A Libertarian Defense of the Social Contract

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I know, I’ve never signed the social contract either.

Now that that is out of the way, the real reason to defend the social contract is that it puts rights into a framework where they can be discussed and manipulated. Without an agreement, there are no rights in a literal sense; instead, there are any number of Platonic ideals which exist in the minds or philosophies of any number of different individuals or groups.

Were they simply articulated, they would only describe how people should act, and would not ensure that the parties involved act accordingly. The vast majority of the theories on human rights are never articulated at all, let alone put into practice. What is necessary to bring rights into being more concretely is an explicit, preferably universal framework defining the rule set used to interact with others; a social contract.

There is a tendency to claim absolute rights and not concern oneself with the corresponding responsibilities. Freedom of speech without the obligation to be subjected to speech that might be considered offensive is impracticable. Further, if someone does abuse their rights, for example, by committing an armed robbery, then the “inalienable” right to bear arms can be alienated by government or by civilians in the case of self-defense. These actions are predictable and reliable because of the social contract.

Rights, although supposedly self-evident, innate, and inalienable, defy being identified across groups at all levels of society. One can assert God-given rights, but it is clear that there is no agreement from people within the same religion – let alone between different religions – as to what those rights are. If rights are God-given, does the religion of a society change the rights of the people within it? While this was the prevailing thought throughout much of history, it is horribly outdated in modern society. Governments fare no better than religions at consistently determining what rights are, and the government of “the land of the free” fares no better, oxymorons notwithstanding.

The United States Constitution lists a couple of rights, then declares in the 9th Amendment that those not specifically stated still count too. The 9th Amendment in practice is grossly ineffectual; in Wickard v Filburn the US Supreme Court decided that a farmer who grew his own wheat to feed the animals on his own farm violated the interstate commerce clause. Even something so innate as the right to self-sufficiency is not obvious enough to be exempted from government attack in the “land of the free.” The inadequacy of unarticulated rights is shown clearly by the abject failure of the 9th Amendment to protect them.

The core of libertarianism is the belief in the primacy of the individual. History has shown us that in order to be real, individual rights must be backed by force. Without the ability to resist the state or other aggressors who may attempt to subvert one’s rights, those rights evaporate back into nebulous abstraction. Although the Kulaks in Ukraine may have been wronged during the Holodomor, pleas to the Soviets about the violation of their rights did not help to secure their farms or their produce from the state’s expropriation, and they were systematically starved to death by the millions. In practice, the only rights that the individual can rely on to exist in any real sense on are the ones that have been agreed to, and those are necessarily obtained and protected by means of resistance against oppression.

Positive & Negative Rights

A negative right is a natural right, an ability to do something that requires no action from others except to refrain from interfering. Usually, these rights are self-evident: one may have the right to travel and may expect others not to block the road, for example. These rights become less obvious when those who would interfere are restrained from “protecting” people, particularly when protecting those people from themselves. When people use heroin, or prostitute themselves, or to otherwise utilize their natural rights to self-abuse, a grey area appears. Most libertarians do not agree with the state interfering in such situations, but it is likely that most would also support friends’ or loved ones’ right to intervene, e.g. it is consistent with most peoples’ libertarian vision for a parent to use force to prevent a child from self-harm.

A positive right is one that requires resources from the collective to be used for an individual, so they impose a cost on society to offer a benefit to individuals. Positive rights raise the hackles  of libertarians, generally speaking. This is not surprising, considering some of the positive rights that have made various lists. The United Nations Declaration of Human Rights has among its number the right to subsidized child care, paid holidays, and the right to enjoy the arts.

Some disapprove of positive rights because they impose costs on others. This claim is superficially plausible, but I contend that it actually renders all rights inert. Take for example Rand Paul’s supposition that universal health care imposes a claim on his labor and that this is tantamount to slavery. Why is the Senate exempted from this principle? Doesn’t Paul’s pay, derived from taxation, make all taxpayers his slaves by the same logic? If we take this principle to its logical conclusion there can be no government whatsoever.

Don Boudreaux wrote an editorial for Cafe Hayek where he said: “Rights pre-exist government. Therefore, even if – as most people believe – government is necessary to help secure individuals’ rights, government does not create that which it itself is created to help to secure.” I’m a fan of Dr. Boudreaux’s, but I don’t quite agree with his premise. What is right exists outside of government. Rights, outside of abstraction, exist as a function of the agreement between people. This doesn’t need to be an agreement with a government, but without an agreement, the rights do not exist in any real sense, they are just ideas.

