Rights Theory, Liberty

Political Philosophy’s Fundamental Question

In this post, my aim is to identify political philosophy’s fundamental question. Yes, I want to attempt this in a blog post, so my answer will undoubtedly be radically incomplete. But I believe I can sketch a brief case for why the social contract theorists got it right. If we understand why, I believe a compelling defense of classical liberalism will come into view.

I. Why Not “What is Justice?”

If most philosophers over the course of history had been asked to articulate political philosophy’s fundamental question, most have followed Plato: “What is Justice?”

Modern political philosophy’s great discovery is that well-meaning, intelligent individuals reasoning freely will answer this question differently. The most prominent strand of modern political philosophy, the social contract tradition of Hobbes, Locke, Rousseau, Kant and Rawls explicitly grapples with this fact of disagreement. The very point of the social contract is to provide a set of principles and institutions by which we can resolve our disputes about what morality and justice require. In this way, their theories of justice are reflexive. Determining what justice requires must begin with the recognition that we will never fully agree about what justice requires.

If we accept the fact of reasonable disagreement as basic, we can grasp the social contract theorist’s temptation to “go meta.” We do not answer “What Is Justice?” simply by identifying what maximizes welfare or what brings about the common good. Those are matters of dispute. Unless we can first agree to set aside some of our differences, we cannot generate a stable or a free society, for a society that attempts to institutionalize one answer to “Why Is Justice?” must coerce those who disagree with the dominant group’s sectarian vision.

II. The Social Contract Theorists’ Question

Of course, the great social contract theorists gave different formulations of their fundamental question, but I believe a common idea can be drawn out of their work. Here is Jerry Gaus‘s formulation of the question:

Can the authority of social morality be reconciled with our status as free and equal moral persons in a world characterized by deep and pervasive yet reasonable disagreements about the standards by which to evaluate the justifiability of claims to moral authority? (xv)

All of the great social contract theorists recognized three facts, one moral and two empirical: (i) that persons are naturally free and equal, (ii) that they significantly and persistently disagree about what morality requires of them and of others and (iii) that it is in the interest of all to have some set of commonly accepted rules by which our disputes can be resolved, social cooperation protected and our lives made better-off.

But these three facts present a deep puzzle. If people disagree about what morality requires but they recognize the need to resolve (at least some) of their disputes in a public manner, then who gets to resolve disputes? That is, who’s the boss? If people are naturally free and equal, any claim to authority must somehow be validated by those subject to it. But if they disagree about morality then they will surely disagree about who they think should resolve those disagreements. The tragedy: rational and reasonable people cannot satisfy their common interest in social cooperation and dispute resolution because they are free and disagree.

The social contract theorists identified the three most salient moral and empirical features of modern political life beyond the circumstance of justice themselves: we are free and disagree but we need each other still. That is why I think they correctly identified modern political philosophy’s fundamental question.

III. The Political Economists’ Question

Many political philosophers do not think that political economy provides its own version of political philosophy’s fundamental question. After all, political economy is purely descriptive; how could political economists have anything to say about how institutions should work? To understand why this attitude is confused, remember that the great political economists were political philosophers.

In my view, the great political economists (Hume, Smith, Mill, Hayek and Buchanan, among others) were trying to answer much the same question as the social contract theorists. This is not clear at first, as political economy is so often identified with the utilitarian tradition. Their question: “What is best for humans?” Their answer: institutions that maximize welfare.

But let’s go deeper for a moment. After all, what did the great political economists spend most of their time doing? Describing the conditions under which ordinary, largely equal human beings actually learned to cooperate despite their disagreements. 

Hume and Smith were economists and historians as well as moral philosophers. They developed complex theories of how human beings learned to live together despite their differing interests, tastes and judgments. John Stuart Mill wrote The Principles of Political Economy, one of the greatest works of political economy in the 19th century. Hayek and Buchanan were political philosophers whose greatest achievements were advancing our understanding of how diverse individuals cooperate in an extended social order.

