Contractualism

March 17, 2022 | SARA BIZARRO

Contractualism is both a moral theory and a political theory, it's also known as social contract theory. As a moral theory, the claim is that there is no morality before there is an agreement between people regarding what is the best way for them to behave

and cooperate. In this sense, contractualism is a type of relativism, it says that morality is relative to a contract or an agreement.

The term contractualism applies to all social contract type theories, however, sometimes there is a distinction made between contractarianism and contractualism. This distinction is semi-informal and not always used, very often the word contractualism is used to refer to all social contract theories. Contractarianism, when it is used, seems to refer to the type of social contract theories that claim that without a social contract we would be in dire straits so to speak. The quintessential contractarian is Thomas Hobbes who argued that without a social contract we will live in what he calls a state of nature, which was in fact a state of war.

Plato (424/427 - 348/347 BC)

In Plato’s Republic, there is an early version of contractarianism as well presented by Glaucon (Plato’s brother). In the Republic, Socrates is talking to several people about the nature of justice, and each of them puts forward their own definition of justice. Glaucon puts forward a notion of justice that he claims was popular and accepted at that time, he says:

“They say that to do injustice is, by nature, good; to suffer injustice, evil, but that the evil is greater than the good. And so when men have both done and suffered injustice and have had experience of both, not being able to avoid the one and obtain the other, they think that they had better agree among themselves to have neither; hence there arise laws and mutual covenants, and that which is ordained by law is termed by them lawful and just. This they affirm to be the origin and nature of justice, it is a mean or compromise, between the best of all, which is to do injustice and not be punished, and the worst of all, which is to suffer injustice without the power of retaliation, and justice, being at a middle point between the two, is tolerated not as a good, but as the lesser evil, and honored by reason of the inability of me to do injustice. For no man who is worthy to be called a man would ever submit to such an agreement if he were able to resist; he would be mad if he did.”

Republic, Book II

This quote is quite puzzling, it starts by saying that “to do injustice is, by nature, good.” Typically we think of injustice as something that is by nature bad, so what is Glaucon trying to say? What he means is this: if one can interact with others freely and come out the winner, that would be really good for that individual person. If I can get away with something and improve my situation in a significant way, then that will be good for me. However, in a world where we are all able to do whatever we want, we will sometimes win, but sometimes lose, there is no telling what side we will fall on. Furthermore, the bad experience of being a victim is worse than the good experience of winning. Therefore, since we cannot guarantee that we will win all the time and we fear losing and being the victim, and since that is worse, we come up with agreements to protect ourselves from being victimized. These agreements, Glaucon claims, are nothing to be proud of, they are a mere compromise between the best which would be “to do injustice and not be punished” and the worst of all which is “to suffer injustice without the power of retaliation.” Justice is a middle point between the two and is simply tolerated to avoid a higher evil of being the victim. We can see that Glaucon is indeed proposing a contractarian view of justice, where social contracts are enacted to prevent a higher evil.

Hobbes (1588–1679)

Hobbes took this idea that we make agreements to avoid danger a little further. Hobbes argued that before agreements we live in what he called a state of nature. The state of nature for Hobbes is not pleasant, there are three causes of quarrel in a state of nature for Hobbes: Competition, Distrust, Glory. Basically, without rules humans will fight for the same resources, they will not trust each other and they will look for ways to become recognized by others. In this state there is no morality, no good and bad, just natural behavior. The main problem with this state for Hobbes is that no natural leader would arise from this, since some will be stronger, but others smarter, and even the weaker and less smart can band together to defeat the stronger:

“Nature hath made men so equal in the faculties of body and mind as that, though there be found one man sometimes manifestly stronger in body or of quicker mind than another, yet when all is reckoned together the difference between man and man is not so considerable as that one man can thereupon claim to himself any benefit to which another may not pretend as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others that are in the same danger with himself.” Hobbes, Leviathan

If we think about these characteristics together, Competition, Distrust, and Glory as what motivates people without rules, and that no one will naturally or for long rule over others, then we have the consequence that without a social contract, we will be in a state of nature that will be a permanent state of war. Hobbes famously said that his state of nature would be “solitary, poor, nasty, brutish and short.” No industry could develop, no culture, no art, etc. In a state of nature, everyone is busy fighting everyone in a never-ending war.

