Reason and Will in Contemporary Social Contract Theory

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Reason and Will in Contemporary Social Contract TheoryAuthor(s): Greg HillSource: Political Research Quarterly, Vol. 48, No. 1 (Mar., 1995), pp. 101-116Published by: Sage Publications, Inc. on behalf of the University of UtahStable URL: http://www.jstor.org/stable/449122 .

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Reason and Will in Contemporary Social Contract Theory

GREG HILL, UNIVERSITY OF WASHINGTON

Social contract theorists rely upon the idea of agreement as a framework for justification, but differ in their characterization of the parties to agreement. Some contract theorists, such as Buchanan and Gauthier, begin with willful agents who are moved solely by their own subjective ends. Rawls, on the other hand, imagines an agreement reached by parties who are moved exclusively by impersonal concerns, which make no reference at all to the parties' particular commitments. This paper criticizes both of these contract views, arguing that subjectivist contract theories fail to acknowledge the role of impersonal reasons in bringing persons to a principled accommodation, while Rawls rejects the legitimate moral claims arising from our particularity The paper defends an alternative contract view, which envisions an agreement reached by persons who are partial to their own interests, but willing to consider impartially the claims of others.

One of the many things John Rawls achieved with the publication of A Theory ofJustice was a renewed interest in social contract theory (Rawls 1971). Recent contributions to the contract tradition include James Buchanan's The Limits of Liberty (1975), David Gauthier's Morals by Agreement (1986), Thomas Nagel's Equality and Partiality (1991), T M. Scanlon's "Contractualism and Utilitarianism" (1982), and Rawls's own Political Liberalism (1993). These works all rely upon the idea of agreement as a framework for justification though they differ in their description of the parties to agreement, in the constraints imposed upon the agreement, and in the principles and institutions agreed to by the parties.

The varieties of contemporary social contract theory can be divided into three types. First, there are subjectivist contract views, like those of Buchanan and Gauthier, which seek to justify political institutions and cooperative social arrangements by showing that they would be agreed to as rational means of advancing each person's subjective ends. Second, there is Rawlsian contract theory, which aims to justify principles of right by showing that they would be agreed to by persons who are thought to share certain fundamental moral

NOTE: I would like to thank Bill Lund and Michael Mosher for their helpful comments on an earlier version of this paper.

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Political Research Quarterly

interests. And, third, there are dual contract theories, like those of Nagel and Scanlon, which evaluate norms and institutions by asking whether they would be agreed to by persons who are moved by particular concerns but who are willing to consider their commitments equally alongside the interests of others.

The differences among these contract theorists originate, in part, from their divergent responses to two questions. What are the moral and political implications of our self-understanding as free persons who claim the right to form and act upon our own distinctive ends and purposes? And if in addition to self-assertion, we also possess the power to consider our interests impartially alongside the concerns of others, what follows for the design of our basic institutions and social arrangements? These two questions frame the discussion of contemporary contract views that follows. My argument, in brief, is that the contract theories of Buchanan and Gauthier ironically fail to give subjectivity its due, while at the same time disregarding the role of impersonal reasons in bringing self-assertive persons to a principled accommodation; that Rawlsian contract theory undervalues the claims of human partiality and so concludes an agreement that cannot be justified to everyone; and, finally, that dual contract theories, which acknowledge claims arising from both subjective and impersonal standpoints, offer the best prospect of finding principles which reasonable people with deep personal commitments can willingly affirm.

SUBJECTIVIST CONTRACT THEORIES

Subjectivist contract views begin from the twin premises that persons are motivated by, and only by, the desires, projects, and interests they happen to have at any given time, and that there is no independent standard of value against which these ends can be judged (Buchanan 1975: 2-8; Gauthier 1986: ch. 2). Reasons, if they are to move individuals to action, must therefore make reference in some way to the things a person wants. Gauthier summarizes the implications of these subjectivist claims in the following way. "The relevance of the agent's concerns to practical justification does not seem to me in doubt. The relevance of anything else, except insofar as it bears on the agent's concerns, does seem to me very much in doubt" (Gauthier 1991: 20). Here Gauthier calls into question the very possibility that persons could be moved by reasons which make no reference to their own interests. In place of such impersonal considerations and the moral point of view from which they arise, Buchanan and Gauthier substitute a more elemental vantage point, that of the willful agent- Hobbes's masterless man.1

1 Both Buchanan and Gauthier acknowledge their debt to Hobbes and may be fairly characterized as contemporary Hobbesians in their assumptions and methods if not their conclusions.

