The first time I taught this module years ago, I wasn’t happy with the way I delivered this lecture, especially my treatment of the Social Contract Theory. So I wrote a series of blog posts to supplement the lecture. I’m somewhat happier with subsequent versions of this lecture, but since these posts were already written, I might as well make them available, with suitable updates. Note that the below will probably make more sense if you have already followed W06 and have the slides handy. Since there are three different versions of the theory to be considered, this post is going to be quite long.
But let’s first keep squarely in mind the intended target, namely, Michael Huemer’s “Sam” Argument. The ultimate conclusion that Huemer wants to urge on us is that government coercion is morally wrong. As I explained in the lecture, to say that government coercion is morally wrong is to deny that government has the moral permission to coerce, and so, to deny that there really is such a thing as Political Authority.
Now, Huemer’s argument proceeds through the claim that government coercion is morally analogous to various acts of coercion by private individuals–those of Sam and his friends–that he counts on us agreeing are morally wrong. In effect, the argument challenges defenders of political authority to step up and tell us what constitutes the moral difference between government and Sam that confers the authority to coerce upon the former while denying it to the latter–beyond the mere fact that one side is government and the other side is not. The various flavors of the Social Contract theory can be seen as attempts to meet this.
- Social Contract, Explicit Consent Version
The first version we considered was the idea that there is an actual and explicit contract between each citizen and the government that requires the citizen to obey the laws, in exchange for the goods and services that the government provides. That is, what the citizens are agreeing to in being a party to such a contract is not just that they promise to obey, but more importantly, that they grant government the authority to coerce them when they fail to obey. This is like, for instance, you giving your friends the permission to forcibly stop you from playing video games unless you have done your homework… Or for that matter, for you to sign an advance medical directive saying that your guardians have the permission to take you off life support if certain conditions are met.
In turn, government promises to deliver certain goods and services. The citizens’ obligation to obey and the government’s authority to coerce are thus ultimately conferred by the citizen’s consent to be subject to such authority. The difference between government and Sam thus consists in the fact that while there is a Social Contract which grants the former political authority, there isn’t one doing the same for Sam.
Ok, so what’s the problem with this first version of the Social Contract as a response to Huemer’s argument for Anarchism? The straightforward one, also the one I mentioned in lecture, is that it is factually false that we have ever signed such a contract, and historically fantastic to think that there was any such contract in the past. In the absence of an actual contract, there won’t be any explicit consent to speak of, and with no consent, no conferring of political authority.
In addition, even if such an agreement were to be historically factual, one can still wonder as to why it should continue to apply to subsequent generations who did not explicitly agree to its terms. (Though this second worry is not as big a problem if you can imagine the actuality of an Explicit Social Contract in the past, I suppose you are capable of imagining how such a Contract is explicitly entered into by each new citizen. Huemer will, of course, ask for the details!)
- Social Contract, Implicit Consent Version
The second and third versions of the Social Contract forgo the idea that citizens explicitly contracted with government thus conferring upon it the right to coerce them. They make do with something less—either a contract constituted by implicit consent, or one constituted by hypothetical consent. Let’s consider the implicit version first. As you recall, I provided several examples for how implicit consent can be taken as having been given in the lecture:
First, implicit consent can be indicated by a passive agreement, i.e., no expressed dissent, given the opportunity or even invitation to express disagreement. The instructor asks the class: “So everyone make sure to submit your work in Open Office format, ok? Anyone has a problem with that?” And no one indicated any objections, not even the one Microsoft fanatic sitting in the corner. We can reasonably conclude that all present gave their implicit agreement.
Second, implicit consent can be indicated by the active acceptance of benefits. My restaurant example is in this ballpark. By accepting the benefits (e.g., consuming the tea, the peanuts, etc.), you have implicitly agreed to order items and pass over money to the amount listed in the menu including any additional surcharges and taxes.
Third, implicit consent can be indicated through presence, your mere ‘sticking around’. Huemer gave a nice example for this in his book: “While having a party at my house, I announce, loudly and clearly to everyone present, that anyone who wants to stay at my party must agree to help clean up afterwards. After hearing my announcement, you carry on partying. In so doing, you imply that you agree to help clean up at the end.”