Taking the argument too far in the other direction, Jeremy Bentham called the idea of natural rights “nonsense on stilts” and instead viewed utilitarianism – the idea that rights should provide maximal happiness for the people – as providing a means of determining which rights should and which should not exist. Bentham was also a master of the run-on sentence:

“As to the law of nature, if (as I trust it will appear) it be nothing but a phrase; if there be no other medium for proving any act to be an offence against it, than the mischievous tendency of such act; if there be no other medium for proving a law of the state to be contrary to it, than the inexpediency of such law, unless the bare unfounded disapprobation of any one who thinks of it be called a proof; if a test for distinguishing such laws as would be contrary to the law of nature from such as, without being contrary to it, are simply inexpedient, be that which neither our author, nor any man else, so much as pretended ever to give; if, in a word, there be scarce any law whatever but what those who have not liked it have found, on some account or another, to be repugnant to some text of Scripture; I see no remedy but that the natural tendency of such doctrine is to impel a man, by the force of conscience, to rise up in arms against any law whatever that he happens not to like. What sort of government it is that can consist with such a disposition, I must leave to our author to inform us.”

Unfortunately, after offering this superficially plausible argument against natural rights in which their weakness is that they are derived from scripture rather than reason and can be overturned by force, Bentham went on to support something he called “felicific calculus.” This is a method by which the amount of “happiness” derived from a law can be used to legitimize it. If a law is determined to create more unhappiness than happiness, then it can be opposed on that basis. This, I think, is a far worse proposition than the “nonsense on stilts” idea of natural rights that he took issue with, and the reason is primarily the same one that allows people to oppose democracy.

If a country can starve one smaller portion of its population to death to support the majority, do the natural rights of the victims of such a policy, who are forced to suffer and die, disappear? How about if the other population is another country that happens to be a long established enemy? What if that other country has a different religion with different God-given rights? In this case is the felicity accrued amongst all of the people subject to the “true” rights, and the harm is entirely put on those to whom the rights do not apply? Although Bentham rightly points out the contradictory nature of natural rights deriving from a god, his felicific calculus was nothing less than a philosophical well-spring of suffering that underpinned the worst social contracts that were responsible for many of the horrors of the 20th century, the aforementioned Holodomor being only one example.

In The End, Force Matters

Bentham was wrong. If either side of a dispute over rights finds the current agreement to be insufficient and is unwilling to accept it, force will be the deciding factor. Successful use of force by government will subdue the rebellion and end the claim to new rights that were the basis of the fighting. The other possibility is that the rebels subdue the government and create a new contract which includes the contested rights in a new social contract.

With no government there is no social contract, and rights evaporate back into abstraction. If on the other hand some amount of government is allowable, the issue revolves around a frustratingly arbitrary line of what constitutes too much. If “the ruler rules by the consent of the ruled,” the ruled need to have some way to make their dissent known and felt. The trick is to set up a government powerful enough to enforce a social contract, but not so powerful as to abuse it. What makes the United States the greatest country in history is that the rulers guaranteed the ability of the ruled to consent and dissent to government policy. The constitutional protection of speech and notably the right to petition government allows us to make our dissent known. The right to keep and bear arms guarantees us the right to make our dissent felt.

If you are an anarcho-capitalist and are now yelling at your screen, “What about no government as an option?!?!” you have a legitimate point at least insofar as the government has a heavily tilted playing field with respect to their monopoly on the use of force. Social contracts are not an unalloyed good. Governments expropriate money from their citizens and use the money to buy the weapons that they say protect their citizens, but which simultaneously give them the ability to suppress their own people. I would argue that this is not justifiable and that each individual needs to decide what level of dissent is a sufficient level of action against the government under these circumstances.

Despite myriad abuses of government, anarchy doesn’t solve the problem either, although I would agree that it might limit the size and scope of the wrongdoings. What happens when someone in an anarchic situation tries to infringe upon your idea of what your rights are? Seems that you’re back in the same predicament: force (or the threat of force) will be used to settle the matter. When the matter is settled, the result is a new social contract.

The problem with anarchy is that this dispute can happen innumerable times, whereas in a society with a social contract the rules are generally consistent and this allows people to act under the assumption that they will be treated accordingly, and given a means of resolving related disputes. If an anarchic universal social contract were established, it is my contention that this would be a government, and the agreement would be law which establishes rights. An example of such a society exists: the Icelandic Commonwealth.

Too many libertarians scoff at the statist’s view of the social contract. This is due to the apologist’s acerbic citations of it to validate the victimization of people by the government: “X government action is acceptable because the victims agreed to the social contract.” The social contract is not your rights, and it is not, properly understood, a justification of their limitations, it only states the rights which have been agreed to. The social contract is an imperfect concept with imperfect implementations; its value comes from the fact that it makes rights actionable and the contract itself can be changed, and that it can establish and manifest human rights as a modus operandi; this stands in stark contrast to the unspecified rights of disordered anarchy, or the capricious rights granted by authoritarian governments.

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Jon Mortensen is a husband, father of two girls, autodidact, and owns and operates www.petdoorstore.com. When not thinking about the nature of freedom, he enjoys building and racing cars.

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