## 1. The Role of the Social Contract


### 1.1 Distinctiveness of the Social Contract Approach



The aim of a social contract theory is to show that members of some
society have reason to endorse and comply with the fundamental social
rules, laws, institutions, and/or principles of that society. Put
simply, it is concerned with public justification, i.e., "of
determining whether or not a given regime is legitimate and therefore
worthy of loyalty" (D'Agostino 1996, 23). The ultimate
goal of state-focused social contract theories is to show that some
political system can meet the challenge Alexander Hamilton raised in
*Federalist* no. 1 of whether "men are really capable or
not of establishing good government from reflection and choice, or
whether they are forever destined to depend for their political
constitutions on accident and force" (Hamilton 1788). Going
further, David Gauthier argues that any system of moral constraints
must be justified to those to whom it is meant to apply. "What
theory of morals," Gauthier asks, "can ever serve any
useful purpose unless it can show that all the duties it recommends
are truly endorsed in each individual's reason?" (1986,
1).



The ultimate goal, then, of social contract theories is to show, in
the most general sense, that social (moral, political, legal, etc.)
rules can be rationally justified. This alone does not, however,
distinguish the social contract from other approaches in moral and
political philosophy, all of which attempt to show that moral and
political rules are rationally justifiable in some sense. The true
distinctiveness of the social contract approach is that justification
does not rely, for its foundation, on some exogenous reason or truth.
Justification is generated endogenously by rational agreement (or lack
of rejection in T. M. Scanlon's version). That is, the fact that
everyone in a society, given their individual reasoning, would agree
to a certain rule or principle is the critical justification for that
rule or principle.



Although contract theorists differ in their account of the reasons of
individuals, with some being attracted to more objectivist accounts
(Scanlon 2013), most follow Hobbes in modeling individual reasons as
subjective, motivationally internal, or at least agent-relative. This
may be because of skepticism about moral reasons generally (Harman
1975, Gauthier 1986, Binmore 1998), a conviction about the
overwhelming importance of self-interest to the social order (Hobbes
1651, Buchanan 2000 [1975], Brennan and Buchanan 1985), a concern to
take seriously the disagreement of individual view in modern society
(Gaus 2011a, 2016; Muldoon 2017; Moehler 2014, 2015, 2018) or because
this approach is consistent with the most well-developed theories of
rational choice in the social sciences (Binmore 2005, Buchanan 2000
[1975]). In any case, the reasons individuals have for agreeing to
some rules or principles are importantly their own reasons, not
"good reasons" from the impartial perspective. Of course,
those same individuals may care about what they perceive to be the
impartial good or some other non-individualistic notion--they
need not be egoists--but what they care about, and so their
reasons will differ from one another. This point, as Rawls highlights
in his later work, is crucial to understanding political justification
in a diverse society where members of a society cannot reasonably be
expected to have similar conceptions of the good (Rawls 1996). Recent
contractarian accounts put even greater weight on heterogeneity
(Southwood 2010, Gaus 2016, Muldoon 2017, Moehler 2018, Sugden
2018).


### 1.2 The Social Contract as a Model



The social contract is a *model of* rational justification that
transforms the problem of justification (what reasons individuals
have) into a problem of deliberation (what rules they will agree to).
As Rawls argues:



> 
> [T]he question of justification is settled by working out a problem of
> deliberation: we have to ascertain which principles it would be
> rational to adopt given the contractual situation. This connects the
> theory of justice with the theory of rational choice (Rawls 1999, 16).
> 



Justification is not a "mere proof" (Rawls 1999a 508), nor
is it reasoning from given or generally accepted premises to
conclusions about political legitimacy or morality (Rawls 1980, p.
518). Rather, the contractual model makes explicit the reasoning that
connects our standpoint as persons with determinate interests and
goals to our standpoint as citizens.



At the simplest level, models take something complex and make it
simpler. Along these lines, both the economist Ariel Rubinstein (2012)
and the philosopher Nancy Cartwright (1991) compare models to fables.
Fables are stories that communicate some important lesson in a simple,
easy-to-understand fashion. Fables, like models, communicate important
general rules through particular, though fictional, cases.



Models involve abstraction and idealization, but they do more than
that: they help us see what our key assumptions are, identify the
factors that we see as relevant (Gaus 2016, xv-xvii). Models, as
techniques of idealization, do more than abstract (Weisberg 2007a,
2013). Consider the periodic table of the elements. It is an
abstraction, but not a model according to Michael Weisberg. He calls
abstractions like the periodic table *abstract direct
representations* to distinguish them from models (2007b). Modeling
seeks to isolate the important features of the target phenomena,
allowing the modeler to understand and manipulate important elements
of the phenomena in simulations. John Rawls's representatives to
the original position, for instance, are not only abstractions of real
persons. They are idealizations that isolate particular aspects of
persons that are relevant to justification as a choice, specifically
their thin theory of rationality, and their values (in the form of
primary goods). Isolating these features is important for modeling the
agreement procedure in Rawls's theory.



Given this, we can think of social contract theories as having a
general schematic form. Social contract theories are models of
justification with several general parameters that are set differently
in different theories. What distinguishes contractarian theories is
how they specify these general parameters (Thrasher 2019). The goal of
the model is to represent our reasons for endorsing and complying with
some set of social rules, principles, or norms. This is done by
showing that our representatives in the model would agree to a given
set of these rules, principles, or norms in a suitably constructed
choice situation. What "suitably constructed" means here
will depend on the other parameters in the model.



Critically, there are two sets of relevant individuals (*N* and
N*\**). The first set is the representative choosers
(*N*) constructed in the "device of representation"
such as the original position (Rawls 1996, 27). The second set
(*N**\**) is composed of real individuals whose terms of
interaction are to be guided by the contract/agreement. If the
deliberations of the contractors (*N*) are to be relevant to
the actual participants (*N\**), the reasoning of the former
must, in some way, be shared by the latter. There is, however,
considerable debate about what it means for reasons to be shared in
this sense (see
 Public Reason
 and
 Public Justification).
 The other main parameter in the model is the deliberative setting
(*M*), in which the model choosers (*N*) endorse some
rules, principles, or norms (*R*).



Given all of this, we can identify a general model of social contract
theories:



**General Model of the Social Contract:** *N*
chooses *R* in *M* and this gives *N\** reason to
endorse and comply with *R* in the real world insofar as the
reasons *N* has for choosing *R* in *M* can be
shared by *N\**.



