# An Overview of Social Contract Theories: From Hobbes to Contemporary Theories.

Nathanaël Colin-Jaeger

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# Overview of Social Contract Theories

Continuous Construction of Resilient Social Contracts Through Societal Transformations
(CO3)

Horizon Europe research project, 2024–2027

Nathanaël Colin-Jaeger

Postdoctoral Researcher in Political Philosophy

American University of Paris

ncolinjaeger@aup.edu

**Abstract:**

This document provides a detailed exploration of social contract theories, tracing their evolution from classical foundations to contemporary developments. It begins with the seminal works of Hobbes, Locke, Rousseau, and Kant, whose theories defined the initial frameworks for understanding political legitimacy and societal organization. The overview highlights the revival of social contract theory in the 20th century, primarily through the influential work of John Rawls, whose *A Theory of Justice* redefined the field by introducing principles of fairness and the concept of the "original position." Subsequent sections examine how Rawlsian theories were extended and critiqued, leading to new categories, such as justice as mutual advantage and justice as impartiality.

The document also addresses pivotal critiques from feminist and critical race theorists, such as Carol Pateman and Charles Mills, who challenge the universalist pretensions of traditional social contract theories by exposing their implicit biases and historical exclusions. Additionally, it explores evolutionary approaches and game-theoretic models, particularly the contributions of Ken Binmore and Brian Skyrms, which explain the emergence and stability of social norms and agreements over time.

The analysis underscores persistent challenges in social contract theory, including the tension between normative justifications and empirical stability, the integration of deep societal diversity, and the need for adaptive frameworks that account for continuous societal transformation. The study concludes by proposing directions for future research, emphasizing the necessity of resilient and inclusive social contracts capable of navigating the complexities of modern societies.

**Keywords:**

Social contract, political philosophy, Hobbes, Locke, Rousseau, Kant, Rawls, justice, legitimacy, fairness, feminism, critical race theory, evolutionary theory, game theory, societal transformation, structural injustice, diversity, climate change, European Union, supranational governance

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Funded by
the European Union
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# Mapping the Theories of Social Contract: An Overview

This contribution pursues two main objectives: (i) Providing a general roadmap of the history of social contract theories, distinguishing its main phases, based on recent scholarship; (ii) Proposing a mapping of the different options along several dimensions that are constitutive of the CO3 project: democratic/undemocratic; continuous/one shot; empirically sensitive/a priori; inclusive/exclusive; and the kind of theories of justice they promote.

The presentation follows this structure: Section 1 gives a general definition of social contract theories, what they are, and what they are for; Section 2 presents the seminal contributions of classic social contract theorists (Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and Immanuel Kant); Section 3 devotes some space to John Rawls' contribution, which sparked the rebirth of social contract theories in the 1970s; Section 4 describes the two main sides emerging out of this Rawlsian moment: theories of fairness based on rational agreement and fairness as justification, exemplified by the works of David Gauthier, James Buchanan, Brian Barry and Thomas Scanlon; Section 5 presents how traditional assumptions of social contract theories were challenged by critical race theorists and feminist theorists, with the example of Charles Mills' and Carol Pateman's critiques; Section 6 explores a separate understanding of Social Contract Theory, based on David Hume's and Rousseau's insights, which challenges core assumptions of traditional and Rawlsian social contract theories, i.e., evolutionary social contracts; Section 7 provides a brief survey of recent contributions to the theoretical discussions on social contract theories, developed in the recent and important book *New Approaches to Social Contract Theories* (2024); Section 8 draws the consequences of this mapping and suggests avenues of research, as a conclusion.

This overview contributes to presenting the main developments of social contract theories, developing a standardized history of social contract theories. For this reason, I will mostly refer to the primary literature on the topic and only sparsely to the overabundant secondary literature on each other and social contract theories. Furthermore, social contract theories have gone in many different directions in the last decades. In this perspective, social contract theory is like any other category in the history of political thought: the difference between who is in and who is out might be hard to define definitively.<fnref n="1" /> There are good arguments to include, among many others, Richard Nozick's *Anarchy, State, and Utopia* (1974), Jürgen Habermas' *Faktizität und Geltung* (1992), Philip Van Parijs' *Real Freedom for All* (1995), or Gerald Gaus' *The Order of Public Reason* (2012) in the discussion. Although these authors will be mentioned in passing, this overview will not present their work specifically, focusing on work engaging more explicitly with social contract theories.

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<footnote n="1">¹ Freeden (1996), in his treatment of three fundamental ideologies (socialism, liberalism, conservatism), distinguishes between core assumptions and peripherical ones, while always reminding us that categories are never fully homogenous. Liberalism, for instance, goes from the libertarianism of Murray Rothbard to the social liberalism of John Dewey, encompassing very different and contradictory theories. This is because individual contributions are interacting with many different elements. Edmund Burke may participate in both liberalism and conservative history, while Dewey can be described as participating both in the history of liberalism and socialism. The same occurs with social contract theorists.</footnote>
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This contribution helps constitute the main options in the social contract literature and provides a first step toward developing a CO3 model. In particular, Section 9 lays the groundwork for highlighting missing aspects of social contract theories, such as sociological social contract theories developed in the 19th century, anthropological elements of the social contract, and what kind of questions and objects could renew social contract theories, e.g., the case of the European Union, as well as what phenomenon may require us to modify the theory, e.g., rising polarization or relations of domination.

# 1. Social Contract Theories: What They Are, What They Are For

Theories of social contract form the foundation of political philosophy. They seek to answer the following question: How should society be organized? How should power be divided? These questions are various in extent, which leads social contracts to be very flexible.

Despite the diversity of social contract theories, which have led some to think that there cannot be a unified model of social contract (Boucher and Kelly, 1993, 2-3), two important aspects should be stressed.<fnref n="2" /> First, these questions are *normative*, which means that social contract theories help us answer the question of whether social arrangements are legitimate, and what they *should* be. Social contract theories do not describe how social arrangements emerged. They are not historical theories, although they can be enriched by history. Second, these theories are distinct from other theories seeking to answer the same questions. Indeed, social contract theories do not reach their conclusion based on transcendental grounds (as for God-based theories), they give instead an important role to individual consent, agreement, and negotiation.

Following Weale (2013, 8-9), we may offer the following general depiction of social contract theories:

> [Social Contract theories] have a logical form in which agents negotiate the terms of their association with one another. Political associations are to be evaluated in terms of the principles to which such agents would agree. The agents are assumed to be rational in senses that different theorists specify in various ways, but as rational agents they are not only capable of entering into commitments with one another but also capable of having reasons for entering into those commitments consistent with a prudent concern for their own interests.

Social contract theories are therefore first and foremost devices of justification for a set of rules defining the form of political associations, and they help us define what is a just arrangement, respecting every individual, since political coercion should be exercised if and only if every individual has a good reason to accept this commitment. In short, social contract theories tell us what rules are just, and why they imply justified coercion on grounds we cannot refuse since these rules are the ones we would have chosen ourselves. We may not

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<footnote n="2">² Boucher and Kelly (1993, introduction), distinguish three different kinds of social contract theories: civil, moral, and constitutional. The civil tradition is concerned with the justification for civil society; the moral tradition is concerned with the possibility of public morality, while the constitutional tradition is concerned with the justification of constitutional (and sometimes post-constitutional) essentials.</footnote>
define social contract theories by their scope, their content, their theories of obligations and legitimacy, but by their method.

Here, it may be useful to provide a slightly formalized description of what social contract theories aim for, to clarify the variables at hand. Let us define *N* as the ideal individuals choosing a set of rules *R* for a society. Social contracts often distinguish between idealized individuals and real individuals: rules are chosen by idealized individuals *N* in some ideal setting *M*, and the obligation to abide by the rules applies to *N*\*, real individuals. Following D'Agostino et al. (2020), we may describe what social contract theory accomplishes like this:

*N* chooses *R* in *M* and this gives *N*\* reason to endorse and comply with *R* in the real world insofar as the reasons *N* has for choosing *R* in *M* can be shared by *N*\*.

Most of the differences between different social contract theories are a consequence of different ways of defining *N* and *M*: how do we idealize agents *N*? What is their rationality? Are they reasonable? How do we idealize the choosing agents? How do we define the choice situation? Should it be the State of Nature, if yes with what features? Should it be an original position, if yes how should it be defined? With what kind of uncertainty/ignorance? How close should they be to real individuals? How far should contestations of real agents undermine the agreement of idealized agents? Different answers to these questions imply different conceptions of a just society and the rules individuals should abide by and may concern a different range of objects defining the content of social contract theory.

Furthermore, recent contributions, from the late 1980s onwards, tend to put in question this model – or rather its use in traditional and post-rawlsian social contract theories. This is particularly the case for what I coined critical contract theories developed by Pateman and Mills, who offer a sustained critique of the idealization consubstantial to the model, putting into question the legitimacy of the rules (*R*) chosen in the choosing situation (*M*). One must consider this model as a benchmark to assess different contributions since even these critical contract theories refer implicitly to this model.

