The Social Contract: The Ultimate Issue Between Liberalism and Conservatism

This is Chapter 5 of Willmoore Kendall's book The Conservative Affirmation in America titled The Social Contract: The Ultimate Issue Between Liberalism and Conservatism.

The present chapter has two purposes: First, pursuant to earlier references in this book to a sort of continuity on the part of contemporary American Conservatism with the conservatisms of the past (and an “overlap” between its ideas and a tradition reaching back through the entire history of the West), to show where that continuity and that overlap are greatest, where contemporary American Conservatism is most at one with the past. Second, to explicate the issue at stake in the area of the overlap, an issue not in my opinion generally understood, and carry the reader, however sketchily, through the history of that issue. The second of these tasks, let me warn him, will necessitate my “working” him somewhat harder than I have done in earlier chapters; the issue is not an easy one to grasp, and the history of it not precisely exciting-besides which the inquiry will involve my taking him to remote times and places that he is not accustomed to think of as having any bearing on America or on American politics. But I perhaps have no right to do that unless I can explain to him beforehand why he should accompany me on such an inquiry. Let me, to that end (before launching myself on the inquiry proper), get busy on the first of the two purposes.

The problem is this: We have all been brought up to believe that the Framers of the Constitution and the Bill of Rights were -though indeed subject to this or that other "influence"-under the spell of John Locke and of Lockean ideas; that, therefore, they believed the following: that man once lived in a “state of nature,” where he was “under” a “law of nature”; that the way society and government came into existence was by man “emerging” from the state of nature to make a “compact,” which could only go into effect if all men consented to it; and that the essence of that compact was that man “retained,” or “held back,” certain “natural rights” which the “compact” accordingly set down in black and white for all to see (these rights are, it is alleged, clearly visible in our Bill of Rights). ‘IVe have been brought up to believe further, therefore, that our continuity with the past is somehow through the Framers and Locke, who was himself continuous with the past. Was he not a deeply religious man? Did he not take as his teacher the “judicious Hooker,” a divine by profession? In speaking of a “law of nature” was he not following the great teachers of the centuries preceding him? Now, all that, I contend (though 1 shall need a second book to explain it fully) has given rise to profound misunderstandings, even on the part of American Conservatives themselves, as to what our Conservatism is committed to-what kind of “natural rights,” what sort of role for “consent” in politics, and, perhaps above all, what attitude towards Locke and the “social contract.”

The logic (and so the conclusion) are unexceptionable: the Framers were Lockeans; Conservatives, naturally enamored of the past, affirm the Framers and therefore must affirm Locke; and in affirming Locke they establish their continuity with the past. But the logic and conclusion are unexceptionable only because the logic involves two whopping big fibs: namely, that the Framers were Lockeans (most of them, for one thing, opposed a bill of rights as part of the Constitution); and that you can establish continuity with the past through Locke. The two fibs, moreover, lead on to all manner of absurdities: the mobilization of American Conservatives behind the very Bill of Rights that the Liberals are using in their attempt to undermine our social order; the overemphasis (as with Russell Kirk, Frank Meyer, and Stanton Evans) on the role of religious belief in Conservatism; the glorification by American Conservatives (especially John Chamberlain) of those late nineteenth century Supreme Court justices who sought to hammer Congress over the head with the Bill of Rights; to inhibitions about supporting Congress as Conservatives must support it if they are going to keep on winning; and near-neurosis (as with Frank Meyer, perhaps with William F. Buckley, Jr.) about governmental power and so to the cult of “weak” government.

(a) The emphasis of Locke’s political theory is, ultimately, egalitarian, since if the consent of all is necessary for the “compact, ” then each man’s consent is as “good” as any other man’s; so that if you marry Locke you are ultimately without grounds for resisting current egalitarian trends-which is exactly where most of our Conservative intellectuals have ended up.

(b) The other great emphasis of Locke’s political theory is on the absoluteness of the principle of consent in politics; so that if you marry Locke you are ultimately without grounds for resisting the things being done out over the world in the name of consent-the irresponsible liberation of colonies from their so-called oppressors, the attempt to liquidate the ruling classes in Latin America in order to enthrone the “consent” of the Latin American peones, and, as a final example, the enforcement of the will of the General Assembly of the United Nations because it originates in the “consent” of “all mankind.” (I do not say that our Conservative intellectuals don’t oppose these things; merely that until they break with Locke they have no grounds for doing so.)

(c) The belief that the Framers were Lockeans, which they were not, obscures in any mind that holds that belief both the nature of the Framers’ continuity with the past and-what is worse, especially for Conservatives-the nature of the American political system, which it is the business of Conservatives to defend and perfect.

But I hope I have said enough now by way of justifying the remainder of this chapter-which, I repeat, deals with the history of the issue that separates Lockeans from non-Lockeans, attempts to situate Locke correctly in that history, and indicates, indirectly, why it is a libel on the Framers to say that they were Lockeans and believed in a “social contract” among “equals” emerging from a “state of nature.”

The idea of a “social contract” is the oldest and one of the most persistent kinds of answer that political thinkers have put forward with respect to some of the basic questions of political philosophy. Namely, What is the origin of organized society? of “law”? of “justice”? of the principles of “right” and “wrong” that “justice” and “law” are said to embody? Why should the members of organized society obey its dictates? Are there limits to their duty of obedience and, if so, what are those limits? What is the “best” political regime? To all these questions, either explicitly or by implication, the exponents of the idea of social contract make replies that run in terms of agreement or consent by the individual members of organized society: Organized society came into being as a result of agreements arrived at among its members, and is, therefore, artificial, man-made. Law, justice, the principles of right and wrong, are also man-made, and are merely that which men have agreed to. Men should obey the dictates of organized society, and subordinate themselves to its principles of right and wrong, because they represent that which men have agreed to as most likely to conduce to their well-being, and because, in one way or another, they have promised or consented to do so. Their obligation to obey is accordingly limited to that which has been agreed or consented to; and the best political regime is merely that to which men have consented, or now consent.

