The Social Contract Isn't Worth the Paper It Isn't Written On (2023 Version)

Governments can ground their authority in a lot of things.  They can be Islamic republics grounding authority in the Qur'an and Islamic law.  They can hold to the divine right of kings.  They could submit unconditionally to the will of a dictator.  Within the past few hundred years, in the Western world, the authority-foundation of choice has typically been some version of the idea of the "social contract."

One central idea of the social contract is that the people of the society as a whole are the ultimate holders of political authority in the society.  The people delegate this authority to governors of some sort - whether this be a king, an emperor, a group of regularly-elected officials with term limits, or whatever.  Beyond this basic picture, there are differences in terms of what the social contract means.  One of the biggest questions, in my view, is "What is the ultimate basis of governing authority?"  Sure, the people hold the authority, but are the desires of the people the ultimate foundation of the moral authority of government, or do the people exercise power in accordance with a higher moral standard which gives ultimate reality to the authority (and limits) of government?

The Catholic Church holds the latter view.  Various Catholic theologians for centuries have been considering and positing the people as the ultimate human holder of authority in society, and the Church has come to adopt this viewpoint, but with the caveat that all authority is ultimately derived from the objective moral law of God:

The subject of political authority is the people considered in its entirety as those who have sovereignty. In various forms, this people transfers the exercise of sovereignty to those whom it freely elects as its representatives, but it preserves the prerogative to assert this sovereignty in evaluating the work of those charged with governing and also in replacing them when they do not fulfil their functions satisfactorily. Although this right is operative in every State and in every kind of political regime, a democratic form of government, due to its procedures for verification, allows and guarantees its fullest application. The mere consent of the people is not, however, sufficient for considering “just” the ways in which political authority is exercised. . . .

Authority must be guided by the moral law. All of its dignity derives from its being exercised within the context of the moral order, "which in turn has God for its first source and final end”. Because of its necessary reference to the moral order, which precedes it and is its basis, and because of its purpose and the people to whom it is directed, authority cannot be understood as a power determined by criteria of a solely sociological or historical character. “There are some indeed who go so far as to deny the existence of a moral order which is transcendent, absolute, universal and equally binding upon all. And where the same law of justice is not adhered to by all, men cannot hope to come to open and full agreement on vital issues”. This order “has no existence except in God; cut off from God it must necessarily disintegrate”. It is from the moral order that authority derives its power to impose obligations and its moral legitimacy, not from some arbitrary will or from the thirst for power, and it is to translate this order into concrete actions to achieve the common good. (Compendium of the Social Doctrine of the Church, #395-396, footnotes removed)

In the history of its development in the Western world, however, the social contract has often been developed as if from a more naturalistic point of view - that is, from the view that any greater reality above the empirical world either doesn't exist or can't be known and is therefore irrelevant.  This is not to say that the developers of the social contract idea in Western history have not believed in God or an ultimate moral authority, but there has often been a tendency to treat the subject as if the "consent of the governed" is the highest basis for any authority the civil government might have.  And especially in more recent times, many more people have approached the social contract idea from a more clearly naturalistic (at least agnostic) point of view.  One of the most famous early critics of the social contract idea was David Hume, who himself tended to approach philosophy from a more agnostic point of view, but who was dubious about the legitimacy and effectiveness of trying to root governmental authority ultimately only in the "consent of the governed."  You can read some of his criticisms here.  What I want to do now is examine the naturalistic social contract idea and make a case that it is fatally flawed.  I want to argue that the idea of the “consent of the governed” as the ultimate basis of the moral obligation for people to obey their governments turns out to be inadequate to ground such an obligation, either in theory or in practice.  Practically, there is simply not enough consent available to hold society together without a kind of coercive enforcement that can’t justify itself solely by appeal to the consent of the governed.

