Pandemic Justice post #2- The Social Contract (contemporary ideal theory)

This post continues my previous post, on the social contract tradition and an account of pandemic justice.

In the previous post I drew inspiration from the historical examples of non-ideal theorizing the social contract (Hobbes, Locke and Rousseau), and this post details the deficiencies of contemporary ideal theorizing of the social contract (esp John Rawls).

In the twentieth century the social contract tradition was revived. This was due, in large part, to new social contract philosophers like John Rawls, David Gauthier, Jurgen Habermas, and Thomas Scanlon, each of whom derived their own distinctive account of the social contract. But unlike the earlier social contact theorists, that were primarily focused on theorizing the non-ideal realities of the 17th and 18th centuries, 20th century social contract theorists were academic scholars who focused primarily on articulating justice as an “ideal”. As such justice was characterized as “fairness”, “mutual advantage”, or whatever consensus would emerge among participants in an ideal speech situation or the principles that no one could reasonably reject.

In John Rawls’s A Theory of Justice, arguably the most important work in political philosophy in the 20th century, Rawls sought to offer a moral theory to rival what was the dominant position in ethics at the time- utilitarianism. According to utilitarianism, a mode of ethical thinking going back to Jeremy Bentham and John Stuart Mill, the morally right act is that which produces “the greatest happiness of the greatest numbers”. The problem with utilitarianism, argued Rawls, is that it failed to recognize the “separateness of persons”, and as such it was a public ethic that permitted individual rights to be violated in the interests of the public good. To counter against utilitarianism, Rawls developed an account of what he called “pure procedural justice”. That is, Rawls attempted to describe a fair choice situation (his “original position”- where the social contract parties are all free, equal and impartial) and whatever the outcome was of this fair decision procedure must itself be a fair agreement.

Rather than endorsing the principle of utility, which would leave the contracting parties’ basic rights and freedoms and socio-economic needs (if they are the least advantaged) vulnerable, Rawls concluded that the contracting parties would agree to a social contract that prioritizes the principles of equal basic liberties for all, fair equality of opportunity and the difference principle (e.g. arranging socio-economic inequalities so they are to the greatest benefit of the least advantaged).

In Morals by Agreement David Gauthier advanced a neo-Hobbesian contract theory. Like Hobbes, Gauthier believed that rational self-interest was the foundation of morality and a theory of government. A rational social contract, he maintained, was one that improved all the contracting parties’ positions relative to their initial bargaining position of non-agreement. And this initial bargaining position was determined by a Lockean impartial standard, to ensure the effects of taking advantage of others was removed from the initial bargaining position. The “Lockean proviso” permitted Gauthier to champion a moralized Hobbesian state of nature. Rather than starting from a “war of all against all” baseline, the Lockean proviso started from the moralized baseline of rights to life, liberty and property. Rights, argued Gauthier, “provide the starting point for, and not the outcome of, agreement. They are what each person brings to the bargaining table, not what she takes from it” (Gauthier, 1986: 222).

Gauthier’s contactualism utilized complex concepts and theorems from rational choice theory and the substantive conclusion it reached was that a society that protected these Lockean rights with a free-market economy approximated this ideal contract.

Jurgen Habermas and Thomas Scanlon also derived social contract theories that closely resembled the spirit of John Rawls’s broadly neo-Kantian contract theory. Habermas’s theory of communicative action (see Moral Consciousness and Communicative Action) stipulates the conditions of an “ideal speech situation” (e.g. every subject with the competence to speak and act is allowed to take part in a discourse, everyone is allowed to question any assertion whatever, etc.) and the content of morality would be the consensus conclusions reached in such an ideal speech situation.

In What We Owe To Each Other Thomas Scanlon defends a similar version of contractualism, one that “holds that thinking about right or wrong is, at the most basic level, thinking about what could be justified to others on grounds that they, if properly motivated, could not reasonably reject” (page 5).

