3. The Hypothetical Social Contract Theory

3.1 Arguments from hypothetical consent

1. Arguments from hypothetical consent
2. Hypothetical consent in ordinary ethics
3. Hypothetical consent & reasonableness
1. Hypothetical agreement as
   evidence of reasonableness
2. Could agreement be reached?
3. The validity of hypothetical consent
4. Hypothetical consent and
   ethical constraints
1. Rawls's contract theory
   as an account of authority
2. Could agreement be reached?
3. The validity of hypothetical consent,
   part 1: the appeal to fair outcomes
4. The validity of hypothetical consent,
   part 2: sufficient conditions for
   reliable moral reasoning
5. The validity of hypothetical consent,
   part 3: necessary conditions for
   reliable moral reasoning
5. Conclusion

As we have seen, the traditional claim that individuals have consented to the state cannot plausibly be defended. Hypothetical social contract theorists turn instead to the claim that individuals would consent to the state under certain hypothetical conditions.[1] These conditions may involve stipulations regarding the knowledge, degree of rationality, and motivations of the parties to the social contract, in addition to the stipulation that all members of a society be given a choice as to what sort of society they shall live in. The fact that we would have agreed to a given arrangement in a particular hypothetical scenario is thought to legitimize that arrangement and generate obligations to support it. This approach has the dialectical advantage of avoiding the sort of dependence on empirical facts about the actual world that proved the downfall of the traditional social contract theory.

Defenders of any hypothetical social contract theory must complete two tasks: first, they must show that people would accept the social contract in their hypothetical scenario; second, they must show that this hypothetical consent is morally efficacious, in the sense that it generates obligations and ethical entitlements similar to those generated by valid actual consent.

3.2 Hypothetical consent in ordinary ethics

At first glance, a hypothetical agreement would seem to bear little normative import. Promises that one has made typically bind one to perform as promised, yet promises that one merely would have made under idealized circumstances do not similarly bind one. One's actual consent can give others the right to coerce one, yet consent that one merely would have given under idealized circumstances does not similarly give others the right to coerce one. Or so it seems.

However, there are circumstances under which hypothetical consent is morally efficacious, circumstances in which the fact that someone 'would have agreed' to some procedure can render it permissible to perform the procedure, where the procedure is of a type that normally requires consent. Suppose that an unconscious patient has been brought to a hospital, in need of surgery to save his life. Under ordinary circumstances, physicians must obtain the patient's informed consent before operating. In this situation, insistence on this principle would preclude the application of lifesaving medical care, as the patient is unable to either consent to or dissent from the treatment. In such a case, it is generally acknowledged that the doctors should proceed despite the lack of consent. The most natural explanation appeals to the reasonable belief that the patient would consent to the lifesaving procedure if he were able to do so.[2]

Might hypothetical consent have similar moral efficacy in the case of the social contract? There are two necessary conditions for the moral efficacy of hypothetical consent in such a case as that of the unconscious patient. First, the obtaining of actual consent must be impossible or unfeasible, for reasons other than the unwillingness of the other party to consent. To illustrate, imagine that a second patient arrives at the hospital, also in need of lifesaving surgery, but in this case perfectly alert and psychologically normal. If here, too, the physicians choose not to solicit the patient's consent but simply administer anesthetics and proceed with the surgical procedure they deem most beneficial, they could not justify their behavior by appealing to the likelihood of the patient's having consented had he been asked. While the truth of this hypothetical claim might mitigate the physicians' culpability, it would not justify their failure to obtain actual consent, given the feasibility of doing so.

Second, when we appeal to hypothetical consent, the parties' hypothetical consent must be consistent with their relevant actual values and philosophical beliefs. Imagine that a third patient is brought into the hospital in the same condition as the first patient, unconscious and in need of surgery. But in this case the attending physician, due to his familiarity with this particular patient, is aware that the patient has strong religiously based objections to the practice of surgery, even when needed to save life. In this situation the doctor may not proceed with the surgery, in disregard of the absence of consent, on the grounds that the patient 'would have consented'. It is always possible to conceive circumstances under which any given individual would consent to any given procedure - in the present case, for example, the patient would have consented if he lost his religious beliefs. But hypotheticals that require alterations of subjects' fundamental beliefs and values - even if some of those beliefs and values are misguided - are irrelevant to establishing morally efficacious hypothetical consent. In the present case, the ethically controlling hypothetical judgment is the judgment that the patient would not have consented to receive surgery if he were asked in relatively normal circumstances, with his actual philosophical, religious, and moral beliefs intact.

