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What’s Wrong with Social Contract Theory

Although social contract theory is a prominent feature of the American founding, it is both unsound and harmful to a proper understanding of politics. This fact presents a challenge to any form of conservatism that is based on protecting and promoting the principles of the American founding.

The attempt to explain or justify coercive government authority in terms of a social contract has ancient roots (think of the arguments of Thrasymachus and Glaucon in Plato’s Republic) and medieval variations (especially Francisco Suarez and Robert Bellarmine), but it is an especially prominent and influential feature of modern political theory, beginning with Thomas Hobbes’s Leviathan. Social contract theory, as it is now called, is expressly affirmed in many important American political and legal documents, from the Declaration of Independence to the Virginia Declaration of Rights (1776) and the Massachusetts Constitution (1780).

Not surprisingly, then, many American conservatives have incorporated social contract theory into their account of American conservatism. Arguably the most intelligent and articulate of these is Thomas G. West, who taught me social contract theory as a graduate student at the University of Dallas, directed my dissertation on Martin Luther King, Jr. (which was published as my first book), and is now my colleague at Hillsdale College. It is with some trepidation, then, that I express here my disagreement with West on social contract theory.

Some problems with the theory are evident in a response West gives to a review by Peter C. Myers of his most recent book, The Political Theory of the American Founding, in the online journal Starting Points. There, West seeks to defend antebellum and Reconstruction policy to exclude ex-slaves (and, more confusingly and troublingly, “free blacks” living on American soil) from citizenship, arguing that separation by recolonization in Africa was a just and sound policy. The core of his argument is twofold: First, “the social compact is based on equal consent on both sides. Existing citizens should consent to new citizens, just as new citizens should consent before being admitted to citizenship.” Second, although ex-slaves were “forcibly imported,” then “dehumanized” (Myers’s words), this places no obligation on existing citizens to admit them to citizenship. “Every man is responsible for his own actions,” West writes. “There is no such thing as inherited guilt.”

I believe West is wrong on both points. Social contract theory cannot be the basis for the political association or political authority, and the exclusion of ex-slaves from citizenship on the grounds of their race or previous condition of servitude was unjust. It is confusion about the first point that leads to the false conclusion in the second.

Despite its impressive pedigree and intuitive plausibility, social contract theory is both philosophically unsound and damaging to political life. In virtually every case, either the premises of social contract theory are false, or the conclusions do not follow from them. Moreover, by reducing politics to the terms of a non-political voluntary association, social contract theory cannot make sense of political authority (which is never simply voluntary), citizenship (a form of membership in a larger whole to which one has non-voluntary duties), or a common good that is more than a mere sum of its individual parts. It thus undermines both the sacrifices that citizenship requires and the reasoning necessary to support those sacrifices.

The target of this essay is social contract theory. I single out Tom West here only because he is the most consistent, articulate, and best-known defender of that theory, and because the stakes are high for defending a form of conservatism predicated on a defense of the American founding, a form of conservatism I share. I also want to make clear that social contract theory is a theory about the necessity of consent in the origination of political authority; it is only secondarily an operative theory about the necessity of consent within an existing political regime. As West himself argues, consent in this second operative sense may be restricted or limited without injustice. My primary object here is social contract theory in the originating sense, though I will say something in the conclusion about consent in the operative sense.

Because social contract theory is deeply rooted in the American political tradition, if the theory turns out to be unsound, and if that unsoundness has pernicious consequences, then a viable American founding conservatism will have to be rethought and reframed in a way that still reflects the principles of the American founding. In my conclusion, I consider briefly how this might be done.

 

Seven Problems with Social Contract Theory

In what follows, I offer seven arguments for why traditional (e.g. Lockean) social contract theory cannot justify political authority. The crux of my argument is this: Consent is neither a necessary nor a sufficient condition for just coercive authority. Not necessary, because we sometimes have enforceable obligations of justice that we did not consent to. Not sufficient, because there are certain things we may not rightly consent to.

