I. Diversity as a Challenge to Social Contract Theory

I must say that I read Professor Ryan Muldoon’s book Social Contract Theory for a Diverse World: Beyond Tolerance with mixed thoughts. First, I greatly appreciate Professor Muldoon’s attempt to construct a version of social contract theory that attempts to meet the challenge of a diverse world. Second, I find myself disappointed that Professor Muldoon was not able to escape certain social and theoretical trappings that caused problems for classical social theory and the Rawlsian version as well. In this section I will focus on the need for a work like Muldoon’s. In the following sections I will explain my reservations.

Muldoon correctly observes that economic and political globalization have changed the composition of various societies. He writes:

Economic and political globalization has encouraged waves of immigration that have changed the social composition of countries, leaving once homogenous cultures to deal with their newfound diversity. Unfortunately, Western countries have not handled this ongoing transition with much success. As Western Europe has seen immigration rise, it has seen support for liberal policies decline, and civil unrest decrease. (1)

He goes on to say of the United States: “Even with the United States’ longer history of ethnic diversity, immigration and affirmative action polarize political discourse” (1). Although I find this last statement problematic my critique of it will have to wait until later. My point here is to just recognize the importance of Muldoon’s attempt to rethink social contract theory in light of the rapid restructuring of Western societies due to globalization and increased immigration.

The changing composition of a society does bring with it certain difficulties that demand a rethinking of the assumptions on which that society is based. These difficulties can lead to forms of social unrest that destabilize that society. Muldoon’s new version of social contract is an attempt to help us avoid such destabilization by offering us resources with which manage these difficulties. Muldoon says of his new model:

In particular, it establishes three key ideas that differ from traditional social contract theory. First is the idea of perspective in political reasoning. Rather than assume that all citizens view moral and political problems the same way, it articulates a way to productively aggregate disparate views to find potential areas of agreement. The second key idea is a bargaining model that requires virtually no agreement amongst participants. And finally it presents a model of how agents can be motivated to seek out more diverse societies, even in the face of distributive disputes. (3)

Since we’ve all read the book I will not go into any detailed analysis of these three key ideas. In my critique I will challenge the last two. However, that occurs within a critique of the entire project. At the end of the day I am not convinced by Professor Muldoon’s new model. His new model might provide help later down the road after we address some more fundamental issues. In other words, Professor Muldoon’s new model is premature.

II. More Ideal Theory

I claim that Professor Muldoon’s model of social contract theory is premature because the model is constructed as if the people involved are on a level playing field. Muldoon is aware of social and economic inequalities and the possibility of inequality increasing. He even cites Charles Mills and Carol Pateman in a few places. This suggests that he is quite aware of the relationship between social contract theory and domination. This is what is surprising. Muldoon goes on to construct what Charles Mills calls ideal theory without adequately addressing the real causes of inequality and social domination. I suspect that Muldoon believes that he has not fallen into the trap of constructing ideal theory due to his attention to the real problems of globalization and immigration. Nevertheless, the theory remains ideal.

In their book Contract & Domination, Carol Pateman and Charles Mills argue that the history of race and gender subordination requires that we rethink the way we do political theory (79). Mills argues that most political philosophy is ideal theory, meaning that the philosophical quest for principles of justice on which a well-ordered and fair society is to be founded begins from ground zero. The political philosopher (social contract theory included) ignores the real injustice and systems of domination already present in society. Mills argues that a political philosophy that is merely ideal theory is not helpful in addressing real concrete social and political problems. Mills points out that while Rawls concerns himself with the basic structure of society, he constructs his theory of justice by ignoring the basic structure of society. That is, Rawls seeks to discover principles of justice while paying no attention to real structures of injustice.

While Muldoon does address the very real problem of increasing diversity, like Rawls, he fails to address structures of injustice. One example is when Muldoon writes, “Even with the United States’ longer history of ethnic diversity, immigration and affirmative action polarize political discourse” (9, the racial contract). There are two things that I want to challenge here. First, Muldoon is guilty as are so many others of disconnecting the concept of diversity from real social practices of injustice and exclusion. Secondly, Muldoon’s observation that in the United States immigration and affirmative action polarize political discourse ignores the fact that the polarization in the United States is prior to political discourse. This initial polarization has its roots in the real contract of exclusion and domination in the United States. With regards to the first problem, my worry is that the concept of diversity is often presented in a very weak and whitewashed form. It simply signifies the importance of accepting those who are different from those persons who are considered to be in the mainstream in a given society. The emphasis is on celebrating difference. However, the concept of diversity much like that of tolerance arose out of a struggle of oppressed people to be accepted and treated equally in the society that has oppressed them. Therefore, it is not simply a matter of difference. We must talk about socially produced difference that is the direct result of oppression and domination. We must talk about real injustice and its rectification, we have to talk about how group identity gets constituted within the context of oppression and exclusion, we have to have a discussion about the ways in which group identity and difference are a response to forms of systematic dehumanization, etc. So, when we talk about diversity in the United States, is it a form of natural diversity that is created by people coming together from different parts of the world, or is it a form of diversity that is created by one group responding to domination by another? If we fail to adequately address issues like these, are we a place where Muldoon’s version of social contract can help us or even have any meaning?