The great political economists were in this way preoccupied with much the same problem as the social contract theorists.

It is true that the two sides have not gotten along. The great political economists have usually been roundly skeptical of the social contract as a ground for the social order, and the great social contract theorists have often not recognized that the great political economists were addressing their question because they believed the political economist’s project was descriptive rather than prescriptive.

Yet we mustn’t draw this contrast too sharply. Obviously Hobbes, Locke, Rousseau, Kant and Rawls were deeply interested in how real institutions function. None of them believed you could determine which institutions were just without institutional analysis. All relied on political science, history and economics in their own way. And I think one can make a strong argument that in the end Hume and Smith were contractarians of an evolutionary sort (Smith’s impartial spectator can be interpreted as a contractor). Buchanan explicitly embraces the contractarian label.

So I see the great political philosophers and political economists as involved in a loosely united endeavor: to explain the authority of the restraints of political life in a world of free and equal persons who deeply disagree with one another about what is true, right and just.

IV. Why One Question?

A natural reply suggests itself: why think that political philosophy has a fundamental question? Surely it has many questions that, while related to one another, are not the same.

Perhaps. But I see political philosophy’s fundamental question as a kind of methodological orientation. It guides the projects we pursue and the problems we explore. The fact that so many great thinkers were preoccupied with the same basic concern means that we contemporary political philosophers could do worse than to follow them.

But even if you do not think the social contract question is the most basic, I hope you can agree that we can evaluate political theories by how well they answer it. If a political theory can explain how free and equal people can cooperate on fair terms, then that is an excellent reason to believe it is true. One core reason I reject self-ownership and utilitarian approaches to political philosophy is that I became convinced that they cannot adequately answer the question posed to us by the social contract theorists.

In any case, the social contract question is my question and it is the question by which I evaluate different political theories and research projects. I am a classical liberal (a Strong BHL, if you like) because I believe that classical liberal institutions provide the best answer. We will see why.

  • Anonymous

    Three concerns.

    (1) This seems to require adherence to, e.g., a transcendental-like argument for why people are “free and equal” (as found in Gaus).

    (2) How relevant is this question to the internal politics of, e.g., Israel? Gaus formulates the question assuming “a world characterized by *deep and pervasive* yet reasonable disagreements,” (emphasis added) but this is not necessarily the case.

    (3) If “deep and pervasive” disagreement is a necessarily outcome of a free society, why should I care about a free society? If I believe that institutionalizing what I believe to be the morally correct vision of justice, why should I care about your claim that I “must coerce those who disagree with the dominant group’s sectarian vision”?

    It seems to me that *the* fundamental question(s) of political philosophy is the moral/political status of the individual and the boundaries of a legitimate *political society* (think Simmons on particularity). Simply assuming that individuals are free and equal–i.e., assuming liberalism (which I personally agree with)–seems to skip over the most fundamental questions (e.g., why liberalism and not authoritarianism?) and loses sight of the most important contributions of the classic contractarians.

  • Here are some critical comments.

    It seems to me that the social contract question is misconceived. The three facts, (i) – (iii), present a deep puzzle only if we accept some form of constructivist rationalism. But that kind of rationalism makes all sorts of mundane things seem impossible. The fact is, we do not have to agree about the rules for settling disputes: they are already in existence, and we can make use of them even if we disagree with them (we can even make use of them to try to change them).

    Culturally evolved institutions, and the way people participate in them, may determine ‘who’s the boss,’ but only in the sense of who has power. Culturally evolved arrangements have no authority unless they happen to coincide with legitimate arrangements. They would so coincide if we are free and equal people and if we had all agreed to abide by them. But that is not the case. They could just happen to coincide with legitimate arrangements, but whether or not they do is,
    as you say, a matter of dispute.

    Indeed, as Hume22 point out, it is even a matter of dispute that all people are free and equal. So the idea, presupposed by social contract theory, that everyone should have an equal say in how we should organise social co-operation, is also disputed.

