I have previously written (1, 2) of the ethical problems of trying to justify governmental actions by appealing to the idea that there is a “Social Contract.” I especially warn of the horrors that come with the interpretation advanced by Jean-Jacques Rousseau and Thomas Hobbes. The alternative interpretation of Social Contracts that is promoted by John Locke, Thomas Jefferson, Paradise Lost author John Milton, and Aristotle is more benign and pro-liberty, but remains ultimately inadequate. In reality, having a morally-just constitutional liberal republican Night Watchman State does not hinge upon any sort of Social Contract.
 |
| Creative Commons license |
The big-governism interpretation of the Social Contract, as advanced Rousseau and Hobbes, is implicitly a rebuttal to any free-enterpriser’s objection to intrusive governmental action. We free enterprisers advocate a constitutional liberal republican Night Watchman State. Free-enterprisers recognize what is the fundamental distinction between action that is governmental versus action that is nongovernmental. Civilians are supposed to be peaceful. True, sometimes the government can delegate some authority to specific private citizens to carry out specific forms of violence. That is what the Confederate States of America did for private slaveholders — delegate to them the authority to wield violence against slaves. But, for the most part, except for such cases, violence by private citizens is unlawful. Hence, when Private Citizen A initiates the use of force against Private Citizen B or her private property, it is proper for the government to apply retaliatory force against Private Citizen A.
In contrast to private citizens, the ability to threaten and exercise violence against those who oppose its will, is inherent to the institution of government. If you break the government’s laws, the government will punish you. The more you resist compliance in receiving the punishment, the more the government will escalate the degree of physical coercion. That applies even if the initial penalty is a civil fine. Someone who consistently refuses to discharge a civil fine is deemed to be In Criminal Contempt of Court. The government does send armed men after those who are in criminal contempt. Someone who resists police too vigorously will be met with violence. That is the reason for deaths that come from altercations with police.
The institution of government is in contrast to the peacefulness that is expected of private civilians. As noted by Mohandas Gandhi, the very nature and job of government — as an institution — is to threaten violence on those who oppose its will. And this violence by the State is at least tacitly authorized by a large enough proportion of the citizenry. That tacit approval is part of the Social Contract argument of Rousseau and Hobbes. However, as we shall see, that tacit authorization is not as strong a foundation for ethical argument as Rousseau and Hobbes presume it to be.
Governmental action is ultimately enforced at gunpoint. For that reason, we free-enterprisers caution that governmental action must be applied only sparingly. Governmental action is only justified properly in response to violence against person or property that someone has started. The State is right to intervene against physical battery, and to stop and punish rape and murder. It is also to intercede against one party poisoning another, whether this poisoning is intentional or not.
Moreover, you cannot live your life peaceably and sustain yourself if others can exercise force to deprive you of control over your physical possessions. Hence, a State is right to penalize property damage, vandalism, and theft. The category of “theft” properly includes violation of a content-creator’s intellectual property rights. Fraud, contract breach, and even defamation are indirect methods whereby a perpetrator deprives innocent victims of their-needed control over their private property. Consequently, the State is right to quash fraud, contract breach, and defamation.
What makes a contract breach so wrongful is pertinent here. The wrongness of an actual breach of contract, after all, is invoked implicitly in support of the version of the Social Contract foisted by Rousseau and Hobbes.
Suppose that Steve and I forge a contract. Steve agrees to relinquish ownership over his car to me. In exchange, I perform a peaceful service for him. First Steve hands me the car keys and I drive off with his automobile. Then I never perform the service. The ultimate result, then, is theft. It is physical coercion in two respects. First, Steve relinquishes control over the car to me only upon fulfillment of a particular condition: that I perform the service. In the absence of my fulfillment of the condition, I am physically possessing and maneuvering the car against Steve’s consent.
And there is a second, more subtle, use of force. Steve handing me the car keys was only willful on the condition that, upon the the mutually-agreed future date, I perform the task Steve wanted. As I failed to perform the service, Steve handing me the car keys was ultimately not something to which Steve consented. Here, Steve placing the keys in my hands was a form of physical force — I manipulated Steve into making bodily movements that did him harm.
