## 1. Fundamental Elements of Contractarianism



The social contract has two fundamental elements: a characterization
of the initial situation, called variously the "state of
nature" by the modern political philosophers, the
"original position" by Rawls (1971, 17-22,
118-193), or the "initial bargaining position" by
Gauthier (1986, 14-16, 131-134, passim), and a
characterization of the parties to the contract, particularly in terms
of their rationality and motivation to come to agreement. The initial
situation posits what in bargaining theory is called the "no
agreement position," the situation to which the individuals
return in case of failure to make an agreement or contract. This
situation may be more or less hostile, and more or less social,
depending on how the theorist characterizes human life in the absence
of rules of morality or justice. But crucial to all contractarian
theories, there is some scarcity or motivation for competition in the
initial situation and there is some potential for gains from social
interaction and cooperation. 



In contemporary normative contractarian theories, that is, theories
that attempt to ground the legitimacy of government or theories that
claim to derive a moral ought, the initial position represents the
starting point for a fair, impartial agreement. While contractualists
justify the requirement of a fair, impartial agreement by reasons
external to the contract, contractarians hold that the success of the
contract in securing cooperative interaction itself requires that the
starting point and procedures be fair and impartial.



Some of the more recent literature focuses on how contractarian
theories can ensure the fairness and impartiality of the initial
bargaining situation without appealing to any external, independent
moral norms as the contractualist does. For the contractarian, all
moral norms are supposed to be the result of agreement by rational
agents, but if the contractarian has to appeal to prior moral norms in
order to secure agreement then it's not clear what sort of work the
agreement is actually doing in establishing the content of the moral
norms. At the same time, if there are no constraints at all over the
initial situation then the outcome agreed to may fail to be a moral
outcome, and may instead be an outcome according to the principle, as
Rawls puts it, "to each according to his threat
advantage" (1971, 141). Two potential strategies are to argue that
assumptions designed to ensure the fairness and impartiality of the
initial situation, such as the assumption that the contractors are
symmetrically situated, either follow as a condition of rationality or
are justified on strategic grounds. The idea that certain assumptions
like symmetry follow as implications from the exercise of rationality
has attracted recent criticism on grounds that such assumptions
represent substantive constraints theoretically inaccessible to
contractarians (Thrasher 2014). Others have attempted to defend the
presence of such assumptions in contractarian theory (Thoma
2015).



Some points of controversy among contractarians concern the role of
the initial situation in the theory: is it to be considered an actual
historical situation, a possible historical moment, or is the contract
situation completely hypothetical? David Hume (1987/1777, 470-1)
was the first to raise the decisive objection to any normative moral
or political theory based on a historical contract: the consent of
one's ancestors do not bind oneself. Contemporary political
philosophers have raised similar concerns about a hypothetical
contract: insofar as the agreement is *hypothetical* then it
cannot be said to represent agreement at all (Dworkin 1975). In
response to these sorts of objections, some contractarians defend the
hypothetical contract on heuristic grounds by insisting that the point
of the contract device is not to directly bind the contractors but
rather to provide a kind of thought experiment by which to discover
the requirements of practical rationality (Gauthier 1986, ch. VII).
That is, they argue that if one is rational, and among rational others
in circumstances in which agreement is both possible and beneficial,
then rationality requires that one abide by the terms of the contract.
While mainstream contractarian theories are hypothetical contract
theories, an interesting and powerfully subversive use of
contractarianism (Mills 1997; Pateman 1989; Pateman & Mills
2007--see section on Subversion of Contractarianism below) reads
the contract situation as historical agreements to erect and maintain
white supremacy and patriarchy or male dominance. These latter
contractarian theories are not justifications of the status quo, of
course, but rather explanations and condemnations, and therefore do
not face Hume's objection. Other questions that divide contemporary
contractarians include: What are the ideal conditions and who are the
ideal contractors that will make obligatory the outcomes of the
contract for actual persons? What is the content of the hypothetical
agreement?