## 2. Traditional Social Contract Theories: Hobbes, Locke, Rousseau, Kant

Although some authors, such as Barry (1991, chap. 1), read statements of social contract theories in Plato, or later in Pufendorf and Grotius, the first systematic iterations of social contract theories occurred in the 17th and 18th centuries. *The Leviathan* (1651) by Thomas Hobbes; *The Second Treatise of Government* (1689) by John Locke, and *The Social Contract* (1762) by Jean-Jacques Rousseau, have been recognized for a long time as three major theorists in this tradition. More recently, *The Doctrine of Right* (1779) by Immanuel Kant, was also recognized as participating in the classical contributions to social contract theories (Ripstein, 2009). Each of these works has generated a large amount of secondary literature and differs from one another in important respects. In this section, I will describe each theory separately and emphasize what they all share as a conclusion.
Hobbes' theory is built on a specific understanding of the baseline situation, i.e., the State of Nature. In *The Leviathan*, he infamously describes the process leading from living a life in the State of Nature to a "War of all against all", based on equality of conditions and hopes, and fear of death allowing preventive strikes against others. The state of nature is a state of utter distrust, and no stable large-scale cooperation may emerge. As a consequence, while everybody would prefer peace, this situation leads everybody to war and mutual distrust. The social contract provides a solution for this dilemma: since everybody wants to enjoy security and social stability but cannot trust another person when contracting privately, individuals ought to surrender their natural rights, and institute one authority (a person, or an assembly) with the authority to enforce the initial contract and punish perpetrators. The Leviathan is this overarching authority, legitimized by the rational agreement of the individuals, who should not bring down their sovereign – albeit possessing absolute powers – since it was erected to secure their life and security to start with. The social contract is the most fundamental contract of any society because it explains the condition of possibility and the legitimacy of any given social arrangement.

*The Leviathan* is the first work of the genre and specifies the idealized agents (Ns) as rational agents in the State of Nature (M), above all interested in their survival and afraid for their lives based on some anthropological assumptions. This leads real individuals (N*) to generate obligations since the Leviathan (R) is legitimized based on the hypothetical agreement of Ns in M. As real individuals are assumed to share the reasons to endorse R, i.e., they value security and life, R is legitimate. The strength of Hobbes' demonstration is that once we accept the premises of his argument, we are condemned to accept his conclusion in support of absolute sovereignty. If the choice is between the – deadly and violent – State of Nature, and the existence of a Leviathan, the rational choice is always to choose the existence of the Leviathan because it allows cooperation, private contracting, and safety. Logically, any social order superior to the State of Nature is legitimate. Other social contract theories precisely differ in how they consider Ns and M, producing different theories of power legitimacy.

This is the case of Locke's theory, which identifies differently the State of Nature and individuals. In the *Second Treatise*, the State of Nature is described as allowing cooperation between individuals and is more peaceful than Hobbes'. The main reason is that individuals are not rational in the sense of Hobbes, but recognize the value of life, health, liberty, and property. This stems from their shared reason, which makes them recognize others as equals – for Locke because they all belong to God. Consequently, individuals are allowed to follow their plans, free from others' interference, which leads to a different baseline situation for the social contract to arise. Property, in particular, plays an important role in Locke's story, because it may exist in the State of Nature when individuals mix their labor with land. The situation of wars occurs precisely when there are conflicts over property, based on a situation of stealing or when someone is reduced to slavery by another. Since there is no civil power to protect property rights (on oneself and belongings), and to arbitrate competing claims, these situations will degenerate into war in the State of Nature. Note here that the situation of war is not the same as in Hobbes' theory: war is among individuals, but it is not a general state of
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war, since individuals could cooperate as well, especially within “conjugal societies”. In this context, the rationale for the emergence of a civil government justified by consent is the preservation of pre-existing rights, through the formulation of laws, the existence of judges to adjudicate them, and the executive power to make them respected.

Since cooperation and property are already possible in the State of Nature, any civil power cannot be justified. For instance, a power that would not protect individuals’ external property would be illegitimate and trigger a justified right of resistance. The Lockean social contract does not seek to secure security, but individual rights and property, which leads to very different desiderata for a legitimate State. The *Ns* and the *M* are defined in a very different fashion, this theory leads to accepting as legitimate a distinct set of social rules *R* to abide by such that real individuals *N*\* and the government ought to respect property rights as pre-political data. *N*\* shares with *Ns* reasons to respect *R*, given that both supposedly value private property and a sphere of autonomy from political power as vital requirements to their existence.

Social contract theories consequently always have implications for the current state of affairs and play a decisive normative role, imposing constraints on obligations and social arrangements. This is particularly clear in Rousseau's work, especially in *The Social Contract* – for another side of Rousseau's theory, see section 6. The main question of the *Social Contract* is less about how civil society came to be possible and what implication it has, but how it should be made to be legitimate; such that individual liberty and social coexistence are possible. Rousseau's answer comes from the idea that in obeying the general will – the foundation of civil society – we only obey ourselves. When individuals abandon the State of Nature they surrender their rights to a new person, the collective, or the general will. Since the general will aims and accomplishes the common good, individuals cannot decide whether or not they can fulfill their duties to the sovereign: being forced to be free is based on the idea that individuals have to be forced as private individuals to obey themselves as citizens. Rousseau's social contract seeks to achieve the alchemist task of transmuting private interests into common good.

For Rousseau, the formation of the general will entails the participation of every citizen in a general assembly, to decide the set of rules defining their social arrangements, which leads to unanimous agreement of citizens based on their public interests. Contrary to Hobbes or Locke, the *Ns* are not so the idealized individuals in the State of Nature, but citizens enlightened by the public interest in an assembly situation (*M*) – even though individuals aggregate their judgments more than they deliberate. Notwithstanding the conundrum posed by the general will's concept – one of the most debated concepts in political theory –, and the social and institutional conditions for the theory to apply – relatively small cities and so on – Rousseau's theory derives the legitimacy of social arrangements *R* from the emergence of a general interest that represents individuals' true preferences even though real individuals *N*\* do not privately express them. *Ns* and *N*\* may not be different individuals, as they are in Locke's and Hobbes' accounts, but two aspects of the same individual: the

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individual as a citizen, allegedly directed towards the common good and public interest, and
the private individual, above all motivated by his ends.

Rousseau's theory highlights the distinction between private wills and a general will, which explains the specific normativity of social contracts, allowing them to generate obligations for individuals and legitimacy for institutions, circumventing the problem of imposition of duties by a private will. As such, the general will corresponds to the aggregation of Ns interests generating these obligations and duties. Kant continues this elaboration in *The Doctrine of Rights* and proposes an a priori derivation of what he calls the omnilateral will.

For Kant as for others, the social contract – or the original contract – is not a historical event, but an idea of reason, a rational criterion for the mere existence of political societies. Duties and rights are not the rightful product of historical events, but the effect of this original contract, such that this idea of reason restricts the legislator to what people could have consented to. However, consent has a very specific meaning in Kant's theory, such that for many commentators Kant's social contract theory is not consent-grounded, since consent is not what would be empirically consented to based on the preferences individuals have, but what would unanimously be agreed upon based on reason alone, independently of any possible empirical information.<fnref n="3" /> Consequently, the social contract is what is owed to rational individuals conceived as autonomous agents. As such, civil society's rules can be enforced *against* individual consent, and individuals can be forced to enter civil society based on the desiderata of pure practical reason alone.

This is possible, for Kant, because property relates to the exercise of freedom as autonomy. If individuals are free, they must be able to make choices and use objects, possess them, and use them for themselves such that interference from someone else is undue coercion. Indeed, practical reason implies the possibility of property if individuals are considered as autonomous agents able to freely use objects. Nevertheless, such a claim on any object consists in imposing duties on others unilaterally. If human subjects are equals, unilateral impositions of duties cannot be legitimate. Property rights seem at the same time necessary for freedom and impossible conceptually. The only way such property – that Kant calls intelligible property rather than physical possession – can be instituted is if we collectively agree to recognize each other's rights. The original contract starts from this logical necessity to define rights – in opposition to Locke for whom rights are pre-political. For rights to exist, there is therefore the need for an omnilateral will. This entails the institution of civil powers. The strength of Kant's theory is to derive this a priori based on three problems that logically emerge from the mere institution of rights: the problem of the definition of rights, in opposition to the unilateral imposition of duties; the problem of their enforcement, to ensure mutual insurance; the problem of the adjudication, to ensure that disagreement on rights is properly refereed. These answers give birth to the three branches of government: the legislative, the executive, and the judiciary.

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<footnote n="3">³ For a discussion on this matter, see Williams (1993).</footnote>
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In short, Kant's theory generates obligations for individuals based on what is necessary for them to be free subjects, that their fully rational counterpart *N* would accept, even when *N*^*^ would not consent to the rules *R*. As *N* justification is fully rational, it ought to be accepted by *N*^*, who would be irrational and negate their freedom if they opposed public coercion based on *R*.

