But I’m not sure what “heuristic” means here. The issue is related to the exchange about my reply to the “direct authority” objection to my normative consent account of authority. Mention of normative consent is removable for some theoretical purposes, but not necessarily when the question is the moral basis of authority. Anyway, I won’t go on here…much. I think Cohen is right that actual or hypothetical consent cannot be the deepest level of moral explanation, since there’s obviously a deeper principle stating the moral relevance of actual or hypothetical consent. And its moral force doesn’t rest on anything about consent. (Constructivism, then, is not any answer to metaethical conundrums about realism, etc., as I’m sure Rawls (unlike some Rawlsians) realized.)

But none of this would show that the OP doesn’t have justificatory force. It’s just that if it does, this is in turn based on a morally prior principle. Anyway, I’m way past anything useful to Simon May’s query.

Right, and reasons why appeals to the OP contain no fundamental justifactory force has to be to do with something special about the OP - the argument form in general is not enough.

As I see it, there are two relevant points. The first is that the OP uses the language of agreement, but does not carry the force of agreements.

(That’s because it’s a hypothetical agreement, and a merely hypothetical agreement is no agreement. “I’m justified in borrowing your car because you consented to my borrowing your car. Not actually, of course, but you would have if you were fully informed and rational.” No justification there!)

Second, the description of the OP is so delicately tuned - in terms of what the agents are like, what information they have access to, what their motives are, who gets in and who doesn’t… - that it cries out for extra explanation (in a way that a simple appeal to actual consent does not). Why should *that* particular strange hypothetical scenario be so important?

For what it’s worth, I think that these are two points about the OP that are often forgotten. People often do seem to take it to have the force of a kind of agreement, and forget just how complicated (some would say “gerrymandered” - including, perhaps, Rawls himself) the description of the OP is.

I should be clear that I’m now officially making it up as I go along. I don’t know how much of this is connected to what Cohen thinks.

“Joe consented to my borrowing his car” can never have fundamental justificatory force. Any force it has must be inherited from a deeper principle of the form, “If S consents to P, then P is permitted,” and that principle in turn needs to be defended with a deeper, non-counterfactual principle. The point is that consent can only ever be useful as a heuristic - it may be effective in pointing us towards sources of justification, but it cannot be such a source itself.

That doesn’t work, does it? The fact that P would be agreed to in the OP, like the fact that P was actually consented to by S, might be a crucial part of the moral basis for P even if this is itself explained by a deeper moral principle. Surely there is some deeper principle grounding the importance of consent (where it is important). But that doesn’t entail that the fact of consent is nothing but a heuristic. So why would a deeper principle entail that the fact that P would be agreed to in the OP is nothing but a heuristic?

I’m not taking a stand on whether the OP is nothing but a heuristic. Just wondering about that argument.

I’m specifically interested in accounts of why the OP has moral force that give extensive treatment to the strains of commitment argument. One of the things that I am interested in is trying to figure out why, if we’re not interested in the OP as a way to understand our own quasi-contractual obligations, we should be at all interested in thinking of it as a contract for the parties in the OP in the first place. The Freeman book that Jonathan mentioned is, reading over it tonight, pretty good in saying that we’re modeling our intuitions about fairness in adopting the OP, but also that it is important that the OP agreement is a contract for the parties in it. This leads Rawls to argue that the OP should not be a bad faith agreement. I think that’s an important claim he makes, but I’m unconvinced that bad faith is the kind of thing we should worried about in the OP, primarily because I don’t see why we should care if it is set up as an agreement between parties or simply as the rational choice of a single individual. Freeman thinks it has to do with the need for the consensual stability of a WOS, but I think that would be an ultimately circular argument for Rawls to make.

I’m not sure if this is quite what you’re after, but there two pieces by Samuel Freeman that I’ve found very helpful:

‘Reason and Agreement in Social Contract Views,’ Philosophy & Public Affairs 19 (1990), 122-157.

Chapter 4 of his book, Rawls, published by Routledge (he responds briefly to the Dworkin objection in this chapter).

Cheers,
Jon