"Contractualism without Consensus: Pluralism and the Limits of Public Justification"
Abstract: Political contractualism promises an elegant solution to the problem of political legitimacy. On this view, coercive institutions are legitimate only when they can be justified to citizens by appeal to their own reasons. In Rawls’s phrase, “the question of justification [can be] settled by working out a problem of deliberation.” Political contractualism and its aim of public justification can thus be seen as an attempt to operationalize popular sovereignty and to make government “of, by, and for” the people precise. I model political contractualism as a device with three core conditions: representation, determinacy, and stability. I demonstrate that these three conditions are structurally incompatible; in a suitably diverse environment, any contractualist theory can achieve at most two by sacrificing the third. This is not an empirical observation about existing theories but a structural constraint that diversity imposes on any such theory. Rawls achieves determinacy and stability through idealization that weakens representation. Gaus preserves representation at the cost of indeterminacy. Muldoon secures representation and determinacy by giving up stability for perpetual renegotiation. Each approach succeeds precisely by failing on one essential dimension. This incompatibility reveals that the problem lies not in particular theories but in the ambition to ground legitimacy in consensus about justice itself. I argue that it can only be dissolved by changing targets and justifying second-order procedures for contestation rather than first-order principles of justice. I sketch an alternative account that grounds legitimacy in the contestability of political power rather than in consensus on principles of justice. The result is an open-ended model of political order that structures constructive disagreement without prescribing a single foundational consensus, and I argue that this approach is better suited to an open and dynamic society than traditional forms of contractualism.