I have lately been arguing primarily over the expediency of the state, which is not, I think, where the decision among governmental systems is best made. Precise determination of the actual results of a system of governance is impossible, relying as it does on indeterminate human action, and even approximate prediction is rather difficult. By comparison, ethical determination is determinate, and easier. Consequently, I believe that we ought to compare systems first on account of their ethical rectitude.1
Here I work from the assumption that individuals have a right to their possessions and body, which implies that they also have a right to seek recompense for violations of their rights unless they alienate that right to another. Justifications of the state that deny this assumption I shall treat elsewhere.
The state I here define as an institution that maintains a coercive monopoly of compensatory justice (as opposed to a de facto monopoly arising from the unlikely event that all people turn to the same agency for protection). While many entities that meet this definition would not be considered just governments, I doubt that any would consider a state any institution that does not prohibit competition. In consequence of this definition being underspecified, I accept the burden of proving that no contractual theory can justify any states so defined. I might note in passing that nearly all states tax their citizens and most aggress against rights in many other ways; however, as social contract theory cannot justify any violation of rights, I shall consider only the minimal definition above.
In order to justify the state’s coercive monopoly in light of the above assumption, one must explain how the right transfers from the individual to the state. The recognized method of alienation of a right to another in free society is the contract; thus, all theories that I have encountered in defense of the state within a negative rights framework posit some sort of contract between the individual and the state whereby the individual alienates his right to compensatory justice to the state (the one seeming exception, IV below, does not actually accept individual rights, but as it calls itself a social contract theory and seems popular among American traditionalists who claim to recognize rights, I shall address it here).2 I shall thus consider the four theories I have encountered; if I have overlooked any that is differentiable from those following in more than name, please bring it to my attention.
I. Explicit social contract
Explicit social contract theory posits that documents such as the US Constitution constitute a contract between the people and the state, and thus that states are by contract the exclusive agents of the citizens. While such an explicit contract would justify a state, this theory cannot justify extant states for three reasons. The first is that many states generally considered legitimate have no such document (such as that of the United Kingdom). Thus, at best this theory could justify only a subset of even democratic states. The second problem is that no contract binds the descendents of the signatories.3 Consequently, for the Constitution to be binding on those not alive at its initial adoption by explicit social contract theory, they would need to somehow explicitly adopt it. Even if one believes that those who do not object to it accept it by implication (“silence is consent”), explicit social contract theory must hold that if I repudiate the state as my agent, my alienation of my rights to it ceases. Thirdly, explicit social contract theory fails to account for the fact that no Constitution has, to my knowledge, been adopted unanimously. Therefore, were the state justified by an explicit contract, it would not bind those who did not approve of its initial ratification; the state’s prohibition of their pursuit of compensatory justice by other means is unjust.
II. Majoritarian social contract
Majoritarian social contract theory attempts to solve this third problem by positing that the majority in a nation have a right to bind the minority. I would first note that this is incompatible with any theory of individual rights, except if one arbitrarily exempts certain rights from the domain of the majoritarian contract (thus positing a distinction between societal rights, at the whim of the majority, and personal rights): if the majority may justly violate the rights of the minority, can the minority be said to have any rights at all? Also, this is not actually a theory of contract, for where else is a contract binding on those not signatories? If two in a group of three decide to despoil the third, is this not robbery? Is it not also if the majority of those in a neighborhood do the same? Why, then, does a different rule apply to the nation? How does the decision of some part of the population to pursue justice in a certain manner compel me to do the same? The justification of democratic elements in a state rests on the legitimacy of the state as a whole; founding the legitimacy of the state on majoritarianism then begs the question unless one posits some principle that says that “the majority of those forming a ‘nation’, but not those forming a neighborhood, nor those in only incidental relationship, have a right to bind the minority to do the bidding of the majority.” And what proof will be raised of this notion, aside from its necessity in justifying the state? In ethical determinations, let us accept only self-evident principles and those derivable therefrom; I hardly see how majoritarianism is self-evident. Two men may no more be justly despoiled by the two than by the one; why should the principle change when the numbers rise to the millions? Finally, majoritarian social contract theory cannot justify any deviations from democracy, thus invalidating the US Constitution (for although it binds individuals, its ratification did not grant votes to the states in proportion to population), and it still cannot explain how those two centuries dead bind me today.
