Contractarian Theories of Rights

Transcription

1 Contractarian Theories of Rights Juraj Draxler Course: Democratic Governance College Ring 4 Due date: May Bremen Semester: Spring

2 Abstract Rights-based theories constitute probably the most important basis for ideological justifications of the workings of contemporary capitalist-democratic society. The theories based on the notion of social contract assume that the standing order is legitimate because we can invoke some agreement between the citizens and the state. The notion of contract was used first by Thomas Hobbes. He represents the moment of transition from the feudal order to the capitalist one. John Locke polished the theory and added the implicit notion of equilibrium the society where the citizens are the least restrained in their rights is a stable one. The resurgence of the conceptual tool of contract came when John Rawls published his Theory of Justice in 1971, in which some degree of adherence to social justice is advocated over precedence of absolute rights of individuals. Robert Nozick answered Rawls three years later in a libertarian fashion, arguing for a minimal state. What distinguishes the two earlier theories from the later ones is that the contract in Hobbes and Locke was assumed to have taken place in some form in history. For Rawls and Nozick, on the other hand, the contract is hypothetical. The contractarian approach thus remains a vital force in contemporary ideological debates. 1

3 1. Introduction Political theories are said to deal with two categories of questions: the questions of desirability of certain actions and order of the society, and the questions of feasibility. 1 The questions of feasibility have been extensively dealt with throughout the 20 th century in the field of political economy. On the other hand, for a long time, there were almost no attempts to come up with a commanding theory that would serve as the basis for ideology (in the narrow sense of ideology as a promotional tool), for political decision-making and for jurisprudence. It all changed in 1971, when John Rawls published his Theory of Justice. Rawls made use of a conceptual tool that had been regarded as the stuff of history, with little use for contemporary thought the notion of a contract between the citizens and the state. This successful attempt led to a flurry of other comprehensive political theories, of which Nozick s Anarchy State and Utopia stands out. This paper has two aims. First, to introduce the terminology and conceptual tools of four major contractarian theories. 2 Secondly, to outline how these theories developed in a certain historical context and how they influenced each other. 2. The context: democracy and rights-based theories Marxism, the most serious threat that emerged to challenge the ideology of capitalistdemocratic worldview that has dominated Western political theory for quite some time based its propositions on one single, powerful idea which it took from Hegel the inevitability of a historical process. In the view of various strands of Marxism, this entailed the explosion and disappearance of capitalism due to its own internal contradictions. Although grounded in substantive value of equality, Marxism was too 1 Kukathas and Pettit: Rawls, p. 1 2 The ones chosen are Anglo Saxon theories, since the rise of capitalist and democratic order was the strongest over the span of these theories in Great Britain and the US. 2

4 much preoccupied with analyzing the workings of the material base and too confident of the final outcome to be positing questions of legitimacy and desirability. With the crisis and then demise of real-socialist system and parallel relegation of Marxist thought to a series of descriptive theories concerned with alienation, cultural manipulation and so on, it would seem that at least the need for a justification of Western-style political system is gone. Democracy is clearly the preferred choice of most citizens in Europe and in the Americas, and in large tracts of the rest of the world. Of course such comfortable solipsism carries two dangers first, it does not provide basis for decision-making within the capitalist-democratic society (see the discussion on neoclassical and Keynesian economics, for instance, paralleled in political theory by the various views propounded by Nozick and Rawls), and secondly, the exclusive reliance on the view that what works is good can only last until the next crisis of the system. Democracy has been a powerful ideological item ever since the British and American politicians realized during World War II that they needed a tool to challenge the appeal of Nazi Germany. 3 Since that time, the proselytizing of democracy has become one of the lynchpins of wider political decision-making. The usage of the word by Western politicians implies that democracy is an end in itself. There are political theorists who also argue for this. Robert Dahl rejects the notion that democracy is simply a procedure and argues that it is a substantive right. [ ] The democratic process is itself a form of justice: It is a just procedure for arriving at collective decisions. 4 On the other hand, in his Democracy and its Critics, the overall line of argumentation that Dahl pursues echoes Churchill s famous dictum that democracy might be a very bad system but all the others are even worse. Dahl makes pairwise comparisons between his notion of democracy and its elements, and the alternatives. Democracy comes out victorious. The question of what democracy is is it a right, an outcome of a historical process, is it a purely ideological notion is to some extent a question of a paradigm but it is also a 3 For an account on the creation of popular democrati ideology during World War II, see Mazower, Mark: Dark Continent. Europe s 20 th Century. New York For an account of democracy an the ideology of the expansion of the European Union see Castells, Manuel: The End of Millenium. Power of Identity. Oxford Dahl: Democracy, p