The nature of ideal political theory is to construct a form of social contract theory that ignores the fact that the society that is being addressed has its origins in a contract of domination. The contract of domination has long-term consequences that shape the development of our institutions, values, identities, and our social and personal narratives. The United States is a prime example of a society that has its origin in a contract of domination. The founding fathers sought to protect the desires and advancement of white male property owners. The soil of American society is saturated with the blood of Native Americans and Africans. There is a huge body of literature on how European immigrants such as Irish and Jewish people adopted a white identity so that they could reap the benefits of whiteness in a racist society. One of the problems with recent diversity initiatives is that they fail to recognize the way in which some of our differences were forged under the contract of domination. For example: much of black culture in the United States is a response to US racism. Further, racism still impacts black life in the United States. Therefore, any social contract theory must begin by dealing with the long-term effects of the contract of domination.

III. The Contract of Domination and Perspective Formation

In chapter 3, Muldoon’s distinction between the view from nowhere, the view from somewhere, and the view from everywhere has the potential to be helpful. However, at the end of the day the avoidance of non-ideal theory (which actually considers the way in which our society has actually been structured by a contract of domination) derails Muldoon’s project. Muldoon’s intuition with regards to the false objectivity of the view from nowhere, as well as the narrow focus on the perspective of the individual in the view from somewhere, is correct. Both of these views are problematic for a number of reasons. Muldoon attempts to save the good intent of both views with his concept of the view from everywhere. In his own words:

The view from everywhere is an attempt to reconcile the positive features of both the view from nowhere and the view from somewhere. In particular, it aims to achieve the neutrality of the view from everywhere while maintaining the epistemic feasibility of the view from somewhere. To do this requires a significant departure from both views: most notably in that the moral-political stance is not something to be taken by a lone individual. Instead, it is fundamentally an aggregative social viewpoint. In addition, the view aims to be a project of discovery rather than justification. Rather than build in and justify substantive moral claims, the view is designed to allow these claims to arise from collective deliberation. (45)

What I appreciate here is the attempt to move beyond the moral-political stance of the lone individual toward something more social or communal. This is a kind of democratic coming together. Muldoon goes on to explain that the view from everywhere has three basic elements. First there is the collection of everyone’s beliefs and desires. Second, there is the collection of everyone’s perspective. Third, there is a method for taking these beliefs, desires, and perspectives as input, and output impartial statements about the evidentiary status of particular moral perspectives (46).

While I appreciate Muldoon’s efforts here, the missing piece is the non-ideal social context and the social process by which perspectives and beliefs are formed. The sharing of beliefs and perspectives must include a critique of the process wherein beliefs and perspectives are formed. That is, if our society has already been shaped by a contract of domination are there not social mechanisms in place that support such a contract and also shape beliefs and perspectives so that they conform to or reproduce the contract of domination? To be fair to Muldoon, maybe he anticipates the emergence of critiques of the contract of domination during the sharing of perspectives.

IV. Beyond Tolerance within the Framework of Capitalism?

My final concern regarding Professor Muldoon’s book is his attempt to replace the deliberative approach to the social contract with the bargaining approach. His concerns about the deliberative are legitimate within the framework of social contract theory in its ideal form. His worry is similar to that of feminists and philosophers of race. That is, the centrality of public reason in Rawls’s version or the General Will in Rousseau’s version seems to demand a likeness among us that puts difference under erasure. As we enter public space for deliberation our private interests must be put out of play. Muldoon is right to rescue private interests here and to see them as important elements in the process of bargaining. He also believes that bargaining encourages empathy. However, my worry here is that he presupposes a form of rationality that is merely ideal. At the end of the day, Muldoon’s theory is still based on the problematic belief in atomistic individualism. Individuals (even as members of social groups) come together with their interests and perspectives intact and bargain. The problem is that many of these individuals come together as victims of a prior contract, the contract of domination.

For example: Muldoon supports his bargaining approach by appealing to an economic model of bargaining. He even uses unions as examples of successful bargaining within capitalism. First, in a capitalist system, unions may bargain for various improvements in the workplace but they have not been able to successfully challenge day-to-day exploitation. Further, unions are constantly under attack in the United States and are quickly fading. Secondly, economic groups are not natural groups but are socially produced groups. Therefore, we must ask, “What form of social contract produced these social groups?” Given the tendency of capitalism to produce wealth and power for an elite and very small segment of our society I hardly think that it provides us with the tools for constructing a social contract that is fair and just. Further, there is nothing in Muldoon’s theory to convince me that the capitalist will somehow consider the interests of others.

Finally, we must come back to the issue of diversity. Muldoon seems to be under the impression that the capitalist is more inclined to champion diversity when he sees that it can benefit business. The variety of perspectives leads to more creativity. This is the conclusion of ideal theory. In the real world where we actually live we see capitalists effectively using diversity to maximize their wealth by creating conflict between various social groups. This is not accidental. Groups are put against each other then manipulated. I can give examples of this but I’ve gone on too long. I look forward to discussing these matters with Professor Muldoon and others.

It is forthright and courageous, intellectually, that Muldoon’s book begins with a frank acknowledgement that the current situation is very difficult one for the kind of political theorizing that he wants to engage in. He wants to take people as he finds them, but what he finds are, alas, attitudes, widespread and entrenched, that create difficulties for liberal-democratic aspirations and institutions. As he puts it, “Around the world, right-wing, anti-immigration, anti-minority parties and political candidates have seen robust political support” (1). (Note that this was written before the Brexit referendum and before the election of Mr. Donald J. Trump as president of the United States.) As Muldoon acknowledges, “minority groups are often depicted as subhuman, demonic, craven, or somehow alien” (90). Indeed they are, and not just so-called minority groups, but many of those, of all sorts and conditions, who might be on opposite sides of highly polarized issues—e.g., (cartoon) red state and blue state voters in the United States.