When the government comes after someone for having breached contract, then, the government is merely retaliating against the party that started the force. This understanding of contracts, as we shall revisit, is twisted in the version of Social Contract ideology that is propounded by Rousseau and is implicitly invoked by modern politicians like Alexandria Ocasio-Cortez.
Rousseau’s Social Contract Rationalizes That You Authorized Every Imposition, and Therefore These Are Not Impositions
Beyond contracts, the sad truth is that much legislation, even in voting democracies, is not to counter the initiations of the use of physical coercion. Nay, the legislation targets nonviolent people, and that means the government is the perpetrator instigating the force. Suppose you are alone in the privacy of the home that you own, and you smoke a joint. And suppose that marijuana is illegal where you live. And imagine that police are sent to apprehend you over this. This is an instance of the government instigating the force upon an innocent person.
And that happens with governmental controls over many commercial transactions. Suppose Jake and I have an arrangement. The law is that no one is to be paid for work for less than $15 an hour. Yet I agree to work for Jake for $4 per hour. Jake and I are not harming anyone physically. Yet insofar as the law is enforced, the government is tasked with threatening punishment upon Jake.
Here is the rebuttal from the version of Social Contract theory by Jean-Jacques Rousseau and Thomas Hobbes. It is as follows. You, sir or madam, think that if you disobey the law but do not hurt someone else’s life or belongings directly, that the State is the party that is starting the violence upon you. You think the government is starting the fight and violating your consent. You think that if you are being peaceful in paying someone an agreed-to wage that is less than the legally mandated minimum wage, that is okay because all parties consented. Likewise, you believe that if you smoke a joint in private on land that you own yourself, even as that is unlawful, it is still the case that all pertinent parties consented. But no, that is not the case.
The Rousseauian version of the Social Contract theory continues. It says that by being born into, and living in, society, you tacitly sign an implicit contract with the rest of society. In this implicit contract you agree to conform to every ordinance and statute enacted. And, Rousseau says, this agreement on your part to follow every law — no matter how misguided you personally judge that statute or ordinance to be — rightfully overrides all your personal rights to life and belongings.
Rousseau’s Social Contract Rationalizes That You Authorized Every Imposition, and Therefore These Are Not Impositions
Beyond contracts, the sad truth is that much legislation, even in voting democracies, is not to counter the initiations of the use of physical coercion. Nay, the legislation targets nonviolent people, and that means the government is the perpetrator instigating the force. Suppose you are alone in the privacy of the home that you own, and you smoke a joint. And suppose that marijuana is illegal where you live. And imagine that police are sent to apprehend you over this. This is an instance of the government instigating the force upon an innocent person.
As stated in an English translation of Rousseau’s French, living in society is “the total alienation of each associate, together with all his rights, to the whole community...” This “alienation” from total autonomy is “without reserve, the union is as perfect as it can be...” The reason is that the “constant will of all the members of the State is the general will...” Ultimately “The citizen gives his consent to all the laws, including those which are passed in spite of his opposition, and even those which punish him when he dares to break any of them.”
Agreement with that argument comes from Thomas Hobbes, Immanuel Kant, Auguste Comte (who coined the word altruism), Plato, and Romans 13. 1–7.
Yes, continues the argument, by living in society you tacitly agreed to obey every law, as foolish as you may perceive any of them. That includes laws against smoking marijuana privately on land that you own. Should you do that, you instigate a breach of contract. You have violated the contract you have made with the rest of society. Hence, when the government comes after you, the government is not the party that has ignited the use of force. A far as the use of force goes, you started it. On this interpretation, the State penalizing you is only your just deserts. This argument is what I call “The Social Contract Song-and-Dance.”