This is not to deny that there might exist circumstances under which paternalistic coercion is justified; it is only to deny that coercion is ever justified in virtue of hypothetical consent where the hypothetical consent depends upon imagined fundamental alterations of subjects' beliefs and values.[3]

In light of these conditions, the hypothetical social contract cannot be accepted as valid. To begin with, the citizens of a given country, by and large, are neither unconscious nor mentally incompetent nor otherwise unable to either consent to or dissent from the social contract, nor is it unfeasible for the state to solicit their consent. One reason why modern states refrain from soliciting such consent may be that they are not prepared to exempt those who would withhold their consent from the demands of taxation and other legal requirements. But this consideration surely does not license an appeal to hypothetical consent in this case, any more than a physician could legitimately dispense with a patient's actual consent to a medical procedure on the grounds that the physician was unwilling to desist in the event that the patient actually rejected the recommended treatment.

Second, agreement on any social contract would require modifications of the philosophical beliefs and values of at least some citizens. Among the individuals on whom government is imposed are some who, on philosophical grounds, oppose the general form or style of government to which they are subject in favor of some other sort of government. Others oppose all forms of government in favor of some form of political anarchism. Agreement on a social contract specifying even very general features of the sort of government to be adopted would require these individuals to renounce important philosophical beliefs and values to which they are actually committed. Perhaps some justification could be devised for imposing a form of government on these individuals without their consent, but certainly the claim that they would have consented does not succeed.

3.3 Hypothetical consent and reasonableness

3.3.1 Hypothetical agreement as evidence of reasonableness

On some philosophers' views, when a strictly voluntary system is unfeasible, an acceptable approximation may be a system about which no one has any reasonable complaint.[4] And the fact that a political system would be the focus of an agreement by reasonable persons under ideal conditions of deliberation might be thought to show that no one has a reasonable complaint about it.

In imagining the conditions under which this hypothetical agreement occurs, we may suppose some actual characteristics of human beings altered. For instance, we may assume that the parties to the agreement are better informed and better at reasoning than most actual people. We may assume them to be both rational and reasonable, where 'reasonable' persons are understood as being concerned to make a fair agreement with others, provided that others are likewise disposed. Reasonable persons, thus, do not attempt to insist on an agreement that serves only themselves; they are willing to take account of the claims of others to reach an agreement acceptable to all.

Nevertheless, we must not imagine the parties to the hypothetical agreement as being too different from actual human beings, lest the hypothetical agreement lose its justificatory force. For example, we should take no interest in a hypothetical agreement that could be reached only after all have converted to the one true religion. We must accept the fact that reasonable people have persistent religious differences and, more generally, persistent philosophical differences, and we must seek a focus for agreement despite those differences. Hypothetical contract theorists have explicitly embraced this point, avowing that their aim is to provide justification that applies to all reasonable people.[5]

3.3.2 Could agreement be reached?

Advocates of the sort of contract theory just described have offered no evidence or reasoning to show that some particular political system would be agreed upon by all reasonable persons. Though these theorists exert considerable effort to describe the conditions that they believe would establish the legitimacy of a political system, they make no serious effort to show that any political system satisfies those conditions. One possible explanation for this omission is that, in fact, no government satisfies the conditions for legitimacy.

Thomas Nagel provides one example of the pattern. After describing the idea of a hypothetical agreement, Nagel proceeds to the question of how much the well-off members of society should be expected to give by way of aid to the worst off. At one extreme is the view that they need give little or nothing; at the opposite extreme is the view that they must give nearly everything they have. Both of these extremes he finds unreasonable. But, he concedes, there is a substantial intermediate range in which any principle could reasonably be rejected, either by the poor or by the wealthy; hence, no unanimous agreement would be possible with respect to the principles of distributive justice.[6] Nagel goes on to raise the possibility that we might alter our motivations in such a way that the conditions for legitimacy would become satisfiable in the future.

In his later work, John Rawls takes a view similar to Nagel's view of the conditions for political legitimacy, though he seems more sanguine about the prospects for agreement. Rawls's optimism, however, is without justification.[7] He describes at length how it is conceivable that his own theory of justice should be the focus for a consensus among individuals with differing religious, moral, and philosophical views. These differing views might all turn out to support a single political conception. Following the exposition of this logical possibility, one might anticipate the presentation of evidence that the possibility is realized in some actual society. Such evidence might take the form, for example, of a series of arguments, each starting from tenets of a widely held religion, moral system, or philosophical system and each concluding in the central principles of Rawls's theory of justice. No arguments of this kind are to be found in Rawls's work, nor is any other form of evidence for the conclusion that every reasonable comprehensive doctrine supports Rawls's theory of justice.

