Chapter 6 focuses on the political structure of a rational state. In the Philosophy of Right, by handing the bulk of the state’s political power to unelected agents, Hegel is in effect compromising the reconciliation of particular and collective interests he regards as essential to a rational political order. However, his wariness of democracy is more than a mere relapse into some pre-modern, reactionary standpoint. This chapter argues that Hegel is right to denounce the atomism favoured by mass electoral systems, which tend to reduce the citizens’ political identity to that of individual voters, but that he is wrong to dismiss mass democracy altogether. His critique is overly severe because his conception of democracy presupposes the liberal logic of civil society, which he attempts to sublate in a strictly political manner. As this chapter seeks to show, the atomism he argues against is best avoided not by limiting democracy, but by extending it to the economic sphere. In a democracy that is both political and economic, individuals are no longer mere atoms, but part of collective social units organized around commonly held goals.

Rousseau casts the social contract both as a genealogical account of how governments arise and a prescriptive account of how they ought to be made. He can also be read as casting the social contract in a critical role: showing how society would organize itself in certain counterfactual circumstances. A merely hypothetical contract can serve the critical role of reconciling us to our actual circumstances while at the same time specifying what reforms are demanded. Rousseau’s social contract creates a general will, volonté générale, which is not an aggregation of separate wills, nor is it simply the immersion of several selves into a “hive mind.” It is what each wills, even those who disagree with the majority, which announces what the general will wills. Especially interesting is the act by which the general will arises: Citizens abstract from their own selves and situations and surrender all their rights to the political community. And “since each gives himself entirely, the condition is equal for all, and [thus] no one has any interest in making it burdensome to the rest.” Rousseau’s social contract requires there be a civil religion intolerant of those who believe their own faith to be the unique way to salvation.

The increasing acceptance of marquee “liberal” doctrines such as liberty of conscience, limited government, and universal adult suffrage occurred mainly during a period in which social contract theory was dormant and other philosophies – Hegelianism, Marxism, and utilitarianism –largely prevailed in the West. If Rawls’s social contract apparatus can deliver something beyond mere “yea-saying” to the liberal consensus, one could confidently say that contract doctrine has helped. Substantive political equality might be that something, but its delivery is still contested.

Rawls expounded “a theory of justice that generalizes and carries to a higher level of abstraction the traditional conception of the social contract.” His theory applies to society’s basic structure, a system of productive cooperation over generations. The state of nature was reconfigured as an “original position” which “incorporates certain procedural constraints on arguments.” The “parties” in the original position have general knowledge but no knowledge specific to themselves: their strengths, weaknesses, values, desires, social position, and so on. The “parties” choose principles that will maximize their fund of “primary goods,” or all-purpose means – means useful to all, whatever their particular interests, talents, etc. Two principles would be chosen: a maximum-equal-liberties principle, and a principle governing the distribution of opportunities, wealth, and income. These are in “lexical” order: equal basic liberties, then fair equal opportunity, then the “difference principle,” viz. distribute so to maximize the resources of the least-advantaged class. The chapter describes the “fact of reasonable pluralism” the social contract must accommodate, and the “well-ordered society” the social contract is to stabilize “for the right reasons,” securing the three great achievements of the tradition: toleration, limited government by popular consent, and “the winning of the working classes to democracy.”

In the Feyerabend lecture Kant already presents his claim that the principle of right is a principle of coercion, that is, that the state is authorized to use coercion to counteract an unauthorized violation of universal freedom. Such state use of force is a hinderance of a hinderance to freedom. But how is this coercive power specified in particular circumstances? I examine three extreme cases in which a state might be authorized to use its coercive power against its own citizens to cause their deaths: capital punishment, eminent right in emergencies, and war. This paper will show that Kant offered specific explanations of particular limits to legitimate state power, rejecting different limits offered by Beccaria (capital punishment), Achenwall (eminent right and war), and Vattel (war). These assessments reveal that Kant was of several minds regarding whether in any social contract a citizen could rationally consent to these uses of coercion and whether actual or only hypothetical consent was required. I suggest that only later in the published Doctrine of Right did Kant work out his position consistently.

