CONTEMPORARY CONTRACTARIANISM AND ITS OFFSHOOTS

The consensus view, in which the weak proviso is fulfi lled but stronger versions remain unfulfi lled, appears even in The Stanford Encyclopedia of Philosophy’s entry on “Contemporary Approaches to the Social Con-tract.” The authors, Fred D’Agostino, Gerald Gaus, and John Thrasher (2011), drawing on Russell Hardin, write, “If the parties are simply considering whether government is better than anarchy, they will opt for just about any government, because ‘life under government’ is, from the perspective of everyone, better than ‘life under anarchy.’” That is, the weak proviso is fulfi lled, but why should it be enough? Why not demand the best out of all possible governments rather than just any government that beats anarchy? Hardin (2003: 43) criticizes Hobbes’s answer, writing, “Hobbes supposes that the transition from an extant

government to a new form of government would be too costly to justify any improvement it might bring. . . . Here, an unduly confi dent social-scientifi c claim secures commitment to an actual government.” Thus, although they reject the social-scientifi c claim that it is too costly to move from one government to another, these four philosophers do not question the social-scientifi c claim that government really is better than anarchy—“from the perspective of everyone.” That is the pattern we see over and over again: some say the weak proviso is enough; some demand a stronger proviso; but few question the claim that the weak proviso is fulfi lled.

James Buchanan (1975: 8) draws on Crawfurd’s language in a clearly empirical assertion of the Hobbesian hypothesis, writing, “it is essen-tial to examine carefully the properties of anarchy as an organizational system in the absence of the idealized individual behavior that is charac-teristic in the utopias of anarchy’s romantic advocates.” But his analysis of the stability of anarchic equilibrium is purely a priori. He makes no effort to show that his model refl ects the reality of statelessness any bet-ter than those of “anarchy’s romantic advocates” (1975: 5–9).

John Zvesper (1984; 1993), who is strictly neither a Hobbesian nor a Lockean, accepts the fulfi llment of the Lockean proviso as obvious, writing:

The most promising way to refute Locke’s account of the con-straints on consent is not to argue that it is implausible because it results in material injustice (unless one is prepared to argue that the poorest workers in developed economies are not mate-rially wealthier than the richest primitives). (Zvesper 1984: 60) This quote takes for granted that the poorest workers are materially wealthier than the richest “primitives” and assumes no one would be prepared to argue against that hypothesis, but Zvesper presents no supporting evidence, apparently assuming even his opponents share this prejudice.

David Gauthier (1991: 25, 208) uses contract theory primarily to justify morality, but he also uses it to justify both state sovereignty and property rights. He is not interested in whether people actually agree to the social contract or even if they would under idealized circum-stances, but his theory is contractarian in the sense that the state, the moral system, and/or the property rights regime must benefi t individu-als enough that they could agree. Thus, the agreement to Gauthier’s

contract is hypothetical, but the conditions that motivate the agree-ment are empirical, and the condition that motivates agreeagree-ment is the supposed fulfi llment of the Lockean proviso.

Gauthier affi rms the Hobbesian hypothesis, writing:

Rousseau . . . ignores the positive and progressive benefi ts that even an unequal society can effect. Thus he represents the situation of the poor as being actually worsened as a consequence of the new power relationships that society institutes. But . . . Each person may reasonably expect to do better as a consequence of the benefi ts of the market and co-operative interaction, even if these benefi ts are not fairly or equitably distributed. (Gauthier 1986: 320)

In the fi rst part of this passage Gauthier indicates that claims about the state of nature can be empirically right or wrong and that Rousseau was empirically wrong to suppose any people in his state were worse off. The second part states that people are better off even in societ-ies that unfairly or inequitably distribute their benefi ts. The passage seems to be a straightforward empirical affi rmation of the Hobbesian hypothesis as a claim about people in real stateless societies. Societies do institute “new power relationships” and “the market.” There was a time before the relevant power relationships came into being. If it were a claim about a fi ctional statelessness and/or marketlessness, how could Rousseau be wrong about it? Certainly Rousseau has the same license to write fi ction as anyone else?

Gauthier’s (1969: 164) confi dence in this statement is closely related to his statement about how bad the state of nature must be:

“The question is not whether civil society is unpleasant, but whether it is less pleasant than some possible alternative.” For Gauthier, that alternative is a society without property rights or sovereign govern-ment. He provides no evidence of what life in such societies is actually like. He assumes readers will accept his premise without demanding any such evidence. That is, he assumes they share the prejudice that allowed Hobbes to assert the hypothesis 350 years ago.

Jean Hampton (1988: 4, 256) attempts to show how social con-tract theory can justify the state without any literal concon-tract, using an agreement that is “hypothetical and yet justifi cational.” As in Gauthier, the agreement is hypothetical, but the conditions that make it justifi cational are real, and one of those conditions is the Hobbesian hypothesis, which Hampton affi rms for very Hobbesian reasons:

Primarily because too many of them reason badly, human beings are unable to cooperate in a state of nature, making it a state of virtual total war but they are not so contentious that if they were in a commonwealth they would be unable to agree on how well any ruler who might be governing them was doing . . . A ruler with great power is necessary to end the warfare in the state of nature. (Hampton 1988: 247)

She adds, “one of the most important sources of chaos and violence in the state of nature is the failure of people in that state to keep con-tractual promises” (Hampton 1988: 268).