The “social contract” philosophers do not, by any means, give identical answers to the foregoing questions. Between the idea of tacit or implied consent (which may have grown up over a long period of time) and that of a “contract” (or “compact,” or “pact,” or “covenant”), with specific “terms,” and “concluded” at a certain place and time, there are numerous intermediate positions that one philosopher or another has made use of in offering his answers to the questions. Some have stressed far more than others the notion of an “original” or “primitive” contract. Different “social contract” philosophers have used their particular form of the contract for markedly different political purposes, ranging all the way from the support of absolute monarchy to the defense of democracy. Some appear to have meant, by insisting upon agreements or contracts, not so much that society, law, justice, principles of right and wrong, originated in actual agreements or contracts, but merely that we understand them best if we think of them us if they had originated in contracts and agreements, or as if they were contractual in character. That on which all the social contract philosophers agree, and that which sets them apart from other political philosophers, is the negative proposition that society, law, justice, principles of right and wrong, cannot be understood in terms other than those of contract and agreement, promise and consent.

We shall speak, in the following sections, of (1) the emergence of that proposition in classical antiquity, (2) its virtual disappearance from Western political philosophy from the time of Plato and Aristotle until (3) the “great age” of the social contract, which is that of Thomas Hobbes (1588-1679), John Locke (1632-1704), and J.-J. Rousseau (1712-1778), and (4) the present status of the idea of the social contract.

A word is in order as to a different possible approach to the topic in hand, and why it has been rejected for the purposes of the present chapter. Actual contracts, of one sort or another-from the Covenant between God and the people of Israel at the foot of Mount Sinai (Exodus, 19) to, e.g., the Charter of the United Nations signed at San Francisco following World War II-have often played a prominent role in the political history of mankind and in man’s thought about politics. And it is possible, starting out from the 17th and 18th century contract philosophers, and their insistence that society is founded on “contract,” to treat all such contracts, and all the ideas of philosophers about them, as part of the historical background for the ideas of Hobbes, Locke, and Rousseau; as also to deem the recurrence of such contracts, in the history of politics and political philosophy, as proper expressions of their influence. There is, indeed, a vast literature in which more or less that procedure is followed. That literature is, however, open to at least two objections, here assumed to be ecisive: (1) It conceals the revolutionary significance of the 17th nd 18th century contract philosophers, by linking their names with practices and ideas that they in fact rebelled against. (2) It distracts attention from the character and extent of the actual influence of those philosophers upon subsequent thought and subsequent events. Both objections, it may be noted, turn on the contention that the philosophers in question did not intend their appeal to contract in any such literal fashion as the procedure presupposes, and that we must in any case distinguish between contracts understood as creating society, justice, law, and principles of right and wrong, and contracts understood as merely specifying society, justice, law, and principles of right and wrong in particular situations. The Old Testament Covenant, for instance, though it appears to be understood literally as a contract, merely transforms an already-existing society or people into a new kind of society or people (a people “chosen” by God, and recognizing itself as “chosen”); the “law” and “justice” (the Ten Commandments) to which it points are not only not created by it, but are not even embodied in it. The distinction between the contract (or the idea of a contract) that creates and the contract that specifies is, for both political practice and political philosophy, fundamental. The Old Testament Covenant, as also the contract to which Socrates appeals in Plato’s brief dialogue The Crito (see below), belong to an entirely different realm of discourse from the “contracts” of, e.g., Locke and Rousseau.

A. Classical Antiquity. The first genuine anticipations of the ideas of the 17th and 18th century contract philosophers are, as noted above, the first answers ever given to the major problems of political philosophy, namely, those of the early Greek “conventionalists.” Many of them are unknown to us by name, Heraclitus (576-480 B.C.) being perhaps the major exception; he wrote that “men have made the supposition that some things are just and others are unjust.” Most of what we know about the others we know from Plato and Aristotle, who wrote long after (though we do not know how long after) their ideas had become widely current in Greece. But we do know with certainty that the “great issues” of Greek political philosophy were the issues at stake between the conventionalist answers and the “classical” answers-those of Plato and Aristotle and their predecessors (especially Socrates); that the classical answers developed in opposition to the conventionalist answers; and that the conventionalist answers, as put forward by Plato’s and Aristotle’s great enemies the Sophists (chiefly in Plato’s Dialogues), were still very much alive in Plato’s and Aristotle’s time.

Those first answers, as the term “conventionalist” clearly implies, did not, unless by implication, run in terms of anything so concrete as “contract,” but merely in terms of “convention,” which we may perhaps best understand by analo,y with the process (which we see about us at all times) by which “language” develops. The “rules” of “grammar,” the “usage” of particular words, change over the years and decades and centuries; even the youngest of us has witnessed, and to some extent participated in, the chain of events by which a new word becomes generally accepted, or an old one becomes “archaic.” IUe know that, despite the best efforts of the authors of dictionaries and textbooks, what “governs” in the development of language is that to which, in some mysterious way, people come to “agree”-that is, “convention”; and that once “people” have agreed to “mean” and “understand” such-and-such by a given word or expression, that (for the moment at least) is what “people” are going to “mean” and “understand” by that word or expression. The power of “convention” in such matters seems, at least, to be overwhelming and indisputable; and from this it is a brief step, and an easy one, to the notion that there is no such thing as “correct” or “incorrect” in language, but merely what people happen to have “agreed” to. And from that, paradoxical though it may seem, we are led to the notion that people “ought” to use words in their agreed-upon meanings, and behave “wrongly” if they do not; that is, we begin to think of an implicit “promise,” or “contract” that somehow “obliges” us not to violate the relevant conventions although we know them to be merely conventional in origin. The Greek conventionalists sought to answer the aforementioned great questions of political philosophy-once they had themselves been discovered (their discovery, since we know there was a time when the problems were unknown, was the first great achievement of political philosophy)-in comparable terms: The Greek city-state, which was the form of “society” they knew, had come into existence by “convention.” The laws which any city-state, and thus all city-states, enforced upon their members, were the product of “convention”; so also were the principles of right and wrong, just and unjust, prevailing in any particular city-state. And the citizen’s obligation to obey the laws, or to accept prevailing notions of justice and right and wrong, went no further than could be explained in “conventional” terms: he either obeyed because his fellow-citizens, through their “government,” forced him to, or because he or his forefathers had agreed to obey them (see below).