  • Why would you argue that Kant is a contractarian? His theory of property is founded on the principle that we cannot not lay a claim on things so in effect: on cannot avoid being politically obligated towards the other so one cannot not move to the civil condition. Hence, political obligation is not voluntary.

  • Anonymous

    Thanks for the provocative post. I confess to not undersrtanding the logic of the social contract approach very well. In my primative understanding, it seems to conflate practical political procedures for resolving disputes with questions of poltical authority, i.e. how, if at all, we come to have a moral obligation to obey the rules of the state, even when we disagree with them. So, you say:  

    “All of the great social contract theorists recognized three facts, one moral and two empirical: (i) that persons are naturally free and equal, (ii) that they significantly and persistently disagree about what morality requires of them and of others and (iii) that it is in the interest of all to have some set of commonly accepted rules by which our disputes can be resolved, social cooperation protected and our lives made better-off.”

    Suppose we arrive at a set of  “commonly accepted rules by which our disputes can be resolved.” Are the social policies that energe from these rules moraly binding on dissenters? To take an example ripped from the headlines, what if I am unalterably opposed to contraception as a form of birth control, and the state demands that I provide it free to my employees. Am I morally obliged to comply (because I am a tiny minority), or should I comply because otherwise we (as a society) will have harmful conflicts here and in other points of disagreement.

    If the former, then I simply fail to grasp why this should be so. A vote or other political procedure cannot determine the correct view on moral questions, and the majority has clearly been wrong on basic ethical issues over an extended period of time. If the latter, then I don’t see anything particularly novel or interesting in this approach.

    Minor issue: How does Kant get classified as a social contract theorist? I don’t claim to be a great expert on Kant, but this seems very odd to me. He is in search of moral principles that no rational person (using his/her own practical reason) could reject. I really don’t see where the social contract aspect comes in. Of course, as you say, every political philosopher is “deeply interested in how real institutions function,” if for no other reason than to evaluate them in terms of their preferred moral principles. But, I fail to see how this fact is sufficient to make Kant a contractualist.

    •  Hi Mark,

      It seems to me that there is a mistake in your argument (but correct me if I am wrong).

      If I have agreed with others to a dispute resolution procedure, then I am bound by its results, because to agree to such a procedure is to agree to be bound by its results. I am not bound because the majority is right (as you say, they might not be). I am bound because I have agreed to be bound.

      What if I think the decision made is a wrong one? I am still bound to abide by it. If I think that abiding by it will mean doing a wrong, then I have a duty not to abide by it. In short, I face a conflict of duties, a moral dilemma. It is then up to me to choose which way I go.

      What if I did not agree to the dispute resolution procedure? In that case I am not bound by the decisions that are made. But I might still abide by them for prudential reasons. This is our situation with regard to the law.


      • Anonymous

        I didn’t mean to say or imply anything inconsistent with your comment, with which I agree. My comment was one questioning the entire social contract approach as sufficient to create a moral obligation to obey the outcomes of any decision procedure in the absence of express consent–I wasn’t attempting any formal argument at all. I believe very few thoughtful persons would agree in advance to accept all outcomes of any political process as morally correct and therefore binding, although I might agree to abide by them on prudential grounds. The problem of political obligation is that it seems impossible to justify an obligation to obey the rules of the state in the absence of an express consent to do so.  As indicated in my original comment, I am not sure if the social contract idea is an attempt to solve the problem of political obligation or simply to suggest some method of conflict minimization.

        •  Hi Mark,

          I agree that there is no political obligation, except (and here I have to correct my last statement) where the law happens to coincide with ‘the moral law.’ But then the obligation is to the moral law not to the positive law (or it is to the latter only because it reflects the former).

          On a tangential note, the moral law does not derive from consent either. While contractual obligations derive from consent, we have to be moral agents, with moral rights, liberties, authorities and obligations, to engage in contracts.

    • Michael J. Green

      [Kant] is in search of moral principles that no rational person (using his/her own practical reason) could reject. 