Certainly, it is no longer merely that the members of such cohorts have different ways of looking at the social world, different values, different principles. It is, rather, that at least some members of each of these two cohorts think of many members of the other cohort that they are not on an equal moral footing, are not worthy of moral regard and, indeed, are not the sorts of beings that you can or should bargain with about fundamental rights or the distribution of the costs and benefits of social cooperation. (This point could also be developed, in the currency of preferences, in terms of the idea, mentioned but not exploited by Muldoon [cf. 44 and 59n7], of tuistic, or other-regarding preferences: blue staters [strongly] prefer that (various of) the preferences of red staters not be satisfied, and vice versa.)

Here the point is not just difference, but, rather, difference of a kind that divides, that excludes, that precludes engagement for the purposes of bargaining toward a system of social cooperation for mutual benefit. People so divided lack cogent reasons to engage in various forms of social cooperation that might deliver mutual benefit because even were each to benefit in some way from cooperation, the very fact that their antagonists would also benefit would be repugnant enough to undermine the welfare calculus that exhibits the so-called net benefit, that dictates cooperation on the basis of that benefit, and that therefore justifies the bargain. The whole arrangement unravels itself in the face of this kind of, increasingly common, intransigent Other-disdaining perspective. As Muldoon puts it:

In this imagery [of Ronald Reagan’s “Cadillac-driving welfare queens”], the Other has a series of negative qualities for which they are morally blameworthy. This can not only serve to remove our moral obligation to ensure that they have adequate resources to conduct a life that they find valuable, but it can serve to instigate a desire to view resource allocation as a zero-sum game in which whatever minorities receive is loss to the rest of us. We then find ourselves with the view that we must protect ourselves from this parasitic group, and work to deny them any resources that we might otherwise have been able to allocate to ourselves. (89–90, FD’s emphasis)

All this, it seems to me, is: (a) empirically plausible as a description of much of the current political situation in many first-world democracies; (b) relevant to Muldoon’s proposed approach to political theorizing; and, unfortunately, (c) a severe challenge to Muldoon’s ambition to identify a plausible method, as he puts it, “to lead people there from here” (95).

Notice, furthermore, Muldoon has denied himself an easy “get out,” namely, that this is no longer a philosophical, but, rather a therapeutic problem. For he has set himself the task of delivering a method that “allows for political agreement amongst individuals who hold any arbitrary set of perspectives” (65, FD’s emphasis), including, presumably, perspectives that are utterly antipathetic to one another in the sense illustrated. He therefore cannot address, let along solve, the problem posed by this sort of diversity simply, as many theorists would do, by normalizing it away, at the philosopher’s desktop, on the grounds of its wrong-headedness or moral bankruptcy.

This makes Muldoon’s task a heroic one. That said, Muldoon, in effect, starts over when he reaches the point I’ve just described, seeking to identify a mechanism that would, not on the desktop but in “the real world,” effect a partial normalization of citizens so that, despite their (perhaps continuing) substantive diversity of perspectives (or preferences) they could come to see each other as worthy bargaining partners. Such a mechanism would, it’s posited, facilitate the gradual rehabilitation of relations between antipathetic groups, leading, in due course, to growing tolerance, empathy, and mutuality.

We begin to encounter this part of the larger argument on p. 91, the most important page in the book in my view, where Muldoon takes a sharp methodological turn and increasingly relies on an argumentative manoeuvre of whose bona fides I am nevertheless not entirely convinced.

First, the methodological turn. Muldoon has acknowledged, in effect, that there is no rational basis for successful bargaining between individuals who view each other as anathema and that there is no way available to him of blocking the inclusion, in a bargaining scenario, of perspectives that deliver those anathematizing judgments. As a consequence, the theorist’s job is to identify a social mechanism (as I’ll call it) that can create the conditions in which bargaining can occur . . . create those conditions not on the desktop by imagining away antipathy, but, rather, by inducing, in the society, a social process in which people’s attitudes are altered at least to the extent necessary for bargaining to seem sensible to them.

As Muldoon puts it, “It becomes necessary to design the basic structure of society in a way that aims to foster the attitude that all should be treated as moral equals, rather than design institutions that already assume that such an attitude exists” (91, FD’s emphasis). A “basic structure” designed to this specification is, then, the mechanism of partial normalization that I mentioned. The normalization is partial, of course, because a lot of diversity in first-order values or preferences will survive the moderation of antipathy (or of strong negative tuistic preferences). And the normalization is not accomplished, on this model, by the stroke of the theorist’s pen (all the virtues of theft over honest toil!), but, rather, through concrete social processes. To adapt a trope familiar in Brisbane, Australia, where I write this, it is “normalization for the real world.”

In particular, we aim on this account to show Ego and Alter that, despite their mutual antipathy, there is something at stake for both of them in some form of mutual regard. Specifically, and as Muldoon puts it, “what we need . . . is a demonstration that diversity promotes an individual’s own ability to conduct her life as she wants” (91) from which we might, in turn, show how initially antipathetic individuals “rationally learn to become more accepting of others” (95). This manoeuvre, if successful, would transform the zero-sum game of mutual antipathy into a positive-sum game where there was potential net benefit to both Alter and Ego and thus something to be pursued via bargaining, notwithstanding a historical antipathy that is, via this iterative process, gradually left behind.

