The Journal of Political Philosophy: Volume 5, Number 2, 1997, pp.

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Political Contractarianism
DAVID GAUTHIER Philosophy, University of Pittsburgh

I want to enquire into the relationship between the normative claims of a society and the normative stances of its members. I shall develop a contractarian perspective, as the only one available to persons who may neither expect nor require their fellows to share their own orientation to values and norms. Although I only touch on these matters here, I hope to contribute to an interpretation of the clauses on the establishment and exercise of religion in the First Amendment to the United States constitution, and to suggest guidelines for determining rights and duties in becoming and being a parent. More generally, I offer answers to certain questions about how social practices and institutions may be justied in a democratic society. 1. o begin, I shall sketch the contractarian perspective. The contractarian proposes a mode of justication for norms governing interaction. Think of these norms as at once enabling and limiting. They dene practices that expand the prospects of individuals, not only instrumentally in facilitating the attainment of independently established ends, but also intrinsically in giving rise to quite new ends. But the norms are also limiting, again not only instrumentally in constraining the way in which individuals may attain their own ends, but also intrinsically in excluding possible practices and the ends attainable through them. The contractarian begins from a baseline that is free of all such practices, of all social enabling and limiting. Justication is then addressed to the individual agents, who are characterized as and only as rational deliberators. In this very important sense, contractarianism expresses normative individualism. The contractarian test applied to a norm or set of norms is simply whether, were the persons within the scope of the norm or set of norms to be in a position to determine their conditions of interaction, it would then make sense for each of them, deliberating rationally, to agree on such conditions, and to include the norm or set of norms among the agreed conditions. Social institutions and practices, the opportunities and limitations, the rights and duties, that they create are thus seen by the contractarian as justiable in terms of a hypothetical agreement, and indeed only in such terms. Without supposing that the appeal to

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hypothetical agreement is widely available for justicatory purposes, the contractarian maintains that it offers the best possible defence of a system that normatively regulates the interactions of individuals when some such system would be benecial to everyone, but any actual system must largely pre-exist the real persons who enjoy its benets and fall under its constraints. The contractarian position is in a clear sense normatively minimalist. The contractarian holds that the only uncontroverted area for the operation of norms in determining actions is afforded by individual deliberation. What characterizes human beings as deliberative animals is the capacity to be motivated by representations of states of affairs as they are and as they might be given one's possible actions, and the further capacity to be able both to ask in any particular case whether it makes sense to be motivated to some act by some set of representations, and actually to be motivated in the light of the answer one gives to this question. The idea of what makes sense to do is the essential normative element in deliberation, and the contractarian builds upon it.1 The contractarian position is not only minimalist, but also in an important sense constructivist. That is, the entire normative structure of a society is conceived by the contractarian to depend on the deliberative normativity of its individual members. Each from her own deliberative stance must judge the social norms, and the practices to which they give rise, as ones to which it would make sense for her to agree, were she and her fellows to have the opportunity to decide together on their terms of interaction. I shall consider later some part of what seems to me essential if a society is to elicit such agreement. But what I want to emphasize here is rst, that the validity of the social norms is understood to depend on and derive from the norms held by the individual members of society. There is no other source recognizable by all from which they could gain their validity. Furthermore, the social norms must derive their validity, not from any or all norms that different individual members of society may happen to hold, but only from those norms that all members can recognize as ones they would themselves accept given appropriate circumstances. The contractarian view is that only the norms of deliberative rationality satisfy this condition. All other norms, deriving, say, from a religion, or from a view of the world as characterized by objective value, are ones that only fellow believers in the religion or world view can recognize as ones that they themselves would accept. They may not then be appealed to directly in the defence of social practices that must be justiable to each. 2. To understand contractarian justication more clearly, we may contrast it with that offered by a quite different moral and political theory which also appeals to
1 I borrow the phrase ``makes sense'' from Allan Gibbard, Wise Choices, Apt Feelings (Cambridge, Mass.: Harvard University Press, 1990), p. 7.

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the idea of a social contract, and which, following one of its chief proponents, Thomas Scanlon, I shall refer to as contractualism. The difference between these two views is usefully brought out in Scanlon's classic paper `Contractualism and utilitarianism.'2 To formulate it, I propose to take certain liberties with the concluding paragraph of his paper, substituting for a concern with one's protection the more general concern to advance one's good whatever that good may be. The rewritten paragraph becomes:
The contrast might be put as follows. On one view, concern with advancing one's good is fundamental, and general agreement becomes relevant as a means or a necessary condition for advancing one's good. On the other, contractualist view, the desire to advance one's good is an important factor determining the content of morality because it determines what can reasonably be agreed to. But the idea of general agreement does not arise as a means of advancing one's good. It is, in a more fundamental sense, what morality is about.3