Hampton (1988: 271–2) does not—as far as we are aware—

explicitly say that the state of nature she has in mind is or includes actual stateless societies, but she is logically committed to it. She makes a universal claim about a dichotomy: there is either a “ruler with great power” or “warfare in the state of nature.” Clearly she means this claim to be taken as a statement of empirical reality, or it could not support her conclusion that rational people have “a certain compelling reason” that “is (or should be) our reason either for creating government if one does not exist or for maintaining it in power if it does.” She offers only theoretical, not empirical, support for this statement, but it is a statement about the world that is capable of being true or false. If it is true, then all stateless situations will have unacceptable violence. Therefore, we conclude that Hampton is committed to the Hobbesian hypothesis as a literal, empirical claim about all stateless societies.

Gregory S. Kavka (1986: 24) endorses both the Hobbesian and Lockean versions of the proviso, and makes clear that they are empiri-cal claims, writing, “the absence of reliable interpersonal cooperation is as important a negative feature of anarchy, for Hobbes and in fact, as is the presence of violent confl ict.” He admits that he uses a hypo-thetical state of nature to reveal empirical truth, because he believes relevant observational evidence is diffi cult if not impossible to obtain.

Therefore, although he uses an a priori method, Kavka (1986: 84) makes it clear that he has not used purely fact-independent reason-ing, writreason-ing, “if the individuals of the theory resemble real persons in enough important respects, their interaction patterns in the state of nature might provide considerable insight concerning how real people would be likely to behave in similar circumstances.”

With this awareness of the empirical implications of his reason, Kavka makes extensive theoretical arguments that violence must exist in the state of nature to support his conclusion that the state of nature forces people to agree to the social contract:

it could be suggested that the parties are compelled to reach agreement, since return to the state of nature is their alternative.

And this is, in a sense, true. But . . . The parties are not unfree with respect to one another; none can coerce others to accept unfair or unreasonable terms of agreement. All are forced to compromise and accept less than they might wish because of the necessity to reach agreement. But this sort of pressure, when it applies equally (or approximately equally) to each, does not call the fairness or morality of the outcome into question; it simply refl ects a Hobbesian fact about the human condition—that the State and (a high risk of) insecurity and poverty are exhaustive alternatives. (Kavka 1986: 402–3)

Kavka (1986: 24, 193) uses a “fair play” justifi cation to argue for a higher standard of treatment than that implied by the weak Lock-ean proviso, but the above quote is an explicitly fact-based argument that the weak proviso is fulfi lled. See the online appendix for a more detailed discussion of Kavka.

George Klosko (2004: 4–5) sets out to ground political obligation on H. L. A. Hart’s principle of fairness, in which people are obliged to contribute to the state if they share its benefi ts, and if they specifi cally require a state to provide those benefi ts. Klosko affi rms the empirical nature of the Hobbesian hypothesis (see Chapter 3), and just as clearly asserts its truth:

If someone fi nds life in a Hobbesian state of nature accept-able, she will not choose to enter civil society and might not have political obligations. . . . One of my governing assump-tions throughout this study is that the overwhelming majority of inhabitants of modern societies do not prefer to live in the woods or some remote outpost. (Klosko 2004: 8, 19)

This is about as clear a statement as one could make of the Hobbes-ian hypothesis as an empirical claim comparing the welfare of people

in state societies with the welfare of people who live outside state authority by hunting, gathering, or some other means. It also it pro-vides an empirical test of state legitimacy. If disadvantaged people are so much better off than they would be living in the woods in some remote outpost that none of them would choose to do so, the political obligations imposed by government are justifi ed—subject to the other principles of the theory, such as fair distribution. If not, the govern-ment remains unjustifi ed. Klosko’s test has problems, but we discuss it further in Chapter 10. See the online appendix for more on Klosko.

Dudley Knowles argues that unanimous consent might not be pos-sible, even though he assumes that the Hobbesian hypothesis is true:

There will be the citizens who will reject the arguments from fairness on the grounds that they do not seek any benefi ts from the state however many benefi ts are foisted upon them. . . . If this avowal is sincere, I do not see that they should feel grate-ful for what they describe as a moral burden notwithstanding the truth of the claim that it derives from a material benefi t.

(Knowles 2009: 144)

Knowles (2009: 144) recognizes that the lack of gratitude on the part of these individuals empirically limits political obligation, as he writes,

“how far they extend is a matter of fact.” But he does not mention the possibility that people might not actually receive benefi ts from the state. This claim must be empirical as well. We don’t see a way that a claim about the “truth” of “material benefi t” can be anything other than an empirical claim. His seems to have such a strong presumption in favor of the Hobbesian hypothesis that he feels no need to consider whether the state might fail to foist benefi ts on people. See the online appendix for more on Knowles.

Christopher Heath Wellman (2001), writing in the journal Ethics, literally repeats the prejudices of Hobbes and Locke. Wellman rejects consent theory for what he calls “samaritanism,” but it too relies on the Hobbesian hypothesis, which he states in Hobbesian terms: “The advan-tages of political society are so great because life in the state of nature is so horrible.” In support, Wellman (2001: 742) writes, “Hobbes, Locke, and Kant offered confl icting accounts of human nature, but all agreed that a stateless environment is a perilous environment devoid of secu-rity.” In making this statement, Wellman provides more support for the

Hobbesian hypothesis than any of the contemporary philosophers dis-cussed earlier in this chapter, but of course, all he does is admit to pass-ing on a 350-year-old claim made by speculative anthropologists. This can’t be enough. Hobbes, Locke, and Kant did not have the information available to be taken as experts on the welfare of either disadvantaged people or people in non-state societies. If we take their word for it, we pass on their prejudices. We need evidence. See the online appendix for more on Wellman.