Nothing is more useful to the State than the notion that its rule is justified. As governments cannot forever rule by force alone, it is expedient for them if their subjects sense an air of legitimacy about the prevailing political authority. Prudent governments and their champion intellectuals tell a story of how those in power acquired the right to coerce and how subjects inherited a duty to submit. For centuries in the West, this story was the divine right of kings—god had personally sanctioned the dominion of the monarch and made him unquestionable by subjects of any class. This story was eventually supplanted with the more secular origin story of the social contract. Though originally conceived as a defense of English royal rule, with the disposal of autocratic kings, versions of this theory have become the prevailing justification for democratic and republican governments. Because acceptance of this story is so prevalent, it must be investigated first whether it ever occurred, and second if this is a proper justification for a government’s monopoly on the legitimate use of violent force.
The story starts with a state of nature, a time prior to the conception of political authority and one of total freedom. Thomas Hobbes famously characterized life in this time as “solitary, poor, nasty, brutish, and short” due to each man’s tendency to quarrel in competition over resources, to secure his survival and for prideful glory. It is a state of “war of every man against every man.”1 Hobbes came to this conclusion, strangely enough, watching men who never lived in a state of nature killing each other to control an already-established political machinery during the events of the English Civil War. The irony was lost on him. As individuals become dissatisfied with this constant warring in nature, they seek to contract with one another in order that they may secure their persons and their property and to “confer all their power and strength upon one man.”2 This contract is “made by covenant of every man with every man,” each explicitly surrendering his rights to one man or group of men.3 And voilà! Legitimate political authority has been born!
John Locke imagined the state of nature differently. Instead of being a time of endless quarrel and misery, it was actually one governed by reason and “without subordination or subjection.”4 Just as Hobbes does, though, Locke explains that eventually all individuals wished to abandon the absolute liberty of the state of nature for the security of civil society. The only way this liberty can be surrendered by any individual “is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another” under the political authority of the majority.5 In both Hobbes’s and Locke’s stories, the sovereign, whether it be a single man or a group of men, can only become legitimate by consent not of the sovereign-to-be, which does not yet have authority (to say otherwise is to beg the question), but of each individual who is to be party to the contract.
Consider how unlikely it must be that in the lineage of any government (a fortiori, every government) there was a transitional moment where all men, living in a state entirely absent of political authority, agreed to forsake their natural liberty and equality with no dissenting voices and no forced “agreement” to terms. While some point to Hobbes and Locke as originators of methodological individualism, where phenomena are explained by how they result from the actions of individual agents, the two actually take a holistic approach only occasionally disguised in individualistic language. The fact that no hypothetical individuals are ever mentioned in the story as acting in any way other than the way each other individual is acting suggests that men act uniformly and as a whole. How strange it is, particularly for Hobbes, that there was only consensus and unanimity over the social contract among the men who are so naturally quarrelsome and trifling in every other aspect of their lives.
One of the first skeptics of the story of the social contract was David Hume, who questioned its historical accuracy. Consent of the governed would be a just birth of political authority, he argued, but this is not how existing governments had been born. If Hobbes and Locke looked at the world, “they would meet with nothing that, in the least, corresponds to their ideas.” Indeed, most states as far as we can trace have been “founded originally, either on usurpation or conquest, or both, without any pretence of a fair consent, or voluntary subjection of the people.”6 Franz Oppenheimer described the State arising from economically productive agrarian societies being raided by tribes of hunters or herders. These tribes were originally concerned only with occasional looting, but “it begins to dawn on the consciousness of the wild herdsman that a murdered peasant can no longer plow, and that a fruit tree hacked down will no longer bear. In his own interest, then, wherever it is possible, he lets the peasant live and the tree stand.” When the raiders learn that conquest is more productive than simple, total looting, the State is born and it begins to collect the agricultural surplus as tribute.7 Countless examples—Vikings, Huns, Tartars, Turks, Mongols—can be provided of invading tribes amassing economic and eventually political power through dominion over stationary societies.