The second element of a contractarian theory characterizes the
potential contractors. There are two subparts to this: first,
contractors have minimal other-directed desires or preferences, and
second, contractors have a capacity for rational interaction with
others. Contractarian (as opposed to contractualist) theories embrace
a high standard for motivating making (and keeping) agreements. They
avoid assuming that persons have preferences for moral behavior as
such in order to ground rules of morality or justice in rational
self-interest. Since persons' interests do not necessarily include the
well-being of others, the main challenge for contractarianism is to
show that even without such other-directed preferences, it would be
rational to be moral. Such self-directed preferences are called
"non-tuistic" (Gauthier 1986, 87). However, there are
reasons to think that narrowing the preferences of contractors to
include only non-tuistic preferences is neither necessary nor helpful
in grounding morality. One reason is because such a restriction of
preferences means that actual persons will not be willing to comply
with the bargain that is made, under the assumption that they do not
have such narrowly construed preferences (Hubin 1991). On the other
hand, allowing positive tuistic preferences to play a role in
bargaining on morality and justice may create the possibility for
individuals to be exploited for their fellow feelings (Dimock 1999).
This is especially a problem for women, as Dimock points out, since in
most cultures women are trained from childhood by sexist norms and
gender roles to prefer the well-being of others to their own. Negative
tuistic preferences pose a different challenge as a type of moral
skepticism for either theorists who would exclude them or those who
would include them in a contractarian theory (Superson 2009). The
former group include Rawls and Gauthier, who have argued that negative
tuistic preferences (envy, jealousy, spite, vengeance) make
cooperation for mutual advantage impossible and therefore are
irrational (Rawls 1971, 142-150, 530-534; Gauthier 1986,
311, 329). But this response significantly narrows the scope of
application of the theory, since such emotions are common. The latter
group faces the challenge of showing how mutual advantage overcomes
these negative, other-directed emotions.



Second, persons are presumed to be instrumentally rational and so
capable of understanding how the satisfaction of their desires can be
helped by cooperative social interaction. Contractarians characterize
practical rationality instrumentally, subjectively, and
preferentially. Acting rationally entails maximizing satisfaction of
one's own subjective preferences. Contractarians rely on the crucial
fact about humans that we are able to cooperate to produce more than
each working alone, thus making it rational to cooperate under at
least some terms. Self-interest and rationality imply a desire to
cooperate provided that cooperators can do so without sacrificing
their self-interest. The desire to benefit from cooperation in turn
makes persons rationally concerned about their reputations for
adhering to the moral norms that make cooperation possible and
rational. (See
 feminist perspectives on the self
 (Section 1, Critique) for a critique of this conception of the
rational person.)



Contractarians seek to show that without rules of justice for
cooperation, persons are worse off by their own lights. Hence it is
rational to adopt some rules for morality and justice. These two
aspects of the contractarian individual--self-interest and the
ability to benefit from interaction with others--along with the
conditions of moderate scarcity imply what Rawls following Hume called
the "circumstances of justice": the conditions under which
rules for justice could be both possible and necessary (1971,
109-112). Justice, and a social contract, is only possible where
there is some possibility of benefit to each individual from
cooperation.



Contractarian social contract theories take individuals to be the best
judges of their interests and the means to satisfy their desires. For
this reason, there is a close connection between liberalism and
contractarianism. However, that is not to say that all contractarian
thought is liberal. Hobbes, for example, argued in favor of what Jean
Hampton has called the "alienation contract" (1986, 3,
103, 256-265), that is, a contract on the part of a people to
alienate their rights to adjudicate their own disputes and
self-defense to a sovereign, on the grounds that that was the only way
to keep the peace given the nature of the alternative, which he
famously characterized as life that would be "solitary, poore,
nasty, brutish, and short." Thus, given a bad enough initial
situation, contractarianism may lead to the legitimation of
totalitarianism. Another point of criticism that arises from the
characterization of the parties to the contract is that they must be
able to contribute to the social product of interaction, or at least
to threaten to destabilize it. This is because each individual has to
be able to benefit from the inclusion of all those included. But this
threatens to leave many, such as the severely disabled, the global
poor, and animals outside the realm of justice, an implication that
some find completely unacceptable (Kittay 1999; Nussbaum 2006).