Perhaps the fullest statement of the conventionalist position, and the most interesting for the present purpose because it uses a word (“covenant”) which is closer than “convention” to the word “contract,” is that which Plato places in the mouth of Glaucon in his dialogue The Republic. Time was, says Glaucon (whom, however, we should understand as merely repeating what he has heard from others, the Sophists in particular), when each man thought it good to inflict “injustice” upon others, and bad to suffer “injustice” at the hands of others, and when everyone behaved accordingly. In due course, however, men came to think that such a state of affairs produces great evils, and they were then ready to agree to laws and mutual covenants which would avoid those evils. Such is the origin of what men now call justice, which is that which the agreed-upon laws command, and injustice, which is that which they forbid; and men accept the new arrangement because it is in their interest to do so. There are, to be sure, two apparent additions here to the conventionalist position as stated above: First, the notion of a “state” or “condition” of mankind, “pre-social,” “pre-legal,” and “pre-moral,” before men had entered into any agreements at all, and when, therefore, they were bound by nothing. Secondly, the notion that self-interest is the motivation which impels men to agree to laws and covenants. Both notions, however, are evidently implicit in the earlier conventionalism: If the history of a society and justice is the history of agreements, then there must have been, off in the past, a “first” agreement, and a state of affairs prior to that agreement. And if justice and the principles of right and wrong, which are the source of “disinterested” motivations, are created by agreement, then the first agreement can be explained only in terms of selfish motives. Some (but not all) conventionalists, moreover, advanced a third notion, namely, that of the equality of the interest-motivated participants in the agreements in question, which enables us to say that all the major theses of the modern “contract” philosophers were well-known in classical antiquity.

Against the conventionalist position (which as it has come down to us must be regarded as for the most part a series of flat assertions, rather than as a corpus of philosophic reasoning), the classical philosophers urged such propositions as the following: The city-state (society) is natural to man; its origin is to be sought in the nature of man, for whose perfection it is necessary. Justice, the principles of right and wrong, and the law are not artificial and man-made, but rather are discovered by man through the exercise of reason. Man, whose nature requires him to strive for his own perfection, has a duty to subordinate himself to justice, to the principles of right and wrong, to the law. The conventions and covenants into which men enter can at most give to society a particular form, or attempt to specify justice, or right and wrong, in particular situations at particular times. The justice, or rightness, of any convention or any covenant is a question to be answered by political philosophy, in the course of reasoned discussion, and one that cannot be answered in terms simply, or even primarily, of that which men have promised or consented to. Conventions and covenants are, then, to be judged by standards that men do not create, but merely discover. That is just and right which contributes to man’s perfection, which we come to understand by studying man’s nature, not his agreements and contracts. The best regime is that which is best for the nature of man.

The classical philosophers are not to be understood as having denied, or having been unaware of, the role of convention and covenants, or even that of self-interest (as the conventionalists understood it) in social and political life. The Socrates of The Crito is willing to explain his immediate obligation to Athens in “contractual” terms, and certainly regards himself as bound by that which he says he has promised. Indeed, all the classical philosophers contended that a major function of the city-state (society) is to maintain among its members, through education, fundamental agreement concerning justice and the principles of right and wrong. Their contention against the conventionalist was that conventionalism provides only a partial answer to the problems that arise when men begin to meditate about society and politics, and no answer at all to what the classical philosophers described as the “important” problems. In their view, conventionalism was an expression of a sickly and inhuman state of the soul of man, and, for that reason, a denial and repudiation of the lofty purposes that society, government, and law ought to serve: those of reason not passion, therefore those of duty not self-interest.

B. The Interval. During the two thousand years following Plato and Aristotle, convention and contract, consent and promise, figured prominently both in political practice and in political philosophy, but not (apart from the Epicureans) in a manner at all relevant to the present chapter. The attention of political innovators and writers on politics shifts to a new range of problems, which we briefly note, though only in order to emphasize their remoteness from those that had concerned the Greek political philosophers (and are, later, to concern Hobbes, Locke, and Rousseau). For example, What is the source of the authority of the Roman Emperor (does it, as Roman law held, derive from the consent of the people)? Is there, as St. Augustine (354-430 A-D.) held, a universal duty to obey kings? Must a king, upon pain of losing his claim to his subjects’ allegiance, recognize certain “rights” on their part? Is there a tacit compact between king and people, which defines their reciprocal rights and obligations? If (as often occurred) the accession ceremonies for a new king involve a “coronation oath,” in which he subordinates himself to certain “conditions” (for example, to rule justly and provide good government for all his subjects), does this create a “contract” or “pact” which he is bound to observe? Is the Pope entitled to depose an Emperor or king who misgoverns-for example, to absolve the Emperor’s subjects from their allegiance to him on the ground that he has broken a contract (Manegold of Lautenbach, in his Ad Gebehardum Liber, answered that question in the affirmative as early as the end of the eleventh century)? All these questions, clearly, have to do with the specification (see above) of “rights” and “duties,” not with the origin of the societies within which they are specified, or of the principles of justice and right and wrong. The contracts utilized or appealed to are understood merely as means of getting down in black and white rights and duties that derive ultimately from sources independent of contracts and agreements. Indeed, some commentators have distinguished, by way of emphasizing their peculiar character, between the “contracts of government” or “contracts of submission” of this period and the “social contracts” of the earlier and later periods. Such a distinction is useful, but only provided it not be permitted to obscure the general agreement (through most of the period in question) on a number of issues to which contract and agreement were not regarded as relevant at all. Namely, that monarchy, whether because willed by God or decreed by reason, is the “best regime.” That not only society, justice, and principles of right and wrong but also peoples, exist prior to the establishments of particular governments. That the monarch is in any case subject to law; and that men do not create law, but rather discover it, either through reason or revelation.

