The Myth of the Social Contract

One of the most erroneous political ideas is the notion of the social contract. The idea is that the legitimacy of a government is based on a social contract between the people and the government. In America, the constitution is supposed to be our social contract. But since no such "social contract" has ever been an actual voluntary contract among "the people", it cannot be said to have any genuine authority under any common sense standards of justice. None of us ever signed the document (and even when it was drafted, it was only signed by a tiny aristocracy of people). Rather, we are assumed to have implicitly "consented" to it merely for being born within the territory. This strikes me as incredibly unjust. A true contract requires explicit consent. However, the standard view of the social contract is that everyone implicitly agrees to it by simply living under a given government.

The idea of a contract that I never signed that binds me to the authority of the state from birth, is akin to slavery from birth. I never signed no stinking contract. How is it that I am binded by this document for merely being born within the territory? How is it that I am obligated to serve a particular band of men for merely being born within the territory? How can a document be self-enforcing? It cannot, it must be created and enforced by flesh and blood individual men. How can the law rule all on its own? It cannot. The rule of law is a concept meant to, or that at least functions to even without such intent, disguise what is really the rule of men. The state can not be contractual. If such an institution truly is contractual, it ceases to be a state in any rational definition of the word.

The Lockean view of sovereignty essentially boils down to the idea that as soon as the constitutional contract is broken by the government, it is no longer binding and the government therefore no longer has sovereignty. In fact, without realizing it, Locke throws a huge bone to anarchists, because no government in the history of mankind fits the criteria necessary for his social contract. He was indeed denounced by his detractors as being an anarchist, for they quite correctly realized that the implications of his theory of sovereignty would completely delegitimize all existing states. Under common sense standards of jurisprudence, and Lockean principles, the constitution literally is not a binding contract. Furthermore, even if we treat it as having once been binding, the government has long since reniged on its contractual obligations. Therefore, under the classical liberal theory of sovereignty, it (and the government that it spawned) has no legitimate authority.

What about the idea that the constitution gives us our rights? It does no such thing. Rights are natural. You have them regaurdless of wether or not the law recognizes them. If the 2nd amendment was not in the bill of rights, you would still have a right of self-defense. It would not be legally recognized, but you will still have that right. This is the Lockean-style view of natural rights. You have them by virtue of being a human being. Constitutions do not give you your rights, they can only legally recognize them. Rights do not come from governments or laws, they come from human nature itself. All the government can do at best is abstain from violating your rights. In the Lockean view, governments and laws may be instituted in the name of securing these rights, but they are not where they derive from.

Thomas Jefferson said it best: "A free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate." -- Thomas Jefferson

From a practical standpoint, the constitution already has been shown to not work. It was defied almost from day one and the post-civil-war federal government, and especially the post WWI federal government, essentially has little to no resemblance to the document_ The constitution already has failed, so I don't see the logic in trying the exact same thing again. Clearly, the document can either be interpreted in a manner that implies the opposite of its original intent or meaning, or outright defied anyways. The document was flawed in the first place (not to mention that it was expansive in comparison to the document that preceded it, namely the AOC).

What about the content of the constitution? While it has been argued ad nauseum that it's "original intent" (or, to take a somewhat more strong stance, the "original meaning" of the words in themselves) was to limit the government's powers, the document itself contains plenty of "loopholes" and vague language that can easily be construed (and have been so construed) to grant expansive powers not intended or apparent within the plain language. The "general welfare" clausecomes to mind most of all. It has been used to justify practically anything the government does, for "general welfare" is a loaded, subjective and arbitrary term. Who's welfare, and what exactly is welfare? Who will define this for us? "The supreme court", you answer? What kind of limit on government is this, that it may define its own powers arbitrarily and at whim?

Not only can the constitution not work and has been empirically shown to not have worked, but it cannot be ethically justified to begin with.

Comments

# Geoffrey Allan Plauché said on 18 December, 2007 10:51 AM

You might be interested in my working paper: "<a href="www.veritasnoctis.net/.../persistentanarchyapsa2006.pdf">On the Social Contract and the Persistence of Anarchy</a>."

