social contract and the ethical anarchist

from what does obligation to government stem? if one is not to assign special power to the state and give it its own special moral status, sui generis, then the legimitacy of its power and its authority must stem from some commonly recognized and generally extended moral principle. social contract theory attempts to do this, by positing that the state is the product of a voluntary decision—a contract, in fact—which creates the state and establishes its legitimate powers and its authority.

there is no single generic item known as social contract theory in this regard, however. different theories have distinctive logical structure in how they go about grounding the legitimacy and authority of the state in some kind of consensual contractual agreement. it is my goal in this paper to analyze closely this logical structure in the social contract theories of Hobbes, Locke, and Rousseau, and then to develop a critique of social contract theory in general.

the foil for social contract theory in this paper will be my conception of the ethical anarchist. this anarchist is the sort of actor we find in the first part of Nozick's anarchy state utopia. he is an ethical person, and voluntarily does what ethics and morality require of him. he does not assume that all others do likewise, and so he certainly understands and perhaps even sympathizes with the usual prudential arguments for the state. however, he is adamant in his refusal to give voluntary consent to the state's coercive power or authority over him. indeed, his very commitment to ethical behavior may lead him to reject the state's exercise of power over other unconsenting people, even for his own benefit. the task for social contract theory is to explain how the ethical anarchist could be brought to recognize the legitimate power and the authority of the state.

the anarchist is not insensitive to claims of prudence, but he does not view them as dispositive. he insists on his right to be as imprudent as he pleases, to make up his mind as he wishes, and he will temper his actions only by the dictates of morality, insisting on his right to be as foolish as he wants, provided only that he still act justly—as indeed, he insists on this right for others as well.

in this essay, i shall give the social contract theorist all that he wants: i do not here consider the failings of particular historical states nor whatever difficulty there may be in creating states along the models described by our theorists. rather, i will follow Rousseau in taking men as they are, and laws as they can be (i.intro.1), and see what sort of argument the various social contract theorists considered can give to the ethical anarchist. we therefore suppose the anarchist to be living in such a state as is described to be ideal by the writer under consideration.

the anarchist will pose two questions of the social contract theorist. first, is it unjust for me to disobey the law? and second, is the state being unjust when it uses force to compel my obedience? the laws in question here are not all laws, but only those which depend entirely upon state authority. the ethical anarchist, because ethical, is happy to obey the laws against murder or theft, for example. and while there is no good moral argument for driving on the right side of the road, there is an excellent moral argument for following such a driving convention when it is in force. so these are not the sort of laws our anarchist is unhappy with—he would comply with their terms whether or not the state enacted them as positive statutes. rather, our anarchist is concerned with the whole mass of other laws, laws which enjoin or require certain behaviors with no more obligation than that the state has ordered them. sample laws here are tax laws, licensing laws, most public health laws, compulsory military service, compliance with judicial subpoenas, and so forth. our anarchist would not normally lie to a court, for example, so he would not perjure himself—but he does not consider the court to have some special right to order him to answer this or that question merely because it is a court.

now, with this in mind, i propose to turn first to our three example social contract theorists, starting chronologically with Thomas Hobbes.

Thomas Hobbes

a covenant is a species of contract; the latter is the mutual transferring of right (i.xiv.9), and is always by some voluntary and sufficient sign or signs (i.xiv.7). covenants are specifically those contracts which leave one of the parties to perform his part at some determinate time after the contract is made (i.xiv.11). injustice, then, is simply the failure to perform on such a future directed promise.

since our ethical anarchist has made no such promises, it seems that the answer to the first test question must be that he does not act unjustly in failing to obey the state's laws. however, for just the same reason, the state does not act unjustly in forcing his compulsion either, for again, there is simply no covenant between them. indeed, the anarchist and the commonwealth are in a state of nature with respect to each other; where no covenant hath proceeded...no action can be unjust (i.xv.2).

it might be objected here that for Hobbes, the dictates of prudence are the only fount of morality, and that the problem with injustice is precisely that it is imprudent. one argument, therefore, which could be addressed to the ethical anarchist is that the very fount of morality in a hobbesian system is precisely that prudence which the anarchist spurns when he refuses to join in the social covenant. but while it is true that what is commonly considered morality (and justice) is, for Hobbes, merely one species of prudence, the above is not a sufficient reply to the anarchist.