The political thinkers of the period draw upon three main sources, apart from their own ingenuity and creativeness: first, the teachings of the Greek classical philosophers (insofar as they were available); second, the teachings of the Old and New Testaments; and third, increasingly over the centuries, the rapidly-developing corpus of Christian theology. And while these three sources-especially the first and the third (philosophy and theology)-by no means always point in the same direction, they are at one both in excluding, implicitly or explicitly, the social contract of the earlier and later periods and in their insistence, explicit or implicit, that social and political life serves purposes in addition to, and higher than, that of the selfish or private interest of those who participate in it. Some political thinkers seek to state those purposes in terms of a “law of nature” or “law of reason” discoverable by all men. Some seek to state them in terms of the “law of God” or “divine law.” And some, insisting upon a necessary coincidence between natural and divine law, seek to state them in terms of a simultaneous appeal to both. But none seeks to state them in terms of a supposed original contract or agreement; none thinks, other than fancifully, in terms of a “pre-social, ” “pre-legal,” or “pre-moral” condition of man; and all are agreed that exchanges of promises or consents-though useful for certain social and political purposes and, where they have occurred, binding-provide, at most, the occasion for common effort on behalf of those purposes. And there gradually takes shape, over the period, the Great Tradition of Western political philosophy which, however much its creators and custodians might disagree on other issues, speaks with a single and clear voice of the subordinate and merely-specifying role of promise and consent in man’s search for, and his attempt to achieve, the true purposes of society, clearly understood to be those of justice and right.

Only toward the end of the period, only after and as a result of widespread acceptance of the idea of “contracts of government” between kings and peoples, do we begin to find writers who appear to edge over in the direction of the Greek conventionalists. Speculation arises as to the condition of men before the first” contract between kings and people, and thus as to how the “people” that enters into that contract became a people to begin with. Some writers, of whom we may take Juan Mariana (De Rege et Regis Znstitutione, 1599) and George Buchanan (De Jure Regni spud Scotos, 1579) as examples, begin to toy with the notion of contracts by which peoples are “formed,” by individuals who have previously lived as “free” and “solitary,” and who for this or that reason, “come together” by means of “compacts.” And some critics have argued that, with such writers, we stand in the presence of the “state of nature” and the “social contract” of Hobbes, Locke, and Rousseau. In point of fact, however, the emergence of speculation along these lines is worth noticing, in the present connection, precisely because it fixes attention upon the watershed that divides Hobbes, Locke, and Rousseau even from their more or less immediate predecessors. For none of the latter would have countenanced the notion that the individuals entering into the “first” contract were “free” of moral obligations, or motivated exclusively by self-interest; none of them suggests that justice and the principles of right and wrong are to be explained by the contract; all of them are carriers of the Tradition. And it cannot be overemphasized that that tradition, against which Hobbes, Locke, and Rousseau are to lead a revolution, has no necessary quarrel with the idea that particular governments come into and remain in existence by a process which involves a considerable element of promise and consent.

C. The “Great Age” of the Social Contract. The names of Hobbes, Locke, and Rousseau have commonly been linked together because all three teach (1) that prior to society men lived in a “state of nature,” (P) that in the “state of nature” men possessed a “natural right” or “natural rights,” (3) that men emerged from the “state of nature” by concluding among themselves a “social contract” or “social compact,” by means of which they “surrendered” to political society all or some of their “natural right” or “natural rights,” (4) that men abandoned the “state of nature” and promised or consented to obey the government and laws of political society, because in the “state of nature” their natural right or natural rights proved, in the absence of government and laws to guarantee them, insecure, (5) that society, government, and laws therefore have as their proper function the guaranteeing of the “natural right” or “natural rights” “surrendered” by the participants, (6) that the proper authority of society, government, laws, is limited to that proper function, as laid down in the “contract” or “compact,” (7) that the contract, so long as it is “kept,” is binding not only upon the participants but, in one way or another, upon their descendants, and so explains “political obligation,” that is, the “duty” to obey political authority, and (8) that by the same token the “duty of obedience” lapses in one way or another if the contract is “violated.” A considerable body of modern political literature has seized upon this common ground among the three philosophers and, abstracting from the admittedly great differences in emphasis among them, has treated the foregoing propositions as the “contractarian” position in’ political philosophy, capable of being discussed and evaluated without reference to any particular philosopher. (Another considerable body of literature, of scant relevance for the purposes of this chapter, has fixed attention upon the differences among them on matters lying outside their area of agreement: the specific terms of their respective contracts; the political purposes, “authoritarian” or “democratic,” to which they were dedicated; and their subsequent influence. Hobbes’ contract figures in this literature as the source of modern “totalitarian” ideas, Locke’s as that of modern constitutional democracy, Rousseau’s as, variously, closer to that of Hobbes, closer to that of Locke, or different from both because of its insistence that democracy must be local and direct.)

D. The Present Status of the Social Contract. The general verdict of the literature about the “contractarian” position common to all three has, it may safely be said, been unfavorable to it in the two-fold sense that (a) objections have been urged against it to which its defenders have been unable to make any satisfactory nswer, and (b) no recent political philosopher of reputation has openly adopted the position.

The objections referred to are, briefly stated, as follows: (1) There is no historical evidence that the “state of nature,” which the position presupposes, ever existed. (2) If a truly “pre-social” state of nature ever had existed, the men living in it would have been incapable of conceiving of a “contract” of the kind the position presupposes, because the very idea of contract bespeaks an already-advanced stage of social development. (3) The contract, in any case, fails as an explanation of the duty or obligation to obey the laws of society, which is to say that the contract cannot itself create the obligation to fulfill its own terms; that obligation, if it exists, must therefore be explained (as Hobbes and Locke do try to explain it) in terms other than those of contract. (4) The position holds that men enter the contract, and accept its terms, because they themselves decide that it is in their interest to do so for the sake of their natural rights. At most, therefore, the position can explain why men should obey while they find it in their interest to obey; once they regard the arrangements established by the contract as disadvantageous to their natural rights, they are no longer bound by it. (5) Even if we accept the notion that the original parties to the supposed contract do have an obligation to fulfill its terms, the contractarian position cannot explain why their descendants inherit the obligation. (6) The obligation of the descendants cannot be explained (as Locke and Rousseau tried to explain it) on the grounds that they consent, and become parties, to the contract by the mere fact of remaining within the society created by the contract. Most of the persons who grow up in a society have no genuine alternative to remaining within it; their remaining is not, therefore, an expression of consent-in-deed, to insist on the contract is to deprive the descendants of the original contracting parties of the very natural right or rights those original parties exercised in making the contract. (7) Since there are times when men should disobey the laws of their society, the contract proves too much. It merely confuses the problem of when men should obey and when they should not obey.