Let's start by taking a closer look at the basic idea of this naturalistic social contract theory.  In a naturalistic point of view, there is no objective moral law--that is, there is no absolute moral law that transcends the particular desires and goals various finite beings tend to have.  Since there is no objective moral law, there is no basis for any idea of objective authority.  Morality reduces to nothing other than "What do I want and how can I get it?", and it follows from this that nobody is the boss of anybody else.  My ultimate boss is my own desires, and your ultimate boss is your own desires.  It would seem to be a difficult prospect to get a set of laws to govern an entire society out of this sort of ethical philosophy.  Basically, you can go two ways:  1. You could go what I call the "dicatatorship" route--basically, that would be when one person or a group of people come up with a set of laws and then tell everyone else that they have to follow them or they will beat them up.  2. You can go the choice way of the modern West, the "social contract" route, which goes like this:  I'm my own boss and you're your own boss, but I want to respect your "autonomy" and I want you to respect mine (perhaps for reasons of self-interest mixed with feelings of compassion, etc.).  That means I don't want to impose laws on you and I don't want you to impose laws on me.  So what we do instead is come up with a set of laws that we all can agree on.  Then we can unite into a common society without having anything being imposed upon anyone.  Governing authority can be based on the "consent of the governed."  "We the people" will ordain our own laws and be the ultimate source of governing authority.

At this point, things start to get interesting.  It sounds great to base laws on the "consent of all the governed."  The problems start when we realize an important fact--the governed don't agree on nearly anything at all.  That would seem to pose a bit of a problem.  So what are we going to do about it?  At this stage, we get to watch the creativity of social contract proponents go into full gear.  One possibility is that we can go with the majority point of view.  We have some kind of a vote on everything, and then we do whatever the most people want to do.  That's basically how John Locke, the great political philosopher of the seventeenth century, seems to look at it.  Or at least that's what he focuses on towards the beginning of his Second Treatise of Government:

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. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest (Second Treatise of Government, section 95).

The problem with this approach is that it only preserves the consent of the majority and not that of all the governed, which was the whole point of the social contract in the first place.  Why should the majority be able to tell me what to do?  What gives them that authority?  If we say they have that authority intrinsically, without my consent, then we've abandoned the whole "consent of the governed" idea for something entirely different, and we then will have to provide a justification for why the majority, merely by being such, gets to have authority over other people.  If we want to stick to the social contract, we have to say, as Locke does above, that it is the consent of each and every one of the governed that gives the majority the right to rule.  But then that returns us to the original problem:  What if I don't consent?  What if I say that I don't want to do what the majority wants me to do, because I'd rather do something else instead?

This is where things start to get rather complex.  The typical next move the social contract advocate makes, in response to the uncooperative pestering of its critic, is to explain to the critic that although he may not think he consents to a certain law, he really does.  For example, take this dialogue between a Social Contract Advocate (in this case a police officer) and his Uncooperative Critic:

SCA: You were driving 100 mph in a 65 mph zone.  I'm giving you a ticket.

UC:  But I don't want a ticket.

SCA:  Well, of course you don't want a ticket.  But you're going to get one anyway, because you broke the law.

UC: But I don't consent to the law that says I can't drive 100 mph in 65 mph zones.

SCA: Yes, you do.

UC:  No, I don't.

SCA:  You chose to live in this country, didn't you?

UC:  Well, I was born here and didn't have much say in that.  But I suppose I could have moved someplace else, so yes, I guess I have chosen to live here.

SCA:  Well then, you see, by choosing to live in this country, you implicitly consented to obey the laws of the land.

UC:  No, I didn't.

SCA:  Yes, you did.

UC:  Look, you say that merely by living in a place one consents to its laws.  But I don't consent to that principle, and so you can't impose it on me.  According to my principles, I chose to live here without consenting to agree to any of the particular laws.

SCA:  You can't do that.

UC:  Why not?

SCA:  Look, we can't just let you go around breaking laws.

UC:  Are the laws of this country based on the "consent of the governed," or not?

SCA:  They are.

UC:  Well, I don't consent to this one!  You can use force to make me do what you want me to do, but you can't claim to have my personal consent as the basis for your authority to do so when in fact you do not have my personal consent!

SCA:  But you chose to live here, and that means you consented to obey the laws--implicitly.

UC:  No, I didn't!

SCA:  Yes, you did!

And so on.  Where this approach gets really interesting is when it is used to impose laws or policies that are extremely controversial, such as policies allowing civil recognition of same-sex marriages.  [ed. I wrote this back in 2013 when same-sex marriage was still significantly controversial in mainstream American society.]  Political theorists have spent a lot of time and energy over the past few decades trying to justify imposing controversial laws and policies on entire populations while still claiming to be preserving the consent of all the governed.  Perhaps the most famous of those political theorists was John Rawls.  Here is Rawls's formula for how we can be sure our laws and policies are legitimately based on the consent of all the people:

Our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason (John Rawls, Political Liberalism [New York: Columbia University Press, 1996], 137).