Each of these parameters (*N,M,R,N\**) can be specified in any
number of ways. The shape of a particular contractual theory depends
on the precise way these parameters are set in the theory.


## 2. Modeling the Parties


### 2.1 Reductionist vs. Non-Reductionist



How contract theorists model the representative choosers (*N*)
is determined by *our* (actual) justificatory problem and what
is relevant to solving it. A major divide among contemporary social
contract theories thus involves defining the justificatory problem. A
distinction is often drawn between the Hobbesian/Lockean
 ("contractarian")
 and Rousseavian/Kantian
 ("contractualist")
 interpretations of the justificatory problem. These categories are
imprecise, and there is often as much difference within these two
approaches as between them, yet, nevertheless, the distinction can be
useful for isolating some key disputes in contemporary social contract
theory.



Among those "contractarians" who--*very*
roughly--can be called followers of Hobbes and/or Locke, the
crucial justificatory task is, as Gauthier (1991, 16) puts it, to
resolve the "foundational crisis" of morality:



> 
> From the standpoint of the agent, moral considerations present
> themselves as constraining his choices and action, in ways independent
> of his desires, aims, and interests.... And so we ask, what
> reason can a person have for recognizing and accepting a constraint
> that is independent of his desires and interests? ... [W]hat
> justifies paying attention to morality, rather than dismissing it as
> an appendage of outworn beliefs?
> 



If our justificatory problem is not simply to understand what morality
requires, but whether morality ought to be paid attention to, or
instead dismissed as a superstition based on outmoded metaphysical
theories, then obviously the parties to the agreement must not employ
moral judgments in their reasoning. Another version of this concern is
Gregory Kavka's (1984) description of the project to reconcile
morality with prudence. On both these accounts, the aim of the
contract is to show that commitment to morality is an effective way to
further one's non-moral aims and interests, answering the
question "why be moral?" The political version of this
project, is similar, though the target of justification is a set of
political rules or constitution rather than morality generally
(Buchanan 2000[1975], Coleman 1985, Kavka 1986, Sugden 2018). This
"contractarian" project is reductionist in a pretty
straightforward sense: it derives moral or political reasons from
non-moral ones. Or, to use Rawls's terminology, it attempts to
generate the reasonable out of the rational (1996, 53).



The reductionist approach is appealing for several reasons. First,
insofar as we doubt the normative basis of moral reasons, such a
reductionist strategy promises to ground morality--or at least a
very basic version of it--on the prosaic normativity of the basic
requirements of instrumentalist practical rationality (Moehler 2018).
The justificatory question "why be moral?" is transformed
into the less troubling question "why be rational?"
Second, even if we recognize that moral reasons are, in some sense,
genuine, contractarians like Kavka also want to show that prudent
individuals, not independently motivated by morality would have reason
to reflectively endorse morality. Furthermore, if we have reason to
suspect that some segment of the population is, in fact, knavish then
we have good defensive reasons based on stability to build our social
institutions and morality so as to restrain those who are only
motivated by prudence, even if we suspect that most persons are not so
motivated. Geoffrey Brennan and James Buchanan argue that a version of
Gresham's law holds in political and social institutions that
"bad behavior drives out good and that all persons will be led
themselves by even the presence of a few self-seekers to adopt
self-interested behavior" (2008 [1985], 68). We need not think
people are mostly self-seeking to think that social institutions and
morality should be justified to and restrain those who are.



On the other hand, "contractualists," such as Rawls, John
Harsanyi (1977), Thomas Scanlon (1998), Stephen Darwall (2006),
Nicholas Southwood (2010) and Gerald Gaus (2011) attribute ethical or
political values to the deliberative parties, as well as a much more
substantive, non-instrumentalist form of practical reasoning. The
kinds of surrogates that model the justificatory problem are already
so situated that their deliberations will be framed by
ethico-political considerations. The agents' deliberations are
not, as with the Hobbesian theorists, carried out in purely prudential
or instrumentalist terms, but they are subject to the 'veil of
ignorance' or other substantive conditions. Here the core
justificatory problem is not whether the very idea of moral and
political constraints makes sense, but what sorts of moral or
political principles meet certain basic moral demands, such as
treating all as free and equal moral persons, or not subjecting any
person to the will or judgment of another (Reiman 1990, chap. 1). This
approach, then, is non-reductionist in the sense that justification is
not derived from the non-moral.



A benefit of the non-reductive approach is that the choosers in the
contractual procedure (*N*) share many of the normative
concerns of their actual counterparts (*N\**). This should
ensure a closer normative link between the two parties and allow for
the contract to generate a thicker, more substantive morality,
presumably closer to that already held by *N\**. Whether this is
so, however, depends on how closely the non-reductionist model of
rationality is to the reasoning of actual individuals.



At this point, the debate seems to be centered on two positions, which
we might call the *robustness* and *sensitivity*
positions. According to the proponents of robustness, whatever else
moral agents may disagree about, we can safely assume that they would
all be committed to basic standards of rationality (Moehler 2013,
2017, 2018). We should thus suppose this same basic, shared conception
of rationality and agency: when people fall short of more moralistic
ideals and virtue, the contract will still function. It will be
robust. According to this view, we are better off following Hume
(1741) in assuming every person to be a knave, even though that maxim
is false in fact.



The sensitivity position rejects this, holding that, if, in fact,
individuals in *N\** are not resolutely self-interested, the
problems of *N*, resolutely self-interested individuals, and
their contractual solutions, will be inappropriate to *N\**.
Perhaps whereas *N\** can count on social trust, the
self-interested contractors will find it elusive and arrive at
second-best alternatives that trusting folks would find silly and
inefficient. Indeed, the sensitivity theorist may insist that even if
the self-interested agents can talk themselves into acting as moral
agents they do so for the wrong sort of reasons (Gaus 2011,
185ff).


### 2.2 Idealization and Identification



The core idea of social contract theories, we have been stressing, is
that the deliberation of the parties is supposed to model the
justificatory problem of ordinary moral agents and citizens. Now this
pulls social contract theories in two opposing directions. On the one
hand, if the deliberations of the hypothetical parties are to model
*our* problem and their conclusions are to be of relevance to
us, the parties must be similar to us. The closer the parties are to
"you and me" the better their deliberations will model you
and me, and be of relevance to us. On the other hand, the point of
contract theories is to make headway on our justificatory problem by
constructing parties that are models of you and me, suggesting that
some idealization is necessary and salutary in constructing a model of
justification. To recognize that some forms of idealization are
problematic does not imply that we should embrace what Gaus has called
"justificatory populism" that every person in society must
actually assent to the social and moral institutions in question (Gaus
1996, 130-131). Such a standard would take us back to the older
social contract tradition based on direct consent and as we argue in
SS3, modern contract theories are concerned with appeals to our
reason, not our self-binding power of consent.