Scanlon's contractualist approach nds morality in the idea of general agreement. In conforming to moral principles and practices a person is motivated by ``the desire to be able to justify one's actions to others on grounds they could not reasonably reject'' given that they are similarly motivated.4 This desire is satised insofar as one's actions may be seen as according with, or at least not violating, terms of reasonable general agreement. A contractual society, then, affords the locus within which each person may see herself as justied to her fellows. We might say that, for Scanlon, persons stand to each other in a fundamental moral relationship expressed in mutual justication. Although he speaks of a desire to be able to justify one's actions to others, this cannot be an ordinary desire, on a par with the other desires that a person may happen to have. Rather, the desire to be able to justify one's actions constitutes the agent's recognition of the moral signicance and status of her fellows. An agent lacking this desire would lack this recognition. And for someone defending Scanlon's understanding of a contractual society, this lack of recognition of the moral status of others is surely a moral failure. Thus, on Scanlon's view, the direction of justication is from the individual to others. The role of agreement is to gain the acceptance of others for one's actions. But in the contractarianism that I espouse, the direction of justication is quite the reverse. Beginning from the idea of a rational deliberator, the contractarian
2 In Utilitarianism and Beyond, ed. Amartya Sen and Bernard Williams (Cambridge: Cambridge University Press, 1982), pp. 10328. 3 See ``Contractualism and utilitarianism,'' p. 128. The original passage reads: The contrast might be put as follows. On one view, concern with protection is fundamental, and general agreement becomes relevant as a means or a necessary condition for securing this protection. On the other, contractualist view, the desire for protection is an important factor determining the content of morality because it determines what can reasonably be agreed to. But the idea of general agreement does not arise as a means of securing protection. It is, in a more fundamental sense, what morality is about. 4 ``Contractualism and utilitarianism,'' p. 116.

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nds no basis for postulating a moral need for the justication of one's actions to others. The role of agreement is to address each person's demand that the constraints of society be justied to him, not a concern that he justify himself to his fellows. But what is accomplished by justication? Suppose a person grants that certain existing social practices pass the contractarian test. Then the contractarian claims that the person has a reason, and normally a sufcient reason, for conforming to the practices. But this is not all. The person is entitled to expect others to conform to the practices, and has reason to demand that those who fail to do so be sanctioned in some way by society. And she has no reason to complain if she herself is sanctioned, should she fail to conform. Of course, the sanctions themselves must pass the contractarian test. But if they do, then she rightly invokes them against others, and rightly has them invoked against herself, for behaviour violating the norms inherent in the social practices. This doctrine of justication, tying reasons in interaction to the test of hypothetical agreement, is the core of political contractarianism.5 3. Without imposing substantive constraints on rational deliberation, we may suppose that each deliberator seeks to act in ways that realize his values. And so as point of departure for an inquiry into the relationship between the normative claims of society and the normative stances of its members, we may take the idea, itself Rawlsian, of society as ``a cooperative venture for mutual advantage,''6 understood as requiring that each normal member of society both nd value in and contribute value to the others. Someone who did not nd value in society would have no reason to agree to its conditions of interaction. Someone who did not contribute value to others would give them no reason to accept her within the scope of society's conditions of interaction. Each then must be able to draw from society some of what she seeks but could not gain on her own, and each must contribute to society some of what others seek but would lack without her. Or, put simply, each must be both beneciary and benefactor. These requirementsof gaining benet from and conferring benet on one's fellowsserve to constrain the values, or we might say life-plans, that the individual members of society seek to realize. The contractarian picture that I am sketching might seem to suggest that in reaching agreement on social institutions and practices, and on the constraints that these impose, each should deliberate from her own prior conception of or plan for a life that she views as worthwhile, whatever that plan may be. Acceptable social institutions would then be ones that would adjust in response to whatever plans for a worthwhile life were actually
5 I do not defend this doctrine here. I do of course support a view of this kind in Morals by Agreement (Oxford: Clarendon Press, 1986), ch. VI, and in ``Assure and threaten,'' Ethics, 104 (1994), 690721, and indeed elsewhere. But an adequate defence would require locating the doctrine within a general theory of rational deliberation. 6 John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), p. 4.