Social contract theories also require some rules to guide the
formation of agreement. Since they are prior to the contract, there
must be some source of prior moral norms, whether natural, rational,
or conventional. The first rule that is normally prescribed is that
there must be no force or fraud in the making of the agreement. No one
is to be "coerced" into agreement by the threat of
physical violence. The reasoning for this is quite straightforwardly
prudential: if one is allowed to use violence, then there is no real
difference between the "contract" arrived at and the state
of nature for the threatened party, and hence no security in the
agreement. However, there is a fine line between being coerced by the
threat of violence into giving up one's rights and being convinced by
the threat of penury to make an unfavorable agreement. For this reason
contractarians like Gauthier are able to argue for a fair and
impartial starting point for bargaining that will lead to secure and
stable agreements. The second rule of contract is that each individual
who is a legitimate party to the contract must agree to the rules of
justice, which are the outcomes of the contract.


## 2. The Metaphor of Contract



The metaphor of the social contract requires some interpretation in
order to apply it to the situation of morality or politics. The
interpretation can be specified by determining answers to three
questions. First, what is the agreement on? Possible answers include
the principles of justice (Rousseau, Rawls), the design of the basic
social institutions (Rawls), the commitment to give up to a sovereign
government (some or all of) one's rights (Hobbes, Locke), the adoption
of a disposition to be (conventionally) moral (Gauthier, Hampton). The
second question is how the agreement is to be thought of: as a
hypothetical agreement? An actual historical agreement? An implicit
historical situation? The third question is whether the contract
device is to be used as justification or explanation. As discussed
above, normative contractarianism uses the contract device primarily
as justification, but it may be that Hobbes and Locke thought that
there was an explanatory element to the contract device. As will be
discussed below (Subversive Contractarianism), an important
contemporary contractarianism uses an implicit contract to explain the
origin of oppression. 


## 3. Answering the Moral Skeptic



A brief sketch of the most complete and influential contemporary
contractarian theory, David Gauthier's, is in
order. Gauthier's project in *Morals By Agreement* is to
employ a contractarian approach to grounding morality in rationality
in order to defeat the moral skeptic. (However, Anita Superson (2009)
points out that Gauthier attempts to answer only the skeptic who asks
"why should I be moral?" but leaves both the motive
skeptic, who argues that it is enough to act morally but need not be
motivated by morality, and the amoralist, who denies that there is any
such thing as morality, that is, that there are true moral
statements.) It is generally assumed that humans can have no perfect
natural harmony of interests (otherwise morality would be largely
superfluous), and that there is much for each individual to gain
through cooperation. However, moral constraint on the pursuit of
individual self-interest is required because cooperative activities
almost inevitably lead to a prisoner's dilemma: a situation in
which the best individual outcomes can be had by those who cheat on
the agreement while the others keep their part of the bargain. This
leads to the socially and individually sub-optimal outcome wherein
each can expect to be cheated by the other. But by disposing
themselves to act according to the requirements of morality whenever
others are also so disposed, they can gain each others' trust
and cooperate successfully.




The contractarian element of the theory comes in the derivation of the
moral norms. The compliance problem--the problem of justifying
rational compliance with the norms that have been accepted--must
drive the justification of the initial situation and the conduct of
the contracting situation. It is helpful to think of the contract
situation as a bargain, in which each party is trying to negotiate the
moral rules that will allow them to realize optimal utility, and this
has led philosophers to apply a number of bargaining solutions to the
initial contract situation. Gauthier's solution is the "minimax
relative concession" (1986, ch. V). The idea of minimax relative
concession is that each bargainer will be most concerned with the
concessions that she makes from her ideal outcome relative to the
concessions that others make. If she sees her concessions as
reasonable relative to the others, considering that she wants to
ensure as much for herself as she can while securing agreement (and
thereby avoiding the zero-point: no share of the cooperative surplus)
and subsequent compliance from the others, then she will agree to it.
What would then be the reasonable outcome? The reasonable outcome,
according to this view, is the outcome that minimizes the maximum
relative concessions of each party to the bargain (Gauthier 1986, ch.
V).



