To adapt a popular meme from the Lord of the Rings trilogy, “One does not simply… rewrite the social contract”. It isn’t something we can change at will. It doesn’t drop from the sky fully formed. And, as we know, it wasn’t simply “written” in the first place. The codified aspects of the social contract—the laws, regulations, rituals and institutions that reflect a society’s view of itself and the relationships that hold it together—emerge from and rely on deeper, less explicit cultural attitudes, assumptions and expectations.
These inchoate cultural attitudes and practices are preconditions for the social contract, and anyone who wants to renew or reshape it will fail if she does not pay attention to these infrastructural underpinnings.
But what are they? What are the conditions for a strong social contract? In a series of engagements with contractualism across five decades, the philosopher Paul Ricœur (1913-2005) explores many of these preconditions. Ricœur’s engagement with social contract theory is focused primarily through the lens of John Rawls’ A Theory of Justice (1971) and subsequent works. Rawls is credited with pioneering the revival of social contract theory in the twentieth century, and his A Theory of Justice seeks to formalise the contract, developing a series of principles that will issue in a just contract whatever particular visions of the good the contracting parties happen to hold. This “formal” or “procedural” approach is, as we shall shortly see, the object of intense Ricœurian critique.
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Ricœur’s discussion of the conditions that foster a strong social contract can be divided into two categories: personal and structural. Personal conditions are those traits, qualities or convictions that must be present in individuals if they are successfully to enter or sustain a social contract on Rawls’ model. Structural factors are elements of the situation in which these individuals find themselves without which there could be no just or sustainable social contract.
Together, these personal and structural conditions account for the strength of the social bond (le lien social), which is more fundamental than the codified social contract and provides the context in which the contract is possible. The distinction between lien social and contrat social, between cultural-anthropological context and codified contract, will prove indispensable in distinguishing the legislative and regulatory facets of a social settlement from the more inchoate, implicit, tacit cultural traits upon which the contract relies.
Personal conditions
The personal conditions necessary for making and sustaining a social contract are, for Ricœur, qualities of the “capable human being” (MHO, 207). In discussing the necessary personal conditions for the social contract, Ricœur sometimes reiterates Rawls’ arguments and sometimes critiques them.
It is necessary for the social contract that, in Rawls’ “original position” behind the “veil of ignorance”, I am convinced that the other parties to the contract are morally equal to me, that their wills as like my own (AP, 134), that they are rational like me, free like me, self-interested like me, competent consistently and predictably to act in their own self-interest like me, solicitous to advance their own interests like me (J1, 79), and capable of understanding what every reasonable person is presumed to want to possess, as I am also capable (J1, 80, 104). They understand all the different principles of justice among which they must choose, as do I; they are convinced that all the parties to the contract will play by the rules, surrender their natural freedom and power equally (PR, 371), and remain equally constrained by its terms once it is in force, just as I will be (J1, 105). They all prefer discussion to violence, as I do, and they are all predisposed to be convinced by the best argument, as I am; they can feel the suffering of other people (J2, 218-9) and put themselves in the shoes of others, as I can (J1, 96-7), and despite their self-interest and capacity to sympathise with the pain of others they have a capacity for impartiality, as have I (J2, 218).
These individuals are devoid of any severe mental disability and, behind the veil of ignorance, they are stripped of ethnicity, gender, religion or other features which Rawls’ considers de facto dispensable but which might be thought by others to be fundamental to an individual’s identity and not liable to be bracketed as the contracting parties behind Rawls’ veil must do. To a man[1] these contracting parties are competent psychologists, economists and political philosophers… not unlike Rawls himself. It seems that such stable, educated, bourgeois, docile and utopian subjects hardly need a contract at all; all the hard work to bring them to this harmonious, pro-social, public spirited way of being has already been done.
By far the most important arm of Ricœur’s discussion of the personal conditions of the social contract is the place of convictions or intuitions about justice. Rawls assumes an intuitive consensus about what justice is, giving this intuitive understanding a prominent place in A Theory of Justice by arguing that his theory issues in a “reflective equilibrium” between the theoretical articulation of principles of justice and our “considered convictions” of what is just (TJ 20, 48-50).
For Ricœur’s money, these convictions or “commonly shared presumptions” (TJ, 18)[2] play a more decisive role in the formulation of Rawls’ theory than the author of A Theory of Justice he is willing to admit. Rawls’ whole argument, in fact, serves only to rationalise the considered convictions that he introduces prior to any discussion of the original position or the veil of ignorance (J1, 88; L1, 211): “it is not a question of a linear argument, but a progressive clarification of the pre-comprehension of what justice signifies” (J1, 90).[3] How can Rawls’ theory be purely procedural, Ricœur complains again and again, when it rests upon the teleological vision of the good embodied in the convictions about justice that we are all supposed to share? It is a pre-comprehension of the just and unjust that inevitably informs Rawlsian proceduralism, and A Theory of Justice is a grand thought experiment engineered to justify what Ricœur calls our (or rather Rawls’ own) “ethical pre-comprehension” (L1, 223-4).[4]
In addition, these considered convictions that make us cry out at flagrant violations of justice like torture and slavery already demonstrate a sharing in common that the social contract is meant to found (L1, 224). In short, the relationship between considered convictions and Rawls’ theoretical principles of justice is circular. However, far from seeing this as a problem to be overcome Ricœur considers it a virtue to preserve. If we abandon this virtuous circularity, what we are left with is either ahistorical intuitionism or artificial constructivism (L1, 230).
