Introducing the Social Contract Theory

Every libertarian has at some or other point come into contact with the SCT (Social Contract Theory). The theory has played a pivotal role in political philosophy and has roots that reach to antiquity. However, one must ask, despite the pervasiveness of the SCT what is its bearing on the libertarian philosophy today? Does the proposed existence of a Social Contract in fact create a philosophical obstacle unscaleable by libertarian philosophies? I would argue that it doesn’t.

In short SCT proposes that individuals hold moral or political obligations towards each other or the state as a result of a shared contract that forms society. SCT has been used to justify involuntary taxation, forced military service, welfarism and other acts of aggression based on the principle that these infringements fall under the duty of a member of the social contract.

For the purpose of this article I find it unnecessary to delve too deeply into the writings of prominent social contract theorists such as Hobbes, Locke and Rousseau. These political philosophers give particular and different interpretations of the SCT. While I believe that at least a partial case for liberty may be made working under their assumptions, we do not live under a Lockian or Hobbesian world. The nature of the state as defined by these philosophers differs from those that which we have today.{footnote 1} Therefore this paper aims to look at the flaws that arise from using the SCT to justify today’s governmental systems. It is hard to argue with such an airy concept such as the SCT, seeing as that the very implications of the theory shift from one form to another based on the opinions of those who use it in their argumentation. However, since SCT is often used in pro-state reasoning, a critique must be attempted.

Critique of the Social Contract Theory

A critique of the SCT can be neatly divided into two approaches. Firstly, one states an outright criticism of the SCT concept, rejecting its existence. The other approach works under the assumption that the SCT can, and does in fact exist. I maintain that even under such an assumption, a case for liberty can be made. {Footnote 2}

The first point of criticism one can level against the SCT is that a social contract has never been set out, drawn or accepted. David Hume highlights this flaw in SCT, emphasizing in the quote below that the SCT is nothing more than an attempt to justify a preferred form of rule through the use of a fictional concept.

“AS no party, in the present age can well support itself without a philosophical or speculative system of principles annexed to its political or practical one; we accordingly find that each of the factions into which this nation is divided has reared up a fabric of the former kind, in order to protect and cover that scheme of actions which it pursues…by founding government altogether on the consent of the PEOPLE suppose that there is a kind of original contract by which the subjects have tacitly reserved the power of resisting their sovereign, whenever they find themselves aggrieved by that authority with which they have for certain purposes voluntarily entrusted him.” —David Hume, “On Civil Liberty” [II.XII.1]

Clearly, one can boldly argue that a contract that has never existed can have no power over individuals. An imaginary concept is a weak origin from which to draw practical judgments or arguments.

“One can boldly argue that a contract that has never existed can have no power over individuals. An imaginary concept is a weak origin from which to draw practical judgments or arguments.”

Now, to reject the historical existence of a Social Contract is to implicitly apply a set of mandatory principles, that if not met disqualify the Social Contract. Recognizing this necessarily leads us into exploring the nature of a valid contract.

One must ask, can a contract be valid if it hasn’t been consented to? If no person has recognizably agreed to a contract (that in truth has never existed) should it hold any bearing on him?

Lysander Spooner uses a similar line of reasoning to reject involuntary taxation and other acts of state aggression in an essay titled No Treason. Spooner proposes that it is illegitimate to invoke the SCT to justify acts such as taxation since if one were to refuse to partake in the act the government would use force to make one comply. Simply put, a contract can’t be seen as consensual if the other party to the contract uses force to make refusal impossible. {footnote 3}

“Simply put, a contract can’t be seen as consensual if the other party to the contract uses force to make refusal impossible.”

If one were to hold that a unilateral contract can be valid-even if it were only so with regard to an individual and the state- another problem arises. Why then would it not be possible for an individual to unilaterally revise such a contract and declare the rightful relationship between himself and the state or society as being anarchy? Or for that matter, monarchy, or any other system that the individual unilaterally chooses to imagine. Belief in valid unilateral contracts can work as an ideological blank cheque that allows a person to concoct and declare any system they happen to fancy. {footnote 4}

In dealing with the character of a legitimate contract Rothbard’s and Ever’s Title Theory of Contract reveals an interesting aspect. Working from the assumption that humans enjoy Natural Rights, it is impossible for a person to transfer their inalianble rights away. This is because rights are part of the essence that defines mankind, they are not an exterior phenomenon, but an intergral definition of what it is to be human. So if one is unable to sign themselves into slavery, or servitude, the state can never be given power to legitimately use aggression against an individual, even if that individual were to have in fact signed such a contract. {footnote 5}

“Working from the assumption that humans enjoy Natural Rights, it is impossible for a person to transfer their inalianble rights away. This is because rights are part of the essence that defines mankind, they are not an exterior phenomenon, but an intergral definition of what it is to be human.”

Countering The Tacit Agreement Theory.

The TAT (Tacit Agreement Theory) holds that by living in an area under a specific state you tacitly imply that you consent to the rule. The case is argued even more strongly for individuals who migrate to a new government ruled area. Using this argumentation is a logical fallacy. Choosing to live under the rule of a specific government only indicates that all the given alternatives are simply less desired than the present one. An analogy would best show the absurdity of such a theory. Let’s imagine that a person is being robbed, and has been given the choice to hand over his wallet, or to be murdered. If the victim were to choose either of these options his choice in no way indicates that he consents to the act of crime! It simply indicates that the person prefers their life to their wallet, or vice versa. Consent can only be assumed when a necessary option of refusal is allowed.{footnote 6}

“Consent can only be assumed when a necessary option of refusal is allowed.”