      Isn’t that precisely what Rawls and Buchanan do with their respective veils? Doesn’t Hobbes attempt the same in arguing that all rational people will submit to a sovereign so as to escape the state of nature? As I understand it, that’s the central struggle of social contract theorists. I assume that’s what Kevin means when he points to Kant’s work as important to the social contract tradition. As he says: “The very point of the social contract is to provide a set of principles and institutions by which we can resolve our disputes about what morality and justice require.”

      • Anonymous

        Let me repeat, I do not hold myself out as an expert on Kant. Nevertheless, on my understanding, Kant believed that the moral principles that fell out of the application of pure reason were necessarily true. Their truth did not depend on any bargaining/negotiating process behind a hypothetical veil of ignorance. Kant’s moral principles could be derived by any rational agent reflecting on their own. Obviously, Kant and social contract theoriests may be aiming for the same goal, as you say, “a set of principles and institutions by which we can resolve our disputes about what morality and justice require.” But, they employ entirely different methods of justifying their conclusions, or so it seems to me.

        • Anonymous

          I’d say that Kant is a contractualist when it comes to political philosophy. Though he is pretty clear that the contract establishing a civil constitution is only an “idea of reason” , i.e. no actual consent is needed. See the second part of his “On the
          common saying: this may be true in theory but it does not apply in practice” (http://www.sussex.ac.uk/Users/sefd0/tx/tp2.htm):

          “But we need by no means assume that this
          contract (contractus originarius or pactum sociale), based on a
          coalition of the wills of all private individuals in a nation to form a common, public will for the purposes
          of rightful legislation, actually exists as a fact, for it cannot possibly
          be so. […] It is in fact merely an idea of reason, which nonetheless
          has undoubted practical reality; for it can oblige every legislator to frame
          his laws in such a way that they could have been produced by the united will of
          a whole nation.”

          • Anonymous

            Thanks for this reference, which allows me to more clearly see the basis for the contactualist classification. I think at this point we may be arguing over nothing but semantics. The contractualists with whom I am most familiar (e.g. Rawls, Lomasky, Narvenson) all attempt to justify the rules/principles they favor by reference to what rational or suitably impartial (for Rawls) people would accept if all were to be bound by them. What I was saying above, and continue to believe, is that Kant is not justifying his principles in this fashion, although since we are all rational agents, and thus able to discern the universally valid moral law, we should as a society ultimately be able to agree on binding principles. As he says earlier in the same essay:

            Regarding merely as a state of right, the civil state is based a priori on the following principles: 1. The freedom of every member of society as a human being. 2. The equality of each member with every other as subject. 3. The independence of every member of the commonwealth as a citizen. These principles are…pure rational principles of external human rights in general, in accordance with which alone a nation can be established.  

          • Fabian_Wendt

            I think you are basically right… Just one addendum: I’m not sure that it is because we can all discern the universally valid moral law that we are able to agree on the principles grounding a civil constitution. Kant sharply distinguishes moral and political philosophy and, correspondingly, “inner” and “outer” freedom, i.e. freedom of the will and freedom of action. I think there is some relation between the two in Kant’s system, but a more complicated one… Let’s leave this to the experts…

          • MARK_D_FRIEDMAN


  • Anonymous

    You will find a different sort of contractarian approach here 

    • Anonymous

      Matt linked to your story a few posts ago. I loved it. To me, the “NO BULLYING’ rule is the non-aggression principle. Which I believe is the one rule that all rational people should not have any reasonable objection to. There you go, Kevin. Isn’t that the social contract that Proudhon favored? A contract not between individuals and the state, but a contract between all individuals with each other. That’s what I call a proper social contract. And property rights just have to be worked out.

