Thanks in small part to my contribution, Will Wilkinson has been blogging up a storm at the Fly Bottle, at the rate of three posts a day. His latest discusses the relevance of Hayek’s critique of constructivism to contractarian reasoning.
Here’s my half-assed summary (read Will’s post for the whole-assed version): On the one hand, Hayek argues that our morals have arisen from a long process of cultural evolution, and therefore we cannot fully understand and justify all of our moral constitution. This argues against any approach, including contractarianism, that would try to build a system of justice and/or morals from the ground up. On the other hand, Hayek does not eschew all attempts to improve justice, morals, or the social order. He advocates a gradualist approach, which continually improves parts of the system by reference to the principles implicit in other parts of the system.
What Will finds in this perspective – correctly, I think – is a Hayekian argument for federalism, as well as a robust common law. The idea is to take contractualist reasoning out of our “limited heads” (Will’s well-chosen phrase) and embed it in a social process instead.
My small addition to the discussion is to suggest something about the implications for contractarian theory. Most contractarian theories, Rawls’s particularly, wish to start the bargaining process from a hypothetical original position. This contrasts with all real contracts we know of, which begin in a surrounding context that the contracting parties wish to alter at the margin. At a social level, what the contractarian approach really seems to demand is a whole new contract to replace the status quo, if it should turn out that the status quo differs in any substantial fashion from the conclusions of our contractarian reasoning. A less hubristic contractarian might instead regard the status quo as an existing contract that is subject to minor changes in its terms over time, via new contracts that modify the old one. Contractarian argumentation still plays a role, but only at the margin of change. The result is a form of gradualist contractarianism.