There Is an Implicit Mutual Understanding Between Government and Governed, But That Is Not a Contract
Rousseau and Hobbes are correct that there is always an at-least-tacit mutual understanding between the government and the governed. Suppose that Ted is the government’s chief executive, and Mike, Wade, and Joe are under Ted’s jurisdiction. Then Ted takes police action against Mike. Ted has Mike apprehended. And suppose that Wade and Joe are aware of what Ted is doing to Mike. But, like the rest of the people under Ted’s jurisdiction, both Wade and Joe refrain from violently coming to Mike’s aid against Ted.
Indeed, this sort of implicit mutual understanding between government and the governed, is something that exists in all governments, no matter how oppressive. That implicit mutual understanding existed between the dictator Idi Amin and the Ugandans he oppressed. That implicit mutual understanding also exists between a mafioso and the small businesses from whom he extorts money. It also exists in intimate-partner abuse, between the abuser and the abused. In all of these cases there is an implicit mutual understanding, and Rousseau and Hobbes ignore the actual reason why the governed people refrain from resisting the government. It is not that the governed people necessarily find themselves morally condoning the government’s behavior deep down in their hearts. More often than not, it is that these governed people are simply complying under duress.
And that can apply to the above scenario with Ted imposing his will on Mike as Wade and Joe look on. Suppose Mike smoked a joint on his own land, despite smoking a joint being illegal. Maybe Mike paid another consenting adult a wage that was below the assigned minimum. Ted, as government official, is the party instigating the force. If Wade and Joe privately sympathize with Mike, but lift no finger to defend him, it is because they, too, are fearful and cowed into submission to Ted.
The Modern First-World Version of Rousseau’s Social Contract Argument Adds “Democracy” and the Distortion of the Idea of Consent As Something Offered Collectively
Modern politicians in the First World are at least somewhat aware of objections like the one I have made above. For that reason, modern politicians who repeat Rousseau’s argument will emphasize two other components that Rousseau did not place as much emphasis on.
Former President Barack Obama and U.S. Sen. Alexandria Ocasio-Cortez have invoked such a collectivist version of the Rousseauian Social Contract. They did so to rationalize their intrusions about what individuals can do with their own private possessions.
Obama explained how he would set straight the right-wingers who cry, “I need a gun to protect myself from the government.” As this is a democracy, Obama continued, it is myopic for you to distinguish yourself from the government, as if you and the government that imprisons you are separate entities. Remember, he said, “the government is us. These officials are elected by you. . . . I am elected by you. . . . It’s a government of and by and for the people” (emphases Obama’s). Therefore, when Obama placed restrictions on your guns, it was not Obama overpowering you. No, it was your own will being done upon you.
Likewise, Sen. Ocasio-Cortez tells you, “[...I]n a democracy, the government is us. ...the government is The Public, and The Public decides what is good for itself” (emphasis hers).
She was speaking about business regulations and new taxes. Yet that logic is equally applicable to the scenario where the majority votes to maintain criminal penalties for smoking marijuana in private on your own land. The government that comes after you for smoking marijuana . . . is us. In effect, that very same government . . . is you. The government coming after you in this instance is only The Public — which is you — deciding what is good for itself.
President Obama and Sen. Ocasio-Cortez are far from alone in invoking “democracy” and social collectivism in this Rousseauian Social Contract argument. At the newspaper The Miami Herald, regular columnist Leonard Pitts, Jr., waves off people who “wax eloquent about what great things the free market and the free American could do if government would just get off their backs.” He asserts that governmental penalties on you is your own will visited upon you. “Government is the imperfect embodiment of our common will.” Observe that the “common will” that Pitts mentions is what English translations of Rousseau phrase as the “general will.”
And the filmmaker Michael Moore agrees. The TV reporter John Stossel once pointed out to him that the government ultimately enforces its statutes at gunpoint. To that, Michael Moore retorted, “No, it doesn’t, actually.” The reason why the U.S. government cannot impose its will on you is that the government is us. And that means the government is you. As Moore phrases it, “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 do anything that it does, punitive or otherwise.