For Hobbes in a state of nature, there are two guiding principles, liberty and self-preservation, we are born free with the wish to do whatever we want, but we also have a self-preservation instinct, and we do what it takes to survive. These two principles are not completely compatible (this is a new version of Glaucon’s problem above.) In order to achieve self-preservation, we need to give up some of our freedoms and accept a social contract, where we are not free to do whatever we want, but the social contract does provide the means of self-preservation and peace. Once we have a social contract, morality comes to being, right and wrong is defined in terms of the social contract, they are acts that are conducive to peace and living together in a peaceful way.

The next thing Hobbes notes is that once we have a contract if we don’t have a strong incentive to keep it, it is useless. The idea is this, imagine in a state of nature, where everyone is always looking over their shoulder (Distrust) and expecting that someone will come and steal their goods - in this state, it will be difficult to steal and get away with it. But once we have a social contract, and people have a sense of security, they will be less vigilant. That means that if someone wants to steal something, they can probably now get away with a much larger loot. After the contract is enacted, the payoffs for breaking it become way higher. Hobbes will argue that the solution for this problem is one and only one: we need to have a very strong type of government that has the necessary authority to keep the social contract. He likened this authoritarian type of government to a Leviathan and named his book the same.

A Leviathan was an undefeatable sea creature, which is adequate for the time, since this was the age of exploration and expansion by sea, these types of creatures were very much in the imagination of Hobbes’ contemporaries. The Leviathan is featured in the book of Job 41, God says that the Leviathan cannot be tied down or tamed (Job 41:1, 5), it is frightening to even look at (verse 9), it is best left alone (verses 8, 10). The Leviathan is said to have a graceful form (verse 12) but to be incredibly well protected with scales (verses 13, 15–17). Its chest is as impenetrable as its back (verses 15, 24). It has fearsome teeth (verse 14), and death awaits anyone who approaches its mouth (verses 18–21). Even mighty men are terrified of the leviathan (verse 25). No sword, spear, dart, javelin, arrow, stone, club, or lance can defeat it (verses 26, 28–29). It cannot be caged, because it breaks iron like straw (verse 27). On land, the Leviathan leaves a trail of ruts; in the water, it produces a deep, churning wake (verses 30–32). The description of the Leviathan concludes by saying: “Nothing on earth is it's equal—a creature without fear” (verse 33).

One can see clearly the type of leader Hobbes was thinking about when proposing that only a Leviathan would be able to keep the social contract. This authoritarian character could be an absolute monarch, which Hobbes thinks is the best fit for the job. However, other systems could also work, as long as they are authoritarian in nature and have the ability to enforce the social contract, for Hobbes only systems with unlimited power can achieve this.

Summing up, Hobbes is a contractarian since he thinks that without a social contract we will be in a state of nature that is a state of war. This state of nature is not historical, it is a theoretical state that can happen any time the social contract is not present. In order to leave the state of nature, we enact contracts where we give up some of our liberties for security, and we will need a strong leader in order to enforce the social contract because the payoff of breaking it becomes that much higher in a generally peaceful and trusting society. With this strong leader, he thought we can achieve long-lasting peace.

John Locke (1632-1704)

There are some contractualists that are not necessarily contractarians, that is they do not think that we enter a social contract to escape a terrible state of nature. One such contractualist is John Locke. For Locke, the social contract arises naturally from the recognition in a state of nature that if we claim certain rights for ourselves, other humans would also have a claim to similar rights for them. All persons for Locke and born free and equal, and that is why we all have a similar claim to rights as others.

