Political Philosophy, Jean Hampton

Door: Peter Pappenheim

(hereafter abbreviated as JH).

Introduction.

Having published my book 1*), I tried to keep to date with the current state of political philosophy and ran into two books by JH . One,“The idea of democracy”, was only edited by her and consisted of papers contemporary authors dealing with different aspects of democracy and leading to contradictory conclusions, without any effort at synthesis. Its title is misleading: it is not ‘the’ idea, it is a collection of ideas; no “Idea” emerges. These books confirm the confusion I encountered four decades ago when I joined the board of directors of the chapter Rotterdam of a new political party dedicated to the rejuvenation of our democracy: D66 and found out that its members had ( and still have) diffuse, different and contradictory views about democracy. They can and do switch from one view to another, as best suited their interests and/or reflect the whims of  its members which mainly following the current political fashion. Hence the above-mentioned  book. The other book (POLITICAL PHILOSOPHY) presents the current state of political philosophy; it devote a section to one name, Ronald Dworkin, with which I did not deal in my book because – when writing it – his work was not yet widely acknowledged. He mainly deals with distributive justice and attempts to reconcile two irreconcilable concepts: objective equality (income) and subjective equality (social decision-making) by – ad hoc – stretching the concept of freedom beyond its ‘natural’ definition. It thus cannot serve as a basis for a political philosophy. It does however provide fruitful concepts when translating the basic concept of democracy presented in my book into more specific conclusions, a job which – given my age – must be done by someone else. In her book, Jean Hampton devises many original avenues for dealing with the problems I encountered in my quest. I owe her the incentive to further investigate the implications of Locke’s concept of a ‘body politic’ and the ‘civil society’ that will lead to an addendum to my book on this site. The only reason I can imagine why she did not develop the ‘pure’ contract theory I propose is that she persisted in remaining within the historical framework of her discipline. Her untimely death is a great loss to all; I would have loved to hear her rejoinder to my view.

I will not attempt to deal with JH’s whole book. She managed to cram into 250 pages not only most of the relevant subjects, but also personal, relevant and original views, and all this in a way which is easy to understand. Her citations from other authors are limited to those that are absolutely necessary and derive from barely one fourth of the authors mentioned in her list. A fantastic performance My criticisms are not aimed at her work, but at the constraints which academic practice put on her and of which she probably was unaware because she considered them ‘natural’. I will limit the discussion to “Part one” which deals with political authority, with the basic organization of society. I hope to convince the reader that her rejection of contract theory is unwarranted and that her alternative, consent, suffers from the same ailment as Rawls: it provides no justification for imposing the consequent order on dissenters.  “Part two” deals with justice, but in a correct interpretation of contract theory, justice is not independent of, but follows from, an adequate solution of the problem of authority. Nonetheless, her part two provides an excellent overview of current theories and offers many relevant considerations when for the application of the principles developed in my book. The necessity for dealing with her book is her rejection of contract theory summarized by her on page 110: “In my judgement the contribution of social contract arguments to the development of this (JH‘s) modern conception of democracy is enormous. Even though the image of an explicit social contract as the basis for government is a make believe, nonetheless that image must surely have generated in the minds of those who constructed modern democracies the idea that a well-run polity is one that recognizes and allows for the control of the people over that which is their creation: the political regime (p 110).”

JH’s is widely shared and the main reason why it is not generally accepted. Her objection is not based on the general notion of a contract, but on investigating the contract theories of Hobbes, Locke and Nozick. Rawls is not included in that list, but dealt with in her chapter on distributive justice, in spite of Rawls’ stated objective to “generalize and elevate to a higher order of abstraction the traditional theory of a social contract as represented by Locke, Rousseau and Kant.” That is not an error or oversight, but follows logically from her general approach: part one deals with political authority. Rawls indeed deals mainly with the quality of the decisions which this authority takes, which is the subject of her “Part two”.

Part one: Political authority.