Structural conditions
The structural conditions informing the Rawlsian contract are fewer, but no less decisive. Rawls’ original position behind the veil of ignorance is a baroque milieu indeed. What the putative contractors do and do not know, can and cannot do, is tightly prescribed in intricate detail.
There is a carefully curated list of principles of justice from which they can choose (L1, 266-7), and everyone has the same information about the principles of justice among which they must choose (J1, 105). In addition, these individuals exist in a social context in which people generally feel that they will be held to account for their actions, in which trustworthiness is socially desirable, in which there is a “principle of faithfulness” (SMCA, 309-10),[5] namely that keeping one’s word is a highly valued behaviour and can normally be expected of others (J1, 12, 36-7, see also SMCA 312), and in which keeping the Golden Rule is seen as positive. The social contract relies on an expectation of promise-keeping that itself relies on mutual trust and mutual recognition.
Additionally, and crucially, the Rawlsian world is also furnished with a common desire to live together (vouloir vivre ensemble) that, whether it is born of reciprocal competition or mutual generosity, makes all the difference between the social contract as a hypothetical fiction and as the basis of actually existing societies (SMCA, 275-6). Ricœur acknowledges the influence of Hannah Arendt’s notion of “living together in the world” on this idea of the vouloir vivre ensemble (US, 71), and Rawls himself acknowledges this impetus, calling it in both A Theory of Justice and Justice as Fairness the “scheme of cooperation” of a society (see, for example, TJ, 13-14; JF, 63).
The contract also relies on a particular cultural heritage. Rawls’ proceduralism and his sense of justice “result from a long Bildung issuing from the Jewish and Christian traditions, as well as Greek and Roman. Separated from this cultural history, the rule of maximin would lose its ethical character” (J1, 96, see also L1, 229).[6] The teleological vision at the heart of Rawls’ considered convictions is nothing other than the Golden Rule applied on the level of institutions rather than on that of individuals (J1, 93-4).
Perhaps most crucially of all, there is the indispensable widespread belief that the contract itself is valid, fair and binding: “The acceptance of validity is the belief on which legality rests” (IU, 270).[7] It is this confidence in the fairness and validity of the contract that we see under such strain today, exposed by the Black Lives Matter movement as well as by concerns about sustainability and the power of multinational corporations. Asked in 1999 about the health of the social contract, Ricœur replies “my fear is that public trust no longer upholds it” (US, 70).[8] Whether or not Ricœur is true in his diagonsis of the sitaution at the turn of teh millennium, what is clear from this comment is that he considers the social contract to be fiduciary: like the paper money that circulates in modern societies, it stands on falls on whether people are willing to put their trust in its value, and whether they believe that others in society also respect its fiduciary worth and don’t try to cheat the system.
In addition to these personal and structural conditions, Ricœur also has a lot to say about how the social bond is produced through its own representations: symbols, metaphors, myths and narratives that do not merely describe or reflect a preexisting social bond but actively create it. I will discuss these representations in a future post.
The importance of the social contract’s cultural infrastructure
So what can we learn from Ricœur’s discussions of the personal and cultural conditions of the social contract? Whatever the niceties of the individual points that Ricœur makes in relation to Rawls, one insight of first importance is that the social contract as a legislative, regulatory, even civic reality is downstream of a complex web of anthropological and cultural practices, habits, traditions expectations and assumptions. To talk of rewriting the social contract without addressing these conditions of possibility and validity is like trying to fix an old and rusting car with a faulty engine by simply giving it a new lick of shiny paint. The effect may be impressive in the short term, but the chances of sustained renewal are slim.
If we are serious about renewing or rewriting the social contract, we must attend as a matter of priority to its cultural, ethical and social engine, not only to its regulatory or legislative paintwork.
Image by skitterphoto on Pexels
Abbreviations. All translations are my own.
AP Ricœur, Anthropologie Philosophique
IU Ricœur, L’Idéologie et l’utopie
J1 Ricœur, Le Juste 1
J2 Ricœur, Le Juste 2
JF Rawls, Justice as Fairness
L1 Ricœur, Lectures 1
MHO Ricœur, La Mémoire, l’histoire, l’oubli
SMCA Ricœur, Soi-même comme un autre
TJ Rawls, A Theory of Justice
US Ricœur, L’Unique et le singulier
[1] The choice of words here is not idle. See Carole Pateman, The Sexual Contract (Cambridge: Polity Press, 1988), in which Rawls is discussed at length.
[2] “présuppositions communément partagées”.
[3] “nous n’avons pas affaire à un argument linéaire mais à une clarification progressive de la précompréhension de ce que la justice signifie”.
[4] “précompréhension éthique”.
[5] “principe de fidélité”.
[6] “Non seulement la visée déontologique, mais même la dimension historique du sens de la justice, ne sont pas simplement intuitives, mais résultent d’une longue Bildung issue de la tradition juive et chrétienne aussi bien que grecque et romaine. Séparée de cette histoire culturelle, la règle du maximin perdrait sa caractérisation éthique”.
[7] “L’acceptation de la validité est la croyance sur laquelle repose la légalité”.
[8] “mon inquiétude est que la croyance publique ne la porte plus”.