The closest Rawls comes to arguing that some religious doctrine supports his theory is in his discussion of religious toleration, where he cites John Locke's Letter Concerning Toleration in illustration of why religious thinkers may support toleration.[8] In fact, Locke, while tolerant for his time, was highly intolerant by modern standards, explicitly rejecting the idea of toleration for atheists and those who profess socially destructive ideas.[9] That observation aside, the more serious difficulty is that what Rawls seeks to provide in this passage falls far short of what his theory needs. What is needed is an argument that all reasonable persons would agree to all the major tenets of Rawls's system; what Rawls provides is an explanation of a way in which a follower of one religion could reasonably support one of Rawls's principles of justice.

The closest Rawls comes to arguing that a comprehensive secular moral theory supports his political conception of justice is in his discussion of utilitarianism, where he suggests that utilitarians might consider his theory of justice to achieve an acceptable approximation to utility maximization.[10] This suggestion, however, is left as no more than that; no argument is presented to show that Rawls's theory of justice in fact provides an acceptable approximation to the maximization of utility.

Thus far, therefore, the hypothetical contract theory appears less a grounding for political legitimacy than a promissory note for such a grounding. In essence, the theory requires that all As be B, and the theorist's defense consists in explaining how it is conceptually possible that there should be an A that is B.

Nagel and Rawls both addressed themselves chiefly to principles of distributive justice, a highly contentious area.[11] Perhaps we will have more success in defending hypothetical consent if we limit ourselves to the general agreement to have a government.

There is some reason to doubt that an agreement, whether hypothetical or actual, on the bare claim that society should have some form of government would suffice to confer authority on any particular government. If an individual agrees that there should be government but believes that it should be of a fundamentally different kind from the government he in fact finds himself subject to, it is doubtful that that government can adequately justify itself to that citizen by citing the mere fact that he agrees that there should be some form of government. An analogous case is one in which an individual wishes to have his house painted white, and a painter arrives and, without the consent of the homeowner, paints the house green. The fact that the individual would have consented to have his house painted some color by some painter does not entitle that painter to paint the house that color. When hiring a painter to paint his house, the homeowner need not consent to every detail of the painter's performance, but he must at least consent to the most important features thereof, including the identity of the painter, the color of the paint, and the price to be paid. Similarly, consent to the social contract need not include consent to every detail of the state's structure and operation, but it must at least include consent to the basic form and most important governing principles of the state.[12]

Unfortunately, even this basic level of agreement seems unattainable. Just as there are seemingly intractable disagreements about religion, philosophy, morality, and particular policy issues, so there are seemingly intractable disagreements about the general form, structure, and guiding principles of government. There is no reason to think that all reasonable people will achieve agreement on the basic principles of government any sooner than they reach agreement on the correct religion, the correct moral theory, and so on.

In fact, there remain thoughtful and reasonable individuals who believe that the optimal social organization would contain no government at all.[13] That these individuals remain a minority of society is of little comfort to hypothetical social contract theorists who aim at showing that all reasonable people would agree to the social contract. Anarchist thinkers do not, as a rule, appear particularly less rational, informed, or reasonable than partisans of other political views. They do not, for example, refuse to offer reasons for their views, refuse to consider objections, or refuse to take into account the interests of others. It is therefore difficult to identify any non-question-begging rationale for excluding them from the class of people whose agreement is sought. Unless anarchists are to be simply excluded from the agreement, hypothetical social contract theorists owe us an account of how political anarchists could be convinced to accept government.

It might be thought that I am imposing excessively strict standards for the justification of social arrangements. Surely the mere fact that someone, even a reasonable person, disagrees with a particular practice or institution does not suffice to show that the practice or institution is unjustified. The dissenter may simply be mistaken.

In reply, what I have been applying is a constraint, not on the justification of social theories in general, but on the justification of social theories through an appeal to hypothetical consent, and this constraint derives not from my own philosophical views but from those of my opponents, the hypothetical social contract theorists who claim that hypothetical consent establishes reasonableness. It is these theorists who have laid down as a condition of legitimacy that all reasonable people agree on a given social arrangement. It is, therefore, not I but such hypothetical contract theorists as Rawls, Scanlon, and Nagel who have in effect granted the reasonable anarchist's veto.

3.3.3 The validity of hypothetical consent

The hypothetical social contract faces another problem: even if it could be shown that all reasonable people would agree to some system of government, this fact would not establish political authority.

The legitimacy of a political system is a matter of the permissibility of imposing that system on all the members of a given society. It is, in part, a matter of the permissibility of intentionally, coercively harming those who disobey the rules produced by the system. The hypothetical social contract theory, on the present interpretation, offers the following candidate justification for this sort of coercion: one may coercively impose an arrangement on individuals, provided that the individuals would be unreasonable to reject the arrangement.

