computers and streams, lakes, oceans and other bodies of water. These common pool
resources are typically large enough to make it difficult, if not impossible, to exclude
potential beneficiaries from use, but they also have the feature that the actions of these
potential beneficiaries can spill over onto the use by others, as the example of over-fishing
illustrates only too well, or as can be experienced by anybody who has tried to park their car
at a busy time of the day in a public car park.
There problems of common pool resources are often treated by social scientists as instances
of the prisoners’ dilemma, the classic example being Hardin’s discussion of the ‘tragedy of
the commons’. Ostrom’s approach, however, is not to look at these issues in an a priori way,
but instead to examine empirically cases in which such common pool problems have been
successfully managed (sometimes over centuries) by contrast with those cases in which they
have not been managed successfully. One of Ostrom’s examples will give the flavour of what
successful management involves (see Ostrom, 1990: 18-21). In Alanya in southern Turkey
coastal waters were being over-fished as a result of the over-capitalisation of the fleet and the
competition for increased yields. In the early 1970s the local co-operative in Alanya began
experimenting with allocating fish sites to local fishers, which consisted of the following
system:
1. Each September a list of eligible fishers was prepared.
2. Within the area normally used, all fishers and all usable fishing locations were named
and listed. The sites were so spaced that the nets in one site would not block the fish
in an adjacent site.
3. These named locations were in effect from September to May.
4. In September the named fishers drew lots and were assigned to the named fishing
locations.
5. From September to January each day each fisher moved east to the next location;
after January each fisher moved west one place.
Note that we have here an example of what Young called an institution: '... identifiable
practices consisting of recognised roles linked by clusters of rules or conventions governing
relations among the occupants of those roles.' (Young, 1989: 5). One of the ways that such
20
institutions operate is by providing norms that govern actions, thus enabling coordinated
human activity to take place.
Ostrom argues that the evolution of institutions, of the sort of which Alanya provides an
example, solve the collective action problems associated with the management of common-
pool resources. In essence, what is happening is that the institution is providing a norm of
behaviour for individuals, and action in accordance with that norm is sufficient to prevent the
free-riding that undermines collective action. Ostrom (1990: 90) herself offers an account of
the conditions that enable successful common-pool resources to survive a long time, some
time over centuries, and they include:
(1) Clearly defined boundaries: those entitled to use the resource must be identifiable.
(2) A fit between appropriation rules and local conditions.
(3) Individuals affected can participate in changing or modifying the rules.
(4) There is an ability to monitor compliance.
(5) There is a system of graduated sanctions in place.
(6) There are conflict resolution mechanisms.
(7) External authorities do not challenge the right to organise.
I think it not implausible to interpret such institutions as models for deliberative democratic
social contracts. They represent an enforceable agreement (5) among identified parties (1)
that allows for continuing participation (3) and (4) in which feasible solutions to common
problems have to be identified through deliberation (e.g., the scheme for sharing out the use
of the waters in Alanya) and in which conflicts about the application of the rules can be
discussed (6) and which represents a form of self-government (7). Of course, such
institutions do not have the scope of authority that social contracts in the full sense would
enjoy, but that would not of itself prevent their being models for such contracts.
Can we say anything general about the social conditions that are conducive to such a
contractual interpretation? I suggest that three conditions that are important: the situation
should be one where joint action is required by agents in order to achieve their individual
good, including the case where the individual good requires access to common goods; that
action is required in a situation in which there is rough equality of power among agents, none
of whom is capable of acting as a hegemon vis à vis the rest; and where the action in question
is ‘intelligent’ as distinct from being traditional, habitual or a mere reflex.
21
The condition of joint action is well illustrated in the common pool resources examples
discussed by Ostrom, but it is not restricted to them. Pure public goods, both domestic and
international, exhibit a need for collective action. A related but distinct case is provided by
the transitions to democracy literature in those cases of ‘pacted transitions’ in which
representatives of powerful social classes agree on terms of the democratic order. In all of
these cases, what is required is that the condition of the common good requires individuals to
give up the option of taking short-term individual gain for the common good.