Because of these objections, numerous scholars have held, the contractarian position may fairly be regarded as “exploded,” except for two important alleged truths that it embodied, namely, that all men are equal, and that government ought to be based exclusively on the consent of the governed. These truths, they argue, are separable from the other contractarian doctrines, especially that of the state of nature and that of the contract itself. And because it was the seventeenth and eighteenth century contract philosophers who gave them currency, they may be regarded as the true fathers of modern constitutional democracy as practiced in, for example, the United States and the countries of the British Commonwealth. Both the American Declaration of Independence and the Constitution of the United States are frequently pointed to as instances of their influence, especially Locke’s influence, upon subsequent events.

Another, more recent, body of scholarly literature takes an entirely different view as regards both the teachings and the subsequent influence of Hobbes, Locke and Rousseau. Their genuine significance, it holds, lies in an aspect of their teachings to which the “contractarian position” is in fact incidental, namely, in their break with the idea of a law, whether natural or divine, higher than and prior to any laws originating in agreement and contract. According to the recent scholarship, that is to say, the real issue posed by the contract philosophers, and the issue in terms of which alike the validity and the influence of their teachings is to be judged, turns on the question, After we have “peeled off,” in our thinking about society, justice, right and wrong, obligation, all that can possibly be explained in terms of agreement and contract, consent and promise, what do we have left? To this question the contract philosophers give the answer: Only the natural right of self-preservation, which is to say, only self-interest; not, as their predecessors within the Great Tradition had believed, duties. Man, in other words, was, in Rousseau’s magic phrase, born “free,” and without law; he can be “bound’ only by his own consent; and since today we find him “bound” by society and law, his bondage is either wrongful, because not based on his consent, or it is based upon agreement and contract. The contract, in short, is for the contract philosophers a logical necessity, which must be called in to explain the fact that men who were born free can nevertheless be rightfully subject to society and its laws. Any authority which is not rooted in agreement, consent, is therefore wrongful. Agreement, then, is the sole creator of society, of justice, of right and wrong; and, according to the recent scholarship, we misunderstand the contract philosophers when we impute to them belief in the original contract as a historical fact. With them, as with the Greek conventionalists, the key point is not that society, government, and law are and should be founded on consent, but that they must be rooted, and rooted exclusively, in the principle of consent. The contract philosophers, from this point of view, represent therefore a return to the infancy of political philosophy; and what is being decided, in the continuing debate among political philosophers, remains essentially the question whether there is or is not a higher law, independent of agreements and contracts, among men. And the problem as to the validity of the “contractarian position” is inseparable from that of the validity of the Great Tradition.

So, too, with respect to the influence of Hobbes, Locke, and Rousseau. Insofar as the principle of consent has been accepted, in modern political philosophy and modern political practice, as the sole principle that needs to be taken into account when we seek to arrive at judgments as to what is right and what is wrong in politics, we stand in the presence of the influence of Hobbes, Locke, and Rousseau and, ultimately, that of the Greek conventionalists. Similarly, insofar as it is a generally-accepted principle of modern political philosophy and modern politics that the purpose of society, government, and law is to minister to the self-interest of the members of society, rather than to the perfection of man’s nature or to the attunement of human affairs to the will of God, we again stand in the presence of the influence of the contract philosophers, and can by no means speak of their “position” as one that subsequent generations have refuted. Alike the question as to the validity of the major contention of the contract philosophers (namely, that there is no higher law), and the question as to the influence they have exerted in their attempt to discredit the Great Tradition, seem certain to remain highly controversial questions in the continuing struggles within political philosophy and political practice over the next decades.

In America, of course, these struggles are struggles between Conservatives and Liberals: Conservative affirmation and Liberal denial, Conservative faith in the growing Great Tradition (as set forth above) and Liberal relativism. The Lockeans in America, in other words, are the Liberals; and the Conservatives, who disagree and must disagree with the Liberals on all the crucial points, must learn to understand themselves as the anti-Lockeans. Then, at least, the record can be put straight.

The Hole in the Contractarian Theory of the State

by Gene Callahan

One of the ways of justifying the existence of the state, prevalent since the time of Hobbes, has been the idea of the social contract. In brief, as put forward by Hobbes in Leviathan, without a ruling authority, people in a "state of nature" will never be able to trust each other. Contracts signed will not be kept, laws agreed to will not be followed, and each person, fearing for his life, will, in his own self-interest, be prompted to initiate the infamous Hobbesian "war of all against all."

We can imagine that in the state of nature, you promise that if I give you five gold pieces, you'll give me your cow. But if I give you the cow, you now have the cow and the gold. Why shouldn't you just dash off, perhaps after running me through with your knife? Therefore, the contractarians conclude, we will never transact at all. We will either avoid each other or engage in violence. Without an agreed-upon enforcer of contracts, actors face a "Prisoner's Dilemma": each would prefer to be able to trade rather than not, but neither can trust the other to uphold his end of the deal, so no trade takes place.

Therefore, man makes a social contract – he agrees to lay down his arms and surrender his sovereignty to a ruler, in other words, a state, provided everyone else will do the same. The ruler, in the meantime, agrees to keep the peace. Later thinkers, such as John Locke, amended and qualified Hobbes's idea by trying to further restrict the powers of the ruler. The US Constitution is an attempt to explicitly lay down the restrictions to which the ruler will be subject.

Sometimes anarchists attempt to reject the contractarian theory on the basis of the fact that no such contract was ever signed by all of the people in a society. While this is true and certainly weakens the theory, contractarians are aware of this fact. Their answer, while not as satisfactory as actually seeing the contract would be, is not unreasonable: True, they admit, no such contract was ever signed. But it can be shown that it is rational for each person to sign it today if presented to him. Therefore, there is no need to go through the brutal war of all against all just to prove this point. The state should exist, and it does exist, so there you have it.