Despite possible problems, there are two important motivations behind
idealization in the modeling of the deliberative parties. First, you
and I, as we now are, may be confused about what considerations are
relevant to our justificatory problem. We have biases and false
beliefs; to make progress on solving our problem of justification we
wish, as far as possible, to see what the result would be if we only
reasoned correctly from sound and relevant premises. So in
constructing the hypothetical parties we wish to idealize them in this
way. Ideal deliberation theorists like Jurgen Habermas (1985) and
Southwood (2010), in their different ways, are deeply concerned with
this reason for idealization. On the face of it, such idealization
does not seem especially troublesome, since our ultimate concern is
with what is justified, and so we want the deliberations of the
parties to track good reasons. But if we idealize too far from
individuals and citizens as they presently are (e.g., suppose we posit
that they are fully rational in the sense that they know all the
implications of all their beliefs and have perfect information) their
deliberations may not help much in solving our justificatory problems.
We will not be able to identify with their solutions (Suikkanen 2014,
Southwood 2019). For example, suppose that hyper-rational and
perfectly informed parties would have no religious beliefs, so they
would not be concerned with freedom of religion or the role of
religion of political decision making. But our problem is that among
tolerably reasonable but far from perfectly rational citizens,
pluralism of religious belief is inescapable. Consequently, to gain
insight into the justificatory problem among citizens of limited
rationality, the parties must model our imperfect rationality.


### 2.3 Homogeneity vs. Heterogeneity



Social contract theories model representative choosers (*N*) so
as to render the choice situation determinate. This goal of
determinacy, however, can have the effect of eliminating the pluralism
of the parties that was the original impetus for contracting in the
first place. In his *Lectures on the History of Political
Philosophy* Rawls tells us that "a normalization of
interests attributed to the parties" is "common to social
contract doctrines" and it is necessary to unify the
perspectives of the different parties so as to construct a
"shared point of view" (2007, 226). Here Rawls seems to be
suggesting that to achieve determinacy in the contract procedure it is
necessary to "normalize" the perspectives of the
parties.



The problem is this. Suppose that the parties to the contract closely
model real agents, and so they have diverse bases for their
deliberations--religious, secular, perfectionist, and so on. In
this case, it is hard to see how the contract theorist can get a
determinate result. Just as you and I disagree, so will the parties.
Rawls (1999, 121) acknowledges that his restrictions on particular
information in the original position are necessary to achieve a
determinate result. If we exclude "knowledge of those
contingencies which set men at odds .... " then since
"everyone is equally rational and similarly situated, each is
convinced by the same arguments"(Rawls 1999, 17, 120). Gaus
(2011a, 36-47) has argued that a determinative result can only
be generated by an implausibly high degree of abstraction, in which
the basic pluralism of evaluative standards--the core of our
justificatory problem--is abstracted away. Thus, on Gaus's
view, modelings of the parties that make them anything approaching
representations of real people will only be able to generate a
non-singleton set of eligible social contracts. The parties might
agree that some social contracts are better than none, but they will
disagree on their ordering of possible social contracts. This
conclusion, refined and developed in (Gaus 2011a, Part Two) connects
the traditional problem of indeterminacy in the contract procedure
(see also Hardin 2003) with the contemporary, technical problem of
equilibrium selection in games (see Vanderschraaf 2005). A topic we
will explore more in SS3 below.



It is possible, however, that determinacy may actually require
diversity in the perspective of the deliberative parties in a way that
Rawls and others like Harsanyi didn't expect. The reason for
this is simple, though the proof is somewhat complex. Normalizing the
perspectives of the parties assumes that there is one stable point of
view that has all of the relevant information necessary for generating
a stable and determinate set of social rules. There is no reason,
antecedently, to think that such a perspective can be found, however.
Instead, if we recognize that there are epistemic gains to be had from
a "division of cognitive labor" there is good reason to
prefer a diverse rather than normalized idealization of the parties to
the contract (see: Weisberg and Muldoon 2009, Gaus 2016, Muldoon 2017,
Muldoon 2017a, Muldoon 2018). There is reason to conclude that if we
wish to discover social contracts that best achieve a set of
interrelated normative desiderata (e.g., liberty, equality, welfare,
etc.), a deliberative process that draws on a diversity of
perspectives will outperform one based on a strict normalization of
perspectives (Gaus 2011b, 2016; Thrasher 2020).


### 2.4 Doxastic vs. Evaluative



Any representation of the reasoning of the parties will have two
elements that need to be specified: 1) doxastic and 2) evaluative.
These elements, when combined, create a complete model that will
specify how and why representatives in the contractual model choose or
agree to some set of social rules. The first (doxastic) is the
specification of everything the representatives in the original
position know or at least believe. Choice in the contractual model in
the broadest sense, is an attempt by the parties to choose a set of
rules that they expect will be better than in some baseline condition,
such as "generalized egoism" (Rawls, 1999: 127) a
"state of nature" (Hobbes 1651) or the rules that they
currently have (Binmore, 2005; Buchanan 2000 [1975]). To do this, they
need representations of the baseline and of state of the world under
candidate set of rules). Without either of these doxastic
representations, the choice problem would be indeterminate. Rawls
famously imposes severe doxastic constraints on his parties to the
social contract by imposing a thick veil of ignorance that eliminates
information about the specific details of each individual and the
world they live in. James Buchanan imposes a similar, but less
restrictive "veil of uncertainty" on his representative
choosers (Buchanan and Tullock 1965 [1962]; Buchanan 1975; see also
Rawls, 1958).



In addition to specifying what the representatives believe to be the
case about the world and the results of their agreement, there must
also be some standard by which the representative parties can evaluate
different contractual possibilities. They must be able to rank the
options on the basis of their values, whatever those may be. Rawls
models parties to the contractual situation as, at least initially,
having only one metric of value: primary goods. They choose the
conception of justice they do insofar as they believe it will likely
generate the most primary goods for them and their descendants. This
specification of the evaluative parameter is uniform across choosers
and therefore, choice in the original position can be modeled as the
choice of one individual. Insofar as there is evaluative diversity
between the representatives, more complex models of agreement will be
needed (see SS3). If we think in terms of decision theory, the
doxastic specification individuates the initial state of affairs and
the outcomes of the contractual model, while the specification of the
evaluative elements gives each representative party a ranking of the
outcomes expected to result from the choice of any given set of rules.
Once these elements are specified, we have a model of the parties to
the contract.