In a more recent article and in contrast to his previous view,
Gauthier rejects the idea that the problem of grounding morality in
rationality should be framed as a bargaining problem at all
(2013). When the problem is framed in this way, the solution depends
on assuming that the parties participating in the contract
negotiations are all rational maximizers. Under his revised view,
however, he neither sees the problem as a bargaining problem nor the
parties as (constrained) rational maximizers; instead, he conceives of
them as Pareto-optimizers. As Pareto-optimizers or rational
cooperators, the parties seek to produce a Pareto-optimal outcome,
which is an outcome where it is not possible to increase the payoff to
one party without decreasing the payoff to another party. If it is
possible to move to another outcome to increase the payoff accruing to
one party without decreasing the payoff to another party, then the
current outcome is not Pareto-optimal. It is important to note that
this change is not meant to attach additional motives to the parties
in addition to the motive of self-interest. Rational cooperation,
according to Gauthier, provides an alternative conception of what
constitutes rational action. Rational cooperators do not want to leave
the additional benefits of cooperation on the table. How do these
changes solve the original problem of grounding morality in (this
conception of) rationality? The answer is to calculate the payoffs for
each outcome in terms of cooperative benefits or the absence of
cooperative benefits. For example, the cooperative minimum is a payoff
which provides one party with none of benefits generated through
cooperation. In contrast, the cooperative maximum is the payoff which
affords a single party all of the possible benefits generated through
cooperation. The potential cooperative gain is the difference between
these two. The actual cooperative gain is then the difference between
its payoff and the party's cooperative minimum. Next, the actual
cooperative gain is then to be divided by the party's potential
cooperative gain. This generates the party's proportionate gain,
which shows the actual gain as a proportion of the party's
potential gain from cooperation. Each outcome is then represented as a
proportionate gain from cooperation. Finally, the goal is to select
that outcome generating the maximum minimum proportionate gain to any
single party. This principle, which Gauthier calls maximin
proportionate gain, selects a Pareto-optimal outcome that would be
rational for parties to select.




Equally important to the solution as the procedure is the starting
point from which the parties begin. For some contractarians (like
Gauthier) there is no veil of ignorance--each party to the
contract is fully informed of their personal attributes and holdings.
However, without the veil of ignorance, contractors will be aware of
the differences in bargaining power that could potentially affect the
outcome of the bargain. It is important, then, that the initial
position must have been arrived at non-coercively if compliance to the
agreement is to be secured. A form of the "Lockean
proviso" (modeled after Locke's description of the initial
situation of his social contract): that one cannot have bettered
himself by worsening others, may turn out to be beneficial in cases
without a veil of ignorance. In sum, the moral norms that rational
contractors will adopt (and comply with) are those norms that would be
reached by the contractors beginning from a position each has attained
through her own actions which have not worsened anyone else, and
adopting as their principle for agreement the rule of minimax relative
concession (Gauthier 1986, ch. VII).



On one line of thought, contractarianism produces liberal individuals
who seem well suited to join the kind of society that Rawls envisioned
(Gauthier 1986, ch. XI). On another line, the Hobbesian contractarian
argument leads towards the sparse government of libertarianism
(Narveson 1988). The controversy here turns on the primary motivation
for individuals to make agreements and cooperate. As we said before,
there are two such motivations for the Hobbesian contractarian: fear
of the depredations of others and benefits from cooperation with
others. Libertarianism results when the first of these is primary,
whereas when the second is primary, the kind of reciprocity and
supportive government that will be discussed in the final section
becomes possible.


## 4. Critiques of Normative Contractarianism



Many critiques have been leveled against particular contractarian
theories and against contractarianism as a framework for normative
thought about justice or morality. (See the entry on
 contemporary approaches to the social contract.)
 Jean Hampton criticized Hobbes in her book *Hobbes and the Social
Contract Tradition*, in a way that has direct relevance to
contemporary contractarianism. Hampton argues that the
characterization of individuals in the state of nature leads to a
dilemma. Hobbes' state of nature as a potential war of all against all
can be generated either as a result of passions (greed and fear, in
particular) or rationality (prisoner's dilemma reasoning, in which the
rational players each choose to renege on agreements made with each
other). But if the passions account is correct, then contractors will
still be motivated by these passions after the social contract is
drawn up, and so will fail to comply with it (Hampton 1986). And if
the rationality account is correct, then rational actors will not
comply with the social contract any more than they will cooperate with
each other before it is made.



