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The next justification of political authority that Michael Huemer considers in his book The Problem of Political Authority is what is called Hypothetical Social Contract Theory. The broad idea is that what justifies political authority is that you would agree to government coercion were you not the irrational, selfish and ignorant fool that you are. My inclination when addressed in such a manner is to say, so what? Grant that I am the irrational, selfish and ignorant fool that you say I am, why does what I would agree to if I were otherwise make it right for the government to force me to do what I don’t want to do?
A standard example of hypothetical agreement justifying something is that of the unconscious patient in need of life saving surgery. Surgery, unless agreed to, is an assault: but you can’t agree to it if you are unconscious. The idea here is that what justifies the surgeon cutting you up anyway is that you would agree to him doing so if you were conscious.
A first condition on this justification is that your actual agreement is impossible to obtain. If you were fully conscious and we knocked you out and operated without getting your agreement we would still have assaulted you. A second condition is your hypothetical agreement must not depend on significant alteration of your values. If your religion forbids you to undergo surgery under any circumstances then you wouldn’t agree to the surgery unless you gave up your religious belief. The important point about these two conditions is that if, despite the failure of these conditions, you still think that the surgery is justified then you are not defending it by hypothetical agreement but by something else.
It is clear that both these conditions fail for political authority. Agreement is possible to obtain. For each government, there are some who would not agree to it without significant alteration of their values since they want some alternative form of government and there are others who are anarchists and reject all government.
Up to this, point, then, there is neither an actual nor an hypothetical social contract justifying political authority. The next step in this line is for hypothetical agreement to take a very different role: rather than somehow constituting a social contract, and thereby justifying political authority, it reveals to us the nature of a government that could not reasonably be rejected. The idea now is that there is a form of political authority that would be agreed to ‘by reasonable persons under ideal conditions of deliberation’ (p.39) and a government exercising political authority of that form is thereby justified.
Ideal conditions include being better informed, fully rational, unbiased and being reasonable includes being willing to accept some give and take. To keep the justificatory power for us, however, these conditions cannot include such things as ‘after all have converted to the one true religion’ (p.40). Reasonable people have different religious and philosophical views and different conceptions of the good. The point is to claim that there is some form of political authority that reasonable people under ideal conditions could agree to despite these differences.
Huemer considers both Nagel’s and Rawls’ defences in this line. First of all, there might not even be agreement that there should be a government. Even if all agreed that there should be a government, there is no reason to think that ‘all reasonable people [would] achieve agreement on the basic principles of government any sooner than they reach agreement on the correct religion, the correct moral theory, and so on’. (p. 42) So this approach might not even get off the ground.
Even if such an agreement could be made, the reasonableness of the hypothetical agreement does not justify the coercion of actual people who have made no such agreement. Huemer illustrates this by the case of an employer offering a job that no one could reasonably reject. In such a case, the employer may not force me to take the job if I reject it. So once again, we would have to assume the legitimacy of political authority is already in place to think it justified for the government to coerce people to what they would agree to were they reasonable and hence the hypothetical agreement cannot be used to justify political authority.
Huemer identifies two major strands in Rawls’ use of hypothetical agreement: that it reveals what is fair or it reveals constraints on moral reasoning ‘that we do in fact accept’ (Rawls A Theory of Justice p. 17). Rawls’ version of the hypothetical agreement is a matter of what we would agree to be the basic principles of justice in what he calls the original position, a position in which we are fully rational and generally informed, self-interested but deprived of personal information of what exactly our interest is. What we would agree to reveals what is fair and the nature of the original position makes the constraints ‘vivid to ourselves’(Rawls A Theory of Justice p. 17).
Huemer offers two examples to show that fairness thus revealed does not justify coercion, hence does not justify political authority. Sue makes Joe an offer on his car that a reasonable owner would accept, but Joe refuses it. Joe finds a diamond in his back garden and could rectify the moral arbitrariness of his lucky increased wealth by giving half its value to Sue. In neither case do we think that Joe is obligated nor would coercion be justified.
The problem with the constraints on moral reasoning is that, as they stand, they are insufficient to determine the right form of political authority without supplementation by the true moral theory, so as such they are useless for the task for which they are being used. On the other hand, if they are merely taken to be necessary conditions then what is required is to show that all forms of political authority but one violates them. Rawls attempts no such proof and arguably utilitarianism (the main theory against which Rawls is offering his theory of justice) satisfies them: nor for that matter do defenders of ‘egalitarianism, libertarianism or anarchism…appear to have violated any widely accepted constraints on moral reasoning’ (p.56).
