to reject the proposition. For instance, we might think that Soylent Green is a cheap, abundant source of nutrition. We might believe that Soylent Green, if produced on a large scale, would be able to feed the poor. This might lead us to have reason to commit ourselves to a policy of Soylent Green production and consumption. If we were later to find out that Soylent Green is made of people, this would cause us to reject our previous commitment. That Soylent Green is made of people is a trumping reason against consuming it. Simply having a subset of the reasons relevant to justice does not put us in a good epistemic position to make once and for all claims about justice, nor does it put us in a comparable situation as a mathematician producing a constructive proof. Having an adequate evidentiary base is important. Scientific practice has become increasingly sensitive to whether the evidence allows us to come to a conclusion at all, beyond the need for gathering more data. There is no such option in the Original Position.

The second danger, that we must equate equality with sameness, comes from noble intentions, but has deeply problematic consequences. While I certainly want to endorse the idea that we are all political equals, as well as Rawls’ description of us as free and equal moral persons, I want to resist the move that says that equality requires sameness. In the general strategy outlined above, we see that we are, in ideal theory, reduced to being nothing more than a shared political conception and basic similarity in capacities. For example, in Justice as Fairness: A Restatement, Rawls notes:

the parties are symmetrically situated in the original position. This models our considered conviction that in matters of basic political justice citizens are equal in all relevant respects: that is, that they possess to a sufficient degree the requisite powers of moral personality and the other capacities … Thus, in accordance with the precept of formal equality that those equal (similar) in all relevant respects are to be treated equally (similarly), citizens’ representatives are to be situated symmetrically.

(Rawls 2001, 18)

Note that this derives from the Aristotelian idea of treating like individuals in like manner. Formal equality in this sense is readily open to denials of descriptive similarity, which would in turn cast doubt on normative equality. However, I want to highlight the idea that our differences are precisely what make us equal moral persons. Our diversity is constitutive of our political equality. That we can be different from each other, and choose to have different life projects, grounds our equality in our agency freedom. This follows Mill’s and Dewey’s conceptions of the nature of individuality. Our freedom stems from the exercise of our agency, and in the effort to develop and pursue our goals. The sameness requirements found in accounts of formal equality may make sense for questions of how to treat people in similar (legal) situations, but when we think of grounding the basic concept of equality, it hinders us more than it helps us. Of course, I don’t mean to deny that there is never some abstraction on which people can appear to be the same. My claim is instead that there is no reason to privilege one abstraction over other competing abstractions as the primary means of grounding normative equality. That we can have many competing accounts of sameness suggests that it is not the sameness doing the work. Instead, I suggest that the proliferation of differences is a better source of grounding for normative equality. And so, without an appreciation of how our differences affect our reasoning – by supposing a false ideal of neutrality – we simply cannot offer a picture of a social contract built on true political equality.

Differences matter. They matter descriptively, because they drive us to understand the world in different ways. They matter normatively because these different ways of seeing the world can also drive differences in values. We implicitly recognize this when we speak of the conflicts generated by diversity, but as I will discuss in later chapters, these differences not only can help us resolve those conflicts, but can make ourselves morally and materially better off. Embracing these differences, and allowing our political institutions to be responsive to them, provides us with a better basis of engaging in a system of social cooperation.

It is notable that veil-of-ignorance-style approaches in public reason hinge on rejecting the normative importance of these differences. Behind a veil of ignorance, it is precisely our differences that we do not have access to. This imposes sameness on what would otherwise be diverse moral agents as a mechanism for political justification.

Supposing that sameness undergirds our political equality also gives ammunition to those that wish to deny political equality. Those who wish to disenfranchise others can simply highlight the target group’s differences from the majority. This has been used throughout history as a legitimating strategy for unequal treatment. In the United States, we have a significant history of slavery, Jim Crow laws, and other forms of systematic oppression and disenfranchisement despite declaring in our founding documents “all men are created equal.” Pseudosciences like phrenology and craniology were used in Europe and the United States in the 19th century to develop a scientific basis for unequal treatment between races and sexes.³ Making differences salient to justify unequal treatment only works if we all agree that it is sameness that motivates equal treatment. Veil-of-ignorance strategies, employed in Rawlsian approaches to public reason, implicitly rely on sameness. Promoting an account of equality that celebrates, rather than denies, differences makes this strategy much more difficult. It may be a less obvious strategy to promote equality by highlighting diversity, but it puts us on a much stronger footing to deal with challenges.

The third danger, that we should engage with each other on neutral terms using only public reasons, initially seems like a desirable feature of Rawlsian public reason liberalism. It begins with the claim that we all share a notion of citizenship, and that we should in the public sphere engage with each other as citizens. This sounds very appealing. By engaging with each other as citizens, we do not have to worry about underlying differences – we can just focus on our citizen interests. Not only that, we can restrict what kinds of arguments we are allowed to use down to those that everyone finds acceptable.

These are all worthy goals. However, I argue that these goals are increasingly self-defeating as populations become more diverse. As mentioned earlier, a primary source of challenges is coming up with a single shared notion of citizen. Even if I am willing to endorse the idea that we all can, at times, choose to reason as citizens, it is another thing to claim that we share the same concept of citizen. It is extremely likely that our private-sphere conceptions of ourselves shape our understanding of what our duties as citizens are. It is probably no coincidence that in the United States where one lives is a very good predictor of one’s party affiliation. Our political parties, both mainstream and not, are in part arranged around competing ideas of what citizenship amounts to. This is at least suggestive evidence that points away from the claim that we share a notion of citizenship. But let us suppose that we could share a notion of citizenship. Is this even desirable? I suggest that it is not.

When we reason with each other qua citizen, we are asked to rid ourselves of our private-sphere interests, or at least recast those private interests into public reasons. Pateman (1988) and Mills (1997) have both argued that this can hide the subjugation of vulnerable groups behind a veneer of neutrality. At the very least, this will privilege some at the expense of minorities, as I will discuss at length in Chapter 3. But more basically, I claim that reasoning as citizens is something that is both difficult and isolating. It is difficult for us because it is our private-sphere experience that helps us develop our conception of citizenship. It isolates us from one another because it strips us of our private-sphere experiences and connections. Most of our experience of living in a system of social cooperation is not in terms of political institutions, but in private-sphere interactions with others, where we generally have to negotiate differences between each other in part by trying to empathize with each other. Appiah (2006) has powerfully argued that it is through these private-sphere associations, values, likes, and dislikes, that we can build connections with even distant others. Reasoning as citizens makes it more difficult to come to discover each other’s perspectives. I can’t better understand you if you are just one among many citizens – I don’t come to understand the motivation for your preferences. If you are demanding something that I don’t endorse, or don’t understand why you’d want, it is hard to come to appreciate your view. When I don’t understand why you’d want something that I don’t endorse, it’s much easier for me to suppose nefarious reasons on your behalf. If we are only allowed public reason, I can’t come to understand if this is critical to your comprehensive moral doctrine, a personal quirk, or an element of your plan of life. If we speak to each other on terms that allow for the expression of our private-sphere selves, our parochial interests, and our personal commitments, we are more likely to begin ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of contents
• Acknowledgments
• Introduction
• 1 Taking Diversity Seriously
• 2 Expanding the Justificatory Framework of Mill’s Experiments in Living
• 3 The View from Everywhere
• 4 Justice without Agreement
• 5 Experiments in Distributive Justice
• 6 Dynamic Political Philosophy
• Works Cited
• Index