Indeed, most of chapter 5 of Muldoon’s lovely book is devoted, precisely, to sketching such a demonstration, based on the proposition, as he puts it, that “a more diverse population is better at creating wealth than a homogeneous one” (91)or that “diversity leads to greater economic productivity [because] the economy benefits from the division of labor, and a diverse society offers more opportunities for further division” (98). It is, in short, the diversity that produces the surplus and the surplus that provides the incentive to bargain notwithstanding initial antipathy that is gradually eroded by the increasingly positive “gains to trade” that acceptance of diversity yields on this account.

Notice, of course, that this mechanism, as Muldoon himself fully understands, cannot be guaranteed to succeed. As he puts it, “individuals may well remain stubbornly against diversity” (101). He continues, “They could simply have deep-seated fears or prejudices against other kinds of people.” He concludes, opening up another line of argument, but one, in my view, of the same character and hence likely to peter out in the same way: “Though I cannot provide an argument that each of these people will come to decide that they are wrong and begin to see the intrinsic value of human differences, I can argue that the incentives are aligned against their views.”

We can, I think, see how this is supposed to work. What we don’t yet have, however, is a model of attitudinal change that enables us to feel confident that such a mechanism, if implemented, would work. What is it, in particular, about the repeated demonstration to Ego and Alter that their cooperation would produce divisible net benefits that enable them to “get over” their antipathy, on largely non-material grounds, to one another? And how confident are we that this mechanism, whatever it turns out in detail to be, can in fact be deployed in current circumstances?

Certainly, I understand what Muldoon means when he says, of the Antipathetes, that “the incentives are aligned against their views,” but this assertion is only true if, by “incentives,” we mean purely and narrowly economic incentives. For, if we mean by “incentives” all the considerations that move a person to action or attitude, then, surely, the economistic “gains to trade” associated with a yet-to-be-achieved acceptance of diversity may, as an empirical matter and no matter how many iterations of the demonstration, continue to be outweighed by the “costs” to the participants of recognizing the moral equality of those individuals who are “Othered” in their perspectives. As my title suggests, it matters, for the functioning of Muldoon’s mechanism of partial normalization, what counts as a “gain to trade” and that is something that itself is perspective dependent. From the perspective of a “hater,” material gains to trade simply do not “trump” (haha) the existential losses associated with recognition of “the Other.”

There is another matter, surfaced in the 2016 US presidential election, which cuts across the first point from another angle. One thing we learned from the election (and other events) is that there is, among wide sections of the populace, increasing scepticism about even the narrowly economistic calculus of “gains to trade” that is supposed to show the advantage of a diverse society from the point of view of material well-being (and thus, gradually, to undermine the antipathy between opposed cohorts of citizens). A promissory note was issued some time ago that precisely such gains might “trickle down” from the so-called liberalisation of economic regulatory arrangements and now, increasingly, precisely those groups that are antipathetic to diversity are also increasingly sceptical about delivery against that note, and, accordingly, are no longer in the mood to be moved by gains-to-trade arguments of the kind Muldoon deploys. (Indeed, their scepticism about gains-to-trade arguments may well be a factor in the liberation or development of the very antipathetic attitudes toward Others that Muldoon, and all of us, are struggling to theorize or deal with.)

Muldoon, it would seem, has arrived where we can, a priori, expect someone to arrive who has sought to accommodate all the empirically available perspectives that guide human thinking and action and who nevertheless seeks to identify a system of coordination for mutual benefit. He has arrived at the point, as he forthrightly puts it, where “though there are many incentives for promoting diversity in society, there are also limits on how far these incentives can take us” (109) . . . perhaps more stringent limits than Muldoon himself believes.

To repeat: Muldoon is right that people who reject diversity would be “better off” if they accepted it. The problem, however, is that the notion of “better off” that sits at the center of this argument is one that is itself perspective-dependent, rather than perspective-neutral or perspective-universal. For those perspectives which build in, as side-constraints on other forms of calculation, some sort of antipathy to certain forms of human difference (or that are built around strong, negative tuistic preferences), the “whole equation” simply doesn’t add up. Sure, I might be better off in some thin sense of material comfort, though even that is now doubtful after repeated failures of benefits to “trickle down.” But the promise of such benefit depends, precisely, on my abandoning some of my existential commitments—namely, to refuse recognition as moral equals of those who are, in my perspective, moral pariahs.

Every approach in political philosophy has its limits. To say that Muldoon’s approach doesn’t fully succeed is therefore not a differentiating claim, let alone a dismissive one. We are in Muldoon’s debt, even if his main argument doesn’t (quite) succeed, not least because of his engagement with and development of the idea of perspectives, because of his introduction of the gains-to-trade argument that I have been busy criticizing, and, in my view, most importantly, because of his refusal to do on the desktop by theoretical fiat what has to be done in “the real world” if we are to salvage liberal-democratic orders.