Finally, implicit consent can be indicated through your participation in some practice. If you and your team participated in the NUS Inter-Faculty Games representing your Faculty, i.e., you signed up, showed up, played in the games, etc.–then you have indicated that you agree to abide by the rules and regulations of the event in question.
Now, if the four examples above are valid examples of implicit consent, then one assumption we normally make is that even when the agreement wasn’t explicitly expressed, it was nonetheless indicated by some voluntarily action (or inaction) of the agent. But part of what this meant is that what she ‘implicitly consented to’ isn’t something that will be imposed upon him no matter what she does or does not do. And just as importantly, there is a reasonable way for the agent to opt out. And finally, should she explicitly dissent, we won’t count her as having given implicit consent even if she did the other things in the examples. If these conditions aren’t present, Huemer (and I think he is entirely right in this) would say that we don’t really have a case of implicit consent.
So if it turns out that the one Microsoft Office guy was in fact fast asleep when the question about Open Office came up, then he wasn’t voluntarily indicating a passive agreement. Or if the instructor had added: “Anyway, I will deduct 75% off your grade if you object…” and everyone kept quiet, then their passivity can’t indicate agreement–given the unreasonable cost of dissent. (Don’t worry, we don’t do such things in NUS. And we certainly provide you access to MS Office…) Or if the restaurant is really run by the mafia: once you go in, you need to eat and pay. If you don’t, the goons will make you. Then, the fact that you did or did not accept the benefits really makes no difference–the outcome of your having to pay is being imposed upon you–and so your eating the steak can’t count as giving implicit consent to paying. Or if after the host of the part made the announcement, you loudly say: “No way, I’m not helping to clean up!” Then even if you have stuck around, you aren’t indicating by your presence an agreement to help clean up. (If you still have an obligation to help, it could be because the owner of the house can set the conditions for your using it, and not because of any–non-existent–implicit consent to his request that you help clean up.)
The problem with the implicit consent version of the Social Contract is that–just as it is factually fantastic to think that there was an explicit contract–it is also not obvious that citizens have made any implicit agreement of the sort that confers Political Authority, at least not without begging the essential questions. This is because the situation facing a typical citizen of a country, even most well-ordered ones, fails the usual conditions required for something to count as implicit consent. It’s normally a costly affair to ‘opt out’. Even if your country allows you to go, it’s not as if other countries (the ones worth migrating to anyway) will just let you in, no questions asked. And what if you want to opt out of having to obey any government at all? Try the Atlantic Ocean. Tough luck, basically.
Second, if Political Authority is ultimately conferred by implicit consent, then presumably, people who explicitly ask not to be subject to government are not under that authority. Again, tough luck. Try running that line the next time you face a fine. Third, whether or not you object, dissent, participate or not participate in the electoral processes (and if voting is mandatory in your country, as it is in Singapore, tough luck again), accept or does not accept the benefits from the government, the government will still impose the same laws upon you. Under such conditions, it’s hard to believe that if Political Authority exists, it’s grounded on implicit consent, given that such consent (even though ‘merely’ implicit) may not exist.
- Social Contract, Hypothetical Consent Version
Finally, the third version where the consent underpinning the Social Contract is neither explicit nor implicit; in fact, it is not even actual, but hypothetical. The thought goes something like this: had you been able to think about it, consenting to government having the right to coerce would have been the reasonable thing to do (in fact, one might add, you couldn’t reasonably not consent). And this hypothetical consent lies behind the government’s authority; so, supposedly, there is a moral difference between government and Tony after all.
Before continuing, I should emphasize that you shouldn’t confuse two different distinctions. There’s the distinction between Explicit (directly expressed) vs. Implicit (not directly expressed, only implied by action or inaction). Then there’s the distinction between Actual (actually exists) vs. Hypothetical (would have existed if certain–possibly counterfactual–conditions were met). Both Explicit and Implicit are meant to be Actual, and thus both are on the same side of the divide compared to Hypothetical.)
Hypothetical consent is not a bizarre idea at all. Consider some commonsense examples.
First, you are a construction supervisor overseeing some roadworks when you see someone about to jog onto a bridge you knew to be unsafe (in fact, you were just getting the “Danger: No Crossing” sign ready). If she had jogged onto the bridge, there is a high likelihood that hse will get hurt. As there wasn’t enough time to explain things, you forcibly stopped her. After all, had she been filled in with the missing information and thought about it, she would see that consenting to be stopped would have been the reasonable thing to do; in fact, she couldn’t reasonably not consent. It would seem that you have permission to stop the jogger.