Huemer concludes that political authority is not justified by any social contract, neither actual nor hypothetical nor ideal.
“Huemer concludes that political authority is not justified by any social contract, neither actual nor hypothetical nor ideal.”
Doesn’t seem to dissuade him from eagerly sucking on the public tit.
Always good to see a pure example of a classical fallacy (assuming, of course, that you are not merely indulging in gratuitous insult).
1. Huemer says that political authority is not justified by a social contract.
2. But Huemer is “eagerly sucking on the public tit”.
3. Therefore political authority is justified by a social contract. (1, 2, ad hominem)
Just noting how uncanny it is that “taxation is theft” except when it benefits libertarians whose salaries are paid by the public purse. Then it seems that old-fashioned self-interested individualism (one of the sensible foundations of most people’s support for involuntary taxation) takes precedence over the supposed voluntary collectivism of libertarian ethics. John Hospers spent a lifetime arguing against public funding of anything and everything EXCEPT university philosophy departments, in which he claimed to be “employed”. I don’t think he ever ventured to account for this exception, but I don’t suppose his reasons were terribly mysterious.
Always good to see irrelevance doggedly persisted in.
Please make sure any future persistence is put in its proper thread rather than wasting my time having to move it around because you couldn’t be bothered to click the right reply button.
Nikolas wrote: “Just noting how uncanny it is that “taxation is theft” except when it benefits libertarians whose salaries are paid by the public purse.”
Yeah, but this is no different to political objections to tenured radicals who espouse political revolution from the womb-like comfort and safety of the faculty coffee room. Presumably you’re just as outraged by this sort of hypocrisy/etc as you are by publicly-funded libertarians? [When I was a Treasury official I ran into an interesting defence of the taxpayer-subsidised libertarian: one libertarian policy analyst argued that it was a far better thing that he had this despicable, publicly-funded job than someone who might actually (1) like it; (2) seek to create more of same.]
Actually, now I think about it, in addition to noting its complete irrelvance we should note that this kind of smear against someone who is dead is just a typical piece of disgraceful propaganda. It tells us more about the person indulging in it than about John Hospers.
“Yeah, but this is no different to political objections to tenured radicals who espouse political revolution from the womb-like comfort and safety of the faculty coffee room.”
Well it’s exactly that, in fact. Libertarians tend to regard themselves as political radicals. But what makes it particularly pertinent is that they’re political radicals who strongly disapprove of taxation.
“It tells us more about the person indulging in it than about John Hospers.”
Well, it tells you that I’m not very impressed by John Hospers and his ilk, for reasons that I’ve made clear. And no, it’s not irrelevant. If taxation is theft, that makes people like Hospers and Huemer willing receivers of stolen money. So I’m assuming they either don’t actually believe their own rhetoric, or don’t actually mind helping themselves to stolen money.
Dr Shackel, I do not consider you to be irrational or selfish, nor an ignorant fool, and I trust that even if I disagree with you, you will not consider those epithets appropriate for me.
I still think that Huemer is over-simplifying the arguments for a form of «social contract» in order to attack them more easily, but I would like to raise a different point:
Assume that his arguments all stand up and they demolish the notion of justification for political authority. Don’t the same arguments also destroy a rational foundation for legal authority? If a government has no right to extort and bully me, what right does a judge have to sanction my criminal behaviour, or insist that I should make amends for any harm I do to others?
No-one consulted me over the law of tort, or contract, or criminal law to which I am subject, neither in the form of common law, nor legislation nor jurisprudence…..
quod nimis probat, nihil probat ?
Your implication that if he’s proved law illegitimate he’s proved too much and thereby proved nothing is question begging, since you are simply assuming that the law has the very feature that is at issue. All his arguments can be run against legal authority just as much as they can be run against political authority.
