essays

Jan 3, 2017

A Contractarian Case for Libertarianism

Reasonable people will accept libertarian political institutions because they let us live together in peace while pursuing our different values and lifestyles.

The general idea of the social contract theory has been around for a long time. There is a clear shot at it in Plato’s Republic, for example, long before the more recent and famous efforts of Hobbes, Locke, Rousseau, Kant, and later John Rawls and David Gauthier. What is this general idea, and what is it an idea of? And how does it relate to libertarianism? Those questions will be discussed in this chapter.

Social contract is a theory about the foundations of a certain class of normative theories—moral and political. We begin by explaining the point of a foundational theory, and of the advantages of this particular theory of that type. We then move on to the specifically moral and political nature of the resulting theory, concluding with the argument for libertarianism as the basic output of the theory. Theories of this type accomplish something important—but not nearly everything, and we will recognize its limits as well.

Social Contract as Normative Foundation

The very subject of the “foundations” of a normative theory has long been and continues to be disputed by philosophers. As its name would suggest, the term refers to the basic premises on which the theory rests. It would take a very full discussion to explore the many byways of such a theory over the years, a project we can hardly undertake here. But several basic points may be noted. The first is that many theorists think that there are no “foundations.” A foundationist theory holds that there are certain (one or a few) basic general premises, or kinds of premises, that support a theory about what’s just and unjust, right and wrong—support in the sense that the truths of the theory derive from those few or that one normative premise, plus relevant factual premises, those being subject to empirical test.

A separate question is whether those basic normative premises are themselves sui generis—or can they in turn be derived from facts of some sort? The latter view, of course, invites charges of committing the “naturalist fallacy” that obsessed moral philosophers in the 20th century. Any theorist who attempts this latter route must respond to that charge. We will, in fact, do so in this exposition.

As said, philosophers have a tendency to deny foundationism in moral and political theory. And that attitude produces a general response: if no foundations exist, then how do you get anywhere in discussion when we disagree, as we so often do, about such topics? If nothing you can say clearly counts, and can be shown to count, in favor of or against anything, then the prospect of resolution is nil. Is that bad? Yes, says the social contract theorist. And probably everyone would agree that if it can be done, that would be nice; what they deny is that it can.

The next thing to say is that a foundation is evidently useless if it is no better, no more “solid” than what it purports to “found.” We must not build on sand. This observation is especially important in relation to almost all current proposals about foundations. A major and highly pertinent example is a type of theory called “intuitionist,” according to which there are indeed “basic” moral claims in the sense that no further reason can be advanced on behalf of such claims. People may even assert that those claims are “self-evident.” The trouble with that, however, is that it is impossible to find any moral statements that have not been rejected by some. Indeed, there are “amoralists,” moral skeptics, who claim that there is no such thing as morality. What does the intuitionist say to them? What, that is, that might make some impression—might appeal to the rational faculties of the skeptic? The social contract theorist holds that there is something we can usefully say. That theorist likewise has a reply to the “relativist,” who insists that morality is merely “relative,” such as to culture or personality, and so on.

If a social contract theory is going to work, it must be founded on facts—real features of human and social life. There must be enough generality and similarity so that the theory clearly reaches to everybody, not just a few. And it must make a prescription that makes rational sense to everybody—everybody must be able to see why this prescription, this principle, is the way to go. Is this possible? We’ll see.

Social contract theory holds that morality, viewed rationally, is founded on, in some sense, agreement or at least rational agreement—agreement of the kind that any rational person can see reason to make. And this provides major resources for replies to skeptics and dissenters (if it works): if you agree that something or other is or would be right, then you are not in a position to turn around and deny it. We would have to distinguish between actual historical agreements, typified by commercial contracts, treaties, and so on, and hypothetical agreements—agreements that one would make on reflection. And, especially important, we must look for agreement in action. Anything merely done on paper or in words is of no interest unless it somehow bears on actual action, and the disposition to act.

Such an agreement obviously cannot be a sort of panhuman Constitutional Convention in which we all get together and sign some formal document. It can, however, be a recognition of an underlying rational structure. We come to agreement in action as the result of commonsense appreciation of our condition. David Hume is the source of a great example: when two men row a boat, they fall into a rhythm and a level of effort that gets them going in one direction. No initial discussion and no “contracting” are necessary.

As a widely recognized more modern example, consider the “rule of the road”: when driving on a two-way street or road, keep to the right (or the left, if that is the locally recognized rule). Here, the merit of following the rule is that we avoid the damaging or fatal collisions that we can otherwise expect. It is a merit that anyone can understand, and in actual conditions, virtually everyone virtually always adheres to. The rare exceptions are discussable: passing a slower vehicle, which is fine when it’s safe. Then the question “Is it safe in this case?” becomes relevant. That might be a matter of disagreement, but now there are clear criteria to appeal to in deciding it—we are not just at sea. Another merit of the example is that it explains what can be “relative,” even though that doesn’t upset the normative output. What is relative is which side of the road we are to drive on. Get a bunch of people together where they are driving or walking or horseback riding, and soon enough you find them adhering to one side or the other; once they do, it is irrational for a newcomer to go against the rule.

A far more serious structure, which has come in for an immense amount of discussion in mathematical, social-scientific, and philosophical circles for most of a century, is the now-familiar prisoner’s dilemma. In the two-person cases that are the norm in discussion, this little graph schematizes the idea (let A and B be the two parties, and the numbers then rank-order, by their own preferences, the outcomes for that pair of choices). So (a) we each face a choice between two alternatives, x and y, and what happens to each of us depends on what we each choose; (b) if we both choose alternative x, each gets his or her second-best outcome; if we both choose y, we both get the third-best outcome, which is much worse for each. (c) But if I choose x and you y, I get my best and you your worst; and if you choose x and I choose y, then vice versa. We assume that we are both free agents, choosing as we will. What do we do?