the anarchist may have no good reason for being just, given his disdain for prudence. and yet, he is just; for whatever perhaps irrational reasons, he does still comply with the demands of justice. Hobbes can argue that the only good reason for justice is prudence, but to defeat the anarchist he would need to say something stronger: that only a prudent person can be just. he has no right to such an assertion, however.

so our anarchist, perhaps irrational, imprudent, and whatever other nasty words Hobbes lays on, is still concerned to be just, is willing to do what Hobbes says he must in order to be just, but that consists in the keeping of covenants, not in the making of them. Hobbes might perhaps find it incomprensible that our anarchist is just, given his disdain for prudence, but still, there remains a difference between justice and prudence, even if the former is merely a species of the latter.

what kinds of leverage could a hobbesian state use to encourage our ethical anarchist to join the commonwealth? Hobbes describes two different procedures by which sovereigns come to acquire power, in each case, through covenant; breaking that covenant is then an act of injustice. the first procedure, which receives the most attention, results in sovereigns by institution (i.xviii). in this case, we have a group of individuals who covenant with each other to hand power over to a thus constructed sovereign. their motive for doing this is pure prudential fear of the instability and dangers of the state of nature.

but our anarchist is not actually in such a situation. he is born into a hobbesian state, say, and has certainly made no such covenant. moreover, Hobbes is explicit that covenants (indeed, all contracts) must be by a declaration, or signification by some voluntary and sufficient sign or signs (i.xiv.7). the anarchist does not inherit covenantal obligations, and they can never arise through implication, but only through explicit acceptance.

Hobbes describes a second avenue by which individuals become subject to sovereign power, again, through covenant. he treats of a commonwealth by acquisition (i.xv.1-3). a sovereign relationship created in this way differs in that men join not from fear of each other, as in the state of nature, but rather from fear of the sovereign himself. the sovereign, by simple threat of force, orders the potential new subject to submit to his yoke, or be killed.

if the new subject does agree to submit, he has joined into a valid covenant: he has agreed; and there is a force (the sovereign's) which can compel his future compliance—meeting all the tests Hobbes gives for a valid covenant. the sovereign's compliance cannot be forced, but since the sovereign has not made a future-directed promise, this does not affect the validity of the covenant. the sovereign's portion of the contract was simply to spare the subject's life in the present. so, this life for obedience contract is a valid covenant, giving rise to obligations of justice. all living ethical anarchists, confronted with such a situation, have in fact agreed to obey.

Rousseau describes the substance of this contract: i make a convention with you which is entirely at your expense and entirely to my profit, which i shall observe as long as i please, and which you shall observe as long as i please (i.4.13). this seems to be an accurate description of hobbesian sovereigns by acquisition.

so not only is the state not unjust in using force to compel obedience to its laws, but it may also use force to compel acceptance of the social covenant itself. the state's actions are not unjust even before the anarchist is forced to consent to sovereign authority; but even more so, the state can force the anarchist to stop whining that he is doing nothing unjust on his part—at any time—by simply demanding that the whining stop as the price of keeping his life. having accepted that deal, the anarchist can no longer disobey the laws justly.

to be noted from the foregoing discussion are two important points, that will recur in the investigation of Locke and Rousseau. first, the social contract, once entered into, is irrevocable. (it could be argued that the covenantal force of Hobbes's social contract ceases if the sovereign loses credible power; i ignore this here.)

second, the anarchist can be forced to recognize himself as unjust in disobeying the laws only if he admits that a forced covenant is as binding as an unforced one. Hobbes is explicit that this is no objection to such covenants: covenants entered into by fear, in the condition of mere nature, are obligatory (i.xiv.27). the qualificiation here is crucial, for Hobbes believes that covenants made under compulsion within civil society are not binding. Hobbes does not offer any convincing justification of this key principle, made all the more suspicious by his disavowal of it for all covenants but those which establish sovereign power. (it is, perhaps, based on his idiosyncratic account of the voluntary, but even there, he gives no clear reason why the rules should change once civil society is created.)

