Kantian Communitarian Contractarianism and Its Institutions

Hartmut Kliemt

Abstract
Fundamental characteristics of recent non-Kantian, non-communitarian “contractarian” approaches are summed up graphically to the right [see below]. These approaches grew out of a rational choice and game theoretic tradition of explaining and justifying the emergence of social order and the state as equilibria of interaction described in terms of Folk theorem logic, growth of conventions etc. (Michael Taylor, Andrew Schotter, Robert Sugden, Brian Skyrms or Ken Binmore and Robert Axelrod).

Kantian contractarianisms aim at equilibria at the reflective or deliberative level. They acknowledge as a normative premise the separateness of persons (e.g., never treating other persons as mere means, respecting their spheres, asking for their agreement…). The emphasis on the separateness of persons emerged in criticism of certain utilitarian views. Under the impression of such criticisms utilitarian arguments became transformed to an extent that made it often hard to recognize still the consequentialist and utilitarian element in them. Eventually those who reached on the basis of utilitarian premises the least utilitarian consequences were regarded as the true champions of utilitarianism. Since a similar perversion of its original spirit happened to contractarianism it seems that we should go back to fundamentals and ask again what the justificatory role of agreement, assent, pluralism and interpersonal respect is within contractarianism.

Asking these basic questions, we should bear in mind that ideally, normative theories that justify institutions and the institutions so justified should support each other like the stones in Roman arc. Whether the contractarian myths that we tell each other at the Western philosophical campfire, do indeed stabilize Western institutions is an open question, however. Distinguishing two types of Kantian contractarianism I will argue that the communitarian variant – according to which originally all actions are forbidden unless explicitly allowed by omissions of the use of veto power of all individuals of an exogenously defined community – though relatively neglected in the literature is more convincing than more conventional club-contractarianism – originally all actions that do not violate some exogenously fixed system of rights are permissible. Yet in the end, it seems that all Kantian contractarian foundational myths put certain of their own values at risk once they become “institutionalized” as prevailing opinion: First, models of fictitious conceivable assent can lead our sense of what is justified seriously astray in justifying institutions that endanger the respect for the separateness of persons and, second, they describe what is by its nature coercive as if it were voluntary and thereby reduce our defensive alertness to coercion.

In sum, if contractarian justifications get absorbed in the conviction systems of real people – in contractarian opinion -- this may prove subversive rather than supportive for the stability of Western political institutions. At the same time it may be possible to set up institutions of governance that are expressive of Kantian communitarian values by bestowing veto power on individuals in various post constitutional ways without justifying them as the result of a unanimous contract.