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Although the goals and interests of this Hobbesian self are not circumscribed by any natural duties, some concerns are ruled out on other grounds. Both Buchanan and Gauthier exclude from theoretical consideration individual ends that incorporate the interests of other persons (Buchanan 1975: 6; Gauthier 1986; 100-104). The exclusion of these other-regarding concerns is justified either on the grounds of psychological realism or, in Gauthier's case, on the additional grounds that caring for others opens the sympathetic person to exploitation by those who do not care.2

Having rejected the claims of objective value, duty, and human sociability, and their corresponding appeals to reason, conscience, and sympathy, Buchanan and Gauthier turn to the logic of instrumental rationality as a basis on which to address the practical concerns of self-interested men and women. To choose an end is, at the same time, to acquire an interest in the most efficient means of attaining it. To deny this interest, or to act against it, is to relinquish one's identity as a rational being, an identity which, in Gauthier's view, penetrates the postmodern psyche more profoundly than our lingering, but moribund, self-understanding as moral agents. As a consequence, according to Gauthier (1991: 20), "morality faces an alternative, conflicting, deeper mode of justification, related to our deep sense of self, that applies to the entire realm of choice and action, and that evaluates each action in terms of the reflectively held concerns of its agent.'

Given these premises, the task of a subjectivist contract argument is to convince self-assertive individuals that there is a mutually advantageous scheme of social cooperation and that compliance with its terms is in each person's rational interest. Buchanan, for example, begins from a state of nature in which persons engage in a combination of productive, predatory, and defensive activities, and shows the advantage of abandoning this condition in favor of establishing a limited government that secures the right of ownership, thereby allowing individuals to shift their time and resources away from predation and defense and into more productive pursuits (Buchanan 1975: ch. 2). Gauthier, in turn, begins with a decentralized but orderly market in which straightforward max- imizers face collective action problems with the characteristic features of a Prisoner's Dilemma game In Gauthier's case, however; there is no resort to government as a means of avoiding the suboptimal outcomes produced by the unfet- tered interaction of rational egoists. Instead, Gauthier shows that it is in each person's interest to abandon the strategy of straightforward maximization in favor of becoming a "constrained maximizer' that is, someone who complies

2 For an interesting attempt to construct a feminist contract theory around this claim, see Hampton (1993).

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with mutually advantageous constraints provided he is reasonably assured that others will do so as well (Gauthier 1986: ch. 6).

In the subjectivist version of the contract argument, constitutional government and moral constraint emerge as efficient solutions to the problems that face rational egoists. These theories engage our attention because, as rational agents, we are necessarily interested in an effective means of achieving our ends. Their appeal, however, lies not just in the premise that human beings are rational in pursuit of their ends, but in the recognition that these ends - the con- crete purposes of individual persons - provide the principal reasons for human action. In this regard, Gauthier is surely right in pointing to the relevance of the agent's own concerns to the problem of practical justification, even if he is wrong in denying the relevance of considerations which are independent of these concerns.

Yet, even if subjectivist contract theory is judged in its own terms, as a project designed to respect human subjectivity, it is not clear that it succeeds. To begin with, the exclusion of individual ends that encompass the interests of others is inconsistent with the theory's goal of seeking justification in the agent's own concerns (see Valentyne 1991: 71-75). Insofar as individual ends do include the interests of others (and the empirical claim to the contrary seems just false), then a theory which purports to begin from these ends cannot so easily dismiss them. Thus, to rule out other-regarding preferences because they leave the sympathetic person vulnerable to exploitation is to appeal to values that transcend the expressed preferences of the caring person, herself. Such an appeal reaches beyond the justificatory range of a metaethical view that claims to find value solely in the agent's own choices.