Hobbes, Locke, Rousseau, and Kant's theories are very different in many respects. They idealize the individuals *N* differently (are they instrumentally rational like Hobbes, reasonable like Locke, publicly minded like Rousseau, or guided by practical reason like Kant?), and their construction of the situation of choice *M* differ (is it a State of war, a cooperative state of nature, the situation able to generate the general will or the postulate of pure reason). They end up defending very different institutions, rights for individuals, and extensions of public power. Consequently, they spurred different varieties of social contract theories and defined different branches of social contract theories (see section 4, Fig. 2, and section 6, Fig. 3, for examples).

Nevertheless, these classical contributions share important aspects, justifying classifying them as participating in the same genre, i.e., what may be coined as *traditional social contract theory*.<fnref n="4" /> First, they are mostly *normative and hypothetical*. Legitimate institutions are derived from what individuals would have chosen under more or less ideal conditions. Second and consequently, these theories define the social contract as a *one-shot decision*, meaning that social contracts ought not to be reenacted, i.e., *they are not continuous*. Consequently, these theories do not give much power to actual individuals (*N*^*) to modify and challenge the fundamental rules *R* chosen by idealized agents *N*, even by democratic means. Third, social contracts, because they are based on more or less moderate idealization of the individuals *Ns* and the choosing situation *M* are *not or only moderately sensitive to empirical information*. As the original agreement is obtained hypothetically with a high degree of generality, it is only sensitive to very general facts about human nature (such as the rationality of individuals). These theories are not originally – see section 5 for an explicit critique of this point – developed to produce different results depending on various social and historical conditions. Fourth, these theories primarily aim to secure fundamental goods, such as security, property rights, or freedoms but are not concerned with more demanding goods, such as social justice, i.e., *they have a limited scope*.

All these features, taken together, define the basic structure of Social Contract Theories, which will be discussed and modified throughout history. In the social contract model, we can see that the idealized agents and the choosing situation play a fundamental normative role, which requires substantial justification. As such, it has attracted substantial attention, especially after Rawls's contribution (see section 3). The reasoning of the idealized agent constitutes a heated debate, most notably between defenders of rational choice theory and

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<footnote n="4">⁴ One should add that this categorization corresponds to a somewhat standardized reception of these theories, which can, of course, be challenged. Among many contributions, one could, for example, refer to Waldron's (1989) work on Locke, distinguishing two social contract theories in Locke: one corresponding to what we surveyed in section 2, i.e., the one-shot hypothetical moment of the contract, and the other corresponding to a more gradual and evolutionary contract theory. The same could be said of the other participants in this tradition.</footnote>
defenders of reasonableness (see section 4). The choosing situation and the alleged universal validity of the derivation of legitimate rules were heavily questioned in the 90s, most notably by Pateman and Mills (see section 5). In contrast, the one-shot aspect of the social contract was questioned by evolutionary approaches drawing on aspects of Hume and Rousseau's theories (see section 6). Identifying the elements of the social contract models, and how it impacts the outcome of social contract (democratic or not, one-shot or continuous, more or less sensitive to empirical content, and so on) is key to developing an alternative model for the CO3 project.

<table><caption>Fig. 1: Common Framework for Traditional Social Contract Theories.</caption><thead><tr><th></th><th>Hobbes</th><th>Locke</th><th>Rousseau</th><th>Kant</th></tr></thead><tbody><tr><td>N (Idealized agents)</td><td>Instrumentally rational individuals</td><td>Reasonable individuals recognizing the law of reason</td><td>Individuals able to consider the legitimacy of the general will</td><td>Rational individuals following pure practical reason postulate</td></tr><tr><td>M (Choice situation)</td><td>State of Nature characterized by a War of all against all</td><td>State of Nature characterized by cooperative relations and the possibility of violence</td><td>Public Assembly (through aggregation rather than deliberation)</td><td>Original contract as an Idea of Reason (a priori)</td></tr><tr><td>R (Justified social arrangement)</td><td>Leviathan and absolute sovereignty</td><td>Limited government protecting individual rights</td><td>Civil society legislatively directed by the general will</td><td>Civil society to address the three problems of definition, assurance, and arbitrage</td></tr><tr><td>N* (Actual individuals)</td><td>Individuals in the post-social contract society</td><td>Individuals in the post-social contract society</td><td>Individuals with private preferences and self-interested</td><td>Individuals in civil society</td></tr><tr><td>Shared reasons</td><td>Preference for safety, stability, and fear of death</td><td>Preference for property and independence</td><td>Ability to access shared interest</td><td>Logical constraints on what is rational</td></tr></tbody></table>

### 3. The Rebirth of the Social Contract: The Rawlsian Moment

According to Boucher and Kelly (1993) and Weale (2020), Rawls is responsible for reviving the social contract theory, which was eclipsed by utilitarianism in the late 19th until the mid-20th, represented by important figures such as Henry Sidgwick and later Francis Edgeworth and others.<fnref n="5" /> If we let the theory of John Harsanyi aside – who is explicitly utilitarian and yet contractualist – we can indeed say that John Rawls is responsible for the return of social contract theory in the foreground. As such, Rawls is probably the most

<footnote n="5">⁵ One interesting counterexample, studied by Weale (2020, chap. 5) is the utilitarian contract theory developed by Harsanyi in the 1950s (see, for a presentation, Harsanyi, 1977). The Rawls-Harsanyi comparison is developed technically by Binmore (1989), who focuses on the different versions of decision theory they use to reach their result.</footnote>
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influential political philosopher of the 20th century, whose work provoked tremendous interest and commentaries. In what follows, I will present a standard version of Rawls' arguments in *A Theory of Justice* (1971), without diving into the plethora of commentaries and discussions his work sparked. Rawls' essential contribution is developed in *A Theory of Justice* (1971, xviii), which

generalize and carry to a higher order of abstraction the traditional theory of the social contract as represented by Locke, Rousseau, and Kant. In this way I hope that the theory can be developed so that it is no longer open to the more obvious objections often thought fatal to it.

Rawls was, indeed, an excellent connoisseur of social contract theories, as displayed in his *Lectures on the History of Political Philosophy*. The fatal objections refer to the assumptions made by Locke in the State of Nature, the use of the general will by Rousseau, or the disconnection between rational justification and political acceptance by Kant. Rawls aims to overcome these problems using a specific device, the original position, his version of the State of Nature, characterized by rational and reasonable individuals situated under a veil of ignorance, to select principles of justice. Let us quickly unpack these fundamental concepts of Rawls' analysis, to understand how we renew social contract theories.

Rawls's theory aims to develop a theory in which the procedure for choosing principles of justice is fair, such that they do not reflect partial conceptions of the good or just and could be recognized as such by individuals living in a just society, as justice is the primary virtue of social arrangements. Justice indeed would fit the nature of a cooperative arrangement between free and equal individuals. If the procedure is fair, then the principles are too, answering the fundamental question his theory seeks to answer: How can we ensure the terms of cooperation are fair? The procedure itself should be justified such that it corresponds to our moral judgments or fairness, rather than deriving the legitimacy of institutions from natural inequalities. The counter-model, despite its technical mastery, is, for Rawls, Hobbes' *Leviathan*, which justifies coercive power based on an unequal baseline in the State of Nature, which may well be realistic in some sense but does not capture our best judgments on fairness, and therefore cannot meet fully the legitimacy requirement.

The original position therefore consists in a choice situation, in which a set of individuals must choose principles to live together cooperatively.<fnref n="6" /> Two types of constraints ensure this. First, there are reasoning specifications: individuals are rational, meaning that they will choose the set of rules that will be of advantage to them, i.e., they are mutually disinterested and seek to maximize their expected outcomes. They have a *sense of the good*, with their preferences. Yet, they are also reasonable, meaning that they are not opportunistic seeking to free ride on others, such that they can abide by rules based on a *sense of justice*, even when it hurts their rational interest. Second, there are information constraints, represented by the veil of ignorance. It entails that the individuals in the choosing situation, do

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<footnote n="6">⁶ In contrast, one can notice that the State of Nature device in traditional social contract theory, is not described as a fair situation, but as a situation of necessity based on general features about human nature. For Rawls, this does not meet the fairness requirement, which renders social arrangements legitimate. Conversely, Rawls theory also wants to avoid Kant's social contract theory's problem, which derives legitimacy from pure reason, without leaving any place to ex-post individuals to recognize the justice of the principles of government.</footnote>
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not have access to a set of information specific to their future position in society, e.g., their level of wealth, gender, race, talent, disabilities, or even the kind of society they will live in. The available information is only general information about human psychology and conditions for social life established by social sciences. Given these two constraints, Rawls argues that the choice will eliminate partial conceptions of justice that do not respect others as equals. It is easy to see why: if one does not know whether or not she is a male or a female, she will not rationally be tempted to choose principles of justice restricting women's rights and affecting their opportunities. Compare the consequence of such a device with the State of Nature in Hobbes and Locke. The same goes for other variables.

