Such invocations of the Social Contract are a favorite philosophic basis whereby apologists for expansive government power rationalize governmental encroachments on peaceful activities. It is such rhetoric that inspires
Miami Herald columnist Leonard Pitts, Jr. He
denounces laissez-faire individualists for “selling the delusional notion that taxation and regulation represent the evisceration of some essential American principle. They wax eloquent about what great things the free market and the free American could do if government would just get off their backs.” Instead, Pitts preaches, such laissez-faire individualists should concede that “government is not our enemy. Government is the imperfect embodiment of our common will.” Note that the “common will” to which Pitts alludes is the same as Rousseau’s “general will.”
This sort of thinking is also expressed by political filmmaker Michael Moore. The reporter John Stossel pointed out to him that the State collects taxes at gunpoint. Moore then
replied, “No, it doesn’t, actually. The government is of, by, and for the people. The people elect the government, and the people determine whether or not they’ll allow the government to collect taxes from them.”
I shall explain how this Social Contract narrative is wrong, point by point. I shall try to make each point — compared to my usual lengthiness — relatively brief.
1 of 8. No, Man’s Natural State Wasn’t Statelessness
The essential trait of “government” is that it is a party within a society that exercises a near-monopoly on the use of force, wielding such force to enforce its will or its rules. That is the meaning
as defined by Max Weber. On that interpretation, a primitive version of “government” is older than our species
Homo sapiens sapiens.
This arrangement manifests itself in great apes living today. Bonobos are not as fanatical about it as chimps are, but it is
visible even in groups of bonobos living together. A smaller party within the larger social group of great apes has dominance. One alpha male and some trusted associates are able to impose their will on the other apes in that grouping. They have the first pick over sexual partners. The dominant male can even determine how much meat other apes receive after a hunt. That can plausibly be seen as a primitive form of political patronage. It is plausible that our ancestors, preceding
Homo sapiens sapiens, had a similar social hierarchy. If “government” is a smaller party within the society exercising a near-monopoly on violence to impose its will and rules, then
the ancestors of Homo sapiens sapiens had at least a makeshift form of government.
It was never the case that anarchy was the default. The most primitive form of “government” did not come about as a consciously organized contrivance to remedy that anarchy. Nor was solitude the default for humans.
And the first-ever formalized governments for our species maintained their power by imposing themselves upon their subjects against the subjects’ consent. Herbert Spencer
observes that people surrendered to rule by the first formalized governments “unconditionally; and...when the ruler afforded protection” to any subject of his “it was because he resented the attempt” by rival governments “to exercise over one of his subjects a power similar to his own...”
The default for
Homo sapiens sapiens was to have a society and a government. Our choice is not whether or not to have a government, but what sort of model of government we shall adopt or maintain. Moreover, the presence of social interaction and governmental action were always prerequisites to the institution of any and every contract. Hence, society and government themselves could not have been the consequence of some grand, primary contract.
2 of 8. War-of-All-Against-All As the Opposite of Freedom: There Is No Liberty/Security Trade-Off
As John Locke and Thomas Jefferson pointed out, a condition of lawlessness in which everyone can murder anyone else is not perfect freedom, but the perfect absence of freedom. A constitutional liberal republican Night Watchman State, by contrast, makes for a society in which anyone can do anything that is peaceful, and in which the State takes action only against the initiation of the use of force. A constitutional liberal republican Night Watchman State, then, is the condition that maximizes liberty. Indeed, it is Perfect Liberty.
As Locke
explicates, to replace a lawless War-of-All-Against-All with a constitutional liberal republican Night Watchman State would be “to preserve and enlarge freedom... ...where there is no law, there is no freedom: for liberty is to be free from restraint and violence from others, which cannot be where there is no law:...freedom is...a liberty for every man...to dispose, and order as he lists, his person, actions, possessions, and his whole property,...not to be subject to the arbitrary will of another, but freely follow his own.”