Here, in brief, is the Lockean argument: All human beings are by nature equal with respect to coercive authority. This equality does not mean that no one has a natural right to coercive authority, but that everyone naturally has this right. This is Locke’s “strange doctrine”: strange because it goes beyond the traditional affirmation of a natural right of self-defense against unjust aggression to a universal right of every person to enforce the law of nature by punishing transgressors. As might be expected, this universal right of enforcement results in a very uncertain state of affairs, for which political authority is the remedy. Political authority is instituted and acquires its monopoly on coercive authority only through the express and unanimous consent of individuals to form a political association and transfer to it their individual right of enforcement. Through this social contract, the consenting persons become members of the political association (i.e., citizens). Those who do not expressly consent to the political association but live freely within it are assumed to give their tacit consent and are obliged to obey it.

Here are seven objections to this argument.

  1. The problem of equality

The first argument of Locke’s contract theory is “Equality”: “there being nothing more evident than that Creatures of the same species and rank, promiscuously born to all the same advantages of Nature and the use of the same faculties, should also be equal one amongst another without Subordination or Subjection.” This argument has a certain intuitive power. In the words of Thomas Jefferson, “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them.” What is slavery, if not the coercive ruling of human beings without their consent? And what is coercive government without consent but slavery?

First, nothing is more evident than the inequality of human beings in their “advantages,” that is, size, strength, intelligence, etc. Second, even if the premise were true, the conclusion does not follow. Every animal species is equal in this way, and yet “Subordination” and “Subjection” reign throughout the animal world. So what makes human beings different?

Locke suggests it is reason’s capacity to know the moral law: “The Freedom then of Man and Liberty of acting according to his own Will, is grounded on his having Reason, which is able to instruct him in that Law he is to govern himself by, and make him know how far he is left to the freedom of his own will.” But does Locke mean here the potential capacity for reason, or the actual possession of reason? The former interpretation would give infants and the insane the same equal rights of consent, which seems absurd. But the latter interpretation significantly undermines the force of the theory. Rather than saying “all men are created equal and so may not be ruled without their consent,” it would say “all men who have sufficient reason to know and abide by the natural law are equal and may not be ruled without their consent.” But Locke avers that this number of persons is very small. Knowledge of the natural law, according to Locke, requires considerable time, intelligence, and study, which most persons simply do not have.

  1. The problem of divine ownership

Locke offers a second argument for equality: “For Men being all the Workmanship of one Omnipotent, and infinitely wise Maker; All the servants of one Sovereign Master, sent into the World by his order and about his business, they are his Property, whose Workmanship they are, made to last during his, not one another’s Pleasure.”

Locke never supports this divine property argument with Biblical evidence or arguments, and most people throughout human history seem not to have known it. Even if it is true, the conclusion does not necessarily follow. God presumably “owns” His entire creation, and yet—once again—it is filled with “Subordination” and “Subjection.”

  1. The problem of self-ownership

Locke suggests a third argument that seems to be in some tension with the previous one: self-ownership. Locke writes that “Every man has Property in his own Person.” Locke never quite explains what self-ownership means, and he sets moral limits to what we can do with our own property (no selling oneself into slavery, no suicide, etc.). Still, on the face of it, the claim seems plausible. What is slavery? The ownership of one human being by another. Why is slavery wrong? Because people own themselves. For if I do not own myself, who does own me? But there are problems with this argument.

First, it raises the questions: Who exactly is doing the owning, and what is being owned? Are we slaves to ourselves? Self-ownership taken in any literal (rather than figurative) sense almost inevitably slides into a Cartesian body–self dualism, in which the body is regarded as an impersonal mechanism owned by an immaterial self. Second, even if self-ownership is true, does this mean that owners have complete sovereignty over what they own? May they whimsically destroy, ruin, pollute, their property (and, by extension, their bodies)? Although some libertarians like Robert Nozick accept this conclusion, Locke was not willing to go this far. But if there are moral norms governing the use of property, then a further argument is required for stating why those norms are not enforceable by government.

 

But why must human beings be owned at all? Perhaps the whole language of “ownership” as applied to human beings is a category mistake. To see why, consider the fourth problem.