John Locke

unlike Hobbes, however, Locke also thinks it unjust for the state to use force to compel obedience against someone who has not signed on to the social contract. (the state certainly may, on lockean principles, uphold natural law—laws against murder or theft, for example—but this does not apply to the laws i consider in this paper, laws like those concerned with taxation, licensing, and conscription.) As with to Hobbes, the unconsenting anarchist is in a state of nature with the commonwealth. but, unlike Hobbes, the categories of justice still make sense in the state of nature, and so we can reasonably speak of the state's injustice towards an unconsenting ethical anarchist.

what kind of consent does Locke think to be necessary? first, consider the consent that contracting parties in the state of nature provide. they consent, not to hand over rights to a sovereign not part of the covenant, but rather, they consent to make one community or government (viii.95). Locke's primary immediate concern at the beginning of chapter viii is to establish that once the society is formed, the majority governs, but he does this only by the requirement of universal consent in the formation of the community itself; such phrases as by the consent of every individual, being only the consent of the individuals of it, the consent of every individual that united into it (viii.96), etc., signal the importance Locke places on individual consent.

and how could it be otherwise? Locke is adamant that majority rule must govern civil society (at least, before the government proper is constituted), but by no means does he accede to the principle that in any group of individuals the majority has the right to command the remainder. rather, the majority's right comes only subsequent to the consent of the individuals making the society, and indeed, arises directly out of that consent.

just as with Hobbes, Locke is aware that the consent of the original contracting parties does not extend to their descendents or others nearby—a child is born a subject of no country or government (viii.118). what can he say to our anarchist, to urge him to agree to the social contract and grant his consent? unlike Hobbes, Locke has no tolerance for covenants extracted by force of arms. instead, Locke distinguishes between express and tacit consent, and this will be seen to do a great deal of the work.

express consent is that given by the sorts of explicit declarations or signs that, for Hobbes, constitute the only form of contract. Locke has it that no body doubts but an express consent, of any man entering into any society, makes him a perfect member of that society, a subject of that government. of course, such express consent is precisely what the ethical anarchist refuses to give.

Locke is happy with the notion of tacit consent, however. anyone that hath any possessions, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit_consent, from which all the obligations of civil society follow. Locke also considers alienage, in addition to the explicit and tacit forms of consent that produce civil obligation. section viii.122 addresses aliens, as those who living quietly...enjoy[] privileges and protections under the laws; they are not members of the society. little distinguishes such aliens from those who have given their tacit consent. the need to carefully separate the two categories is obviated by one important proviso in the case of tacit consent. Locke holds that those who have given nothing but...tacit consent are at liberty to go and incorporate [themselves] into any other common-wealth; or ... begin a new one (viii.121)—provided that they first divest themselves of whatever land they hold in their former country.

explicit consent in Locke is as irrevocable as Hobbes's covenant, but merely tacit consent is revocable simply by leaving the country and cutting certain ties. however, tacit consent obtains when one does as little as mere travelling freely on the highway (viii.119). why should this not be considered to be as forced as the life or submission bargain that a hobbesian sovereign by acquisition might require?

Locke believed that there were vast realms open to human habitation; he considered america all but empty, with vast land for the taking. in addition, he conceived of a wide variety of different societies in europe, with many places begging for new people to till the soil. nobody, therefore, is forced to make a hobbesian choice between consenting to the government (whether tacitly or explicitly) and losing life—Locke seems to think that it was perfectly feasible for most people to take up and move, if they really want to. and, indeed, this was quite possibly so in his day, even if not in ours.

Locke's response to the ethical anarchist, then, is that by the merest of participations in society, he has given his tacit consent; but, so long as it remains merely tacit, the anarchist has the right to freely leave at any time. (Locke does not discuss the question of whether our anarchist might exercise that right after having been imprisoned for violating the law; he ought to say that the anarchist has the right to leave even then, provided the law is one whose sole force arises from state authority, for which the punishment could not be justified as one permissible in the state of nature.)

while the anarchist acts justly in disobeying the laws of the state, this is true only so far as he actually removes himself from all ownership or residence in the territory of the state, making the condition rather empty. one is inclined rather to say that the anarchist may not justly disobey the laws of the state simpliciter, but may freely leave.

our happiness with the lockean view will then hinge on two considerations: whether we grant the notion of implied consent, and whether the difficulties of emigration might, in some case, reduce implied consent to an impermissible compulsion. we have also seen that (at least in the implied case) the consent can be revoked under the same conditions in which it could initially have been refused.