There are many flaws in the these Rousseauain Social Contract arguments. I exposed the fallacy of the broader Rousseauian/Hobbesian argument in the essay “Bound to the Social Contract Under Duress.”
Then we come to the assertion that having a voting “democracy” justifies every statute, as all the voting citizens are a collective, which means the government punishing you is just your own will being enacted upon you. That argument came from even more convoluted rationalizing. I explain its wrongness in the essay “Exposing the Fallacy of the Presumptive Collective.” Importantly, that essay explains how we know it is that decisions are made by individuals, not collectives, and of how unanimity consists not of a collective but is an instance of individuals, each choosing privately, to come together to act in concert.
Here, in the blog post you now read, I want to expose the wrongness of the collectivist presumption of Obama and AOC in a manner far simpler than I did in my other essay. It is that AOC does not even apply her own Social Contract argument consistently. And this is for a very good reason.
Throwing Rousseau’s Social Contract, “Democracy,” and Collective Consent Back at Alexandria Ocasio-Cortez
There are many state governments in the USA controlled by the Religious Right. And, to the extent that they engage in forms of suppression of voters from particular demographics, these states are not as democratic as they should be. But, for the most part, these states are still overall democratic in AOC’s understanding of the term. It is not as though the voting districts of New York, which AOC represents, are substantially better. And in the states controlled by the Religious Right, state governments have democratically ratified and enforced statues that initiate the use of force upon private individuals. That is is the case with abortion bans. It is also the case of threatening punishment upon parents for the alleged misdeed of allowing their transgender children to obtain the gender-affirming care that they need.
And Sen. Ocasio-Cortez correctly objects to these statutes as violations of rights, as of initiations of force on peaceful people. When the U.S. Supreme Court’s majority enabled state governments to outlaw abortion, Sen. Ocasio-Cortez hollered, “People will die because of this decision.”
She also correctly said that for Texas governor Greg Abbott to punish parents for letting their kids have gender-affirming care is an attempt to “control people who are not cisgender men.” She concluded that anti-LGBGTQIA2S+ measures, such as by Gov. Abbott, are “hurting people across the country.”
I agree with all of her assessments there. But the problem is that these measures are the result of democracy. It is illiberal democracy, yes, but still democracy in terms of voting majorities enacting what they claim to be the common will. This is the result of the same process of voting by what AOC calls “The Public” — the democratic process that Sen. Ocasio-Cortez invokes as morally unassailable when it enacts the sorts of impositions that she wants.
U.S. Supreme Court justices are not elected directly by the majority of registered voters. However, they come to power as a result of the representative democracy that AOC has upheld. Potential justices are nominated by a chief executive who was elected democratically. And these candidates are approved for the Supreme Court by those of whom the general voters had elected democratically to represent them in Congress.
Thus, the very Rousseauian rationalizations employed by AOC and Obama can be thrown back at them.
AOC complains about these individual rights being violated. But if any Texans voice the same objections as AOC, Gov. Greg Abbott can repeat Obama’s own words for these Texans. Any Texan who does not like the actions of Abbott and other anti-queer officials can be reminded: “the government is us. These officials are elected by you. . . . I am elected by you. . . . It’s a government of and by and for the people” (emphases originally Obama’s). Ergo, Gov. Abbott can retort that these measures against queer people are just the will of the collective general public . . . which means it is even the will of the queer people themselves.
And then there are AOC’s own words: “[...I]n a democracy, the government is us. ...the government is The Public, and The Public decides what is good for itself” (emphasis originally hers). In this case, Religious-Right voters can tell AOC that the state-level abortion bans and the hostility toward queer people is just The Public deciding what is good for itself.
Conclusion
Of course, I do not condone abortion bans or these state actions against transgender people.
The point here is that if there was any merit to the Rousseauian rationalizations of AOC, President Obama, Michael Moore, and Leonard Pitts, then their argument would have to apply consistently. Yet AOC talks as if the rationalization does not apply when state governments use the democratic process to undertake these actions that she correctly identifies as wrongful. And although AOC will not phrase it this way, these actions are wrong because they are indeed instances of voting democratic majorities imposing their will on individuals.
