Contractualism and Liberal Neutrality: A Defence
| Author | Steven A. Lecce |
| Date | 01 October 2003 |
| DOI | 10.1111/1467-9248.00439 |
| Published date | 01 October 2003 |
| Subject Matter | Article |
Contractualism and Liberal Neutrality:
A Defence
Steven A. Lecce
University of Western Ontario
The most influential contemporary defences of liberal neutrality are premised on a contractual
view of political legitimacy. For contractualists, perfectionist principles of justice are illegitimate
because they cannot be the object of reasonable agreement among free and equal citizens. Several
critics have challenged this connection between contractualism and neutrality by suggesting that
the epistemic arguments commonly offered in its favour are self-defeating. This paper examines
three recent expressions of this claim – those of Simon Caney, Simon Clarke and Joseph Chan –
and finds that none of them succeeds. They fail because they mistake an ethical claim about how
states should respond to disagreement for an epistemic one that explains why such a response is
needed.
Social contract theories distinguish between legitimate and illegitimate uses of
political authority by asking what reasonable people would and would not consent
to under fair conditions. Contemporary liberal philosophers working within the
social contract tradition defend the idea that this standard of legitimacy excludes
principles of justice that presuppose the validity of any controversial views of
human flourishing. Only principles that are neutral between the rival ethical doc-
trines that they are meant to adjudicate could, they claim, secure the reasonable
consent of those who must live under them.
This alleged link between contractualism and liberal neutrality has prompted a
torrent of criticism.1 Some critics have rejected neutrality by denying the coher-
ence of the argumentative structure that yields it. Even if people would only agree
to neutral principles of justice from within the procedural constraints that con-
tractualism recommends, this conclusion is worthless, because such limitations are,
themselves, implausible. Others have accepted reasonable agreement as an ideal of
political legitimacy, if only for argumentative purposes, but have denied that neu-
tralist principles would be chosen by citizens seeking reasonable agreement on con-
stitutional essentials and matters of basic justice.
In this paper, I will consider three recent expressions of this second type of objec-
tion and conclude that none of them succeeds. My refutation of this argument –
what I will call the ‘reflexivity thesis’ – should be of paramount importance to
defenders of liberal neutrality. This is because, unless the thesis is mistaken, state
perfectionism is both unavoidable as well as legitimate, even from within their con-
tractualist view of political legitimacy2. I will take no position on the defensibility of
either contractualism or liberal neutrality but rather indicate why the claim that
they cannot be linked is confused.
© Political Studies Association, 2003.
Published by Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
C O N T R A C T U A L I S M A N D L I B E R A L N E U T R A L I T Y
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My argument will proceed as follows. In the first part of the paper, I will briefly
explain the contractual ideal of political legitimacy and the type of neutrality that
it yields, before outlining the reflexivity thesis as presented by its three advocates
(Caney, 1995; Chan, 2000; Clarke, 1999). These critics maintain that the contrac-
tual argument for neutrality is self-defeating because it cannot withstand its own
epistemic presuppositions. In the second part, I will distinguish between moral and
epistemic conceptions of reasonableness to illustrate that the reflexivity thesis gains
whatever limited appeal it has from conflating the two. I will then build upon this
distinction and construct an alternative argument for neutrality that evades this
critique. In the third part, I will indicate how my argument usefully illustrates the
flaws of several familiar objections to neutrality. If it does, in fact, avoid the type
of self-defeating epistemic premises that some claim to have detected in contrac-
tualism, perfectionist critics would have to go the hard way and attack the value
of moral equality that recommends reasonable agreement as an ideal of political
legitimacy.
The Reflexivity Thesis
For contemporary social contract theorists, only principles of political morality that
can be the object of reasonable agreement are legitimate bases for the exercise of
state power. This is the ideal of political legitimacy adopted by Brian Barry, Thomas
Nagel and John Rawls. They all argue that this criterion excludes principles of
justice that presuppose the truth of controversial ethical, religious or metaphysical
premises. Legitimacy requires that adjudicative principles be somehow neutral
between the conflicting ethical ideals that generate their need.