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held by the members of a society, each expecting her share of the total social product to advance the realization of her plan. In effect, society would track lifeplans in the way in which the perfectly competitive market tracks consumer demands.7 Now there are several objections to understanding the contractarian argument in this way. The deepest, to which I shall return, is that it would restrict social norms to the instrumental roles that, as I have insisted, are only a part of their enabling and limiting functions. But rst we should note that not all life-plans or conceptions of a worthwhile life that are possible within a given social structure would make their possessors welcome as net contributors to the joint product which social interaction makes possible. No one can be rationally accepted into society who chooses a life-plan which would impose net overall costs on his fellows, and so make him a malefactor instead of a benefactor. To do so would be to violate what I have identied as a fundamental requirement underlying voluntary rational interaction.8 This requirement, which generalizes Nozick's interpretation of the Lockean proviso, rules out interactions in which, against a no-interaction baseline, one party gains and the other loses. In thinking of society as a cooperative venture for mutual advantage, we rule out deep violations of this requirement from our very idea of permissible social interaction. Let me illustrate the application of this requirement with a deliberately provocative example. Consider women on welfare who choose to bear a child or who, becoming pregnant, choose not to have an abortion. Such women have an unfavourable image these days and, on a contractarian view, this may seem well deserved. In choosing to bring children into the world despite their lack of both nancial and, in many cases, emotional resources to care properly for those children, they are violating an appropriate extension of the proviso that forbids interactions that better one party by making the other party worse off than anyone need have been. I speak of an extension to the proviso because in this case the disadvantaged partythe childexists only through the interaction, so that one cannot compare the child's situation with what it would have been otherwise. Rather, one can say that the child's situation involves costs that no one need bear, and that no one would bear were women who lack the nancial and emotional resources to offer children proper care not to give birth. It may be objected that the proviso violation here is not the fault of the welfare mothers, or the frequently absent fathers, but rather that of a society which fails to offer appropriate facilities to care for their children. But, at least on the face of it, this objection fails. For if society were to provide such facilities, they would represent a net cost to society's other members. In other words, the welfare
7 I defend this view of an ``essentially just society'' in Morals by Agreement, pp. 3401, but, as I shall argue, it no longer seems to be a necessaryor indeed feasiblepart of a contractarian account. 8 See Morals by Agreement, pp. 200 ff.; also my paper ``Uniting separate persons,'' Rationality, Justice and the Social Contract, ed. David Gauthier and Robert Sugden (Hemel Hempstead: Harvester-Wheatsheaf, 1993), pp. 1825.

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mother would be imposing net costs on her fellows by her choice of life-plan. Her gross contribution to the joint social product is less than the gross cost to the other members of society of providing adequate care for her children. And so if she did not violate the proviso in bearing her children, she would do so in imposing the cost of their upbringing on her unbeneted fellows. To avoid misunderstanding, note that the proviso violation does not arise because a woman nds herself on welfare, and a mother. Clearly a person could nd herself in this situation because of misfortune, and quite contrary to reasonable expectation. Rather, the violation arises because a woman on welfare chooses to bear a child, or because a woman chooses to bear a child expecting then to need welfare. Everyone stands in risk of becoming unable to provide for himself, whether directly or through exchange. Society provides insurance against this risk. But it does not thereby license persons to choose not to provide for themselves, or to choose to have offspring for whom they are unable to provide. It does not license persons to choose to be a net cost to their fellows, or to choose to bring into existence those who would be a net cost.9 The proviso is not a utilitarian requirement. Each member of society is free to choose a life-plan responsive to her own concerns, without taking overall social welfare into account. But under any plausible understanding of the normative claim that society be a cooperative venture for mutual advantage, a claim underlying the possibility of offering a contractarian justication of social arrangements, some conceivable life-plans will be ruled out. The freedom to form and execute one's life-plan cannot be unconstrained in any society whose norms meet the contractarian test.

9 There is a further and more difcult objection against the claim that women on welfare who choose to become mothers thereby violate the provisoan objection that I want to mention, but which I cannot attempt to assess. The objection is that our society does not afford persons in the situations typical of welfare mothers, especially if they are single, with the opportunities to make socially valuable contributions, although it might do so. Were this the case, then the injustice that the welfare mother seems to be perpetrating against her offspring and/or society as a whole would exist only, or at least largely, because of a prior social failure, which will seem to be a deep social injustice, in the provision of opportunities. Typical welfare mothers would be effectively excluded from useful employment that would entitle them to the means to offer their children a proper upbringing. But to see more clearly the nature and force of this objection we may usefully look at the general problem created by structural unemployment. Let us suppose, in accordance with the deliverances of most economic theorists, that an efcient capitalist society requires a certain non-trivial level of unemployment. It may then seem obvious that some persons will be unemployed through no fault of their own. The joint social product would be lessened if they were added to the numbers of the employed. And so their presence in society is not a net cost to their fellows. If some unemployment is needed to maximize the joint social product, then they, in being unemployed, are in fact, if paradoxically, adding to social value. Now those who are unemployed for structural reasons are not thereby treated unjustly. But they are treated unjustly if their unemployment is made the excuse for denying them a reasonable share of the joint social product. If this were indeed the situation of welfare mothers, then the second objection would succeed. And there is of course a further possibility, which is that welfare mothers, again especially if they are single, are denied opportunities, not for valid structural reasons, but on directly discriminatory grounds that ignore their potential contribution to the joint social product. As I have noted, I shall not attempt to assess these matters here.