Second, you are a military doctor treating an unconscious soldier with a gangrenous leg. Given your knowledge and experience, you have very good reason to believe that he’s not going to survive if the leg is not amputated. You went ahead with the procedure. After all, had he been able to deliberate about his situation, he would see that consenting to be amputated would have been the reasonable thing for him to do; in fact, he couldn’t reasonably not consent. It would seem that you have permission to amputate the soldier.
Third, you inherited your grandma’s historic townhouse upon her passing. She told you on her deathbed that you should endeavor to keep the house. Later on, you are approached by developers who wanted to purchase the land for a new welfare center for children from disadvantaged families. While you are ready to rebuff them, you also know that your grandma cared deeply about the children at issue (in fact, she was a major contributor in her lifetime to the very organizations behind the development). You went ahead with the deal. After all, had grandma been around to deliberate about the offer, she would see that agreeing to the offer would have been the reasonable thing for her to do; in fact, she couldn’t reasonably not consent given her commitment to the children’s welfare. It would seem that you have permission to sell grandma’s historic townhouse.
Fourth, your best friend’s birthday is coming up soon. You have a good sense that she would have loved a surprise party, maybe because she had always enjoyed them in the past. So, you managed to get her diverted away while you and other mutual friends sneaked into her place and set up the party. When she came back, she had the surprise of her life. Ordinarily, sneaking into someone’s place, rearranging furniture and putting decorations all over the place is not the sort of thing you should do without their consent. But the case conforms to the general pattern: had she been able to think about it, agreeing to having the surprise party planned and executed would have been the reasonable thing to do given her desires; and if having the surprise party planned and executed is the best, and perhaps even the only, way to secure what she would have wanted, one might add that she couldn’t reasonably not agree.
If the above examples work, it does seem as if hypothetical consent is something that can exist, and can plausibly confer moral status. But in each case, whether or not there really was hypothetical consent depends on two conditions.
The first condition is that securing actual consent (whether explicit or implicit) is not feasible. Normally, hypothetical consent is relevant only when it is not feasible to, well, just ask the person (to give explicit consent) or perhaps watch his or her behavior (for implicit consent). There wasn’t enough time to ask the jogger. The soldier was unconscious. Grandma has gone to a better place, as they say. As for the surprise party, the very nature of the matter makes it such that the friend’s explicit consent cannot be secured without compromising the thing she would have wanted. But if you vary each scenario so that it becomes possible to directly elicit the relevant parties’ consent, then the talk about hypothetical consent becomes moot. Also, suppose we sincerely judged that the person would have consented when it was not feasible to ask, but later on, when it became feasible to ask, the person gave us a contrary answer than what we originally expected. Then just as explicit dissent trumps implicit consent, so likewise actual dissent trumps hypothetical consent (no matter how accurate our earlier guess had been).
The second condition is that it would really have been the reasonable thing for the person to consent if he or she had been able to think about the options, given his or her deeply held values and significant desires and with all relevant information filled in. (After all, If the jogger was a constitutionally reckless person who gets high exactly on the possibility of danger and injury, or the soldier was a true follower of some Warrior Code according to which that there is more honor in death than in a handicapped life, or grandma had different completely values and desires in her lifetime, then we will need to revise our judgments about what would have been the reasonable things for them to do, had they been able to deliberate about their options.)
Ok, so what’s the problem with the hypothetical consent version of the Social Contract as a defense of Political Authority? It turns out that both conditions for hypothetical consent will cause problem for any attempt to defend Political Authority using a hypothetical contract. The problem on account of the first condition is straightforward–the citizens are right here: so why are we talking about hypothetical consent when we should be asking them? Now, we are back in the territory of the Actual and Explicit, or Actual and Implicit Social Contracts, and all the problems they face.