## 3. Modeling Agreement



Social contract theories fundamentally differ in whether the parties
reason differently or the same. As we have seen (SS2.3) in
Rawls's Original Position, everyone reasons the same: the
collective choice problem is reduced to the choice of one individual.
Any one person's decision is a proxy for everyone else. In
social contracts of this sort, the description of the parties (their
motivation, the conditions under which they choose) does all the work:
once we have fully specified the reasoning of one party, the contract
has been identified.



The alternative view is that, even after we have specified the parties
(including their rationality, values and information), they continue
to disagree in their rankings of possible social contracts. On this
view, the contract only has a determinate result if there is some way
to commensurate the different rankings of each individual to yield an
agreement (D'Agostino 2003). We can distinguish four basic
agreement mechanisms of doing this.


### 3.1 Consent



The traditional social contract views of Hobbes, Locke, and Rousseau
crucially relied on the idea of consent. For Locke only "consent
of Free-men" could make them members of the government (Locke
1689, SS117). In the hands of these theorists--and in much
ordinary discourse--the idea of "consent" implies a
normative power to bind oneself. When one reaches "the age of
consent" one is empowered to make certain sorts of binding
agreements--contracts. By putting consent at the center of their
contracts these early modern contract theorists (1) were clearly
supposing that individuals had basic normative powers over themselves
(e.g. self-ownership) before they entered into the social contract (a
point that Hume (1748) stressed), and (2) brought the question of
political obligation to the fore. If the parties have the power to
bind themselves by exercising this normative power, then the upshot of
the social contract was *obligation*. As Hobbes (1651, 81 [chap
xiv,P7) insisted, covenants bind; that is why they are
"artificial chains" (1651, 138 [chap. xxi, P5).



Both of these considerations have come under attack in contemporary
social contract theories, especially the second. According to
Buchanan, the key development of recent social contract theory has
been to distinguish the question of what generates political
obligation (*the* key concern of the consent tradition in
social contract thought) from the question of what constitutional
orders or social institutions are mutually beneficial and stable over
time (1965). The nature of a person's *duty* to abide by
the law or social rules is a matter of morality as it pertains to
individuals (Rawls 1999, 293ff), while the design and justification of
political and social institutions is a question of public or social
morality. Thus, in Buchanan's view, a crucial feature of more
recent contractual thought has been to refocus political philosophy on
public or social morality rather than individual obligation. In most
modern social contract theories, including Rawls's, consent and
obligation play almost no role whatsoever.



Although contemporary social contract theorists still sometimes employ
the language of consent, the core idea of contemporary social contract
theory is *agreement*. "Social contract views work from
the intuitive idea of agreement" (Freeman 2007a, 17). One can
endorse or agree to a principle without that act of endorsement in any
way binding one to obey. Social contract theorists as diverse as
Samuel Freeman and Jan Narveson (1988, 148) see the act of agreement
as indicating what reasons we have; agreement is a "test"
or a heuristic (see SS5). The "role of unanimous collective
agreement" is in showing "what we have reasons to do in
our social and political relations" (Freeman 2007, 19). Thus
understood, the agreement is not itself a binding act--it is not
a performative that somehow creates obligation--but is
reason-revealing (Lessnoff 1986). If individuals are rational, what
they agree to reflects the reasons they have. In contemporary contract
theories such as Rawls's, the problem of justification takes
center stage. Rawls's revival of social contract theory in *A
Theory of Justice* thus did not base obligations on consent,
though the apparatus of an "original agreement" persisted.
Recall that for Rawls (1999, 16) the aim is to settle "the
question of justification ... by working out a problem of
deliberation."



Given that the problem of justification has taken center stage, the
second aspect of contemporary social contract thinking appears to fall
into place: its reliance on models of counterfactual agreement. The
aim is to model the reasons of citizens, and so we ask what they would
agree to under conditions in which their agreements would be expected
to track their reasons. Contemporary contract theory is,
characteristically, *doubly* counterfactual. Certainly, no
prominent theorist thinks that questions of justification are settled
by an actual survey of attitudes towards existing social arrangements,
and are not settled until such a survey has been carried out. The
question, then, is *not* "Are these arrangements
presently the object of an actual agreement among citizens?" (If
this were the question, the answer would typically be
"No".) The question, rather, is "*Would*
these arrangements be the object of an agreement if citizens were
surveyed?" Although both of the questions are, in some sense,
susceptible to an empirical reading, only the latter is in play in
present-day theorizing. The contract nowadays is always counterfactual
in at least this first sense.



There is a reading of the (first-order) counterfactual question,
"Would *R* be the object of agreement if\_\_\_" which,
as indicated, is still resolutely empirical in some sense. This is the
reading where what is required of the theorist is that she try to
determine what an actual survey of actual citizens would reveal about
their actual attitudes towards their system of social arrangements.
(This is seldom done, of course; the theorist does it in her
imagination. See, though, Klosko 2000). But there is another
interpretation that is more widely accepted in the contemporary
context. On this reading, the question is no longer a counterfactual
question about actual reactions; it is, rather, a
*counterfactual* question about counterfactual
reactions--it is, as we have said, *doubly*
counterfactual. *Framing* the question is the first
counterfactual element: "Would *R* be the object of
agreement if they were surveyed?" *Framed* by this
question is the second counterfactual element, one which involves the
citizens, who are no longer treated empirically, i.e. taken as given,
but are, instead, themselves considered from a counterfactual point of
view--as they would be if (typically) they were better informed
or more impartial, etc. The question for most contemporary contract
theorists, then, is, roughly: "If we surveyed the idealized
surrogates of the actual citizens in this polity, what social
arrangements would be the object of an agreement among
them?"



Famously, Ronald Dworkin (1975) has objected that a (doubly)
hypothetical agreement cannot bind any actual person. For the
hypothetical analysis to make sense, it must be shown that
hypothetical persons in the contract can agree to endorse and comply
with some principle regulating social arrangements. Suppose that it
could be shown that your surrogate (a better informed, more impartial
version of you) would agree to a principle. What has that to do with
you? Where this second-stage hypothetical analysis is employed, it
seems to be proposed that *you* can be bound by agreements that
*others*, different from you, would have made. While it might
(though it needn't) be reasonable to suppose that *you*
can be bound by agreements that you would yourself have entered into
if, given the opportunity, it seems crazy to think that you can be
bound by agreements that, demonstrably, you wouldn't have made
*even if* you had been asked.