Goods with some degree of publicness provide clear instances of joint action, but sometimes
the successful achievement of goods that are in economists’ terms purely private also require
some degree of joint action, so that the condition for the achievement of the good by one
requires the achievement of the good by (nearly) all. For example, there are cases where it is
hard or impossible to institutionalise markets in such a way that a series of bilateral contracts
yields a satisfactory outcome to the bulk of participants once the effects of those bilateral
contracts are aggregated together. Health care insurance provides an example of a good in
this category. With private insurance, each individual spreads the financial risk of his or her
own ill health around other individuals. However, as a result, the transaction between doctor
and patient is then mediated through third-party payer arrangements, the net effect of which is
to increase medical care inflation, so making the financial protection less valuable for many
individuals (as insurers seek to control costs through various forms of co-payment) or
unavailable for some. In these sorts of situations some way of ‘socialising medicine’, that is
to say some form of social insurance for health care, is required in order to avoid the adverse
effects of aggregated individual behaviour. The socialised institution itself then becomes the
joint good.
A second feature of social contract-like institutions is that they arise in situations of rough
equality of power. This element in the conditions of a social contract was identified in
Glaucon’s famous account of justice as contract in the second book of The Republic and is of
course a marked feature of social contract theory in the modern era from Hobbes onward. If
there were marked inequalities of power, then a hegemon could establish the conditions under
which some forms of production could take place. Thus, I do not think it meaningful to
analyse the form of government known in the Marxian formulation as ‘oriental despotism’ in
contractual terms. In these cases, control of a central resource by an elite enables them to co-
ordinate productive activity according to the goals they have in mind. This is not to say that
such despotic co-ordination is superior in productive terms to conditional co-operation under
conditions determined by participating individuals in a situation of rough equality of power.
Indeed, it may well be that such despotic arrangements inhibit the growth of more productive
22
social arrangements. Rather it is to say that such societies do not exhibit patterns of social
and political relations to which a contractual analysis can meaningfully be applied. In this
sense, they provide empirical examples of contrast cases.
The third feature of the contract analysis I have identified is that the actually existing contract
calls for the intelligent response of the participating individuals and it is here that the
openness of democratic deliberation is to be found.
When we speak of the need of a theory of intelligent response, there are a number of elements
involved. One respect in which this condition is meaningful is that it contrasts intelligent
action with actions that stem from tradition, habit or reflex. Consider Adam Smith’s (1776:
25-6) example of two greyhounds chasing a hare. As Adam Smith points out, they are not in
an exchange relationship; they are presumably acting on reflex determined by a combination
of sights, sounds and smells.3 It does not make sense then to apply to the notion of a
contractual relation to this case.
Traditional or habitual action provide more complicated contrast cases. If the members of a
community farm or fish in traditional ways according to the customs of their ancestors, then
they are not exhibiting the sort of political relations that could be an instance of an actually
existing contract. If the terms of their relationship are unreflectively appropriated from the
past, then contractual thinking does not define their relationship to one another, for though
they may be acting in ways that are conditional upon the behaviour of others – for example
over such matters as water abstraction or depletion rates – they are not acting in ways in
which they conceive of themselves acting jointly with their contemporaries from a conditional
point of view. If the account of their behaviour that the members of a society give to one
another and to outsiders is simply ‘this is the way that things are done around here’, then we
do not have a living social contract. Their behaviour instances a rule but cannot be said to be
following a rule (compare Hart, 1961: 54).4
3 This is not to endorse Adam Smith’s general claim that no species other than the human one enters
into exchange relationships with one another. Modern animal behaviour studies provides lots of
examples: think of cleaner fish around the mouth of the shark. 4 A marginal, and therefore interesting, case comes when there is some selective appropriation of
tradition by members of the community. I am inclined to say that if there is selective appropriation in
the light of circumstance, then we do have an attempt to modify the prevailing social contract, and
therefore in that sense contractual relations do exist among the members of the society. A social
contract does not have to be revolutionary to mark an improvement on the status quo. I think this may
carry the consequence that Burke’s conception of society as a contract between generations (which I
23
So far I have in effect defined intelligent social action in a way that is stronger than Weber’s
notion of social action in general. For Weber, social action was behaviour which took into
account the action of another ‘and was thereby orientated in its course’. Intelligent social
action does not merely take into account another – in other words it is not action that is
simply conditional on the action of another – but it is action that makes an intelligent choice
about what is to be done in acting. The notion of intelligence here is meant to capture the
claim that contractual co-ordination is not simply action for mutual advantage, but also action
in which the participants have a reason for co-operating because they can give themselves a
reason for co-operation (compare Kenny, 1975: 20). Intelligent, as distinct from reflex,
habitual or traditional, co-operation is such by virtue of its being reasoning co-operation. But
what sort of reasoning is involved?
