I think the right political theory is some form of contractualism. In this post, I will explain what I mean by contractualism and address some common but confused objections to it. I will partly summarize the main points in the Stanford Encyclopedia of Philosophy entries on Contractualism, Contractarianism and Contemporary Approaches to the Social Contract.

I. The Contractualist Formula

Here’s a generic contractualist principle of right action:

Contractualism: An act is wrong if its performance is disallowed by behavioral norms that each member of the moral community has sufficient reason to accept.

I modeled this definition on Tim Scanlon’s definition of contractualism with some small, though consequential, alterations.

Contractualism does not cover the whole content of morality. Instead, it covers what Scanlon calls the “what we owe to each other” or what Gerald Gaus calls “social morality.” These are the publicly recognized rules of conduct that determine not merely how we should treat others but the conditions under which others can hold us accountable or blame us for violating them.

II. Justification, Not Consent

Most readers will think that contractualism rests on the idea of a contract (true) that in turn depends on a conception of consent (false). The traditional social contract views (Hobbes, Locke and Rousseau) did rely on consent and agreement. But the contractualist tradition in political theory has evolved away from an ideal of actual agreement and hypothetical agreement. That is, the social contract does not consist in rules we have actually agreed to (which everyone and their mom has pointed out for three hundred years) or rules we would only hypothetically agree to (which everyone and their mom has pointed out can’t really generate obligations). Sam Freeman puts it this way: the “role of unanimous collective agreement” is in showing “what we have reasons to do in our social and political relations.” Agreement itself is not the binding act. Instead, agreement is reason-revealing.

Thus, the core normative idea of social contract theory (contractualism) is not consent or agreement but justification. As Rawls said of his original position, its aim is to settle “the question of justification … by working out a problem of deliberation.” (TJ, 16) Or as Gaus has put it, “Contractualism is … best understood as a method for publicly justifying the public moral code of a society. Seen in this light, the idea of ‘consent’ – or indeed ‘agreement’ – is only heuristic.” (Value and Justification, 328)

The social contract in contemporary political philosophy is the attempt to solve a justificatory problem by converting it into a deliberative problem. Justifying social arrangements requires showing that all citizens have sufficient reason to accept the arrangement.

What does it mean for justification to be the core normative idea? It means, following Rousseau, Kant and Rawls, that in some sense the laws and norms we impose on ourselves are self-legislated, that is, they are laws and norms to which we are rationally committed by our own lights. Laws and norms acquire the ability to obligate because we recognize in them some normative feature to which we regard ourselves as committed.

III. Contractualism vs. Utilitarianism and Self-Ownership

As opposed to utilitarian and self-ownership views, contractualist accounts of obligation begin with what we have reason to accept given our present commitments and beliefs. On a contractualist view, you cannot have an obligation unless you are in some non-esoteric sense rationally committed to recognizing the obligation. Utilitarianism says you have an obligation just when complying with the obligation promotes the good (regardless of whether you are rationally committed to recognizing that it does so). Self-ownership says you have an obligation to not use coercion/aggress just because others own themselves (regardless of whether you are rationally committed to recognizing that they do). Prima facie, it seems better to make our obligations depend on what reasons we recognize, not on objective factors that may be totally epistemically insulated from our rational capacities. Rationality and morality should be tightly tied.

The primary reason to prefer contractualism to utilitarianism is that it treats all persons as subjects of justification. On contractualism coercing people in line with principles they have reason to reject is wrong even if it brings about greater utility, since persons presumably have reason to reject principles that would allow them to be sacrificed for the greater good. On contractualism, persons are treated as ends in themselves.

A strong reason to prefer contractualism to self-ownership is that it is sensitive to utilitarian considerations. For instance, a norm can be justified to each person based on the fact that it increases utility for all persons. Consequently, coercion can be justifiably used to promote good outcomes, though the employment of coercion is restrained by the contractualist standard of reasonable rejectability.

Contractualism is the consequence-sensitive deontological theory that libertarianism needs.

IV. Objections: Relativism, Marginal Cases, the Priority of the Good and Redundancy

Some will object that contractualism makes our obligations objectionably relativistic. It is true that contractualism makes our obligations agent-relative in the sense that the facts that fix our obligations depend on the commitments of the particular agent who has the obligation. And it is true that our obligations will be subject to considerable variation across time and place. But whether contractualism makes our obligations objectionably relativistic is harder to demonstrate, as it must show that some intrinsically objectionable norm can be the object of rational justification in a non-trivial number of realistic cases.

Some will object that contractualism cannot account for our obligations to borderline persons, such as the mentally handicapped, the dead and the unborn. But whether that is so depends on the version of contractualism you adopt. Most contractualists think you can evaluate a norm based partly on whether it is reasonable to believe that future generations will have reason to accept it. That’s a way of including non-existent persons in the scheme of rights and obligations, so there is no reason in principle that contractualism can’t be extended to cover borderline persons.

Some will object that contractualism objectionably privileges the right over the good. Many Aristotelians argue that contractualism implausibly ascribes reasons to persons to frustrate their good in the name of doing the right thing. But it is far more intuitive to agree with contractualists that sometimes the right is prior to the good. To avoid cases of sacrificing the one for the many, Aristotelians have to engage in fancy footwork about how non-consequentialist behavior is actually required by your final end of flourishing. While that dance might work, traditional Aristotelian theories of practical reason still root our reasons to do the right thing in our flourishing. But our main reason to keep our promises is that we promised, not because keeping our promises promotes our flourishing.

Some will object that contractualism is redundant. Contractualism says that you do wrong when you violate rules or norms that persons have sufficient reason to accept. But that seems like adding an epicycle to determining what is right. Why not just think the right thing to do is what we have sufficient reason to do? Well, contractualism helps delineate the set of reasons for action by requiring that we treat others as ends by considering what reasons they acknowledge as weighty for them. So contractualism is not redundant because it provides people with weighty, deontological reasons to attend to others’ reasons for action, or at least the reasons they take themselves to have.

So there you have it: the generic structure of contractualism, some clarifications and replies to obvious objections. There’s much more to say, but it’s a start.