Tuesday, November 16, 2004

Original Position: The Year We Made Contract

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.


Gil said...

One problem with gradualism, though, is that it isn't always obvious whether small, politically feasible, improvements will help or hinder the prospects for long-term progress towards the best solution.

There have been debates along these lines about changes to Social Security, tax "simplification", school vouchers, etc. A lot of the worries are speculation, but sometimes there can be a genuine danger of entrenching governmental intrusions.

What's the right way to think about when a change is worthwhile?

Anonymous said...


It seems like a gradualist contractarian framework would simply allow favored groups in the status quo to hold out for a contract that preserves their (possibly ill-gotten) gains. In antebellum South, for example, it's unlikely that white slaveowners under a gradualist contractarianist framework would ever have agreed to liberal equality as a principle of justice, because that would involve them giving up their privileged position.

The whole point of the veil of ignorance is to give us a vantage point to evaluate the justice of a particular social order without special pleading from those who are advantaged by it. A "gradualist" contractarian framework seems to turn that on its head, giving privileged members of society a veto over any social change that might diminish their ill-gotten social gains.

I think it's important to distinguish between reasoning about justice in the abstract (in which Rawls' basic approach is sound, even if the particular judgments made by his hypothetical bargainers wasn't always right) and social reform in the real world (in which gradualism and a sensitivity to transition costs and unintended consequences are key). We should, of course, be cautious about rapidly implementing the conclusions of contractarian theories of justice that differ markedly from the status quo, but I don't think that undermines the theoretical soundness of the full-blown contractarian approach.