Since the choosing situation greatly idealizes individuals (Ns), they will converge towards unanimity on a set of principles (R) superior to others, without reflecting private endowments, meaning that the procedure displays impartiality. These principles are the two Principles of Justice and Fairness, which are chosen at a pre-constitutional level, to apply to the basic structure of society, such that any posterior rule or law should abide by it. The principles are concerned mostly with how basic goods (Primary social goods, according to Rawls' terminology), such as liberties and social and economic goods should be distributed. The first principle states that everyone should have as much liberty as possible (be it: freedom of association, of religion, of thought and expression, of choosing a career, and so on), as long as it does not diminish the liberty of others. Other options, such as aristocratic powers and so on, are eliminated by the veil of ignorance. The second Principle is divided into two parts, stating that social and economic positions should be equally accessible, favoring equality of opportunity (The Equality of Opportunity Principle), and that they should be organized to be to the advantage of everyone, such that inequalities should benefit everybody (The Difference Principle). In practice, it means that inequalities are justified if and only if the worst off is in a better situation than in any other alternative arrangement. This could be exemplified in a society in which there are richer and poorer individuals, but which constrains the richer enrichment to the condition in which the poorer gains at least comparable gains. This second principle is chosen in the original position because every individual does not know which position she will end up in ex-post and therefore minimizes the risks of being the worst-off, applying the solo called maximin principle, which leads to maximizing the advantages of the worst possible option. The order of the principles is particularly important, as they are for Rawls strictly hierarchical: we should first apply the first principle (on the distribution of liberties), and then the second (on the distribution of social and economic goods). It is the case because civil liberties have a logical priority compared with economic goods, for Rawls, such that we cannot sacrifice part of our liberties to gain economic advantages.

The original position and the veil of ignorance consist, for Rawls, of devices of representation for our best moral intuitions. Their aim is less to derive the legitimacy of just institutions from hypothetical consent than to present a theory for a conception of justice as fairness that everyone can recognize as more appealing than other alternatives. Furthermore, Rawls' theory * extends the scope * of traditional social contract theory, with specific (and more demanding) principles of justice, which should dictate the shape and aims of any institution in a given society. Additionally, despite its high degree of abstraction, it is * more sensitive to empirical content * than traditional social contract theory, since the principles of justice will differ in their implications depending on specific social and economic conditions and

<figure><img src="image_16.png" /></figure>
empirical discoveries. Even though Rawls keeps the model developed within traditional social contract theory, in which idealized agents *N* chooses a set of rules *R* in a choosing situation *M*, such that real agents *N*\* can share reasons with *N* to recognize *R* as legitimate, he developed a specific theory to justify the procedure of the choosing ensuring fairness, which will probably be one of the most influential elements of his theory for the future history of social contract theories.

Rawls pursued his project after *A Theory of Justice*, most notably in *Political Liberalism* (1993), which focuses on the problem of political stability in a society based on the principles of justice, *The Law of Peoples* (1993), applying his theory to questions of global justice, and *Justice as Fairness* (2001), reformulating the original theory after decades of discussions. These works refine and extend the scope of the original theory. In particular, *Political Liberalism* is key to understanding modern political philosophy, because it introduces the question of how to cope with diversity – the so-called reasonable disagreement – and a *model of democratic justification* through the public expression of reasons, generating important works, most significantly in the field of deliberative democracy. It is still an open question of how much we can apply the Rawlsian tools developed in these works for forms of unreasonable disagreement and various institutional realizations.

## 4. Justice as Mutual Gains vs. Justice as Impartiality: Gauthier, Buchanan, Barry, and Scanlon

In *Theories of Justice* (1991), Brian Barry distinguishes between two main families of theories of justice, which expanded after Rawls, in the wake of the social contract revival. The first family consists of theories deriving justice from *mutual advantage*, based on rational agreement and negotiation. This justifies inequalities between individuals from a rational agreement to secure important goods, such as liberty or security. This theory, for Barry, is inspired by Hobbes and Hume. The second consists of theories deriving justice from *impartiality*, based on fairness requirements. We may say that the first family insists on the rationality requirement, while the second extends the reasonableness requirement. James Buchanan and David Gauthier represent the first genre, while the second is represented by Barry himself and Thomas Scanlon.<fnref n="7" /> Both families refer extensively to Rawls’ contribution and seek to expand his work or criticize core assumptions.

The first family grounds justice on the principle of *mutual advantage*, and it is well represented by David Gauthier’s *Morals by Agreement* (1986) and James Buchanan’s *Limits of Liberty* (1975). Gauthier states the aim of this tradition most clearly: we can, and we should, base moral and political agreement as founded entirely on the negotiations between rational individuals. While Gauthier and Buchanan mostly agree on the method, and the idea that we should derive the legitimacy of conventions and institutions based on what rational individuals would have consented to because it is in their interest, they differ, nevertheless, in their understanding of what kind of agreement such rational individuals would reach. These

<footnote n="7">⁷ As often, one could find other potential candidates. I follow Weale (2020) and others in this somewhat standardized constitution of a philosophical canon for social contract theory.</footnote>
theories have an advantage over impartial theories – such as Rawls’ theory – since they
explain why morality would be to the advantage of individuals, explaining ipso facto why
individuals act following morality. I will present what these theories share, and only in
passing how they differ.<fnref n="8" />

The bulk of the theory of justice as mutual advantages lies in the idea that the contract
is acceptable if it is advantageous to all self-interested parties. For this statement to be
meaningful, one must specify the baseline compared to which agreement is advantageous
(situation M). For Gauthier and Buchanan, the starting point is a State of Nature in which
individuals are independent of each other, as many Robinsons Crusoe on their island. Each
individual is strongly interested in cooperating with others to increase his satisfaction. We can
easily see why, each individual possesses limited time and capacity to diversify his
production, such that exchange with others allows him to access a broader range of goods and
services, accessing preferred baskets of goods than the no-trade situation. To illustrate this,
think of a two-person model with A and B, in which A produces beer and B crops, where A
produces 10 units of beer and B 10 units of crops. Since the marginal utility of goods
consumption is decreasing, A and B reach their point of repletion by consuming 5 units of
beer or crops, so they have an important surplus. Both gain from trade, because they value
each other’s product more than their product once they have consumed what they produce. In
this situation, any trade is beneficial when, for A, the marginal utility of a consumption of a
unit of crop is at least equivalent to the consumption of a unit of beer. At first, every
individual will claim the maximum from the cooperative surplus (A will want 5 units of crops
for 1 unit of beer from B), yet this hardly will occur. Players will therefore start making
concessions, constituted by all acceptable points below the initial maximal claim. Here, it is
notoriously difficult to say anything about how concessions relate to one another, since
individuals may have different utility scales. Buchanan, for instance, is agnostic about the
precise point where an individual may stop and argues that an agreement will be legitimate as
long as it is Pareto-superior to the no-trade baseline, meaning that both individuals are
better-off. Gauthier develops a more specific theory for the sharing of the cooperative surplus,
i.e., his minimax relative concession theory, which proposes to compare the relative
magnitude of the concession (the difference between what is obtained with their maximal
claim, and what is obtained by a no-trade situation for them). Let us suppose that the outcome
of A’s in the no-trade situation is U*, his outcome at the maximal claim point is U₁ and his
outcome at the concession point is U₂, then the relative magnitude of the concession will be
defined by [(U₁·U₂)/(U₁-U*)], where the maximum number would be 1 (where the concession
equals the no-trade, such that individuals are not better-off cooperating) and the minimum 0
(where individuals make no concessions). For Gauthier, this method minimizes the maximum
concession in relative terms. If we assume, for the sake of simplicity, that A and B value beers
equally and have a low no-trade utility, they will probably make the same relative concession,
basically giving 5 units to the other. This may lead to less equal results in absolute terms when
the negotiators are not equal ex-ante. Think of the difference if A produced 15 units and B 5,

<footnote n="8">⁸ For a more extensive presentation of both authors, see Moore (1993) on Gauthier, Weale (2020, chap. 7, 11, and 12), on Buchanan and Gauthier, and Colin-Jaeger et al. (2022), on Rawls and Buchanan.</footnote>
<figure><img src="image_17.png" /></figure>

where, for simplicity, we assume that they have a utility of 0 if there is a no-trade, the rule entails that *A* should end up with three times the utility of *B* since he started with three times more. Gauthier’s fair agreement would not entail an equal distribution ex post, if individuals gain from the trade and the relative concession is equalized.<fnref n="9" />

Yet, it is well known from Hobbes’ theory that it is not sufficient to have an interest in cooperation to cooperate, since individuals may still fare better paying lip services and then violating their cooperative agreements. Buchanan accepts this and grants legitimacy for the Leviathan to allow cooperation and to escape the Prisoner’s Dilemma of the State of Nature.<fnref n="10" /> The rest of his work ensures that the Leviathan does not exceed the limits of this initial justification, i.e., protecting individual rights and providing security. Buchanan distinguishes different functions of the State, grounded on two separate arguments: the protective State, which shall protect individual rights and guarantee security, and the productive State, which offers service when individuals consider they obtain more this way than they would with private actions. Hence, the Leviathan is required to secure cooperation but should be checked rigorously not to expand into other domains, with the risk of increased control over individuals’ lives. We may coin Buchanan’s position as a form of *limited hobbesianism*. Gauthier claims that it is possible to circumvent the problem posed by the State of Nature without appealing to a Leviathan. He appeals to a solution to the Prisoner’s Dilemma consisting in the fact that individuals should develop the disposition of acting cooperatively when it is in their interest, such that they should be “constrained maximisators” rather than “straightforward maximisators”, such that individuals should abstain from opportunistic behavior to get the result from cooperation. Cooperating is rational because it produces a surplus, and this rationality can be described as morality because it entails fairness of treatment (equality of sacrifice and equal consideration). For Gauthier, this entails that a Leviathan should not be instituted, since morality has been internalized by the agents, but should only come at an ex-post moment, to regulate individual behaviors, such as the *provisio* for the initial appropriation of land, stating that no individual should better his situation at the expense of others. In both theories, fairness emerges from the rational agreement (defended by the State or not) even when it reflects unequal initial endowments and bargaining powers, as long as it displays mutual advantage. Therefore, it produces a general model of political agreement based on mutual gains from trade and cooperation, which should be secured by public powers.

