06 Rights, Contracts, and Justice

Agreement and political authority

The social contract is a way to assess political authority and principles of justice by asking what rules people could agree to live under. It is usually a thought experiment, not a claim that everyone literally signed an agreement. Its purpose is to show how shared rules might be justified to the people who must live by them.

A contract-based argument holds that rules may be justified if people have good reason to accept them under fair conditions. Agreement alone is not enough: coercion, exclusion, or extreme inequality can undermine the justice of the resulting rules.

Hobbes, Locke, and Rousseau

Early modern social-contract thinkers gave different accounts of what agreement could authorize and what makes political rule legitimate.

• Thomas Hobbes argued that people have strong reasons to authorize a powerful sovereign to secure peace and protect them from violence.

• John Locke held that government is bound to protect natural rights, including life, liberty, and property. If government fails to do so, its authority may be resisted.

• Jean-Jacques Rousseau asked how people could obey laws while remaining free. He argued that legitimate law should express the people’s common political will.

Their views differ over which rights people retain, which powers government needs, and what makes its rule legitimate.

Rawls and justice as fairness

John Rawls uses the original position to assess society’s basic institutions: its constitution, legal system, economy, and other structures that distribute rights, duties, opportunities, and resources. In this hypothetical choice situation, parties choose principles from behind a veil of ignorance. They do not know their own class, talents, gender, religion, or position in society. Because they cannot know whether they will be advantaged or disadvantaged, the setup is intended to prevent them from tailoring principles to their personal place.

Rawls argues that the parties would select two principles, in priority order:

1. Equal basic liberties: Everyone is to have an adequate and equal scheme of fundamental liberties, compatible with the same liberties for others.

2. Fair equality of opportunity and the difference principle: Offices and opportunities must be genuinely open under fair conditions, and social and economic inequalities must work to the greatest benefit of the least advantaged.

Unequal pay, for example, might be permitted if the institutions producing it also improve the prospects of the least advantaged, while preserving equal basic liberties and fair opportunity. Rawls’s argument is not that every actual person has consented to these rules. The original position models fair terms on which free and equal citizens could agree.

Reasonable justification

Contractualism, especially the approach associated with T. M. Scanlon, asks whether principles can be justified to each person. Roughly, an action is wrong if it would be forbidden by principles that no one could reasonably reject as a basis for informed, unforced agreement.

This approach differs from simply adding up benefits and harms. A policy might give small conveniences to many people while imposing a severe, avoidable burden on one person. A simple total-benefit calculation might favor the policy; a contractualist asks whether the burdened person has a complaint that others could reasonably reject. The strength of each person’s reasons matters, as do the available alternatives.

Contractualism does not give anyone a veto merely for objecting. It compares whether an objection is reasonable with the objections others would have to the alternatives. Contractualism is related to, but distinct from, contractarianism: contractarian theories often explain rules through agreements among people seeking mutual advantage, while Scanlonian contractualism emphasizes principles justifiable to each person, not merely bargains that benefit those able to negotiate effectively.

Rights and justice

A right identifies something a person is entitled to or a claim that others must respect. Rights are often paired with duties: if someone has a claim-right to a fair hearing, officials have a duty to provide one.

Rights may be moral, legal, or both. A moral right is justified by moral considerations; a legal right is recognized by a legal system. The two need not coincide: a law may fail to protect a moral right, and a legal right may be challenged as unjust.

Rights also take different forms. A right to speak may protect a person from censorship, permit expression, or limit the government’s power to restrict speech. A negative right typically requires others not to interfere; a positive right typically requires provision or assistance. Many rights combine several kinds of protection.

Justice concerns what people are owed and how institutions should treat and relate to them. It includes fair procedures, equal status, rights, opportunities, and the distribution of benefits and burdens. A just society need not give everyone exactly the same resources. The question is which differences, if any, can be justified to those affected, and whether everyone’s basic rights and fair standing are protected.

Who must a rule be justified to?

Contract-based approaches face a central question: who counts as a party to the justification, and on what terms? Real bargaining can exclude people with little power. Hypothetical agreement may also reflect assumptions chosen by the theorist rather than genuine agreement by those affected.

Children, people with profound disabilities, future generations, and nonhuman animals raise questions about how to represent interests when direct participation is limited or impossible. Their interests cannot simply be set aside when assessing the justification of rules.

A sound justification needs more than efficiency or acceptance by a majority. It should identify who bears a rule’s burdens, take their interests and objections seriously, and explain why the rule is preferable to feasible alternatives. Reciprocity calls for institutions to be defensible to those subject to them as free and equal persons, rather than imposed on some for the convenience of others.