A state of nature for Locke would not be the chaos that Hobbes describes. In a state of nature, there would be plenty of resources for everyone, and so conflicts, even though they would happen, would not be constant. When conflicts arise in a state of nature, Locke thinks the group would solve them by appointing a neutral judge, someone recognized in the community for being impartial, to solve the conflict. If the judge stops being impartial, the community would soon pick a new judge, since an effective judge needs to be recognized by the community as impartial.

The basic rights recognized in a state of nature would be for Locke, Life, Liberty, and Property, and the impartial judge would resolve any abuses of these rights. A state of nature for Locke is not immoral, it already recognizes some rights. We can say that for Locke a state of nature is already a moral state and that the contract will spring from that morality and not the other way around, the morality is not birthed by the contract. Why do we need a social contract? Will the impartial judge be enough? One of the reasons why we will need a social contract to preserve the rights of Life, Liberty and especially Property, is when money is introduced. Introducing a currency will lead to inequality and problems of scarcity that were not there before, although it has other advantages, and people introduce it willingly. Before introducing a currency I can only accumulate as much as “I can eat” so to speak, but after a currency, I can accumulate a lot more than I can eat, so if I horde some goods, others will lack them.

“He that gathered a hundred bushels of acorns or apples, had thereby a property in them; they were his goods as soon as gathered. He was only to look that he used them before they spoiled, else he took more than his share, and robbed others. And indeed it was a foolish thing, as well as dishonest, to hoard up more than he could make use of. If he gave away a part to any body else, so that it perished not uselessly in his possession, these he also made use of. And if he also bartered away plums, that would have rotted in a week, for nuts that would last good for his eating a whole year, he did no injury; he wasted not the common stock; destroyed no part of the portion of the goods that belonged to others, so long as nothing perished uselessly in his hands. [...] And thus came in the use of money, some lasting thing that men might keep without spoiling, and that by mutual consent men would take in exchange for the truly useful, but perishable supports of life.” John Locke, Two Treatises of Government, § 46, 47

Introducing a currency is done voluntarily as it allows for more transactions between members of the society that may be beneficial. However, we now need to have a better and more complete agreement to guarantee a stable and comfortable life for all the members of this society.

If this agreement is beneficial, members of society will want to keep it. Locke does not think we need an authoritarian leader to keep the agreement, although some enforcement will be necessary. Enforcing the agreement needs to come from a government that is recognized as legitimate, therefore democracy is the best system to legitimize a government. Furthermore, and most importantly, democracy is a system that allows for a peaceful transition of power, which authoritarian governments do not. Because of this, over time, democracy will be more stable and a dictatorial government, and will better avoid civil war.

Summing up, for Locke the state of nature is not bad in itself, it is a moral state where certain rights are recognized: Life, Liberty, and Property, and where there is plenty for everyone. Impartial judges will be sufficient up to some point, however, when introducing a currency, inequalities, and scarcity will inevitably arise, and more complex rules will be required to ensure a safe and comfortable life.

Jean Jacque Rosseau (1712–1778)

Rousseau is also known for being a contractualist and he wrote a book called The Social Contract. In the Discourse on the Origin of Inequality, Rousseau also talks about a state of nature, but for him, it is a state that is more moral than a civilized state. In a state of nature he said, humans guide themselves by two principles: self-preservation and empathy. Rousseau developed the concept of the noble savage and argued that in a state of nature humans would protect themselves, but they would also help each other, whenever they could if their survival was not put at risk by doing so. When a civilization comes, then self-preservation is somewhat safeguarded and it turns into self-interest (he calls it amour prope, which could also be translated as self-love, or we can also call it selfishness). Civilized society then forgets empathy and focuses on self-interest, therefore becoming less moral than the state of nature.