This critique has an analog for theories (such as Gauthier's) that
claim that without the contract individuals will be stuck in some
social sub-optimal situation that is bad enough to motivate them to
make concessions to each other for some agreement, yet the reason for
their inability to cooperate without the contract cannot continue to
operate after the contract is made. A potential solution to this
problem is to argue that individuals will choose to dispose themselves
to be constrained (self-interest) maximizers rather than
straightforward (self-interest) maximizers, that is, to retrain
themselves not to think first of their self-interest but rather to
dispose themselves to keep their agreements, provided that they find
themselves in an environment of like-minded individuals (Gauthier
1986, 160-166). But this solution has been found dubitable by
many commentators (see Vallentyne 1991).



Hampton also objects to the contemporary contractarian assumption that
interaction is merely instrumentally valuable. She argues that if
interaction were only valuable for the fruits of cooperation that it
bears for self-interested cooperators, then it would be unlikely that
those cooperators could successfully solve the compliance problem. In
short, they are likely not to be able to motivate morality in
themselves without some natural inclination to morality.
Interestingly, Hampton agrees with Gauthier that contractarianism is
right to require any moral or political norms to appeal to individuals'
self-interest as a limitation on self-sacrifice or exploitation of any
individual.



Two further critiques can be raised against contractarianism
(Southwood 2010). According to the normativity objection,
contractarian morality is not sufficiently other-regarding because it
motivates morality by appeal to one's self-interest rather than any
concern of others. Because of this, the theory gives one no reason to
feel guilt or remorse for wrongdoing, but rather, at most,
self-directed anger or disappointment at acting irrationally.
Southwood's objection can be seen as one way of filling out Superson's
claim, mentioned above, that Gauthier's theory cannot respond to the
motive skeptic. This objection overlooks the fact that some appeal to
others' concerns is built into both the Lockean Proviso and the
bargaining theory from which the content of the moral norms are
derived. Furthermore, Kantian moral theory would seem to be subject to
the same objection insofar as it appeals to autonomous rationality as
the motive for acting morally. Gauthier can be seen as providing a
response to the objection in the final chapter of *Morals by
Agreement*, where he describes the "liberal
individual," whose moral psychology is shaped by living the
moral life that mutual advantage contractarianism prescribes. 



According to the impartiality objection, all human persons are owed
certain duties regardless of their powers or abilities, and because it
relies on an instrumental and subjective conception of practical
reason, contractarianism cannot explain how this would be
so. Contractarianism, on the contrary, holds it to be irrational to
treat truly powerless persons equally, since it is not mutually
advantageous to do so. This problem, which is similar to the exclusion
problem discussed above and in section 6 below, is a serious problem.
Gauthier's Lockean Proviso was meant to rule out taking historical
patterns of dominance into account, but even if all such dominance
relations were eliminated and bargaining were conditioned on
undominated assets, the inequality in natural talents and abilities
would reintroduce the possibility of dominance.



Contractarianism has also been criticized on racial grounds (Williams
1991). Contracts require independent agents who are able to make and
carry out promises without the aid of others. Historically, while
white men have been treated as these pure wills of contract theory,
Blacks and women have been treated as anti-will: dependent and
irrational. Both ideals are false; whole people, she says, are
dependent on other whole people. But by defining some as contractors
and others as incapable of contract, whole classes of people can be
excluded from the realm of justice. This point has been explored by
other critics of contractarianism, first by Allen Buchanan (1993) and
more recently by Eva Kittay (1999), who points out that not only are
dependents such as children and disabled people left out of
consideration by contractarian theories, but their caretakers' needs
and interests will tend to be underestimated in the contract, as
well.