That being said, we have to be careful about what he means by political authority. Huemer’s arguments are directed against political authority as a special authority had by government giving it a general right to do things that no one else would be allowed to do and imposing our duty to obey it when it exercises that right. If he is right, it doesn’t entail anarchy but it does entail that government is subject to the same moral prohibitions as anyone. So insofar as something would be right for anyone to do, such as defence of self and property, the government would be one possible instrument. The effect of his arguments, if successful, is to confine legitimate government to a minimal state and also to point out that it is only one possible effector of its legitimate activity. His arguments for anarchy as opposed to a minimal state are in addition to the rejection of political authority.
So insofar as the law and the police go beyond what anyone might morally do, they are illegitimate. But insofar as they do not, they may be OK. The basic laws of contract, tort and crime don’t depend on political authority since they merely encode basic moral principles (keep your promises, take care not to harm others, don’t harm them deliberately–this, by the way, being the only justification of ignorance of the law being no defence) so Huemer would say there is nothing about them that only a state could legitimately enforce. Nor do I think he would have a problem with necessity with just compensation, nor coordination, since his basic strategy is to argue from common sense morality.
“Huemer’s arguments are directed against political authority as a special authority had by government giving it a general right to do things that no one else would be allowed to do and imposing our duty to obey it when it exercises that right.”
Don’t judges do things that no one else is allowed to do ? Don’t they too impose their duty? If so, they have some “special” authority.
Where does it come from ? And how does it differ from the authority that governments assume?
It still seems to me that Huemer’s arguments that you have outlined against governmental authority apply equally to that of judges.
I think that you are right in stating that the law (in principle) should encode “common sense morality”, but “common sense” (as Descartes observed some time ago) is not always the best guide. Isn’t it the “common sense” view of at least some people that, for example, taxation to redistribute income is morally desirable? And that those who evade paying them should be punished?
To others, it is extortion. To think so is their right, but it doesn’t invalidate the legitimacy of government – any more than a criminal’s protestations invalidate the legitimacy of judges.
First, I think you are confusing the claim to special authority with actually having it. Yes, judges and the law and the government claim to have it but Huemer is arguing that they don’t. Second, I’m puzzled that you are arguing as if against me that Huemer’s arguments apply to judges when I said in my reply that they can be run against legal authority.
I didn’t say that the law should encode common sense morality. I said that when the law encodes basic moral principles Huemer is not going to have a problem countenancing it.
The issue of common sense is part of Huemer’s methodology, that we can’t start from nowhere and political philosophy should be based on considering the implications of uncontroversial moral principles rather than controversial ones. There is general agreement that I may not force you to give me money even if it is for other people’s benefit. There is no such agreement in the case of taxation for other people’s benefit. So people who think the latter is common sense are mistaken in thinking it so.
I come back then to my original question.
If Huemer’s arguments destroy social-contract type justification for legal authority, where does their authority come from?
Or do you believe that judges have no legitimacy?
I refer you to the answer I gave earlier. Briefly, if you mean a special authority, it has yet to be established (in our examination) that judges have any such thing and Huemer’s arguments stand against it being established by social contract theory of any kind; if you mean laws that encode basic moral principles, in those principles but no monopoly is established by such grounding.
You refer me to your previous answer, so here goes :
«1. There is general agreement that I may not force you to give me money even if it is for other people’s benefit.
2. There is no such agreement in the case of taxation for other people’s benefit.
3. So people who think the latter is common sense are mistaken in thinking it so.»
On 1. How do you know this ?
On 2. I believe that this is in fact false, as political parties get elected on just such a programme, and I can’t think of an example in a democracy where a party has been elected on a programme of eliminating taxation for other people’s benefit. Perhaps you can…
On the whole :
How would the following sound as an argument ?
1. There is general agreement that I may not force you to give me money to protect you.
2. There is no such agreement in the case of taxation for the establishment of a police force and an army.
3. So people who think the latter is common sense are mistaken in thinking it so.
The answer I’m referring you to is the first answer I gave, that is to say, the answer I gave to your original question (since you returned to your original question), not the answer about his methodology.
Dr Shackel wrote: “The point is to claim that there is some form of political authority that reasonable people under ideal conditions could agree to despite these differences. […] First of all, there might not even be agreement that there should be a government. Even if all agreed that there should be a government, there is no reason to think that ‘all reasonable people [would] achieve agreement on the basic principles of government any sooner than they reach agreement on the correct religion, the correct moral theory, and so on’.”
