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Autonomy, Normativity and the Nature of Contractual Obligations

19 July 2012

The vacillating I did over my thought experiment regarding a contract-based model for understanding human relations with plant and animal life lead me to do some pondering over the relation between contractarian and contractualist modes of social contract theory and where/how these alternative modes locate moral normativity. This is an interesting and important meta-ethical question which is often ignored in social contract theories, which tend to lean upon the meta-ethical assumptions of the normative ethical theories upon which they are constructed, be it the natural moral normativity of natural law, the the humanist/personalist assumption of human moral normativity, or the rationalist intellectual normativity of Kantian-inspired liberal contractualism. Why I would hardly endeavour to analyse and lay out the meta-ethics of every social contract theory (a no doubt worthwhile project but one more suited to a magnum opus of intellectual historical scholarship than to a blog post) I would like briefly to examine the question of moral normativity, particularly as it relates to the problematic of autonomy, and its relevance to the nature of contractual obligation(s) in post-scholastic social contract theory. [1]

Autonomy is without doubt the great bugbear of social contract theory. Though it was not recognised as such until recent post-Enlightenment theorists like Jefferson and Burlamaqui it poses an question to social contract theory which cannot be ignored: ‘why ought I participate in the contract?’ The answer to this question is, perhaps somewhat counter-intuitively, intimately tied to the problematic of moral normativity. Autonomy is no more a problem for social contract theory than for any other normative moral theory. The problem is that social contract theory is a broad family of theories employing diverse and even conflicting meta-ethical first principles. The natural legalism of Molina is quite different from that of Carmicheal and neither can be reconciled with the rational constructivism of Rawls. Different streams of social contract thought relate to the problem of autonomy in different ways, though for each the problematic remains essentially the same.

Without a bar against which to measure actions it is impossible to make moral determinations. This ‘bar’ is moral normativity, the measure, external to the actions themselves, which determines their moral valence. Moral normativity can be thought of as consisting in two elements, an ontological one and a linguistic one. The ontological component is the actual existence of a moral norm. The linguistic component is the referent which lends meaning to moral statements. Without a stable core of meaning statements such as ‘action X is good’ are unintelligible because ‘good’ is open to any number of interpretations and therefore effectively meaningless. I do not intend to argue for or against the ontological reality of one or more moral norms in this discussion. Though I do hold to the existence of such and, indeed, a particular form of such, for the purposes of this discussion it is sufficient to establish that social contract theories all embrace some form of cognitivism.

Moral normativity is, in essence, that which can bind the autonomous person to the social contract on a deeper level than simple consent. Though no one is bound to respect moral norms any more than he or she is bound to respect the contract, external moral measures way more heavily upon the person than the mere fact of the existence of a mutually beneficial contract or the consent of the many to that contract. Therefore the most broadly appealing and binding contract is the one whose stipulations accord with the external moral norm(s) acknowledged by the contractors and/or would-be contractors. That this reality is highly intuitive may account for the fact that over the course of the past 400  years the theories of moral normativity underlying social contract theories have largely reflected the meta-ethical and normative ethical assumptions of their eras. The problematic that always remains is establishing the necessity of the movement from that underlying assumption to the stipulations of the contract. To make an overused but edifying example, the transition from the state of nature, characterised as ‘the war of all against all’ to the state of social contract and dominion of Levianthan in Hobbes is justified by the inherent insecurity of humanity’s natural state. It is a matter of prudence,  not of moral or logical necessity, that we accept the loss of freedom that comes with the increase in security (this is inherent to Hobbes’ theory and could not be otherwise but it is the clearest example of the problematic I wish to draw out). The great challenge which faces any would-be contract theorist, then, is to establish the necessity of the movement from his or her theory of moral normativity to his or her specific social contract theory.

Perhaps the best, and certainly the best-known, social contract theory which addresses this dual problematic is Rawlsian liberal contractualism. Moral normativity in Rawls’ thought it located in the contract itself as the expression of the rationally self-interested agent. The difference between Rawls’ rationally self-interested agent and Hobbes’ prudential agent is that rational self-interest as Rawls envisages it involves a universally accessible content, determined by the strictures of reason rather than ontologically independent of it, which fact attests to the influence of Kant on Rawls’ thought. Self-interested reason can access the universal standards of moral normativity and apply them to the social contract from behind the veil of ignorance to construct a maximally just society with maximinimal standards of equality throughout, which society serves the self-interest of every agent still behind the veil of ignorance. Rawls’ theory thus reconciles the problematics of autonomy of normativity to a greater degree than most other social contract theorists by making upholding the moral normativity affirmed by the contract in the best interest of the autonomous agent. Of course there are problems with Rawls’ theory, particularly the untenability of the veil of ignorance and ex post facto, system-justifying nature of his work but these do not detract from his accomplishment with regards to the problematics here under discussion.

Rawls’ reconciliation of autonomy and normativity is not perfect. It is still within the power of the autonomous agent to effectively withdraw from the Rawlsian contract. His work does suggest, however, that joining the source of moral normativity to the stipulations of the contract itself, rather than adding a contract to pre-existing moral norms (or lack thereof) for prudential reasons, as we might suggest is the tack of Hobbes and the Scottish natural legalists, is the only means to address the problematic of autonomy in social contractual obligation. The same ultimate problem, that one can withdraw from the contract no matter how perfectly it is joined morality, will likely always remain but is at least minimised so long as a given social contract can be made to be joined as closely as possible to the strictures of moral normativity, rather than simply stacking contractual obligations atop moral assumptions.

Notes and Bibliography

[1] I have specific post-scholastic as the early proto-contractarian theories of the Second Scholastics took the social contract as being divinely decreed and/or intrinsic to human nature, thus employing meta-ethical and normative ethical assumptions which I will not address here.

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