No, AOC, even in democracies it is the case that, to the degree that democratic voting is prioritized above the laissez-faire liberal principles of the Night Watchman State, the majority can and will oppress the minority. No, AOC, no majority vote over legislation on economic actions is The Public deciding what is good for itself. That is because there is no Public beyond the individuals that comprise it. The individuals of The Public frequently disagree with one another over what is the best sort of lifestyle. Therefore it is best that insofar as these people disagree on something so important, they be able to leave one another be. That means the State does not intervene. Merely as a form of dispute resolution, some democratic votes may properly be used in determining which willing candidates shall enter public office. But democratic votes are never ethical justification in having the power of the State overrule what people do peaceably in their own personal lives with their own wealth.
Let us, then, reexamine the addition of invocations of “democracy” and collective consent to Rousseau’s Social Contract argument. It starts by acknowledging that you may say that you were minding your own business until the voting majority imposed its own will upon you. And the voting majority’s will is enforced at gunpoint. But when collective consent is invoked in the Social Contract argument, it blurs the distinction between you and the voting majority. It says the voting majority is not divided from nonvoters or the voting minority. Nay, it continues, there is but one unit — the collective — and therefore the legislative or judicial outcome is what “The Public decides...is good for itself.”
That argument is really just a pretentious way of saying that might makes right. More specifically, the message is that the might of the majority makes right, as its greater number overpowers the minority. And, to cover up that this is about some individuals overpowering others, the majority and minority are nebulized together. The outcome is said, by Alexandria Ocasio-Cortez, to be what “The Public...decides its good for itself.” AOC has lost all moral authority, then, when she protests in horror about how voting majorities in other U.S. states perform actions that both she and I abhor.
The individual deserves freedom. Therefore, it is true that no individual should be ruled over by a mob that tries to override the voters and install Donald Trump in a coup as dictator. And it is also true that it is your sacred right, as an individual, to go about your personal and economic affairs peaceably — not to be put to a vote by any public.
For further exploration:
* “Bound to the Social Contract Under Duress”
* “Exposing the Fallacy of the Presumptive Collective”
There Is an Implicit Mutual Understanding Between Government and Governed, But That Is Not a Contract
Rousseau and Hobbes are correct that there is always an at-least-tacit mutual understanding between the government and the governed. Suppose that Ted is the government’s chief executive, and Mike, Wade, and Joe are under Ted’s jurisdiction. Then Ted takes police action against Mike. Ted has Mike apprehended. And suppose that Wade and Joe are aware of what Ted is doing to Mike. But, like the rest of the people under Ted’s jurisdiction, both Wade and Joe refrain from violently coming to Mike’s aid against Ted.
In this instance, there is an at-least-tacit mutual understanding between two parties: (1) Ted and (2) Wade-and-Joe. Wade-and-Joe at-least-tacitly agree with Ted that Ted will be able to enforce his will upon all residents as Wade-and-Joe employ no physical force of their own to counter Ted’s will. Thus, when I say there is an implicit mutual understanding between the government and the governed, this is what I mean. It is that both parties know what behavior is expected of the other in this arrangement, and neither party will undertake dramatic action to change this arrangement.
I agree with Rousseau and Hobbes that there exists this implicit mutual understanding between an administration and those its reigns over. And, for many people, observation of this implicit mutual understanding makes it seem plausible that working government and civilization gain their legitimacy from adhering to something that resembles an underlying contract. Even if the arrangement is not exactly one, people assume, the resemblance is close enough to a contract justify the use of that word to describe it. Insofar as a contractual agreement is valid, after all, there should be a mutual understanding between the parties involved.
However, contrary to Rousseau and Hobbes, this implicit mutual understanding should not be confused with contractual consent. Rather, when it comes to fulfilling the conditions needed for a contract to be sound, the presence of mutual understanding is necessary but not sufficient.