At this point in the argument, I shall introduce an Aristotelian principle. Choice, according to
Aristotle in the Nicomachean Ethics (1112a, 16-17), is ‘voluntary action (hekousion)
preceded by deliberation (proaireton)’. On this account, choice involves reasoning and some
process of thought. What sort of deliberation might be involved in the choice of whether or
not to accept the terms of a social contract? In answer to this question, we can distinguish a
number of forms of deliberation, of which two are particularly important.
The first of these is what I shall call constitutive deliberation. The meaning of this notion can
be illustrated by reference to the Alanya example. In a situation of over-fishing, the members
of the community have to ask themselves what would constitute a solution to the problem of
over-fishing and how that solution might be implemented. Zoning the seas, and allocating
fishing slots by lot and then moving through a series of rotations of slots is a practice that
requires invention and specification. Even if the practice is borrowed from another
community or has emerged through a trial-and-error process, there is still some deliberation
involved in saying that it could be a solution to the particular problem that a community
confronts.
The second relevant form of deliberation is what may be called evidential deliberation. If the
choice of a practice to solve a common pool resource problem is an intelligent one, then there
has to be some reason for thinking that it is a solution, or even indeed that it may be the best
solution. Because solutions to common action problems have to be discovered and
take to have been intended as a reductio ad absurdum of social contract thinking) has some genuine
meaning if it is thought of in this light.
24
formulated, there is an inevitable process by which if the social contract is to be formed,
enough other participants in the decision process will need to be convinced of the merits of
the solution.
Although I have presented these two forms of deliberation separately, there is a sense in
which they have to be brought together for any particular common action problem. Since
action under a social contract is always conditional co-operation, each participant will need
assurance that other participants are able and willing to play their part in the scheme of co-
operation. Where the underlying structure of the common goods problem is that of an
assurance game, in which each participant is willing to co-operate if (enough) other
participants do, then the evidence requires is that of signalling that commitment in credible
ways. Where the underlying structure of the common goods problem is that of a prisoners’
dilemma, then signals of a willingness to co-operate will merely be ‘cheap talk’ and so the
evidence that is offered to make the realisation of the common good possible has to take a
form of pre-commitment conditional upon the pre-commitment of others. In these contexts,
evidential deliberation has to work on the material of constitutive deliberation if co-operation
is to be possible.5
Talking Social Contracts?
The task I have set myself in this paper is to provide an account of the relationship between
social contract theory and deliberative democracy that makes ideas of the social contract and
of deliberation premisses of a similar order in a normative theory. My strategy has been to
work inductively looking at an example of an institutional practice, as instanced in the Alanya
case, in which there are both contractual and deliberative elements. Someone might suggest
at this stage that the overall project is faulty, because I have not really identified a social
contract, even if I have identified elements of deliberation, so that the claim to have a talking
social contract is unjustified.
5 Notice that the evidential requirements give us a primitive notion of accountability, in the sense that
the signals that individuals send to one another are intended to be understood as offers of reliable co-
operation, and that they set standards by which the performance of individuals is to be judged. I
conjecture that the notions of accountability and public reason are strongly connected via constitutive
and evidential deliberation.
25
Such a criticism turns, I suggest, crucially on the question of whether the example of
deliberated social co-operation of the sort instanced in Alanya really be regarded as a model
of a social contract. I shall seek to answer that question specifically, before passing on to two
other points that I hope will buttress this positive answer, the first of which involves locating
this approach more broadly in social contract theory and the second of which is
methodological.
What is it, then, that makes the example of common pool resource regimes possible sources
of a model for deliberative social contracts? As far as the social contract element is
concerned, the key point in answer to this question is that these institutionalised regimes
embody the requirement that the good of individuals can only be achieved through forms of
co-operation in which the (bulk of the) members of the community participate on agreed
terms under conditions of a rough equality of power. From this perspective, it is misleading
to characterise a society as a co-operative enterprise to mutual advantage unless that society
does in fact satisfy the requirement that collective action be (to a suitable degree) to the
common good, and thereby to the good of its individual members. What makes a contract
social, as distinct from private, is that the advantage gained by each is conditional upon the
advantages gained by the bulk of the society. Within this way of thinking, the central element
of a social contract theory is the idea of this common gain over an existing status quo point.
The traditional idea of the state of nature in the canonical tradition of social contract is then a
special and limiting case of this more general phenomenon.
The deliberative element of the model is that the participating parties are not viewed as
making choices (whether selfish or altruistic) over a pre-defined range of options. In
particular, it is not imagined that we can conceive of the choice of social contract as resting
on a rational choice over outcomes specified for example as alternative income vectors in
which each individual has a certain probability (defined in the theory) of occupying one of the
positions in those vectors. The social contract choice is not a choice defined as one over
social states, if social states are defined as complete descriptions of alternatives. Rather the
constitutive function of deliberation is to achieve a more complete description of those social
states.
