Hypothetical Consent and Political Legitimacy

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ABSTRACT: A commonly accepted criticism of the social contract approach to justifying political authority targets the notion of hypothetical consent. Hypothetical contracts, it is argued, are not binding; therefore hypothetical consent cannot justify political authority. I argue that although hypothetical consent may not be capable of creating political obligation, it has the power to legitimate political arrangements.

Hypothetical Consent and Justification

A commonly accepted criticism of the social contract approach to justifying political authority targets the idea of hypothetical consent. Since only actual agreements are binding, the argument goes, citizens are not bound to obey their governments on the ground that, under circumstances different from the ones in which they now find themselves, they would have agreed to submit to its authority. (1) The purpose of this paper is to rescue hypothetical consent from this objection. I begin by distinguishing political legitimacy from political obligation. (2) I argue that while hypothetical consent may not serve as an adequate ground for political obligation, it is capable of grounding political legitimacy.

I understand a theory of political legitimacy to give an account of the justice of political arrangements. (3) I understand a theory of political obligation to give an account of why and under what conditions, citizens are morally required to obey the rules constituting those arrangements. The social contract tradition offers us hypothetical consent theories of both political obligation and political legitimacy, frequently neglecting to distinguish the two ideas. Likewise, the common objection to hypothetical consent theories — that hypothetical contracts do not bind — ...

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...vice of representation".

(14) For an argument that no contractual agreement on the two principles of justice occurs in the original position and that therefore the two principles are not justified by a contract, see Jean Hampton, "Contracts and Choices: Does Rawls Have a Social Contract Theory?" The Journal of Philosophy 77, 6 (June 1980): 315-38.

(15) As Jeremy Waldron maintains, "When we move from asking what people actually accept to asking what they would accept under certain conditions, we shift our emphasis away from the will and focus on the reasons that people might have for exercising their will in one way rather than another." Waldron, p. 55.

(16) This objection is due to Bruce Landesman.

(17) For a discussion of this distinction and the relation between the reasonable and the rational, see Rawls, PL, pp. 48-54.

(18) See Freeman, pp. 123-31.
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