4. Political dynamics: Rousseau, Rawls and the Physiology of Contract
Outline
1. Introduction
2. Rousseau's Discourses
3. The Social Contract
4. John Rawls (1921-2002)
5. Rawls’s Biography
6. A Theory of Justice
7. Theological politics
8. Conclusion
1. Introduction
The basic source of criteria for comparing Rousseau and Rawls is reality. These days we consider the source of the reality of humanity to be the evolutionary process that has made us and the world what we are.
Two of the most important features of reality is that first that it is locally consistent, and second that it is enormously complex and full of surprises. In the normal flow of life long experience has refined the process of establishing simple contracts like business deals, marriages or political treaties. These are relatively straightforward based on an abundance of precedent. Things become more complex when new forms of contractual breakdown enter the picture. The real interest in the law and politics of contract lies in dealing with these exceptions.
In this essay I wish to briefly examine the provisions made by Rousseau and Rawls for dealing with contractual problems and then to examine the overall problem in the light of the physiology of multicellular creatures. . A mammal is a stable self reproducing system comprising of many trillions of individual cells which is continually assailed by millions of species of freeloading parasites, ranging from viruses, through bacteria to large carnivores.
In broad terms we are dealing with immunity, and I hope to throw some light on the immunity of the social systems envisaged by Rousseau, and Rawls.
2. Rousseau’s Discourses
Rousseau’s lifetime (1712-1778) coincided quite closely with the French Enlightenment which ended with the French Revolution. (1715-1789).
His political career began in 1750 with two prize winning essays written in response to the Academy of Dijon: one on Has the revival of the Sciences and Arts contributed to improving morality? (Dunn 2002, 43); and the other On the Origin and Foundations of Inequality Among Mankind on the question: What is the origin of inequality among mankind and does natural law decree inequality? (ibid. 69) Susan Dunn: Jean Jacques Rousseau: The Social Contract and the First and Second Discourses
These essays outlined the social and political problems that Rousseau set out to remedy with the Contract (Bertram 2004). Christopher Bertram: Rousseau and The Social Contract
In the preface to the first discourse he opts for notoriety: I have taken my stand and I do not care about pleasing cultured or fashionable people. He seemed determined to swim against the tide of enlightenment, arguing for the rustic against the cultured. He notes with approval the legend that the Caliph Omar thought it reasonable to burn the library at Alexandria (ibid. 65 n).
We may imagine that much of his distaste for the high culture espoused by the first and second estates was motivated by the extreme contrast he noted between the rich and cultured and the poor and downtrodden in Paris when he first visited in 1742. In his Confessions he recalls:
I entered through the Fauberg Saint Marceau. I saw nothing but dirty stinking little streets, ugly black houses, a general air of squalor and poverty, beggars, . . . All this so affected me at the outset that the real magnificence I have since seen in Paris has not overcome this first impression. (Rousseau 1959, 159) Rousseau (1959): Ouvres Completes, tome I: Les Confessions - Autres textes autobiographiques
Rousseau then goes on to lay out the paradox that seems essential to his view of humanity: in the state of nature we are virtuous and isolated; in society we are united and corrupted.
He begins the second discourse by setting himself free from the constraints of fact and reason central to the mainstream of enlightenment: Let us begin, therefore, by laying aside facts for they do not affect the question.
He then goes on to develop his fantastic history of mankind, setting up a paper tiger for later conquest. His savage man is nothing like modern men, is tough and perfectible, yet lacking all companionship, his language but the cry of nature. He is endowed nevertheless with pity, which in the state of nature takes the place of laws, manners, virtue, with this advantage, that no one is tempted to disobey her gentle voice.
Then the rot set in. The first man, who after enclosing a piece of ground took it into his head to say this is mine, and found people simple enough to believe him, was the true founder of civil society.
The route to perdition is first described in note (o) of the notes to the second discourse, where he attempts to justify his very subtle distinction between amour de soi and amour propre, the self esteem of natural people on the one hand versus the overweening sense of entitlement of the aristocracy on the other.