This principle stands in stark conflict with common sense morality. Imagine that an employer approaches a prospective employee with an entirely fair, reasonable, and attractive job offer, including generous pay, reasonable hours, pleasant working conditions, and so on. If the worker were fully informed, rational, and reasonable, he would accept the employment offer. Nevertheless, the employer is not ethically entitled to coerce the employee into working for him in the event that the employee, however unreasonably, declines the offer. The reasonableness of the offer, together with hypothetical consent, would bear very little ethical weight, at most slightly mitigating the wrongness of imposing forced labor.

Similar judgments apply to other exercises of coercion that would normally require consent: it is not permissible for a physician to coercively impose a medical procedure on a patient, even if the patient was unreasonable to refuse the treatment; nor for a vendor to extort money from a customer, even if the customer was unreasonable to refuse to buy the vendor's product; nor for a boxer to compel another boxer to fight, even if the latter was unreasonable to reject the offer of a match.

Similar remarks apply to the issue of political obligation. The unreasonableness of rejecting an arrangement does not suffice to generate an obligation to comply with the arrangement. The worker in the above example is entitled to refuse the offer of employment, unreasonable though this refusal may be.

Contrasting intuitions may be drawn from another analogy. A shipwreck has stranded a number of people on a hitherto uninhabited island. The island has a limited supply of wild game, which may be hunted for food but must be conserved against extinction. Assume that the only reasonable plan is for the shipwrecked passengers to carefully limit the number of animals harvested each week. Despite these facts, one passenger refuses to accept any such limit. It seems plausible to hold that the other passengers may coercively restrain the unreasonable passenger from excessive hunting for the benefit of all on the island. Furthermore, the reasonableness of limiting the rate of hunting and the unreasonableness of rejecting such limits seems to play a crucial role in the justification for such coercion.

What is the difference between the island case and the employment contract case? The most important difference is that the employment contract case involves the seizure of a resource, the employee's labor, to which the victim of coercion has a moral right; whereas the island case involves the protection of a resource, the wild game, over which it is plausible to ascribe a collective right, held only partly by the coercee but mostly by the coercers. The unreasonable passenger in the latter case lacks any moral right to decide unilaterally on the use or distribution of the wild game, in the way that an individual has a moral right to decide on the use of his own labor.

If we accept this account of the cases, the hypothetical social contract is more like the rejected employment contract, for the social contract concerns, perhaps among other things, the coercive redistribution of resources that individuals have rights over. Among other things, the state lays claim to a portion of all persons' earnings, whatever the source. (See Section 7.1.6 for further discussion of whether individuals have property rights independent of the state.) Nor is the state's coercion undertaken solely or even chiefly in the service of protecting collective resources. Often, the state deploys coercion in the service of paternalistic, moralistic, or charitable ends or for the sake of providing indirect economic benefits for small segments of society at the expense of others.[14] No private individual or organization would be considered entitled to use coercion for these sorts of purposes, however reasonable his plans.

Here as elsewhere, our attitudes toward government differ from our attitudes toward other agents. The unreasonableness of rejection clearly does not license a private individual to force the terms of some contract upon another individual. Yet the unreasonableness of rejecting the social contract is thought to license the state to force the terms of that contract on its citizens. What the hypothetical contract theory gives, then, is another example of the particularly lenient moral attitudes applied to government rather than a justification of those attitudes. One must begin by ascribing some special moral status to the state to believe the state morally entitled to force an arrangement on individuals merely because they would be unreasonable to reject the arrangement.

3.4 Hypothetical consent and ethical constraints

3.4.1 Rawls's contract theory as an account of authority

John Rawls is, by far and without question, the most influential political philosopher of the last hundred years. As a rough indicator, a search for the keyword 'Rawls' in the Philosopher's Index yields more than 2,000 hits for articles and books published between 1990 and 2011. He is chiefly known for the hypothetical social contract theory of A Theory of Justice. It is therefore of great interest to investigate what that theory can teach us about political authority.

Rawls devises a hypothetical scenario, the 'original position', in which individuals form an agreement on the basic principles to govern their society.[15] These individuals are assumed to be motivated solely by self-interest, but they have temporarily been deprived of all knowledge of their position in society and indeed of any other personal information about themselves, including their race, sex, religion, social class, and so on.[16] This condition, known as the 'veil of ignorance', prevents the parties from tailoring the chosen political principles to their own advantage; being ignorant of what one's position in society will be, one must endeavor to devise principles that are fair to everyone. Rawls goes on to argue that people in this original position would choose two particular principles of justice to govern their society.[17] He concludes that people should in fact adopt those principles. (I omit here discussion of Rawls's two principles of justice and the reasoning leading to them. My present concern is whether Rawls's argumentative strategy can be deployed to defend political authority.)

Though Rawls does not directly address the need for government in general, one could devise a Rawlsian argument for political authority. It might be said that the parties in the original position would prefer to establish some form of government rather than accept anarchy. If one could make a compelling argument for this claim, would this suffice to establish political authority?