When a community reaches a civilized state, there is no returning to the state of nature. What naturally transpires in civilized communities will be a society organized in ways that are less than ideal. Therefore, we should look at these existing civilized societies and try to think about how we can improve them.

Rosseau thinks that the main tension in human nature is between freedom and authority. In civilized societies, this tension has not been resolved. Hobbes’ authoritarian government would not solve this tension either, because in this type of government authority simply overcomes freedom. The solution to this problem lay in direct democracy. In a small city-state, Rousseau thought, the citizens could gather to make decisions for the community, they would discuss these decisions, but after they decide by vote what would work for the community, the individual would give up their individual will to embody what he called the general will - that is if the majority thinks that something is good for a community, the individual would align himself with the majority and give up his individual views. Therefore, he would be freely accepting the authority of the group decision. An individual would be freer in this setting, according to Rosseau, than in a setting where he is chained to his individual will.

In sum, Rousseau thinks about the state of nature in complete opposition to Hobbes, he thinks it is a state that is more moral than a civilized state. However, after civilization sets it, there is no way to return to the state of nature, and the systems that will come with civilization will be unfair, unstable, and problematic. In order to solve this problem, we need a social contract where the individuals legitimize authority themselves, and authority is not imposed. The system that is better suited to achieve this is a direct democracy, where decisions are made by the community, and where the final decision is not then challenged but embraced by all. The community would this way build laws that it follows, rather than obeying leaders, the community would be obeying the law. This way he thought we would have a state that has authority that is legitimate rather than illegitimate. Later, philosopher, John-Stuart Mill wrote a book called On Liberty that defended that we need to have a space for individuals to dissent with the general will of their time, or we can suffer the tyranny of the majority. It is interesting that Rosseau arrives at an authoritarian type of government from the opposite side of the argument as compared to Hobbes.

John Rawls (1921-2002)

The last contractualist that will be addressed here is John Rawls. Rawls is a 20th-century philosopher and he abandons the idea that we need to look for a state of nature before talking about the necessity of a social contract. Instead, he focuses on what conditions would create a fair social contract that would be accepted by all. With this in mind, he comes up with something he calls the original position, or the veil of ignorance. This position is presented as a neutral starting point, and it is a thought experiment where we imagine that even though we know a lot about how our current society is, we should imagine ourselves behind a veil of ignorance and think about what rules and principles would we accept if we did not know what position we are going to have: we could be a man or a woman, rich or poor, healthy or with a disability, gay or straight and so on. From this position, what would we all accept as rules that could be implemented for all?

Rawls’ book, A Theory of Justice, is considered by many the most important political philosophy book of the 20th century and begins with this thought experiment. Rawls will argue in the book that behind that veil we need to come up with principles that all of us would accept, and those would be the principles of justice. His theory of justice is defined as justice as fairness because from behind the veil of ignorance we would not know which position we will have in a society, and we will only be able to agree on principles that would seem fair for whatever position we are in.

Rawls argues that behind this veil we would be able to agree with two principles, very much along the lines of Locke:

1.The Freedom Principle.
The Equality Principle.

Of these two principles, Rawls argues that the first one is more important than the second and that we cannot sacrifice the first one for the second, although he does believe that we can to some extent, have both. Let’s look at how Rawls defines these principles:

The Freedom Principle - each person should have an equal right to the most extensive basic liberty compatible with a similar liberty for others.
The Equality Principle - social and economic inequalities are to be arranged so that:
1. They can be reasonably expected to be to everyone’s advantage (the difference principle).
2. They are attached to positions and offices open to all (the equal opportunity principle).

The freedom principle is fairly uncontroversial, and not new to Rawls - both Locke and John Stuart-Mill defended similar principles. Behind a veil of ignorance, it is reasonable to expect that people would agree with this principle since it distributes freedom equally by all. The equality principle is actually a principle about inequalities in society, and this one is harder to argue for since it is not defending simply an equal distribution, but a fair distribution. We should look at each subsection of this principle separately.