These theories are also inconsistent with another class of human purposes. Persons whose ends include a life of virtue will not be persuaded to comply with their agreements because compliance is a means to other ends. Rather, such persons will abide by their commitments because they value trustworthiness for its own sake. Thus, while Gauthier contends that keeping one's commitments is a rational strategy when we are reasonably assured that others will keep their commitments, persons with an intrinsic interest in trustworthiness will regard this as a different kind of conduct altogether. To insist on constrained maximization in this instance is not to offer the virtuous an efficient means to their ends, but to propose a different way of life (see Hill 1993a; Phillips 1992).

Besides their failure to address the practical concerns of the virtuous, whose purposes may be formulated individualistically, subjectivist contract theories fail to account for one of the important ways in which we interact with others. By taking instrumental rationality as our deepest self-understanding, these con- tractarians are led to regard other persons either as part of our ends, a possibility which they reject, or as a means to our ends, which is in fact how Buchanan

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and Gauthier conceive of our relation to others (see Hampton 1991). A third possibility, which takes its point of departure from within our practice of assessment and criticism, involves regarding others as persons to whom we justify our conduct (Scanlon 1982). From this perspective, Gauthier's own treatment of justification is deeply flawed. He fails to notice that justification is addressed to others in a way which presupposes a readiness to take account of their claims and interests. To indicate how a particular course of action advances one's own ends, though it frustrates the efforts of others, is to explain one's conduct, but, without further elaboration, is certainly not to justify it. Indeed, what subjectivist contract views disavow is what usually counts as a justification for action in such circumstances, that is, a reason which is independent of a person's own wants and desires.3

An important consequence of this failure to see justification as being addressed to others is that the substantive content of subjectivist contract theory, which valorizes the mutually beneficial exchanges of the marketplace, must be disagreeable to those who have little to offer. Persons who fare poorly in the distribution of natural endowments may find it rational to consent to political arrangements under which their condition is improved relative to a Hobbesian or Lockean state of nature, as in Buchanan and Gauthier, respectively, but we are entitled to ask whether this agreement is reasonable (see, eg., Hausman 1987).

Asking this question presupposes, of course, what subjectivist contract views deny, that there are irreducible normative notions which constrain the terms of an agreement that can be justified to everyone. These notions, such as fairness, equity, and the like, are not the product of agreement, but rather must be brought to bear upon the design of the contract setting, and particularly upon the description of the baseline from which the parties are to seek agreement, if the bargain agreed to is going to avoid being arbitrary and capricious. Once these norms are incorporated in the contract setting, the contract alone can no longer be relied upon to do all the justificatory work. This should not be regarded as a shortcoming, however, since the idea of agreement, itself, embodies norms such as the absence of fraud and negotiation under duress. By seeking justification in the notion of agreement, the contractarian is already committed to certain normative criteria which, if not satisfied, deprive the contract of its prescrip- tive force.

To summarize, the contract arguments advanced by Buchanan and Gauthier are at once not subjective enough and too subjective. They deny subjectivity its due in rejecting the agent's own concerns when these include the interests

In offering this criticism, I am of course rejecting the central premise of subjectivist contract theory, i.e., the denial of impersonal norms. For a discussion of the role of such norms in justification, see Cavell (1969) and Pitkin (1972).

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of others or when they embody conceptions of virtue. And these views are too subjective in that they fail to account for the justificatory role of reasons which are independent of the agent's particular desires and interests. A plausi- ble contract theory cannot simply reject the practice of moral justification. Rather it should help us understand it.