The Modern First-World Version of Rousseau’s Social Contract Argument Adds “Democracy” and the Distortion of the Idea of Consent As Something Offered Collectively
Modern politicians in the First World are at least somewhat aware of objections like the one I have made above. For that reason, modern politicians who repeat Rousseau’s argument will emphasize two other components that Rousseau did not place as much emphasis on.
These modern First-World politicians say that our having a “democracy” is what especially justifies the Rousseauian Social Contract. They combine this appeal to “democracy” with their own presumption that consent is not something offered or withheld by any individual, but is instead something offered or withheld by some collective of society. That presumption is based on the broader premise that decision-making, in general, is something that is not done by the individual but instead by some collective of society. (This notion that the unit that makes decisions is a social collective, rather than the human individual, is one I refute in further detail here.)
The new version of the argument goes like this: Maybe it is true that, contrary to that monarchy apologist Thomas Hobbes, there is no actual Social Contract between a king and his subjects. Not one peasant had any say in whom the next monarch should be. Most monarchies are hereditary, after all. But in our times, we live in a democracy in which adults can vote. We can vote for representatives who draft the laws and enforce them. And the officials whom we elected are also the ones who appoint and confirm judges for our courts. Sometimes there are even ballot initiatives on which we, the citizens, can vote directly on what a law is to be. Maybe the majority of people votes that anyone who has been caught imbibing marijuana on her own private real estate should be criminally charged. Furthermore, maybe the minority of voters has voted against this law.
The argument goes on: once this statute is enacted, it is not the case that individuals in the majority are imposing their wills on the individuals who are in the minority. Nay. There is one body-politic, one people. The outcome of the vote is, to employ a term of Rousseau’s, the “general will” of that one body-politic. Maybe you want to smoke a joint in private on land that you own. And maybe you voted against the statute that criminalized such an action. If it was a ballot initiative, you may have voted against it directly.
You may even have voted against the statute indirectly if the statute was the result of a vote by a legislative body. If that was what happened, then when you voted on which lawmaker would represent your district, you made sure to cast your ballot against the incumbent whom you knew would vote to maintain the criminal ban on cannabis.
But, the argument concludes, you forget that you are just part of the greater collective of the body-politic. In the vote, the collective decided for itself that it would criminally punish the smoking of marijuana. And as you are just part of the collective, it follows that, for all practical purposes, you yourself decided for yourself that smoking marijuana should be illegal. And now we find that you opted to inhale the weed on your own land anyway. Well, the State comes after you. It was not that you were minding your own business, and then the government started the violence on you. No. It was you who has inflamed this contract breach, breaking your contract with the collective. And as you are part of the collective, you even broke your own promise to yourself to follow all the laws. Therefore, when the government manhandles you, it is not some majority of individuals imposing their will upon some recalcitrant individual. It is better than that — you are with the collective, and therefore the punishment inflicted upon you is actually your very own personal will being visited upon you.
Throwing Rousseau’s Social Contract, “Democracy,” and Collective Consent Back at Alexandria Ocasio-Cortez
There are many state governments in the USA controlled by the Religious Right. And, to the extent that they engage in forms of suppression of voters from particular demographics, these states are not as democratic as they should be. But, for the most part, these states are still overall democratic in AOC’s understanding of the term. It is not as though the voting districts of New York, which AOC represents, are substantially better. And in the states controlled by the Religious Right, state governments have democratically ratified and enforced statues that initiate the use of force upon private individuals. That is is the case with abortion bans. It is also the case of threatening punishment upon parents for the alleged misdeed of allowing their transgender children to obtain the gender-affirming care that they need.
Conclusion
Of course, I do not condone abortion bans or these state actions against transgender people.
For further exploration:
* “Bound to the Social Contract Under Duress”
* “Exposing the Fallacy of the Presumptive Collective”
On Monday, July 29, 2024, I added the point about calling the Rousseauian argument the Social Contract Song-and-Dance.
