Tuesday, April 24, 2018

Contractualist Politics

Contractualism is probably the dominant account of political legitimacy currently. Let me sketch what it is, why I claim it is dominant, and why that is a problem.

A contractualist account of political legitimacy holds that a government is an implicit contract of all citizens to give up some rights to get others to do likewise and to gain certain rights. It supposes that there can be no (political) justice or injustice unless some entity with authority dictates laws. It also supposes that no entity can have such authority unless we the people grant it such authority. It operates with the point of view that there is a default state, or state of nature, which we are trying to avoid, and thus that we contract together to solve the problems of that default state. What the government can do, therefore, is limited by what we can suppose individuals would let it do in order to get out of the default state. If the situation in the government is worse than the default state, then the people cannot be supposed to have authorized it, and thus the government must be illegitimate.

The default state is generally viewed as a state where each person is alone, where it is one's own effort and labor by which one survives. Whether the contract is formed for security against aggressors or for the benefits of division of labor, the contract is what first brings people into communities. Even Rawls's veil of ignorance has each individual considering what the best situation would be for one, not knowing what social location or what talents or abilities one might have.

The strongest versions will form a multilayered structure where only the most basic elements rely on a contract of everyone with everyone, and thus preclude such anarchistic tendencies as suggested by "not my president." For instance, our own government relies for its authority on the constitution. Nevertheless, if we the people established the constitution, then we the people can revoke it, and secession is easier than accession. To establish the constitution one needs a critical mass of people to form a citizenry. To disestablish it, one must merely lose such a mass. Of course, what keeps a constitutionalist government going, on its own account, is that everyone hopefully prefers it to the alternative. How long one can keep that up depend on what people take the alternative to be and how people feel about how things are going under the government.

The United States is founded on contractualist political philosophy: the preamble to our constitution is explicit that "We the people of the United States...do ordain and establish this Constitution for the United States of America." The revolution was based on the premise that the people have a right to revolt against a government which is not providing for the citizens' improvement beyond the default condition, but which is rather, as it was viewed, merely using the citizens for its own benefit. The colonists held that they could improve on the default condition better than Mother England, and so, in virtue of that fact and the failure of the existing government, held that they had a right and even a duty to rebel and instate a government which would be truly legitimate. This same attitude recurs when we hear "not my president," claims that because the taxes are unfair one needn't feel bad about cheating on them, or see individuals speeding because others are doing so and they can get away with it. If the government is not succeeding at improving on the default condition, and if it is failing to secure my rights, then the rights I gave up for that security may be retained.

There are two big problems with this view: the notion of a default state and the account of legitimacy are both problematic. They both play into an individualistic view of authority and persons.

The problem with the notion of the default state is that there is no sense that one might rightly uphold a government because it is one's own. This may be an unfair critique of Rawls, insofar as what the veil of ignorance is supposed to establish is the shape of justice, which is the end point, not where we are quite expected to be now. Rawls has been critiqued in this way before, by those who see his establishment of the goal as prior to figuring out how to get there as problematic, but that is not the present point. The present point is that contractualist views of political legitimacy encourage one to judge any present government for failing to achieve justice. They occlude the importance of our present situation for any analysis of what we should do now. Rawls can grant that the question of how to reach justice may be a difficult one requiring an analysis of present social realities. What Rawls occludes is how our view of what we would see from behind the veil of ignorance is always situated in our society. We can never get fully behind the veil, because we are already situated in some society which has formed us to value some things over others. Even our account of who goes behind the curtain or what counts as a social location is modified by who we take to count as a citizen. How disabled, how young, and how old can one be and still count?

The account of legitimacy is likewise problematic. Because we are situated already in a society, we do not, in the ordinary course of things, consider ourselves the source of the legitimacy of the government. We do not, contrary to what contract theorists originally hoped, view the government as legislating on our behalf such that the law is decreed by us by proxy. Rather, we view the government either as doing well or doing poorly, promoting the welfare of society or not. The legitimacy of the government appears to be secured by the government's attitude toward the governed. Thus, the justice of revolt arises, not because the citizenry can do better or because the default state would be better, but because the government does not take the citizenry into account in its deliberations. It is the alienation of the citizenry from the government, and not the failure of the government per se, which delegitimatizes the government. What is accurate about contractualism is that citizens ought to see their interests represented in the legislation, and not merely interests of the state as such or interests of other institutions (although such will be brought in via the interests of the citizenry). The requirement that it be an equal contract is accurate in that the interests of the whole citizenry ought to be represented in legislation, not simply the powerful citizens.

But what I am suggesting is right about the legitimation scheme of contractualism is a different account of legitimation. The source of legitimacy is no longer the consent of the citizenry, but the success of the government as a government, where a government is not defined as a group of contracting individuals, but as providing order and protection to a group of interested social agents, who are situated in a society which is already under way, in a way consonant with how those agents and that society is.

We can also view these two problems from a theological standpoint. The authority of the rulers and authorities of this world is derived from God's authority. The legitimacy of a government is ultimately a matter of its fulfilling God's purpose for government. Where contractualism makes our collective purposes the standard for good government and the source of its authority, we must affirm that, viewed theologically, it is God's purposes which matter and he is the source of all authority. Contractualism--I suggest, recognizing that there is room for push-back--is a political philosophy which views the citizenry as a god, catering to our idolatrous hearts.

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