  1. The problem of parental authority

The most obvious counterexample to self-ownership and contract theory is parental authority. Assuming parental authority is legitimate, what is the ground of this authority? For Murray Rothbard, who builds his theory on self-ownership and a “non-aggression axiom” that forbids coercion, the answer is, consent or nothing. Thus in his “Libertarian Manifesto” Rothbard writes: “The absolute right to run away is the child’s ultimate expression of his right of self-ownership, regardless of age.”

We can admire Rothbard’s consistency, if not his tenacious attachment to ideology in the face of absurdity. But most people (including Locke) believe (1) that parents have a natural right to rule their children, regardless of their children’s consent; (2) that parents have a duty to rule their children, at least when they are young; and finally (3) that parents can forfeit this right by abusing it. (But to whom?)

Significantly, although most people think parents have the right to rule their own children, they do not think this means that parents own their children, nor do they regard parental rule as slavery (unless they are teenagers). But this means that the libertarian argument from self-ownership and the analogy to slavery is unsound. There is at least one case in which rule without consent is justified, without entailing ownership.

In fact, Locke and the Founders (along with Aristotle and Aquinas) held that parental authority is different from political authority. Indeed, one of the main reasons Locke wrote the Two Treatises was to rebut Robert Filmer’s defense of patriarchy as a political principle. Parental authority is limited in both duration (it ends with nonage) and scope: Only political authority “has the power to make Laws, and [enforce] them with Penalties that may reach Estate, Liberty, Limbs and Life.” In other words, paternal authority is disciplinary rather than penal (“penalties”); it involves personal rules rather than impersonal “Laws,” and its power does not extend to “Estate, Liberty, Limbs and Life.”

Readers of Locke often overlook his distinction between paternal and political authority and wrongly assert that he is extreme individualist. On the contrary, Locke affirms that human beings are naturally social (though not political) animals, that they are needy and dependent and require the care of others for their security and flourishing, and that biological parents therefore have the authority and the obligation to provide for their children. Locke’s social contract theory is only directed to political authority, not parental authority; but it is difficult to see how his premises do not push Locke in the Rothbardian direction, against parental authority, given the very real if limited coercion that parental authority requires. One wants to know why Locke thinks one form of authority without consent is natural and legitimate, while others are not, and why they are different.

  1. The generational problem

Assuming the political association is properly formed, how does it gain authority over persons who were not parties to the original agreement, such as those who are born into it? How can one generation (indeed, one portion of one generation) make decisions that bind all the generations after it?

One proposed solution is to re-enact the social contract every generation. Thomas Jefferson proposed something like this, and James Madison in Federalist 49 provided very good reasons for thinking this is a bad idea. But he did so in a way that significantly attenuates the strictness of the consent requirement. Another solution proposed by Locke is the notion of “tacit consent.” Locke argues that so long as one chooses to live under a regime, however he arrived there, he “tacitly” consents to the political authority. Yet for Locke, political authority can never be instituted by tacit consent; it requires the express consent of each and every member. So the idea of tacit consent begs the question we are after here.

  1. The problem of public choice

Contract theory also faces a public choice problem. Put most simply, it is this: The contract model does not assume that the parties are egoistic, but it does assume that they are not primarily motivated by the interests of the other parties to the contract. The reason human beings enter into political society is to better protect what is private (though not necessarily individual; this could include the protection of family and friends). But the political society must, at least sometimes, sacrifice the private to the political. Thus, the person who made the contract to better secure himself is now expected to sacrifice himself for others.

What will ensure that people keep their promises under dire circumstances? Somehow the contract must involve the transformation of pre-political individuals into citizens. This is a transformation Locke never accounts for.

  1. The problem of history

Finally, the most glaring problem with social contract theory is history. Locke makes clear that the initial creation of a political association requires the unanimous and express consent of every individual who is a member of that association. Political authority cannot simply evolve or emerge from its parts.

This is a very strong claim. Can any political association point to such a moment? Is every existing political association illegitimate? The conclusion seems as inescapable as it is unacceptable.