By her own description (on p. 121): ”This book began with an issue that worries all political anarchists, namely, “Why is the coercive power of the state justified?” Thus far we have come up with a partial answer: States are justified insofar as they are created via convention by people in a territory to fulfill certain roles considered to be extremely important for moral and for self-interested reasons… .  People who are citizens of states play a role in maintaining (and have sufficient power to engage in collective action to change) the leadership convention of their society.” Her most relevant chapters are dealt with below.

Chapter one: THE PROBLEM OF POLITICAL AUTHORITY.

This introductory chapter of the justification of authority mentions four candidates:

1) The divine authority theory. “… disliked by most political theorists of the ancient and modern world (including Plato, Aristotle, Locke and Hobbes) because it could be dangerous in the hands of unscrupulous or evil rulers… . For these reasons it has few advocates today.”

2) Natural subordination. Born leaders and underlings. The slave needs a master to direct him because he can’t do it himself (Aristotle). It is rejected on the grounds that the inequality it presumes in respect to a certain natural capacity amongst healthy adults is not strongly correlated to the actual distribution of authority even if it existed, but in any case cannot be independently determined.

3) Authority from the good. A person has authority over another if and only if it has greater expertise in the relevant areas. Illustrated by Plato. Problem: who decides if that he has it?

4) Consent based theories, as developed by Aristotle. They can be viewed, according to JH, as a complete theory of political authorization if certain questions can be answered successfully: How many supporters does such authority need to be valid? How must that consent be given? What about dissenters? What is its scope and limit? Can people legitimately overthrow it, and how? All these questions however concern modes of operation.

The fundamental question, which JH correctly puts as the first one, is: “From where do people derive the right to assign authority to some of their group over all others? Why would anyone obey their directives for other reasons than the power they wield to enforce their decisions, why would they consider such decisions and their enforcement to be legitimate? All these questions were tackled by early modern political theorists, particularly in seventeenth-century England, who sought to refine and further develop the idea that political authority is the creation of those subject to it.” In the second chapter JH examines whether or not their answers are satisfactory.

Chapter two: MODERN SOCIAL CONTRACT THEORIES.

JH’s arguments for rejecting Hobbes Leviathan are widely shared, also by me. Two of them are Hobbes’ starting points:

(1) the state of nature (men suddenly arising out of nothing, leading to total war)

(2) the self-oriented ‘rational’ man and consequent  rejection of Aristotle’s  view of man as an essentially social being.

In this Hobbes is a precursor of Sudgen’s Rational-Choice-Theory problems with collective goods, which JH appropriately uses for her illustration of Hobbes. Like the later Rousseau, his contract also requires a once and for all alienation of the rights of individuals to the chosen ruler, thus dispensing Hobbes of solving the problem of justice. His argument for total alienation is not illogical, for his humans would rebel anytime a decision is not to their liking, making the society highly unstable. It is doubtful if it can qualify as a contract theory and many proponents of contract theory do not consider Hobbes as one of them. Most refer to John Locke as the founder of contract theory. He also starts from a state of nature, but his humans are more other-regarding, and thus more cooperative, and can be motivated in the state of nature not only by self-interest but also by God’s “Fundamental Law of Nature”, which directs them to preserve the life, heath and possessions of others as long as their own preservation will not be compromised by doing so. JH puts forward five arguments against Locke’s theory. The first three apply to elements specific to Locke’s version and will therefore be dealt with only summarily. Only the last two apply to contract theory in general and will be examined in detail. The Alienation of All Rights versus Agency Relationship Between Civil Society and the Individual. In a nutshell, the difference between them is that Hobbes fears anarchy through  rebellion more than unchecked power; hence the necessity  to alienate all rights to the ruler. Locke chooses rebellion over tyranny as the lesser evil and opts for an agency relationship with the ruler through a revocable delegation of power. Both however have to find a compromise of sorts between on one hand the restraints, by exercise of power, required by order and on the other hand to prevent the destructive chaos of total anarchy. Hobbes introduces some checks on power, and Locke tries to find a way that prevents the possibility of rebellion from turning into anarchy. He finds it in the notion of ‘civil society’ based on a fundamental contract that binds all individuals once they have subscribed to that contract. Even if they disagree with the choice of a ruler or with his rulings, they will have to accept them if established in accordance with that contract, usually by a vote, as a prerequisite for being a member of that society. Each member of the regime considers himself as bound to it, come what may. He can influence the choice of rulers and their rulings to the extend that the contract provides for it, but he cannot rebel if unsuccessful. If he does, he returns to the state of nature and foregoes all the advantages of the civil society. It is not quite clear to me to what extend he then is accorded the status of visitor who enjoys certain protections and must obey the laws, but has no say over them. The contract regulates the relations between the civil society and the ruler, but the relation between that civil society and its individual members is not developed by Locke. The problem which lead him to introduce the concept of a civil society interposed between the individual and the rulers is real but does not engage the question of authority.