<figure><img src="image_18.png" /></figure>

<footnote n="9">⁹ Gauthier’s solution is usually compared with another solution, the Nash Bargaining Theory, which seeks to maximize each party’s gains above the reservation point, the so-called Nash product. Nash’s theory aims at maximizing the product, while Gauthier’s theory aims at equalizing the relative sacrifice. Both theories are, however, sensitive to unequal initial bargaining power. For a study of the differences, see Barry (1991).</footnote>

<footnote n="10">¹⁰ The Prisoner's Dilemma (PD) emerges from the fact that individuals may have a collective interest in cooperating but a private interest in acting opportunistically. Agreements in the State of Nature may take this form for Hobbes since individuals would benefit collectively from a large system of cooperation allowing the sharing of the cooperative surplus while benefitting individually from the others cooperating but themselves having an opportunistic behavior. A PD occurs when it is always rational for individuals not cooperating while others cooperate.</footnote>
<figure><img src="image_19.png" /></figure>

In this perspective, individuals' claims pre-exist civil society, such that Gauthier and Buchanan criticize Rawls' arguments leading him to the Difference Principle, most particularly the argument of moral arbitrariness, stating that no individual possesses any merit for their talents, because they are (a) the result of a natural lottery, and (b) historically and socially contingent. This leads Rawls to defend that talents should be understood as participating in a common pool of resources for society. For Gauthier and Buchanan, Rawls' argument leads to not recognizing the distinction between the person – since it invites us to consider individual characteristics as participating in a common set of goods society ought to make use of, returning to a form of utilitarianism – and negates individual freedom since it forces individuals to use their bodies for the benefit of others.<fnref n="11" /> For Buchanan, in particular, the risk of Rawls' reasoning is to confuse two functions of the State: the protective and the productive, such that this argument would justify the extension of the State's activity well beyond the protection of individual rights and the production of what is less costly to provide publicly than privately.

The second family of social contract theories stemming from the Rawlsian moment is the theory of justice as impartiality, as displayed by Brian Barry's *Justice as Impartiality* (1996) and Thomas Scanlon's *What We Owe To Each Other* (1998). They share with Rawls their insistence that the rationality of the choosers ought not be only the one of the rational individuals, but the one of the deliberative individuals as well. These theories are grounded on an analysis of mutual advantage as being insufficient to ground fairness since ex-post agreement necessarily reflects ex-ante inequalities, notwithstanding the bargaining theory one uses (be it Minimax relate concession or Nash Bargaining). Barry (1991) devotes a third of his book to demonstrating this claim. If the baseline for negotiation is crippled with bargaining inequalities, the agreement must be considered unjust, rendering invalid the claims that bargaining entails justice. One case illustrates the problem particularly well: the case of intergenerational justice (Weale, 2020, 218). Future generations cannot reciprocate for mutual advantage and have no place in the justice as advantage framework. Consequently, their interests should be ignored. This goes against a strong moral judgment that future individuals ought to have rights.

Barry and Scanlon's social contract theory aims to propose a baseline of agreement that is not plagued with unequal starting points but displays a deliberative component, such that rules and actions should be justified on grounds that others cannot reasonably reject (Scanlon, 1998, 7). In Rawls' the veil of ignorance ensures impartiality, but Barry and Scanlon do not take up this solution, as they are interested in broader arrangements including less idealized agents. They follow the road opened by *Political Liberalism*, which introduced the question of axiological diversity and public justification, rather than the apparatus of *A Theory of Justice*, which considered the original position as an application of rational choice theory. Their original position is constituted of deliberative individuals trying to justify their favored rules to each other, within the constraint of reasonability. Impartiality entails that all interests are considered equally, such that everyone can fare as well as they could reasonably

<figure><img src="image_20.png" /></figure>

<footnote n="11">¹¹ This argument is foreshadowed in Nozick (1974).</footnote>
<figure><img src="image_21.png" /></figure>

hope. The key term for doing the work for both Barry and Scanlon is *reasonableness*. As for Rawls, it entails that individuals are not making any claim, but internalize the claims of others, recognizing other individuals as moral equals. Reasonableness implies that the propositions made by individuals verify the criterion of impartiality, which is based on the recognition of a common human dignity. Equality entails that no particular conception of the good, or justice, should be given priority or a privileged position in defining a common framework (Barry, 1996, 160-161). The reasonableness test implies that every conception should propose rules or policies that recognize the equality of competing conceptions of the good and the just. When a proposition is made, one must consider the reasonable complaints that others can have against the proposition. The original situation is, thus, a situation of exchange of reasons, which relates to how social relationships ought to be conceived. A reasonable complaint is decided on the merits of the claims, which are not only rational claims about well-being but also based on the suitability of some moral principles to account for mutual recognition (Scanlon, 1998, 194). This excludes *de facto* fanatic principles of justice, as well as integralist, or imperialist conceptions, granting a veto right to any group that would be considered inferior by others because they have reasonable ground to object to a policy. Conversely, some policies cannot be reasonably objected to, for instance, the mandatory rule to wear a helmet while driving a motorcycle, since nobody can argue that they are recognized as an inferior status based on this ruling. What we owe to each other, namely our obligations, depends on the value of the arguments for and against us having these obligations, and whether or not they could be reasonably rejected.

Barry and Scanlon apply the procedure of reasonable justification on a variety of grounds, from principles of justice to more specific policies, such as the defense of a Universal Basic Income, a defense of religious and sexual liberties, or even specific public policies such as the housing market and water resource management. In practice, many rules and policies are *at the same time* supported and rejected for reasonable reasons. Think of any conflict implying trading off values such as efficiency and justice, or different conceptions of justice and fairness. In these cases, Scanlon (1998, 198) proposes to adjudicate the relative strength of permissive and prohibitive reasons.<fnref n="12" /> This leads philosophical justification to legal reasoning, characterized by the balancing of competing considerations, broadening the scope of social contract theories.

It is to be noted that if both Barry and Scanlon do not use the veil of ignorance in their theories, it does not entail that their original position is composed of real individuals. Reasonable agreement is still hypothetical and produces reasons to accept or reject a rule or policy. The hypothetical nature of the agreement is, therefore, *more empirically sensitive* than Rawls’ original position, since they want to model a political problem, with different groups holding different values – think of different religious groups, different political parties, and so on. This entails that the choosing situation (*M*) has to be informed properly by how real individuals *N*\* are, to constitute their counterpart *N*, who deliberate about *R*. As such, *N* and

<figure><img src="image_22.png" /></figure>

<footnote n="12">¹² This aspect of Scanlon’s theory is as important as it produces significant difficulties. Weale (2020, 251-255) develops them.</footnote>
<figure><img src="image_23.png" /></figure>

N* share some reasons, since *N* is constructed based on N* model, idealized as reasonable. Barry calls this way of modifying the social contract model the “empirical method”. It ensures that institutions and social arrangements are justifiable to those who are asked to accept them.

These renewed theories of the social contract not only re-actualize the theories of Hobbes, Locke, Rousseau, and Kant, but also modify the structure of the social contract model substantially (see Fig. 2 below). Of course, Buchanan, Gauthier, Scanlon, and Barry differ on fundamental matters, above all the conception of individuality and relevant inequality. For instance, Buchanan and Gauthier contend that baseline inequality is unavoidable if we are to recognize individual freedom, and that only cases of extreme duress and abuse are to be rejected, whereas Barry and Scanlon consider individual contracting as occurring only meaningfully within justified and impartial rules that everyone has good reasons to accept. Nevertheless, all these authors introduce significant modifications to the model of social contract theories. First, these theories *are wider in scope and extension* and are not merely concerned with civic contract – the justification of a public power – but with the moral dimension of contract – what arrangements and rules are justifiable to the individuals who are to live under them (Boucher and Kelly, 1993). The problem is not only the question of sovereignty and the existence of the State but also the justifiability of constitutions, laws, policies, and even moral conventions. Second, although the contracts are hypothetical and take place with idealized individuals, they are not necessarily one-shot but *can be continuous*. This is the case with Buchanan, which allows Pareto-superior renegotiations, and especially with Barry and Scanlon, allowing the reexamination of established rules based on new reasonable reasons. Third, these theories *are more empirically sensitive* than the traditional contract theories and Rawls’ early contribution. This is especially true for Barry’s theory, which explicitly claims an empirical approach, but also for Buchanan’s insistence on the status quo as a baseline for partial renegotiation, Gauthier’s conception of compensation based on past abuse of the provision and breach of cooperation, or Scanlon’s theory of adjudication. As such, they pave the way for *more dynamic and open* conceptions of the social contract.