III. Implicit social contract
Implicit social contract theory, on the other hand, attempts to explain the first two problems with explicit social contract theory, the occasional lack of explicit founding documents and the absence of intergenerational binding, by positing that by residing in a nation one consents to its government. This, however, requires a belief that I find difficult to grant. One may make continuance upon his property subject to any conditions he might choose, but his neighbor has no right to do the same. If one should say to his neighbor that if that neighbor does not pay a certain sum per month he would extract it by force, unless the neighbor moves away, it would be robbery; the fact that the neighbor “consents” to the force by refusing to move makes no difference. Therefore, if the government should tell me that my continuance within its borders is conditional on my alienating my right to pursue justice on my own account to it, it is ultimately asserting that it, not I, holds the allodial title to my land, and I hold it as a tenant at its pleasure. How, I must ask, did it acquire this title? Not originally; one appropriates title to land by mixing it with one’s labour. When did the state stir itself to help the settlers who tamed the land? When they left, it forced them to purchase the land, to which it had contributed nothing; when they produced, it burdened them with taxes, taking from them what they earned without its aid; when they prospered, it burdened them with its regulatory fist, lest it be thought that prosperity outside the control of the state is possible. By what right, then, does the state claim the land? Perhaps it wishes to claim that it purchased most of the land from other nations. And when did those other countries acquire the ultimate right to land developed by others? How do the petty transactions of the tyrants place obligations upon me? Perhaps it wishes to claim that the allodial title was transferred at the ratification of the Constitution. But where does the Constitution say that those who consent to it sacrifice thereby the true ownership of their property? If that is the case, then our government is founded upon sheer fraud and theft. And what of those nations that have no defined beginning, no constitution? How do the actions of the warlords of centuries past bind the English citizen of today?4 Furthermore, I again raise the point that not all consented to the Constitution. How does one’s rejection of a contract bind one to its terms? One could, of course, add to implicit social contract theory the argument of majoritarian theory, that the majority, in their consent, rightfully despoiled the objecting minority. But need I say anything in reply? The government claims to be under the laws. What law permits the two to despoil the one? Furthermore, all varieties of implicit social contract prove too much. If my residence in the US justifies its government’s power over me, then surely residence in a tyranny justifies the actions of its government. Who has so little heart as to tell the starving, oppressed peasant that he invites his hardship upon himself by his continued residence? But one might say that his master compels his residence, while our state does not. But where can I go, to be free of the state? Everywhere I turn the oligarchs have claimed sovereignty. What refuge offers me an actual alternative? Choice implies no consent if all the options are unjust. Can the thief justly claim that because his victim freely chose to part with his money rather than his life he parted with his money voluntarily, and thus that the thief’s action was not unjust?