# Brainpolice said on 19 December, 2007 05:17 AM

Thanks for the link. I'll definitely give it a look. I enjoy what I've seen from you so far.

# Brainpolice said on 19 December, 2007 05:25 AM

For some reason the link leads to your main page rather then the pdf file.

# Jon Roland said on 19 December, 2007 08:30 AM

"Brainpolice" (Alex Strekal) is unclear on the concept of "social contract". For a better treatment see www.constitution.org/soclcont.htm

# Brainpolice said on 19 December, 2007 03:07 PM

How did you know my real name?

In either case, I do know that one view of the "social contract" is that it is the result of a merely unwritten agreement of civility that constitutes society. Basically, customary law is the "social contract". In this sense of the term, I fully support the idea of a "social contract". However, this is NOT the standard view of the social contract, nor is it what I'm critisizing.

# Geoffrey Allan Plauché said on 19 December, 2007 07:42 PM

The link got messed up somehow. I guess this blog doesn't support html. Here's the correct link:

www.veritasnoctis.net/.../persistentanarchyapsa2006.pdf

# Brainpolice said on 20 December, 2007 06:01 AM

I agree with your thesis: we never really get out of a state of nature. It reminds me of the "Do We Ever Really Get Out Of Anarchy?" paper by Alfred Kuzan.

# Geoffrey Allan Plauché said on 20 December, 2007 05:17 PM

My paper is draws on his analysis in part.

# zsignal said on 20 December, 2007 06:03 PM

The "social contract" often gets brought up to defend state redistribution of wealth

# natschultz said on 09 January, 2008 02:06 PM

I believe that Locke knew exactly what he was saying when he wrote that as soon as the government breaks the contract, that the contract is no longer binding, and that the government then loses sovereignty.  The People own the contract, so this is the fail-safe to guarantee that no sovereign may rule over the People, but the sovereign is to represent and defend the Rights of the People.  You are thinking of the government as a sovereign Ruler above the People, not a representative OF the People.  Locke was well aware that Rights are natural, but he was well aware that a legal document was necessary to protect those Rights from being violated by an unruly government.  He designed the contract as an unbreakable constant; he fully intended the People to hold it in perpetuity and depose any and every government that breaks it.  He fully expected that every government would reach a point where it would try to rule over the People, and he believed that the People would use the contract to legally depose each and every one of those governments.

The Declaration of Independence states "It is the Right of the People to alter or abolish it, and to institute new Government."

It is We the People who failed, not the Constitution.  We failed by not deposing all those who broke the contract.  We confused our roles; we somehow decided that the goverment, as defender, was also the owner of the contract, not us.  Not like the government didn't have a hand in that propaganda.

Locke was not an Anarchist, he was an Idealist.  Unfortunately, the People did not live up to his ideals.

# Brainpolice said on 10 January, 2008 12:47 AM

Part of my point is that there is no such thing as a government that upholds such a contract and is formed on the basis of a voluntary contract. That is, there never has been explicit consent to a government in the first place. And under common sense standards of how a contract works, there is no such binding voluntary contract in existance on a political level. So Locke, in still maintaining a classical liberal position, didn't fully apply his own theory or take it far enough.

You're right that Locke was not an anarchist. But it seems undeniable to me that his theories have profoudly anarchistic implications and influenced early anarchism. His opponents attacked him because they knew quite well that the implications of his theories would delegitimize existing ruling governments of the day. The consistant application of Locke's theory would seem to lead to market anarchism, since it would have to be a genuine private voluntary contract among all participants.

# dognillo said on 09 February, 2008 10:48 AM

Brainpolice, I like your postings. They are very logical and thoughtful. I wonder, have you ever read any of Butler Shaffer's or John Hasnas' articles. If not, I recommend "What Is Anarchy" by Butler Shaffer and "The Myth of the Rule of Law" by John Hasnas. Actually, I would recommend anything either of them have written.

# Brainpolice said on 28 February, 2008 12:31 PM

Yes, I have read Shaffer and I like what I've seen.

# Bravochals said on 07 December, 2011 04:02 AM

the read is good on Social Contract, thanks

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