Rawls J. Lectures on the History of Political Philosophy

Подождите немного. Документ загружается.

overlooks in Locke the notion of what I call “joining consent,” as opposed

to “originating consent.”

Again, Hume does not note the contrast in Locke between expressed

consent and passive or tacit consent, another difference that is important.

Locke says that anyone who has by actual agreement given consent to be a

subject of a government must remain so; while those who submit to a gov-

ernment simply because they own and enjoy land under its protection (tacit

consent), regain the liberty to join another government if they no longer

possess and enjoy the land. They may obey the laws and receive the protec-

tion of the laws, but are not actually members of the commonwealth un-

less they have entered into it by express consent (¶¶119–122).

A more important and fundamental aspect of Locke’s doctrine that

Hume fails to see, or at least fails to take account of in his argument, is that

it has two parts. In speaking about Locke’s social contract criterion, I men-

tioned that one part, the ﬁrst part, is that to be legitimate, a constitution

must be such that each person could have contracted into it from a state of

equal political jurisdiction. I discussed what is involved in that notion of

contracting “into”—not, of course, a very precise notion, but an important

element of Locke’s view which cannot be put aside.

The other part of his social contract criterion addresses the question

of when an existing, legitimate constitution binds particular individuals,

who are then full citizens and subjects of the regime. Locke here dis-

cusses joining consent, and he makes the distinction, discussed above, be-

tween express consent and passive consent. But the important point is

that if this joining consent is to be binding, it must be the case that the

form of the regime is legitimate (according to the ﬁrst part of the social

contract criterion). Locke is careful to say that promises extorted by supe-

rior force are invalid. He says it in ¶¶176, 186, 189, and 196 of the Second

Treatise. I presume he would say the same thing in the case of illegitimate

regimes. Passive consent, or express consent even, if they are as it were

forced, fall under the same comments that he makes in these paragraphs

about promises.

One should add as a consistent part of Locke’s view that individuals

have a natural duty to support a legitimate regime when it does exist and

when it is working effectively. This duty we might say arises from the fun-

damental law of nature and does not depend on anyone’s consent. Locke

[ 171 ]

“Of the Original Contract”

EXAM COPY

says in his account of revolution, when he is explaining how one can op-

pose the Crown, that to overthrow or alter a just constitution is one of the

great crimes one can perform. I assume that in order to justify that, there

would be an implicit appeal to the fundamental law of nature. So I am sup-

posing that in Locke, if one has a just regime, then there is a duty we all

have, regardless whether we consent, to comply with its laws; this is a conse-

quence of the fundamental law of nature.

So consider then Locke’s account of how the English people at any

given time could be bound to an existing regime, even if it originated in

force and violence at some time in the past. He is able to give an account of

that. His account would be that the present regime is legitimate if it has a

form that could have been freely contracted into from a position of equal

right, even if it actually reached its present form almost by accident or

through various changes over time. If it now has the correct form—one

that could be contracted into—then people are individually bound to it in

virtue of their natural duty, arising from the fundamental law of nature, to

support a legitimate regime.

If all this is right, then the really substantive issue of importance be-

tween Locke and Hume is whether Locke’s social contract doctrine, applied

to the form of a political regime, and being a criterion that is hypothetical,

would select as right and just the very same family of political regimes or

constitutions that would be selected by Hume’s notion of the general ne-

cessities and interest of society, or, in other words, his notion of utility. Is

Locke’s social contract criterion, the ﬁrst part of it, going to lead to the

same forms of regime being considered legitimate as will Hume’s principle

of utility? Or will they be different? That is one way to understand the re-

ally substantive issue between them. And Hume never really discusses that

issue. In fact he does not even seem to be aware of this fundamental mat-

ter. Hume is very effective in criticizing the notion of joining consent of in-

dividuals which is part of Locke’s general account of political obligation.