Though this wasn’t, I think, his intention, which is present and future oriented, I think that, whatever its merits as a solution to contemporary problems, Muldoon’s fundamental mechanism can be understood as a rational reconstruction of the recent (say mid-twentieth-century) historical experience of individuals in the great manufacturing and trading societies, and hence can help us understand something about the potential for social change. In those societies, large segments of whole populations did indeed experience improvements in material well-being that were and were widely seen to result from a division of labor that was underpinned by a diversity of individual and cultural types. It does seem once to have worked that initially diverse groups of people came to see one another as partners in the production of net social benefit and hence as legitimate participants in bargaining over the distribution of that benefit. So real-world mechanisms of partial normalization haven’t always been impotent, and Muldoons’s analysis helps us understand their efficacy.

Whether there is a second act, however, is, in the face of our current political realities, a vital question. What, if anything, is it, empirically, that distinguishes the current situation from superficially similar situations in the past? What are the prospects that we can, again, find a way through from polarization to partnership? What more than merely material benefits has to be at stake to bring obdurately antipathetic parties to the bargaining table? I welcome further discussion of these matters.

The central problem addressed by Ryan Muldoon’s Social Contract Theory for a Diverse World is one that surely needs solving: how do we arrive at principles of justice for the basic structure of society that are suitable for individuals with radically different perspectives? What principles for distributing political rights might stably govern a scheme of social cooperation composed of e.g., Catholics, libertarians, progressives, white nationalists, descendants of slaves, disabled people, feminists, queer people, “incels,” unskilled workers and trust-funders? Muldoon’s solution is a variant of social contract theory. Morally binding principles of justice, Muldoon claims, are the outcome of an actual agreement among diverse individuals who are assumed to have roughly equal bargaining power and who choose on the basis of personal preference. The outcome is a set of mutually advantageous, and hence stable, principles. These are likely to change over time, as circumstances evolve, and they would likely be subject to two constraints. The first is that the principles would pick out a distribution located on the Pareto frontier. The second is that gains from cooperation would be distributed in proportion to contribution where one’s contribution is the difference in production one makes by participating in the productive process.

As a “morally unconstrained,” actual consent theory, Muldoon’s view can be contrasted with another dominant strain of social contract theory: “morally constrained,” hypothetical consent theory.1 In that tradition, the parties to the contract and their circumstances are morally idealized. For instance, on Rawls’s theory,2 to which Muldoon is providing an alternative, the parties are characterized as ignorant of their capabilities, social position, values and preferences. They are, on that ground and to that extent, impartial. Moreover, they are described as regarding one another as moral equals. Their consent is capable of producing morally justified principles, on Rawls’s view, only under these moralized conditions. Furthermore, the principles are, for Rawls, the object of hypothetical agreement: they are the principles that such morally idealized agents would consent to. By contrast, Muldoon’s bargainers are simply regular people with their perspectives, and the principles of justice are, for him, the object of an actual agreement among such people.

Morally constrained hypothetical consent views are not without their problems: the moral force of the principles they produce seems to depend not upon the fact that they would be agreed to but rather on the moral ideals informing the agreement. Hence the contract seems superfluous. Moreover, it is not clear why the fact that individuals would agree to a principle requires them to abide by it—it seems that we are required to do something only if we have actually agreed to do it.

Muldoon’s account is free from these problems. However, this strength, I contend, comes at a cost: the sacrifice of moral normativity. Below I will explain why the two features of Muldoon’s view that enable it to accommodate diversity—actual consent and purely descriptive circumstances of agreement—keep his principles from having content that is morally normative. My argument reveals a rather serious dilemma for social contract theories: they cannot both be inclusive and yield morally justified principles.

Consider, first, the issue of actual agreement. Suppose you and I agree that every Monday I will bring you a case of mineral water. I am now morally bound to bring you the water and I arguably do something morally wrong, ceteris paribus, if I fail to turn up with the water, for I have violated our agreement. But the fact that we agreed that I will bring you water every week does not justify the policy of my bringing you water—it does not make my bringing you water a morally good thing to do. In other words, my consent does not give me a moral reason to bring you water, it gives me a moral reason to keep my promise, which happens to be to bring you water. The wrongness of my failing to bring you water consists in my violating an agreement, not in my depriving you of water. Indeed, we might have agreed that I will bring you a stolen bicycle every week. I may be thereby bound to do so, but the rule, as it were, of supplying you with stolen bikes is not justified by our agreeing to it.3 The general problem is this: people might actually agree to almost any principle but this does not justify the content of the principle: if everyone agrees to a principle that subordinates Christians, it seems implausible to conclude that principle is thereby morally justified.

Muldoon’s account, to be sure, precludes agreement on such things as suppressing a certain religious group: individuals are equal in bargaining power, on his account, and some are Christians. Those individuals would never agree to such a principle, as it would be to their disadvantage. Principles produced by actual agreement among people with a variety of outlooks, who have equal bargaining power and who desire rules that are to their advantage will likely preclude mistreatment. So, the sorts of social phenomena generally viewed as unjust—housing discrimination, forced labor, voting inequality—will not likely emerge from the social contract that Muldoon envisions. Nevertheless, this is a contingent feature of his view: these practices are not ruled out in principle.

Compare bargaining theories that deploy hypothetical consent.4 These accounts are capable of giving people, no matter what their perspective, reasons to do the acts prescribed by the rules that are the object of hypothetical agreement. Suppose it is the case that ideally rational individuals with equal bargaining power who are seeking to maximize their utility would agree to a principle of religious freedom. This fact gives actual agents, who are not ideally rational, a reason to adopt and abide by a principle of religious freedom, for surely they ought to do what it is rational for them to do. Nevertheless, it does not obligate them to abide by that principle, as they have not, in fact, agreed to it. Notice that the “ought” in this case is prudential: if the aim is to maximize one’s utility and following a principle of religious freedom is a means to fulfilling that aim, then, as a matter of prudence, one ought to follow that principle. Furthermore, one has a motive to do so, if we assume that actual people are inclined to maximize their utility. So, even if Muldoon, to solve the problem of justification, were to rely on the idea of a hypothetical bargain, his theory would still not produce principles of justice, but rather principles of prudence with which people, no matter what their perspective, are motivated but not obligated to comply.