2) Property and Authority. As one of god-given rights, one’s property is for Locke a priori and thus beyond jurisdiction of any other authority except the individual holding that right. Only through her consent can a person’s property be under control of the authority. Goods which are as yet nobody’s property can be subject to rulings by the authority, but in that case that property belongs to the competence of that authority, to justice, not to the notion of political authority. It must be settled in the design of the contract. Note that it is inconceivable that somebody living in the time of Locke could deal with the subject in a way that would be valid today. There remain few such goods, and the notion of a God-given Law of Nature cannot be accommodated by today’s political philosophy. As JH writes: “any alternative consent theory will inevitably … have to represent property rights as created by and dependent on the state’s laws rather than understood to be prior to them.” But that has to do only with its content, not with the notion, of a contract and thus does not affect it.

3) Stability and the Paradox of being governed. If the people who are “being ruled” are themselves in charge of their rulers, how can their society last? Buchanan calls it “the paradox  of sovereingty” and writes: ”Man’s universal thirst for freedom is a fact of history, and his ubiquitous reluctance to “be governed” insures that his putative masters, who are also men, face never-ending threats of rebellion against and disobedience to any rules that attempt to direct and order individual behavior. JH has exposed this reasoning as a pseudo-paradox in her next chapter (p 101/104) by noting that the original contract to be signed is a meta-contract about contracts-in-general which it has to regulate. I will quote integrally her concluding paragraph of this chapter, because it explains my venture. I have highlighted the relevant part.

“We who live in regimes that accept the idea that there is an agency relationship between the people and the ruler dismiss the charges of inconsistency – without, however, understanding why we are justified in doing so or indeed why these regimes work despite their paradoxical character. That those of us who are lucky enough to live in stable democratic societies have so little to say to defend our regimes’ stability shows that we don’t yet understand how they work, why they cohere so well, and why they are capable of being highly stable. Those of us who whish to commend the agency aspect of Locke’s contract argument have work to do if we wish to defend the stability of the agency relationship.”

That is precisely what I attempted. JH’s paragraph shows why we have as yet failed. If philosophy is – as some hold – the art of asking the right questions, The right question then is: if we want a stable relationship, what are the necessary conditions for achieving it and what do we have to do to realize these conditions, what is the price of democracy. That analysis will show that the apparent stability we enjoyed at JH’s time is more of a temporary incident than a basic feature of democracy: it will persist only through our efforts to shore it up.

4) Is the Appeal to a social Contract Inconsistent? JH shows that in Locke’s state of nature, that is without an authority to enforce contracts, people would be unable to keep contracts because doing so often involves a single play or iterated Prisoner’s dilemma which – as Rational Choice Theory demonstrates – people would be unable to solve. If so, how can we expect that they will keep their contract to create government? It is illogical to appeal to such a contract in a situation where it is needed precisely because people don’t keep contracts. There are two rejoinders to this objection to contract theory.

- The prisoners dilemma for collective goods is a main problem in any ordered societies, it is a fact of social life with which any society of beings capable of reason and imagination has to deal. All forms of government are attempts to deal with it. We could say that contract theory is that form of government whose objective is to minimize the oppression required for its solution.