This criticism is decisive, however, only if the hypothetical social
contract is supposed to invoke your normative power to self-bind via
consent. That your surrogate employs her power to self-bind would not
mean that you had employed your power. Again, though, the power to
obligate oneself is not typically invoked in the contemporary social
contract: the problem of deliberation is supposed to help us make
headway on the problem of justification. So the question for
contemporary hypothetical contract theories is whether the
hypothetical agreement of your surrogate tracks your reasons to accept
social arrangements, a very different issue (Stark 2000).



This argument has been revived by Jussi Suikkanen (2014) as the claim
that certain forms of contract theory, most notably Southwood's
(2010) "deliberative" contractualism, commit the
conditional fallacy. The conditional fallacy is a specific version of
the problem we are considering here, namely that a conditional with
counterfactual agents, will not necessarily apply if the
counterfactual agents are sufficiently different from the real ones it
is meant to apply to. In response, Southwood (2019) develops what he
calls an "advice model" of contractualism wherein we take
the counterfactual contractors to generate reasons that should appeal
to us as advice from a more thoughtful, idealized version of
ourselves, along lines similar to Michael Smith's (1994) ideal
advisor theory of moral reasons. Thrasher (2019) raises a different
but related concern that segmented choice in the model of agreement
can create outcomes that are not rationalizable to the parties, since
they are the result of path-dependent processes.



As we have argued, contemporary social contract theory rely on
hypothetical or counterfactual agreement, rather than actual
agreement. In one sense this is certainly the case. However, in many
ways the "hypothetical/actual" divide is artificial: the
counterfactual agreement is meant to model, and provide the basis for,
actual agreement. All models are counterfactual Understanding
contemporary social contract theory is best achieved, not through
insisting on the distinction between actual and hypothetical
contracts, but by grasping the interplay of the counterfactual and the
actual in the model of agreement.



Rawls (1995) is especially clear on this point in his explication of
his model of agreement in response to Habermas. There he distinguishes
between three different perspectives relevant to the assessment of the
model (1996, 28):


1. you and me
2. the parties to the deliberative model
3. persons in a well-ordered society



The agreement of the parties in the deliberative model is certainly
counterfactual in the two-fold sense we have analyzed: a
counterfactual agreement among counterfactual parties. But the point
of the deliberative model is to help us (i.e., "you and
me") solve *our* justificatory problem--what social
arrangements we can all accept as "free persons who have no
authority over one another" (Rawls 1958, 33). The parties'
deliberations and the conditions under which they deliberate, then,
model our actual convictions about justice and justification. As Rawls
says (1999, 514), the reasoning of the counterfactual parties matters
to us because "the conditions embodied in the description of
this situation are ones that we do in fact accept." Unless the
counterfactual models the actual, the upshot of the agreement could
not provide *us* with reasons. Gaus describes this process as a
"testing conception" of the social contract (2011a, 425).
We use the counterfactual deliberative device of the contract to
"test" our social institutions. In this way, the
contemporary social contract is meant to be a model of the
justificatory situation that all individuals face. The counterfactual
and abstracted (see SS2) nature of the contract is needed to
highlight the relevant features of the parties to show what reasons
they have.



Samuel Freeman has recently stressed the way in which focusing on the
third perspective--of citizens in a well-ordered
society--also shows the importance of counterfactual agreement in
Rawls's contract theory. On Freeman's interpretation, the
social contract must meet the condition of *publicity*. He
(2007b:15) writes:



> 
> Rawls distinguishes three levels of publicity: first, the publicity of
> principles of justice; second, the publicity of the general beliefs in
> light of which first principles of justice can be accepted
> ("that is, the theory of human nature and of social institutions
> generally)"; and, third, the publicity of the complete
> justification of the public conception of justice as it would be on
> its own terms. All three levels, Rawls contends, are exemplified in a
> well-ordered society. This is the "full publicity"
> condition.
> 



A justified contract must meet the full publicity condition: its
complete justification must be capable of being actually accepted by
members of a well-ordered society. The counterfactual agreement itself
provides only what Rawls (1996, 386) calls a *"pro
tanto"* or "so far as it goes" justification of
the principles of justice. "Full justification" is
achieved only when actual "people endorse and will liberal
justice for the particular (and often conflicting) reasons implicit in
the reasonable comprehensive doctrines they hold" (Freeman
2007b, 19). Thus understood, Rawls's concern with the stability
of justice as fairness, which motivated the move to political
liberalism, is itself a question of justification (Weithman, 2010).
Only if the principles of justice are stable in this way are they
fully justified. Rawls's concern with stability and publicity is
not, however, idiosyncratic and is shared by all contemporary contract
theorists. It is significant that even theorists such as Buchanan
(2000 [1975], 26-27), Gauthier (1986, 348), and Binmore (2005,
5-7)--who are so different from Rawls in other
respects--share his concern with stability.


### 3.2 Bargaining



It is perhaps no surprise that the renaissance in contemporary contact
theory occurred at the same time as game-theoretic tools and
especially bargaining theory began to be applied to philosophical
problems. Bargaining theory, as it was developed by John Nash (1950)
and John Harsanyi (1977) is a rigorous approach to modeling how
rational individuals would agree to divide some good or surplus. In
its most general form, the bargaining model of agreement specifies
some set of individuals who have individual utility functions that can
be represented in relation to one other without requiring
interpersonal comparisons of utility directly. Some surplus is
specified and if the individuals involved can agree on how to divide
the good in question, they will get that division. If, however, they
cannot agree they will instead get their disagreement result. This may
be what they brought to the table or it could be some other specified
amount. One example is a simple demand game where two people must
write down how much of given pot of money they want. If the two
"bids" amount to equal or less than the pot, each will get
what he or she wrote down, otherwise each will get nothing.



As Rawls recognized in his 1958 essay "Justice as
Fairness" one way for parties to resolve their disagreements is
to employ bargaining solutions, such as that proposed by R.B.
Braithwaite (1955). Rawls himself rejected bargaining solutions to the
social contract since, in his opinion, such solutions rely on
"threat advantage" (i.e., disagreement result) and
"to each according to his threat advantage is hardly a principle
of fairness" (Rawls 1958, 58n). In addition to Rawls's
concern about threat advantage, a drawback of all such approaches is
the multiplicity of bargaining solutions, which can significantly
differ. Although the Nash solution is most favored today, it can have
counter-intuitive implications. Furthermore, there are many who argue
that bargaining solutions are inherently indeterminate and so the only
way to achieve determinacy is to introduce unrealistic or
controversial assumptions (Sugden, 1990, 1991; Thrasher 2014). Similar
problems also exist for equilibrium selection in games (see
Vanderschraaf 2005 and Harsanyi and Selten 1988).



