Symposium on Rationalism Pluralism and Freedom, Liberalism

Pluralist Contractarianism

Rationalism, Pluralism, and Freedom taught me a great deal of history and history of political theory. It also contains the compelling, historically and philosophically valid, distinction between two types of liberal political theorizing – rationalist and pluralist liberalisms. One of the most important points in the book is Jacob’s claim that the two strands cannot be reconciled. But this claim is not given as much defense as this political philosopher would have liked. I think Jacob thinks of the entire book as a defense of the view that the two strands are not in tension (and perhaps necessarily in tension, but I don’t know just how strong a claim it is). I agree that there’s a tension, but I also think that some political theories might help resolve it.

So to both honor Jacob’s important book and to attempt to reconcile rationalist and pluralism liberalism in a political theory, I’d like to take a look at evolutionary contractarianism as a theory of political legitimacy with the promise of reconciling the two strands. I take Hayek, in Law, Legislation, and Liberty, Volume II, to have such a view, as Robert Sugden notes here. It’s also the view supported by Jerry Gaus in The Order of Public Reason, and that John Thrasher has argued can be attributed to Adam Smith. The basic idea is this. The conventions (legal, and perhaps many moral conventions) that are justifiably imposed on persons when each person, suitably situated (for Gaus, moderately idealized, for Smith, ideal spectated, for Hayek, a person selected at random, that is, behind a thin veil of ignorance), regards herself as having sufficient reason to comply with the (legal, and perhaps moral) convention. So this is the sense in which the view is contractarian. Contractarianism seems like a quintessentially rationalist form of liberalism, but let’s see if we can diminish that somewhat. Now for the departures from the standard view (which people who have read this far will be familiar with, or can search the SEP for an explanation of the idea).

  1. The rules that comprise the contract are not themselves constructed through the deliberate use of reason; rather, conventions evolve, and the contractarian procedure is used to resolve disputes about the legitimacy of the convention when conflict arises (Gaus calls this “The Testing Conception”). So there is no abuse of knowledge here (pluralist score +1).
  2. Further, evaluation of the legal order occurs piecemeal, and cannot be carried out at any general level, as a Rawlsian contractarian generally believes. What is to be justified isn’t something like generic principles of justice, but rather local rules and practices that restrict human behavior. The public justification of the whole is itself a spontaneous order achievement. It arises out of the public justification of the parts (pluralist score +1).
  3. The objects of justification include coercive legal conventions (not all legal conventions are coercive), but in the Gausian model I favor, “social-moral rules” are also the subject of public justification. The reasons for this are complex, but basically there’s a symmetry between the restrictions on liberty imposed by the law and those imposed by society through non-legal moral conventions (pluralist score -1, since it looks kinda like Mill).
  4. The reasons that justify rules aren’t necessarily shared reasons developed through a contructivist procedure. Different people will have diverse (and dispersed) reasons to endorse various (legal) conventions. This means that justifications for conventions involve local patchworks of reasons that appeal to different groups. Groups are therefore not homogenized. And with diverse reasons permitted, there are no substantive restrictions on religious reasoning, or diverse reasoning generally (pluralist score +1).
  5. The idealizations appealed to do not abstract excessively from the present commitments of real-world persons. Smith’s impartial spectator is more full-blooded than Rawls’s parties to the original position. And Gaus’s moderately idealized member of the public knows all kinds of stuff. Her reasoning is only corrected in line with evaluative standards that she already is committed to by her practice of moral reasoning. There is nothing lofty in the idealization here (pluralist score +1).
  6. The idealizations appealed to are also sufficiently concrete that they allow and even support a strongly non-ideal approach to political theory, as people will not abstract away from, say, problems of compliance required by most lofty models like Rawls’s. In my forthcoming book, I’m working on a way to defend this more non-ideal approach within public reason liberalism, and some of my recent work on constitutional choice explores the problems that arise.
  7. Now allow me to add my own (recent, and due entirely to Jacob and Victor’s recent books) idea. Gaus follows Kurt Baier is arguing that moral violations are “everyone’s business” in the sense that our moral practices are such that we often appropriately experience the reactive attitudes when we observe the violation of a convention we think justified. We are indignant with the disobedient third party, and resent those who harm us through violations. When we’re the violator, we feel guilt. However, I think it clear that moral violations are frequently not everyone’s business. Many moral conventions deny standing to non-members to criticize people that are members of an association for breaking the rules of that association. Because Gaus followed Baier in thinking of moral violations as everyone’s business, he did not recognize the critical role of associations in the formation of public reason. Associations play a role in what I call the social-moral state of nature, where only states and legislation does not exist. This state of nature construct contains only moral conventions and what Joseph Raz calls norm-applying (as opposed to norm-creating) legal institutions. It’s basically Hayek’s law-legislation distinction – my state of nature has moral conventions, legal conventions, but no legislation. I then suggest that we ask which legal institutions can be publicly justified given an already (partly poorly) functioning social world. This world, on my view, contains many associations, from families and churches to small firms. Legislation will only be endorsed by all if suitably situated persons regard the effects of the law as an improvement upon this association-filled space. That means associations exist at the ground floor of a public reason view and play a significant role in constraining the state’s use of legal coercion, since legal coercion can only be justified if civic associations, families, and commercial institutions fail to perform a range of vital functions. In the book, I argue that the social-moral state of nature, with its moral conventions, institutions, and basic legal system, will face various deficiencies, such that a legislative order can be publicly justified, but there is a massive bulwark against legislative power, and that bulwark is formed by associations. The basic move here is that once you drop the Baier-Gaus error about moral violations being everyone’s business, a critical role for associations in public reason immediately comes into focus. I’m writing a chapter on associations in public reason now. Thanks, Jacob! (pluralist score +1).
  8. If one wanted to go even more pluralist than I have, one could also argue that civic associations are subjects of public justification. That is, instead of treating only individuals as having justificatory reasons, a contractarian procedure could also include civic associations as having their own reasons for action and as being subjects of justification. This would allow, in principle, that an organization has defeaters for a law that none of its members possess. Though what it would allow in practice is for the leaders of an institution to preserve the institution even if many of its members endorsed the laws that would (purportedly) compromise the institution. I am tempted to go in that direction. But I don’t think I will (potential pluralist score +2 – it’s a big move).