Precisely why, then, must states be neutral to secure the consent of those
subject to them, and what form must this neutrality take to satisfy the contractual
ideal of legitimacy? Perfectionist principles of justice are illegitimate because
they are reasonably rejectable by hypothetical contractors selecting political ground
rules from a position of equality. As we will see below, contractualists argue
that perfectionist values are unreasonable from a constitutional point of view.
‘Sceptical uncertainty’ (Barry, 1995), ‘epistemic restraint’ (Nagel, 1987) and
‘burdens of judgment’ (Rawls, 1993) are all attempts at explaining why this is
so. Although these ideas about the origins of ethical disagreement and the possi-
bility and limits of moral knowledge differ, they have the same political implica-
tion: only principles of justice that do not presuppose the validity of any of the
controversial ethical views that they are meant to adjudicate are legitimate. In the
literature, this is widely referred to by both proponents and critics as ‘justificatory
neutrality’.
Political legitimacy is based upon reasonable agreement. Perfectionist principles –
those that presuppose the validity of controversial views of human flourishing –
are unreasonable. Therefore, legitimacy requires justificatory neutrality, because
reasonable people would only consent to neutral principles of justice.
At first glance, then, the inference from contractualism to neutrality is only as per-
suasive as the epistemic theory that is the argumentative bridge between them.
Ultimately, whether something is politically legitimate or not depends upon
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S T E V E N A . L E C C E
whether it is reasonable or unreasonable, respectively, and controversial epistemic
theories distinguish between the two.
Three critics have recently challenged this general argumentative strategy by point-
ing to the implausibility of the epistemic asymmetry that it implies between per-
fectionist and neutral principles of justice. If perfectionist principles of justice are
illegitimate because they can be reasonably rejected as a result of their epistemic
status, contractualism is self-contradictory, unless, per impossibile, neutral principles
do not share this same status. If they do, and ‘sceptical uncertainty’, ‘epistemic
restraint’ and the ‘burdens of judgment’ also apply to liberal neutrality, then the
contractual position is self-defeating: the political conclusion (neutrality) that it
seeks to justify is inadmissible on its own terms.
The idea that contractualism and neutrality, alone, escape the burdens of practical
reasoning is dubious, to say the least. But unless this is so, they are, themselves,
vulnerable to reasonable rejection and, therefore, illegitimacy. I call this argument
the ‘reflexivity thesis’: it asserts that the contractual case for neutrality is self-
defeating because it cannot withstand its own epistemic presuppositions.
Precisely how, then, do its proponents set forth their case? The reflexivity thesis
takes slightly different forms depending upon its target, but there are two princi-
pal versions of it. According to the first version (Caney, 1995; Clarke, 1999), the
contractualist principle of political legitimacy is justified by arguments that, once
thought through, call it into question. The basic idea is that contractualism must
itself be justified in a way that is reasonably acceptable to all. But because the argu-
ments commonly given for it are reasonably rejectable by some, contractualism is
self-defeating. According to the second version (Chan, 2000), contractualist argu-
ments for liberal neutrality are not self-defeating but simply bad, to the extent that
they either exclude too much or too little.
Simon Caney has examined Rawls’s position that legitimacy requires the liberal
state to eschew the political pursuit of controversial ethical doctrines (Caney, 1995).
He focuses on ‘Powers of Citizens and Their Representation’, the second lecture of
Political Liberalism (Rawls, 1993), to assess Rawls’s two ‘aspects’ of reasonableness.
Caney begins with the second aspect because he takes it to be ‘relatively un-
problematic’ (Caney, 1995, p. 254). Simply put, reasonable persons are those who
recognize what Rawls calls the ‘burdens of judgment’ (Rawls, 1993). These are
the sources, or causes, of disagreement between reasonable persons: ‘the many
hazards involved in the correct (and conscientious) exercise of our powers of
reason and judgment in the ordinary course of political life’ (Rawls, 1993, p. 56).
Rawls’s non-exhaustive list is as follows:
(a)
empirical and scientific evidence is...
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