If a Rawlsian hypothetical contract is capable of justifying principles of justice, it is plausible to think that such a contract could also justify government in general. But how is the hypothetical contract thought to justify principles of justice? Rawls offers the following remarks:

Since all are similarly situated [in the original position] and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain.[18]

[The chosen principles of justice] express the result of leaving aside those aspects of the social world that seem arbitrary from a moral point of view.[19]

The idea here is simply to make vivid to ourselves the restrictions that it seems reasonable to impose on arguments for principles of justice, and therefore on these principles themselves. Thus it seems reasonable and generally acceptable that no one should be advantaged or disadvantaged by natural fortune or social circumstances in the choice of principles. It also seems widely agreed that it should be impossible to tailor principles to the circumstances of one's own case. We should insure further that particular inclinations and aspirations, and persons' conceptions of their good do not affect the principles adopted. ... At any time we can enter the original position, so to speak, simply by following a certain procedure,

namely, by arguing for principles of justice in accordance with these restrictions.[20]

It is natural to ask why, if this agreement is never actually entered into, we should take any interest in these principles. ...

The answer is that the conditions embodied in the description of the original position are ones that we do in fact accept. Or if we do not, then perhaps we can be persuaded to do so by philosophical reflection.[21]

These remarks merit close scrutiny, as they form the lynchpin for Rawls's version of social contract theory, by far the most influential theory in contemporary distributive justice by Harsanyi (1953; 1955), who argued that the thought experiment supported utilitarianism.

At least two strands of argument can be found in those passages. The first appeals to direct constraints on putative principles of justice. Rawls mentions two important constraints of this sort: first, principles of justice should be fair to all members of society, treating all members as equals. Second, principles of justice should 'leave aside' or, more strongly, compensate for aspects of the social world that are arbitrary from a moral point of view, such as the situation of individuals' receiving benefits or burdens as a result of mere good or bad luck.

The second strand of argument appeals to constraints on arguments about justice. In the third quotation, Rawls suggests that, rather than envisioning a scenario involving people ignorant of their identity deliberating about the rules of their future society, one could achieve the same result simply by reasoning about justice in accordance with certain restrictions - namely, that one avoid being influenced, in the arguments or principles one accepts, by anyone's natural fortune or social circumstances; that one avoid tailoring the principles of justice that one accepts to one's own case; and that one avoid being influenced by particular inclinations or a particular conception of one's good. The original position is nothing but an imaginative device for inducing us to think in this way.[23]

Below, I shall return to the question of whether this justification for the use of the original position succeeds. For now, I consider what, if anything, would emerge from the original position.

3.4.2 Could agreement be reached?

Why does Rawls believe that the parties in the original position could reach agreement rather than persistently disagreeing, as people do in the actual world? The reason is simple: '[S]ince the differences among the parties are unknown to them, and everyone is equally rational and similarly situated, each is convinced by the same arguments'.[24]

Rawls's conclusion does not follow from his stated premises. Rawls assumes that, once all particular inclinations and all individual characteristics (or knowledge thereof) are excised, all reasonable and rational people will be convinced by the same arguments. This assumption rests on a particular diagnosis of the phenomenon of widespread intellectual disagreement: that such disagreement is due entirely to such factors as ignorance, irrationality, and biases created by knowledge of one's individual characteristics.[25] If that diagnosis is correct, then a situation in which such ignorance, irrationality, and bias are removed should result in general agreement. But if the diagnosis is not correct and there are other sources of disagreement, then Rawls has given no reason for believing that agreement would be reached in the original position.

How plausible is Rawls's implicit diagnosis of disagreement? While much disagreement is doubtless due to irrationality, ignorance, and personal bias, it is unlikely that all disagreement is to be explained in these ways. Outside political philosophy, philosophers carry on persistent debates in epistemology, ethics, and metaphysics, some of which are millennia old. The partisans in these debates commonly appear equally rational, well informed, and intelligent. None appear to be attempting to tailor their theories to their own circumstances nor to be illicitly relying on personal information about themselves, if indeed such transgressions would be possible in these areas. Nevertheless, philosophers manifestly fail to find the same arguments convincing. It is therefore difficult to escape the conclusion that the human mind is subject to sources of differing judgment apart from irrationality, ignorance, and personal bias. And whatever these sources of disagreement may be, if they operate in epistemology, ethics, and metaphysics, it is not plausible to assume that they are absent from political philosophy.

A more plausible diagnosis of widespread and persistent philosophical disagreements is that human beings experience differing intuitions and other intellectual appearances. When we contemplate theories and arguments, we differ in the degree of plausibility we see in them, independent of whether and how our personal interests differ. Individuals with differing philosophical intuitions and plausibility judgments will, understandably and rationally, reach differing philosophical positions.[26] Nor can these intellectual appearances simply be stipulated away, since some sense of what is plausible is essential to any sophisticated thinking process of the sort involved in philosophical reasoning. A being with no philosophical intuitions would not therefore achieve a particularly unassailable philosophical position; it would simply be unable to evaluate philosophical positions.