5 crucial one for social science. The recognition of the nature of democracy should help us grasp the workings of today s society. As already hinted in the quotations from Dahl, what lies at the heart of democratic theories of Western breed are notions of individual rights. This paper tries to contribute to the discussion on democracy by delineating the evolution of a particular strand of rights-based theories, the contractarian theories. The idea of a contract between the people and the state legitimizes the actions taken by the latter in the world that no longer relies on tradition and divine sanctions, as feudalism did. Moreover, the word contract in the word belies the link between the notion of liberal rights, and its origin in merchant culture. Contrary to the approach taken by Dahl, this paper looks at the contract theories in their historical context and portrays them as influenced by this process, rather than resting on timeless, abstract notions applicable to any society. 3. Four Contract Theories 3.1 Hobbes Contrary to the popular perception of Hobbes main work, Leviathan, he was not an advocate of unlimited and arbitrary power of the monarch. Hobbes marks a transitory moment between feudalism and the nascent capitalist order, which was reflected in his defence of absolutist monarchy. Absolutism of the sovereign is for Hobbes the necessary condition that makes possible just relations between the citizens. It is a sanction of all other relations in the society. It is fair to say that Hobbes is the founder of liberal theories of rights. He started off with the notion of the man living in the state of nature. This man has a right to life, but this right is perpetually threatened by the chaos that prevails in the state of nature. 5 In order to protect his life, the man agrees, together with others, to submit to an absolute 5 Shapiro: Evolution, p. 24 4

6 sovereign. 6 Here, we have the foundation of the long tradition of contractarian theories. This was a clear break with all the theories of divine sanctions and reliance on tradition that prevailed in the feudal order. The historical context is important. Demographic trends for the period of his life produced certain strain on the existing order: the increases of population were paralleled by falls in the real wages due to inflation. Real wages fell by about two thirds over the sixteenth century, and although they began to rise slowly at the end of the century, a worker born in 1580 would never earn half of his grandfather s wage. 7 The result of these forces was an emergence of large populations that fled the countryside. These masterless men were not tied to the feudal system and were thus threatening to it. 8 What is important to realize is that the gradual but incessant break-up of the old order created completely new conditions, based on the existence of large populations uprooted from societal loci. Hobbes recognized with a kind of Tocquevillean foresight that these masses were the stuff of the politics of the future. Dangerous and threatening as they were, a political system, to survive, must appeal to their interests not as a member of this or that class and not for some higher good; these overmighty subjects had to be appealed to in terms of their individual interests. 9 Hobbes also set out a theory of how these ideas were to be communicated in a straightforward manner to the masses, but we need not be concerned with it here. What is important to note is that Hobbes believed that the principles of his political theory could be comprehended by the masses. Hobbes had a powerfully egalitarian conception of rationality believing that if the common people were confused in their political views this was due to manipulations and distortions arising from power struggle of religious, intellectual and economic groups Ibid., p Ibid., p Ibid., p Ibid., p Ibid., p. 28 5