The problem of the lack of moral normativity is solved by morally constrained hypothetical consent theories. This type of theory can produce principles that are morally justified—principles the content of which actual people have a moral reason to follow. (However, this type of theory, like hypothetical bargaining theories, cannot explain why people are obligated to obey such principles.) Suppose that the parties to a hypothetical contract are impartial with respect to people’s ideas of the good life and regard one another as moral equals. Suppose, further, that the following counterfactual claim is true: such individuals would agree to a principle of religious freedom. The reason they might do so is that those individuals accept all (morally permissible) ways of life and they believe that people are equally entitled to live according their own values. It follows that actual people have a moral reason to obey a rule requiring religious freedom: the reason is that the rule was adopted in conditions that were fair. This constraint makes it the case that people ought morally to follow the rule. To be sure, people may lack a motive to obey this rule, or may indeed have a motive to not obey it, especially if it is not in their interest to do so. They have, nonetheless, a moral reason to comply.

We can see here a deep dilemma for social contract theorists: in order to provide morally justified principles—that is to say, genuine principles of justice—they must resort to morally constrained hypothetical consent. But this approach cannot accommodate the diversity in perspectives that serves as Muldoon’s starting point. Those who believe the state should promote a certain way of life or who endorse a caste system will not have a reason to follow principles constrained by the ideals of impartiality and the equal worth of persons. It seems one must choose, then, between a justificatory structure that infuses principles with moral normativity or one that is maximally inclusive. The very features of Muldoon’s view that make it inclusive—actual consent and morally unconstrained circumstances of agreement—prevent it from generating principles with morally justified content, despite the fact that it generates principles that people may be morally obligated and also motivated to abide by.

Ryan Muldoon’s Social Contract Theory for a Diverse World is strikingly original, bold and important.1 It advances an array of new ideas and concepts: moral perspectives, objectivity as the “view from everywhere,” and a radically new view of bargaining between different perspectives. And at the heart of the entire work is the clarion call for moral and political philosophers to take our deep diversity seriously. I count myself as a fellow-traveler, seeking, like Muldoon, to develop a “New Diversity Theory,” which appreciates not only the depth of, but the opportunities presented by, the diversity of our contemporary world.2 My disagreements with Muldoon are thus intramural ones, about the best way to articulate a large body of shared commitments and concerns.

1. The Priority of Discovery?

An important difference between our two approaches is that, while Muldoon’s point of departure is an expansion of John Stuart Mill’s justificatory framework (chap. 2), mine is an expansion of Rawls’s public reason liberalism. As Muldoon sees it, “Mill’s approach to experiments in living offer us an account of social discovery. On this kind of account, justification becomes subsumed to iterated discovery, which includes a permanent competition of perspectives” (30). “This,” he goes on to say, “is a more thoroughly empiricist (and evolutionary) model of political justification—rather than pointing to a regulative ideal and comparing ourselves against that a priori standard, we try competing approaches out, and see what works in our circumstances” (30, emphasis added). Muldoon is crystal clear that discovery and experimentation have “primacy” for political justification in a changing world (35). Thus the fundamental problem of “Rawlsian public reason”: it is “ultimately about justification, not about discovery” (29).

The language of “experiments” and “discovery” suggests a scientific analogy, and indeed Muldoon explicitly draws on current accounts of the division of cognitive labor in scientific inquiry (30). Now, as I understand them, models of the division of scientific labor typically assume diverse teams exploring different parts of an agreed-upon “scientific landscape.”

Scientists are imagined to be “hill-climbers” on an unknown “landscape.” The landscape itself is interpreted as a topic of scientific inquiry. The X and Y dimensions represent potential research approaches. The Z dimension represents the epistemic significance of any findings to be had given the research approach indicated by the (X, Y) position. . . . At the beginning of inquiry, scientists have no knowledge of the landscape—that is, they do not know anything about the comparative significance of any research approaches. They discover this only by traversing the landscape.3

These models assume that when one competent scientist reports the Z value of a specific coordinate (Xi, Yj), others generally concur. They are exploring essentially the same landscape in different ways. If the diversity of perspectives leads them to different search strategies on the same landscape, their diversity supports an efficient cognitive division of labor. However, if their perspectival diversity leads them to explore different landscapes—such that when Alf is at (Xi, Yj) he observes a value of 100 on the Z dimension while when Betty is there she reports a Z value of 0—their searches will not be of much value to each other.