After all, how could anyone be free if any random person could come and “domineer over him?” And contrary to those who invoke Hobbesian Social Contract Theory, there is no dichotomy between liberty and security. Liberty happens to be the most important form of security: security against the initiation of the use of force. Hence, Jefferson
reminds us, “...the idea is quite unfounded, that on entering into society we give up any natural right.”
3 of 8. The Purpose of Real Contracts Is to Protect Private Property Rights, But Hobbesians Invoke Their Fake Contract to Rationalize the Violation of Those Same Private Property Rights
Still, there are many who who cite Hobbes and Rousseau. They say that living in society means you signed a Social Contract ceding authority over your private property and contracts to the State.
As Rousseau himself articulates it,
Each member of the community gives himself to it, at the moment of its foundation, just as he is, with all the resources at his command, including the goods he possesses. ...as the forces of the city are incomparably greater than those of an individual, public possession is also, in fact, stronger and more irrevocable, without being any more legitimate... For the State, in relation to its members, is master of all their goods by the social contract, which, within the State, is the basis of all rights... ...the right which each individual has to his own estate is always subordinate to the right which the community has over all... [Emphasis added.]
That argument is self-contradictory. The purpose of legitimate contracts is to protect your private property rights. Suppose you say you will give me object
X in exchange for me paying you $10,000 a month later. You give me object
X and, a month later, I skip out on paying you. You would consent to parting with object
X only under the condition I pay you the $10,000 eventually. Therefore, I obtained object
X from you against your consent. That is why for me to renege on my agreement with you is, in practice, to steal from you.
Hence, the purpose of a written contract is protect private property rights. Yet the invokers of the Hobbesian Social Contract proclaim that there is this supreme contract which is more important than your private property rights — and which properly overrides them. This overriding of your private property rights authorizes governmental confiscation of your belongings in the form of compulsory taxation. It likewise authorizes government regulation to veto and overrule what you may peaceably do with your own private property.
Rousseau anticipates my reply from above. He
thereupon offers this illogical counterargument: “...the possessors, being regarded as depositaries of the public good...have, by a cession which benefits both the public and still more themselves, acquired, so to speak, all that they gave up.” Rousseau’s argument is that by transferring final authority over their belongings to the State, peaceful individuals are having their belongings protected from extortionists. Therefore, goes this argument, the property owners have lost nothing: they are merely giving their own property back to themselves.
If Rousseau were correct, then the transaction would be superfluous. The property owners would retain their private property just as much by not relinquishing any control over it to the State. Moreover, if this were purely beneficial to property owners and voluntary, then the State would not exercise any violence-backed laws to compel its own control over — or seizure of — private citizens’ belongings. The citizens would turn over this control to the State without being motivated to avoid the threat of any statutory penalties upon those who decline to relinquish that control. Yet Rousseau preposterously asserts that you gain control over your private property by relenting control over that same private property at the point of the government’s guns.
U.S. Sen. Alexandria Ocasio-Cortez
advances an assertion similar to Rousseau’s. “[..I]n a democracy,” she pronounces, “the government is
us. ...the government is The Public, and The Public decides what is good for itself.”
In my essay
“Exposing the Fallacy of the Presumed Collective,” I examine the rhetorical tactic that Sen. Ocasio-Cortez here deploys. An individual makes choices for herself, but a collective “public” does not. Sen. Ocasio-Cortez conflates an individuals’ decision-making with “the public” in order to conceal what is going on. When “The Public decides for itself” in this context, it amounts the use of the government’s guns by a voting majority to impose its own “decision” on a civic minority that has not consented to such a “decision.”
An outlook far more rational than that of Hobbes and Rousseau comes from George Mason, a U.S. Founding Father. Mason’s Virginia Declaration of Rights, after which the U.S. Constitution’s Bill of Rights modeled itself,
acknowledges “all men...have certain inherent rights, of which, when they enter into a state of society,
they cannot, by any compact [
‘compact’ meaning contract]
, deprive or divest their...enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety” (emphasis added). As I stated earlier, the extent to which you are in a constitutional liberal republican Night Watchman State is the extent to which you have relinquished no liberty or rights at all.