There is, however, a much stronger argument available against contractarianism. One of the brilliant achievements of Anthony de Jasay, in works such as The State and Against Politics, is to point out a gigantic hole in the approach. People cannot trust each other's contracts without an enforcer, so the contractarians say, therefore they all agree to sign a contract with a universal enforcer, a state. But if they could not trust their contracts with each other, what makes them think they can trust their contract with the state? If I couldn't trust you not to steal my gold, how in the world can I trust this other fellow, the new king, especially since we've just equipped him with an army, a police force, and the ability to levy taxes? At least when it was just me against you, I stood a chance, but now I've got a whole army stealing my gold. What kind of a bargain is that?

Minarchists, who may recognize quite clearly the danger that their minimal state will not stick to its contractual limits and instead grow like Topsy, often propose vigilance as the answer. However, there is something contradictory about such a solution. The idea that the people can rise up and depose their subjugator implies that people could solve the problem of trusting each other without the state, for certainly the state will not enforce the contract people signed to overthrow it! In other words, minarchists hold that we need the state to solve the problems presented by not being able to trust each other when undertaking collective action. But then they tell us that, should the state get out of hand, we can collectively agree to overthrow it, and trust each other to adhere to that agreement. So, is there a problem with collective action or isn't there?

De Jasay goes further and suggests that the seemingly insurmountable problem presented by Hobbes is not really insurmountable after all. When looked at as a single-play prisoner's dilemma, things may seem hopeless. But human society does not work like that. There are very few people whom we interact with only once. De Jasay calls these "Transient Tourist" interactions, after someone who gets ripped off on an island he will only visit once in his life. The bulk of our interactions, and by far the bulk of our most important ones, are with people or organizations we will interact with repeatedly. In those cases, cooperation becomes the best strategy, and we can expect to be able to trust others without a sovereign ruling over us. As de Jasay says, "Anyone who has a name, lives in a place, does something for a living – that is, anyone tied into the fabric of a society – would think twice before treating mutual promises as the single-play prisoner's dilemma says he must."

-- End of quote ---

My comment:

It's true that it is not logically consistent to claim the social contract is necessitated by the problem of contract enforcement, since the proposed solution provides no transitive closure ("who will enforce the contract with the contract enforcement agency?").

However, the fundamental problem with social contract theory is simply that no one has the right to make membership in society contingent upon acceptance of a contract. Each individual may exercise his right to free association by refusing to socially interact with anyone else. But no one has the right to dictate to others whom they may or may not interact with socially. Since no individual has any such right, neither does society.

Taxation Is Theft [http://www.freerepublic.com/focus/news/666806/posts]

What is the moral justification for taxation? What gives the government the right to collect taxes by force, whether force of law or force of arms--which in the end amount to the same thing?

The coerced collection of taxes is allegedly justified by four arguments--all of which are demonstrably false:

1. The "majority rules" argument: The majority in a society has the right to impose its will on the minority, either absolutely, or within the limits prescribed by a Constitution.

The refutation: It's been said that a democracy is where two wolves and a sheep vote on what (or who) is for dinner. The moral to be understood from this is that a vote by the wolfish majority to have the sheepish minority for dinner does not justify violating the rights of the sheep to life, liberty and property. By the same reasoning, just because a majority votes to put those who don't "voluntarily" pay taxes in jail does not make it morally right.

The "majority rules" argument is based on the false premise that what just one of your neighbors would not have the right to do--appropriate your property using unjustified coercive force--society as a whole (who are just the aggregation of all your neighbors) somehow magically is morally justified in doing. Were this so, what principle would limit it just to taxes, or to just those things allowed by a Constitution? Where did society get the authority to use a Constitution to give its agent, the government, powers that none of the individuals in the society possess by themselves as single individuals?

If your neighbor does not have the right to force you to be his slave, could it be that two of your neighbors have this right? If not two, then what about 1000 of your neighbors? 10,000 neighbors? 100,000 neighbors? 250,000,000 neighbors? Everyone living on the same continent? What gives a group (or a society, or its agent, a government) any right to act that any individual member of the group would not have? Rights are not additive: two people who form a group have no more rights than either one has separately. The rights of any group, even society as whole, are simply the union of the rights of all the individuals in the group. It therefore necessarily follows that a group cannot have any rights that any individual member of the group does not also have. So if your neighbor has no just right to simply take from you whatever he or she wants, then neither do any group of neighbors--not even the entire society.

The conclusion is inescapable: you don't owe taxes merely because one or more of your neighbors say you do. I don't have the right to take your property without your consent. Therefore, no group of people has the right to take your property without your consent--no matter how many people are in the group, nor how many of them vote in favor.

2. The "debt for services rendered and benefits received" argument: Government provides benefits and services. The recipients of said benefits and services owe the government something of value in exchange. Furthermore, society is entitled to a "payback from," or "return on its investment in," each member of the society, and a "return on its investment" in the infrastructure of the society, payable as "dividends" from the earnings of the individuals who live in and benefit from the society and its infrastructure.

The refutation: The argument is flawed in several ways. Firstly, it falsely assumes that a valid debt is created whenever someone receives either direct (or collateral) benefit(s) as a result of actions voluntarily performed by someone else--even when the person receiving the benefit(s) did not consent to the creation of a debt, and even when the person performing the action(s) was largely motivated to perform those actions in his own self interest and for his own benefit. Secondly, it falsely assumes that every taxpayer was a willing participant in a commercial transaction, where he agreed to pay a freely-negotiated price for some service or benefit. Thirdly, it falsely assumes that the amount of tax a taxpayer is assessed is reasonably proportionate to the market value of the services or benefits he received. Finally, the argument falsely assumes that a debt can convey an equity interest in the life, property, or profits of the debtor, without the debtor having consented to the granting of any such equity interest.

Taxation forces you to pay for what you haven't agreed to buy

It is admittedly possible to accrue a debt without having first consented thereto: such a debt automatically accrues when the debtor causes harm to the life, liberty or property of someone else without valid cause (the only valid cause that comes to mind would be acting in justified self defense). But other than this one exception (infringing on someone else's rights without his or her consent), debts cannot be justly created without the consent of the debtor.