Or at least I think you should consider whether that is so. But Hume never

really discusses whether Locke’s criterion of agreement beginning from a

state of equal right, and his own criteria of general advantage, are going to

lead to the same form of regimes as being legitimate. These criteria off-

hand seem quite different. Certainly they don’t mean the same thing, so

one might assume that they would lead to different outcomes. You could at

[ 172 ]

hume

EXAM COPY

least assume they are different criteria in the absence of a lot of argument

to the contrary and explanation of both of the views, including what the

notion of utility is. We will consider this point in the next lecture. In the

meantime, you should think about whether or not these two criteria for a

legitimate regime are the same thing, or whether the notion of equal right

is going to lead to a difference with Hume’s view of utility.

[ 173 ]

“Of the Original Contract”

EXAM COPY

hume ii

Utility, Justice, and the Judicious Spectator

§1. Remarks on the Principle of Utility

As I was saying in the last lecture, the really substantive question between

Hume and Locke which comes to me as I read the essay “Of the Original

Contract” is whether Locke’s social contract doctrine, when applied as a cri-

terion to the form of a political regime, will select the very same family of

constitutions or regimes as legitimate or just that would be selected by

Hume’s principle of utility.

Hume, as I mentioned, never discusses, and in

fact, never seems to be aware of this fundamental matter. Furthermore, his

account of utility is extremely loose in that essay; it means simply the gen-

eral interests and necessities of society.

Now, in some sense, Locke’s criterion would include that principle.

That is, if people proceed from the state of nature to political society by

consent, with no coercion, etc., then one would suppose that those agree-

ments, freely entered into, would include the general principle of Hume’s

and promote the general interests of society. Therefore, one might want to

ask, “Well, what is the difference?”

Recall that in Locke’s system of institutional change, beginning from

the state of nature, there is a series of undertakings to which rational per-

sons consent freely and voluntarily. Each of these changes, in Locke’s view,

would be collectively rational, barring accident and catastrophe and so on.

So, we are assuming a sort of idealized process of such contractual agree-

ments. Locke plainly is assuming that it was collectively rational for every-

one to consent to, say, the introduction of money and the many other

changes that take place. So, beginning with the state of nature, a well or-

[ 174 ]

1. [Transcription of March 11, 1983, lecture, with additions from Rawls’s handwritten

lecture notes. —Ed.]

EXAM COPY

dered commonwealth with a legitimate regime must then, in Locke’s view,

improve everyone’s situation with respect ﬁrst to the state of nature, and

then to each of the subsequent stages. Therefore, Locke’s regime would

seem to satisfy Hume’s condition of answering to the general interests and

necessities of society. So, both principles, both Hume’s and Locke’s, are

stated in a sufﬁciently loose and general way that its hard to tell whether

and in what respects they are going to differ. Although, as I mentioned be-

fore, they surely don’t mean the same thing, and you might say their basic

foundation is very different.

Suppose we give a stricter sense to the principle of utility, and take it to

mean that a regime is legitimate if, and only if, of all the forms of regime

that might be possible, or that are available at some moment, or at some

time historically, it is that regime which is most likely to lead to, or most

likely to produce, the greatest net sum of social advantages (we might also

use the term “social utility”) at least in the long run.

We are imagining that you can in some way deﬁne the notion of the

“sum of social advantages.” Instead of talking about Hume’s “general inter-

est and necessities of society,” we’ve introduced the notion of the greatest

net sum of advantages, both now and in the future. Would this be the same

as Locke’s view or not? Again, it doesn’t sound the same. Take the case that

most concerns Locke in the Second Treatise, that is, the case of royal abso-

lutism, or arbitrary rule of the Crown within a mixed monarchy. Locke in-

tended always to exclude such a regime as legitimate, and his argument is

set up for that purpose. He argues that that form of regime cannot be con-

tracted into. Does the principle of utility as we have now stated it allow for

royal absolutism or not? One might say that it may in fact do so, but it

would require a lot of argument. It would depend on circumstances and

various contingencies, and it is not at all obvious that royal absolutism

would either be excluded or allowed.