  • Anonymous

    The core of economics has nothing to do with questions of right, wrong and justice. It is about, at least for the Misesians, the logical and universal implications of a thinking, striving, individualized creature that must deal with scarcity. The “is” of acting man. In a sense, economic reasoning has veto power over political theory and its concrete plans. For instance, economic reasoning can say to the utopian planner that claims she has found a way to abolish scarcity, “If you abolish a market medium of exchange you will destroy a key coordinating factor of a materially productive society.” Economists back it up with logic, not appeals to justice.  When an economist advocates for a market economy– it is at that moment that they take off the “is” hat and put on the “ought” wig (ok, hat, but I thought it was funny).

    • I find it interesting that the Austrians try so hard to live up to the notion of a value-free, norm-neutral, detached “economic science”, when not even “natural science” can possibly live up to that. The Austrians love to attack positivism while simultaneously picking up pieces of its project and implicitly falling back on similar premises when methodological issues come up.

      • Anonymous

        Can you give an example?

        • The strong reliance on fact/value dichotomy and the analytic/synthetic divide, and the pretense to the creation of an “objective” (I.E. detached and purely “factual”) science, the general task of demarkating the sciences, and the obcession with formal logic.

          • Anonymous

            Philosophers of science separate empiricism from rationalist projects like math. The Misesian approach works like math in its deductive process, and its findings about e.g. the market do indeed relate to reality. Yet, Mises was not always consistent in his usage of that analytic/synthetic divide. Though much has been made of this Kantian angle. Nevertheless, the results are still the same. In fact, there are empirical facts laid down at the early stages of deduction– like individuality and the diversity of resources. Rothbard even arrives at the major axiom “Humans act purposively” via a basic empirical process.  But once discovered, no matter how inspired, each building block in the logic of economics can be shown to be deductively connected. The entirety of the chain of reasoning, after all, is based on the key human characteristic- the ability to act intentionally.

          • I’ve never seen any Austrian map out a full chain of reasoning from “the action axiom” to its specific claims and theories.

          • Anonymous

            The Randians are claiming some kind of moral basis for markets. To the extent it is compatible with Austrian thought it is no longer Objectivism in the moral sense. Rand appreciated Mises.

            Here is a simple economc deductive example, borrowed from a great professor of praxeology:

            Humans want and need.
            Humans act.
            Humans act purposively.
            Humans act purposively and aim at ends
            Humans act purposively and use scarce means to attain scarce ends.
            Humans become aware that two people can produce more than one. (Ricardian Law of Association)
            These people may barter (coincidence of wants).
            Money evolves to solve heterogeneity of products/services.
            Social division of labor explodes with indirect exchange (money).
            If more than one person is going after a product, Ceteris Paribus, those who pay the most will get it.
            Supply and demand explains economic relationships, ceteris paribus.
            Supply and demand do not determine price structure- but prices show record of what was the supply and demand in numerical terms at one time.

            Notice that at each further stage that knowledge is revealed that is more than mere definition of the original axiom. If you want an entire deductive unfolding– read Human Action by Mises. At least the first 100 pages anyway.

          • Anonymous

            I find it interesting that you would label Mises as metaphysical while holding post-modernist views. I have read a couple of hours of Riorty, etc, and cannot make heads/tails of it. Mises clearly accepts the general empirical sciences and provability criteria as set down by e.g. Locke. But even this cannot be said of post-modernism. In fact, all bets are off when post-modernism is invoked.

            Of course the social and physical environment affects humans. But that does not mean that there is some kind of outside force determining the thoughts and actions of individuals. If there is, it has not been discovered. What can be known is that social causality begins and ends with the individual mind.  Why does the same person act the same or differently given similar circumstances? 

            You even mention the complexity of the social world. It is this fact that makes the logic of human action so necessary. Human experience is that of complexity– an irrepeatable complexity where there is no comparing of interpersonal utility.  Economics can help sort it out when applying the deductive framework to history. This does not mean that every concept is in play in every historical situation. But where there is e.g. an identifiable use of money, then all of the logic pertaining to the category of money is valid. 