7 Now, let us get to the substance of Hobbes rights. He argued that in the state of nature, people are not restricted in what they have a right to. However, after submitting to the power of the sovereign, it is the latter who makes the first distribution. He arbitrarily distributes the land among the subjects and thereby creates property rights. This sounds feudal, but the point Hobbes makes is that he grounds all property rights in positive law and links the state to the preservation of private property. 11 Hobbes thus elegantly deals with the original endowment of property rights. 12 All other distribution of property takes place as a voluntary contract between individuals. Hobbes thus grounds the second process in the first, unlike other theorists. [ ] It was to become characteristic of liberal accounts of property that they would fail to offer a satisfactory treatment of the initial endowments of property rights. 13 The central point of Hobbes theory is thus that the private individual becomes the subject of all legitimate rights. 14 What distinguishes him from later theorists are two things. First, Hobbes has no notion of societal equilibrium establishing itself due to free actions of individuals. This stems from the second fundamental element of his theory. He believed that although the laws governing the society are discoverable by reason and in principle knowable to all, the fact that in practice reason is subordinated to the passions means that people will not abide by these rules without being forced to Locke Schapiro asserts that Locke s ideas were central to legitimating capitalist economic practices. He points out that like Hobbes he believed that the state of nature was an actual historical condition. 16 Furthemore, he was firmly a natural-rights theorist. In his account, the citizens retained substantial rights even after submitting to the power of the state. To compare: for Hobbes, the sovereign did not have any obligations towards his subjects, 11 Ibid., p Ibid., p Ibid., p Ibid., p Ibid., p Ibid., p

8 because he never contracted with them. But Locke stated that the government was bound by the standing contract of the people and in case of the violation of trust, citizenry has a right to a revolution. This can be seen in his account of the emergence of property rights. Unlike Hobbes, who grounded the emergence of property relations in the arbitrary powers of the sovereign, Locke viewed property rights as prior to the constitution of the civil society. This prompted some commentators to claim that Locke s state was in effect a joint-stock company whose shareholders were the men of property. 17 The break with medieval, notably Thomist traditions in Locke can be seen in his distinction between right and law. [Natural Law] ought to be distinguished from natural right: for right is grounded in the fact that we have the free use of a thing, whereas law is what enjoins or forbids the doing of a thing. 18 The sharp differentiation between rights, which are prior to the state and retained in it, and law is the stuff that later libertarians, like Nozick, will make a lot of. Suffice it to conclude here that for Locke, the chief aim of the civil society was the preservation of ownership of actions as well as tangible and intangible assets: the chief end [of civil society] is the preservation of Property Nozick Although Nozick s Anarchy State and Utopia came chronologically after Rawls Theory of Justice, we will follow Schapiro here and deal with Nozick first, as his argumentation is closer to traditional rights-based theories than Rawls. Schapiro points out that Nozick s argument is based on a modified version of Locke s account of the state of nature. 20 He starts with a state of anarchy, inhabited by people who 17 Macpherson, C.B.: The Political Theory of Possessive Individualism. Hobbes to Locke. Oxford p Locke, J.: Essays on the Law of Nature. Oxford p Locke: Treatises, p

9 each have an inviolable right to their respective exclusive dominions. These isolated individuals are the subject of all legitimate rights. [ ] There is no social entity with a good that undergoes some sacrifice for its own good. There are only individual people, different individual people, with their own individual rights. Using some of these people for the benefit of others, uses him and benefits the others. Nothing more. 21 So, whereas, Rawls, as we will soon see, does not ascribe any axiomatic, natural, rights to his contracting agents, Nozick sees the individuals as the source of all legitimacy qua the natural rights ascribed to them. The state, therefore, should be a minimal state, the nightwatchman state of classical liberal theory, limited to the functions of protecting all citizens against violence, theft and fraud, and the enforcement of contracts. 22 Nozick is concerned very much with the fact that a political theory should arise through non-political factors. The more fundamental the starting point (the more it picks out basic, important, and inescapable features of the human situation) and the less close it is or seems to its result (the less political or stateslike it looks), the better. 23 Shapiro likens Nozick s notion of how the state comes about to the invisible hand notions of classical economics. 24 Indeed, unlike in Hobbes and Locke, we find that Nozick aims at pointing that individual people establish a certain natural equilibrium which is at threat of destruction from the state. He states, for instance, that a monopoly would not arise without the government intervention that creates and maintains it. 25 Nozick s distrust of the state has gone too far here for some. This large assumption, Shapiro points out contradicted by much empirical work on industrial concentration 20 Shapiro: Evolution, p Nozick: State, p Ibid., p Ibid., p Shapiro: Evolution, p Nozick: State, p. 17 8

10 throughout the capitalist world, reflects Nozick s benign assumption that unregulated capitalist markets function efficiently and in equilibrium Shapiro: Evolution, p

