Chapter Two: Modern Social Contract Theories

Ancient and Medieval Ideas

Thomas HobbesJohn Locke

“To understand Political Power right, and derive it from its Original, we must consider what State all Men naturally in, and that is, a State of perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the Will of any other man.”

--John Locke, Two Treatises of Government, Second Treatise, sec. 4.

The link between consent-based theory of political authority and social contract argument (Aristotle and moderns), identifying both

A social contract argument is only one way to develop a consent-based view, albeit the most popular way

The two most famous: Thomas Hobbes and John Locke, beset with problems

I. Ancient and Medieval Contractarian Ideas Plato: the most prominent person

to suggest that political authority comes from the legitimizing consent of the people in the form of a social contract.

Plato does not further develop his ideas.

In Plato’s Crito, one of Socrates’ friends, Crito, tries to persuade Socrates to sneak out of prison and leave Athens so as to avoid the penalty of death to which an Athenian jury has (unjustly) sentenced him for the crimes of impiety and corrupting the youth. Socrates explains he is under an obligation not to avoid the death penalty from the perspective of agreement.

Two ways for the conferral of authority arising from a contract:

1) political authority comes directly from the people via a contract between them and the ruler. Popular in Roman world, in medieval times by Thomas Aquinas

2) the conferral of authority arises indirectly via a contract among the people (in which the ruler is not a participant) to grant the ruler authority, after which the authority is conferred by them

The distinction between agency social contract and alienation social contract

1) Agency: lend the ruler their authority and reserve the right to take it away from him if and when they judge it necessary—the ruler is a kind of agent of the people, hired by them and capable of being fired by them if they judge his performance deficient given their agreement. ---Locke

2) Alienation: people alienate the authority to the ruler, so that no matter what subsequently happens, his rule is permanent over them—the ruler is a kind of master of the people, insofar as his authority over them is permanent and rebellion against his is always illegitimate. ---Hobbes

II. Hobbes Leviathan: most complete development of Ho

bbes’s argument State of nature: a state of war (people will ine

vitably come into conflict and wage war on one another where their lives would be “solitary, poore, nasty, brutish and short”)—creation and maintenance of political societies to secure peace (to preserve their lives) and the conditions for commerce—the only viable form of political society is ruled by a sovereign absolute in power over the people

Thought experiment: we can think of people in the state of nature as if they were “even now sprung up out of the earth, and suddenly, like mushrooms, come to full maturity, without all kinds of engagement to each other”.

Anti-Aristotelian: 1) social connection is tantamount

to much of people’s humanity. 2) all human beings are roughly

equal in physical and mental abilities, there are no natural masters or natural slaves, no natural subordination of women or any other group.

“Nature hath made men so equall, in the faculties of body and mind: as that though there bee found one man sometimes manifestly stronger in body, or of quicker mind than another; yet when all is reckoned together, the difference between man, and man, is not so considerable, as that one man can thereupon claim to himselfe any benefit, to which another may not pretend, as well as he…And as to the faculties of the mind…I find yet a greater equality amongst men than that of human beings’ strength.”

By insisting on our rough equality, Hobbes does not mean to deny the very real differences in talents and skills that we see manifested in the human community. Instead he is making a political point: no one is so much better than other people that his or her superiority entitles him or her to rule over them.

Throughout his political writings, he is contemptuous of the idea that there is some kind of natural subordination of some people to others, and he explicitly rejects the idea that women are naturally subordinated to men.

The roughly equal people in a state of nature would be largely self-regarding.

They would desire above all else their self-preservation.

They would inevitably clash and come into conflict with one another so often that the state of nature would inevitably become a state of war “of every man, against every man.”

“in the nature of man, we find three principall causes of quarrell. First, Competition (for Gain by using Violence to make themselves Masters of other men); Secondly, Difference ; Thirdly, Glory.

A prisoner’s dilemma (PD) for Hobbesian people in the natural state: a situation in which the rational actions of rational people lead inevitably to conflict. P.43-45

In a PD situation, even though the cooperative outcome is best for the two of them considered as a collective, it is individually rational for each of them not to cooperate with the other. The irony is, however, that when everyone fails to cooperate, the outcome their actions produce is individually worse for each of them than the outcome that would be produced by universal cooperation!

Sovereign: the remedy for the war and the judge with the power to settle any quarrel over anything. He is a political leader with the authority to resolve any issue and power to enforce any resolution of any issue.

Forms of a sovereign --one person: monarch --many but not all: aristocracy --all persons: democracy Hobbes believes that monarchy is

the best and most effective form of sovereign rule

How is the sovereign created? --no social contract should take place,

otherwise there will be quarreling between the people and the sovereign about whether or not he has performed according to the terms of the contract. Because there can be no impartial judge to resolve this quarrel, it will likely lead to war and the dissolution of the political society. P. 48

Hobbes argues that as a result of determining that the creation of a sovereign is to his or her advantage, each person will decide to agree with one another to confer authority so as to create a sovereign, but the actual investiture of authority and power is performed independently and noncontractually.