RAWLSIAN CONTRACT THEORY

Unlike subjectivist contract views, which aim to discover the most efficient social arrangement for serving each person's antecedent ends, Rawlsian contract theory seeks a set of principles in terms of which free and equal citizens can justify their institutions on grounds that everyone can affirm (see, in particular, Rawls 1971, 1980, 1985, 1993). This aim involves a rejection of the metaethical and psychological claims of subjectivist contract theory. On the one hand, Rawls believes it is possible to construct a public system of norms that can serve as an impersonal basis on which to evaluate conflicting claims and interests. And, on the other hand, he assumes that persons are capable of being moved by reasons that make no reference to their prior ends and purposes.

On this understanding, morality is not a subordinate notion, a means to nonmoral ends. On the contrary, while Rawls does not begin with a doctrine of individual rights like that found in classical social contract theory, he does begin with certain irreducible moral ideas which are not derived from the subjective ends of individuals (see Freeman 1990). These moral ideas, in turn, are incorporated in the original position, which is designed to model the deliberation of free and equal persons, and, under the conditions imposed by the veil of ignorance, is constrained to insure that the principles agreed to by the parties are fair.

The way in which agreement provides a justification for the principles agreed to in Rawlsian contract theory also differs from the justificatory scheme found in subjectivist contract views. Since the parties who come to agreement are ignorant of their conception of the good, the principles agreed to need not advance the particular ends and purposes encompassed by this conception. In- stead, Rawlsian contract theory approaches the problem of justification from a different vantage point, addressing us in our role as free and equal persons who are interested in cooperating with one another on fair terms. Citizens will accept these terms as a public system of norms and will be moved to respect them in their conduct insofar as they regard themselves as free and equal moral persons.

If, as Rawls argues, the task of social contract theory is to enable citizens to "make mutually acceptable to one another their shared institutions and basic arrangements" (Rawls 1980: 517), then the question facing the contracting parties is no longer "what social arrangements will advance my ends?" but "what

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principles might serve as a basis on which we can justify our institutions to one another?" However, while the question put by Rawlsian contract theory seems to be the right one, it is less clear that the agreement he envisions will do the requisite justificatory work.

To begin with, Rawls's characterization of the parties' decision making in the original position strips the contract idea of much of its inherent appeal. The justificatory force of a social contract argument lies in the notion of agreement. Although I have suggested that agreement alone need not do all the justificatory work, it must carry the major burden if the argument is to succeed as a contract argument. In A Theory ofJustice, however, the notion of an agreement among persons with diverse interests gives way to the idea of a rational choice under conditions of uncertainty (for a criticism of this approach, see Scanlon 1982: 120-26; Gauthier 1990: 181). Instead of seeking principles that would be reasonable from everyone's position, Rawls is after principles that would be chosen in ignorance of one's position. And while the latter exercise is useful insofar as it involves asking what would be reasonable from different points of view, it is less persuasive when interpreted simply as a problem of rational choice.4

Rawls's initial formulation of the contract problem raises two difficulties, the first of which can be traced to the combined effect of the veil of ignorance and the maximin decision rule. Since the parties in the original position are ignorant of their particular ends, their social position, and their natural endowments, the circumstances of choice are the same for everyone. And, since the parties universally adopt maximin as the preferred rule of choice in this situation, there is nothing to differentiate their individual viewpoints from one another. Consequently, as Rawls points out, "we can view the choice in the original position from the standpoint of one person selected at random" (1971: 139). Now, as a method for arriving at impersonal principles of justice, this approach may have some merit, but one is hard-pressed to call it a contract argument, if by such an argument we mean one which seeks justification in the idea of agreement (see Hampton 1980).

The second difficulty with this version of the contract argument, apart from the absence of multiple parties with different points of view, is the ambiguity surrounding the reasons that move the individual decision maker in the original position to accept Rawls's two principles of justice. It is important to ask, as Scanlon does (1982: 124-25), "whether this single individual is held to accept a principle because he judges that it is one he could not reasonably reject whatever position he turns out to occupy, or whether, on the contrary, it is

4 Rawls has since moved away from his conception of justice as fairness as a branch of the theory of rational choice (see Rawls 1985: 537, n. 20).