- More conclusive is that he above paradox arises mainly from the totally artificial assumption of a state of nature, the Achilles heel of most contract theories. That assumption is all the more puzzling because all of contract theory was developed at a time where an actual state of nature as described by contract theory was long passed and, as we now know, has never existed.

5) Do People Actually Consent to Political Authority? David Hume had the ability to raise the right questions, in this case: “just when have most of the world’s population undertaken this contractual obligation?” People, he notes, generally obey the state because they are born in it. In response, supporters of the contract theory have often insisted that the consent and the contracts in their arguments are only ‘hypothetical’, a means for justifying their conclusions.

Ronald Dworkin has the appropriate rejoinder: “a hypothetical contract is no contract at all”. And so it is. The only way to develop a contract theory that has actual, political, relevance is to take the notion of a contract literally. What still puzzles me is why nobody ever did attempt to do so or – if he did so successfully – why I can find no mention of him?

Chapter three: CONSENT AND DEMOCRACY.

As an alternative to contract theory, JH attempted to develop a consent theory of the state (political authority) without resorting to the framework of a contract. “If Hobbe’s and Locke’s social arguments fail to develop consent-based contract theory … can we do better and using the tools of modern social science to help develop a new and better consent-based theory?”

First question: Why do we need a state? To answer this, she starts from the state of nature and deduces that it is not viable. But from her state of nature we only can deduce that we need coexistence and coordination, as do all social beings. For me, the obvious and appropriate question to ask is: what is the best type of organization for today’s human beings? We can however agree that it will be some form of state.

- p 73: “The convention-based model makes an important assumption, namely, that the people in a territory are justified, on grounds of both morality (severe negative impact on others) and rationality (self-interest), in generating a remedy for them (the problems of a state of nature). Moreover, in order to work, such a remedy must be collective in the sense that most people in a territory must approve of and participate in it so that the warfare will end and constructive and peaceful interaction will begin.” In fact, this is a functional evaluation of the human construct of a state which – as with Rawls – begs the question: how to justify imposing that morality on dissidents?

- p 73/4  “Political authority …is an authority that demands obedience in order to secure order. All game-theoretic problems and anti-social behavior are problems of order, requiring an institution that can enable people to achieve coordination, get the assurance necessary to make cooperation rational, and provide sanctions that encourage cooperative behavior where it would otherwise be irrational or at the very least unwelcome. While that may not be the only task of the state, it is for us to call any system of power and authority a genuine state.”

- p74/6: When a person having political authority gives you an order, her reasons for doing so normally ‘preempt’ any reason you may have for not obeying it. To have such authority also implies that she has the power to enforce the decision in case you do not want to comply. It does not preempt all reasons: there are moral reasons which it does not preempt.”  P.75: “The moral and rational licence to generate a collective political remedy for the problems of the state of nature requires that it is not only morally better than the state of nature it is to replace but also morally desirable and hence promotive of justice and well-being. Differences in world views will mean that different political societies will understand these moral constraints differently, … so that they disagree which domains belong to the ruler … . They will agree that this political authority must have a preemptive character, but they can structure the scope and strength of the preemptive commands which the political authorities are permitted to make.”