The difference principle (a.) argues that inequalities are only acceptable if they can be reasonably expected to be to everyone’s advantage. What does this mean? Rawls thought that if we can show that inequalities are to everyone’s advantage then they should be not only tolerated but also encouraged. But how can we know that inequalities are to everyone’s advantage?

In order to illustrate my interpretation of Rawls’ difference principle, I have developed what I call Rawls’ cake analogy, which does like this: Imagine we have a completely equalitarian society and come together to bake a cake. Each of us brings the exact same ingredients, let’s say the same amount of flour, sugar, and eggs, we bake the cake together distributing work equally, when the cake is baked, the distribution of it should be equal. We can guarantee equal distribution of such a cake using a procedural justice device, such as the person that cuts the cake gets the last slice (this is mentioned in A Theory of Justice). However, in a complex society, we would be able to bake a much better cake if each person brings what they have access to, say one person has access to a lot of eggs because they have chickens, and another has access to chocolate, another to chocolate sprinkles, another is an excellent baker, and so on. Each person brings their talents to the table. The cake thus produced will be bigger and better, but the question of fair distribution becomes a lot more complicated, since people brought different things to the cake, how should it be distributed now? Rawls’ answer is going to be that if the smallest slice of this elaborate cake is larger and better than the smallest slice of the equalitarian cake, then this distribution will be fair: the people that are worse off in this society would still be better off than they would have been in an equalitarian society. This is a way to argue for a social safety net within a free market society, and in that sense, it is a very interesting argument indeed. Of course, it says that the slices of the equalitarian society will be necessarily worse, which may not be the case, but Rawls spends most of the book arguing for this with details that we won’t go into here.

The second principle, the equal opportunity principle, is also interesting. One thing we can ask when we consider the cake’s distribution is that even if the smallest slice of the cake in the complex society is better than the slice of the cake in the equalitarian society, we can still argue that if people feel like they are systematically excluded from a better slice than the one they have, they would also feel like that distribution is unfair. That is, in a society where say a group, say women, was systematically excluded from any but the smallest slice, this would not seem fair to that group. Therefore, in such a society the higher positions and offices must be open to all - i.e. we need a path to achieve these positions and offices.

This idea contrasts both with the ideas of equality and equity in regard to opportunity. Traditionally equality is considered giving everyone the same, which may lead to some people being systematically left out because they would require different conditions to achieve the higher positions (think of someone with a disability, they may require accommodations to achieve something that someone without a disability could easily achieve). Equity is described as giving everyone what they need, to guarantee they will all achieve the same goal.

Rawls does not go so far as proposing that equity is necessary, the equality of opportunity principle only requires that the opportunities are open to all and in order to be open to all there must be a path to get to them, however, we do not need to guarantee access to everyone, we only need to guarantee that no group is systematically excluded. One example of how to implement this principle would be to create conditions at top universities that allow people from lower-income backgrounds to attend them if such institutions are directly linked to positions of power, and if access to those institutions depends on the financial means of a student’s family, then that would exclude lower-income students from achieving positions of power. In my opinion, this argument could be extended all the way down to the beginning of education, since to be prepared to enter top universities, students need to have a previous education that is of enough quality to allow them to achieve excellence. I am not sure if Rawls would go this far, but I think there is a possible argument to be made here.

Summing up, Rawl’s position does not appeal to a state of nature but instead focuses on the question of how a social contract could be achieved that is viewed as fair by all those involved. He uses the original position, or the veil of ignorance, as a thought experiment and he argues through it to his two principles of justice. This original position does not need to be realistic, it does not necessarily matter that we can never be in this position (although some critics do think it matters). We can use the original position as a device for reasonably discussing how to construct a fair society that all would accept. The specific principles of justice that Rawls proposes can be and have been discussed, but the idea that a social contract needs to be at least perceived as fair in order to be stable seems to be a cornerstone of contemporary social contract theories.