The Rawlsian Social Contract
Rawls’s theory - Not a genuinely contract theory at all?
The role of Rawls’s contract – crucial or dispensable?
In “A Theory of Justice” (Rawls, 1971), John Rawls tries to develop a conception of justice that is based on a social contract. His approach, doubtlessly, led to a revival of the contract theory in modern political theory. However, his peculiar conception of a hypothetical contract has also evoked a wave of severe criticism. Some of his critics settle for condemning special features of Rawls’s contractual concept, while others maintain that Rawls’s theory is, in effect, no real contract theory. In this paper, I will therefore focus on two research questions: Is Rawls’s theory a genuine contract theory at all? If yes, does the contract play a crucial role in this theory or is there a preferable alternative available to Rawls?
The Rawlsian Social Contract
I first want to briefly sketch the most important features of Rawls’s social contract. Far from giving a complete explanation of this highly complex conception, I will only focus on those features that are relevant for this paper.
Rawls’s main idea is that the principles of justice are the object of an original agreement: “Thus, we are to imagine that those who engage in social co-operation choose together, in one joint act, the principles which are to assign basic rights and duties and to determine the division of social benefits” (Rawls, 1971, p. 11). However, this original agreement is not an actual historical contract, but only a hypothetical one (p. 12). The justification of the principles arising from the contract therefore depends on the notion that they would have been agreed to under the given theoretical and hypothetical conditions. In other words, the contract can be called “as-iffed” (Hall, 1957, p. 663). Rawls is convinced that true principles of justice can only be developed under fair conditions. This is why his theory is called “justice as fairness” (Rawls, 1971, p. 3). To reach this aim, i.e. to create fair conditions as a basis for the original agreement, Rawls constructs an “original position” of equality. Though the original position “corresponds to the state of nature in the traditional theory of social contracts” (Rawls, 1971, p. 12) it is quite different in its composition. The desired equality of its inhabitants is reached through a “kind of complicated amnesia” (Sandel, 1998, p. 105) called the “veil of ignorance” (Rawls, 1971, p. 12). For our purposes, it is only important to know that this veil of ignorance leads to the fact that “no one knows his place in society, his class position or social status, abilities, his intelligence, strength, and the like” (Rawls, 1971, p. 12). Under the veil of ignorance, the parties of the original position are now facing a joint task: to agree on a contract that permanently fixes certain principles of justice which will be the basis for society once the veil of ignorance fades away. This procedure, in the end, leads to the two famous Rawlsian principles of justice (Rawls, 1971, pp. 11ff). For this paper, we can dispense with the actual content of these principles. More importantly, for our purposes, is to be sure about the peculiarity of Rawls’s contractual procedure. This procedure, namely, is hypothetical in a double sense: “It imagines an event that never really happened, involving the sorts of beings who never really existed” (Sandel, 1998, p. 105).
Rawls’s theory - Not a genuinely contract theory at all?
This first and most fundamental criticism maintains that Rawls, despite claiming so, does not produce a real social contract theory. This accusation is mainly related to three important features of Rawls’s theory: that his contract is purely hypothetical, that there is no state of nature in the theory, and that the contractors operate behind a veil of ignorance.
For Ronald Dworkin, a “hypothetical contract is not simply a pale form of an actual contract; it is not a contract at all” (Dworkin, 1975, p. 18). As one can see, this criticism not only relates to Rawls’s theory: “it applies to the use of any hypothetical decision model in ethics” (Freeman, 1990, p. 135). The argument can be illustrated by the example of a poker game, in the middle of which the two players find out that the deck is one card short. According to Dworkin, it is very unlikely that the losing player can convince the winning player to throw the hand in, even if he can convince the latter that both of them would have agreed to such a rule had the possibility of the deck being short been raised before the game. The same logic applies to those well-off in a society: Why should they accept rules that – based on a hypothetical contract – restrict their liberty by linking it to the benefit of the worst-off? As the contractors did not actually agree on it, the hypothetical contract seems to be non-binding and of no significance. Unfortunately, the self-evident solution to this dilemma, to replace the hypothetical contract with an actual one, is impossible. This would not only necessitate the remodelling of nearly all elements of Rawls’s original position, it would also rule out the justification of both principles of justice. As Rawls holds and Sandel shows, “actual contracts… cannot justify” (Sandel, 1998, p. 125) as they will always be afflicted with contingencies and conventions of some particular society.