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4. In referring to a ``freedom to form,'' I am implying that what a person values, and seeks to realize as a worthwhile life, is in some measure within that person's control and choice. And this provides a clear ground for rejecting the view that agreed social norms must be strictly neutral among the life-plans of the members of society, adapting to them whatsoever they may be. To suppose that agreed social norms must exhibit this kind of neutrality among possible life-plans if they are to be justiable to the members of a society is to treat life-plans as given, not only from the standpoint of society, but from the standpoints of the individual members of society. If each of us were to nd herself with a set of aims which dene for her a worthwhile life, and which she were unable to abandon or modify except at severe cost to her prospects of achieving such a life, then a contractarian society would indeed need to be neutral with respect to these life-plans based on these given aims, and to endeavour to adjust so that whatever the plans might be, each would be afforded a prospect of fulllment that fairly reected the contribution she made to the joint social product. But human beings do not simply accept passively a set of aims or a life-plan. Rather, values, aims and plans are all subjects for deliberation and choice. Furthermore, the very idea that social norms be neutral among life-plans is incompatible with recognizing that they give rise to practices that enlarge the horizon of ends, and not merely the horizon of means. The life-plans available to an agent thus depend on the social practices of her society. They cannot be formulated independently, and then used as a basis for selecting among social structures, even if the t between plans and structures is conceived dynamically on the market model. Indeed that model itself fails to accommodate the enabling role that the market plays in enlarging the horizon of commodities. The contractarian supposes, therefore, that social practices are to be justied, not primarily by showing how they accommodate independently-given life-plans, but rather by showing how they permit and encourage the formation of life-plans for which they offer the prospect of satisfying fulllment. Suppose that we think of each member of society as characterized by a lifeplan. And suppose further that each person sees her life-plan as a matter of choice, as an option and not a requirement, so that she can envisage the choice of some quite different life-plans as compatible with her integrity as a person. I shall want later to qualify this supposition. But I shall begin by treating the normative stance, as I shall call it, of each person as exhausted by her nature as a rational deliberator, so that in being constituted in accordance with a set of norms which could be agreed to by rational deliberators as conditions of their interactions, a contractarian society is adequately justied from the normative stance of each of its members. And now I can sketch very abstractly part of the t between individuals and society that would be required in an agreement among rational deliberators on

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their terms of interaction, given that they recognize that these terms create for them possibilities of new ends and not merely new means to existing ends.10 The society must be so structured that, rst, for each normal person, there is a range of social roles effectively available, each of which demands a productive contribution from its holder, and rewards the holder appropriately to her marginal contribution to the joint social product. Second, each of these roles must be compatible with a set of life-plans, any of which could in normal circumstances be chosen by and satisfyingly pursued by someone occupying the role, and having at her disposal that share of the joint social product which rewards effective occupancy. If a role is to be effectively available to an individual, then it must be suited to her capacities, and she must have had the opportunity to develop and train them. And if the pursuit of plans is to be satisfying, then it must be suited to her motivations and affections, and she must have had the opportunity to educate them. I shall return to the question of ensuring access to preparation for the choice of a social role and life-plan. Note that this account of the proper t between individuals and society focuses on how each is placed in relation to the pursuit of a satisfying life-plan, and only secondarily on how individuals are placed in relation to each other. If each person may choose among productive roles, each of which would be appropriately rewarded, and may then choose among life-plans which she may expect to pursue satisfyingly with the resources her reward makes available, then as long as these choices are offered on the same basis to all, no one has reason to consider her position in society, or her relations with her fellows, deeply unjust. Adequacy of opportunity is essential; given the natural differences among persons, equality of result should be recognized as neither possible nor desirable. This sketch is not intended to be complete; in particular it omits the fundamental political rights and liberties that would enable each individual to include participation in the democratic governance of society as part of her lifeplan, and the duties that would require some minimum level of participation. But these are sufciently familiar, and not at issue in the present discussion. It is sometimes supposed that a contractarian society must be characterized by, and only by, contractual relations among its members. But nothing in the account that I have given requires or, properly understood, even suggests this. It is one thing to suppose that persons must regard the terms of their interaction as the outcome of agreement; it would be quite another to suppose that persons must regard the outcome of agreement as requiring all interaction to be on contractual terms, or that non-contractual interaction be individually voluntary. Indeed it seems evident that in any society there will be some relationships among persons which are not directly chosen, or agreed to, by some of the parties to those relationships, but which will nevertheless impose duties and other constraints.
10 What follows may be read as an interpretation of the principle of maximin relative benet (see Morals by Agreement, pp. 1545) appropriate to political agreement on terms of interaction.