<figure><img src="image_24.png" /></figure>
<table><caption>Fig. 2: *Social Contract Framework for Rawlsian and post-Rawlsian theories.*</caption><thead><tr><th></th><th>Rawls</th><th>Buchanan</th><th>Gauthier</th><th>Scanlon</th><th>Barry</th></tr></thead><tbody><tr><td>N (Idealized agents)</td><td>Individuals under a veil of ignorance</td><td>Rational individuals</td><td>Rational cooperative individuals</td><td>Deliberative agents in a hypothetical contractual situation</td><td>Deliberative agents modeled on the empirical features of real individuals</td></tr><tr><td>M (Choice situation)</td><td>Original position with strong information constraint</td><td>Bargaining situation with uncertainty</td><td>Bargaining situation with a problem of sharing the cooperation surplus</td><td>Deliberative situation of exchange of reasons</td><td>Deliberative situation of exchange of reasons</td></tr><tr><td>R (Justified social arrangement)</td><td>The Two Principles of Justice</td><td>Limited Leviathan and freedom of contracts (market arrangements)</td><td>Bottom-up cooperation concerning the rules of cooperation (market arrangements)</td><td>Egalitarian principles of justice and application to a variety of specific policies and rules</td><td>Egalitarian principles of justice and application to a variety of specific policies and rules</td></tr><tr><td>N* (Actual individuals)</td><td>Individuals living in a well-ordered society</td><td>Post-constitutional rational individuals</td><td>Individuals in any society</td><td>Individuals in situations of conflict about a rule</td><td>Individuals seeking to justify social arrangements</td></tr><tr><td>Shared reasons</td><td>Reasonableness and rationality</td><td>Mutual advantage and rationality</td><td>Mutual advantage through cooperation and rationality</td><td>Appeal of reasonableness through justification</td><td>N are modelized on N* interests and values</td></tr><tr><td>Traditional Social Contract theory inspiration</td><td>Rousseau/ Kant</td><td>Hobbes/ Hume</td><td>Hobbes/Locke</td><td>Kant</td><td>Rousseau</td></tr></tbody></table>

## 5. Expanding and Questioning the Social Contract: Pateman and Mills

In the 1990s, social contract theories were on a roll, whether of the Rawlsian kind or its critics and successors. Yet, some were wary that the device of hypothetical agreement, allegedly impartial, would reflect biases and harmful values, such as sexist and racist values. Carole Pateman, in *The Sexual Contract* (1988), and Charles Mills, in *The Racial Contract* (1997), develop these important critics at length, challenging core assumptions of the dominant paradigm of their time. Social contract theories aim to produce a non-historically and socially dependent theory of legitimacy: this is exactly what is challenged by these theories, which
<figure><img src="image_25.png" /></figure>

contend that social contract theory rationalizes historical agreements excluding some classes of individuals, namely women, and non-whites.

Let us start with Pateman's contribution, which states that the traditional social contract theories of Hobbes, Locke, Rousseau, and Kant, are based on a more fundamental contract within the family, subordinating women to men. This may sound odd at first, considering that social contracts, even when they refer *verbatim* to men, can theoretically have a universalist understanding. However, for Pateman, the social contract establishes a patriarchal sexual order in an original pact, in which civil freedom is a masculine attribute depending on patriarchal rights (Patanman, 1988, 2). A patriarchal right does not consist in the domination of a *pater familias* but of the domination of males for the conjugal life. This, Pateman argues, was translated into social contract theory.

Indeed, classic social contract theories do not recognize women as full individuals, such that they do not participate in the creation of civil liberties through agreement – their role is indeed confined to the private sphere. In the State of Nature, families are a natural given, in which women are subordinated in a marriage contract, which is prior and more fundamental than the social contract. This omission is meaningful since the sexual contract within families does not give any rights, and introduces few obligations for men, as it is seen as natural and pre-political. It survives the establishment of civil society in the form of the private sphere, in which women are relegated – following a classic distinction between the *oikos* and the *polis*. Hence, the distinction between public and private runs along the distinction between natural and civil: civil society may well abolish domination in the public sphere, but not in the private sphere, which is required for men to be autonomous. This leads Pateman to argue that society is built on patriarchal assumptions, which can be seen in some consequences, for instance, the fact that women's bodies are commodified in civil societies, as goods that should be accessible in the market by men, through marriage contract – allowing “marital rape” in the 1980s. Prostitution or surrogate motherhood are two other examples for Pateman of the fact that women's bodies should be accessible and controlled by men. Consequently, contractual relations are not necessarily emancipating for the individuals, but may also be instruments of domination, if they are based on an unequal social structure.

Patanman's argument extends beyond traditional social contract theories and tackles the same issue with Rawls' original position. Even if the individuals are sexless in the original position, because they are under the veil of ignorance, they are still considered as heads of families, namely men representing their wives (Patanman, 1988, 43). The liberal individuals of the social contract may well be supposed to be ageless, sexless, and classless, as in Rawls' original position or Gauthier's Robinson, he still embodies the characteristics of a historized self. Even Rawls, therefore, does not seem to question the existence of family – and its hierarchy – as a natural given. Pateman demonstrates this clearly for traditional contract theorists like Locke, who mentions the role of men in governing families and the subsequent subordination of women, but we may extend this critique to every social contract theory claiming universality. This would be the case of Buchanan and Gauthier's *homo oeconomicus* maximizing his private interests in autonomy, as representing the autonomy and freedom of

<figure><img src="image_26.png" /></figure>
<figure><img src="image_27.png" /></figure>

men once their private life is secured through domestic work from their wives. The often-invoked value of fraternity exemplifies this matter of fact since it originally meant love between brothers and was then promulgated as a cardinal and universal value of political societies (Pateman, 1988, 79). This requires questioning social contract theories, and the role historic social structures play in their idealized agreement.

Charles Mills transposes this analysis to the question of race, defending that contracts, and above all social contracts, exclude non-white people, who do not count as real citizens. For Mills, understanding this contract is fundamental to understanding the world. Traditional political theory teaches us a lot about ideal theories, from egalitarianism to libertarianism, but does not tell us much about how racial domination came to shape our social and political institutions. As for the sexual contract, the racial contract is more fundamental than the social contract, because it defines who gets to be counted as an individual worthy of being seen as an equal. White men are usually conceived as free and equal, and able to enjoy the freedom of civil society. Consequently, they are the subjects of social contracts, while other individuals can only be the objects of these contracts. As Pateman, Mills invites us to consider the history and how *existing social contracts* displayed discriminatory features.

The racial contract is, therefore, a meta-contract, stating who should count as proper subjects of the social contract. Social contracts require a definition of who counts as a subject and hence depend on social and historical conditions, which are the outcomes of historical evolution. Mills describes extensively the different codes amounting to colonial contracts granting racial superiority to Europeans, creating a racially hierarchical polity (Mills, 1997, 27). Based on these experiences, it is way righter to say that we live in a world constructed from racial contracts rather than the universal and counterfactual traditional social contracts.

Racial contracts have many dimensions for Mills: they are epistemic, such that some individuals are negated as subjects, and are based on an epistemology of ignorance, in which some individuals are negated; they are political and moral because they grant rights and dignity to only a subset of possible individuals; and they are exploitative since they generate political orders in which white men dominate economically others. Some may claim that colonialism and hierarchical orders would not account for most of the European and American societies, but Mills argues that the story about European exceptionalism is ultimately founded upon the economic exploitation of other parts of the world: colonialism lies at the heart of Europe (Mills, 1997, 35). A non-ideal theory of social contract, as proposed by Mills, urges us to recognize the unequal baseline for agreement one must consider.

Indeed, colonialism and explicit hierarchical political orders disappeared in the late 20th century – at least in Western countries; however, the world keeps the stain of the racial contract: non-whites still possess fewer opportunities, are perceived as having lower status, are poorer, less educated, and overall inherit unequal racial contracts. Mills is adamant that such a situation ought to be recognized for social agreement to fix the consequences of the racial contract. In this perspective, hypothetical contracts as imagined by traditional social contract theories or Rawlsian social contract theories play a dangerous ideological role, i.e., ignoring racial or sexual contracts undermining the conditions for real equality.