3. The Social Contract
The opening line of the Contract reflects the burden of the Discourses: Man was born free and is everywhere in chains.
Europe had already been ruled for a millennium by a de facto contract between the three Estates, the theocracy, who managed the divine fiction, the nobility, who managed the land, the taxes and associated military operations, and the third estate, the majority of the population who did all the actual work and whose lives varied from beggary through peasantry to the bourgeoisie (Piketty 2019). This system had largely been established through centuries of divinely sanctioned military violence. Piketty: Capital et Idéologie
Rousseau’s Social Contract is an attempt to develop a new political paradigm of government to replace the old system he so despised. It has been very influential, and played some role in the political deliberations that followed the French Revolution which cost the heads of many members of the first estate.
Rousseau’s work, like much of the writing emanating from the Enlightenment, was an element of the rising fourth estate, politically engaged thinkers, journalists and publishers. Rousseau’s situation was a consequence of Luther’s exposure of corruption in the first and second estates, and his translation and publication of the Bible, made possible by printing, which had the effect of disseminating reading and theological ideas among the third and fourth estates.
The key idea of the Contract is that power comes not from above through the divine right of princes but from below, by the will of people in direct communication with God. We find an early literary appearance of divine right in Exodus, where Moses, armed with the ten commandments he had written on Mount Sinai, ordered the murder of all the people who had worshipped “false” (ie traditional) Gods while he was communing with the new God of the Hebrews, Yahweh.
Rousseau builds the Contract on a fictitious initial condition of asocial human individuals wandering the landscape in a state resembling the original justice enjoyed by people immediately after the creation, before they sinned. Now, he says, born a citizen of a free state
I want to inquire whether, taking men as they are and laws as they can be made to be, it is possible to establish some just and reliable rule of administration in public affairs (Introductory Note).In Book I Chapter III he rejects the historical source of power: might does not make right, so where does political power come from? To renounce one’s liberty is to renounce one’s essence as a human being. So the problem is
To find a form of association that may defend and protect with the whole force of the community the person and property of every associate, and by means of which each, joining together with all may nevertheless obey only himself and remain as free as before.
Such is the fundamental problem of which the social contract provides the solution.
With the benefit of some centuries of hindsight, we might see this as wishful thinking. Since the global terrorism became an issue, we have sacrificed a lot of freedom for our security, but when we look back to the levels of government control during the world wars, we may be getting off lightly. Rousseau’s policy still seems to be on the right track.
The key is the general will (which we discern with democratic choice) combined with a sovereign power whose role is to enforce the general will. Here we see a weak spot, however, frequently manifested by democratically elected governments which then proceed to murder their opposition:
. . . the sovereign power need make no guarantee to its subjects because it is impossible for the body to wish to harm all its members (I, VII).
Rousseau’s answer to this problem is the rule of law, created by a superior intelligence . . . who could see all the passions of men without experiencing any of them. This intelligence is the Legislator, which sounds a bit like the old God: in God we must trust. But who is now the God, if not the people (I, VIII sqq)? Here he puts his finger on a problem that remains perennial: what happens if the popular lawmaker makes bad laws through self interest?
In Book III Chapter X The Abuse of Government and its Tendency to Degenerate:
As the private will acts incessantly against the general will, so the government makes a continual effort against the sovereign.
How is sovereign authority to be maintained? History provides us with endless examples of the dissolution of bodies politic, so a little pessimism, particularly in the absence of an omnipotent God, is justified. On the one hand Rousseau sees hope for small nations (like Corsica) and on the other, small nations are very liable to conquest. He puts this problem aside: I shall show hereafter how the external power of a great nation can be combined with benign government and the good order of a small state.
