Associations in Social Contract Theory: Toward a Pluralist Contractarianism

Date01 May 2020
AuthorKevin Vallier
Publication Date01 May 2020
/tmp/tmp-183n367uajI6yn/input 854303PCX0010.1177/0032321719854303Political StudiesVallier
Political Studies
2020, Vol. 68(2) 486 –503
Associations in Social Contract
© The Author(s) 2019
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Theory: Toward a Pluralist
DOI: 10.1177/0032321719854303
Kevin Vallier
Liberals can be distinguished from one another in a number of ways, including by what they regard
as the greatest threats to liberty. According to Jacob T. Levy, “rationalist” liberals think that
nonpolitical institutions are the chief threats to freedom and that democratic governance can free
people from these private tyrannies. By contrast, “pluralist” liberals think that governments are
the chief threats to liberty, and civil associations are a bulwark against encroaching state power.
Levy has recently argued that the rationalist and pluralist strands of the liberal tradition cannot be
combined into a single political theory. In this essay, I disagree. My strategy is to develop a version
of contractarian political theory that treats associations as sources of legitimacy. This pluralist
solves two problems. It shows that the social contract theory can survive the
pluralist critique. And since the social contract theory is often understood as rationalist liberalism
par excellence, it shows that we can combine rationalist and pluralist insights into a single theory,
contra Levy.
freedom of association, liberalism, pluralism, contractarianism, public reason
Accepted: 10 May 2019
Liberals can be distinguished from one another in a number of ways, including by what
they regard as the greatest threats to liberty. Some liberals think that nonpolitical institu-
tions, like firms and families, are the chief threats to freedom; in contrast, democratic
government can liberate persons from these private tyrannies. Other liberals claim that
government is the chief threat to liberty; in contrast, nongovernmental institutions like
civil associations can limit the threat of government overreach. Jacob T. Levy has recently
dubbed these two strands of liberalism as “rationalist” and “pluralist” respectively. As he
puts it:
Philosophy Department, Bowling Green State University, Bowling Green, OH, USA
Corresponding author:
Kevin Vallier, Philosophy Department, Bowling Green State University, Bowling Green, OH 43403, USA.

On one side of this divide lies a liberalism I will call “pluralist”; skeptical of the central state and
friendly toward local, customary, voluntary, or intermediate bodies, communities, and
associations. On the other we see a liberalism I will call “rationalist”: committed to intellectual
progress, universalism, and equality before a unified law, opposed to arbitrary and irrational
distinctions and inequalities, and determined to disrupt local tyrannies in religious and ethnic
groups, closed associations, families, plantations, and the feudal countryside, and so on (Levy,
2015: 2).
It is hard to formulate a liberal political theory that is both rationalist and pluralist.
Levy thinks it can’t be done. But I want to try.
My strategy is to introduce a new kind of social contract theory that I call pluralist
contractarianism and argue that it can combine rationalist and pluralist insights. The
central distinguishing feature of pluralist contractarianism is that it allows nonstate organ-
izations to function as sources of legitimacy. Contractarian agreement includes agreement
on the norms governing political institutions, agreement on the norms governing civil
associations, and agreement on norms for resolving disputes between them. Political and
nonpolitical institutions together express the will and reason of the public. We thereby
combine the pluralist insistence that there are multiple, and in many ways competing,
sources of political legitimacy with the rationalist insistence that social disputes be
resolved by the tribunal of the reason of the public (Muñiz-Fraticelli, 2014: 183).
Pluralist contractarianism, in my view, solves two related problems. First, since plural-
ist contractarianism is a variant of the social contract theory, we can answer the pluralist
critique of the social contract theory as such as excessively rationalist. Second, since the
social contract theory is often understood as rationalist liberalism par excellence, pluralist
contractarianism shows that we can combine rationalist and pluralist insights into a single
theory, contra Levy.
Pluralist contractarianism is a variant of the dominant contemporary branch of the
social contract theory known as public reason liberalism, specifically one that under-
stands public justification as an overlapping consensus of diverse reasons on common
institutions and social rules (Rawls, 2005: liii). It is also distinct in insisting that public
justification applies not merely to “constitutional essentials and matters of basic justice”
or even merely coercive state law. Public justification also applies to the class of social
norms that comprise what P. F. Strawson (1974: 29–49), Kurt Baier (1995: 195–224),
Joseph Raz (2009: 41–43), and Gerald Gaus (2011: 2–13) have called a “social morality,”
a system of moral rules and associated moral demands in which persons hold each other
responsible for violations of publicly recognized moral requirements.1
But pluralist contractarianism goes beyond social norm-directed public justification
by understanding associational norms as a part of social morality. Thus, associations can
be justified in a kind of state of nature, a legal state of nature, where the rules of a social
morality, or moral rules2 exist, but law and government have yet to form. This means that
associations can be publicly justified independently of the state, its laws, and legislation.
If associations can be so justified, then they can function as their own sources of legiti-
macy, and can even restrict the public justification of state power. For state power can
only be publicly justified insofar as the state can perform important functions that asso-
ciations cannot. Associations can pit their legitimacy against the legitimacy of the state,
another pluralist insight.3
I will here assume that freedom of association is one of the most fundamental pub-
licly justified basic rights. One can arrive at this result with different contract theories,

Political Studies 68(2)
say those advanced by Rawls (1971), Gaus (2011), and David Gauthier (1986). I will
not argue for the public justification of freedom of association here, save to say that
persons will contract to respect each other’s associational rights on the grounds that
doing so is both rational and reciprocal for each person. People will want associational
rights regardless of their comprehensive doctrines, worldviews, and so on when they
choose associational rights through a suitably structured contractarian choice proce-
dure. They will prefer to protect their pursuit of their own values from encroachment by
others (Vallier, 2019: 206–207).
I will also assume that violations of social norms are not always “everyone’s busi-
ness,” as Baier (1958: xviii-xix) and Gaus (2011: 224) have put it. Baier and Gaus under-
stand the rules that comprise our social morality as ones that always or nearly always
license indignation among those who observe an infraction of the rule, and resentment
from those who were harmed or insulted by the infraction. Yet, there are many publicly
recognized moral rules that not everyone has the standing to enforce. In the Catholic
Church, for instance, only some people have the standing to insist that a member confess
her sins or obey the directives of the church hierarchy. If an atheist insists that her
Catholic friend confess, the atheist lacks the standing to do so even if her friend acknowl-
edges that she should go to confession. In this case, the Catholic friend is liable to think
that the atheist has violated a moral rule of minding her own business because she is not
a Catholic.
Elsewhere, I have called rules that specify the standing to criticize and hold responsi-
ble “jurisdictional rules,” publicly recognized moral rules that specify which moral viola-
tions are everyone’s business, such as rules determining whether atheists have no authority
to demand that their Catholic friends go to confession (Vallier, 2018). The rules protected
by standing rules do not have to be justified to society as a whole; instead, associational
rules only have to be sub-publicly justified to association members, whereas the standing
rules protecting the unique standing of group members to hold other group members
accountable must be justified to all.
From here, I proceed in eight parts. “Moral Associations” outlines the idea of a moral
association, a complex of formal and informal moral rules aimed at uniting a group of
persons around some project or common goal. “Civic Associations” and “Commercial
Organizations” identify two types of moral associations—civic associations like churches,
and commercial organizations like firms and unions. In “The Priority of Moral
Associations,” I explain the way in which moral rules comprising these institutions are
sources of legitimacy and how they restrain state power. “Private Tyranny and
Balkanization”—“Who Resolves Jurisdictional Disputes?” address four common...

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