Social Contract Ambiguity

Michael Huemer’s book The Problem of Political Authority examines various arguments given in favor of establishing the existence of political authority, which he defines as a property containing two aspects:

(i) Political legitimacy: the right, on the part of a government, to make certain sorts of laws and enforce them by coercion against the members of its society – in short, the right to rule.

(ii) Political obligation: the obligation on the part of citizens to obey their government, even in circumstances in which one would not be obligated to obey similar commands issued by a nongovernmental agency.

Huemer spends several chapters examining the most popular arguments for establishing political authority and finds them all lacking. He does take care to point out that this, in itself, does not automatically lead to a conclusion that governments should be abolished:

If there is no authority, does it follow that we ought to abolish all governments? No. The absence of authority means, roughly, that individuals are not obligated to obey the law merely because it is the law and/or that agents of the state are not entitled to coerce others merely because they are agents of the state. There might still be good reasons to obey most laws, and agents of the state might still have adequate reasons for engaging in enough coercive action to maintain a state.

Huemer devotes two chapters to examining social contract theory as an argument for political authority – the first on traditional social contract theory as proposed by John Locke, and the second on more modern social contract theories based on the idea that a government could have hypothetically been arranged as a result of a social contract, and that real-world authority and obligations are created out of this hypothetical agreement.

Huemer pretty convincingly refutes both forms of social contract theory. Among his arguments is that all forms of the social contract argument (whether historical, implicit, or hypothetical) lack any of the features needed for a contract to generate valid agreement or obligations. For example, some people argue that by accepting government services, people are showing that they have implicitly consented to pay taxation as part of the social contract. Huemer argues that doesn’t work, because taking an action indicates consent to some scheme only if you could reasonably believe that had you not taken that action, the scheme would not be imposed upon you. Suppose I forcibly compel you to buy cookies I bake – one hundred dollars for a half-dozen cookies, every month. Let’s say that I later find out that you ate some of the cookies. It would be obviously absurd to say that you eating the cookies shows you had implicitly consented to the transaction, and it was therefore a valid agreement. You’d still have been forced to give me the hundred dollars regardless.

There’s one more issue I have with social contract theory that Huemer doesn’t describe. In order for a contract to be validly binding, it needs to be clear exactly what the contract contains. Yet even among social contract theorists, there is surprisingly little agreement here. They’ll all agree that a social contract exists, but wildly disagree about what that contract actually entails. People on the left and the right will both object that some law or institution “violates the social contract” but disagree about which laws or institutions do so, and what the violated terms are.

Note, this can’t be resolved by something as simple as pointing to the existing set of laws (or the Constitution, perhaps) and declaring that those laws are what represent the social contract. For one, if the social contract just means “whatever laws are currently on the books,” no social contract theorist would have any grounds to argue some existing law or institutional arrangement is in violation of the social contract. Given how frequently social contract theorists make this claim, it’s clear that the social contract is not the same thing as the existing set of legislation or legal institutions. Second, and more fundamentally, the social contract is itself supposed to be what provides an explanation for why the government has the authority to create legislation in the first place. So using existing legislation or legal institutions to try to demonstrate the existence or content of the social contract is question-begging. If existing legislation or state institutions are “the social contract” then it’s meaningless to say the social contract is what justifies existing legislation or state institutions.

In practice, much social contract theory discourse seems to be little more than different people equivocating over the term “social contract” to mean “whatever arrangements I, personally, happen to favor.” Now, maybe I’m wrong about that, but there is a way to test. If social contract theorists were attempting to work out what the contents of this unwritten social contract really are (rather than using it as a Trojan Horse to smuggle in their own policy views), we should frequently expect to see social contract theorists highlights aspects of what the social contract contains that they might dislike. Jason Brennan made a similar criticism of much of Constitutional legal theory, arguing that it tends to follow this process:

1. Start with a political philosophy–a view of what you want the government to be able to do and what you want to the government to to be forbidden from doing.

2. Take the Constitution as a given.

3. Reverse engineer a theory of constitutional interpretation such that it turns out–happily!–that the Constitution forbids what you want it to forbid and allows what you want it to allow.

When I read academic writing by constitutional legal theorists, it seems like basically everyone (conservatives, liberals, libertarians) does this. Isn’t that bizarre? For example, why don’t more libertarian legal theorists just say, “Yes, the Constitution allows X, even though X ought to be forbidden, and so to that extent, the Constitution is bad.” Why don’t we see more left-liberals saying, “A just society would allow X, but, alas, our Constitution forbids X and is to that extent a bad Constitution.” We do sometimes see this, but for the most part, people of every ideology tend to argue that the Constitution allows or forbids exactly what they would want it to allow or forbid.

In the same way, I can’t recall any social contract theorists arguing “the social contract unfortunately allows X which should be forbidden and it forbids arrangement Y which should be permitted.” It always seems that whatever the terms of this social contract are, it just so happens to contain the exact terms that are most conducive to the political ideology of the person arguing about the importance of upholding the social contract. Any real-world contract with contents so hopelessly indeterminate would never be validly binding. I see no reason why a hypothetical social contract would be either.