The answer that may have been in the back of his mind is indicated by his later writing on education. The general will is indestructible, constant, unalterable and pure (IV, I). But it must be the will of a population educated in the foundations of good government (Rousseau 1762, 1911). At present we see democracy threatened by irrational fundamentalism after a long postwar period of relative peace. What can we do? Rousseau (1911): Emile
4. John Rawls (1921-2002)
Rawls arrived on the scene in the New World which arose after the cataclysmic breakdown in European politics in the two world wars. He was able to look back back on the four hundred years of strife that had begun with the fragmentation of Christian theocracy in Luther’s time and passed through the era of colonialism, slavery and decolonisation to the American Republic, a child of the French Revolution. An enormous amount of political theory had flowed by since Rousseau’s time.
We may see Rousseau as working with a broad brush to paint the outlines of a new the political order that sought to deal with the wars and disruption that accompanied the breakdown of the theocratic system. Rawls, on the other hand, was more concerned with the detailed internal interactions of an established political order which was nevertheless seriously flawed by the disproportionate power of the wealthy and privileged actors that Rousseau had foreseen as destructive influences on political harmony.
5. Rawls’s Biography
Like Rousseau, Rawls’s youthful experiences of injustice played a significant role in his later career. When he was a child the family moved to Baltimore seeking treatment for his grandfather’s tuberculosis and he got to know some of the poorer families and became aware of the gap between rich and poor. He finished his schooling at a strict Episcopalian boarding school, majored in philosophy at Princeton and considered training for the priesthood at the Virginia Theological Seminary. His Princeton undergraduate thesis, written while he was still a believer, includes some ideas that were to appear in Theory of Justice (Rawls 2010, Weithman 2012).
He entered the US army in 1943 and fought in the Pacific theatre. He rejected his Christian faith in the later part of his service partly because he could no longer believe in God’s justice in the face emerging news of the Holocaust. In the 1990s he wrote an essay On My Religion, on this transition (Pogge 2007, 13-14). He left the Army in 1946 and did postgraduate study at Princeton on the GI Bill. One of the first papers leading to the A Theory of Justice “Outline of a Decision Procedure for Ethics” summarized part of his Princeton thesis (Rawls 1999, 1).
He married Margaret Fox in 1949. Margaret’s parents had paid for her brothers’ education but she had to work to educate herself. The Rawls family supported the education of their sons and daughters equally.
He spent 1952-53 on a Fulbright Scholarship at Oxford when Berlin, Hampshire, Strawson and Hare among others were active. After a period at MIT he spent the rest of his career, 1962-1991 at Harvard. He felt that both the Vietnam war and the system of student deferrals from military service were unjust, and was involved in vigorous public debate on this matter both within and outside the university while he was writing A Theory of Justice. In 1969 he taught a course “The Problems of War” which discussed the causes of war and opinions about whether the US was justified in going to war in Vietnam (ius ad bellum) and the conduct of the war (ius in bello). This led to his 1969 paper “The Justification of Civil Disobedience” (1999, 176). He saw extreme economic differences as one of the causes of war.
6. A Theory of Justice
Rousseau started his work with a jungle of noble savages, and set out to built a political system. Rawls, 200 years later, lived in the midst of a huge, wealthy and well established polity which was still recovering from a civil war and military intervention in the two major that threatened to destroy the Old World. He sought a reasonable starting point to develop the notion of justice as fairness within this polity. He wished to blind the decision process to what Rousseau called amour propre, the elements of status and entitlement that differentiated the wealthy and privileged from the the poor and disenfranchised. A Theory of Justice synthesized and expanded a long series of papers that Rawls had written earlier in his career (Rawls 1999, 1999b). Rawls (1999): A Theory of Justice, Rawls (1999b): Collected PapersIn his Preface, Rawls explains that
What I have attempted to do is to generalize and carry to a higher order of abstraction the traditional theory of the social contract as represented by Locke, Rousseau and Kant.
He presents the fundamental intuitive ideas of his theory in the first four sections of the first chapter.
Its role:
§1: Justice is the first virtue of social institutions, as truth is of systems of thought. A theory, however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well arranged must be reformed or abolished if they are unjust.
Its subject:
§2: Our topic . . . is social justice. For us the primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the distribution of advantages from social cooperation.