Granted, but that in effect allows for any provision imposed on the political authority that can obtain a majority, it does not allow for minority rights. Thus JH rejects the idea that authority is transferred from people; it is invented. For individuals do not ‘naturally’ have such an authority, they create it to solve problems. No one can remember having transferred authority, and Locke’s assumption that prior to her consent, a person has an innate authority, must be rejected. p77: “… political authority is something which has to be (with some difficulty) constructed by us. … political authority does not already exist within each of us but is created de novo by people who see it as a solution to problems of disorder”. This ‘de novo’ is the Achilles heel of political philosophy in general and with JH in particular. For social beings, there never has been a state of nature, it can not even be conceived for mankind. Even the as yet hypothetical ancestor of humans had to live in a group whose actions were coordinated by either instinct or a leader who obtained that position through strength and – in case of chimpanzees – political cunning. As far back as our history reaches, human societies knew political authority endowed with the necessary power. The form in which this authority materialized depended to a large degree on the prevailing cosmology (often dominated by theology) or power (tyranny or oligarchy). Except for a brief moment in ancient Athens, political philosophy and the notion of democracy are a product of a new cosmology: the enlightenment. The Swiss confederation was not the result of philosophizing, but was  conceived as a way in which a small number of fiercely independent mountain folks could preserve their autonomy. They needed no theory and political parties because their small numbers and simple problems allowed direct democracy to be successful. But they knew about the prevailing political systems and decided against them. Political systems never were evaluated in relation to a state of nature, but through comparison of their performance in relation to other existing or hypothetical systems in terms of expected success in meeting the objectives of its members. In short, the assumption that a political authority is invented de novo by people in a state of nature is totally unrealistic and – as I have shown – unnecessary. She also deals with an apparent paradox, the paradox of being governed (P. 101/108): “Why does a political system work if the people who are ruled by the state are ultimately the ones who empower it and authorize it? … if people needed a state because they are inclined to be unjust, greedy, prone to violence when quarreling with their fellows, and biased in their own case, then how can any state survive if these same people are the ones who, via convention, create and maintain the states that rule them?” Her correct solution is that if we establish a governing convention (at a meta-level) prior to exercising the power to establish specific laws (the object level), then – as Tarski has shown – there is no paradox. No one in a political regime based on the consent theory can have the right to judge the governing convention (for instance a constitution) -  the foundation of government – at the object level (its day to day functioning), but people have the “meta-right” to decide on it outside the object legal system, for instance in a procedure especially developed for that purpose (for instance voting with a qualified majority).  The rules of such a  ‘governing convention’ cannot be changed ad hoc, during and because of the course of any specific application. In what do modern democracies differ from the contract theory of Hobbes/Locke who acknowledged – as JH emphasized – that people, not God, established and legitimized political power and “assumed that as a matter of fact (albeit perhaps not of right) when people didn’t like a regime they staged a revolution, preferably bloodless, in which rulers were overthrown and if necessary (as in 1688) the political rules changed.” Revolution is very costly. “Modern democracies on the other hand operate so that the people have continual control over the process of creating and maintaining the regime.” If they have that control, then the society is, according to JH, a democracy. But is it? Whether convention or contract, any consent theory for political authority is faced with another apparent paradox: if we have established procedures for delegating authority, must we accept any decision which this authority has made, even if we consider it patently unjust or immoral? If we have provided for reclaiming our authority over specific decisions by, for instance, a referendum, do we have to accept any decision by the majority? This paradox, while known, has been swept under the rug by dissociating the delegation of authority from the subject of justice and morals. Also by JH who justifies relegation of justice to a separate part two as follows:

(P. 109)“This analysis presents modern democracies as committed, above all, to the rule of law, a phrase that on this analysis means government established by rules that define not only the structure, scope and authority, and office holder selection, but also how the preceding rules can be changed. … political authority in modern democratic regimes is traceable to the operation of these rules and not to the arbitrary will of any particular governing figure (who in fact will only govern because of these rules).”

(P. 109) “There is one type of rule that can be a constituent of a governing convention in modern democracies – but this type of rules need not be present in order for the regime to be properly called a democracy. It requires those who govern to do so in conformity to certain moral requirements. This type of rule is morally loaded to the extend that it partially articulates or partially points to a moral theory as the proper source of the content of object law created by the legislature. There is no reason such rules cannot be part of the governing convention… .”

Today’s Iran would perfectly fit that description of democracy! This paradox is for real: either we limit the qualification of ‘democratic’ to the procedures for delegating political authority and consider Iran to be a democracy, or we must include in the definition of democracy some additional principles governing the decisions taken by it and who must have priority over the procedures for delegating authority in order to be effective. But if it has priority, it cannot be imposed by the political authority which is supposed to be bound by it.