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The contractarian need not abandon the institution of the family because it cannot be represented as the direct outcome of agreement among all of its members, so long as family life may be represented as integral to a society that would itself be a possible outcome of reasonable universal agreement. 5. The idea of agreement among hypothetical deliberators choosing their terms of interaction may seem too indenite to afford any direct conclusions about the justiability of actual social norms and practices. There is, after all, no social arrangement that would seem best for everyone, so would not any proposed norms be rejected by some? However, we should not expect the outcome of the social contract, or of any other agreement, to be the best possible for each party. What matters is that there be social structures that are clearly universally preferable to the vacuum that would exist in the absence of norms and practices, so that each party has a strong incentive to agree, and that the actual social structure not only be in this way mutually benecial, but also that it ensures that the proportion between benets and the contribution that each chooses to make be roughly the same for all. The terms of a cooperative venture are the same for all insofar as they provide for each to benet in proportion to his contribution to the same degree as his fellows. And if persons have a strong incentive to agree, then it would be unreasonable for anyone to undermine or threaten his prospect of being included in an agreement by demanding better terms than his fellows. Thus the possibility that other norms, practices and institutions might be equally reasonable to accept is no argument against an existing social order. Only if the existing society could not plausibly be represented as the outcome of reasonable agreement on terms of interaction would there be ground to reject it, or to seek to supplant it with norms and practices that could be represented as the outcome of agreement. The task of contractarian justication is made sufciently determinate by appealing to and only to the deliberative rationality of the members of society. 6. At the outset I characterized the contractarian view as individualist, minimalist and constructivist. I want now to comment further on these, and in so doing to lead into a discussion of the place of non-contractarian norms within a social contractarian framework. First, the individualism that contractarian justication expresses is quite weak. Although justication must be addressed to the individual, and to the individual conceived as a rational deliberator, the practices that may be justied in this way need not in themselves be individualistic. I have already noted that non-contractual relationships among

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persons are eligible for contractarian justication, and I want here simply to generalize this idea. Think of a human society as comprising practices and institutions, each of which has its own normative structure. Nothing in the contractarian test formally constrains the characeristics of these structures. Group rights and collective responsibilities are eligible to take the test, although one may doubt that they would succeed in passing it. But just as John Harsanyi has developed a utilitarian version of the social contract,11 so someone might develop a communitarian or even collectivist version. I do not, of course, suggest that communitarians or collectivists should nd cause to rejoice in the possibility of contractarian support. As I have just said, I doubt that actual support is at all likely. But even if actual support were forthcoming, it would show only that adherence to communitarian norms promoted the mutual benet of rational deliberators, and this is not the justication that those who consider themselves communitarians want. They do not accept the priority of the individual deliberator in determining the normative validity of community. They are unlikely to agree with the claim that if there is anything attractive about group rights, collective responsibilities and the like, it must be revealed by showing that practices and institutions embodying them would pass the contractarian test. Why then is it worth mentioning and even emphasizing the possibility that non-individualistic norms might pass the contractarian test? My intent is to make clear that the relation between deliberative rationality and other normative conceptions is, we might say, justicational rather than denitional. And this affects the sense in which my account is minimalist and constructivist. These must be understood in a justicational way. The only justication that we may appeal to in support of a social practice or institution relates to the deliberative rationality of the members of society. And that justication involves showing that it would make sense for the members of society to agree to a social framework that would include that practice or institution. But the characteristics of this framework need not be entirely composed of, or constructed out of, the norms of deliberative rationality itself. Society may be conceptualized as a construction by deliberatively rational individuals, but it need not be a construction using only the normative resources of deliberative rationality. In previous work such as my paper `Public Reason,'12 I do not distinguish between the denitional and justicational roles of deliberative rationality, and so I assume a more robust form of constructivism. And I am still convinced that important normative resources for the construction of social institutions, and especially social authority, do come from the deliberative normativity of the individuals. But the idea that the only resources available for the construction of
11

56.

See especially ``Morality and the theory of rational behavior,'' Social Research, 44 (1977), 625 In Social Philosophy and Policy, 12 (1995), 1942.

