Contractual theory14 or constitutional theory is a result of taking philosophical questions from an individual, or context specific case, to a wider understanding of how we can use normative theory to organize society, and more specifically how to find common ground for people to exist together. This is even if they don’t necessarily agree on first-order moral issues. Or as Dowding (2017) puts it:
“While people need not agree in their first- order moral views, they might be able to reach second- order agreement over how we manage first- order conflict (Barry 1995); or, in Rawls’s (1993) terms, theories of justice are political not metaphysical or comprehensive. To that end contract theory has been the major tool in modern political philosophy.” (2017: 209). However, all social contract theories that claim that their theory is a theory designed for mutual benefit, inevitably allow the strong to dominate the weak (Barry 1989), or they require some form of constraints. Harsanyi (1955;
1977), Rawls (1971) and Buchanan (1991) are all constrained by their theory by their own particular version of the ‘veil of ignorance’ (ibid 2017: 209).
As such we can call the Rawlsian approach a “Contractarian Deontological Theory”. Although critics like Harsanyi (1973) argues that the outcome of such agreements does not have to be deontological, and that some might choose utilitarian principles. Although this holds some merit, it does not necessarily refute the Rawlsian approach, nor by extension my own approach - as any theory would be susceptible to the same type of criticism. As normative theory stands today, any grand theory will be open for scrutiny and questions (Dowding 2017: 209-211). However, I disapprove of the overly negative picture often painted of normative theorization. Even if we accept that theories are incomplete, it is not the same as to say that they are without relevance; and as I have argued they
14 Contractual theory is here understood in the hypothetical sense.
19 can aspire to both further theoretical, as well as political developments. Rather they should be accepted at their own premise – and Rawls’ approach, and in all modesty my own extension, should by no account be immune to criticism, but I still uphold the argument that as far as normative theory goes this is the most promising path.
20
3 A defence for an extension of liberal thought
15“Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and success of liberty.”
– John F. Kennedy, Inaugural Address 1961.
As indicated in the introduction my normative extension of the how and why a theoretical approach that includes refugees16 as a conceptual group that is worthy of inclusion amongst the Society of Peoples should be considered not only as a theoretical goal, although the theory is the main
emphasis here, but also because I maintain that the theoretical and policy part of liberalism are, and should be, intertwined – therefore such an inclusion would not only be a matter of theoretical debate, but might also reinvigorate liberalism and also influence policymaking.
Essential both to the extension proposed, as to much of the discussion within liberalism, is the aspect of tolerance – and whether one takes an individualistic approach or a collective approach; the question of how far the principle reaches is a fundamental one. However, these are questions that deals with the instrumental side of the theory, because underpinning the whole discussion lays the central question that is worth bearing in mind during these deliberations; even if by introducing it already here could be considered as a way of “jumping the gun”, it underpins the whole reasoning behind the theoretical extension – Would we accept x millions of refugees in the world if they were to be included as equals under the ‘veil of ignorance’? Implicitly, that also begs the question if liberalism both theoretically, and more broadly speaking as a political idea, and as a political system, can accept the current status of leaving them on the margins of both domestic and international politics.
The slightest mentioning of liberal, or liberalism in a theoretical discussion inevitably risks
unwrapping a ‘Pandora’s box’ of worms when it comes to arguments, objections and discussions of what liberalism is and should be17. Considering the sheer number of liberal thinkers, and what we might identify as liberalisms rather than one liberalism. The interaction and debate here will
15 The idea, and theoretical contribution, presented here builds on an idea I first presented in a paper written as part of an IR-theory class in 2015. In search for a liberal normative approach to a not so liberal policy – The case of refugees in International Relations (Hansen 2015). The plan, stated already in 2015, has been to elaborate and build on the thoughts presented back then. Therefore, some overlap in arguments and perhaps even paragraphs is to be expected.
16 If not otherwise specified, refugees will hereafter refer to refugees and IDP’s collectively.
17 For an overview see for instance: Ryan, A. (2012) The Making of Modern Liberalism.
21 inevitably be limited, some might even say selective – seeing that the main objective is to present an alternative liberal approach to the central challenge of refugees, not to give a full and exhaustive account of the numerous quandaries within the liberal tradition. Nevertheless, some of them will be touched upon in chapter four.
The case of refugees is a question that obviously enters the realm of humanity but should not be reduced to a case of simply being a “humanitarian question”18. Just because a case enters one realm, does not mean that it does not also belong to others. The borderline cases, or categories that cross the traditional boundaries of how we think, are the most theoretically challenging, but also often the issues with the greatest potential for new developments. To apply the humanitarian aspect, and appeal to the consciousness of others might initially seem like the decent, and correct thing to do, but the case of refugees goes beyond that of humanitarianism. Not because one disagrees with the human suffering, but because this tends to legitimize a status of exemption - where normal political rules, values and norms need not apply. As such, an uncomplemented humanitarian approach risks devaluing a question that deserves a more in-depth discussion on a political level. Instead of accepting a status that leaves a large number of individuals on the margins of society, the discourse should be concerned with the inclusion of refugees; the fact that people for various reasons ends up as refugees is (in many cases) not only as a temporarily exemption, but a de-facto group of people that are in reality stripped of their social contract and the possibility of exercising their fundamental political rights. It is precisely the apparent discrepancy between official recognition and the lack of a (meaningful)political status, that opens up the possibility of hiding behind the clause of
“exemption”; that effectively inhibits a lack of action in terms of policy, as well as within political theory. It is against this background I propose to examine a normative theoretical approach that will encompass this group and lay the foundation for further debate. A central point here is therefore to distinguish between those that according to the theory deserve inclusion, and a place amongst the Society of Peoples, and those that should remain within a more limited humanitarian sphere.
A last, but significant point with this chapter is to propose a model for a procedure to determine whether a ‘people’ fulfil the criteria for inclusion under the ‘veil of ignorance’. Neither Rawls, nor any other theorist using the ‘veil’ have made any attempts at putting forward such a model.
Apparently, this is a silently accepted “Gordian knot”, better left alone. The claim will be made that taking this position is insufficient and effectively it also hampers the attempt of inclusion. Hence,
18 See for instance: Barnett, M. 2011 Humanitarianism, Paternalism and the UNHCR in Refugees in International Relations eds. Betts, A. and Loescher, G. 2011.
22 after a brief introduction to Rawls, this question will need to be addressed, albeit admitting that there might not be an ideal solution to the problem, before continuing to the extension itself. It will be argued that the original theory has a weakness in both ends. Hence, there is a need to construct a theoretical bridge to reach the hypothetical stage of the ‘veil of ignorance’, as well as a theoretical extension that opens up for the possibility of inclusion of refugees as ‘people(s)’. The theoretical inclusion of refugees amongst the Society of Peoples is at the heart of the thesis, while the normative policy implication is better explained in chapter five.