4 of 8. By Becoming Something Other Than a Night Watchman State, the Government Instigates the Breach in the Supposed Social Contract?
John Locke’s
Two Treatises of Government and Thomas Jefferson’s Declaration of Independence are often considered to be in the tradition of Social Contract Theory. Thomas Paine argues in that tradition when, in
Common Sense, he
writes that every man “finds it necessary to surrender up a part of his property” to the State “to furnish means for the protection of the rest,” and resulting in most people “consenting to leave the legislative part to be managed by a select number” of representatives. “Here then is the origin and rise of government...” James Madison, father of the U.S. Constitution, is also in that tradition when
he avows that “all power in just [and; it was an ampersand] free Govts is derived from compact,” a compact here meaning a contract. John Jay, who would later become the USA’s first Chief Justice,
writes in
The Federalist No. 2 that “whenever and however” a government “is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers.”
Another writer said to be in this tradition — one preceding Locke and Paine and Jefferson — is John Milton, more famous for
Paradise Lost, with
his work from 1660 A.D.,
The Ready and Easy Way to Establish a Free Commonwealth. Even W. Rhys Roberts’s English translation of Aristotle’s
Rhetoric states “the law itself as a whole is a contract...” Despite their being placed in the category of “Social Contract theorists” with Hobbes and Rousseau, there is an important aspect of the arguments from Milton, Locke, Jefferson, Paine, and Madison that actually subverts the message of Hobbesian Social Contract Theory.
Again, Hobbesian Social Contract Theory states that simply by being born and participating in Society, you consent to an implicit contract relenting to obey every ordinance and statute, no matter how asinine any of them are. This means that if you engage in any civil disobedience, you are the troublemaker who initiated the use of force that is contract breach. Thus, by sending armed men after you, the oppressive State is merely retaliating. As we saw earlier, Immanuel Kant
delivered this same argument.
Whatever praise they may have had for Hobbes, it is the case that Milton, Locke, and Jefferson contradict the Hobbesian argument. They say that they only entered the Social Contract under specific terms. Those terms were that the government ruling them would be a constitutional liberal republican Night Watchman State that allowed for anything that is peaceful and which punished only the initiation of the use of force. Thomas Jefferson
expresses that the one proper model of government understands, “No man has a natural right to commit aggression on the equal rights of another, and
this is all from which the laws ought to restrain him...” (emphasis Jefferson’s).
According to the Milton-Locke-Jefferson interpretation, it is the case that when the State goes beyond the function of a Night Watchman State and then micromanages the private property and private dealings of peaceful people, it is the State itself that instigated the breach in the Social Contract. On that interpretation, it is rebellion against the State that is justified retaliation.
Preceding these thinkers, Aristotle
observes, “We do not regard ourselves as bound to observe a bad law which it was a mistake ever to pass...” John Milton cites this same Aristotle’s
Politics in
proclaiming that as State officials have historically “abus’d thir power, and governments grew larger,” the civilians were correct in “deposing thir tyrants...”
John Locke’s Second Treatise of Government makes plain that when the government becomes something other than a constitutional liberal republican Night Watchman State, taxing civilians severely and micromanaging their private property,
the officials in charge have “put themselves into a state of war with the people...” And Locke’s argument
continues that by reneging on their contractual commitment to liberty, these officials “forfeit the power people had put into their hands...” On those grounds, civilians are “thereupon absolved from any farther obedience” to the government. And we know
the argument of the Declaration of Independence.
But, of course, it is silly to try to determine if the Milton-Locke-Jefferson side is more correct than the Hobbes-Rousseau side. Ultimately they are arguing over a document that does not exist and never existed. The U.S. Constitution itself does not meet the criteria for a contract. Its being a terribly important legal document does not make it a contract. These philosophers, therefore, are arguing over the attributes of a figment of the imagination — and a vaguely described one at that. Herbert Spencer
is blunter than the rest: “Before submitting to legislative control on the strength of an agreement alleged to have been made by our forefathers, we ought surely to have some proof that such agreement was made. But no proof is given. ...there never was such a contract.”
