Original Position

Hi Simon,

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

In addition to the papers mentioned by Jonathan you might also look at Jean Hampton’s “Contract and Choice: Does Rawls Have a Social Contract Theory?”, Journal of Philosophy, 77 1980, 315-38, and some sections from Martha Nussbaum’s _Frontiers of Justice_ (I can’t recall the exact sections now, unfortunately.) These are critical accounts. Freeman responds to Nussbaum’s book (on this topic and others) in his review, “_Frontiers of Justice_: Contractarianism vs. the Capabilities Approach”, Texas Law Review, 85 No. 2, 2006, 385-430. Cynthia Stark also has a very nice paper, “Hypothetical Consent and Justification”, Journal of Philosophy 97, 2000, 313-34. (Daniel Brudney had an earlier paper, “Hypothetical Consent and Moral Force” in Law and philosophy in the early 90’s but I’ve not read it so can’t say how good it is.)

Simon -
For a dissenting view, I’d suggest looking at GA Cohen’s ‘Facts and Principles’ Philosophy & Public Affairs 31.3 (2003) 211-245. I think that it’s here that makes the point in print (he makes it frequently in conversation) that the OP cannot possibly have any fundamental justifactory force. Any force it has must be inherited from a deeper principle of the form, “If we would agree to P under the OP (described in such-and-such a way), then P,” and that principle in turn needs to be defended with a deeper, non-counterfactual principle. As I read it, the point is that the OP 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. As you may have noticed by now, I find this point very compelling!

Simon, I wonder if the form of argument there is different from this bad argument:

“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.

David -

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.

As it happens, and in your favor, I believe Rawls says somewhere in TJ that it is essentially a heuristic. And Josh Cohen regards it as a heuristic most clearly in his “Democratic Equality” in Ethics, vol. 99 (July 1989), pp. 727-751. Whether they’re right would be another matter, of course.

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.

On pages 24-6 of Political Liberalism, Rawls says that the original position is a way of representing and organizing our (in the sense of yours and mine, real people’s) reasons for adopting particular principles of justice (as well as showing which reasons are not good grounds for principles of justice): “As a device of representation the idea of the original position serves as a means of public reflection and self-clarification.”(26) This suggests that choice in the original position does not justify anything. The original position models (some of) the reasons we, concrete individuals, are supposed to affirm the two principles. I am not sure about this, but if choice justifies in the theory, it is the choice of actual, reasonable people, not parties to in an original position.