Perhaps realizing this, Locke subtly suggests that a legitimate political association can (and probably most often does) emerge from history, without a formal moment of institution. Thus he writes that “I will not deny, that if we look back as far as History will direct us, towards the Original of Common-wealths, we shall generally find them under the Government and administration of one man.” He then gives a historical explanation of how limited, representative government almost grows from paternal authority. In this section, he sounds more like the empiricist Locke of The Essay Concerning Human Understanding, rather than the rationalist Locke we find in the rest of the Second Treatise. This narrative strongly implies that political authority comes before consent. In fact, it is political authority that makes possible the wider and more thorough knowledge of the moral law, which in turn makes consent feasible.

In describing the emergence of legitimate government from tacit consent, Locke contradicts his own claim that the political association can only be instituted by the express consent of its members.

Another Way?

If social contract theory cannot support the institution of the political association and political authority, what can? The arguments above suggest a different route.

Consider parental authority, which we ordinarily take to be justified although it is non-consensual, extensive, and powerful. On what grounds is it justified? There would seem to be two conditions. First, children need parental authority for their preservation and development. Second, children have a special relationship to their parents that makes parents best suited to supply that need. There is therefore a presumption in favor of parental authority, although it is defeasible in cases of neglect or abuse.

We might say something similar about the political association. (The following account largely borrows from Yves Simon, John Finnis, and Robert George). Human beings living in society need an authority to solve the coordination/collective action problems—such as defense, dispute resolution, the determination of public and private boundaries, etc.—that inevitably arise in any society. In the language of economics, these are negative and positive externalities that result from market failure. (I should add that this instrumentalist conception of political authority does not mean that government must be neutral with respect to competing conceptions of the good, or that civic friendship is merely instrumental.) Second, in fact most societies have a recognized authority for solving these problems that is therefore presumptively legitimate. But third, the presumption in favor of this authority is defeasible. Governments, like parents, can forfeit their authority by neglect or abuse.

 

This is an argument by analogy. It does not conflate the personal authority of parents with impersonal political authority. Still, the analogy between parental and political authority is real. Human beings do not in any simple way choose or consent to their political regimes any more than they choose their parents. They simply find themselves already deeply embedded in a political community, and this fact has normative implications. Human beings have a moral duty to acquiesce to those associations and authorities that are necessary for their own good, for their flourishing. Unless those authorities neglect or abuse their responsibilities, it is morally wrong, arbitrary, and stubbornly willful for them to refuse to so acquiesce. This is why Thomas Aquinas applies the virtue of pietas especially to God, parents, and politics. They all involve unchosen and ultimately unpayable debts of gratitude.

Grounding American Conservatism

The arguments above, if true, present a challenge: Can an American conservatism based on the founding jettison social contract theory and still remain viable? In my opinion, the answer is an unequivocal “yes.” What’s more, the reasons why this is so actually serve to strengthen American conservatism by correcting the false tendency to view the principles of the American founding in an overly dogmatic or ideological way.

Although they had confidence in the ability of reason to discover the truth, the American founders were not themselves dogmatists. Children of the English common law, students of both history (Magna Carta, English Bill of Rights, etc.) and Scottish empiricism (particularly through Locke), they were sensitive to the precarious and provisional human process of knowledge acquisition and promulgation. While affirming the existence of self-evident truths, they would have appreciated the difference between per se and ad nos (see Aquinas on the natural law), and they never would never have dreamed that politics can be a rational deductive process, as the French Revolutionaries did with such terrible consequences. They would have recognized their own conception of reason in the postcritical realist theories of John Henry Newman, Michael Polanyi, and Alasdair MacIntyre. Under the pressures of circumstance and argument, they would have been ready to treat the discrepancies between their own practices and the formal arguments they used to support them.

In other words, in the face of a social contract theory that conflicted with their practices, they would have revised the theory to fit the practice. For, as I have already said, the “consent” that the founders promoted was never the kind of consent that originates a political association in the Lockean sense. Rather, it was consent from within an already historically constituted political association. The best pieces of evidence for this are the facts that (1) only a very limited part of the population (mostly property-owning white males) were allowed to vote; (2) the decision made by these voters was assumed to be binding on everyone, including dissenters; and finally, (3) the founders carefully sought to incorporate “inventions of prudence” (Federalist 51) into their newly written constitutions in order to reconcile the not necessarily harmonious demands of consent, wisdom, and virtue.