Gauthier famously pursued the bargaining approach, building his Morals
by Agreement on his bargaining solution, minimax relative concession,
which is equivalent to the Kalai-Smorodinsky bargaining solution in
the two-person case (see also Gaus 1990, Ch. IX). Binmore (2005) has
recently advanced a version of social contract theory that relies on
the Nash bargaining solution, as does Ryan Muldoon (2017) while
Moehler (2018) relies on a "stabilized" Nash bargaining
solution. In later work, Gauthier (1993) shifted from minimax relative
concession to the Nash solution. Gauthier has since adopted a less
formal approach to bargaining that is, nevertheless, closer to his
original solution than to the Nash Solution (2013).



Many of the recent developments in bargaining theory and the social
contract have adopted dynamic (Muldoon 2017, Vanderschraaf 2018) or
even evolutionary approaches to modeling bargaining (Alexander and
Skyrms 1999, Skyrms 2014). This highlights a general divide in
bargaining models between what we can call *axiomatic* and
*process* models. The traditional, axiomatic, approach to the
bargaining problem going back to John Nash, codified by John Harsanyi,
and popularized by R. Duncan Luce and Howard Raiffa (1957). Out of
this tradition has come several core bargaining solutions. Each uses a
slightly different set of axioms to generate a unique and generally
applicable way to divide a surplus. These include, most notably, the
egalitarian (Raiffa 1953), the Nash (1950), the stabilized Nash
(Moehler 2010), the Kalai-Smorodinsky (1975), and Gauthier's
minimax relative concession (1986). The main point of contention among
these theories is whether to employ Nash's independence axiom or
to use a monotonicity axiom (as the egalitarian, Kalai-Smorodinsky,
and minimax relative concession do), although, to one degree or
another all of the axioms have been contested.



The other approach is what we can call a *process* model.
Instead of using various axioms to generate a uniquely rational
solution, these theorists rely on some procedure that will generate a
determinate, though not always unique result. Process approaches use
some mechanism to generate agreement. An example is an auction. There
are many types of auctions (e.g., English, Dutch, Vickrey, etc.), each
has a way of generating bids on some good and then deciding on a
price. Posted price selling, like one often sees in consumer markets,
are also a kind of bargain, though an extremely asymmetric one where
the seller has offered a "take or leave it" ask.
Double-auctions are more symmetrical and have a clearer link to the
initial bargaining model. Although auctions are not typically used to
solve pure division problems, there are some examples of auction
mechanisms being used to solve public goods problems in interesting
ways that guarantee unanimity (Smith 1977). Dworkin also uses a kind
of auction mechanism in his work on equality, though he doesn't
develop his approach for more general application (Dworkin 1981, Heath
2004). Despite its promise, however, auction theory and its potential
application to social contract theory have largely gone
unexploited.



The main process approach to bargaining derives from the influential
work of Rubinstein (1982) and his proof that it is possible to show
that an alternating offer bargaining process will generate the same
result as Nash's axiomatic solution in certain cases. This
result added life to Nash's (1950) early observation that
bargaining and the rules of bargaining must be the result of some
non-cooperative game, with the idea being that it might be possible to
unify bargaining theory and game theory. This approach, called the
Nash Program, is most notably championed by Binmore (1998), whose
evolutionary approach to the social contract relies on biological
evolution (the game of life) to generate the background conditions of
bargaining (the game of morals). Both can be modeled as
non-cooperative games and the later can be modeled as a bargaining
problem. By using this approach, Binmore (1998, 2005) claims to be
able to show, in a robust and non-question-begging way, that something
very much like Rawls's "justice as fairness" will be
the result of this evolutionary bargaining process.



A more empirically minded approach follows Schelling's (1960)
early work on bargaining and game theory by looking at the way actual
people bargain and reach agreement. The pioneers of experimental
economics used laboratory experiments to look at how subjects behaved
in division problems (Hoffman et. al. 2000, Smith 2003). Some of the
most interesting results came, perhaps surprisingly, from asymmetric
bargaining games like the ultimatum game (Smith 1982). Since these
early experiments, considerable experimental work has been done on
bargaining problems and cooperative agreement in economics. Much of
the most philosophically relevant work involves the importance of
social norms and conventions in determining the result (Bicchieri
2016, Vanderschraaf 2018).



Although appealing to a bargaining solution can give determinacy to a
social contract, it does so at the cost of appealing to a
controversial commensuration mechanism in the case of axiomatic
bargaining or of moving to process approaches that must ultimately
rely on the empirically contingent outcome of social and biological
evolution. Although the importance of bargaining in the social
contract has been moribund for some time, recent work is changing that
(see Alexander 2007, Thrasher 2014, Thoma 2015, Muldoon 2017, Moehler
2018, Vanderschraaf 2018, Bruner 2020).


### 3.3 Aggregation



We can distinguish bargaining from aggregation models of agreement.
Rather than seeking an outcome that (as, roughly, the
Kalai-Smorodinsky solution does) splits the difference between various
claims, we might seek to aggregate the individual rankings into an
overall social choice. Arrow's theorem and related problems with
social choice rules casts doubt on any claim that one specific way of
aggregating is uniquely rational: all have their shortcomings (Gaus
and Thrasher 2021, chap. 8). Harsanyi (1977, chaps. 1 and 2; 1982)
develops a contractual theory much like Rawls's using this
approach. In Harsanyi's approach, reasoning behind a veil of
ignorance in which people do not know their post-contract identities,
he supposes that rational contractors will assume it is equally
probable that they will be any specific person. Moreover, he argues
that contractors can agree on interpersonal utility comparisons, and
so they will opt for a contract that aggregates utility at the highest
average (see also Mueller 2003, chap. 26). This, of course, depends on
the supposition that there is a non-controversial metric that allows
us to aggregate the parties' utility functions. Binmore (2005)
follows Harsanyi and Amartya Sen (2009, Chap. 13) in arguing that
interpersonal comparisons can be made for the purposes of aggregation,
at least some of the time. John Broome (1995) develops something like
Harsanyi's approach that relies on making interpersonal
comparisons.