Once again, even if one were to agree to the implications of the Tacit Agreement Theory surely an expressed disapproval or rejection of the contract would completely negate this? All that one would have to do is loudly declare that they are a libertarian and tacit agreement would immediately turn to explicit rejection.

As has been laid out above, there are numerous multifaceted criticisms that can be leveled against the SCT. It is now time to move on to the second approach.

“All that one would have to do is loudly declare that they are a libertarian and tacit agreement would immediately turn to explicit rejection.”

Assuming that the Social Contract Theory Holds.

I believe that even If we were to flatly ignore all of the above criticisms a libertarian society can still exist within the SCT framework.

the famous 19th century anarchist/mutualist Pierre-Joseph Proudhon accepted the existence of a social contract, however with an individualistic twist.

Before introducing Proudhon’s analysis it is important to stress that the state is not an entity. It does not exist outside of humanity, it is simply a group of individuals who through some means or another have accorded themselves power or control over other individuals.

Keeping this in mind Proudhon’s proposal that the Social Contract is not characterized by an agreement between an individual and a state, but rather between an individual and the other individuals that make up society. A Social Contract is in fact an individual contract, and thus all members are equal in power. From this point one could argue from a case of Natural Rights, for if every person is equal and holds the same rights, theft and other actions done in the name of welfarism would be illegitimate.{footnote 7}

Additionally, after accepting the existence of a Social Contract, who is to say that the correct nature of such a contract is not libertarian? It is quite as reasonable to argue that the Social Contract entails a liberal society as it does a statist one.

“Additionally, after accepting the existence of a Social Contract, who is to say that the correct nature of such a contract is not libertarian? It is quite as reasonable to argue that the Social Contract entails a liberal society as it does a statist one.”

In opposition to this argument a critic may try point out, that since society at the moment isn’t libertarian, libertarianism evidently cant be the correct nature of the Social Contract. In response to such a criticism I rebut that government has changed many times throughout history, who is to say that this current system is the correct one, and not some other system from the past? Hobbes, Locke, Rousseau , and Grosius each offer differing examples of what the SCT entails. It isn’t a large leap of faith to conclude that an attempt to determine which system is the correct interpretation of the Social Contract is a subjective matter. Furthermore, if the nature of the SCT is able to change, then it is perfectly legitimate to agitate for a libertarian society.

Even if one were to flatly and arbitrarily proclaim that the current system is the correct interpretation of the Social Contract, agitation for a libertarian society is still valid. Given one requirement, the requirement being that the goal of a free society is reached through democratic means.

{footnote 1} I recognize that Lockian philosophy acted as an important basis for the Unites States Constitution, but the current behaviour of the Federal Government seems to have distanced itself far from the ideological stances of the founding documents

{Footnote 2} I find it important when delivering a critique of a theory to not only refute the theory based on its logical illegitimacy, but also to explore how the assumed existence of the theory naturally leads to logical pit falls or counter arguments.

{footnote 3} Many have tried to apply this criticism towards a free market. Saying that a person working in a hazardous factory is not in fact employed voluntarily since (as is rarely the case) to not work at that job is to starve. Therefore the employee is not in fact free to choose his field of employment. This criticism is misplaced, since the non-Aggression Principle along with the concept of Natural Rights is conceptualized with regard to mankind, and only mankind. Natural forces are unobligated. As long as no man is using force or coercion to employ a worker in a factory, the relationship is legitimate. The barren state of the employees’ land or farm is a nature given fact. As unfortunate as the situation may be, the employee is still free vis a vis his relationship to other men. It is the lot given to him by fate or nature that he should criticize.

{Footnote 4} Some may argue that this unilateral contract is only valid with respect to the individual and a state. What then stops a group of individuals from forming a recognized state, that goes on to declare a preferred system of anarchy or aggressive imperialism? One could counter that the relationship may only be drawn from the top down, meaning that the state specifies the terms of the contract. Not only would this be a justification for murderous regimes such as those under Stalin or Hitler, but the problem of how a state comes into being arises. If a unilateral contract must be drawn from top down, how can a state arise to make such a contract without first being formed bottom up by its participants? The problems are many and insurmountable.

{footnote 5} There are obviously some provisos to such a statement. In Ethics of Liberty Rothbard does recognize contractual obligations (however they are only limited to contracts that involve title transfer). Some aspects of a contract such as voluntary slavery, forced military service, forced income removal, etc are clearly rejected.

{footnote 6} Can’t such a criticism be made against a free market? If one were to imagine a city in which all land is privately owned, and each owner of their land required all people who pass over it to conform to a certain action or habit (such as politeness or a religious obsersvation) can’t one argue that this is also a case in which no option of refusal is allowed, and therefore the situation is an act of force? No, this becomes a question of whether the demands of the landowners can be legitimately made. In other words, the owners of the land have to hold legitimate property rights. If this is the case, your refusal to follow their wishes while encroaching on their land is in effect an affront to their property rights, not yours. A government can’t make such a claim because they are illegitimate landowners. For a good insight into legitimate land ownership read Rothbards’ Ethics of Liberty Part III “The problem of Land Theft”, and “Land Monopoly Past and Present”.

{footnote 7} To see a good visual presentation of why this is so, click on the following link. http://www.youtube.com/watch?v=muHg86Mys7I