Both Hobbes and Locke, however, fail to give a single sufficient example of men voluntarily exiting the state of nature to join a political society. Locke offers to us stories of the foundation of Venice and Rome, where “several men free and independent one of another, amongst whom there was no natural superiority or subjection” came together to form a new political structure.8 “But these cases are not, of course, particularly telling, since they involve, not the foundation of a state by people who till then had had no experience of the political, but the foundation of a new state by exiles from an old one.”9 Perhaps aware of the feebleness of the argument that political order was established instantaneously from a state of nature, Locke also gives a “gradualist, anthropological account” that does not rely on “absurd historical pretensions,” but even this is without historical reference.10 Because both Hobbes and Locke fail to place their fingers on a single instance in which humans lived in a state of nature, the historical credibility of the social contract is dubious at best and likely outright false. Even if the theory of the social contract properly justifies governments that arise contractually from the state of nature, it is most certainly the case that none of the nation-states today were born in this way.
As Cody Wilson put it when he interrupted a tame documentary about the technology of 3D printing to inject his usual potent political polemic:
Every king is a despot. Every sovereignty, every asserted power, every superstructure and political structure ever was built on a fundamental crime. And for us to say, like, Well, we all came together at some point in the past and we all kind of consented and agreed and this is the way it is… No, everything is built on these unjustifiable acts and usurpations of power and we intentionally obscure that to ourselves to pretend, well, it’s a system and we’re all participating. No, that’s a slave morality. You’re just trying to justify why you live in an unjust world.11
But even if we assume that Hobbes’s or Locke’s stories are an accurate detailing of history, would the contract that arose be a legitimate one that truly justifies government as we know it, or any form of government at all? Michael Huemer outlines four characteristics a contractual agreement of any sort must have in order to be legitimate: Firstly, there must be “a reasonable way of opting out.” There must be an option to decline the contract without losing something to which one has a right. Secondly, explicit dissent must be taken to overrule tacit consent. We cannot assume an implicit agreement has taken places if one party is explicitly stating that they do not agree to the terms. Thirdly, we must be able to assume that if one party does not agree to the contract, the terms of the contract will not be forced upon him anyway. Lastly, the obligations of the contract must be conditional upon mutual satisfaction of duties. If one party fails to uphold his duty to the other, this other cannot be obligated to uphold his end.12
Experience tells us that the social contracts between the public today and their governments fail each of these tests of legitimacy. There is no reasonable way to decline the social contract since doing so would require leaving the state’s territory. Since leaving for another state would mean, by the same logic, accepting a new social contract, the only options for declining all social contracts would be to “live in the ocean, move to Antarctica, or commit suicide.”13 No government today recognizes explicit dissent as trumping the apparent tacit consent to the contract. If turning down the contract is not an option, we cannot understand any agreement to the terms to be consensual. It is well understood that regardless of whether or not one agrees to the terms of the social contract, the political authority’s laws will be forced on one and one will be taxed. Finally, in exchange for a subject’s fealty, the social contract obligates the state to provide protection of each signee’s rights from criminals and invaders. Of course, states fail to uphold this end of the bargain quite regularly, but citizens are still required to maintain their duties to the state. There is no evidence that political authority at its outset operated any different than modern states in these respects, and therefore the social contract is not a contract at all, but coercion with the shallow illusion of choice.
Tacit consent is the last-resort argument for the social contract. The entire justification of the State is hinged on the idea that you and all of those before you, by a certain quality of your existence, implied your consent to be coerced. Imagine great cathedral doors of wrought iron hinged on a binder ring… with the caveat that the binder ring just happens not to exist. According to Locke, “the very being of any one within the territories of that government” implies consent to the social contract and binds one to all laws of the government because they have benefited from that contract’s existence, since having possessions and enjoyment is a part of the dominion of government.14 In short, everyone has agreed to the social contract because they enjoy the privileges of such a contract and because they occupy the land belonging to the government, just as anyone who is a visitor in your home agrees to the rules of your house.