Final Chapter 9 explains why ‘free’ market competition under regulatory capitalism underlies widespread unrecognized regulatory violence and argues that the cultivation of competitive desire (cf. Girard 2000) succeeds at the expense of what have become ‘sacrificeable’ patients. After a discussion of suggestions of altering the social contract between science and publics, and the observation of the prevalence of competitive desire in the context of political debate in the UK, I explain how, instead of regulatory capitalism based on competitive desire, a vision of caring solidarity applying the generative principle of creative desire (Adams 2000) would be more conducive to policies aimed at medical and public-health targets. I argue that guidelines rooted in ‘caring solidarity’ can largely prevent the violence of regulatory competition that has become endemic to regulatory capitalism. By avoiding high-risk strategies that are oriented on one-size-fit-all solutions expected to generate high-profit margins, the proposed vision of caring solidarity is more conducive to sustainable health. The rudiments of such a model, I suggest, would use the generative principle of creative desire, building on local notions of wisdom incorporating virtue ethics of prudence and justice.

Scholars have observed that Schopenhauer did not develop much of a political philosophy but have failed to recognize that this is a deliberate deflationary strategy. Schopenhauer’s aim was to circumscribe the function of politics narrowly and assign it a place in a broader range of human responses to the agony of existence. However, his attempt to differentiate politics from religion and the state from the church led to contradictions. One the one hand, Schopenhauer favored a strong state that could control social strife and noted that political leadership can rely on religious justifications to ensure stability. On the other hand, he observed that state-affiliated religious institutions often eliminate critical perspectives on their doctrines by silencing philosophical reflection, an attitude he could not accept. Schopenhauer thus ended up with an ambivalent conception of statehood as simultaneously protective of life and property and damaging to free inquiry.

This chapter contains answers to the Questionnaire on Constitutional Democracy for Chinese Liberal Intellectuals, which covers the basic concepts and institutional designs of constitutional democracy. China’s most pressing task is not making a new and better constitution, but rather formulating social contract through implementing the existing constitution, which does pay lip service to many political natural law precepts. Unlike many admirers of the American presidential system, I advocate for a Westminster-type parliamentary system, which has largely been borrowed by the current Chinese constitution, to be embedded in a federal framework for future China.

The century-long predicament of Chinese constitutionalism lies not in its constitutions, but in the complete absence of social contracts as the legitimizing foundation of any constitution. Although the Xinhai Revolution did not shed much blood, it was carried out very much in a way opposed to the spirit of social contract. In less than two years after the establishment of the First Republic, the ill-fated political cooperation between Yuan Shikai and the Nationalist Party was fatally disrupted. The Treaty of Versailles ignited the patriotic fire overnight and set the stage for Communist ascendance. The frequency analysis of keywords from the Xinhai Revolution to the May Fourth Movement showed that anti-contractual concepts such as revolution, Leninism and socialism had been soaring, and had become a popular trend by 1919, leading to the establishment of the Communist regime in 1949.

This chapter delves into the concept of legitimacy and introduces the readers to key debates on regulatory legitimacy. The concept of legitimacy has been extensively studied by scholars from various academic disciplines, including political theory, legal theory, political science, sociology and management studies. The resulting body of scholarship has, however, tended to remain in disciplinary siloes, making the study of legitimacy difficult to navigate. Chapter 11 offers first an exploration of different legitimacy claims that justify why individuals recognize an authority and its rules as legitimate. The chapter then moves to regulatory legitimacy.

This chapter seeks to elucidate the confusing rhetoric about rights at the time of the American founding. Influenced by social contractarian principles and common law traditions, American elites generally thought about rights in three ways. Inalienable natural rights, such as religious conscience, were aspects of freedom that individuals could not rightfully surrender to the control of the body politic. Retained natural rights, often summarized as life, liberty, and property, were rights that individuals voluntarily retained upon entering into a political society but that were regulable by law in promotion of the public good. And fundamental positive rights, such as the right to a jury trial, were rights that individuals acquired only upon the creation of political society. By recovering these categories, the chapter attempts to show not only the malleable and multifaceted nature of eighteenth-century American rights talk but also its overall intelligibility.

This chapter proposes an alternative to the more economically driven historiography on French Enlightenment rights talk, by highlighting the role of philosophers, most notably Locke and Rousseau. It was their insistence on the inalienability of liberty that defined the philosophical discourse of rights in the eighteenth century. Locke repudiated the standard argument by natural lawyers (from Grotius to Pufendorf) that we could alienate our freedom, either by selling ourselves into slavery or subjecting ourselves to an absolutist sovereign. In both of these cases, we violate our right to self-preservation, which as a dictate of natural law is sacrosanct. Montesquieu similarly rejected Roman arguments for slavery in the name of self-preservation. And Rousseau insisted on the inalienability of liberty, through an operation (the social contract) that transforms natural liberty into political freedom. These arguments, too, informed the revolutionary understanding of human rights.