Another problem seems to arise from the veil of ignorance and the lack of a state of nature, two linked features that clearly distinguish Rawls’s theory from the classic social contract theories. To illustrate the problem, Hampton cites two essential features of contractual agreements developed by legal theorists: first, parties involved in them give promises, and second, contracts involve an exchange (Hampton, 1980, p. 324-5). The second feature, exchange seems to be problematic when applied to Rawls’s contract.
The Rawlsian original position is not a state of nature, nor is the Rawlsian contract envisaged as an improvement on a state of nature. Therefore, the contractors are “not bargaining their way from a worse situation to a better” (Lessnoff, 1986, p. 141). Furthermore, Rawls even admits that the veil of ignorance leads to the fact that the “parties have no basis for bargaining in the usual sense” as “no one is in a position to tailor principles to his advantage” (Rawls, 1971, p. 139). By making the interests of all parties, in effect, identical, “we can view the choice in the original position from the standpoint of one person selected at random” (Rawls, 1971, p. 139). Therefore it seems that there is hardly anything to exchange. The veil of ignorance simply “rules out the making of a contract based on an exchange of considerations” (Hampton, 1980, p. 327). This even leads Schaefer to the claim that Rawls’s parties in the original position are “not human beings at all… they are unreal, purposeless, lifeless ciphers, unanimous in their anonymity” (Schaefer, 1974, p. 103). Sandel (1998, p. 122-32) comes to a similar ascertainment: despite Rawls’s claims (Rawls, 1971, pp. 28-9), the contract lacks two vital characteristics, namely plurality (of distinct individuals) and choice. It seems that the (identical) parties merely have to acknowledge principles already there. Consequently, this leads to a conclusion similar to that of Dworkin: “What goes on in the original position is not a contract after all, but the coming to self-awareness of an intersubjective being” (Sandel, 1998, p. 132).
How can Rawls’s theory be defended against such major accusations? Considering Dworkin’s objection, Rawls (in his response) maintains that a heuristic view of the agreement in the original position can solve this dilemma (Freeman, 1990, p. 135). It is thus seen as “a thought experiment designed for purposes of self- and political clarification” which “helps us understand what the combined force of certain generally accepted intuitive ideas and firmly held moral convictions that shape public reasoning commits us to” (Freeman, 1990, p. 135). Furthermore, Rawls’s hypothetical contract does not seem very problematic if we come to see that it serves in an evaluative rather than a legitimizing role. “The contract is envisaged as a test of the desirability and feasibility of the arrangement” (Kukathas/Pettit 1990, p. 27). So Rawls does not really need an actual contract for this (limited) purpose. Regarding the second objection, Lessnoff shows that bargaining is hardly a feature of all classic social contract theories: “Rather, each theory simply posits its own conclusions as the ‘obvious’ outcome of the contract, presumably optimum for all contractors” (Lessnoff, 1986, p. 141-2). In comparison to these classic theories, Rawls’s contract is even superior as it makes the exclusion of bargaining intelligible after all. Furthermore, not all contracts or agreements are like economic bargains. There are also agreements “to tie down the future, to keep the parties from later changing their minds and deviating from the shared norms or purposes of the association” (Freeman, 1986, p. 143). A good example can be found in the application of quality management. Employer and employee conclude a contract that fixes the goals of the employee for the next year. Though there is no real exchange involved, the contract provides stable and shared expectations, which benefits both parties. What is important therefore, is not an exchange that is fixed by the contract, but the outcome of the contract itself. Finally, given the desire to maximize control over the same primary social goods, which are limited in supply, the parties in the original position may even have conflicts of interest. And they certainly have a choice, although Rawls’s terminology is certainly unfortunate in many passages referring to this choice. Thus, it is clear that there is a list of different conceptions of justice between which the contractors have to choose (Rawls, 1971, p. 122-6). That they all choose the same principles is not a consequence of the fact that there is no real choice but a consequence of the condition of fairness and the finality of the agreement. Therefore, a contract between identical individuals does not have to be a contradiction: “Many identical individuals are still many individuals” (Lessnoff, 1986, p. 142).
 “The relevant agreement is not to enter a given society or to adopt a given form of government, but to accept certain moral principles” (Rawls, 1971, p. 16, emphasis added)
 This role of Rawls’s contract is also emphasized by Kukathas/Pettit (1990, p. 27ff).
 I will discuss this interrelation more detailed in the next section.