IV. Nonconsensual social contract
This is not really a theory of social contract, for a contract achieves nothing without consent. Glossing utilitarianism with the terminology of freedom does not justify the transaction. However, I shall address this theory here, in accordance with its self-proclaimed identification. The theory is that the state is a necessary evil, for rights will be violated whatever happens; a state that prevents violations of rights greater than those that it causes is justified.5 It ought to immediately strike the reader that, while phrased in the language of rights, this theory is in fact about no such thing. If I have a right to something it means not that other people must promote it (the liberal’s error), but respect it. A system of negative rights makes me responsible for the harm one does to others, but not done by others. Therefore, if one wrongs one man to help another, the wrongs for which he is responsible increase, while the reduction is in wrongs for which he is not responsible. For this theory to work, it must deny individual rights, and instead proclaim broad societal goals for which all are responsible. It then becomes nonsensical for anyone to claim his individual right to the proceeds of his labor, or to his life itself, for all is subsumed by the societal interest. But let me leave aside that argument, for I neither wish nor need to rest on the assumption of individual rights here. This justification rests on a calculation impossible in both practice and theory, for at what ratio may the state exchange life for property, or vice versa? How much may it steal from its citizens, if it should show a life saved at the end? How many may it kill to prevent a theft? Individuals may make decisions were no exchange ratio exists, for they may subjectively weigh two states of the world and choose the one which they prefer, but the state’s justification must be objective, not subjective, and thus he who wishes to justify the state on such utilitarian grounds must identify and justify his equations. Furthermore, since no such equations have been proposed, how can we claim any state as legitimate by this theory? It serves at best as a hypothetical theory that might justify some future state, but which can do nothing at present. Furthermore, theft by the US government exceeds theft by its citizens by a ratio of 150:1. Even if the demise of the government increased private theft one hundredfold, theft would diminish by one third! The expediency of the present US government is far from obvious. Finally, why is this provision, like that of majoritarianism, restricted to the state? Why is the thief who steals to feed the starving culpable, but the state not? Why do the actions of millions follow different rules than those of individuals? Furthermore, let us note that the state prohibits other means of obtaining justice. When has a monopoly ever been found to provide more of its product, and of a better quality? Yet the state establishes such a monopoly. Can it be claimed that the establishment of a monopoly on the protection of rights better protects them?
I may generalize my observations: If individuals have a right to pursue justice on their own behalf, then that right, by its very definition, be taken by another without the consent of the individual. Thus, a social contract theory is only tenable insofar as it is also a private contract theory, in which each individual chooses for himself whether and to whom he may alienate his rights.6 Even if all men at some time decided to alienate their rights to a certain agency, creating a de facto monopoly, they would not be justified in preventing the creation of a new agency, or in forcing a newcomer to join the old.7 Thus, by simply positing that a contract that alienates one’s right to pursue compensatory justice to some agency must follow the same standards as any other contract, we arrive at anarcho-capitalism, with free choice of security agencies. I am a contractarian, and for that reason I find myself compelled to by an anarchist.
1 I would then apply the consistency principle and say that what is right cannot be inexpedient, although acceptance of this principle is unnecessary for acceptance of the primacy of ethics. More specifically, the consistency principle tells us that the practical and ethical determinations are both solutions to the same problem, and that, as an intuitive rule of thought, we should use the simplest approach (exempting some pedantic purpose). Actually, however, my argument is even stronger for someone who accepts the primacy of ethics but rejects the consistency principle, because then the solutions need not align and a determination of expediency is neither necessary nor sufficient (nor even relevant) for determining the proper course of action.
2 Strictly speaking, the contract would not be between the individual and the state because the state is formed by the contract, and therefore its existence is subsequent to the contract and it cannot be a signatory to it (unless one wishes to posit a powerless state predecessing the contract and then being granted its powers by the contract, but that seems counterintuitive). Thus, strictly, the contract should be among the citizens alone. However, few of these theories make sense viewed that way, for while a contract with one party being a group not all of whom consent to the contract may be plausible to some, I cannot see how a valid contract to which one signatory does not assent is plausible in the least.
3 Note that although debts may be claimed from estates, they may not be claimed from the possessions of the heirs.
4 I must here note that feudalism is legitimate (those who hold any true social contract theory cannot consistently claim any form of government lawfully contracted to be unjust); however, the feudal owners of the land in times past acquired the land over which they claimed dominion by theft, and thus they were not true owners of the property, and their nominal feudalism was invalid.
5 Alternatively, one may add the qualification that the government must minimize violations of rights to the extent possible without compromising its protections of rights, but it makes little difference. Can any right justify the slightest wrong?
6 Therein lies the distinction between the inability of choice among nations to justify the state and the ability of choice among protection agencies to justify the market: only in the latter case is there an option of abstention. No man has a right to purchase any product, but all men have a right to refrain.
7 Some might object that in this case the agency would probably not permit the split. I must agree (although I think the presence of such a de facto monopoly agency even less probable). However, even if this does occur, then we have again a coercive monopoly over the provision of justice–a state. If the possibility that anarchy would give rise to a state is the strongest argument against anarchy, then surely the certainty of a state would be worse?