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supposed to be acceptable to a person in any social position because it would be the rational choice for a single self-interested person behind the veil of ignorance"' The first reason for accepting a principle, i.e., because no one could reasonably reject it, fits comfortably within a contract argument that seeks agreement among persons who are willing to consider their interests impartially alongside the interests of others. It is not so clear, however, whether the second reason for accepting a principle of justice, i.e., because it would be the rational choice of a self-interested person in conditions of uncertainty, will yield the same result. The issue, in short, is whether the idea of what is reasonable from everyone's perspective, which involves a complex, all-things-considered judgment, can be adequately modeled by the much simpler notion of a rational choice by a single individual under conditions of radical uncertainty. In the next section, I shall argue that the outcome of this choice, Rawls's Difference Principle, is not, in fact, one that every reasonable person must accept.

The idea of rational agents choosing principles in the absence of any knowledge about their particular identity is one way in which Rawls presents the notion of a fair agreement, but there are other approaches he pursues as well. For instance, Rawls says that the original position is constructed so as to model the deliberation of free and equal persons. By asking persons so conceived to decide which conceptions of freedom and equality they favor, and how these conceptions should be fit together in a coherent whole, Rawls hopes to break the impasse in our public culture between two competing views, roughly those of Locke, who gave precedence to the civic rights of the person in conscience, property, and association, and Rousseau, who gave priority to social and political equality and to the values of public life (Rawls 1980: 520; 1993: 4-5).

Trying to settle this dispute by constructing a thought experiment in which the issue is put before parties conceived only as free and equal persons should arouse our suspicion, for the conflict between Locke and Rousseau is a conflict, at least in part, about what it means to be a free and equal person.5 And, in fact, Rawls begs the question by constructing a Kantian conception of the free person that is much closer to Rousseau's understanding than to Locke's. On Rawls's Kantian account, our freedom consists not in our claiming the right to affirm a particular conception of our good, since such conceptions "depend on our abilities and opportunities, on the numerous contingencies that have shaped our attachments and affections" (1975: 537). Rather, our freedom consists in our claiming the right to view ourselves, in public life at least, "as not identified with any particular conception of the good, or scheme of final ends"

5 On the different conceptions of a free person held by Locke and Rousseau, see Wood (1972: 36-46) and Shklar (1969: 70-74).

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(1985: 241). The difficulty here is not that this latter conception of a free person is wrong, but that it is one-sided; free persons claim the right, and have the capacity, to step back from, and critically assess, their particular ends, just as they claim the right, and have the capacity, to commit themselves to a particular scheme of ends.6 If our aim is to model the deliberation and ultimate agreement among persons understood as being free in this dual aspect, then it seems more natural to allow the parties in the original position the knowledge of the particular ends they have chosen, along with the capacity and willingness to reflect upon, and to alter, these ends as they strive to reach an accord with one another.7

Rawls also has a third way of framing his contract theory, which incorporates the idea of an "overlapping consensus" and which is both less vulnerable to the criticisms mentioned above and much closer to the notion of agreement found in dual contract theories (1987; 1993: 133-73). To begin with, Rawls argues that while a Hobbesian contract, which specifies a modus vivendi, may have been appropriate to its time of deep social conflict, we have since had the benefit of three centuries of democratic practice around which a moral consensus has formed. Thus, it is not unreasonable to suppose, as Rawls does, that our public culture incorporates "the fundamental intuitive idea of political society as a fair system of social cooperation between citizens regarded as free and equal persons" (1987: 7). This much, arguably, we share in common. But, in addition, Rawls argues that this political conception of justice is one which is capable of drawing support from a wide range of religious and secular doc- trines the adherents of which can affirm justice as fairness from within their own comprehensive vision of the good.

