The Democracy/Contractualism Analogy

One of the dangers in the modern enthusiasm for democracy is a temptation to suppose that the right institutions will promote justice or avoid horrors all by themselves, as if "by an invisible hand." ¹ Joshua Cohen plausibly counters that "we cannot expect outcomes that advance the common good unless people are looking for them." ² I propose to defend Cohen's proposition even against his own important normative theory of democracy and others like it. I want to demonstrate that a central strand in theories of deliberative democracy—theories generally antithetical to economistic approaches—has an invisible hand structure, and that it is inadequate for this reason. The strand I have in mind asserts what I shall call a democracy/contractualism analogy, in which justice is understood along contractualist lines (explained below), and then outcomes of proper democratic arrangements are held to track justice (call this the Tracking Claim), and to do so because they have a structural similarity to the hypothetical choice situation posited in contractualism.

Analogy theories accept that democracy tracks justice partly because citizens are motivated nonegoistically and in a morally significant way. Nevertheless, I will argue, the analogy has an invisible hand structure because it needs to conceive of voters as addressing some question other than that of justice—the value that is said to be promoted by the arrangement. Given the profound disanalogies between the hypothetical contractual situation and even admirable contexts of democratic social choice, there is no such invisible hand. Whether actual democratic procedures, or any conceivable democratic procedures, might have justice-promoting tendencies (something I do not investigate here), I argue that there is no support for this supposition in a democracy/contractualism analogy.

Along the way I try to clarify the structure of contractualism in certain respects. However, I am neither critically evaluating contractualism itself as an account of justice or morality, nor asking what hypothetical contractors would agree to about political choice procedures. I am concentrating on the influential idea that proper democracy produces justice because it structurally resembles the hypothetical choice situation that is central to contractualism's account of justice or right.

The Analogy

Scanlon's influential contractualist view says that "an act is wrong if its performance under the circumstances would be disallowed by any set of principles for the general regulation of behavior that no one could reasonably reject as a basis for informed, unforced general agreement." ³ Conceived more generally, contractualism holds that the content of justice or right is given by what participants would agree upon in a hypothetical collective choice procedure of some specified kind, including elements that reflect certain moral considerations and not only instrumental reasoning. Different theorists, however, use different versions of the general contractualist idea. I use the term "contractualist" here to cover a cluster of views that resemble Scanlon's in certain ways.

The democracy/contractualism analogy hopes to answer a standard challenge for the claim that democratic procedures might promote good or just outcomes. With so much disagreement about what is just, how could there be a generally acceptable argument that certain arrangements promote justice? Even if we assume contractualism, and even some particular version of it, there might be disagreement, some of it entirely reasonable, about what principles of justice would be supported by contractualism. Some philosophers, especially Rawls, argue that political power can only be justified by appeal to considerations that are beyond reasonable objection. ⁴ Since this is a criterion of what counts as a successful justification, it constrains justifications offered by philosophers as well as by ordinary citizens. Rawls gives a broadly contractualist reason for this, but many others accept it on more general liberal grounds. ⁵ Yet others require general acceptability of principles on other grounds such as simple stability. A general acceptability requirement of any such kind would imply that no reasonably disputable interpretation of contractualist justice can be appealed to in a justification hoping to show that a certain political arrangement tends to produce...