12

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authority must come from individual norms of deliberation now seems to me to confuse the need to justify authority in terms of deliberative rationality with the endeavour to create authority through the transfer of deliberative rationality from the individual members of society to a social agent.13 7. To this point I have assumed that the normative stance of the individual members of society consists in and is exhausted by their status as rational deliberators. Now there are two ways to understand this assumption. The rst is, we might say, as part of an agnostic politics. On this view, norms other than those constitutive of or justiable in terms of rational deliberation are neither publicly afrmed nor denied, but are regarded as unsuitable for the purposes of social justication, since they may not constitute a common ground among the members of society. They are treated as publicly unknowable, however they may be regarded by individuals. The other way of understanding the assumption is, we might say, atheisticallythe validity of norms other than those constitutive of or justiable by rational deliberation is denied. In a society in which persons have not only different substantive views of what is good and right, but different justicatory views about what grounds the good and the right, only the agnostic understanding is feasible or permissible. It would compromise the integrity of those persons who personally endorse ideas of objective value and a morality independent of deliberation, whether on secular or religious grounds, to agree to social structures that would deny their understandings. But this consideration, which rules out the denial of norms not constitutive of nor justied in deliberation, proves to require the agnostic insistence that such norms may not be used in social justication. For it would compromise the integrity of persons to agree to social structures resting on any normative understanding that they did not share. Although many will reject the normative sufciency of deliberative rationality, it offers common ground to all those for whom such ground is possible at all. Among persons who have differing substantive and justicatory views of the good and the right, those who reject deliberative rationality have no basis on which they can unite themselves with persons who do not share their particular overall normative stance, and cannot be included in a society constituted as a ``cooperative venture for mutual advantage.'' Let us return to the idea of the members of society as characterized each by a life-plan. But we should now acknowledge that although some elements in one's life-plan may be treated as optional, others may be seen as required. Christians do not suppose that their acceptance of a god, or their obligation to worship, are
13 I take this to be the core of Thomas Hobbes's project in Leviathan, and I pursue it in ``Public reason.''

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optional features of their life-plans. Kantians do not suppose that conforming the maxims of their actions to the requirements of the categorical imperative is optional; utilitarians do not suppose that directing their actions to the greatest happiness of the greatest number is optional. These all constitute requirements different for different personsbut each reecting a commitment that is not part of the idea of deliberative rationality. A contractarian society must be publicly agnostic with respect to these views. But it must be benevolently agnostic, insofar as the holders of these views share a commitment to interact with those who have different convictions on terms that it would make sense for all to accept. No outlook may be privileged, but none may be banned or impeded. And I take this to be the intent of the First Amendment clauses concerning religion, expanded to cover the entire space of evaluative and normative concern. To illustrate the implications of a benevolent agnosticism, consider how a contractarian society may reasonably accommodate strict sabbatarianspersons who believe that a universal day of rest is religiously required. On the one hand they are of course free to advocate a universal day of rest as a social practice, but from the public perspective this may be treated only as their particular preference, to be weighed against other preferences with no special consideration given to its alleged religious ground. A universal day of rest would, of course, constrain certain life-plans, but it would facilitate others. It would not, so far as I can judge, be evidently incompatible with ensuring that each person enjoyed a wide choice among satisfying life-plans, and so it would be an admissible option for a contractarian society, even if, as I am inclined to think, not on balance a desirable one. On the other hand, the sabbatarians have a claim to be accommodated in their own life-plans that extends beyond any claim that would be provided by a particular preference. They claim a freedom to rest on their sabbath which does not represent, from their standpoint, part of an optional life-plan, but rather a requirement. Now we must surely suppose that if persons were in a position to choose their terms of interaction, they would insist that they be free to choose life-plans that would enable them to live themselves in ways that would meet whatever moral or religious requirements they might accept, so long as in following these plans they were net contributors to the joint social product. And so in a contractarian society there would be life choices to accommodate sabbatarians, although not every choice available to other members of society say, for example, that of being a professional athleteneed be available to them. Note that this argument, which affords a measure of protection to the moral and religious convictions of individuals that is not extended to their mere preferences, makes no appeal to the content of these convictions, but only to the way in which deliberatively rational individuals would regard morals and religion. The practices and institutions of a contractarian society must be justied to persons as rational deliberators envisaging the possibility of mutually

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determining their conditions of interaction. I have supposed that, faced with this issue, a person would be primarily concerned with guaranteeing the availability to her of a range of social roles, each correlated with a range of life-plans, any of which might be expected to afford a satisfying life, compatible with the role, to someone choosing it. But insofar as a person envisages her choice among lifeplans as constrained by what she takes to be moral or religious requirements, she will be concerned with the further guarantee that the roles and correlated plans include options for her that will satisfy these requirements. There are, of course, limits to such a guarantee set by the underlying contractarian requirement of mutual benet. But no one need share the actual moral or political convictions of her fellows to recognize that, as rational deliberators, they would seek such a guarantee. 8. To illustrate further the implications of contractarian agnosticism, consider two forms of huntingfox-hunting, as practiced by some of the English gentry, and seal-hunting, as traditionally practiced by coastal communities in Atlantic Canada. Some persons nd these practices cruel, and would prefer to be part of a community that outlawed them. In a contractarian society their preferences are entitled to a hearing. But we then need to ask about the effects of outlawing a practice of hunting on the productive opportunities and life-plan choices available to those who now participate in it, and about the comparative treatment their concerns are being given in relation to those of their fellows. Fox-hunters, much as they may enjoy the sport, would not nd their social contribution in any way diminished, and would have alternative satisfying recreational outlets available to them were the hunt to be abolished. To be sure, they would have to make changes in their life-plans, but not changes that could plausibly be represented as incompatible with sustaining the quality of their lives. Thus the legitimacy of fox-hunting would fall within the purview of the ordinary legislative and regulative bodies of a contractarian society. Agnostic with respect to the values of both fox-hunters and their opponents, and viewing those values publicly as opposing preferences, no question of public principle would be involved. On the other hand, seal-hunters would be affected much more centrally by a ban, both in their productive activities and in their overall life-plans, and given the already limited range of choices effectively available to them, any further uncompensated diminution must disadvantage them in ways not paralleled by the sort of limitations experienced by other members of society. To be sure, the seal-hunters way of life might be rendered unviable by the perfectly justiable refusal of persons who nd the hunt cruel to engage in the marketing or purchasing of their products. But that is another matter. A contractarian society is debarred from closing off what have become central areas of choice for some of