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<figure><img src="image_29.png" /></figure>

Pateman's and Mills' contributions are of the utmost importance for social contract theory because they put into question some basic characteristics of social contract theories (see Fig.3 below at the end of the next section). The idealization of *N* is dubious if it does not incorporate historical features about the evolution of societies and oppression. They invite us to consider social contracts not as hypothetical agreements but as *historical agreements* favoring some individuals at the expense of others, with long-term consequences for real individuals *N**. Most historical agreements are, therefore, plagued by unequal bargaining powers, and straightforward exclusion from political status. In their perspective, social contract theories ought to be *empirically sensitive* to be relevant, and Pateman's and Mills' arguments campaign for developing *continuous and renegotiated* contracts, recognizing equal status to marginalized individuals. Such a social contract theory ought still to be developed, to assess exactly how to not only integrate marginalized groups in social contract theory but also to assess how they should be compensated for past injustices.

**6. Evolving Contracts, A Natural Theory of Social Morality: Binmore and Skyrms**

One important aspect of traditional as well as post-Rawlsian social contracts – at the notable exception of Buchanan's theory – display one important feature: they rely on a one-shot hypothetical agreement among individuals grounding legitimacy. Yet, some authors rely on Hume's theory of *Treatise of Human Nature* (1739) theory of conventions and social morality or Rousseau's *Discourse on the Origins and Foundations of Inequality Among Men* (1754), which proposes a naturalized and evolutionary version of the social contract and the emergence of civil society. Since the 1980s, this is probably one of the most active subfields of study on social contract theories.

In this section, we will focus on a theory considering the possible evolution of social contract theory., as developed from the 80s onwards. Many authors could be mentioned as participating in this perspective: from Andrew Schotter's *The Economic Theory of Social Institutions* (1981) and Robert Sugden's *The Economics of Rights, Cooperation and Welfare* (1986) to Peter Vanderschraaf's *Strategic Justice* (2017). This section will focus on two major and systematic presentations of this approach, developed by Ken Binmore in *Game Theory and the Social Contract* (1994, 1998), and Brian Skyrms' *Evolution and the Social Contract* (1996).

Evolutionary social contract theories start with a different question: they do not ask what rational decision-makers would agree to in the State of Nature, but how our implicit social contract – the rules of coordination, conventions that allow us to live together – evolved and continue to evolve. Game theory helps to study this dynamic process, as it was already used in evolutionary biology to study animal strategies. This approach is mainly explanatory, namely, it shows how norms, conventions, and social rules may have evolved and how *social morality* emerged, but it does not tell us why fairness rules are just. These theories help us understand how rules can be stable because individuals *N*\* recognize rules as, for instance, equilibrium, but do not tell us why the process of stabilization is just, while traditional social

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contract theory proposes the opposite. Binmore (1998, 7) thus understands social contract as the set of rules and conventions individuals respect to live together, without the need to rely on an external enforcing mechanism, such as a theory of obligation.

The concept of equilibrium plays a central role for Skyrms and Binmore. An equilibrium occurs when two optimization strategies depend on each other, such that no one has an incentive to modify her strategy once the equilibrium is reached. John Nash is usually credited for the mathematical demonstration that equilibrium of this sort exists in great generality. Now, as Skyrms argues (Skyrms, 1996, 5), it is not enough that something is an equilibrium to be fair. If A and B must share a cake, any pair of positive claims amounting to 100% of the cake is a Nash equilibrium, be it 50/50, 60/40, or 99/1. Indeed, in every case, exceeding the claim would not be possible because it goes over 100%, and diminishing it is a strict loss. Why, then, do most people share the cake 50/50, as many experiments showed? A Rawlsian answer would be to posit a veil of ignorance to define justice. A and B are both ignoring who they are and should apply the maximin rule, securing 50% of the cake for both. For Skyrms, this solution is costly and supposes a general level of risk aversion among players. The alternative solution for Skyrms is to run an evolutionary model, in which every player has a strategy and encounters others in pair-wise interaction to divide a cake. Many strategies may exist some may systematically propose a 50/50 split, others a 99/1 split, or even a 100/0 split. The payoff of the game is the result of each strategy against others, i.e., which strategy ends up with the highest rate of deals. A *Darwinian veil of ignorance* is created out of these interactions since players cannot know the strategy of others before playing with them. The only stable equilibrium, in the long run, is a 50/50 split, which maximizes the payoff of every player. Indeed, if we suppose for the sake of clarity that strategies are evenly spread along the continuum from 0 to 100, individuals claiming more than 50% chance have more chance to get a no deal than a deal, and individuals claiming less than 50% have more chances to get a deal than a no deal. Based on these results we can build a payoff matrix in which every strategy has a different expected value based on the probability of encountering other strategies, and we can show that a 50/50 split is the only stable equilibrium, since anybody asking more would end up with less than the average population, and the same occurs for anybody asking less. The equal split equilibrium maximizes the interest of all individuals.

Of course, many cases are more complicated than symmetrical two-player games. Skyrms and Binmore (1996, chap.1) developed more sophisticated tools and concepts in cooperative and non-cooperative game theory to study them. However, the gist remains the same, and we can show that many important rules, such as rules of fairness, mutual aid, conventions, and so on, evolved following a dynamic process of interactions between individuals seeking to maximize their gains while depending on others to do so. Rules, conventions, and norms are described as equilibria that are stable in virtue of being in individuals’ interests given some sets of constraints. They both claim to offer a *naturalized* conception of social contract theory, which does not rely on hypothetical agreement, but in which norms and rules draw their legitimacy from the recognition of individuals producing reasonable expectations based on them.

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Evolutionary social contract theories may be understood as a continuation of the justice as mutual advantage perspective, as developed by Gauthier (1986): coercive rules and norms are in place because they are the equilibrium that emerged from repeated interactions. Contrary to Gauthier, however, evolutionary social contract theorists are more tempted to describe their theories as descriptive rather than normative. Gauthier spends pages explaining and defending why his bargaining solution and the initial conditions are fair, despite potential inequalities, whereas Skyrms and Binmore describe the emergence of the social conception of fairness, rather than appealing to another ethical and political framework. Their theory thus possesses the opposite strength of traditional social contract theories: they explain very well why individuals follow rules and abide by them – because rules are equilibria which they, by definition, do not have interest to leave – but less well why these equilibria would be justified from another standpoint. However, for both Skyrms (1996, 110) and Binmore (1998, 8), evolutionary social contracts have an important normative role to play: *they constrain what is feasible in terms of possibility*, i.e., they describe the dynamics of social and moral agreement, excluding some options which are not stable equilibria from the feasible set of social institutions and arrangements. These theories invite us to consider the weaknesses of arrangements that are unstable because individuals would have incentives to constantly deviate from them, in other words, they lead us towards a non-ideal theory of social contracts.<fnref n="13" /> Constraints do not, nevertheless, imply the impossibility of intervening. Evolution needs not to be an impersonal process. Both Skyrms and Binmore advocate for reforms and gradual improvements. Indeed, some equilibria might be strictly dominated – meaning that every individual would prefer being in the other situation – by other potential equilibria, requiring reform and political intervention. In doing so, they pave the way for *renegotiated and continuous social contracts* in light of other potential considerations, such as different conceptions of justice, although Binmore is very explicit in his preference for whiggish and comprise-based reforms.<fnref n="14" /> Evolutionary contracts are very sensitive to empirical content, such as the feeling of injustice when some populations face social norms, or social scientific discussions on noxious norms and rules – for example in the case of pluralistic ignorance.<fnref n="15" /> It remains to be developed how exactly these theories can cross the bridge between a descriptive theory of the evolution of social contracts and a normative theory justifying political legitimacy and obligation.

<footnote n="13">¹³ The ideal / non-ideal distinction appears in Rawls (1971) and refers to the distinction between what would be just notwithstanding the problems of compliance, empirical uncertainties, incentives, and other matters, and what is politically feasible given the state of things as they are. Skyrms and Binmore are both very critical of utopianism in social contracts and campaign for a non-ideal theory informed by the findings of game theory.</footnote>

<footnote n="14">¹⁴ The Whigs was the English party of David Hume, Adam Smith, and Edmund Burke, advocating for gradual social and political reform. Friedrich Hayek is well-known for reviving this political category in the 20th century.</footnote>

<footnote n="15">¹⁵ Pluralistic ignorance refers to situations in which individuals ignore the preferences and others and believe that the others expect of them to do X while they dislike X, and all the others feel the same. In this situation a norm can be an equilibrium without anybody supporting the norm.</footnote>
<table><caption>Fig. 3: *Challenging the Social Contract Model: Critical Social Contract Theory and Evolutionary Theory.*</caption><thead><tr><th></th><th>Pateman and Mills</th><th>Evolutionary theorists</th></tr></thead><tbody><tr><td><i>N</i><br>(Idealized individuals)</td><td>Individuals have access to the public sphere and are granted political privileges.</td><td>Individuals characterized by strategic rationality</td></tr><tr><td><i>M</i><br>(Choice situation)</td><td>History, especially from the 16<sup>th</sup> century onwards</td><td>Strategic and repeated interactions</td></tr><tr><td><i>R</i><br>(Social arrangement)</td><td>Discriminatory rules granting specific privileges to white men</td><td>Various Equilibria allow individuals to fulfill their interests, but particularly fair arrangements</td></tr><tr><td><i>N</i>*<br>(real individuals)</td><td>Individuals of current societies, inheriting structural injustices</td><td>Individuals of currents society (approximated by <i>homo oeconomicus</i>)</td></tr><tr><td>Shared reasons</td><td>Disconnection: <i>N</i> is demonstrated as displaying false universalization of <i>N</i>*</td><td>Close to <i>N</i>: low degree of idealization due to evolutionary models</td></tr><tr><td>Social contract influence</td><td>None: both are critical of the theory</td><td>Hume, Smith, Rousseau's <i>Second Discourse</i>, Hobbes</td></tr></tbody></table>