Well, there you go!  Just base your laws on things that all people can reasonably be expected to endorse, and you'll be fine!  The trouble is--once again--that the list of things that all people will endorse is very small.  "Don't be pessimistic," say the social contract advocates, "There are a lot of things that all people can reasonably be expected to endorse, such as policies allowing civil recognition of same-sex marriages!  You see, opposition to same-sex marriage is based simply on religious beliefs, and everyone knows that you can't expect everyone to endorse those.  So, unless you want to be an unreasonable bigoted dictator, which we know you don't, you won't want to make laws limiting people's freedoms based on your religious beliefs, and so you will be in favor of same-sex marriage!  You see how easy it is?"  At this point, the dialogue between the Social Contract Advocate and the Uncooperative Critic may go something like this:

UC:  But I don't consent to allowing civil recognition of same-sex marriages.

SCA:  Yes, you do.

UC:  No, I don't.

SCA:  Why are you--or, excuse me, why do you think you are against this?

UC:  Same-sex marriage is a violation of the laws of God, which I believe that the civil government should uphold.

SCA:  But you don't want to impose your religious beliefs into law, do you?

UC:  Well, yes, actually, I do.  They are not simply my religious beliefs.  They are what I believe to be the truth.  God wants civil rulers to base their laws and policies on his moral law, and so that is what they should do.  All laws impose some set of beliefs and values into law.  I just think we should impose true beliefs and values instead of false ones.

SCA:  But it is unreasonable to impose one's religious beliefs into law!

UC:  No, it isn't, not if they are true.

SCA:  But people disagree with your religious beliefs, so you'd be imposing them on people who disagree with them!  And that's unreasonable!

UC:  All laws impose beliefs and values on people who disagree with them.  Hence the need for law enforcement, prisons, etc.  For example, you want to impose on me a civil policy of recognizing same-sex marriage, even though I disagree with the idea of having the sort of society that kind of policy will help to create.

SCA:  You're comparing apples to oranges!  It's not the same thing, because what I am trying to do is reasonable while what you are trying to do is unreasonable.

UC:  Perhaps you see it that way, but I see it differently.  I think that I am being reasonable and you are being unreasonable.  And anyway, whichever of us is actually reasonable, I don't consent to your same-sex marriage policy, and so you can't impose it on me according to your own rules.

SCA:  No, I am preserving your consent.  You're just being too literalistic and superficial.  You see, because what I want to do is reasonable, all reasonable people will agree with it.  Therefore, I can reasonably expect all people to agree with it.  If someone says he doesn't, it is simply because he is ignorant and uninformed.  If he were more reasonable, he would see that he really wants what I want.  So while he may protest that he does not consent, in a deeper sense he really does consent, even though he doesn't realize it.  So, for example, you may think that you don't consent to civil recognition of same-sex marriages, but that is only because you are confused and ignorant.  The deepest and best part of you, if adequately educated and trained in good thinking habits, and perhaps given some lessons in compassion, would recognize that I am right and fully support my position on this.  Therefore, in the deepest and most important sense, you really do consent to what I want, even though you say and even think otherwise.

It should be plain to any objective (dare I say any "reasonable"?) observer that the social contract idea is in deep trouble if its advocates have to resort to these sorts of bizarre contortions in order to maintain its validity.  The obvious fact of the matter is that you can't claim to have the consent of all the governed for any particular law if in fact all the governed don't consent to that law, and no amount of game-playing or fancy rhetoric can change that.  The idea that all governmental authority can be based solely and ultimately on the consent of the governed is a sham.  It doesn't work.  It isn't worth the paper it isn't written on.  It is simply a way for naturalists who don't want to think of themselves as dictators to feel better about themselves when they tell other people what to do and punish them for not doing what they want.  It is understandable that modern Western people want to find a way to ground governmental authority which leaves out religion and at the same time avoids a crass "might makes right" kind of domination.  But there really is no way to have that.  It simply cannot exist.  If human desires are the ultimate foundation of morality, and if we are going to have human societies with laws and governing authorities, then we are going to have societies where some people enforce their desires on other people, telling them what to do and making them do it, whether they consent or not.  No amount of contorted reasoning, fancy political rhetoric, or hand-waving can change that.