The democracy/contractualism analogy

Philosophy and Public Affairs

Volumn 31, Issue 4, 2003, Pages 387-412

  Estlund, David ^a  

^a NONE

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EID: 34248047208     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2003.00387.x     Document Type: Review

References (39)

1. Adam Smith's famous phrase appears in A Theory of the Moral Sentiments (Indianapolis: Liberty Classics, 19821, p. 185 (part IV, ch. 1).
2. "Deliberation and Democratic Legitimacy," in The Good Polity (London: Basil Blackwell, 1989), p. 20 (hereafter, DDL).
3. What We Owe to Each Other (Cambridge, Mass.: Belknap Press of Harvard University Press, 1998), p. 153.
4. See Political Liberalism (NewYork Columbia University Press, igg3), e.g., p. 137 (here-after, PL).
5. Jeremy Waldron is an example. See "Theoretical Foundations of Liberalism," in Liberal Rights (Cambridge: Cambridge University Press, 1993), pp. 56-57.
6. I will use "outcome" and "decision" interchangeably, but "outcome" is less ambiguous as between process and product.
7. PL, p. 330, emphasis added. Here Rawls echoes a point from A Theory of Justice (Cambridge, Mass.: Belknap Press of Harvard University Press, 1971), pp. 221-22.
8. On Justifying Democracy (London: Routledge, 1980), p. 101 (hereafter, OJD).
9. DDL, p. 22.
10. "Procedure and Substance in Deliberative Democracy," in Democracy and Difference, ed. Jess Benhabib (Princeton: Princeton University Press, 1996), p. 101.
11. Justice As Impartiality (Oxford: Oxford University Press, 1995), p. 100 (hereafter, JAI).
12. JAI, p. 104.
13. JAI, Ibid., p. 277, n. 36.
14. See JAI, ibid., p. 2.
15. See PL, p. 219.
16. For Jürgen Habermas's view, see Between Facts and Norms (Cambridge, Mass.: MIT Press, 1996).
17. "Freedom and Needs," The New Republic, 10 & 17 January 1994, 31-38.
18. In his discussion of animals (What We Owe, pp. 177-87), Scanlon allows contractors to represent the interests of certain noncontractors. Since animals are not present in either the hypothetical or the real choice contexts, there is no violation of analogy. But the same strategy is not available for the constituencies I mention in the text. They must apparently be participants in the hypothetical choice but not in the real democratic choice. This is a profound disanalogy whose normative damage can only be undone by giving actual participants motivations crucially different from those of the hypothetical contractors. The problem is much the same as the central one I am pressing: no plausible democratic institutions can really be modeled on the hypothetical contractualist situation because the motives there are too thin to promote justice in real contexts.
19. See Samuel Freeman's instructive discussion of this point as it figures in the views of Cohen and Habermas, in "Deliberative Democracy: A Sympathetic Comment," Philosophy & Public Affairs 29 (2000): 371-418.
20. OJD, especially pp. 111-18.
21. OJD, p. 119.
22. Philip Pettit observes that when we, actual moral agents, justify our actions to others, "we suppose in the very act of trying to justify ourselves . . . that there is an independent sense of right." This supposition is not available to the hypothetical contractors, which marks a decisive disanalogy.
23. See Pettit, "Doing Unto Others," Times Literary Supplement, 25 June 1999,7-8.
24. Rawls writes that "the point of the original position is to understand our conception of justice.. . by seeing how this conception is limited by and can be constructed from other notions that it is natural to think of as more basic and abstract. . . . This is the reason for bracketing conceptions of the right in the construction of the original position." "Fairness to Goodness," Philosophical Review 84 (1975)
25. reprinted in John Rawls: Collected Papers, ed. Samuel Freeman (Cambridge, Mass.: Harvard University Press, 1999) , p. 269.
26. Michael Ridge instructively defends Scanlon against these charges in "Debate: Saving Scanlon: Contractualism and Agent-Relativity," Journal ofPolitica1 Philosophy9 (2001): 472-81. My interpretation of Scanlon is indebted to Ridge's article.
27. "If we were to appeal to a prior notion of rightness to tell us which considerations are morally relevant and which are entitled to prevail in cases of conflict, then the contractualist framework would be unnecessary, since all the work would already have been done by this prior notion" (What We Owe, p. 213).
28. See also page 214, where he says it would be circular to appeal to a "non-contractualist theory of right." On the other hand, he also says at page 5 that the parties are "moved by the aim of finding principles that others, similarly motivated, could not reasonably reject." This seems to give them the primary question: what principles are beyond reasonable rejection? The difficulty is similar to what it would be if the parties to Rawls's original position were themselves to ask, what principles would be unanimously agreed to behind the veil of ignorance? The exegetical problem raised by these quotes in Scanlon cannot be pursued here.
29. Scanlon resists the complaint that the theory has little value unless all this content is made explicit so results can be cranked out mechanically (What We Owe, pp. 217-18). This is not my complaint. The objection I raise in the text is about the structure of the account regardless of what particular content is given to the key ideas such as reasonableness.
30. There would be no circularity in a contractor persuading others of a certain subsidiary matter: that the others could not reject certain proposals without thwarting their reasonably self-serving motives. This again suggests similarities with democratic discourse. But such communication would be superfluous to the contractualist theory of right, since we could just as well model the acquisition of such information in some other way. The fact remains that the decision whether to reject must be reasonably self-serving, and that is sufficient to refute the democracy/contractualism analogy.
31. What We Owe, p. 218.
32. What We Owe, Ibid., pp. 218-23.
33. What We Owe, Ibid., p. 5.
34. Barry explicitly rejects veto power for individuals or minorities despite noting that this is suggested by his democracy/contractualism analogy.
35. See JAL, p. 107
36. See Nelson, OJD, ch. 6.
37. Cohen says that "when properly conducted, then democratic politics involves public deliberation focused on the common good" (DDL, p. 19)
38. I believe Barry's idea of an "empirical approximation" of a Scanlonian original position conflates outcome similarity and procedural similarity.
39. See JAI, page 100, where "circumstances of impartiality," are glossed as referring to "empirical conditions that approximate those of a Scanlonian original position," but are also defined as "the conditions under which the substantive rules of justice of a society will tend actually to be just."