The main idea, as noted in the Preface, is to develop the traditional theory of the social contract. So:
§3: . . . the guiding idea is that the principles of justice for the basic structure of society are the object of the original agreement. They are the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of the association. . . . This way of regarding the principles of justice I shall call justice as fairness.
Rousseau, I imagine, would be satisfied with this original agreement. The contracting parties are therefore operating behind a veil of ignorance which expresses the equality of naked humans stripped of all distinguishing features, a state which the United Nations tried to capture in the Universal Declaration of Human Rights. United Nations: Official UN Universal Declaration of Human Rights Home Page
The merit of the contract terminology
is that it conveys the idea that principles of justice may be conceived as principles that would be chosen by rational persons, and that in this way conceptions of justice may be explained and justified.
Finally, (§4) he needs to argue that the original position is the best available starting point for fairness:
The aim is to rule out those principles that it would be rational to propose for acceptance, however little the chance of success, only if one knew certain things that are irrelevant from the standpoint of justice. For example if a man knew that he was wealthy, he might find it rational to advance the principle that various taxes for welfare measures might be counted unjust; if he knew that he was poor, he would most likely propose the contrary principle.
The original position provides an algorithm for determining the detailed structure of a just society. This is a large task which Rawls works out under 83 further headings. Here I can only touch on §5: Utilitarianism; §9: Moral theory; §11: Two principle of Justice; §25: Rationality; §32: Liberty and §60: The Need for a Theory of the Good. These comments will serve as inputs to the final section of this essay in which I wish to situate human society in the wider framework of the cosmos, a return to an analogue of the ancient theocratic picture.
Christianity sees us acting in a fixed system created and determined by God. Cosmic evolution, on the other hand, sees us, rather as Marx did, as building ourselves and our society through our labour (Jones 2016, 389)
§5: Contract versus utility:
My aim is to work out a theory of justice that represents an alternative to utilitarian thought generally . . . The main [utilitarian] idea is that society is rightly ordered, and therefore just when the major institutions are arranged so as to achieve the greatest net balance and satisfaction summed over all the individuals belonging to it. . . . The two main concepts of ethics are those of the right and the good. . . . The structure of an ethical theory is, then largely determined by how it defines and connects these two notions. . . . The striking feature of the utilitarian view of justice is that it does not matter, except indirectly how the sum of satisfaction is distributed among individuals . . . The most natural way, then, of arriving at utilitarianism . . . is to adopt for a society as a whole the principle of rational choice for one man. . . .
§6: On the contrary:
if we assume that the correct regulative principle for anything depends on the nature of that thing, and that the plurality of distinct persons with separate systems of end is an essential feature of human societies, we should not expect the principle of social choice to be utilitarian. . . .
Rousseau claimed, without much justification, that people would be freer in the contractual society than they were in their native state. Rawls is trying to find how this claim can be realized.
§9: Moral theory
I shall [discuss the nature of moral theory] by explaining in more detail the concept of a considered judgement in reflective equilibrium and the reasons for introducing it.Let us assume that each person beyond a certain age and possessed of the requisite intellectual capacity develops a sense of justice under normal social circumstances.
This is to say that the sense of justice is a social construct transmitted from their social environment to each growing individual.
A useful comparison here is with the problem of describing the sense of grammaticalness that we have for sentences in our native language. . . . This is a difficult undertaking which, although still unfinished, is known to require theoretical constructions that far outrun the ad hoc precepts of our explicit grammatical knowledge. A similar situation presumably holds in moral philosophy. . . .. . . considered judgements [are] those judgements in which our moral capacities are most likely to be displayed without distortion. . . . once we regard the sense of justice as a capacity, as involving the exercise of thought, the relevant judgements are those given under conditions favourable for deliberation and judgement in general.
The sort of judgements we expect from a judge in a court of law.
Rawls’s early exposure to economic theory through Samuelson, Walras, and von Neumann and Morgenstein, and to Chomsky’s linguistics seems clear in his interest in the theory of decision making in complex situations.