Consider now one disagreement of particular interest, the disagreement between anarchists and statists about the necessity of government.[27] There is no reason for thinking that this disagreement would evaporate behind the veil of ignorance, because Rawls has given no reason for thinking that those who in fact hold either of these views do so only because they are relying on knowledge of their particular position in society. Anarchists do not disagree with statists because anarchists have some peculiar social position or combination of personal traits that somehow would enable them to prosper in the absence of government while the rest of society fell apart. If the anarchists are correct in their factual beliefs, then some stateless system would be better for society as a whole than a governmental system; if they are wrong, then it would be worse for everyone, anarchists included. Whatever explains this particular disagreement, it is not that someone is tailoring moral or political principles to his own advantage.

In appealing to this example, note that I do not presuppose that political anarchism is correct; I assume only that there are reasonable political anarchists (myself included, I should like to think). It is for the hypothetical contract theorist to demonstrate that there are not. Nor do I presuppose that political legitimacy requires agreement on all details of policy. But presumably agreement on whether there should be a state is the minimum that any social contract theory requires.

3.4.3 The validity of hypothetical consent, part 1:
         the appeal to fair outcomes

I turn next to the question of the moral efficacy of hypothetical consent. I mentioned earlier that one way of reading Rawls's justification for the original position is as an appeal to direct constraints on principles of justice, in particular the constraints that principles of justice should be fair to everyone and that they should rectify moral arbitrariness in the distribution of advantages. Can that approach be used to defend political authority?

Imagine that Sue makes an offer to buy Joe's car. Given the facts about the car's condition, Sue's and Joe's respective situations, and so on, Sue's offer is entirely fair to both parties, not biased in either party's favor. Aperfectly rational, fully informed, reasonable owner would accept the offer. Nevertheless, Joe refuses to sell. Is it plausible that Joe has acted wrongly? Or that Sue may force Joe to sell?

Imagine next that by pure chance, Joe has discovered a diamond in his backyard, which confers on him a material advantage of which Sue, through no fault of her own, is deprived. Since the moral arbitrariness of the resulting distribution of wealth could be rectified by a suitable wealth transfer, is Joe morally obligated to give Sue half the value of the diamond? Is Sue entitled to force Joe to do so?

As these examples show, the fact that some hypothetical agreement is fair or rectifies moral arbitrariness does not in general create an obligation to act according to the hypothetical agreement, nor does it create an ethical entitlement to coerce others to follow the hypothetical agreement.

Perhaps Rawls would respond to my examples, as he once replied to another critic,[28] by observing that his principles of justice were meant to apply only to the basic structure of society rather than to small-scale interactions between individuals. There are two possible points of distinction Rawls could raise here. The first is a matter of scale: the examples of the two preceding paragraphs each involve only two individuals rather than an entire society. This difference, however, has no ethical relevance. If a very large corporation makes offers to a very large number of people, the corporation's sheer size will not entitle it to force individuals to accept its offers (even if they are fair offers), any more than a single individual would be entitled to do so.

The other distinction is political: my examples involve private actors, whereas Rawls's principles prescribe action by the state. This distinction, however, cannot be employed in Rawls's defense without begging the question, since the reply simply presupposes that the state possesses some special moral status such that coercion on the part of the state is more easily justified than coercion on the part of private agents. If the state possesses political authority, then this presupposition would be correct; however, since what is sought is a justification for authority, one cannot take it for granted in this manner. Without ascribing any special moral status to the state, Rawls would have no way of restricting the proposed justification for coercion to the case of state agents. And since the appeals to fairness or the rectification of moral arbitrariness would clearly fail as justifications for private coercion, they should also be rejected as a source of political legitimacy.

As these cases show, there is a wide gap between what hypothetical agreement might plausibly be taken to establish, such as the fairness or reasonableness of some arrangement, and what the defender of political authority needs to establish: the right to impose an arrangement by force, including the right to intentionally and coercively harm those who fail to cooperate and the obligation of individuals to accede to that arrangement. While an actual agreement might establish these things, a merely hypothetical agreement cannot.[29]

3.4.4 The validity of hypothetical consent, part 2:
         sufficient conditions for reliable moral reasoning

The dominant strand in Rawls's defense of hypothetical contract theory appeals to constraints on reasoning about moral principles: in moral reasoning, one must avoid being influenced by self-interest, particular inclinations, or any other ethically irrelevant individual traits. The original position is but a picturesque way of putting these constraints, which we already accept, into effect.