Therefore, you don't owe anyone anything for those things that someone else voluntarily chooses to do without your consent to pay for them. Conversely, you have no right to coerce payment from others who have not consented to pay you for the value of the work you voluntarily choose to do that happens to benefit them.

Even more ludicrous is the idea that you owe anyone anything in exchange for the collateral benefits you may receive as a consequence of actions performed by others. If I choose to build a dam for the twin purposes of generating electricity and controlling floods, solely because the dam benefits me (I make money selling the electricity, and my home is made safer against the threat of flooding), then why should the fact that your home also is made safer against the threat of flooding entitle me to send you an invoice for any part of the cost of building the dam? I would have built the dam whether or not you benefited from it, and whether or not you agreed to pay anything for the privilege of benefiting from the dam.

If you benefit from what someone else has voluntarily done, and have not agreed to provide compensation, then you have no more obligation to pay than does the receiver of any other gift. As long as we do not violate the rights of others, each of us may do—or not do—as we please. If we do not like the fact that what we voluntarily choose to do happens to also benefit others, our only morally-correct remedy is to refrain from doing such things. If you think otherwise, go sweep the street clean and then send an invoice to the city—or to your neighbors—for the hours worked. Good luck.

Taxation forces you to pay the price set by a monopoly provider

Typically, the amount of tax assessed is not reasonably equivalent to the fair market value of the services provided. One important reason that this is true is because the amount of tax that is assessed is not negotiated between "buyer" and "seller" in a free market. Both overcharging and underpaying for goods or services makes one party a thief and the other party the victim of a crime.

Rate-based taxation assumes that the "debt" for government services creates an equity interest

The debt you owe to a lienholder does not entitle the lienholder to an equity interest in your life, in your property, and/or in the fruits of your labor. If you think otherwise, try billing (or even suing) your employer for a percentage of profits in lieu of salary, without his prior agreement. Good luck.

3. The "social contract" argument: A society has the right to dictate to all members of (or residents in) the society what each individual must contribute (or "give back") in exchange for being allowed to live in, and/or be a member of, and/or receive benefits and services from, the society. By agreeing to live in a society, an individual is deemed to have "consented" to this "social contract."

The refutation: This argument is based on the false premise that "society" as a whole has a right to coerce consent to debts as a condition for being "allowed" to be a member of the overall society.

A society is just a group of people who interact. It has no more rights or powers than does any one of its members. Therefore, unless some individual member of a society has the right to coerce other members of the society to agree to conditions in exchange for membership in the society, then it cannot be that the society as a whole has any such right.

It's true that an individual has the right to refuse to interact with any other individual. However, each adult only has the right to make such decisions for himself, not for other adults. Therefore, even though 67% of the citizens of a particular community do not wish to interact with a particular person, the remaining 33% would still have the right to do so, if that is their wish.

No person, or group of persons, has the right to prevent any two adults from interacting, as long as both adults freely choose to do so. It therefore follows that the only way that an individual can morally be denied permission to be a member of society as a whole, is for all the other members of the society to unanimously (and permanently) refuse to interact with him or her. Therefore, society as a whole has no right to demand that individuals agree to conditions in exchange for being allowed to participate in the society--because society has no right to prevent free association (or interaction) among consenting adults. You have the right to interact socially, economically and politically with anyone who is also willing to interact with you, regardless of how many third parties may object.

In fact, the only way that someone could be expelled from society would be to violate the rights of the one expelled. Society would have to kill the person, and/or steal his property, and/or forbid him the right to live on his property, and/or interdict his right to contract with others for a place to live and/or to produce income, and/or violate his right to travel. No one has the right to deny anyone the right to live, to own property, to travel, to engage in commercial transactions with others who are willing, or to do anything whatsoever so long as no else’s rights are being violated. Therefore, society has no right to do any of these things, and so it therefore has no right to threaten to do them unless individuals agree to be taxed. Such a proposition would be extortion—a fancy word for theft.

You have inalienable rights because you are a person, not because you agree to pay taxes. To make the free exercise of your rights contingent on the payment of taxes converts inalienable human rights into privileges that must be purchased. That way lies slavery.

Society is an epiphenomenon that emerges from the actions and interactions of the individuals of which it is composed. Society is thus a creation and manifestation of its members, who are therefore its rightful masters. To posit instead that society rightfully owns and controls the individuals who are its members wrongfully makes each individual a slave to the group. Others do not own you just because you interact with them. Neither do you own others because they interact with you. Therefore, society does not own you because you live in it.

It must also be noted that the so-called "social contract" is not properly a "contract" at all. At no time are individuals ever told what are the conditions of the "social contract" to which they must agree. At no time are individuals ever asked to formally agree to the terms of this alleged contract. I have never agreed to any such contract, and I strongly doubt that anyone who ever reads this essay has ever done so, either. The alleged "social contract" is therefore nothing more than a fictitious "blank check," drawn on the life, liberty and property of the enslaved population, that those in power can cash in any amount that suits them, at any time—again and again.

4. The "moral debt to those in need" argument: Those who have more than they need are morally obligated to provide for those who have less--and it is a necessary and proper function of government to make sure that the "haves" contribute their "fair share" to the "have nots." Therefore, the needs of society for the services and benefits of government outweigh the property rights of individuals.

The refutation: This argument is based on the false premise that the needs of one person constitute a moral debt or lien on the life, property or liberty of someone else. This is a wide-spread, but very dangerous, fallacy. No such principle can be morally justified, because it inevitably leads to logical contradictions that destroy individual life, liberty and the pursuit of happiness. It is maliciously inimical to the very foundations of freedom.

Obviously, if I give (almost) everything I have to charity (or to taxes), then I become the "needy" person, and can then "rightfully" (sic) demand "help" from others. Just by having less, and doing less productive work, I can "create a moral obligation" (sic) for others to provide for my needs. As a result, those of you willing to work become the slaves of those of us willing to leach off the efforts of others. But the resulting "negative feedback loop" must eventually lead to social, moral and economic decay.

