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Fr. 759

February 14, 2017

Chapter 2:

In the second chapter, Weber turns to the question of how we might parse different interpretations of social contract theory from one another so as better to get at the essentials of Rawls’ take thereon and identify both its strengths and weaknesses. Weber proposes to do so by identifying the kind of consent sought in the social contract theory. Merely differentiating actual consent from merely hypothetical does not suffice to tease out the relevant differences between rival social contract theories insofar as the theory responds to central challenges of “how and when may the person consent?” and “what kind of being consents?” in wildly different ways. To that end, he distinguishes four kinds of consent and identifies each with an emblematic thinker:

  • Historical (Locke): At some point in history, persons in the state of nature gave their consent for state and institutions. Consent gives rise to the state.
  • Prudential (Hobbes): In response to rises and falls in societal stability, persons give their consent for state and institutions in order to secure life and property. Consent may occur within the state.
  • Grateful (Rousseau): In accepting the benefits afforded by state and political association, beyond mere security, persons give their consent for state and institutions. Consent is implied and occurs within the state.
  • Structural consent (Kant and Rawls): Given their rational make-up, persons would give their consent for state and institutions in the right circumstances. Consent is hypothetical and does not occur.

Drawing on the critiques of Hume, Hegel and Dewey, Weber maintains that 1.), 2.) and 3.) fall away as live possibilities. 1.) entails specious historical causational explanation whereas 2.) slips in and out of historical idiom and is fundamentally pessimistic on human capacity for self-organization. 3.) proceeds in view of the general will and does not allow one to opt out. Moreover, these three depend on an external authority for their legitimacy, namely god. Yet 4.) will prove a greater challenge in need of closer attention.

Indeed, Weber distinguishes two versions of 4.): possible consent (Kant) and hypothetical consent (Rawls). In the former, persons could give their consent for state and institutions if it aligns with their general idea thereof as fully rational beings. In the latter, persons would give their consent for state and institutions in fair circumstances of deliberation. If both versions share their dependence on the authority of reason, Rawls’ hypothetical consent carries a stronger normative charge than Kant’s possible consent.

At this point, Weber moves to critiques given by Hume, Hegel and Dewey to the above. The author speaks favourably of Hume’s historical challenge to the sufficiency of structural consent (i.e. if structural consent were enough, there would be no cause for entrenched social conflict over states and institutions). Of Hegel, Weber notes how the former questioned, on one hand, whether one can in fact not give consent to existing state and institutions and, on the other, whether social contract theories, Kant’s in particular, do not posit an incoherent notion of person by setting the person up to judge state, institutions and civil life without the benefit of the conceptual resources afforded by the latter.

While the author judges that Rawls can avoid, at least to some extent, Hume’s attacks on historical consent and Hegel’s first charge, he fares more poorly with regards to the second on persons. More particularly, Weber challenges Rawls’ nominally constructivist view that persons can arrive at agreement on the basic structure without recourse to the conceptual resources afforded them on life within the basic structure and without. In short, without their personal or private reason, it is unclear what, if any decisions, persons might arrive at.

Certainly, on Weber’s reading, Rawls meets this challenge to an extent when he notes that the original position posits real persons in an ideal situation. Yet these heterogeneous elements fit ill at the joints in that person and situation are both historical developments or constructions. In the end, Weber deems Rawls’ approach insufficient to meet the charges put forward. All of which will lead Weber to privilege Dewey’s constructivism over the Rawlsian version.

Before continuing to the Deweyan variant, it is worth noting two points on which Rawls or Rawls scholars can challenge Weber’s reading. First, Weber invokes “private reason” (p. 30) when speaking of the divide between deliberation on basic and non-basic matters. Rawls would reject such a notion, as well as the dualism which it implies, as incoherent (PL, p. 220). While distinct, public and nonpublic reason interact and are far from hermetic. Secondly, Weber speaks of real persons within the original position (p. 31) despite Rawls’ making clear that parties to the original position are merely “artificial creatures inhabiting our device of representation” (PL, p. 28) and emphatically not actual. While these oversights detract from the specifics of Weber’s challenge, they leave its substance untouched in that Hegel’s challenges, as formulated by Weber, remain at least somewhat unanswered. Moreover, it shows the uneasy position which Rawls occupies between situationalist language and ideal theory.

Weber closes the chapter with a review of Dewey’s own criticisms of social contract theory, four in number:

  • It derives notions of sociality and morality from notions of contract law and property.
  • It sets out from a political problem which is not a product of genuine inquiry, but of abstraction, ideology or mistaken assumption.
  • It remains stranded between atomist and absolutist conceptions of will.
  • It posits an abstract individualism by separating the different parts of personhood in a way for which non-ideal theory rarely allows.

In the end, Weber judges Dewey’s criticisms to have remained without satisfactory response from the social contract camp and redoubles his efforts to show how Deweyan constructivism surpasses the Rawlsian.


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