Let C stand for the conjunction of all of these reasonable constraints on moral reasoning; that is, all of the constraints that are held to be embodied in Rawls's original position. Let J stand for any principle emerging from the original position; that is, a principle of justice or other moral principle that the hypothetical parties would agree upon.[30] Rawls's argument in favor of J might be understood as follows:

1. J can be arrived at by reasoning that satisfies C.

2. If a moral principle can be arrived at by reasoning that satisfies C, then it is correct.

3. Therefore, J is correct.

We might wish to consider variations on this argument; for instance, for 'is correct', we might substitute 'is probably correct', 'is justified', or 'ought to be adopted'. My criticisms below should be taken as applying also to any such weakened version of the argument.

Premise (1) is true by stipulation. It is unclear, however, why one ought to embrace premise (2). Though it is plausible that the constraints Rawls identifies are necessary conditions on the reliability or rational persuasiveness of moral reasoning, Rawls makes no attempt to show that they exhaust the conditions for reliable or rationally persuasive moral arguments. Indeed, he expressly aims at keeping the assumptions of the original position as weak as possible.

A related difficulty concerns the gap between procedural acceptability and substantive correctness. Even if Rawls succeeded in identifying all of the appropriate procedural constraints on moral arguments, a person's satisfying these constraints - failing to be biased, failing to commit fallacies, and so on - would not guarantee the correctness of his conclusions. The correctness of one's conclusions, whatever one's field of inquiry, depends partly on the correctness and completeness of the information from which one reasons. This is easily seen in examples involving scientific reasoning. Isaac Newton held mistaken theories due, not to any procedural error in his thinking about physics, but rather to the incompleteness of his information - specifically, his ignorance of relativistic and quantum mechanical phenomena.

The same principle holds good for normative theories, where the needed information is, at least in part, evaluative. That is, one's chances of arriving at acceptable moral conclusions depend in part upon the substantive correctness and completeness of one's initial values. If a person has misguided ultimate values, such as a belief that pain is intrinsically good, or if his basic values are correct but incomplete, as in the case of one who mistakenly takes pleasure to be the sole intrinsic good, then this person will most likely arrive at incorrect normative conclusions, even if all his reasoning is perfectly procedurally acceptable, devoid of self-interested biases, and so on. Thus, to ensure that the parties in the original position arrive only at correct normative conclusions, one must endow the parties with complete and correct values, stipulating that they use these correct values in coming to their decision.

One explanation for Rawls's failure to incorporate this stipulation may be that it would require him to resolve seemingly intractable debates within moral theory about what the correct values are before he could properly characterize the original position and draw conclusions from it. This difficulty, however, does not show that Rawls is justified in omitting the condition of complete and correct values from the original position; it shows only that the prospects for using the original position to justify normative principles are dim. Only if C includes a constraint of complete and correct values is it plausible to claim that premise (2) is true, and one may not, in constructing a philosophical argument, dispense with a condition necessary for the plausibility of a premise of that argument merely because that condition interferes with one's constructing the rest of the argument. An analogy is the case of the man who has lost his keys in a dark alleyway but chooses to search for them under a street lamp because the light is better there. The difficulty of identifying the correct comprehensive ethical theory and its political implications no more prevents that information from being needed to guarantee morally correct conclusions than the difficulty of seeing in a darkened alleyway prevents one's keys from being located there.

I have read the Rawlsian argument as claiming that some principle J is correct or ought to be adopted. Suppose that this is weakened to the claim that it is permissible to adopt J or that J is not illegitimate. This may render the argument more persuasive, since it may seem less implausible that Rawls has provided sufficient conditions for the permissibility of a political arrangement than that he has provided sufficient conditions for the correctness of a political arrangement. But this weakening of the argument's conclusion does not truly avoid the problem already discussed. An adequate supply of correct basic moral premises is required to identify permissible courses of action no less than obligatory ones. Suppose, for example, that individuals have rights but that Alastair is unaware of this fact. Alastair may then be led to conclude falsely that certain actions are permissible (particularly actions that in fact violate people's rights) without committing any procedural error in his thinking. My argument here does not presuppose that there are in fact individual rights; the point is simply that one would need to know the truth about such things to be assured of reliably identifying what is permissible.

In sum, the present argument for the efficacy of hypothetical consent fails because the original position embodies only certain necessary conditions for the reliability of normative reasoning rather than sufficient conditions for the correctness of normative conclusions. If the original position is modified so as to include sufficient conditions for normative correctness, it becomes difficult or impossible to determine what principles would be agreed to.