According to Hobbes, the existence of an agency contract will only precipitate more conflict rather than peace. In the end Hobbes says that peace can be achieved only if people in the state of nature accept the need for a ruler who is quite literally their master.

Problems with Hobbes’s Alienation Social Contract Argument

As the people are always going to be concerned with their self-preservation, then when they decide that the ruler’s commands are life-threatening, their interests will lead them to disobey. Massive refusal to obey

“In the end, it is Hobbes’s effectively granting that the people will (and ought to) judge the ruler’s performance that is the ruin of his attempt to mount a viable alienation argument.” p. 51

Leviathan has two arguments: the “official” alienation argument and the real but unacknowledged agency argument.

“Hobbes sets out to defend the alienation argument, but his conception of who human beings are and why they want to create government forces him to accept that the creation and maintenance of authoritative rule is something that is always in the hands of those who are subject to it, making the ruler the implicit agent of the people, hired by them and capable of being fired by them if they object to his rule. This implicit agency agreement is the essence of Locke’s argument in Two Treatises of Government.”

Locke In contrast, the agency social contract theory is m

orally appealing, representing rulers as the people’s “employees” and insisting that they remain under our control.

The background for Locke’s writing his book: to refute Filmer’s divine rights theory, but more urgently to provide philosophical license for the rebellious activities he and his friends had undertaken against the British rulers Charles II and James II, which culminated in 1688 in the overthrow of the latter in what the rebels called the Glorious Revolution.

State of nature: a nicer place than Hobbes’s: people are

more other-regarding and more cooperative. People can be motivated in the state of nature not only by self-interest but also by God’s “Fundamental Law of Nature”, which directs them to preserve the life, health, and possessions of others as long as their own preservation will not be compromised by doing so. People are politically equal.

“The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult in, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty or Possessions.” --chap.2, sec. 6.

The problems of conflict and warfare would also be serious in Locke’s state of nature: irrational members of society who either harm others for their own gain or fail to interpret the fundamental law of nature correctly, especially when they use it to justify the punishment of offenders. Moreover, the way in which Locke’s statement of the law allows and perhaps even requires that people prefer their own interests when those interests are in competition with those of others.

A state is needed to solve 3 problems --an establish’d, settled, known Law, received

and allowed by common consent to be the Standard of Right and Wrong, and the common measure to decide all Controversies between them

--a known and indifferent Judge, with Authority to determine all differences according to the established Law

--Power to back and support the Sentence when right, and to give it due Execution.

According to Locke, however, the creation of a ruler with clear limits on his authority and power is both possible and vastly preferable to the creation of an absolute sovereign.

Individual consent as the source of all political authority: “Men being, as has been said, by Nature, all free, equal and independent, no one can be put out of this Estate, and subjected to the Political Power of another, without his own Consent.”

Consent via a two-stage and 3 agreements 1) enter into agreement with other people to

create a civil society and become one body 2) the majority decide on behalf of the

community the form of government and who will rule: democracy, monarchy, oligarchy

3) agreement between the majority and the ruler they have selected.

The ruler is hired and fired as ‘political authorities” by the civil society and is the “trustee” or “deputy” of this society, so that they have the right to rebel against someone they judge to be failing as an affective trustee. Locke insists that since political authority and power are the people’s to give, they are the people’s to take back as they see fit.

Five problems with Locke’s Agency Social Contract Argument which, according to Hampton, will threaten (especially the latter three) the coherence of the argument itself and cast doubt on the plausibility of basing authority on the people’s consent.

1. The Alienation Relationship between Civil Society and the Individual

Locke insists that each individual is permanently bound to his or her civil society in a way that precludes rebellion against it. “The Power that every individual gave the society, when he entered into it, can never revert to the Individuals again, as long as the Society lasts, but will always remain in the Community; because without this, there can be no Community, no Commonwealth, which is contrary to the original Agreement.”

Reasons to object to the idea of the relationship:

--it precludes the legitimacy of emigration at any cost, but the emigration may be not only desirable but also required if the civil society approves of governmental policies that are injurious to them. However, the premises of his argument commit him to an agency rather than an alienation relationship between individuals and their political society.

--it removes the leverage that the threat of exit provides for reforming political society.

A successful reformulation of Locke’s argument must secure each subject’s obligation to the majority’s determination in the political society, even while maintaining an agency relationship between each subject and the political society.

2. Property and Authority 1) if we alienate our right to govern ourselve

s to the political society, and the majority of that society sanctions a form of taxation that we believe to be very abusive and dangerous to us, then, our property will subject to the potentially dangerous caprice of the majority.

2) if he doesn’t consent or ceases to give it, why should not he be free to exit with his land and all his other possessions?