## 5. Subversive Contractarianism



A descriptive use to which contractarianism has been put is to exploit
the exclusionary, in-group/out-group nature of the contractarian
project to illuminate the phenomenon of oppression. Carole Pateman's
*The Sexual Contract* (1989) uses contractarian theory to argue
that there has been an implicit contract among men to enforce
patriarchy. She calls her approach a "conjectural
history," which she uses both to illuminate the actual history
of patriarchal oppression of women and the ideology of social contract
theory. Similarly, Charles Mills argues in *The Racial
Contract* (1997) that whites have had an actual, historical,
sometimes explicit, though often only implicit, contract to enforce
white supremacy. The arguments are similar in their contractarian
outlines, though they differ in the historical and factual details.
According to both philosophers' theories, there are moral, political,
and epistemological terms of the contract, and its effect has been to
allow one group of persons effectively to dominate, subordinate, and
exploit another group. The moral terms require the dominant group to
evaluate the lives of their group more highly than those of the
subordinated, the political to deprive the subordinate group of
effective political power, and the epistemological terms require the
members of the dominant group to see themselves as intellectually
superior to the dominated. The social contract then can be seen as a
justification by the parties to the contract of their interaction, and
of their exploitation of those who are not parties to the contract,
but only if the fundamental division of in-group and out-group is
accepted. If the racial and sexual contracts were to be shown to be
rational, they would constitute prima facie critiques of normative
contractarianism, since they would then seem to justify racism and
sexism. Pateman and Mills have more recently teamed up in *Contract
and Domination* (2007) to explore their similarities and ways in which
they diverge. Pateman extends her critique of the ideology of contract
to the case of colonial appropriation of native peoples' lands with
what she calls the "settler contract." Mills also extends
his analysis both in scope to include gender and class, and to give a
normative application of the descriptive contract to the issue of
reparations for slavery. He calls this more general contract the
"domination contract." While Pateman holds that
contractarianism essentially permits domination, Mills holds that
contract theory can be salvaged by beginning with a more realistic
non-ideal starting point and asking how existing injustice ought,
rationally be eliminated. However, his positive theory is
contractualist rather than contractarian, as it begins with the
premise of moral equality.



Several of the critiques surveyed above, then, center on the
questions: who is allowed to be a party to the contract, and how are
those who are excluded from the contract to be treated? On the
normative contractarian view, it is only rational to include all of
those who can both benefit and reciprocate benefits to others.
Normative contractarianism, then, on the assumption that non-whites
and women can both benefit and reciprocate benefits to others, shows
the sexual and racial contracts to be fundamentally irrational.
Gauthier, in fact, explicitly argued that his contractarianism aids
the feminist project of ending exploitative intimate relationships.
Contractarian morality disapproves of relationships that are not
mutually advantageous without assuming ties of affection. He writes,
"sociality ... becomes a source of exploitation if it
induces persons to acquiesce in institutions and practices that but
for their fellow-feelings would be costly to them" (1984, 11).
This theme is taken up in some defenses of feminist contractarianism
(Hampton 1993). In the debate over contractarianism in feminist
thought, there is a concern that contractualists beg the question of
intrinsic value, and it is thought, in contrast, that (Hobbesian)
contractarianism can underwrite feminist claims about the exploitative
nature of caring relationships without the intrinsic value assumption
(Sample 2002). Lastly, in the hands of some philosophers social
contract theory becomes a device for combating oppression, especially
gender oppression, by uncovering adaptive preferences formed under
conditions of oppression (Walsh 2015).