From the standpoint of moral philosophy, the best account of a person’s sense of justice is not the one that fits his judgements prior to examining any conception of justice, but rather which one which matches his judgement in reflective equilibrium.
Rawls imagines two stages of reflective equilibrium. The first is in effect a verification of one’s existing judgements. The second arises when
one is presented with all possible descriptions to which one might plausibly conform one’s judgements together with all the relevant philosophical arguments for them. … Clearly it is [this] second kind of reflective equilibrium that one is concerned with in moral philosophy. To be sure, it is doubtful whether one can ever reach this state.
The foundation of moral theory is, therefore, to be found within ourselves by careful introspection. As noted above, it has been embedded by social education, a concept which, I think, would have Rousseau’s approval.
§11: Two principles of Justice
These two provisions add a meliorative tone to Rawls’s theory which appears to be absent in Rousseau’s Contract although it appears in Emile, and is central to Christianity (at least in theory) (Rousseau 1762).I shall now state in a provisional form the two principles of justice which I believe would be chosen in the original position.
The first statement of the two principles reads as follows.
First: each person is to have an equal right to the most extensive liberty compatible with a similar liberty for others.
Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.
These principles are given their definitive form in §46 where they are subsumed under a general conception:
All social primary goods—liberty and opportunity, income and wealth, and the bases of self respect—are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favoured.
§25: Rationality
The concept of rationality invoked here, with the exception of one essential feature, is the standard one familiar in social theory. . . . a rational person is thought to have a coherent set of preferences between the options open to him. . . . The special assumption that I make is that a rational individual does no suffer from envy.Thus does Rawls try to reduce the influence Rousseau’s bugbear, amour propre.
§32: Liberty
In §31 Rawls states that
We may think of the political process as a machine which makes social decisions when the views of representatives and their constituent are fed into it.
This suggests that we might see A Theory of Justice as the search for the algorithm that determines the behaviour of a just process. In the final part of this essay, I identify this algorithm as the search for stable structures by variation and selection. An essential feature of this algorithm is that its agents must be free if it is to be creative.
Thus persons are at liberty to do something when they are free from certain constraints either to do it or not to do it, and when their doing it or not doing it is protected from interference by other persons.
§60: The Need for a Theory of the Good.
“Good” thus serves as shorthand for the object of rational desire. This seems to be a very old definition, consolidated in the Christian tradition that our supreme good is the face to face vision of God that Aquinas built on the opening words of Aristotle’s Metaphysics: All men [scil. anthropoi] by nature desire to know. Aquinas, Summa, I II, 3, 8: Does man's happiness consist in the vision of the divine essence?. . . in justice as fairness, the concept of right is prior to that of good. In contrast with teleological theories, something is good only if it fits into ways of life consistent with the principles of right already on hand. . . .
[The full theory of the good] takes the principles of justice as already secured, and then uses these principle in defining the other moral concepts in which the notion of goodness is involved.
This match between goodness and justice I refer to as congruence; . . . . . . once we establish that an object has the properties that it is rational for someone with a rational plan of life to want, then we have shown that it is good for him. And if certain sorts of things satisfy this condition for persons generally, then these things are human goods.
7. Theological politics
In theologies and religions God (or whatever plays the role of God) is seen as the supreme good, and our generic aim is to act in conformity with the will of God, and the basic religious motivation is the reward attached to such conformity. Aquinas, Summa, I, 6, 2: Is God the supreme good?
Both Rousseau and Rawls were operating in social spaces created by Christianity. Following the enlightenment paradigm, both, like many others, were trying to discern rational foundations for good politics that embraced the desirable features of the Christian milieu without the sectarian wars that had become endemic in Europe.
Rousseau begins to build society with asocial individuals. In this he is about three billion years too late, since the evolutionary solutions to the social and political problems we face began with the emergence of multicellular creatures.
The integrity of a human body comprising an enormous set of more or less free living cells depends on two facts: their common genome and the differentiation that arises during the growth of each body which assigns some hundreds of different roles to different cells.