3.4.5 The validity of hypothetical consent, part 3:
         necessary conditions for reliable moral reasoning

There is one remaining interpretation of Rawls's argument. On this interpretation, the conjunctive constraint C represented by the original position is held to be necessary but not sufficient for the acceptability of moral arguments. If we take this view, we may argue as follows:

1. J is uniquely coherent with C.

2. C is correct.

3. Therefore, J is correct.

'Coherent' in (1) should be understood as referring to whatever relation enables C to support or rule out a moral principle. Thus, (1) may mean that only J can be arrived at by reasoning in accordance with C, that the correctness of J is entailed by the correctness of C, that J satisfies C to a higher degree than any competing principle, or the like. So understood, premise (1) is a very strong claim, though I have made it no stronger than the argument form demands: if C is merely necessary but not sufficient for moral correctness, then a premise to the effect that J coheres with C would not show J to be correct; what one must show is that no alternative principles cohere with C.

Premise (1) is exposed to widespread and powerful counterevidence. There are many philosophers who appear to have reached alternative conclusions by reasoning that satisfies C. The various thinkers who embrace utilitarianism, egalitarianism, libertarianism, or anarchism do not in general appear to have violated any widely accepted constraints on moral reasoning, nor does Rawls anywhere endeavor to show that they have.

As a case in point, consider utilitarianism, the theory that the right action (whether for an individual or for the state) is always the action that produces the greatest total net benefits, adding together benefits for everyone affected by the action.

Rawls tells us that this is the theory to which he was most concerned to provide a systematic alternative.[32] He also claims that the function of the original position is simply 'to rule out those principles that it would be rational to propose ... only if one knew certain things that are irrelevant from the standpoint of justice'.[33] Utilitarianism is surely not an example of a moral principle that makes sense to propose only if one has information irrelevant from the standpoint of justice, such as information about one's race, sex, social class, and so on. Whatever else may be said about it, utilitarianism is perhaps the one ethical theory least susceptible to charges of undue partiality. The thinking of actual utilitarians therefore appears to provide a compelling counterexample to premise (1).[34]

What argument does Rawls offer in support of (1)? In motivating the original position construction, he presents arguments that the original position embodies C. He also argues at great length that certain principles would be chosen in the original position.[35] But neither of these things could be thought to establish premise (1). In conjunction, they may show that there is an example of reasoning satisfying C - namely, the reasoning of the parties in the original position - that leads to J. But it would be fallacious to infer that there is no other possible train of reasoning satisfying C that leads to an alternative principle (in Aristotelian logic, this is known as the fallacy of the illicit minor).[36] And indeed, as we have seen, there are examples of reasoning satisfying C that are inconsistent with J, such as the actual reasoning of utilitarians.

3.5 Conclusion

Hypothetical agreement is normally efficacious only when (i) actual agreement cannot feasibly be solicited and (ii) it is reasonable to believe that the relevant party or parties would agree, based upon their actual general beliefs and values. These conditions are unsatisfied in the case of the hypothetical social contract.

Contemporary philosophical work suggests three ways in which a hypothetical social contract might nevertheless be thought morally relevant. First, hypothetical agreement might be thought to show that a certain social arrangement could not reasonably be rejected. This argument fails because there is no reason to believe that the required hypothetical agreement could be reached. Even if such an agreement could be reached, the mere unreasonableness of someone's rejecting an arrangement does not typically render it morally permissible to coerce that person into accepting the arrangement, nor does it impose on individuals an obligation to accept the arrangement.

Second, hypothetical agreement might be thought to show that a social arrangement is fair. Again, there is no reason to believe that a general agreement on a political system could be reached, even among equally informed, rational persons who lack knowledge of their individual identities, and in any case the mere fact that an arrangement is fair does not typically render it morally permissible to coerce people into accepting the arrangement, nor does it impose on individuals an obligation to accept the arrangement.

Third, hypothetical agreement might be thought to show that a set of moral principles reflects certain reasonable constraints on moral reasoning. These constraints might be intended either as collectively sufficient conditions or merely as collectively necessary conditions on the acceptability of a piece of moral reasoning. If the constraints are to be sufficient for the acceptability of moral reasoning, they must include a condition of complete and correct values on the part of the reasoner. But this condition would render the hypothetical contract theory unusable, since one would need to determine the correct comprehensive moral theory before one could determine the content of the hypothetical agreement. If, on the other hand, one relies only on necessary conditions for the acceptability of moral reasoning, then one must argue that every political theory but one somehow violates at least one necessary condition on acceptable moral reasoning. No one has argued for that claim, and the actual reasonable disagreements among theorists seem to pose powerful counterevidence.

Thus, the move to a merely hypothetical contract cannot save the social contract theory. There is no reason to believe that agreement could be reached even in the hypothetical scenarios envisioned by most theorists nor that such hypothetical consent would be morally relevant if it could be reached.

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The Problem of Political Authority

An Examination of the Right to Coerce and the Duty to Obey

Michael Huemer

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