I mentioned last time that in arguing against Locke towards the end of

the essay “Of the Original Contract,” and in assuming that Locke’s appeal

to promises is unnecessary, Hume simply denies what Locke asserts. He

doesn’t face up to the possibility of using the social contract as a test of the

form of a regime. In much the same way, Locke in turn simply denies what

Filmer asserts. (See Locke Lecture I on Filmer.) Locke is assuming that the

notions of contract, promise, and other notions are not to be derived, or at

least he doesn’t make any attempt to derive them, from the notion of the

[ 175 ]

Utility, Justice, and the Judicious Spectator

EXAM COPY

fundamental law of nature. So, we get a case again where there is not really

a confrontation of the two views at the most basic level.

Now, before saying more about Hume, I want to try to specify the utili-

tarian view in such a way as to make its principles appear at least to have

more precision than Hume’s general phrase, “the general interest and ne-

cessities of society.” To do this I am going to think of utilitarianism in the

classical sense of principles associated with Bentham and Edgeworth and

Sidgwick.

The basic idea is that one is going to deﬁne a notion of the good that is

independent from the notion of the right. That is, we introduce a notion of

the good, say as pleasure, or absence of pain, or some sort of agreeable

feeling, or as the satisfaction of desire, or the fulﬁllment of interests of indi-

viduals. If we care to, we can idealize that and say that the good is the satis-

faction of the rational interests, or the rational preferences, of individuals.

In saying that that is independent from the notion of the right, I mean that

we can explain the notion of pleasure, or absence of pain, or agreeable feel-

ing, or the notion of fulﬁllment or satisfaction of desire, or the notion of

the fulﬁllment of rational preference—we can introduce and explain all

those notions without saying anything about right and wrong. We can in-

troduce them independently of any notions that intuitively would be char-

acterized as having to do with right and wrong. So, if we say we are going

to maximize the fulﬁllment of desires, then that means that we would in-

clude evil desires as well as the good ones. There would not be any con-

straint coming from the notion of right and wrong on what those desires

might be.

The ﬁrst step, then, would be to introduce independently the notion of

the good; and the next step would be to deﬁne the right as that which maxi-

mizes the good. In order to get a traditional utilitarian view, the idea of the

good would have to take the form I have indicated: that is, it would have to

be pleasure, or the satisfaction of desires, or the satisfaction of rational pref-

erence. If we introduce another notion of the good, say that of human per-

fection, or human excellence, or something of that sort, then we would not

get a traditional utilitarian view, but what we might call a perfectionist view.

If we take the principle of utility and apply it to social institutions, we

would get something like this: that those institutions and constitutional

forms are right and just provided that they maximize the good, understood

in the utilitarian sense as either pleasure, or the fulﬁllment of desire, where

[ 176 ]

hume

EXAM COPY

we are summing the good of all individuals in society, both present and fu-

ture. We are beginning from the present time, considering what existing in-

stitutions might be, and summing the good over all individuals in this way.

Observe that, in this way of putting it, there isn’t any principle of equality

built in, and there isn’t any principle of distribution included, so there are

no constraints on how the good may be distributed, and there are no no-

tions of right involved. One is simply trying to maximize that sum. That is

how utilitarianism is understood in what I’m calling the “Bentham-Edge-

worth-Sidgwick view” (although one can best describe their view further so

that it includes a more hedonistic characterization of the notion of the

good). When we later come to Mill, I want to see whether his principle of

utility ﬁts this view of utilitarianism, or whether he has some more compli-

cated notion, as I believe he does.