            Of course, in this instance we are dealing with the past– but so are all the other disciplines. Uniquely, it is economics that accounts for the uncertainty and inconclusiveness of analyzing the past. It is the metaphysician that claims otherwise– like behaviorists and other “positivist” variants that take empiricism too far and address purposive human action as if it were a subset of physics, biology or engineering.

    •  Free markets work only on the assumptions that resources are private property and that private property rights are respected (where respecting a right means either not violating it or compensating the victim when you do violate it). Rights imply duties, and duties are things we ought to do, so economics makes assumptions about what people ought to do. But economics is still value-free in the sense that it says nothing about what we ought, all things considered, to do.  The fact that I have a duty to do something entails that I ought to do it. But it does not entail that I ought, all things considered, to do it, because there may be a conflicting duty that is stronger, or because I have better non-moral reasons for not doing the duty.

      •  There were two points I should have made there. The first was this. Standard price theory assumes that private property rights exist and are respected. But to make this assumption and show its consequences is not to endorse either the assumption or the consequences. That is the primary sense in which economics is value-free even though it assumes that agents abide by norms. The second point is the one I made about the distinction between all-things-considered oughts and other oughts. Even moral theory is value-free in the sense that a statement of what our moral duties are (and thus what we ought to do) does not entail any statement about what we ought, all things considered, to do.

        • Anonymous

          It follows that price theory may be studied as a thought experiment including a perfect propertarian regime, various hampered market scenarios, a well as in absence of individuated property altogether (revealing that prices cannot form where there is no real market exchange).  You are not arguing with me in this comment, first point.

      • Anonymous

        You are right to say that free markets work only with the institution of private property and that this arrangement requires something like a concept of rights/duties. Human life is sustainable without the modern market system, however. Life would merely be on a primitive level, brutish and short. This is what economic reasoning says. Notice the absence of advocacy or normative judgment?

      • Aren’t those assumptions precisely what opens market economists and libertarians up to criticism?

        At the descriptive level, we can critisize the economists on the grounds that resources are currently not all private property, that private property rights are not consistently respected, and that the psychology of actors in the market does not conform or reduce to instrumental rationality. Hence, the economic theories assume conditions that don’t reflect the real world, and hence can’t be consistently applied to the real world where those conditions are not the case. And precisely because the “descriptive theory” presupposes favoritism for specific norms, we can critisize the economists for imposing their own norms onto their “descriptive analysis”. It ceases to be “value-free” in any robust sense.

        In their function as advocates, we can critisize the libertarian economists for advocating a question-begging, debatable view of property and law – with this whole notion that “the free market” depends on a specific pre-existing legal structure, that structure can be critisized as already dictating the terms upon which we can act “on the market”, and therefore putting into question the “freedom” of the market. If we really want to talk about justice, then we’re going to bump into some issues with the kind of legal regime and associated rights that most libertarians presuppose for their conception of “the free market”. This will especially be troubling for anarchists.

        •  Hi Alex,

          It is a good thing that people identify and criticise questionable or false assumptions of a theory. But it is also true that a false theory can have true consequences and that even its false consequences may be useful if they are good approximations. Newton’s theory is false, but scientists at NASA uses Newton’s theory to plan their space explorations (even though they believe it to be false).  Of course, this is what Friedman says about economics (Milton, not David, though David might agree). It is also what Popper says, not only about economics but about science in general. But it is also true that we should not rest content with a false theory because it happens to be useful: we should try to replace it with a better one. Popper says that, too.

          I don’t agree that the descriptive theory favours any norms. It assumes some norms are followed and draws out the consequences of that. But one could look at the consequences and conclude that the norms suck. Or, one could say that the consequences are great but adherence to the norms is too high a price to pay. And so on. But it is impossible to do social science without assuming that people follow norms, otherwise you would never be able to predict how people might act.

          I don’t think there is any dictating of terms going on. All that is being said is that, in one social situation people can be expected to act one way, in another situation another. The exploration of the consequences of full private property with open competition need involve no commitment to those as ideals (though they are ideals for me).

  • Anonymous


  • Anonymous

    comment not posting where originally placed

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