But how did the State come to be the legitimate owner of its territory? Currently, states “own” their territory because they (1) have expropriated the land from the prior indigenous occupants, and (2) use coercion over those inhabitants whom they have granted land titles. This does not explain the origin of the State’s right to its property, as (1) and (2) could only be legitimate once it had already established a legitimate claim to the land.15 If consent is antecedent to the State’s legitimacy, then tacit consent by inhabiting a certain geographical area cannot possibly exist because the State does not yet own that area. Only a paradoxical, retroactive tacit consent is present, i.e. you have consented to the State’s dominion because you live on land that the State will own once you tacitly consent to it. Only time travel could make this something other than absurd.
What does this say about existing, democratic régimes? The United States Constitution begins with “We the People.” Did not the People consent to seceding from the British Empire and establishing a new state? During the Reconstruction Era, abolitionist Lysander Spooner questioned whether the Constitution was a legitimate contract and whether anyone could be justly ruled by the government it authorized. Arguing against the idea that participating (and thereby benefiting from the social contract) in political process implies consent, Spooner reasoned that voting was the only legal method of self-defense against the governmental system to which one does not consent, and just as a slave who is forced into battle as a gladiator does not communicate consent to the conditions by killing to save his own life, voting as an attempt to curb the state’s control over oneself is not consent to that control.16 “It is a general principle of law and reason, that a written instrument binds no one until he has signed it,” Spooner argued, thus concluding that since the Constitution was never signed by anyone (which is certainly less than everyone) and was only ratified by bodies supposedly representative of landed White males over the age of twenty-one alive during the late eighteenth century, the document and the government it establishes has no legitimate binding authority over anyone, especially those living decades and centuries after its creation.17 The Constitution, the founding document of the United States which would be the reification of the social contract theory, it turns out, is not a contract at all.
Hobbes and Locke both suggest that there were decisive moments in which all the members of a certain geographical area simultaneously consented to the foundation of political authority. It is evident that this does not describe the origin of any modern state. If any state originated out of nature from contractual agreement, it is most probably a lapse into the aggregating falsehood of methodological holism to suggest that the people as a whole were in favor of this new, radical contractual obligation. It is politically convenient for the state and its benefactors to promulgate the idea that we and all our ancestors have all consented to the power held over us, even if our actions and words explicitly express the contrary, but it is a fiction that cannot be confirmed historically or justified philosophically.
- Hobbes, Thomas. 2014. Leviathan. Adelaide, Australia: University of Adelaide. ch. XIII.
- Ibid. ch. XVII.
- Locke, John. 2014. The Second Treatise of Civil Government. Adelaide, Australia: University of Adelaide. §4.
- Ibid. §95.
- Hume, David. 1987. Essays, Moral, Political, and Literary. Indianapolis, IN: Liberty Fund, Inc. Part II, essay XII, §9.
- Oppenheimer, Franz. 1997. The State. San Francisco, CA: Fox & Wilkes. 25–33.
- Locke, John. 2014. The Second Treatise of Civil Government. Adelaide, Australia: University of Adelaide. §102.
- Waldron, Jeremy. 1989. “John Locke: Social Contract versus Political Anthropology.” The Review of Politics 51 (Spring): 8–12.
- Print the Legend. Directed by Luis Lopez & J. Clay Tweel. 2014. Santa Monica, CA: Audax Films.
- Huemer, Michael. 2013. The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey. New York, NY: Palgrave Macmillan. 25–27.
- Ibid. 27–28.
- Locke, John. 2014. The Second Treatise of Civil Government. Adelaide, Australia: University of Adelaide. §119.
- Huemer, Michael. 2013. The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey. New York, NY: Palgrave Macmillan. 28–29.
- Spooner, Lysander. 1973. No Treason. Colorado Springs, CO: AKPress. 14–16.
- Ibid. 22.