5 of 8. The Social Contract As Void, Not Because There Is No Written Copy of It, But Because You Are Bound to It Before Its Terms Are Made Clear to You
This brings me to a common libertarian rebuttal against Hobbesian Social Contract Theory, a rebuttal I find inadequate.
Citing nineteenth-century anarchist Lysander Spooner, many libertarians
quip that they dare the Hobbesians to show them their signature on a copy of the Social Contract.
As Julie Borowski sarcastically
puts it, “I would like a copy of the social contract that I supposedly signed for my records. Anyone know where I can find it?”
The implication is that since these libertarians did not put their pen to the bottom line of any such formal document, they cannot legitimately be committed to it. This argument is premised on the notion that a contract must be written out to be a valid contract to which participants must be bound. Such a retort is insufficient. Common law
properly recognizes that a contract does not have to be written out to be a valid contract that courts can rightfully enforce. There are
oral contracts. They are rightfully binding even if the parties rely merely on their memories as they argue over it in small-claims court. There are common-law marriages and other
estoppel contracts in which a contractual arrangement is implied by participants’ reciprocal actions, not verbalized promises. A contract being notarized strongly improves its chances of being enforced in court, but notarization is
not always needed in every instance.
However, these unwritten contracts still possess an important attribute lacking in the supposed Hobbesian Social Contract. It is that a valid contract — even an implied one —
must make its
terms clearly accessible to a participant prior to the deal being sealed. Moreover, once these terms were presented, every participant of the contract had the opportunity to reject the arrangement prior to the arrangement's execution. And yet any and every government will enforce its laws upon you absent of your being informed of any of the provisions of a Social Contract from which the government ostensibly derives its legitimacy. Hence, if your government derives its powers from a Social Contract, then that contract is forced upon you under duress. And that
actually voids and invalidates that contract as rightfully enforceable.
Note that your ostensible signing of the Social Contract is often invoked by Hobbesians when they proclaim that the Social Contract rightfully authorizes the government to micromanage and overrule the contractual terms you have negotiated with your employees concerning financial compensation and working conditions. That is, Hobbesians cite an imaginary and fake contract as superseding and legitimately vetoing the enforceability of actual contracts you have negotiated.
6 of 8. If a Man Would Have the State Violently Enforce His “Social Contract” As It Would a Real Contract, His “Social Contract” Should First Have to Meet the Criteria Required of a Real Contract
At this point, the Hobbesians can reply,
You misunderstand. It is true that a normal business contract must meet particular criteria to be valid and enforceable. But the Social Contract need not meet those requirements. The reason is that we never said it was a literal contract. We simply call it a contract as a metaphor or analogy to help people understand the reciprocal relationship between a government and its citizens. The Social Contract is still what legitimizes our government regulations over your body and belongings, though.
The proper rejoinder to that is this. You say that if I violate your Hobbesian Social Contract, the State is right to send armed men after me, just as a State would properly do if a court found that I had breached an actual contract. If you admit that your Social Contract is not a real contract, then you should likewise admit that it’s not as legitimate to try to enforce it with armed government agents as a real contract is.
7 of 8. Mere “Residence" in a Country "Constitutes Consent” to Its Alleged Social Contract?
A final point must be made about this fake contract. Again, Rousseau
asserts that mere “residence” in a region “constitutes consent; to dwell within its territory is to submit” contractually to every new ordinance or statute it may impose in the future. Following from that premise, Hobbesians assert,
The Social Contract is not imposed on you under duress. This is because, through your actions, you do demonstrate that you implicitly consent to it. That action is: remaining in the country. You could leave this country and relinquish citizenship easily — and with impunity — and yet you do not. From this, we can only conclude that your remaining in this country is your implicit signing of the unwritten Social Contract.
As noted above, that argument is at least as old as Plato’s accounts of dialogues between Socrates and other Athenians. Plato quotes Socrates
putting it to his conversation partner Crito,