Solving the paradox.

At this point, a non-academician would ask: what is the ‘real’ difference between JH’s consent theory and a contract theory, since both require a founding convention which has the power to be enacted and which obliges all those who participate in it, rulers and ruled, and which implies the consent of those ruled. Her arguments turn out to be that (1) the contract theory she rejects does not provide for a regularized, peaceful change of the original contract and (2) that there always are people in a society who did not participate in the establishment of that contract because they were not yet a member of the original convention, but for instance born into it. Unless they ulteriorly consent, those people could not be bound by it; therefore that convention was not a real, but only a make-believe contract. Faced with these problems, the non-academician would look at the normal features of a contract. Contracts are of two types: contracts which engage only certain specific individuals (usually transactions like selling a house or sharing a good) and what I will call public contracts, for instance the statutes of a tennis club or a a union. Political philosophy by definition concerns only the latter. He would note that political philosophy ignores a fundamental feature of a modern contract: it always starts with an explicit objective from which all specific features have to be deduced or made compatible with. He would also note that modern contracts contain provisions for changing it and for opting in or out. It  never is considered to be a once and for all commitment. He would  note that all modern democracies include such provisions in their founding convention/contract. The basic problem of contract theory then is to establish an objective which justifies the imposition of its rules on those who have not (yet) agreed with this objective. If successful, that invalidates argument (1) and (2). A basic fact of life is that the moment you join an institution, willingly or not, its system of rules, the contract between its members,  always is beyond your control and responsibility, because you cannot change the past. But once a member of a democracy, that same contract will, as explained,  provide procedures for changing it. So contract theory can be a valid approach to the problem of political authority (provided one does not arbitrarily limit it to a specific and in this case archaic form), with one provision: it must deal with the problem of those who did not, explicitly or implicitly, opt for it, for instance because they were born into it at a later stage. But the same provision applies to the convention theory. As shown in my book, that is possible. JH’s notion of a founding convention can be safely replaced by a founding contract,  and it should be noted that the original democracies, Athens and Switzerland, were founded this way. Furthermore, contract is a better concept than convention as a basis for a democratic state. For ‘convention’ covers a wider type of agreements. Conventions may be based on tradition or habit, without exact definition, effective sanctions and justifications for exacting compliance. The notion of a founding convention/contract as a public affair is however fruitful when discussing the notion of a ‘body politic’ (Locke) and a nation.

Part Two: The Extent of Just Political Authority.

JH, (P 121)”This book began with an issue that worries all political anarchists, namely, Why is the coercive power of the state justified? Thus far we have come up with a partial answer: States are justified insofar as they are created via convention by people in a territory to fulfill certain roles considered to be extremely important for moral and for self-interested reasons… .  People who are citizens of states play a role in maintaining (and have sufficient power to engage in collective action to change) the leadership convention of their society.” “… this is not a fully satisfactory answer to anarchists. … people can want all sorts of bad things. Moreover, states throughout the world vary enormously in what they have done … . To answer the anarchists, we must acknowledge that some states … are still not morally justifiable in view of the kind of laws they generate and the goals they pursue. And this requires us to specify what goals and laws characterize a decent or just state.”  There is just one problem: (p 122) “There never has been, and there is not now, agreement on the nature of justice”. Quite so, and there never will be until an adequate basic principle of justice, acceptable to all democrats, has been incorporated into the objective of a democracy. Such a principle had not yet been established. Even JH did not find one, but that does not prove that it is impossible. As shown in my book, such a principle can be developed. But it is not a miracle cure: democracy must be earned. It requires the change of perspective from philosophers and social scientists (see on this site “THE FUNCTION OF PHILOSOPHY IN DECISION-MAKING” and the concluding chapters of my book) and a constant effort from all involved. Our current problems stem precisely from the unwillingness to make that effort by those who are able to do so.

P. Pappenheim, February 2006

*) THE CONCEPTUAL FOUNDATIONS OF DECISION-MAKING IN A DEMOCRACY”.