But in fact, the problem goes deeper. Suppose consenting to giving government Political Authority would have been the reasonable thing for people to do; in fact, let’s say that they couldn’t reasonable think otherwise. But it seems strange that even so, such a thing can confer upon government a right to coerce. To see the disconnect, imagine that accepting your offer of $100,000 for my stinky socks would have been the reasonable thing for me to do, in fact, I can’t reasonably refuse. Now what if I then unreasonably decline the offer? The fact that accepting your offer would have been the reasonable thing for me to do, or that I can’t reasonably not accept does not seem to give you the right to coerce me to exchange my socks for your $100,000 once I actually refused, no matter how ‘unreasonable’ that refusal may be.
As stated previously, just as explicit dissent trumps implicit consent, so likewise actual dissent trumps hypothetical consent. The implication is that it doesn’t seem as if we can go from “consenting to giving government Political Authority would have been the reasonable thing for people to do; in fact, they couldn’t reasonable think otherwise” to “Government has the permission to coerce me”, especially when it is not infeasible to actually seek my consent, and in light of actual dissent.
- State of Nature
But even if we set that first worry aside, there’s still the matter of the second condition. So why are Contract Theorists so confident that consenting to grant government Political Authority would have been the reasonable thing for people to do; in fact, they couldn’t reasonable think otherwise? The basic situation is this: Social Contract Theorists aren’t really talking about what would have been the reasonable thing for us to do, or what we couldn’t reasonable not do as if they intended to go check on our actual desires and beliefs. If that were the case, they will probably just get a bunch of contradictory answers. To get at a determinate answer, the choice scenario needs to be constrained, and an argument needs to be made to show that a certain answer is the right one given the choice scenario. This is where the traditional Social Contract gets paired with the idea of a State of Nature.
The Social Contract Theorists basically propose that we embark on a thought experiment. Imagine what life would have been like if there were no government, laws, political authority, etc. This style of argument is very old–you can find examples of it in ancient Chinese texts such as the Mozi and the Xunzi, and not to mention in ancient Greek texts such as Plato’s Republic. But let me stick to the usual (early modern European) suspects for illustrative purposes.
For Thomas Hobbes, human life in the state of nature would have been “solitary, poor, nasty, brutish, and short”, i.e., nothing that any of us would want. For John Locke, it wouldn’t be quite that bad, but nonetheless filled with enough “inconveniences” that we would have preferred something else. Here, it is important to note that Hobbes and Locke are not best taken as saying that this was how human life was before there was government, but that this is how life would be like, if hypothetically, government is removed from the equation. But the long and short is this: suppose government were missing and our existence reverted to a “State of Nature”, then life would either be quite terrible, or at least very inconvenient.
The question now is: What would you have done if you were a denizen of the state of nature? The Social Contract Theorists now suggest that getting yourself into a social contract to confer political authority upon government would have been the reasonable thing for you (i.e., people in the state of nature) to do, or what you couldn’t reasonable not do—given that, surely, you would want to escape from the nastiness and inconveniences of the state of nature. We can now propose the following (implied) argument:
(1) If Government possessing Political Authority were not to exist, we would be in a State of Nature.
(2) We strongly desire not to be in a State of Nature.
From (1) and (2), we can derive:
(3) If we were reasonable, we would desire the existence of Government possessing Political Authority (all things being equal).
The underlying inference goes something like this. We want X. But without Y, we won’t get X. So, if we are reasonable people, we really would want Y. (Think: the soldier–though unconscious–still wanted to survive. But without the amputation, he will perish. So if he were reasonable (and able to think about his options), he would want/consent to the amputation.) If we are willing to give the Social Contract Theorist (1) and (2), I think we have enough reason to say that hypothetical consent for the existence of Government possessing Political Authority exists (assuming that the problems identified in the earlier post are resolved).
So should we accept (1) and (2)? A lot will depend on your assumed anthropology. The point is not exactly a historical one (what happened in the past), though historical evidence may be used to make a case for what would happen today. To the extent that the Social Contract argument (hypothetical consent version) has bite for us, it has to be about what what things would be like if Government did not exist now, given people such as ourselves. (I’ve blogged a bit more about this point for a different module here.) Relatedly, we will also need to figure out exactly what our “State of Nature” is going to be like. Is it a war of all against war where life is “solitary, poor, nasty, brutish, and short”, or merely filled with “inconveniences”? How we answer that question will also affect what the introduction of Government possessing Political Authority was meant to solve, and thus, the scope of the powers that we can be said to have hypothetically conferred upon Government. Since I’ve said a lot already, I’m going to leave the matter to you…