Jean-Jacques Rousseau

Hobbes's leviathan does not seem to have been adopted by any state as its model. Locke's work, however, was of influence in later english constitutional history, and most especially in america. Rousseau also was taken as a model, but by the rather less auspicious jacobin revolutionaries of the reign of terror.

unlike Locke and Hobbes, Rousseau seems much more willing to challenge all the basic structures of government in order to make his case. his goal is to establish the grounds for governmental legitimacy, and he sets the bar exceedingly high. still, my task here is to see if, given a state that does meet his requirements, he has anything to say to the ethical anarchist.

again, Rousseau traces the origins of civil society to the consent of contracting parties. like Locke, he has no time for consent extracted by force—such is simply slavery, and has no relation whatsoever to civil society, but is indeed simply the state of war. (how far we have come from Hobbes!) the original contracting parties then agree that each of us puts his person and his full power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole. (i.6.9)

this is again an explicit pact—for Hobbes, Locke, and Rousseau, we see that the original contracting parties give explicit consent. one key difference between Rousseau and the others is that Rousseau insists on the need for a historical founding—a first convention (i.5)—for the legitimacy of the state. for Hobbes, it is merely one way among others of creating sovereign authority. for Locke, presumably any government is legitimate if is is the sort that could have been agreed to in the state of nature, even if it didn't historically arise that way. but for Rousseau, only real historical consent will do.

Rousseau insists on the importance of a first convention for the same reasons that Locke separates the creation of the commonwealth from the choice of government: because the former requires universal agreement, whereas the latter is chosen by the majority of the contracting parties. so again, there is no inherent power of majorities to command obedience under Rousseau, but only in such circumstances as the members of the society have in common— unanimously—agreed to be so bound. everyone must agree: if...at the time of the social pact there are some who oppose it, their opposition does not invalidate the contract, it only keeps them from being included in it; they are foreigners among the citizens. (iv.2.6)

the right of withdrawal, so important in Locke's sphere, finds its place in Rousseau as well. to defend the notion that the people may legitimately dissolve the social pact itself, Rousseau appeals to Grotius for the proposition that everyone can renounce the state of which he is a member, and recover his natural freedom and his goods on leaving the country. (iii.18.9). where Locke was silent, however, Rousseau is explicit: it being understood that one does not leave in order to evade one's duty or to avoid serving the fatherland when it needs us. in such cases flight would be criminal and punishable; it would no longer be withdrawal but desertion (loc. cit., footnote).

so it would seem (though Rousseau is not entirely clear whether he agrees with Grotius here or not) that one may always leave and abrogate the pact. unlike Locke, this is not confined to those who have not given explicit consent. however, Rousseau also excludes the case of greatest importance to our ethical anarchist, who is inclined to take this road precisely when the state's demands become strongest.

if one has not consented, then is one unjust in failing to obey the laws? Rousseau, like Locke, is happy with the notion of implicit consent: once the state is instituted, consent consists in residence; to dwell in the territory is to submit to the sovereignty. (iv.2.6) and yet, Rousseau considers this only applicable to a free state; if conditions such as family, goods, the lack of asylum, necessity, violence (loc. cit., footnote) obtain, these might force one to remain in residence, in which case consent is not considered to be implied. (why should it not equally invalidate consent if these conditions force one to remain in a free state? Rousseau does not consider the question.)

Rousseau is thus more aware of the dangers of imputing consent: he explicitly considers that such consent might actually be more forced than real, and he does not allow it should count as consent in such a case. still, the subject is quite unclear. at the time of the original pact, people may remain unbound by it if they choose, and be foreigners among the citizens. Afterwards, they become implied consenters by their mere residence in the territory—and subject to the pact. what establishes the territory? is it the union of the holdings of the consentors? if it extends beyond that, then by what right does it attach to the territory of the initial recusants, so that they might have consent imputed to them? if renunciation is available to the initial contractors, why may they not renounce also their donation of sovereignty over their land, and thus not even be required to change residence as a condition of renunciation?