What is attractive in this version of Rawls's contract argument, as opposed to the versions discussed above, can be brought out by reference to the distinction between reasons which are agent-neutral and those which are agent-relative (Parfit 1984: 184). Whereas agent-neutral reasons apply to anyone, agent-relative reasons refer to those considerations that are interwoven with our individual histories, aims, and convictions. In the first two versions of Rawls's contract argument discussed above, the parties are ignorant of their particular ends and therefore can only be moved by reasons which are agent-neutral. By contrast, Rawls's notion of an overlapping consensus admits both agent-relative and agent- neutral reasons and thereby appeals to the two sides of our nature, that is, to our identity as particular persons with deep convictions and attachments

6 See, for example, the discussion of the two moments of the will in Hegel (1967: 21-24).

7 Rawls, by contrast, assigns a "highest order interest" to the development and exercise of our capacity to choose, but no value at all to the actual choices we have made (Rawls 1980: 525). See also Freeman (1990: 130).

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and to our capacity to be moved by reasons that make no reference to our particular ends, but which address us (in Rawls's formulation) in our role as free and equal citizens.

DUAL CONTRACT THEORIES

The two contract views considered so far are, for the most part, single-minded in their conception of the reasons that move persons to agreement. On the one hand, subjectivist theories acknowledge only reasons that address us from the standpoint of our personal concerns, that is, given our particular desires, ends, and purposes. On the other hand, Rawlsian contract theory, apart from the overlapping consensus idea, excludes motives arising from these particular concerns and instead recognizes only impersonal reasons in the contract setting of the original position. In contrast to these unitary theories, dual contract views envision an agreement among persons who are willing to acknowledge claims that arise from the subjective and impersonal standpoints, both in themselves and in others.

This dual outlook implies a critique of the moral psychology of subjectivist and Rawlsian contract views. Against subjectivist views, dualists like Nagel and Scanlon contend that persons have the capacity to consider their interests from an impersonal vantage point, viewing their concerns impartially alongside the interests of others.8 Moreover, they both assume that persons are not motivated solely by their own purposes, but are able to act on the basis of reasons which make no reference to their particular wants and desires (Nagel 1970; Scanlon 1982: 117). The trouble with Rawlsian contract theory, on the other hand, is that it fails to recognize that some moral considerations arise from the very nature of our particularity, from the fact that human beings legitimately view their own interests and commitments differently than they view the concerns of others, a distinction which is essentially lost behind the veil of ignorance.9 This ethical point carries with it a corresponding psychological point, which is that feasible political institutions must be designed so that the requirements of impartiality can reasonably be met by individuals with strong personal motives.'0

8 Nagel is more explicit in his dualism than Scanlon, but Scanlonfs conception of principles that "no one could reasonably reject as a basis for informed, unforced general agreement" encompasses both agent-relative and agent-neutral considerations (Nagel 1986: 171-75, 1991: ch. 2; Scanlon 1982: 110-15).

9 In my view, Nagel does not sufficiently stress the difference between his contract theory and Rawls's, but see Nagel (1987: p. 220, f.n. 5). Scanlon exhibits a similar ambiguity in his assessment of Rawlsian contract theory (Scanlon 1982: 123-28).

10 See the criticism of Rawlss Difference Principle below and Nagel (1991: 18).

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Nagel's dualism produces a contract theory that seeks to answer three questions: (1) what institutional design is best taking impartial account of everyone's interest? (2) what responsibilities can each person willingly meet given both her answer to question 1, as well as considering her own personal commitments? and (3) what can each person expect others to agree to given their answers to questions 1 and 2?

In answering these questions, Nagel begins by suggesting that when we view matters from the impersonal standpoint, giving equal consideration to everyone's interests including our own, we are driven to give primary attention to the claims of those with the most urgent needs (Nagel 1991: chs. 7 and 8). By contrast, when we view things as we ordinarily do, that is from our personal vantage point within the world, we are naturally inclined to favor our own concerns and interests without which we would cease to be the particular persons we are. Finally, when we return again to the impersonal standpoint, we must recognize that everyone has strong personal interests and commitments, and that this fact necessarily constrains the range of principles that everyone can reasonably accept.