It may help to buttress this interpretation to consider where this account of social contract
theory stands in the way in which modern social contract theory has developed. Modern
social contract theory can be thought of as a theory that seeks to provide an account of
justifiable political principles. There are two important dimensions to the way in which the
theory is framed. The first is the knowledge of the parties and the extent to which they are
26
located behind a thick veil of ignorance or not. The second is in terms of the ground of
choice of the parties and in particular whether they are to be thought of as rational or
reasonable.
If we put these two aspects of contract theory together, we can classify approaches in terms of
the positions they take on each aspect. Thus, on some versions of contract theory, Harsanyi’s
(1976) is the clearest example, a veil of ignorance is imposed upon the hypothetical
contracting parties, and their agreement is formed in conditions in which those parties are
rendered ignorant of their own place and position in the society the basic structure of which
they are seeking to determine. However, the motivation of the parties is assumed to be
rational in the conventional decision theory sense, that is to say they are preference orderings
over certain alternatives, these preference orderings satisfying certain conditions such that the
choice can be rendered in terms of a cardinal utility function. This approach has the
advantage of seeming to provide an account of an impartial social contract using the device of
a theory of rationality often associated with self-interest. The price that is paid for this,
according to some critics, is that the idea of a social contract is lost because the contracting
parties can be thought of as just one individual. A more telling criticism is that the
axiomatisation of choice is itself a matter for decision, and one cannot rely upon a particular
axiomatisation as being self-evident (Weale, 2004: 89).
In other versions of the theory, the veil of ignorance is not put in place, and the parties
negotiate fully aware of their own position in society. Similarly, the motivation of the parties
can vary between that of rationality, often defined explicitly in terms of the standards axioms
of decision or game theory, and reasonableness, defined in terms of a willingness to seek
agreement with others. It is possible to go down the Gauthier route and combine self-
interested grounds of choice with full knowledge of the relative advantages of the contracting
parties, but the general drift of contract theory, I think it fair to say, is to soften the advantages
that contracting parties gain from knowing their own circumstances by requiring that their
grounds of choice be ‘reasonable’, so that they embody some minimal notion of fairness.
Hence the dominant traditions of theorising give us a choice between rationally grounded
contracts with a thick veil of ignorance or reasonably grounded contracts with a thin or non-
existent veil of ignorance. The version that I have offered is something of a hybrid, being
based on a theory of reasoning that moves away from rational choice in the formal sense but
without requiring strong motives of fairness or impartiality, whilst locating contracting parties
in a situation in which they bargain with the full knowledge of their circumstances. This
seems to give the self-interest associated with the rational choice tradition (though not in its
27
formal aspects) together with the full knowledge associated with the idea of the reasonable
contract.
This is in some ways an accurate characterisation, but the degree of self-interest imaginable in
the motivation of the parties would, I believe, be limited by a number of features of their
situation. In particular, the stipulative requirement of a rough equality of power means that
even if some achieve more advantage than others, the extent of such relative gain is limited.
Moreover, to the extent to which many actually existing social contract involve long-term
decisions by agents over situations in which they fact the prospect of random changes to their
powers, for example insuring oneself against the financial consequences of ill health, the
degree of self-interest is diluted by a more general perspective. When you contract, you
contract not just for how you are now, but how you might be in the future.
My concluding point is one of method. It may be urged that I have not provided a theory of
contract at all, but merely an example of legislation in an ongoing community to which I have
ascribe contractual features. In one sense, I have to plead guilty to the charge. The
construction of common pool regimes does look more like legislation than it does a founding
social contract. But the issue here is the choice between a deductive and an inductive
approach. One can do contract theory in the deductive way, and construct a model of social
contract reasoning in highly abstract terms. The model can then be applied to what are taken
to be suitable real world situations. In some versions of the theory, this can be nuanced as it
is in Rawls’s (1999) idea of the four-stage sequence, in which successive stages of the
sequence involve a progressive relaxation of the stringent conditions of the original position.
Yet, as well as displacing the issue of fit onto the characterisation of society, on which I have
already commented, the deductive approach provides no independent account of how a
theorist is to define the hypothetical contract.