3. Stability and the Paradox of being governed

--cuts to the heart of the viability of any agency social contract view and challenge the stability of the agency relationship

“If there is such an agency relationship between ruler and people, how does it make sense to consider the people ‘ruled’? And if the people who are being ‘ruled’ are themselves in charge of their rulers, how can their political society last?”

James Buchanan: “Man’s universal thirst for freedom is a fact of history, and his ubiquitous reluctance to ‘be governed’ insures that his putative masters, who are also men, face never-ending threats of rebellion against and disobedience to any rules that attempt to direct and order individual behavior”

4.Is the appeal to a social contract inconsistent?

“if people in a state of nature can’t keep ordinary contracts because they can’t solve PD games, how can they keep the contract to create government? We can’t very well explain the creation of government by appealing to a contract, if we have already explained that a central reason governments are needed is that people can’t keep contracts!”

5. Do people actually consent to political authority?

The philosopher most famous for questioning the success of the contractarian derivation of authority from consent is the 18th century Scottish philosopher David Hume (1711-1776).

Challenge: Just when, asks Hume, have most of the world’s population undertaken this contractual obligation? People, he notes, generally obey the state because they think they are ‘born to it’, not because they have promised to do so.

Response: it isn’t mean as a history of the creation of states but only as an account of the nature of political authority. Hence any objection to the effect that the argument is historically inaccurate is beside the point.

Challenge: The contract tradition has been persistently ridiculed form failing to provide evidence that anything like the kind of explicit agreement analogous to the agreement that authorizes my doctor to treat me has ever occurred in a political context. And appealing to consent when it simply hasn’t occurred fails to explain the fact of political authority.

Response: the consent and the contracts in their arguments are only “hypothetical” occurrences and not historical events: merely to justify the state in terms of what people could agree to in an equal and impartial setting. Insofar as a state is the sort of institution that we believe people could have agreed to, then it is authoritative; otherwise it is not.

Challenge: Ronald Dworkin: “A hypothetical contract is not simply a pale form of an actual contract; it is no contract at all.” No one takes it that any of us is obliged by make-believe contracts but only by real ones. Hence whatever excellent use a hypothetical contract has in helping to illuminate the nature of justice, a contract that was never really made cannot explain real authority.

Response: what about the notion of tacit consent? Perhaps we can understand this form of consent as the source of political authority and successfully locate it in the historical actions of real people. It this is possible, then the consenting behavior of people could be taken, contra Hume, as the source of the political authorities throughout history after all.

Challenge: “it is difficult to know how to understand the notion of tacit consent such that it is both successful in authorizing someone to have the kind of control over human beings that governments are supposed to have and also present in history.”P. 66

According to Hampton, this is an extremely serious problem with the social contract argument’s attempt to develop a consent-based theory of political authority, which will have to be resolved if the argument is to be plausible. Unless a consent-based theory can develop a way of formulating a notion of consent that is both authority-giving and historically plausible, this approach to political authority is just not viable.

In chapter 5, Hamptom attempts to generate a new theory which is a type of consent-based view, using tools of contemporary social science, ideas from recent work in philosophy of law, economics, and game theory.

“This chapter has tried to show that the convention model of political authority can be developed in a plausible and robust form, in a way that sheds light on the structure of modern democracies.” p. 112

Summary of chapter 5 (“this chapter is by far the hardest in the book, and some readers may find it a little daunting.”):

The convention model represents political authority as something invented by the people through their participation in a governing convention by which they give what I call convention consent to their regimes. Such consent is insufficient to morally legitimate the regime in full,

but it forms the foundations for such legitimation insofar as regimes that do not receive such consent and operate as systems of mastery in which the power structure is sustained purely by force and not by people’s participation in a convention cannot be morally justified. The invention of political authority involves creating authoritative offices such that when officeholders issue commands, they give the rest of the populace reasons to perform actions that preempt

other reasons these people have to do other things. And this authority must be exercised in ways that are at least minimally rational and moral, else people will not be able to give their convention consent to the regime.

If the political authority is not only minimally rational and moral but also substantially just, then it is a morally legitimate political authority. But full moral legitimacy is not necessary for the existence of political authority (so that there can be morally bad states)

States that are just will likely receive the approval of their citizenry—although approval needn’t track justice. Giving such approval is what I call endorsement consent ( I have also called it loyalty consent). Such consent, if widespread, can make a state particularly robust, stable, and long-lasting.

Probably no existing state in the world has ever completely eschewed attempts at mastery over some of its rebellious population, but states that we consider just are ones in which the use of techniques of mastery is rare, the convention consent of the members has generated an agency relationship between the ruler and the people, and most subjects give their endorsement consent. Finally, modern democracies are states in which the recognition that

political authority is created and sustained by the people is explicitly built into the structure of the state in the form of voting (for officeholders and laws), constitutional provisions for exercising control over political institutions, constitutional amendment procedures, and so forth.

Further questions: --is it plausible enough to be

historically confirmable? --what kind of justice must a state

display, such that its authority can be considered morally legitimate on the convention model?

--is this model too individualistic?