The idea of a reasonable accommodation among persons who are partial to their own concerns but capable of impersonal judgment suggests a critical standard against which the agreements of subjectivist and Rawlsian contract theories can be assessed. With regard to the market-based societies advocated by Buchanan and Gauthier, the dualist might naturally ask whether it is reasonable for the well-endowed to expect the severely disabled to agree to an arrangement under which their survival depends upon the charity of others. Would it not be more reasonable to expect the well-endowed to pay taxes and to give up some of their less essential projects so that the disabled could have projects at all? (Nagel 1991: 64-70; Scanlon 1981: 112-13).

The critical force of this question presupposes of course what subjectivist contract views reject, namely that we are able to consider alternatives on the basis of something other than our own desires and interests. I cannot defend this assumption here except to point again to the practice of justification wherein we typically appeal not to our own ends, but to impersonal norms and stan- dards. Calling this practice into question root and branch, as Buchanan and Gauthier advise, does not involve a substantive disagreement, but a rejection of the form of life in which such disagreements are possible (see Hurley 1989: chs. 3 and 6).

The idea of an agreement among persons who acknowledge the legitimacy of strong personal motives both in themselves and in others also gives rise to considerations which are absent from the contract setting of Rawls's original position. I have already mentioned Scanlon's criticism that the notion of an agreement which is reasonable for everyone is something quite different from

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the notion of a rational choice under conditions of uncertainty Instead of pro- ducing principles that can be justified to everyone, Rawls's use of the maximin decision rule, and the Difference Principle which follows from it, focuses exclusive attention upon the position of the least well off no matter what their level of income. While this solitary concern can arguably be justified to everyone when the income of the less advantaged is relatively low, it becomes increasingly dif- ficult to justify as their income rises (Nagel 1991: 73 and 80; Scanlon 1982: 123; see also Sen 1974: 283-92).

Such considerations do not intrude upon the parties' deliberations in the original position because they judge alternative institutional arrangements exclusively from the vantage point of the naturally disadvantaged, as if the well endowed, apart from their productive capacity, did not really exist. If, by contrast, we take seriously the notion that persons legitimately view their own concerns and interests in a special manner, if, in other words, we acknowledge the claim of partiality, then recognition must also be given to the viewpoint of those advantaged by nature. Otherwise, to borrow a phrase from Rawls, "the strains of commitment" will be borne exclusively by this one segment of the community (1971: 145).

It is one thing to argue that Rawlsian and subjectivist contract views fail to acknowledge the claims arising from the subjective and impersonal standpoints, respectively. It is quite another to put forward an alternative conception of the political order that would be agreed to by persons acting on the basis of these dual considerations and to do so at the same level of specificity that Buchanan, Gauthier, and Rawls have achieved. Having rejected the market- oriented outcomes of subjectivist contract theory and the rational egalitarianism of Rawlsian contract theory, there remains the important task of showing which of the many distributive principles that lie between these alternatives can be justified to persons who are partial to their own concerns but willing to consider the claims of others.

Although dual contract theorists have yet to produce a detailed description of the principles and institutional arrangements that would be agreeable to persons moved by subjective and impersonal concerns, Nagel (1991: 86) has suggested that the claims arising from these conflicting viewpoints might be accommodated through a "moral division of labor" in which "the bulk of agent-neutral values [would] be realized by background institutions, leaving us relatively free to pursue agent-relative values in our personal lives'" Under this scheme, the moral personality of each citizen is carefully partitioned; we are to be "publicly egalitarian,' while, at the same time, we are allowed to be "privately partial.'

Unlike Rawls, who has proposed a similar dichotomy of public and private concerns in response to his communitarian critics (1985: 240-42; 1993: 30-33),

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Nagel concludes that such a division of our moral life is a "pipe dream;" the unencumbered pursuit of personal interests in private life must erode public support for social institutions that serve the impersonal value of equality (1991: 115-19). Unfortunately, Nagel offers no other solution, nor does he leave the impression that one is even possible. Insofar as we accept "egalitarian impartiality, personal interests and commitments, and consideration for what can reasonably be asked of others" as distinct types of reason that bear upon the choice of political principles, we must also accept that "together these may fail to pick out any solution on which all reasonable persons must converge" (1991: 172).