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its members, unless allowing such areas makes the presence of those members a net cost in the society. And this is not an issue appropriately decided by ordinary legislative and regulative procedures. It involves the fundamental terms of the social contract. Those nding the seal hunt cruel might of course try to appeal to the costs of their feelings. But these are largely within their control. They can choose satisfying activities that do not lead them to dwell on the clubbing of baby seals. They can no more claim that their lives must thereby be diminished in quality than can those who are denied the pleasures of fox-hunting. No doubt this will seem to many persons to miss the point. For opposition to seal-hunting is not represented as part of a set of values that one chooses, but could choose otherwise. Those opposed see their stance not as optional but as required. But although this may justify them in refusing to participate in any way in activities related to hunting, and in expecting society to provide opportunities for them compatible with their non-participation, it cannot justify them in seeking to restrict the choices of others who do not share their convictions. The agnosticism of contractarian society requires that from the public perspective their convictions be taken only as preferences. And since fullling their preference for a ban on seal-hunting would severely restrict the choices of roles and satisfying life-plans available to certain other members of society, it would be inadmissible. 9. The benevolent agnosticism extended by a contractarian society to different moral and religious stances should not lead us to suppose that the society is itself morally agnostic. This should be clear from my insistence, in considering the provision of a guarantee for the individual exercise of moral and religious convictions, on the priority of the requirement of mutual benet. Contractarian agnosticism is limited to those views that are neither validated nor rejected in terms of deliberative rationality. But the social contract is so validated, and a contractarian society expects and requires adherence to it. The members of a contractarian society may not plead their individual evaluative or moral or religious understandings against the practices and institutions that are constituted in accordance with the terms of agreement without excluding themselves from the framework of social cooperation. I take this to be the truth in Rousseau's defence of civil religion.14 To be sure, some of the particular provisions that Rousseau supposes necessary for the stable existence of society no longer seem necessary to us, but the idea of a morality that all members of society must publicly acknowledge and to which all are obliged to conform is not thereby discredited. It is noteworthy that Rousseau includes in his
14

Jean-Jacques Rousseau, Contrat social, book IV, ch. 8.

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civil religion a rejection of intolerance, of the idea that society acknowledges a single path to salvation, which corresponds to the benevolent agnosticism of a contractarian society. Of course his proposal that those who, once having committed themselves to the civil religion, then deny it should be punished with death may seem excessive to us. But there is no contractarian rationale requiring that provision be made for the lives or life-plans of those who, offered the opportunity to live on terms that would make them contributors to the joint social product, choose for whatever reason to make their presence costly to their fellows. Even if their refusal reects their moral or religious convictions, they have no claim on the benevolent agnosticism of a contractarian society, which extends only to those who accept their place as partners in a cooperative venture on terms that it would make sense for all deliberatively rational agents to accept. 10. I referred earlier to the importance to each individual of ensuring access to preparation for the choice of a social role and life-plan, preparation that involves both the development and training of her capacities and the education of her motivations and affections. Although children as such are unproductive members of society, their rights and concerns must be recognized in the social contract. The parties to the contract are individual human beings, taking thought for their whole lives in agreeing on terms of social interaction, and therefore concerned to ensure, so far as possible, that in childhood they enjoy economic and emotional security and are able to train their capacities and educate their affections so that they may effectively engage in a satisfying and productive adult life. The contractarian requirement that each must expect to be not only beneciary but benefactor applies not at each moment of an individual's life but over the course of her life as a whole. Assuring an effective upbringing for each member of society will impose signicant demands, both on the state and on parents, going well beyond the minimal demands of the proviso. The claim that persons have the right to procreate more or less as they please cannot be recognized in any society which provides such assurance. If an economically and emotionally secure and stable upbringing is a basic demand enshrined in the social contract, then prospective parents will be constrained by that demand. We may, I think, safely assume that, faced with a hypothetical agreement on conditions of interaction, persons would not be willing to risk being raised in emotionally or materially impoverished conditions simply in order to gain the freedom to raise children themselves, or to produce children whom they would abandon to be raised in such circumstances. To be sure, in a technologically advanced contractarian society persons would face impoverishment only as a consequence of their failure to take advantage of the opportunity to choose a productive and satisfying life-plan. They would not