While these four 20th century social contract theorists invoke different aspects of ideas from Hobbes, Locke and Kant when deriving their versions of the social contract, what they share is that their primary focus is on elucidating an account of either ideal justice or the ideal circumstances (e.g. speech situation) for moral theorizing vs theorizing non-ideal circumstances or predicaments (which inspired the 17th and 18th century social contract thinkers). Reading A Theory of Justice, Morals by Agreement, Moral Consciousness and Communicative Action, and What We Owe to Each Other one wouldn’t get a clear sense that what the most pressing practical predicaments of the late 20th century actually were.

The Many Complaints Launched Against Rawlsian Ideal Theory

The social contract theorist John Rawls takes ideal theory to be the fundamental part of his account of justice, for it illuminates the “nature and aims of a perfectly just society”. Non-ideal theory, according to Rawls and his defenders , plays a secondary role, and concerns itself with the question of how the goals articulated by ideal theory might be realized. Rawls believes that, without an account of the perfectly just society, non-ideal theory lacks an aim.

But to theorize about “ideal” pandemic justice would be pointless as such an ideal would simply be a world with no disease! So outside of the obvious prescription of “eradicate and prevent all disease”, I do not think an ideal theory of pandemic justice is likely to yield important normative insights. While the ideal circumstances of “disease-free” existence would obviously be desirable, that will never be a reality for the mortal and vulnerable beings we are, existing on a planet that is hostile for all forms of life. And so I believe ideal theorizing is a distraction from the concerns of pandemic justice and, as such, threatens to perpetuate pandemic injustice by creating the false impression that justice is not concerned with protecting human populations from the known and unknown threats of infectious disease.

Charles Mills argues that what distinguishes ideal theory from non-ideal theory is that ideal theory “relies on idealization to the exclusion, or at least marginalization, of the actual”. Idealizations involve making claims that are actually false (e.g. like society being closed) in order to simplify an argument. By contrast non-ideal theory theorizes the actual and the non-ideal- like the fact that the world contains harmful viruses, and that we have inherited an evolutionary biology that makes us prone to infectious and chronic diseases as our populations age, and that the development of novel vaccines and treatments will be expensive and risky. Or the reality that stay-at-home orders will impose significant (and unequal) psychological and economic burdens, burdens on children, the unemployed and the elderly. The COVID-19 pandemic effectively illustrates why the time is ripe for developing a non-ideal theory of pandemic justice.

Critics of ideal theory have raised a plurality of objections to Rawls’s account of “justice as fairness” that stem from the myopic lens his ideal theorizing imposes. For example, feminists aspire to eliminate patriarchy and create a world with greater inclusion and substantive equality between the sexes. In order to achieve these aspirations it is important to develop an understanding of why patriarchy exists, why it persists, and how it might be abated. Why, for example, does the world have the pattern of patriarchy it currently possesses? And why do patriarchal practices and institutions evolve and modify the way they have tended to over time in human societies? These are important and complex issues that a theory of justice applicable to a patriarchal world should take seriously. And yet Rawls ignores such concerns when he assumes that, in his construction of the choice situation of the original position, the parties are “heads of families”.

Carole Pateman develops a feminist critique of Rawls in her book The Sexual Contract. The “representative” in the original position is, Pateman argues, “sexless”, “their bodies can be dispensed with”. By trying to ensure the choice situation of the original position is impartial, Rawls ignores the empirical reality that biological characteristics such as sex, and the sexual relationships between men and women, do dramatically impact the life prospects of males and females. By drawing our attention to a hypothetical “sexless” choice situation, we ignore the historical injustices of patriarchy.

Similarly Charles Mills critiques the neglect of race in Rawls’s idealized account of justice. Mills argues that ideal theory is a form of ideology that contributes to perpetuating illicit group privilege because it ignores the realities of racial injustice. Critiquing Rawls for his neglect of the actual history of injustice in the United States, in The Racial Contract Mills remarks: “So John Rawls, an American working in the late twentieth century, writes a book on justice widely credited with reviving postwar political philosophy in which not a single reference to American slavery and its legacy can be found”. And in “”Ideal Theory” as Ideology” Mills claims that such an omission perpetuates group privilege.