11 3.4 Rawls Schapiro describes Rawls theory as the Keynesian moment, clearly paralleling the developments in larger societal discussion with those in the field of political theories. Rawls does not tackle the questions of desirability and feasibility head on. Instead, he asks which socio-political arrangement we would choose, were we able to decide which we could have. 27 He employs the notion of a hypothetical contract (like Nozick, but unlike Hobbes and Locke, who viewed the contract as historical). Two terms are important here. The subjects to this hypothetical contract are in the original position and they are under a veil of ignorance: I assume that the parties are situated behind a veil of ignorance. They do not know how the various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations. 28 The individuals that are going to assume the contract, Rawls goes on to state, have no knowledge of particular facts about themselves, such as their socio-economic status and natural abilities and propensities. On the other hand, they have knowledge of facts concerning the functioning of the society, they understand political affairs and the principles of economic theory; they know the basis of social organization and the laws of human psychology. The contracting agents make decisions based on logical inference and calculations of risk. What they desire are what Rawls terms primary goods these are general desires such as rights and liberties, opportunities and powers, income and wealth and so on. 29 So the subjects in the original position are supposed to be equally ignorant and equally rational. They have, as Shapiro points out, no natural rights in the traditional sense Kukathas and Pettit: Rawls, p Rawls: Theory, p Ibid., p Shapiro: Evolution, p

12 This, for Rawls, should do away with the problems of free-ridership, intolerance and preference for one s particular goals. Once the contract has been made, the veil can be lifted. Rawls aim was to build a fundamentally impartial theory, which could be summed up in his own phrase justice as fairness. 31 He is, very much like Nozick, concerned with the question of unanimity. 32 From behind his veil of ignorance, he argues, a rational person would choose his two principles of justice over other principles of justice. 33 Rawls famous two principles are: first, each person is to have an equal right to the most extensive total system of equal basic liberties and, secondly, the socio-economic condition should be arranged in such a way that they are to the greatest benefit of the least advantaged (the maximin principle) and public offices and positions are open to all under the same degree of equality of opportunity. 34 Finally, what is important for Rawls is that the principles of his theory should be easily comprehensible in a reflective equilibrium. Rawls Theory of Justice is often regarded as the most influential work on substantive political theory to have emerged in the last century. Philosophically, it is defined by the Kantian notion of a morally autonomous individual. It tries to offer an alternative mainly to intuitionist theories that seek to apply common sense approach to political questions and to various strands of utilitarianism. 4. Conclusion The four contractarian theories presented here share terminology and many conceptual tools. They share the assumption that every individual is an exclusive dominion which is inviolable. If the individuals agree to become part of the state, it is in order to preserve their rights. The fact that individuals agree, either in fact or hypothetically, to a certain political order, gives this order legitimacy. 31 Ibid., p Schapiro asserts that this is his primary concern. Ibid., p Cf. Ibid., p Rawls: Justice, p

13 Where the theories differ is the emphasis on individual rights. For Hobbes, the rights are prior to the civil society, but some of them are voluntarily given up in order to get the protection of the sovereign. For Locke, individuals retain rights in the civil society and can withdraw from the obligations to the government if the contract seems to be broken. For Nozick, too, the rights are inalienable in a strong sense and the state should remain minimal. Rawls approaches the subject differently. He asks, to paraphrase this in a popular language, what would each of us choose if we did not know exactly in whose shoes he would be put in a kind of lottery draw. Theories of social contract seek ways of legitimizing and making sense of a social order in the world where other sanctions - tradition, divine order, superior interest of the community, and so on do not seem to work. 12

14 Bibliography Barry, Brian: The Liberal Theory of Justice. A Critical Examination of the Principal Doctrines in A Theory of Justice by John Rawls. Oxford Dahl, Robert: Democracy and its Critics. New Haven Fishkin, James S.: Tyranny and Legitimacy. A Critique of Political Theories. Baltimore Kukathas, Chandran and Pettit, Philip: Rawls. Theory of Justice and Its Critics. Stanford Locke, John: Two Treatises of Government. Cambridge Nozick, Robert: Anarchy State and Utopia. Oxford Rawls, John: A Theory of Justice. Oxford Shapiro, Ian: The Evolution of Rights in Liberal Theory. Cambridge