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
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He says, "hypothetical contracts do not supply an independent argument for the fairness of enforcing their terms. A hypothetical contract is not simply a pale form of an actual contract; it is no contract at all." (4) He draws an analogy with a game. While it may be true, he says, that one would have agreed to play by various rules had he been asked before the game began, it is not fair to enforce those rules against him if he had not actually agreed to them. Suppose you and I are about to play a game of Hearts and we agree that no hearts can be thrown on the first trick. If I then insist upon laying a heart on the first trick, I am acting unfairly. Suppose, however, we had not agreed that no hearts can be thrown on the first trick. If you were to insist, once the game began, that I cannot throw a heart on the first trick because I would have agreed before the game began that no hearts should be thrown on the first trick, then you are acting unfairly.
Now the fact that I would have agreed that no hearts should be thrown on the first trick, while it does not obligate me to refrain from laying a heart on the first trick, reveals something important about that practice. Assuming I am rational and have certain aims, the fact that I would have agreed to follow that rule shows that it is a reasonable rule. (5) In this situation my hypothetical consent demonstrates the reasonableness of the no-hearts-on-the-first-trick rule. If we maintain that fair rules are