I don’t think it works this way around. You say “First of all, there might not even be agreement that there should be a government.” But it’s not like human beings in the absence of authority were sitting around in orderly fashion sipping cappuccinos while chatting about how to organise themselves. In the real state of nature there might be – probably would be – agreement that the Hobbesian state of “perpetuall warre of every man against his neighbour” is not justified on any grounds – consequentialist, deontological or virtue-ethics. So given that our strongest preference is to avoid chaos, the first thing we want is some relief from that Hobbesian nightmare. What form that relief might take strikes me as something you might argue about, but if your strongest collective preference is to avoid anarchy then it seems to me that Huemer’s question is basically already solved: political authority is justified because the alternative – chaos – is intolerable (on any grounds). There are forms of political authority that could be as hideous (and unjustified) as anarchy. But there are forms that are not, and it seems to me unsurprising that this has been where the philosophical action has been.
I think the next book you ought to read is Blood Meridian by Cormac McCarthy.
Hobbes’ state of nature is not the condition under which this consideration of a hypothetical agreement is being analysed since it is plainly not ideal. Nevertheless, you claim that people would agree to a government in that condition but it depends on what they know. It sounds like you identify anarchy with chaos and the war of all against all, but strictly speaking, anarchy means absence of government. Maybe there are systems of voluntary cooperation and mutual defence that are private rather than governmental and maybe they would work better than government. In that case people who want to avoid chaos need not agree to government and agreeing to government would be agreeing to a worse system.
I’ve no idea what you mean by collective preference. If you mean anything other than something that everyone would agree to you have abandoned social contract theory. Of course, if everyone agrees to avoid anarchy then they will agree to government of any kind however awful. But that’s true by definition. Even so, if this is advanced as a hypothetical social contract defence of political authority it still faces the challenge of what it is about a hypothetical agreement that justifies political authority.
It sounds to me like the real basis of your defence, especially when you retreat to conceding that some governments can be as bad as chaos, is not that we would agree to it but rather that the alternatives are an awful outcome of no government and better outcomes of some forms of government. That’s really a consequentialist defence of political authority, not a social contract one. I think Rawls is somewhat misleading for the same reason, since he sounds like some kind of contractualist but really the talk of hypothetical agreement is mainly a heuristic device to illuminate what he thinks are agreed moral principles and what political implications they have.
“Hobbes’ state of nature is not the condition under which this consideration of a hypothetical agreement is being analysed since it is plainly not ideal.”
But the context of the reasoning matters, and not just for consequentialists. One objection to Robert Nozick’s famous “Wilt Chamberlain example” is that here in the real world, we don’t all start from a manifestly just initial distribution, so the abstraction Nozick uses differs in significant ways from the actual state of the world he’s purporting to reason about.* This doesn’t collapse to a consequentialist critique – Nozick was arguing deontologically, for the most part, and even in that framework social context still matters because it frames the background against which we reflect on our duties and responsibilities – eg Spiderman** has duties you and I do not. I think starting from the faculty coffee room when reasoning about political authority is a similar mistake to the one Nozick, for the reasons outlined above – your initial state is insufficiently savage to adequately frame the situation in which the reasoning takes place.
“I think Rawls is somewhat misleading for the same reason, since he sounds like some kind of contractualist but really the talk of hypothetical agreement is mainly a heuristic device to illuminate what he thinks are agreed moral principles and what political implications they have.”
This is really interesting and useful, thanks! I kind of agree, but I think this is the right way to use contractualist arguments – as heuristic models to sort between options once you’ve decided that (1) government is better than non-government; (2) that the consent of the governed matters (why else are you asking them what they would prefer?); (3) that rationality is a good way to sort between options; (4) that there are some shared norms such that it will be possible to describe what a rational agent might prefer; (5) etc. In other words, I think the “model domain” of social contract reasoning is very different from the space in which you are seeking to explore/critique it. It’s unsurprising if a simple, heuristic model breaks down outside its domain.
In sum, I think I have two issues with this: (1) the model you’re presenting against which political authority is to be assessed is inadequate because it’s insufficiently hideous (irrespective of whether one pays one’s tithe to Mill or Kant); (2) I think you’re right in your critique about Rawls’s deployment of social contract reasoning, but wrong to think it’s a fatal flaw in contractual thinking – it’s just that the range of worlds which social contract thinking might illuminate does not include the state of nature (since that world contains no agreement about the beliefs enumerated above).