§2. The Artiﬁcial Virtue of Justice

Let’s now look very brieﬂy at Hume’s aims in An Enquiry Concerning the

Principles of Morals (1751), as stated in Section I, and then turn to Hume’s

account of the artiﬁcial virtue of justice in Section III and Appendix III, and

elsewhere. To outline Section I, in ¶¶1–2 Hume asserts that moral distinc-

tions are real and are made by us in our judgments, and that this is a fact

not to be seriously denied. In ¶¶3–7 he states three pairs of alternatives that

explain this fact involved in present controversies, and then in ¶8 he fore-

shadows his own doctrine, which accepts the second alternative in each of

the three pairs. Then in ¶9 he discusses his theory of morals as an experi-

mental (or empirical) study (what we today would call a kind of psychol-

ogy).

Hume’s own view, as foreshadowed in ¶¶3–7 and 8, is as follows: (i)

First, moral distinctions are not known and applied to things by reason

alone (contra Cudworth and Clarke; cf. Hume’s footnote 12 in Section III,

¶34). Rather, they depend upon a peculiar sentiment. (ii) More speciﬁcally,

we recognize moral distinctions and have the ability to apply them, not via

deductive or inductive or probabilistic arguments, but from an internal sense.

Moral judgments express a response of our moral sensibility to the aware-

ness of certain facts from a certain point of view. (iii) Moreover, we concur

in our moral judgments, not because as rational and intelligent beings we

[ 177 ]

Utility, Justice, and the Judicious Spectator

EXAM COPY

grasp their truth, as we grasp the truth for example of the axioms of geom-

etry (as Cudworth and Clarke held). Rather, we concur in our moral judg-

ments because we share the same moral sensibility.

Now to comment on this: First, in the Treatise of Human Nature (1740),

Hume explained the operations of our moral sensibility via a complicated

theory of sympathy, set forth in Book II of that work. In the Enquiry he uses

however instead the “principle of humanity.” See his explanation of this in

Section V, ¶17, the footnote. [We will discuss the principle of humanity

later.] Second, in the ﬁrst instance Hume’s account of our moral sensibility

is epistemological. It explains how we know and apply moral distinctions.

The explanation of how we are moved to act from, or in compliance with,

these distinctions is a separate question. So you need distinguish then the

problem of knowledge and how we come to know moral distinctions, from

the problem of motivation and what moves us to act on moral distinctions.

Hume is mainly concerned with the former question.

Now I want to turn to Hume’s account of justice and say a few things

about that and contrast it with Locke’s view. Hume discusses justice in the

Treatise of Human Nature, Book III, Part II, “Of Justice and Injustice,” as well

as in his later book, Enquiry Concerning the Principles of Morals, Section III,

“Of Justice.” The way Hume uses the term “justice” must be carefully un-

derstood, because he isn’t using it in a contemporary sense. He is talking

about the basic order and structure of civil society, and, in particular, about

the principles and rules which specify the right to property. What Hume

calls “virtues” are qualities of human character and dispositions of people

to behave and to conduct themselves in a certain way. Justice as a virtue is

the disposition of persons to behave and to respect those rules which deﬁne

property and the other rules surrounding the notion of property. He is us-

ing the term “justice” in a rather narrow way. It is only one of many vir-

tues, many of them what he calls “natural virtues,” which operate by in-

stinct. Justice is perhaps the most important, along with ﬁdelity and

integrity, of what Hume calls the “artiﬁcial virtues”: those which “produce

pleasure and approbation by means of an artiﬁce or contrivance, which

arises from the circumstances and necessity of mankind.”

Hume’s principles of justice are, in effect, largely principles for the regu-

[ 178 ]

hume

2. Hume, Treatise of Human Nature, Book III: Of Morals, Part II: “Of Justice and Injus-

tice,” Sec. I.

EXAM COPY

lation of economic production and competition between the members of

civil society, as they pursue their economic interests. The basic rules of

competition, in Hume’s view, turn out to be essentially three:

First is a principle about private property, and this requires very roughly

that everyone be left undisturbed in the enjoyment of what they properly

possess. In order to deﬁne “properly possess” we have to introduce a num-

ber of other rules which specify the rights of ownership. In the Treatise,

Hume discusses a variety of such rules having to do with present posses-

sion, occupation, prescription (or long possession), accession and succes-

sion, and these rules come into play under certain circumstances.