One of the problems with this approach, however, is that if the
interpersonal comparisons are incomplete they will not be able to
produce a complete social ordering. As Sen points out, this will lead
to a maximal set of alternatives where no alternative is dominated by
any other within the set but also where no particular alternative is
optimal (Sen, 1997). Instead of solving the aggregation problem, then,
interpersonal comparisons may only be able to reduce the set of
alternatives without being able to complete the ordering of
alternatives.



Because of the problems with indeterminacy, many theorists have
rejected the aggregation approach as being either unworkable or as
being incomplete in some way. Gaus (2011), for instance, uses an
evolutionary mechanism to generate determinacy in his aggregation
model. Brian Kogelmann (2017) argues, however, that under reasonable
assumptions about the preferences of the representative agents,
aggregation alone is sufficient to generate determinacy.


### 3.4 Equilibrium



There is a long tradition of thinking of the social contract as a kind
of equilibrium. Within this tradition, however, the tendency is to see
the social contract as some kind of equilibrium solution to a
prisoner's dilemma type situation (see Gauthier, 1986 and
Buchanan, 2000 [1975]). Brian Skyrms (1996, 2004) suggests a different
approach. Suppose that we have a contractual negotiation in which
there are two parties, ordering four possible "social
contracts":


1. both Alf and Betty hunt stag
2. both hunt hare;
3. Alf hunts stag, Betty hunts hare;
4. Alf hunts hare, Betty hunts stag.



Let 3 be the best outcome, and let 1 be the worst in each
person's ranking (Alf's ranking is first in each pair). We
thus get Figure 1





|  |  |
| --- | --- |
|  | ALF |
|  | *Hunt Stag* | *Hunt Hare* |
| BETTY | *Hunt Stag* | 3,3 | 2,1 |
| *Hunt Hare* | 1,2 | 2,2 |



Figure 1: A Stag Hunt




The Stag Hunt, Skyrms argues, "should be a focal point for
social contract theory" (2004, 4). The issue in the Stag Hunt is
not whether we fight or not, but whether we cooperate and gain, or
each go our separate ways. There are two Nash equilibria in this game:
both hunting stag and both hunting hare. Alf and Betty, should they
find themselves at one of these equilibria, will stick to it if each
consults only his or her own ranking of options. In a Nash
equilibrium, no individual has a reason to defect. Of course, the
contract in which they both hunt stag is a better contract: it is
Pareto superior to that in which they both hunt hare. The Hare
equilibrium is, however, risk superior in that it is a safer bet.
Skyrms argues that the theory of iterated games can show not simply
that our parties will arrive at a social contract, but how they can
come to arrive at the cooperative, mutually beneficial contract. If we
have a chance to play repeated games, Skyrms holds, we can learn from
Hume about the "shadow of the future": "I learn to
do a service to another, without bearing him any real kindness;
because I foresee, that he will return my service, in expectation of
another of the same kind, and in order to maintain the same
correspondence of good offices with me and with others" (Skyrms
2004, 5). Sugden, along different lines, also suggests that repeated
interactions, what he calls "experience" is essential to
the determination of which norms of social interaction actually hold
over time (1986).



The problem with equilibrium solutions is that, as in the stag hunt
game, many games have multiple equilibria. The problem then becomes
how to select one unique equilibrium from a set of possible ones. The
problem is compounded by the controversies over equilibrium refinement
concepts (see Harsanyi and Selten 1988). Many refinements have been
suggested but, as in bargaining theory, all are controversial to one
degree or another. One of the interesting developments in social
contract theory spurred by game theorists such as Skyrms and Binmore
is the appeal to evolutionary game theory as a way to solve the
commensuration and equilibrium selection problem (Vanderschraaf 2005).
What cannot be solved by appeal to reason (because there simply is no
determinate solution) may be solved by repeated interactions among
rational parties. The work of theorists such as Skyrms and Binmore
also blurs the line between justification and explanation. Their
analyses shed light both on the justificatory problem--what are
the characteristics of a cooperative social order that people freely
follow?--while also explaining how such orders may come
about.



The use of evolutionary game theory and evolutionary techniques is a
burgeoning and exciting area of contract theory. One of the many
questions that arise, however, is that of why, and if so under what
circumstances, we should endorse the output of evolutionary
procedures. Should one equilibrium be preferred to another merely
because it was the output of an evolutionary procedure? Surely we
would want reasons independent of history for reflectively endorsing
some equilibrium. This problem highlights the concern that social
contracts that are the product of evolutionary procedures will not
meet the publicity condition in the right kind of way. If the
publicity condition seems harder to meet, the evolutionary approach
provides a powerful and dynamic way to understand stability. Following
Maynard Smith (1982), we can see stability as being an evolutionarily
stable strategy equilibrium or an ESS. Basically, this is the idea
that an equilibrium in an evolutionary game where successful
strategies replicate at higher rates is stable if the equilibrium
composition of the population in terms of strategies is not
susceptible to invasion by a mutant strategy. An ESS is an application
of the Nash equilibrium concept to populations. A population is
evolutionarily stable when a mutant strategy is not a better response
to the population than the current mix of strategies in the
population. This gives a formal interpretation of Rawls's
conception of "inherent stability" and to Buchanan's
notion that social contracts should be able to withstand subversion by
a sub-population of knaves. This new conception of stability combined
with the dynamic nature of evolutionary games provides interesting new
ways for the social contract theorist to model the output of the
contract.


## 4. The Object of Agreement



Social contract theories differ about the object of the contract. In
the traditional contract theories of Hobbes and Locke, the contract
was about the terms of political association. In particular, the
problem was the grounds and limits of citizen's obligation to
obey the state. In his early formulation, Rawls's parties
deliberated about "common practices" (1958). In his later
statement of his view, Rawls took the object of agreement to be
principles of justice to regulate "the basic
structure:"



> 
> The basic structure is understood as the way in which the major social
> institutions fit together into one system, and how they assign
> fundamental rights and duties and shape the division of advantages
> that arises through social cooperation. Thus the political
> constitution, the legally enforced forms of property, and the
> organization of the economy, and the nature of the family, all belong
> to the basic structure. (Rawls 1996, 258)
> 



For Rawls, as for most contemporary contract theorists, the object of
agreement is not, at least directly, the grounds of political
obligation, but the principles of justice that regulate the basic
institutions of society. Freeman (2007a: 23), focuses on "the
social role of norms in public life." Buchanan is concerned with
justifying constitutional orders of social and political institutions
(2000 [1975]). Gauthier (1986), Scanlon (1998), Darwall (2006),
Southwood (2010), and Gaus (2011a) employ the contract device to
justify social moral norms or rules.