Rawls’s “simplifying assumption” that society is closed, and thus the focus of the deliberating parties is solely on distributing wealth, income and rights domestically, has lead to cosmopolitan critiques that this distorts the global scope of justice. In The Idea of Justice Amartya Sen argues that this limiting feature of Rawlsian contractualism has three distinct problems. Firstly, because justice is, at least in part, a relation in which obligations to each other are important, confining membership to the borders of a sovereign state skews the idea that we have duties that are owed to others, qua human beings. Secondly, ‘the actions of one country can seriously influence lives elsewhere’ (Sen 2009: 129). Countries are interconnected in diverse and complex ways. This is most evident when we consider the non-ideal realities of a pandemic. A country that does not attempt to contain, or mitigate, or test for the presence of the COVID-19 virus, for example, will, if it keeps its borders open, facilitate the global spread of the virus. There would not be any pandemics (only epidemics) in the world if the world’s countries were Rawlsian closed societies. This “simplifying assumption” distorts our moral deliberations because it brackets the importance of containment and mitigation measures to prevent the spread of legal viruses that can profoundly impact the health and wellbeing of people living in different parts of the world (as well as domestically).

Sen’s third concern with Rawls’s idealization that societies are closed is that neglecting all voices from elsewhere increases the risk of parochialism. He argues:

The point here is not that voices and views elsewhere have to be taken into account just because they exist- they may be there but entirely uncompelling and irrelevant- but that objectivity demands serious scrutiny and taking note of different viewpoints from elsewhere, reflecting the influence of other empirical experiences… If we live in a local world of fixed beliefs and specific practices, parochialism may be an unrecognized and unquestioned result. (Sen 2009: 30)

The perspectives of different geographies and histories are ignored by the closed impartiality of the Rawlisan original position. Increases in global warming (due to our reliance on fossil fuels), for example, could increase the transmission of malaria in tropical highland regions because it would increase the transmission season (as malaria is transmitted to humans via mosquito bites). The importance of science and innovation to societies with different geographies and histories ought to be at the forefront of our deliberations about pandemic justice. The fact that different regions of the world face different risks for infectious disease is a non-ideal reality that makes vivid the need for having the globally disadvantaged (and not just domestically disadvantaged) factor into our deliberations concerning the social contract for pandemic justice.

By looking through the “eyes of mankind”, Sen believes a theory of justice can better transcend the parochial distortion of government priorities that arises from closed impartiality. The domestic decisions countries like the United States make concerning a COVID-19 vaccine or treatment, travel bans, and economic policies during a pandemic (e.g. impacting manufacturing production) can have a profound impact, positive or negative, on the most vulnerable living in distant lands. Such consequences are ignored if the focus of a theory of justice is limited to the membership entitlements of those living in a closed and affluent society.

In my own research (here, here, here and here) I have critiqued the Rawlsian assumptions that all contracting parties are healthy, productive members of society, and that the “least advantaged” should be conceived of solely in terms of their social primary goods (like wealth and income) vs natural primary goods (e.g. health and vigor). In the Rawlsian ideal society, there is no illness, disease, disability or aging. It is a social contract for young, healthy adults living in a closed society insulated from infectious and chronic disease. I do not believe such a social contract offers much normative guidance to the real, aging and global societies of today. Societies with growing burdens of chronic disease, persistent threats from infectious disease and societies where the public policies governing science and innovation (not just the distribution of wealth and income) are among the most significant collective decisions being made. Pandemic justice aspires to take all the latter seriously. Theorizing the non-ideal is the real challenging and significant work that political philosophers must address today, vs bracketing or ignoring such considerations by starting with idealizations that make them superfluous.

Cheers,
Colin