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be, as many persons in our present society are, denied such an opportunity. But a life-plan that might be entirely appropriate for a single person need not be equally appropriate for a person who desired children. If, as seems psychologically plausible, the social growth of a child is signicantly enhanced by being raised in an emotionally warm and stable environment in which the child develops strong affective ties with an adult of each sex, and especially with its natural parents, then persons who want children will need to commit themselves, so far as possible, to create and maintain such an environment. That some will not want, or even be able, to do this is in no way to condemn them, but rather to indicate the sort of constraints imposed on acceptable life-plans, insofar as these plans involve children, by the demand for effective upbringing, which must be part of any set of terms of interaction acceptable to all. There can be no guarantee against misfortune or, alas, malevolence. Faced with either of these, second-best arrangements for upbringing will be needed. These arrangements may well include parenting by qualied single individuals or one-sex couples, as well as by adoptive two-sex couples. That none of these may be in itself maximally desirable for the psychological development of a child does not mean that it may not be preferable to the available alternatives where one or other of the natural parents is deceased or incapacitated, or where one or both prove grossly incompetent or abusive. If a choice must be made between an upbringing permitting identication with the natural parents and an upbringing offering emotional warmth and stability, then surely the latter is to be preferred. But this is a choice for unfortunate circumstances. The reproductive and familial arrangements of a contractarian society will, I believe, aim at affording each child an upbringing undertaken primarily by the joint efforts of its natural parents, and the justication for the constraints on individual life-plans of both mothers and fathers needed to meet this aim may be found in the unwillingness of the parties to the social contract to risk being raised in emotionally or materially impoverished conditions. These constraints on life-plans do not involve any evaluation of living as a single person, or as a member of a one-sex couple, or for that matter as a member of an extended commune, in relation to living as a member of a two-sex couple, except insofar as these arrangements have differential effects on child development. And that they have such effects, and in particular that, other things equal, affective ties between a child and a two-sex pair of adults are conducive to its emotional development, are factual claims that, however plausible, are certainly not ones that could be established by philosophical argument. But political philosophy must, at least in my view, borrow suppositions about human ourishing that it lacks the competence to establish. Only by doing this can it exhibit any connection between normative theory and political practice. I am, then, borrowing a supposition about the circumstances in which people best come to ourish, and showing what, given this supposition, are the consequences for a contractarian society.

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What my discussion should illustrate is the very great importance that the social contract gives to considerations about human upbringingreecting, of course, the importance that upbringing has for human ourishing. It would be pointless to afford individuals opportunities for productive and satisfying lives if they were unable to take advantage of these opportunities for want of realized skills and developed sensibilities. The contractarian idea of a hypothetical agreement on conditions of interaction, where each party to the agreement takes his or her entire life into account, ensures that considerations about upbringing will be given their appropriate weight, and not be neglected or undervalued as, I believe, they tend to be if political decisions reect only the present and future concerns of persons whose upbringing, good or bad, is a thing of the past. But, furthermore, the contractarian idea of agreement ensures that the weight of considerations about upbringing is directed at requiring prospective parents to form and endeavour to execute life-plans that, we might say, internalize the costs of their reproductive activities. Like all great blessings children are also burdens, and it would violate the fundamental requirement of mutual advantage if parents could enjoy the blessings while displacing the burdens on to their fellows. We should, therefore, not suppose that in a contractarian society the very great weight given to considerations about upbringing would support measures that would entitle persons to procreate and to raise children at public expense. 11. The only proper concern of a contractarian society and the only proper constraints in a contractarian society arise from the requirement that each normal member of society both nd value in and contribute value to the others, on terms equally acceptable to all persons considered as rational deliberators. If the constraints emphasize a deepened responsibility for each individual to ensure that she is a benefactor to her fellows, the concern emphasizes an enhanced opportunity for each to be the beneciary of opportunities created by the cooperative interaction of those same fellows. Thus the contractarian might agree with the late John Kennedy when he said, ``Ask what you can do for your country,'' but she would most strongly disagree with him when he began, ``Ask not what your country can do for you.'' It is, ultimately, only what a contractarian society does for its individual members that matters, and only the opportunities with which it provides them, that justify the constraints it must inevitably impose. The contractarian is, then, the true revolutionary, demanding that we realize a society in which each individual may ourish in accordance not with some imposed standard but rather with an ideal that she chooses for herself, while contributing to the similar ourishing of others.15
15 A shorter version of this paper is appearing in Proceedings of the 19th International Wittgenstein Symposium 1996: Current Issues in Political Philosophy, ed. Peter Koller and Klaus Puhl (Vienna: Ho lder-Pichler-Tempsky, 1997).