The level at which the object of the contract is described is apt to
affect the outcome of the agreement. "A striking feature of
Hobbes' view," Russell Hardin points out, "is that
it is a relative assessment of whole states of affairs. Life under one
form of government versus life under anarchy" (2003, 43). Hobbes
could plausibly argue that everyone would agree to the social contract
because "life under government" is, from the perspective
of everyone, better than "life under anarchy" (the
baseline condition). However, if a Hobbesian sought to divide the
contract up into, say, more fine-grained agreements about the various
functions of government, she is apt to find that agreement would not
be forthcoming on many functions. As we "zoom in" (Lister,
2010) on more fine-grained functions of government, the contract is
apt to become more limited. If the parties are simply considering
whether government is better than anarchy, they will opt for just
about any government (including, say, one that funds the arts); if
they are considering whether to have a government that funds the arts
or one that doesn't, it is easy to see how they may not agree on
the former. In a similar way, if the parties are deliberating about
entire moral codes, there may be wide agreement that all the moral
codes, overall, are in everyone's interests; if we "zoom
in" in specific rights and duties, we are apt to get a very
different answer.



In multi-level contract theories such as we find in the work of
Buchanan's (2000 [1975], Moehler's (2018), or Thrasher
(2020), each stage or level has its own unique object. In
Buchanan's theory, the object of the constitutional stage is a
system of constraints that will allow individuals to peacefully
co-exist, what Buchanan calls the "protective state" (2000
[1975]). On his view, the state of nature is characterized by both
predation and defense. One's ability to engage in productive
enterprises is decreased because of the need to defend the fruits of
those enterprises against those who would rely on predation rather
than production. We all have reason to contract, according to
Buchanan, in order to increase the overall ability of everyone to
produce by limiting the need for defense by constraining the ability
to engage in predation. Once the solution to the predation-production
conflict has been solved by the constitutional contract, members of
society also realize that if all contributed to the production of
various public goods, the productive possibility of society would be
similarly increased. This second, post-constitutional stage, involves
what Buchanan calls the "productive state." Each stage is
logically distinct though there are causal relationships between
changes made at one stage and the efficacy and stability of the
solution at the later stage. The distinction between the two stages is
analogous to the traditional distinction between commutative and
distributive justice. Although these two are often bound up together
in contemporary contract theory, one of Buchanan's novel
contributions is to suggest that there are theoretical gains to
separating these distinct objects of agreement.



Moehler's (2017) "multi-level" contract has several
aspects. First, drawing on their pluralistic moral commitments
individuals seek to agree on social-moral rules that all can endorse
as a common morality. This object of this agreement is similar to that
of Darwall's, Gaus's and Southwood's models. The
second-level agreement is appropriate to circumstances in which
pluralism is so deep and wide no common morality can be forged. Rather
than moral agents, the parties are reconceived as instrumentally
rational prudential agents: the object of this second level is rules
of cooperation that advance the interests of all when a deeper moral
basis cannot be uncovered.


## 5. What Does the Contract Show?



Suppose, then, that we have arrived at some social contract. Depending
on the initial justificatory problem, it will yield an outcome
*R* (principles, rules, etc. that have some normative property
*L*--such as justice, morality, authority, obligation,
legitimacy, mutual benefit, and so on. But, supposing that the
contract has generated a principle, rule, etc. with the relevant
normative property, precisely what is shown by the fact that this
principle or rule was generated through the contractual device?



Throughout we have been distinguishing the justificatory problem from
the deliberative model. Now the strongest that could be claimed for a
contractual argument is that the outcome of the deliberative model is
*constitutive* of both the correct solution of the
justificatory problem and the conclusion that "*R* has
*L*." On this "constructivist" reading of the
outcome of the deliberative model, there is no independent and
determinate external justification that *R* has *L*,
which the contractual device is intended to approximate, but, rather,
that *R* is the outcome of the deliberative model is the
truth-maker for "*R* has *L*".



Rawls, along with Gauthier and Buchanan, was sometimes attracted to
such a reading. Rawls (1999, 104) describes the argument from the
original position as invoking "pure procedural
justice"--the deliberative situation is so set up that
*whatever* principles it generates are, by the fact of their
generation, just. But, his considered position is that the outcome of
the deliberative model is *indicative* (not constitutive) of
the correct solution to "the question of justification"
(1999, 16).



We might say that the deliberative model is *evidence* of the
proper answer to the question of justification. However, this is still
consistent with Rawls's "constructivism" because the
answer to the justificatory problem is constitutive of
*R*'s having *L*. So we might say that
Rawls's two principles are just--simply because they are in
reflective equilibrium with the considered judgments of you and me and
that they would be chosen in the original position is indicative of
this.



The weakest interpretation of the contract is that the contractual
result is simply *indicative* of the correct answer to the
justificatory problem, which itself is simply indicative of the fact
that *R* has *L*. One could be a "realist,"
maintaining that whether *R* has *L* is a fact that
holds whether or not the contract device generates *R* has
*L*, and independently of whether the correct answer to our
justificatory problem (i.e., what we can justify to each other) is
that *R* has *L*. There is still logical space for a
type of contractualism here, but an indicative contractualism of this
sort would not be a form of "constructivism." Some, for
example, have argued that Scanlon's theory is actually based on
a sort of natural rights theory, where these rights are prior to the
contract (Mack 2007). Even if this is correct, Scanlon can be a sort
of social contract theorist. The diversity of possible approaches
within social contract theory indicates the variety of different uses
to which social contract theory can be applied.


## 6. Conclusion: The Social Contract and Justification



The social contract theories of Hobbes, Locke, and Rousseau all
stressed that the justification of the state depends on showing that
everyone would, in some way, consent to it. By relying on consent,
social contract theory seemed to suppose a voluntarist conception of
political justice and obligation: what counts as "justice"
of "obligation" depends on what people agree
to--whatever that might be. Only in Kant (1797) does it become
clear that consent is not fundamental to a social contract view: we
have a duty to agree to act according to the idea of the
"original contract." Rawls's revival of social
contract theory in *A Theory of Justice* did not base
obligations on consent, though the apparatus of an "original
agreement" persisted as a way to help solve the problem of
justification. As the question of public justification takes center
stage, it becomes clear that posing the problem of justification in
terms of a deliberative or a bargaining problem is a heuristic: the
real issue is "the problem of justification"--what
principles can be justified to all reasonable citizens or persons.