Scientists sharing roughly the same paradigm are exploring roughly the same epistemic landscapes: they share the similar problems, standards, and categories such that when one discovers a solution to problem P others will generally agree that it is indeed a solution to P. The Hong-Page theorem to which Muldoon refers (52), has a similar feature: a diverse group of agents who have different ways of looking at a common problem, and who agree on the value of any given solution, will, under rather demanding conditions, necessarily find the best solution. Again, they share an agreement on the value of any point on the landscape. Given this, my worry should come as no surprise: in our deeply diverse societies, it is seldom if ever the case that we all share the same “epistemic-value” landscape about politics and justice. As I argued elsewhere, what one person considers an ideal point that perfectly solves the problem of justice (perhaps market socialism), another might see as a manifestation of grave injustice.4 Indeed, points that Alf sees as discoveries (say, a society of universal love without any self-interest) may strike Betty as simply impossible, so not scored at all. To be sure, in a diverse society some groups will share sufficiently enough “epistemic-value” landscapes with some others so that what one reports as a discovery will be taken up by like-minded others. I have called these “communities of moral inquiry”; these are critical features of free and diverse societies. Certainly some experiments of some quite different others really do constitute discoveries for me. However, only if social diversity is severely restricted will an entire society constitute a single community of moral inquiry, such that one group’s experiment will constitute a public discovery, which can be claimed to be publicly justified, showing “what works for [all of] us.” Contrast this to science, where the experiments of one team often do constitute common, public, findings about what works.

2. Objectivity

There is an obvious way to avoid this problem: hold that, after all, we really are searching the same landscape, even when we don’t know it. For any (X, Y) coordinate, it can be claimed, there is an objective Z score—what we might call the “true Z score.” In this vein Hélène Landemore and Scott Page appeal to the idea of an “oracle” who can announce the true values of points on the landscape.5 This brings political philosophy back towards the scientific model, for we are again searching a common landscape and seeking to discover the true value of various points, which we then can share with others. This is indeed in the spirit of John Stuart Mill’s understanding of experiments in living and the discoveries they yield. Mill was a perfectionist, and believed that individuality, intellectual development and fellow-feeling (such as national feeling) were features of a developed human being.6 The experiments of intelligent and mature humans would help us all discover the sorts of lives well-suited to the perfection of our nature, and we would ultimately converge on these. Thus, for example, Mill was convinced that experiments with different modes of industrial organization would lead intelligent workers to abandon the wage employment of capitalist firms in favor of new experiments in worker-owned and managed cooperative enterprises; in the end only the least intelligent and least energetic workers would remain as wage laborers.7

Muldoon’s complex analysis of objectivity as “The View from Everywhere” (chapter 3 of Social Contract Theory for a Diverse World) is thus critical in understanding his analysis of moral and political discovery and, by extension, his understanding of public justification. I cannot hope to do full justice to the complexities of this rich chapter in a couple of pages, but as I read it, eight claims are critical.

1. Like Mill, the aim is to provide a test that gives evidence about what is (objectively) valuable, good or right (47);
2. This test is to filter out, or guard against, moral relativism (55);
3. We have no direct way to test for objective correctness of moral principles (or value) (47);
4. (a) Beliefs, attitudes and interests are “correlated” with moral principles (47),

(b) Beliefs, attitudes and interests are “evidence” for our moral theories (47);

5. (a) “Perspectives . . . help make sense of our moral beliefs and interests” (52);

(b) Perspectives can be understood as “lines of support for beliefs” (54);

6. So by 4b, beliefs and interests support (are evidence for) moral principles, and by 5b perspectives are lines of support for beliefs.
7. The Master Epistemic Principle: The more perspectives (lines of support for moral beliefs that, in turn, support/are evidence for) moral principle P, the more confident we should be that P is (objectively) correct (re: 1 and 2).
8. “The goal [of the preferred aggregation procedure for determining objective value/moral correctness] is to determine the set of beliefs that have the most independent lines of argumentation supporting them [as per 7, the most perspectives], not those that are most widely held” (55).

Now my concern is whether an account of discovery based on correct or objective Z values along the lines of 1–8 can ground a plausible conception of what is publicly justified in a deeply diverse society.8 I have trouble seeing how: 1–8 express precisely the type of controversial metaethical view that Rawls (I think powerfully) argues that we must avoid in public justification.9 As far as I can tell, moral relativists are simply excluded from the justificatory public by 2. We cannot expect moral relativists to endorse principles which are justified via a discovery test intended to exclude moral relativism. More generally, the Master Epistemic Principle10 is itself highly controversial. While Muldoon stresses the number of independent lines of reasoning that lead to moral beliefs, a Christian might appeal to John 14:6: “I am the way, the truth, and the life: no man cometh unto the Father, but by me,” which rather suggests that one and only one route is worth paying attention to. There may be many paths to damnation, but only one to salvation.

I don’t think it is only relativists and Christians who might draw back from the Master Epistemic Principle—I worry that it is based on a controversial theory of reasoning and is unwittingly biased in favor of the intelligentsia. The crux of the principle is that the more different lines of reasoning we can find for a conclusion, the more confident we should be in it. The supposition is that the justification starts with beliefs which then, by inference, give us conclusions; the more inferential lines we can find, the more confident we should be in the conclusion. But a good deal of evidence indicates that reason often goes the other way around: we start out with intuitive conclusions for which we find reasons. We know that people are very adept at coming up with many lines of reasoning supporting erroneous intuitions.11 The more people reason on their own, the more lines of reasoning they find for their prior beliefs.12 The intelligentsia of a society are its professional reasoners, so in any society we should expect that there will be the most independent lines of reasoning for whatever their moral intuitions are. After all, their job in the cognitive division of labor is the production of increasingly refined and differentiated lines of reasoning for their intuitions. Think, for example, of all the different lines of reasoning supporting egalitarian principles of distributive justice in political philosophy. That professional philosophers start off with leftish moral intuitions almost guarantees the proliferation of leftist perspectives in our society. Whereas the populace is more content to take over a modest number of existing perspectives (and so each will be widely subscribed to), the business of the intelligentsia (a requirement for tenure?) is to arrive at new, often idiosyncratic, ones, albeit usually supporting the old intuitive positions. Unless we can admit into public justification the assumption that the intelligentsia is also more likely to be morally aware—not, I reckon, an admissible claim—the Master Epistemic Principle, and so claim 8, strike me as too controversial as basis for justification.13

