Abusing the Social Contract

Tibor R. Machan

At the outset it needs to be noted that whatever is called the social contract, it is not actually a contract which is “an agreement entered into by two or more parties with the serious intention of creating a legal obligation or obligations, which may or may not have elements in writing. Contracts can also be formed orally (parol contracts). The remedy at law for breach of contract is usually ‘damages’ or monetary compensation. In equity, the remedy can be specific performance of the contract or an injunction.”

So then, contracts are legal instruments, means by which legally backed agreements are recorded and used to settle disputes about the parties’ obligations. The idea of a so called social contract is, actually, an oxymoron since most social acts aren’t legal ones. A better term for what is usually meant by “social contract” would be social compact, an plain agreement of some kind.

The idea has been around for centuries. Even Socrates touched on it in Plato’s Republic, but it gained prominence mainly in the writings of the English political philosopher Thomas Hobbes. Hobbes used the device of an imaginary social compact that everyone in society would enter into. The purpose of it is to come up with the most sensible principles of social organization. What if we all got together and reached an agreement about what principles should govern the way we live in a society? What, indeed, would everyone agree to if they had a chance to take part in such an event?

In Hobbes the social compact or contract had been the central device for identifying the principles of justice. No other edicts would be drawn upon, although implicitly the device assumes that participants would all be reasonable, rational people who are pursuing their self-interest. The result of the establishment of such a compact would be a system of principles and laws that would aim to secure peace and prosperity. Everyone can easily be imagined to sign on because such a system would be in everyone’s interest.

Hobbes also imagined that such a system would need an enforcer, a nearly absolute monarch, so as to keep people from breaching the agreement they entered into when they felt like they could get away with this. The powerful monarch or government would dissuade them from breaking the law. But if the near-absolute monarch turned out to be a serious threat to the lives of the citizenry, they could resist and depose such a ruler.

This idea, by the way, found its way into the Declaration of Independence. Here is how it’s put there: “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.”

In the writings of the grandparent of the American political tradition, John Locke, the idea changes somewhat because Locke believed that the principles of justice are derivable from human nature and agreement is only necessary for selecting who would secure or protect those principles. So, in effect, the social compact creates the means by which just law is to be protected. The governing body is created by the compact, not the principles of government! And for Locke this isn’t only hypothetical but quite literal. It is why the Declaration talks of the consent of the governed, something that Hobbes’ theory doesn’t require except hypothetically.

The idea made its appearance in the works of Immanuel Kant, too, although in a rather convoluted fashion and, more recently, in the work of John Rawls’s, the most prominent political philosopher in the 20th century whose book A Theory of Justice (Harvard, 1971) invokes, once again, an imaginary social compact. Everyone supposedly enters into this “behind a veil of ignorance,” meaning, without knowing who one will be in the country established by it. (That is one way that such a system would be a fair one, which was a very important goal for Rawls.)

Social compact/contract theories are appealing for being anti-elitist, for not invoking the idea of a natural ruler, political elite or aristocracy. They are, however, also too committed to the ideal of majority rule, as if gaining the hypothetical consent of the people justified all kinds of oppressive measures against individuals. Moreover, such theories leave it quite undecided who is authorized to implement and maintain them.

Just as, for example, Massachusetts politician Elizabeth Warren recently declared that taking private property is justified by some alleged social contract and authorizes her and other politicians to do this taking in the name of this contract, so many others who make use of the idea deploy it for the sake of making riding roughshod over the citizenry by some large number of them palatable. As she put it, “part of the underlying social contract is you take a hunk of that [what you have earned] and pay forward for the next kid who comes along.”

But this is a non-sequitor--no such contract has established Warren’s or anyone else’s authority to violate the basic individual rights of citizens of a free country. And even if it had, no one has consented to Warren or anyone else doing any taking in the name of society! No one can agree to violating rights, especially other people’s, which one has by nature.