To make each individual responsible for meeting the needs of others would have the following consequences:

a) The individual would become a slave to all those with greater need,

b) The principle of "moral risk" would result in many people failing to act responsibly with respect to their own welfare and best interests, and

c) The "haves" would use the fact that they are coerced into supporting the "have nots" to impose laws and regulations restricting everyone's freedom—on the grounds that social welfare paid for by coercive tax collection gives the taxpayers a legitimate stake in preventing citizens from making poor life choices.

Down this path lies tyranny.

Fundamentally, neither my needs, nor someone else's needs, justify coerced taking from others. Just because I need a heart transplant does not justify my taking your heart without permission. Just because my neighbor needs food to eat does not justify either of us taking from you the food you need to feed your family. Just because I and my family need a place a live does not justify my evicting you and your family from your apartment. Need is not a valid or workable basis by which to assign ownership of property. You are not a slave to my needs, nor am I a slave to yours.

The principle that your life, liberty and property belong only to you, and that you have no obligation to give them to others, and cannot rightfully be coerced into doing so, is the foundation of freedom. Any society that violates this principle makes slaves out of its members.

You should not be responsible for the consequences of my actions and decisions, and I should not be responsible for the consequences of yours. Each person must be fully and solely responsible for the consequences of the way he/she lives his/her life.

If you wish to feel guilty because you are able and willing to earn a living, that's your affair. If you wish to donate some or all of what you have to others, that's your affair. Nothing prevents you from giving as much as you like to the charities of your choice. But you have no right to select the charities that others must contribute to, nor to specify the amount or percentage of their charitable giving. If you did, then they would have the same right with respect to you, and you might not like their choices!

No one has the right to be "generous" (sic) with other people's money without their permission. That's not generosity--it's theft.

Working to support yourself and your family is not immoral. Expecting to receive the full benefit of the work you do is not immoral. Expecting others not to steal from you is not immoral. Your hard work helps both yourself, your family, your community, your country and the world at large. You owe no one any debt merely for having worked to accumulate property, nor for having done productive work.

Conclusion

The fact that your neighbors have voted in a law that says you owe taxes does not mean that you do, because others have no right to take your property without your consent.

The fact that you benefit from the operation of government does not mean you owe taxes, because no moral debt can be created without either your consent or your misbehavior.

The fact that you are allowed to operate as a member of society does not mean that you can be construed to have agreed to pay taxes in exchange, because a) you have not in fact agreed to any such contract, b) you have the right to interact (and do business with) anyone else who is willing, and c) no one has the right to violate your rights, or make the enjoyment of your rights contingent on the payment of a fee.

The fact that there are those whose needs are greater or more dire than yours does not mean you owe any taxes, because you are no one’s slave, no matter how needy they may be.

you don't owe taxes; there are no legitimate reasons for you to pay taxes. Is this the jist of it?

Yes, although the argument generalizes beyond the issue of taxes. What you owe others is to respect their rights. They owe the same to you. All other obligations come into existence in only one of two ways: by contract, or as a consequence of your violating someone else's rights.

Communitarian theory is based on the concept of public goods. The basic premise is that not all rights can be individual rights, but must instead necessarily be collective rights, because some things are inherently “public goods” that cannot or should not be controlled by individual persons. The justification for this theory is based on the fact that some “goods” have one or more of the following properties:

Non-rivalrous consumption: any person can consume, use or benefit from the good or service without interfering with the ability of others to do so equally.
Non-excludable consumption: it is physically impossible to control who may or may not consume/use/benefit from the good or service; if it is available at all to any one person, then it is intrinsically available to everyone.
Non-rejectable consumption: it is physically impossible to refuse to consume/use/benefit from the good or service; if it is available at all, it is then intrinsically impossible to voluntarily refuse to consume/use/benefit from the good or service.

There are two fundamentally different types of public goods: natural public goods that exist independently of the work or efforts of individuals and social public goods that must be created by individual action. For example, the atmosphere is a natural public good, because it is not a product of the work or efforts of individuals, although it can be damaged or used up by their actions. In contrast, national defense is a social public good, because it can only be provided by the actions of individuals in a community or society—unlike the atmosphere, it is not simply there to be used.

Why should the community (or society) collectively own goods or services that qualify as “public goods” according to one or more of these criteria? There are two reasons commonly given:

It is impossible and/or unnecessary to “make a market” in public goods. If such goods and services cannot be provided (or protected) by market mechanisms, then the only other option is for society to make them available (or regulate their use) as “public goods.”
The ‘Free Rider’ problem: public goods invite parasitic behavior by those who benefit from public goods and services but refuse to contribute their “fair share” towards the production (or protection) of the goods or services involved.

It’s a valid point that strict individual ownership is not practical for all goods and services. However, there are two reasons why collective ownership of “public goods” should only apply to the most limited extent possible:

The Tragedy of the Commons: the “logic of the commons” inevitably makes collective ownership the worst possible way to allocate resources. The “Tragedy of the Commons” argues strongly against collective ownership in all cases where individual ownership is practical.
Collective ownership tends to devolve into control by an elite that has the real power, and who use their control over what is “collectively owned” [sic] to their own advantage—perhaps even to the point of imposing what is effectively slavery on most members of society. This also argues strongly against collective ownership in all cases where individual ownership is practical.

As for the “free rider problem”, note that its nature is quite different in the cases of natural and social public goods: a “free rider” with respect to a social public good, such as national defense, fails to engage in his “fair share” of positive action, whereas a “free rider” in the case of a natural public good, such as the atmosphere, fails to engage in his “fair share” of negative action.

The “free rider problem” does justify imposing a moral obligation to avoid damaging or using up public goods or services non-equitably—this is simply the moral obligation to avoid actively interfering with the rights of others. However, the “free rider problem” does not justify imposing a moral obligation to actively produce or provide any public good or service—any such obligation would violate the principle of individual independence.

A community does have the right to provide public goods and services, because each member of the community has the right to produce and provide goods and services for himself and/or for others. But a community has no right to wrongfully coerce anyone into producing or providing public goods or services, because “John” has no positive right to coerce “Jane” into contributing to the realization of “John’s” goals—regardless of any alleged benefit that “Jane” might receive from doing so.

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