Jacob has worried that contractarian views, as the exemplar rationalist views, lead us to expect more “individualism, social unity, and coherence of principles than should be expected” and so he encouragins us to focus on the non-contractarian aspects of constitutionalism. Along similar lines, rationalist liberal theories like contractarianism are hostile to the pluralist emphasis on association because it postulates an unmediated relation between the individual and the state. I suspect Jacob also thinks that contractarianism is problematically rationalist because it justifies political order through some process of pure reason, in contrast to how real-world constitutional orders develop and function. But I think the view that we find in Hayek in microcosm, that Gaus has developed, and that I’m trying to push even further, allows for a political theory that goes a long way towards accommodating pluralist insights. I’ve mentioned many pluralist distinctives in my description of pluralist contractarianism. So we might be able to resolve the Levyan tension between rationalist and pluralist liberalism at the level of high political theory.

In practice, however, particularly in deciding whether state restrictions of associations can be publicly justified, I expect rationalist and pluralist disagreements to reemerge, as some people will be disposed to favor the state in restricting the bad behavior of civic associations, and others will be disposed to favor institutional autonomy, and they will do so because of their rationalist and pluralist conceptual goggles. Given that the reasons of members of the public are diverse, dispersed, and highly attuned to circumstance, deciding whether a moral convention or an associational decision is justified will involve a lot of practical wisdom, and reasonable people will disagree. So, again, the rationalist-pluralist distinction will reemerge in the application of the theory.

That’s fine by me. I think one of Jacob’s enduring insights is that there exists this level of political theorizing where theory is applied to practice that political philosophers tend to ignore and that political theorists recognize but approach somewhat unsystematically. That’s where we have to get our hands even dirtier with respect to recognizing the limits of the world, especially (in my view) when it comes to feasibility judgments (Tyler Cowen has written a neat and ignored piece on this, and Gaus’s forthcoming book, The Tyranny of the Ideal, focuses on this problem, among other things). But I do think that political theorizing can nonetheless hope to embed pluralist and rationalist insights in a single theoretical tradition, including within the social contract tradition. So in that sense, we might be able to bring rationalist and pluralist liberalisms together a bit more than Jacob thinks we can.