In an inductive approach, by contrast, we start with a situation the features of which we can
observe. We abstract the features of the particular situation, seeking to understand what it is
about that situation, and situations it resembles, that might make it a good model for
understanding negotiation to a social contract. Insofar as we can find successful examples of
normative regimes, we can identify the conditions under which that institutional success is
achieved. I suggest that these conditions will involve constitutive and evidential deliberation
in a situation of conditional co-operation in which all seek to gain over a status quo in which
collective action is absent. Of course, any approach, whether inductive or deductive, can only
be judged by its results, but I do claim that there is a meaningful sense in which the inductive
approach shows what it would mean to have a talking social contract.
28
References
Arendt, Hannah (1965) On Revolution (Harmondsworth: Penguin Books, 1973).
Aristotle, The Nicomachean Ethics, translated by H. Rackham (Cambridge, Mass. and
London: Harvard University Press).
Barry, Brian (1979) ‘Is Democracy Special?’, in Peter Laslett and James Fishkin (eds),
Philosophy, Politics and Society: Fifth Series (Oxford: Basil Blackwell), pp.155-96.
Black, Duncan (1958) The Theory of Committees and Elections (Cambridge: Cambridge
University Press), now reprinted as Black, D. (1998) The Theory of Committees and
Elections, edited I. McLean et al. (Boston, Dordrecht and London: Kluwer).
Cohen, Joshua (1989) ‘Deliberation and Democratic Legitimacy’ in A. Hamlin and P. Pettit,
The Good Polity: Normative Analysis of the State (Oxford: Basil Blackwell), pp.17-34.
Dubiel, Helmut (1995) ‘Hannah Arendt and the Theory of Democracy: A Critical
Reconstruction’, in Peter Graf Kielmannsegg, Horst Mewes and Elisabeth Glaser-Schmidt
(eds), Hannah Arendt and Leo Strauss: German Emigrés and American Political Thought
after World War II (Cambridge: German Historical Institute, Washington D.C. and
Cambridge University Press), pp. 11-28.
Gauthier, David (1979) ‘David Hume, Contractarian’, Philosophical Review, 88: 1, pp. 3-38.
Gauthier, David (1986) Morals by Agreement (Oxford: Clarendon Press).
Gutmann, Amy (2003) ‘Rawls on the Relationship between Liberalism and Democracy’ in
Samuel Freeman (ed.) The Cambridge Companion to Rawls (Cambridge: Cambridge
University Press) pp.168-99.
Harsanyi, J.C. (1976) Essays on Ethics, Social Behavior, and Scientific Explanation
(Dordrecht: D. Reidel).
Hart, H.L.A. (1961) The Concept of Law (Oxford: Clarendon Press).
Kenny, Anthony (1975) Will, Freedom and Power (Oxford: Basil Blackwell).
Laslett, Peter (1956) ‘Introduction’, in Peter Laslett (ed.), Philosophy, Politics and Society:
First Series (Oxford: Basil Blackwell), pp. vii-xv.
Mayhew, David R. (2002) Electoral Realignments: A Critique of An American Genre (New
Haven and London: Yale University Press).
Mueller, Dennis C. (2003) Public Choice III (Cambridge: Cambridge University Press).
Ostrom, Elinor (1989) Governing the Commons: The Evolution of Institutions for Collective
Action (Cambridge: Cambridge University Press).
Rawls, John (1996) Political Liberalism: With a New Introduction and “Reply to Habermas”
(New York: Columbia University Press).
Rawls, John (1999) A Theory of Justice: Revised Edition (Oxford: Oxford University Press).
Smith, Adam (1776) An Inquiry into the Nature and Causes of The Wealth of Nations, two
volumes, (Indianapolis: Liberty Classics).
Vollrath, Ernst (1995) ‘Hannah Arendt: A German-American Jewess Views the United States
– and Looks Back to Germany’, in Peter Graf Kielmannsegg, Horst Mewes and Elisabeth
Glaser-Schmidt (eds), Hannah Arendt and Leo Strauss: German Emigrés and American
Political Thought after World War II (Cambridge: German Historical Institute, Washington
D.C. and Cambridge University Press), pp. 45-58.
Weale, Albert (2004) ‘Contractarian Theory, Deliberative Democracy and General
Agreement’, in Keith Dowding, Robert E. Goodin and Carole Pateman (eds), Justice and
Democracy: Essays for Brian Barry (Cambridge: Cambridge University Press), pp.79-96.
Ward, Hugh and Weale, Albert (2010) ‘Is Rule by Majorities Special?’, Political Studies, 58:
1, pp. 26-46.
Weber, Max (1947) The Theory of Social and Economic Organization translated by A. M.
Henderson and T. Parsons (New York: Oxford University Press).
Young, Oran (1989) International Cooperation (Itahca, NY: Cornell University Press).