This integrity is made possible by genetic unity. All my cells (which are in fact a minority within my body) share a common genome. On this foundation they work together and my immune system has a clear criterion to identify strangers.
We might consider the Bible and the Creeds as the genome of Christianity. They have served to bind billions of people into more or less coherent societies for nearly two millennia. Other religions have played similar roles. More generally, on the assumption that theologies are human theories of everything, different concepts of the nature of God are the sources large blocs of human social and political unity.
Christianity, the religion I know best, is largely a fairy tale, with a magical beginning and a satisfyingly apocalyptic ending where the bad suffer eternal pain and the good eternal bliss. The details were codified in the Nicene Creed in Constantine’s time with the specific purpose of unifying belief in the Empire. Nobody with any grasp of the modern scientific picture of the world could take this document seriously. Nevertheless it is a source of general will, although an inadequate one since globalisation has begun to bite and the inconsistencies of various theologies are becoming obvious at their interfaces.
From an enlightenment point of view the Christian God is now dead and we are struggling to find a new way to run things. My thought is to bring god to life again in a new form, identical to the Universe, which we all share. This is a variant on the view taken by Indigenous Australians, that the land embodies the law and is the foundation of human spirituality (Kleinert & Neale 2001).
The physicists tell us that the Universe emerged with the initial singularity, a structureless point. We may see the initial singularity as identical to the classical god: both share but five attributes: they exist; they are absolutely simple: they comprise pure action; they are bounded by consistency; and they are the source of the world. The classical God created the world out of nothing according to a pre-existing plan in its mind. The world as we now know it came to be within the initial singularity by a rapid evolutionary process called the big bang.
Pure action demands that the universe try everything. Consistency demands that only those systems which are internally consistent are capable of prolonged existence. We may look on these two demands as the algorithm of creation. They are most widely understood in the the form of the theory of evolution, which runs on variation (try everything) and selection (eliminate the variations that do not work).
The evolutionary paradigm identifies successful reproduction as the paramount good or value. Every creature alive today has a pedigree stretching unbroken through billions of generations of survivors to the earliest forms of life. It is therefore natural to guess that an orientation toward survival is deeply ingrained within us.
The nature red in tooth and claw view of evolution emphasises violence and conquest, but the true power that has generated the world is cooperation and bonding created by communication. Even the simplest fundamental particles are effectively persons or sources, able to send and receive messages, and it is this power which has enabled the constructions of organisms like ourselves, which are, from an atomic point of view, huge and hugely complex. The width of a fingernail is about 100 million atoms.
The universality of our minds is both our weakness and our strength. It is a weakness because we can dream up stupid ideas like world domination that can cause much damage before they are selected out.
It is equally our strength, because we are in a position to understand how our divine world works and learn to fit in with it. From Rawls’s point of view, we need to create a just, evidence based contractual relationship with the planet upon which we are absolutely dependent for our continued existence.
8. Conclusion
Human ideologies long been dominated by spurious spirits whose existence is considered to be independent of material reality. It may be that their time is coming to an end as we become aware that Earth is our real god, creator, sustainer and judge, and our fate is united to it. It is a real material object subject to clear natural law and if we do not respect to this law we will damage our habitat and ourselves.
The evidence suggests that it created itself and we enjoyed the same creative power, making our own world. This activity is subject to readily observable and easily understandable physical rules which must eventually be built into our moral and political belief.
If there is one physical law which deserves much better understanding, is is the second law of thermodynamics, which tells us that entropy, that is complexity, has an invincible tendency to increase. This law has received a bad press because the designers of heat engines see it as an enemy. Its outlook is improving, however, with the advent of the internet, because everyone wants more bandwidth, which another name for entropy. High entropy is closely related to communication, morality and peace, but one will search the literature of philosophy from end to end to find even one mention of it.
Global governance must be respect the fact that our real ideological foundation is the nature and capacity of the Earth, a living organism analogous to our own living bodies and living societies.
