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5. The social contract
To the extent that liberal philosophy emphasizes diversity and conflict among individual purposes, it seems to steer us in the direction of anarchism. For what set of actually existing or realistically practicable institutions could possibly accommodate the individualism we have outlined?
In fact, liberal theorists have always held that something like the modern state, with its familiar institutions of law and representative government, can be made legitimate. They reject both the anarchist view that freedom is vindicated only in the absence of state authority and obligation and the utopian premise that a just society presupposes a radical change in human nature. This puts them in a rather ambivalent position in so far as existing ’liberal’ societies are concerned – meaning here the constitutional democracies of North America, western Europe, Australasia and Japan. Liberalism has been a remarkably successful political ideology, inasmuch as its leading principles – freedom, toleration and equality before the law – have been accepted as part of the self-image or public relations of the world’s most powerful and prosperous societies. Its proponents are uneasy, however, with the common inference that the social, economic and political reality of these societies is what liberal principles amount to in practice (just as Marxists were uneasy about the presentation of the Soviet Union and its satellites as ‘actually existing socialism’). They insist, quite properly, that liberalism is a set of critical principles, not an ideology or rationalization, and that it provides a basis for condemning things like deepening poverty, secretive and oligarchical government, legal abuses and the continuing legacy of racism and sexism in modern democracies. Even so, the existence of the self-styled ’liberal’ democracies is important. It helps sustain the sense that liberalism is a reformist rather than a revolutionary creed and that we already know, at least in outline, what a truly liberal society would be like. That sense of moderate reformism is not just a strategic ideological advantage. Liberalism claims to respect men and women as they are. It does not require generation after generation to undergo sacrifice for the sake of an endlessly postponed utopia. It suggests instead that political structures can be set up in now a way which represents a safe and reasonable compromise among individuals’ disparate demands.
In its classical form – in the writings of Hobbes, Locke, Rousseau, and to a lesser extent Kant – the argument from liberal premises to the legitimacy of something like the modern state was presented in terms of the social contract (see Contractarianism). The argument goes something like this.
Imagine people living outside any framework of political authority, exercising the right to direct their own lives and their own dealings with one another, in what liberal philosophers have called ‘the state of nature’. Using this as a baseline, try to model the development of political institutions as a way in which individuals exercise their freedom not as a way in which their freedom is abrogated.
The social contract model represents the functions of government in terms of a set of difficulties that such people would face in a state of nature. Conceptions of these difficulties vary. There may be an internecine struggle for resources (Hobbes and Hume); there may be an appreciation of others’ rights, but no reliable mechanism for enforcing them (Locke); or there may be disagreement about justice, with each person seeking to do what seems right or good in their opinion (Kant). The common element is that people in the state of nature would lack a reliable sense of what they could count on in social and economic life. What they most need is a secure set of rules, impartially administered and enforced, to provide a framework in which peaceful cooperation and long-term production is possible.
Government, then, is represented in terms of an agreement by each person with all of the others (in a given territory) to cooperate in the institution and maintenance of permanent rule-making and rule-enforcing agencies. The contract is not an agreement between the government and the individual. Instead, it presents legal and governmental institutions as structures of cooperation among individuals, and it uses that idea as a basis for deriving limits on governmental powers and restraints on particular individuals’ or factions’ exploitation of those powers. Tyrannical exploitation and arbitrary government are ruled out on this conception, inasmuch as they cannot be represented as any sort of improvement over the situation individuals would face if they tried to live without any political institutions at all.
Some theorists, Rousseau and Rawls for example, use the social contract idea also as a way of thinking about the content of legal rules: we can discuss what rights we have and the just distribution of resources by asking what assurances would have to be given to each individual to secure their consent to the basic structure of social arrangements. In the hands of these theorists, the social contract is a test of substantive political justification. Others see it in more procedural terms: the social contract models the construction of political and constitutional mechanisms, which will then work out substantive solutions on a basis that is relatively independent of the contract idea. Hobbes’s theory is the most extreme example of this: the Hobbesian contract is simply an agreement to authorize an individual or organization (a ’sovereign’) to solve the problems that generate conflict in the state of nature in any way that promises improvement. The absolute authority with which the sovereign is thus endowed has led some to deny that Hobbes is a liberal. Certainly, he is not wedded to the positions identified with liberalism at the beginning of this article. But his underlying political philosophy is liberal: his value premises are individualistic, and he is unyielding in his view that political institutions (with the powers he accords them) must be justified in relation to the interests of each individual, as well as in his optimism that such justification is possible.
Not all liberal philosophers appeal to the idea of the social contract. Many prefer to develop their theories without the mediation of this model. The arguments of J.S. Mill’s 1859 essay On Liberty, for example – which many regard as the quintessential statement of liberal principles – are presented directly as claims that individuals are entitled to make, against their society and their government, without any historical pretence that governments were set up by individuals to validate those claims (see Law, limits of). Others use the social contract to justify some but not all of the political constraints they propose. In the theories of John Locke and Robert Nozick, the social contract argument presupposes a distribution of ’natural’ property rights. For them, the function of the social contract is to support and police these rights, not reconceive or redistribute them. In other words, Locke and Nozick propose that property rights should be justified directly in moral argument, without appealing to the social contract idea. I suspect that something like this is true of all liberal theories. The social contract is an intermediate rather than a fundamental idea: one that presupposes that individuals are free, equal and rational, and that political power requires a justification which connects with the interests of each of them.
When it is understood in this way, as a method of modelling the force of certain deeper assumptions or theorems about justification, the social contract can be used as a purely hypothetical device in normative argument. As Kant and Rawls have pointed out, we need not be embarrassed by the fact that no such contract ever took place. It is still a useful test to apply to a constitution or to a set of laws. For if we conclude, even hypothetically, that our laws or our constitution would not have commanded the agreement of all those who are constrained by them, we will have discovered a significant dissonance between our political arrangements and the fundamental (pre-contract) notion of respect for each individual – a dissonance that ought to be of concern to liberal philosophers whether they are interested in the niceties of contract theory or not.
Waldron, Jeremy. The social contract. Liberalism, 1998, doi:10.4324/9780415249126-S035-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/liberalism/v-1/sections/the-social-contract-1.
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