The truth is that none of the founders thought their work was perfect or completed in 1787, or 1789. They assumed that history would continually present new challenges, and with them new and deeper insights into the requirements of limited, good government. Conservative statesmanship therefore can never consist in a rigid preservation of the past; it must always be ready to discover, clarify, correct, and shepherd into practice the permanent truths latent in the living tradition.

So why not throw out social contract theory altogether? Although it fails to justify the origin of political authority, social contract theory does contain an important truth that bears on the operation of political authority: the intrinsic value of every human person as “an individual substance with a rational nature” (to use the definition of Boethius). This truth and its moral implications are a historical achievement not recognized by any classical author. They were only slowly revealed with the help of Christianity. This fundamental truth is the underlying reason why natural rights exist, why certain baseline actions—murder, rape, torture, slavery—are always wrong.

 

This truth also guides human beings to promote the full development of human persons, and to protect the right of all citizens to participate in political decision-making as much as circumstances will permit. This right of operational consent within an existing regime, unlike the right not to be killed or tortured, is not absolute and does not simply follow from human nature. Rather, it comes with and is contingent on human moral development, on the maturation of intellect and will, as well as independence of judgment and attachment to the regime. Such development requires a proper culture and education. This is the reason why such consent can rightly be restricted, but only with the eventual goal of full human development in mind.

Social contact theory might therefore serve as a shorthand and salutary reminder of these truths. On the other hand, when it is misunderstood, it also has the potential to undermine them. When West defends the legitimacy of withholding citizenship from freed slaves (and, by implication, their descendants) independent of their character or education, I believe he is actually damaging core principles of the American political tradition.

I agree with both West and Myers that there is “no abstract natural right to be a citizen of the U.S. or of any particular political society” (italics mine). Requiring certain conditions (of age, character, independence, education, etc.) for citizenship can be just and even necessary. But the political association, unlike private associations where subjective tastes can be given free rein, is intrinsically ordered to justice. There must be just reasons for exclusion from membership in the political association. Character and common culture are clearly just reasons, but it is very difficult to see how skin color or previous condition of servitude by themselves can be considered just reasons for exclusion.

Martin Luther King, Jr.’s famous “dream” that one day his children might be judged not by the color of their skin but by the content of their character expresses a requirement of political justice that is rooted in the American political tradition. When a principle would exclude Frederick Douglass and Booker T. Washington from citizenship while including uneducated white racists, it is a sign that something has gone wrong.

The argument is strengthened by the fact that the United States was complicit in promoting and protecting the institution of slavery and therefore has a duty in justice to its victims. West seems to deny this, claiming that only individual human beings are responsible for their actions and that there is no such thing as “inherited guilt.” But the reality is much more complex.

It is true that many voluntary associations do not ordinarily hold shareholders liable for the unlawful decisions of their leaders, but this could not be true of the political association without destroying it. Politics is always prone to a dangerous “reification fallacy,” in which the political association is falsely regarded as some kind of substantial entity or super person above and greater than its parts. Nevertheless, it is true that the political association is a whole of relations that is more than a mere sum of its private parts. Citizenship is a form of membership in that whole. And although individual citizens are not personally responsible for the actions of political authority that they oppose, they may still be held responsible for those actions qua member of the political association, qua citizen. And just as individual citizens cannot ordinarily choose which laws they will follow, which taxes they will pay, etc., so they cannot simply detach themselves personally from the past or present actions of their government. As Abraham Lincoln himself repeatedly and powerfully acknowledged, the American regime from the beginning was deeply implicated in the regime of slavery, and that regime therefore had a responsibility to help remedy the wrong.

In sum: although social contract theory is a prominent feature of the American founding, it is not a necessary one. As I argue in my book, to abandon it would not be fatal to an American founding conservatism. A vital American founding conservatism must revere tradition, but it cannot be a hidebound traditionalism or a slavish deference to the past. Following the example of the American founders themselves, it must treat tradition as a living form of knowledge that grows and deepens through criticism and argument. The institutions and practices of the founding bear witness to the fact that the American founders often knew more and built better than they said. Only a conservatism built on this insight reflects the full truth about our nature and has the resources to meet the new and pressing challenges of our time.

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