## 7. New Approaches to Social Contract Theories: The Very Recent Contributions

Research on social contract theory is still burgeoning and has shown important transformations. The most important ones are well described by John Thrasher and Michael Moehler's *New Approaches to Social Contract Theory* (2024). First, recent developments in social contract theories are based on a deeper recognition of *diversity and polarization*, recognizing a larger set of views as legitimate, even if the resulting polarization may lead to a multiplicity of justifiable social outcomes. Second, they introduce a *dynamic aspect* of social contract theories, studying how social justice may be *context-dependent and dynamic* rather than fixed and static. Third and finally, they invite us *to broaden the use of empirical methods* to cope with diversity and the dynamic nature of social agreement, such as experimental approaches, and computational simulations, to complement counterfactual and hypothetical agreements.

Seminal contributions displaying such features are Gerald Gaus' *The Order of Public Reason* (2011), Ryan Muldoon's *Social Contract Theory for a Diverse World: Beyond Tolerance* (2017), Michael Moehler's *Minimal Morality: A Multilevel Social Contract Theory* (2018) and the contributors of the recent collective volume edited by Thrashed and Moehler cited above. Alexander Schaefer (2024), one of the contributors states one central issue with social contract theories perfectly: the justification of rules *R* depends on how idealization is conducted for *N*<sub>s</sub> and, as this overview demonstrates, different authors may have different (and sometimes flawed – as defended by Pateman and Mills) ways of idealizing agents, we
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then end up with a set of various justified rules {R<sub>1</sub>, R<sub>2</sub>, ..., R<sub>n</sub>} depending on different manners of defining idealized agents {N<sub>1</sub>, N<sub>2</sub>, ... N<sub>n</sub>}.

The question, for Schaefer, becomes less about what rules would be justified based on a specific set of assumptions, but what kind of social arrangements would fit a society of axiologically diverse individuals holding different views about justice. In other words: what kind of social arrangement would maximize the co-existence of individuals holding various conceptions of what society should be?

Considering seriously this question leads us toward a dynamic conception of justice, especially when one grants liberal freedom, which tends to upset any pre-established pattern (Muldoon, 2024). In this perspective, normative disagreement and radical diversity should not be perceived as problems and limits for social contract theories, but as strengths allowing us to experiment and discover new forms of life. The social contract argument evolves it is not a question of knowing a priori what social arrangements should be justified, but of arguing that an experimental society, characterized by a diversity of rules and innovations, is to the advantage of everyone given moral equality because it produces consequences that everybody can take advantage of. Muldoon provides arguments based on experimental studies showcasing the superiority of diverse groups compared with homogeneous groups to strengthen his case for this argument. Schaefer and Muldoon's arguments campaign to move social contract theories toward dynamic and diversity-driven theories in which social arrangements are evolving and constantly transformed by an autocatalytic process – a process of transformation that fuels itself.

This program is still open-ended and introduces new problems as it relaxes important assumptions of the social contract model. As coined by Moehler (2024), such theories encounter the Diversity Paradox. Traditional social contract theories manage to offer a single justified social arrangement at the cost of idealization – the *N*'s agreement justifies the legitimacy of *R* based on *M* – but once we introduce different *N*'s in the initial conditions, we may end up with a set of accepted institutions which is indeterminate. Consequently, there is a fundamental tension between the stability of a conception of justice and the justification of a conception of justice. Justification of a conception can only occur when holding strong idealizing assumptions, while stability requires us to recognize a diversity of individuals. Defining the existence of a justified conception of justice entails reducing diversity, and to answer stability we need to consider diversity. Moehler himself defends that we may insulate problems, accepting Hobbes' solution for questions of security, while accepting a more gradual perspective for other issues, following Buchanan's social contract theory.

The paradox is challenging because it is particularly problematic to associate stability with legitimacy. Cailin O'Connor (2024) demonstrates this in her critique of what she calls "natural social contracts" — social arrangements that are the outcome of an evolutionary process, corresponding to section 6's arguments or Schaefer and Muldoon's favored processes. Spontaneous interactions between individuals may well produce stable norms, but also unfairness. When we introduce different sub-groups in the models, we end up with results showing that unfair agreements are very likely to emerge, based on a variety of

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mechanisms. Particularly two mechanisms generate unequal agreements, introducing systematic differences in consideration between individuals: unequal power and minority statuses. Unsurprisingly, the greater the bargaining power of a group, the more the outcome will be in its favor. This is the case because powerful individuals have a very high disagreement point (the no-deal point in the bargaining situation) compared with less powerful individuals since they are not worse off in the status quo. Consequently, they will end up making higher demands and re-enforce their position. Minority status is another example. For O’Connor, minority groups tend to be more risk-averse, because they are less stable economically, which tends to lead to disadvantages in bargaining. After all, small risk-averse groups tend to accept accommodating demands. In addition, if groups are biased towards in-group favoritism and out-group bias, minorities’ existence leads to general bargaining disadvantages. In general, most significant asymmetries generate unequal outcomes, and this is particularly the case once we input social categories in the bargaining models. As a result, the spontaneous emergence of norms is a very important aspect of the research, but it requires an external normative benchmark to avoid taking stable institutions as justified by default.

These contributions – which illustrate only a part of the contemporary works on social contract theories – exemplify the roads taken by contemporary social contract theorists, toward *more realism* – considering deep diversity and more empirical facts, such as social categories, empirical disagreement, and polarization – and the development of *continuous social contracts*, able to cope with *societal transformations*. As such, they also highlight the most important tensions we already encountered many times: tensions between the question of the normative justification of a set of rules, and the question of the empirical stability of these rules. This is probably what underpins the differences between theories of justice as a mutual advantage, focusing on the issue of ex-post acceptability by real individuals, hence stability, and theories of justice as impartiality, focusing on the conditions for judgments to be reasonable, seeking to reach some external benchmark to assess justifiability. These tensions are still lively and call for more work to answer them properly.

## 8. Unexplored Roads on the Map

This general overview of social contract theories throughout its history – albeit, as mentioned in the introduction, not by any means complete, as other important contributions could be added, such as Habermas’, Nozick’s, Gaus’ or Van Parijs’ – shows that important foundational assumptions of social contract theories are progressively being relaxed. Most importantly, traditional social contract theories are *one-shot, counterfactual*, and not particularly interested in *democracy* or *inclusiveness*. Furthermore, these theories mostly focus on a *minimal conception of justice* as understood as a theory of the legitimacy of public authority. Rawls and post-Rawlsian theories expanded the scope of social contract theories to theories of social justice and moral norms. Pateman and Mills, as well as evolutionary social contract theories, challenged that social contract theories would be one-shot and counterfactual, with a universal value. Social contracts – understood as the agreement on the

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fundamental rules of society – ought to be constantly renegotiated to account for past inequalities, lack of inclusiveness, and the constant production of inequalities in complex societies.

As much as social contract theories propose a decisive tool to justify various alternative social arrangements, the history of the concept shows that there is by no means one social contract theory characterized by one set of assumptions. It is self-evident by now that Barry, Hobbes, Rawls or Gauthier's theories do not share the same starting points and the same political outcomes. Social contract theories are characterized by a unity of methods rather than assumptions or outcomes. Moreover, this overview emphasizes how social contract theories should be reworked. For instance, Pateman and Mills clarified that impartial agreement on social rules could reflect past inequalities and structural inherited injustices. However, they did not provide a conceptual framework allowing to systematically update the social contract based on these revendications. Additionally, a complex society may continuously generate new injustices and revendications one must deal with. *Resilience* is, therefore, a particularly important feature to develop for social contract theories, allowing them to cope with persistent contestations and revendications. Democratizing the decision-making procedure, to make sure every interest is heard, is a possible solution, which would still require work to develop a democratic theory of the social contract.

Moreover, social contract theories, from Hobbes to the post-Rawlsian literature, hold on to methodological nationalism, i.e., the assumption that the proper territorial unit for social contracts is the national one because nations display some levels of homogeneity and like-mindedness, as well as share common interests. Developing a social contract theory for different entities, such as the European Union, may require modifying substantially the existing assumptions, to consider the diversity of nations and the heterogeneity of interests. Additionally, some problems at the global scale may require similar modifications, such as climate change.

## 9. References

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* Buchanan, J. 1975. *Limits of Liberty*, Chicago, Chicago University Press.

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