## 6. Disability, Animals, Reciprocity, and Trust



Disability rights activists, however, would still seem to have a
serious complaint to lodge against normative contractarianism, since
it is surely the case that there are persons who cannot reciprocate
benefits to others. Such persons would be, on the normative
contractarian view, beyond the scope of the rules of justice. Recent
literature on disability argues that, to the contrary,
contractarianism can be inclusive of the disabled. For example, it may
be argued that in fact most disabled persons and all caregivers would
be included in the bargaining group for clear strategic reasons
(Becker 2005). The basic contractarian insight that cooperation is
mutually advantageous implies that whenever someone can be included as
a contributing cooperator there are gains to be realized for all. Many
disabled people are either already capable of contributing or could be
so with accommodation or rehabilitation, and thus it is to the
advantage of society to provide accommodations or rehabilitation at
some level, requiring reciprocal contributions from those thus
benefited. For those disabled persons who cannot be rehabilitated,
contractarianism provides a different solution, namely a
"mutually advantageous" social insurance scheme that
offers a dignified standard of care for anyone who needs it (Becker
2005). One might object that the currently healthy contractors would
not see the need to pay premiums as high as the already disabled,
since they have a lower probability of needing the care. For this
insurance scheme to work (and to avoid adverse selection problems),
everyone would need to agree to equal premiums without prior knowledge
of their condition. But it is hard to see how a contractarian can
justify this agreement. A contractualist, on the other hand, could
argue that such an agreement could not be reasonably rejected. This
line of argument would have to show that a similar argument could not
be made for any form of bad luck, on pain of this view devolving into
egalitarianism.



Such a view thus raises the objection that there is a level of need
for rehabilitation or accommodation that goes beyond any possible
future expected contribution for a given disabled person. And disabled
persons are not well placed to hold out a threat to destabilize
society, so the motivation to contract with them must be the expected
benefit. Relying on only ideas of mutual advantage and reciprocity
would continue to leave these people--the
"outliers"--outside the contract, languishing below
an acceptable level of functioning which they could, given another
moral theory, rightfully claim. According to some, contracting need
not be essentially adversarial (Francis & Silvers 2005). Since the
benefits of mutual agreement are best achieved by "promoting
stable compliance with mutual expectations" (Francis &
Silvers 2005, 60), the essential element of contract is the
development of trust, and the deeper and more widespread the trust,
the lower the enforcement costs to contracting. Granting the
importance of trust development, then, the disabled are as capable of
contributing to this climate, perhaps more so because of their greater
vulnerability, as the able-bodied. By this they mean that disabled
persons who rely on others for care can decide to put aside fears of
betrayal or neglect and remain positive and forward looking, and
thereby bring about a positive affective climate in themselves and
their caregivers. This affective work toward trust building becomes
their contribution to the social good. Thus by focusing on the
motivation of cooperation for mutual advantage rather than fear of the
depredations of others, a more inclusive and positive contractarian
political theory comes into view. This view depends on the assumption
(similar to one made by Gauthier) that our moral psychology is such
that, once we develop our disposition to cooperate, we lose the
disposition to cheat on agreements we have made or harm others to
satisfy our immediate self interest. As mentioned earlier, this
assumption has often been questioned by critics of
contractarianism.



The case for including animals within the scope of the rules of
justice produced by the contract is more difficult to make because,
unlike the disabled who may only require and depend on appropriate
accommodations in order to reciprocate, animals may be considered
incapable of reciprocating benefits to others and are also incapable
of rational interaction. If contractarianism is at all able to account
for the moral standing of animals, then it has to do so in a more
indirect way than in the case of the disabled. It may be possible to
ground the moral standing of animals as part of a contract agreed to
by other contractors who are capable of rational interaction (Cohen
2007, 2009). Suppose that Bob agrees to form a contract with Jane only
on the condition that Jane also attributes direct moral standing to
Bob's pet dog, Rosko. As a result of the contract between Bob and
Jane, Rosko gains intrinsic moral standing that imposes correlative
moral duties on Jane. If Jane were to harm Rosko in some way, she
would not only violate a duty to Rosko's owner, Bob, but she would
also violate a duty that she has *to* Rosko who possesses
intrinsic moral standing of his own. In this way bilateral agreements
between contractors could potentially extend the scope of the rules of
justice to apply to beings both incapable of rational interaction and
arguably incapable of reciprocating benefits to others.



Deriving the moral standing of beings from agreements reached by other
contractors not only assumes that contractors have tuistic
preferences, an assumption rejected by many contractarians, but it
also potentially makes the moral standing of those beings contingent
on the nature of the tuistic preferences and interests held by others
(Tanner 2013). Contractors may agree to protect only certain kinds of
animals, and they may make agreements to protect animals only when
doing so does not conflict with their own, more narrowly construed
interests. As a result, the status of those who cannot participate in
the initial situation for various reasons, such as the disabled and
animals, remains a contentious issue in contractarian thought.