3. The Priority of Justification

I thus find it hard to see how discovery and experimentation can have “primacy” for political justification—if that means justification to all the members of the public—in a deeply diverse world. A reasonable section of the public (e.g., the “moral relativists”) do not believe that there is a common moral landscape to be discovered, and even those who do accept some notion of the objectively correct “Z scores” deeply disagree about the method for uncovering them. These types of worries lead the Rawlsian to insist on the priority of justification over discovery of the moral landscape in thinking about political principles and institutions in a diverse society. Because we so deeply disagree about what is objectively correct (or best) and how to uncover it, deeply diverse societies cannot be organized on the basis of a competition to discover it. That, as I have been saying, is a matter for different moral communities to approach in their own ways. This, though, does not mean the basic moral and political constitution of a diverse society cannot be justified to all: drawing on their diverse perspectives, we can ask whether all members of the public have reason to endorse the basic structure of our social relations. That, I think, is why most readers of Muldoon’s book will focus on chapter 4, “Justice Without Agreement.” The innovative proposal of distributing rights through bargains between diverse groups, who reason from different perspectives, brings justification back to center stage.14 They do not agree what moral objectivity is to be discovered, yet seek common grounds for living together.

Muldoon, however, offers an alternative interpretation of the Rawlsian project. Rawls too, he suggests, adopts a view of correct moral reasoning and objectivity; and rather than Muldoon’s empirically informed “view from everywhere,” Rawls seeks moral discovery via a “view from nowhere.” “Rawls . . . opts for a procedure that . . . aims to strip away those features of ourselves that might bias us in our process of moral reasoning. The procedure Rawls has in mind is deliberation in the Original Position, behind the ‘veil of ignorance’” (39–40). As I see it—and I think Rawls is clear on this point—the aim of the original position is not for us to evaluate our society from a perfectly impartial and detached “nowhere,” but to develop a shared perspective of democratic citizens. It is not constructed from nowhere, looking down at our social world, but by “you and me” as democratic citizens, trying to identify a perspective (or, rather, what we might call a “partial perspective”) that we all share.15 As such, it must filter out any information that would allow a person to draw on parts of her perspective not shared by others. “The difficulty is this: we must find some point of view, removed from and not distorted by the particular features and circumstances of the all-encompassing background framework, from which a fair agreement between persons regarded as free and equal can be reached.”16 Indeed for Rawls, finding a suitable method to narrow our disagreements so that we concur in our judgments “normally suffices for objectivity.”17 In this way the original position as a device of justification establishes the basis of objectivity via the priority of justification—not the other way around.

4. The Discovery of Justification

Because Muldoon understands the original position as a view from nowhere, he depicts the principles that parties arrive at in the original position as “a priori” (30). As I have been arguing, I cannot see how Rawls’s principle of justice are knowable before experience; Rawls would claim that they are based on the shared experiences and political values of citizens in a democratic society. However, while overstated, Muldoon’s core point is sound: the point of view from the shared perspective of the original position is overly abstract and informationally impoverished. This, I think, is for two reasons. First, if the perspective is genuinely to be shared among all good-willed and competent citizens of a democracy, it must be abstract indeed, and so it is difficult to see how it can go beyond abstract principles or platitudes for social living. These are important, but at best they only identify the very broad contours of the terms of our moral relations. Rawls is only able to generate more substantive results from the original position because he implicitly assumes a fairly egalitarian perspective, and so in fact excludes a good portion of the democratic public.18 Second and relatedly, the theory is based on Rawls’s understanding of what is shared. The results in the inevitable biases of a single philosopher seeking to articulate a moral blueprint for the construction of social and political order that all members of an extensive, deeply diverse, society can endorse. Is someone with the limited life experiences and knowledge of any single philosopher really competent to devise such a plan for a deeply diverse free and open society?

The great merit of Muldoon’s pathbreaking book lies, I think, in his reflections about how we might discover, not the optimal, best, most adaptive, correct, or true, but the terms of association that we can all live with. Although discovery in a Millian sense is not prior to public justification, it is true that we must engage in an ongoing process of discovery to see what can be justified to all members of the public. Philosophic constructions are not up to the task. Hayek showed us that markets are ways to discover information, but he also insisted on the fallacy of thinking that the aim was to reveal the socially most valuable system of ends (or the system of ends with the most perspectives supporting it).19 What markets reveal to each individual is how to effectively secure her ends in a world in which others are trying to secure theirs. Or, to put it in terms of justification, each is searching for terms of engagement (“bargains”) that others find acceptable. This is not a society-wide competition of perspectives (30), but a search by perspectives for ways to reconcile their diverse ideas of an acceptable framework for social living.20 And here I enthusiastically concur with the message of Muldoon’s wonderful chapter on “Justice Without Agreement”: finding these terms is a bottom-up social process, not the discovery of any moral philosopher.