oddly, Rousseau is the most explicitly concerned with state legitimacy of the three authors here considered, and yet, he is the sloppiest about the key questions concerning the establishment of state legitimacy over individuals. however, it seems that this is his position: the initial pact arises only by the unanimous free consent of the covenanters. after that, implied consent (but only if truly free) is given when one voluntarily resides in the territory. consent may be withdrawn, but not to evade one's duty.

critique of social contract theory

at the same time, social contract theorists have also been concerned with using their framework to ground not merely the state's obligations and concerns, but those of the citizens as well. key in this move was Hobbes's notion of personation—the conception of the state as an artificial person, and of whose acts all the citizens are authors. the state's actions are thus the citizen's own actions. Rousseau has it that the general will simply is one's own will as a result of the consent given to the social pact (iv.2.7-8). for both Hobbes and Rousseau, no conflict can arise between one's own will and that of the state, because one has taken the latter will to be one's own.

Locke is not so explicit, but because he has a strong notion of the morality which exists in the state of nature, the obligation to keep one's promises does plenty of work in silencing complaints of conflict between one's own will and the decisions of a justly constituted state.

however, all the social contract theories depend explicitly on consent, and offer merely prudential reasons for giving that consent. moreover, our situation today is not the situation of a universal state of nature; and so an ethical anarchist might well agree that it would be imprudent to refuse consent in the original state of nature, but in the world as we have it (in which most people are not anarchists), it might well be more prudent for him to choose not to consent.

none of these authors is willing to allow for any sort of inherited obligations or prescriptive rights for the state; as a consequence, each is forced to give an account of why a present-day individual has consented or should consent. for Hobbes, outright brute force is adequate. but for Locke and Rousseau, who have a conception of morality that precedes the state's existence, some kind of implied consent does all the work. Rousseau at least has recognized that implied consent has its limits, but his description of those limits begs more questions than it answers.

without some kind of present-tense obligation, there is no way to extend the obligations of the original contractors to people in the present. but whatever present-tense support creates this obligation does not occur in the same situation as the state of nature described by the initial contractors; accordingly, the sorts of things one would consent to now may well be different from the sorts of things one would consent to in a universal state of nature.

key features of the state, for all social contract theories, are derived from the presumed situation, purposes, and goals of the initial contractors, based upon an analysis of the situation in which they find themselves. but present-tense consenters (whether by choice, force, or implication) operate in a different situation, with concomitantly different purposes and goals. as a result, the sort of contract they might sign on too could well differ importantly from the sort of contract people threatened with a universal state of nature would assume.

indeed, social contract theory proves either too much or too little. if some kind of present-tense consent is sufficient to legitimate the state, then it is sufficient to legitimate nearly any state—whether conforming to the one the initial contractors would choose or not.

(Rousseau seems to differ, because implied consent does not obtain if not to a free state. if the ties that might hold one in a nonfree state do not constitue consent, however, then they should not constitute consent in a free state either—in which case there can be no implied consent at all, because those ties [family, goods, etc.] might well always or nearly always be present [iv.3.6, footnote].)

however, if there is no present-tense consent that would legitimate—if, for example, we cannot bring ourselves to accept either hobbesian compelled consent nor Locke's implied consent—then the whole discussion of the initial contractors is irrelevant to present-tense political discussion.

either way, however, the promise of social contract theory to ground the obligation of individuals to the state evaporates. if present-tense legitimation is adequate for individuals, then it is adequate for societies, independent of a fairy-story about origins. and, if it is not adequate, then no amount of storytelling about origins can make it so.

still, social contract theory retains some value. while it might not offer any adequate grounding of state legitimation, it can still be a fruitful source of prudential arguments about the state's value, and similarly about the sorts of goals the state exists to achieve. such considerations will never be adequate to actually serve to restrict what the state might legitimately do, however—they are merely suggestive in nature. for, if whatever present-day consent of the people legitimates them, they could legitimate any social structure whatsoever, and by contrast, if not, then they do not legitimate even the structure given by the social contract theorist.

the suggestive discussions found in social contract theory can still be helpful in helping people to see what kinds of societies they might want to consent to today and what kinds of social changes should be deemed worth pursuing, and why.

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