For ex-

ample, in case the owner of property dies, in order to avoid controversy

about who is to come into possession, there have to be rules about inheri-

tance and the like.

The second rule of justice has to do with trade and exchanges of prop-

erty, and the idea is that there are rights over property that can be trans-

ferred under certain conditions.

The basic idea is that transfer can only

take place by consent. Hume thinks of the second principle as necessary so

that the holdings of property within society can be continually adjusted

over time according to the various interests and abilities of individuals, and

the various best uses that they are able to make of them. So we have to al-

low for the adjustment and transfer of holdings of property over time.

Hume’s third main principle pertains to contracts and the performance

of promises.

He thinks of it as more general and inclusive than the second,

which has to do with trade and exchange, although it also covers that in a

way. It covers agreements of all kinds, including agreements to future per-

formances.

We now have these three principles, which Hume thinks of as princi-

ples of justice. The ﬁrst one, you might say, views society in the form of an

association of owners, the second one views society in the form of a mar-

ket, and the third sanctions the general principle of contract and promises.

Together, Hume thinks of these three principles as regulating and specify-

ing the rules of economic competition and production between the mem-

bers of society, and they constitute the basic norms of economic relations

between the members of society. So, we can then say that a just person, on

[ 179 ]

Utility, Justice, and the Judicious Spectator

3. Ibid., Book III, Part II, Sec. III.

4. Ibid., Book III, Part II, Sec. IV.

5. Ibid., Book III, Part II, Sec. V.

EXAM COPY

Hume’s view (because he thinks of virtue as a quality of people—it trans-

fers back, you might say, from the institutional structure to the person) is

one who is disposed to honor these basic rules. Hume assumes throughout

his discussion that social institutions actually satisfy his principle of utility,

however broad and general that is. In other words, on the presumption that

institutions do in fact fulﬁll that principle, then Hume thinks of the just

person as one who is disposed to honor these basic rules. He goes on to say,

“justice is an artiﬁcial virtue and based on convention” in a sense that I will

explain later.

In Section III of An Enquiry Concerning the Principles of Morals, where

Hume talks about justice, his thesis is that public utility (that’s another term,

I take it, for the general interests of society—he uses a lot of different

terms, and his language is very loose)—public utility is the sole origin of

justice, and reﬂection on its consequences is the sole basis of its merits.

That is supposed to be put in contrast to the case of the natural virtues,

where public utility is perhaps one basis of their merit, but certainly not the

sole one.

What this thesis means to Hume is that the institutions of justice (I will

abbreviate them as property, transfer, and contract) would not exist, or be

adhered to, unless people recognized their public utility, and unless people

had a sense that these institutions were in the general interest. I take Hume

to be saying that we would not approve of these institutions unless we rec-

ognized that as general systems of rules publicly recognized and generally

acted upon by all, or at any rate by most persons, these institutions have

beneﬁcial social consequences and serve the public good.

As I mentioned in the last lecture, Hume calls justice an “artiﬁcial vir-

tue” because it is a disposition to adhere to a general system of rules recog-

nized to be for the public good. This system of rules is itself, so to speak, an

artiﬁce of reason, and that’s what the term “artiﬁcial” meant at that time.

An artiﬁce of reason was something that could be understood by reason

and in no other way. Moreover, the recognition that this general system of

rules has these consequences for the general good is itself something that

requires the use of reason.

Let me make a further point, contrasting the artiﬁcial virtue of justice

with a natural virtue like benevolence. The idea is that an individual act of

benevolence—being kind to someone, being kind to children, say, or to

people who need our help—does not require the conception of a general

[ 180 ]

hume

EXAM COPY