*In my bit of science we sometimes call a bad fit between reality and our abstractions “model error”. In meteorology, oceanography and climate we have a few fairly iron-clad laws (the Navier-Stokes equations), but much of the work is done by approximations (such as energy balance models of climate, geostrophic wind approximations, box-diffusion models, etc). I think of a lot of philosophy and ethics the same way I think about science – this or that principle makes sense at this or that scale, or region, or across this or that domain. But the principle is probably inapplicable or counter-intuitive somewhere else. [Which is why I count myself as unaffiliated in the eternal struggle between the big ethical theories – I’m a skeptic about finding a single perfect law.]
**With great power comes great responsibility.
That is not an objection to Nozick but a failure to understand the point of a philosophical example, perhaps a failure to understand the way we test claimed moral principles in philosophy. In Nozick’s example, the point is that even if at one time you had the state of the world the egalitarian insists is the only right state of the world, it cannot be sustained without constant interference. So it is irrelevant that ‘we don’t all start from a manifestly just initial distribution’. Nozick is not reasoning about how the state of the world compares to what the egalitarian thinks is just, he is reasoning about moral principles, in this case refuting the claim that egalitarianism is compatible with liberty.
In the case of hypothetical social contract theory the claim by such theorists is that political authority is justified by what we would agree to under ideal conditions. So if you want to say that the ideal conditions are irrelevant because ‘the context of reasoning matters’ and that it ‘is a similar mistake to the one Nozick [makes]’, that is really a point to make against such theorists, not against someone arguing against them. They, however, would then point out that you don’t understand the structure of their defence and they would be right. That is why for the sake of argument Huemer grants the ideal conditions and refutes the defence anyway.
Similarly, talking about the faculty lounge or whatnot is irrelevant to the question of political authority. Either there is such a thing or there isn’t, or as I have been usually putting it, either it is justified or it isn’t. The context in which we reason about that question has nothing to do with its answer anymore than whether we reason at the north pole or the equator influences whether we should conclude that 2+2 = 4. Or perhaps you are thinking of context as a state of the world that would itself justify, but if so you are not attending properly to the generality of the claimed political authority. The kind of context in which coercion is justified cannot justify government being entitled to coerce obedience to the rules it lays down that is generally independent of the content of those rules. It can only justify coercion in that context. So Huemer does not deny, for example, that lifeboat situations may justify coercion, but such situations cannot justify political authority because the latter is a claimed general right.
Nor is the issue of mathematical models and fit a helpful metaphor for the question of the truth of moral principles. There is no model against which political authority is being assessed. The question here is simply whether it is justified by a hypothetical contract. The fact that chaos may be worse than some governments is irrelevant to that question, although it may be relevant to a consequentialist justification.
On the Nozick thing – there are various criticisms of the Wilt Chamberlain example as not showing what Nozick thinks it shows. One example: among the features of the initial distribution that might be morally relevant are the fact that Wilt Chamberlain was born with amazing talent for basketball, and others aren’t. One objection to Nozick’s argument is that is that Wilt shouldn’t get to pocket all the money he makes at the turnstile since a significant portion of it is due to unearned talent. For some people (including some (left-)libertarians) a proper account of the Wilt Chamberlain example would take account of this, tax him to account for the “unearned” part of his income, leaving him the rest. People who mount this argument are denying that the example is compelling in the way that Nozick thought it was, because some features that are opaque in the telling of the story are doing more work (at least on some accounts) than is clear on first reading. My point was just that Nozick’s simple story about Wilt Chamberlain doesn’t necessarily capture all the morally relevant features of those transfers and, as I said earlier, “social context still matters because it frames the background against which we reflect on our duties and responsibilities”. [In this case, the fact that Wilt has huge talent and I have none is an unearned boon to Wilt; some people think that’s morally relevant, but it’s not exposed as such in the story.
The way you describe it, contract thinking either justifies political authority, or it doesn’t. I was just arguing that it might have value as sorting between options once you’ve decided that barbarism is uncool, while failing to justify things ab initio. You’re arguing that moral principles are either true or false. I’m not a realist about these things – I think that some principles might usefully apply in some places and not in others. ie I’m not defending contractualist thinking per se – I’m arguing that you might think contractualist aproaches are useful in some settings (contexts), but not necessarily in the place where Huemer is applying them.
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