It would seem that the very aspect of dual contract theory which is most attractive, i.e., its willingness to entertain diverse moral considerations, also threatens its ability to yield political principles that reasonable people could accept. This conclusion, however, is premature. Philosophers sensitive to the issues raised by the conflict of moral principles have recently argued that such conflicts can be rationally resolved without resort to a common currency of value (see, e.g., Hurley 1989; Benn 1988). In some cases, progress toward a resolution can be achieved by focusing upon the question of which value or principle is most salient in the particular context under consideration. In this regard, Nagel is too quick to reject a moral division of labor in which agent- relative concerns are allowed a predominant role in private life, while agent- neutral reasons occupy a more salient place in public life. Such an allocation of values might well be justified not by recourse to a third, higher order standpoint, but rather by a further elucidation of the nature of these two kinds of reason, themselves, and of the contexts in which each one is typically overriding.

Of course Nagel's main objection to this partition of public and private concerns is that is cannot be psychologically sustained; the exclusive pursuit of personal interests in private life will eventually undermine the citizen's loyalty to public institutions that serve impersonal values. Perhaps, but some institutional arrangements, which do not encroach too much upon the citizen's pursuit of agent-relative concerns, have managed to win public allegiance. For example, universal (as opposed to selective) social programs, such as national health insurance in Canada, elicit widespread loyalty in many countries." And insofar as citizens identify with these institutions, regarding them as an ex- pression of themselves, the psychological dichotomy between agent-relative and impartial concerns is less sharp, and the impersonal duties of citizenship less demanding.12

" The effect of universal social programs in sustaining citizen concern for the public good is explored in Kaus (1992).

12 I discuss the moral psychology of citizenship in greater detail in Hill (1993b).

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I do not mean to minimize the difficulties involved in finding a set of political principles that persons moved by subjective and impartial reasons could agree to. Nor do I believe that there is a configuration of institutions and social arrangements within which citizens would experience no conflict at all between agent-relative and impersonal concerns. On the other hand, the very fact that, in dual contract theories, the conflict between different types of reason expresses itself not only as a conflict between persons, but as a conflict within each person, gives rise to a special incentive to find solutions to the problems of political organization. For, just as the threat of social disorder provides the antagonistic parties of subjectivist contract theory with a reason to seek agreement, so the inner conflict occasioned by the clash of subjective and impersonal concerns provides each person with a powerful incentive to find a reasonable accommodation between these competing claims (see Scheffler 1992: ch. 8).

CONCLUDING REMARKS

A convincing social contract argument must find the right combination of deference to individual will, on the one hand, and the imposition of constraints upon this self-assertion, on the other. If an agreement is to engage the attention of persons who claim the right to form and act upon their own distinctive ends, then the parties to the agreement must have the freedom to choose in light of their practical concerns and interests. By the same token, if the principles agreed to are going to provide a basis on which persons can justify their conduct and institutions to one another, then each person, in trying to reach agreement, must be prepared to consider the claims and interests of others. Rational agency without limit produces, as in subjectivist contract views, an efficient coordination of individual activities but no public norms in terms of which persons can justify their conduct and institutions to one another And impartiality, when it is interpreted, as in Rawlsian contract theory, as a denial of our particularity, rather than as a recognition of the particularity of others, yields a result that resembles the choice of a single person rather than a genuine agreement among multiple parties with different points of view.

Dual contract theories hold promise because they encompass reasons that appeal to both sides of our nature: to our partiality and to our limited capacity to transcend it. An agreement reached by persons willing to consider claims arising from the subjective and impersonal standpoints, both in themselves and in others, might well be expected to produce institutional arrangements in which persons could pursue their particular ends in a manner consistent with the demands of impartial reason.

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Received: October 26, 1993 Accepted for Publication: February 2, 1994 Political Research Quarterly, Vol. 48, No. 1 (March 1995), pp. 101-116

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Documents

Reason and Will in Contemporary Social Contract Theory