 B
xy
Ax2, 24, 1
y1, 43, 3

The problem is that where we choose differently, one gains greatly—at the expense of the other. So we choose the same—but which? In the absence of any sort of trust or further consideration, each is impelled to choose the “safer” option, y: this avoids the worst outcome, fourth, yes—but the outcome for both of us, third, is much worse than the second, which we could have if only we could rely on the other to choose that way. That’s the dilemma: each goes for the best and in doing so ends up badly—in a way that could have been avoided.

Avoiding that worse outcome, says the contract theorist, is the object of morality. It tells us to cooperate rather than disagree, thus leading to better outcomes for us both. Morality’s rule is cooperate, if the other party is willing to reciprocate. But if he doesn’t, you are entitled to withdraw your cooperation.

The prisoner’s dilemma appears to be at work in innumerable situations in real life. And one very general case of it, the social contract theorist argues, is the most basic one of all. To see what it is and why it is important, we move to the great philosopher who, more than any other, has brought this kind of theory into prominence: Thomas Hobbes (1588–1679)—supplemented in contemporary times by David Gauthier.1 The problem concerns liberty—yours and mine (A’s and B’s). Liberty is the absence of interpersonal violence or coercion; more generally, of negative intervention—intervention to worsen the life, or situation, of the person intervened upon. We are at liberty (of the “social” kind that is the subject of these chapters) when no such negative intervention is threatened.

Hobbes and the “Natural Condition of Mankind”

If a social contract is to have much range of application, what is it about humans and their interactions that would make it so? That question has a general answer. On innumerable occasions in life, people might be able to gain at other people’s expense. The most salient way is by actual physical violence. A hits B over the head and walks off with B’s load of vegetables. And there are other ways, familiar to all, in which somebody can “do someone else down” —lying, cheating, and defrauding are among the most important—and walk away with gains at his or her expense.

What makes them so ubiquitous is a certain general similarity or comparability among people. Hobbes puts his finger on it when he asserts a sort of human equality, saying that “as to strength of body, the weakest has enough to kill the strongest.”2 As it can take very little strength to kill someone, what he says is obviously plausible. Only infants, the decrepit, or the severely disabled—or special local cases where one has the other “in a corner”—offer cases where that kind of “equality” doesn’t pretty obviously hold. It is true that our relative levels of strength vary enormously. But it is almost never literally impossible for A to kill B if A is really determined to do so. And in social situations, of course, we can make life miserable for certain other people—or even for a great many of them—in many other ways.

That’s what is possible. But is it likely? Some reflection on this question is needed. Most of us nowadays live in relatively safe social circumstances. And yet, even here and now, newspapers daily report violence, by people near or far. Such violence occurs despite our living in societies with, usually, pretty good moral senses, and government agencies—notably the police—attempting to make the lives of the violent difficult as well. But what if we had neither of those—neither governments with laws and police nor people brought up to be decent and civil?

Hobbes’s claim to theoreticians’ fame is very strong, though the relation of his actual arguments to the more fundamental game-theoretical reasoning of contemporaries is inferential and conjectural, of course, rather than explicit—because game theory didn’t come into existence as a formal study until the mid-20th century. The nub of the matter is this: Hobbes, appealing strictly to individual deliberative practical reason, and in a quite uncontroversial understanding of reason, develops a picture of how things would be in the absence of the state—awful, he holds. He then asserts a “Law of Nature” with a number of subordinate laws (which should count as theorems rather than further laws, since he claims, plausibly, that all the later ones follow from the first one), according to which rational men will seek peace. However, in the absence of the state, he argues, peace will be unavailable. So rational men will create the state, granting authority to a government whose laws will then inherit the authority of the Law of Nature. It’s a brilliant idea—if it works. Whether it works—and, if not, then what if anything might work instead—is the question.

The Baseline Issue: States of Nature and Others

If we are to deal with one another in the game theorist’s way, we need to reckon our gains and losses from some point of departure. If we think in terms of a “grand social theory,” one that shows how morality derives (perhaps evolves) from a previous condition in which it did not obtain, then the natural thought is to start with the “natural condition of mankind”—Hobbes’s words, which we now normally rephrase as the “state of nature.” What Hobbes very famously claims is that in this “natural” condition, people will perceive that they have no protection against the violence of others and will turn to it themselves, in self-defense if nothing else, and we will thus have the terrible condition he describes as a “war of all against all.”

Several questions arise about this idea, of which two are especially pertinent here. First, the phrase “natural condition of mankind” could refer to a hypothetical historical condition. If so, which condition? We can discuss that in tandem with the second question: Is the “of nature” component specifically political, as Hobbes tends to treat it? Or is it moral? The correct answers to these questions, I will here suggest, are that the condition in question need not be historical, and that it must be moral rather than specifically political. To explain:

If the idea was to tell a sort of universal history of prehistorical man, then the Hobbesian project runs into heavy weather. For anthropologists overwhelmingly agree that most primitive human communities do not have governments, strictly speaking.3 And yet, contra Hobbes, they do have (rudimentary) moralities, and moreover are predominantly peaceable. Locke, in short, is more nearly correct than Hobbes. To argue for the necessity of government as the needed specific remedy, the case must be refined, as by George Klosko4—and will be controversial.

But the argument can be reformulated in a much more powerful and fundamental way. We can imagine, without having to theorize very much, how social life might be if we were devoid of any sense of morality. As Hobbes puts it, “The notions of Right and Wrong, Justice and Injustice, have there no place.” He does indeed go on to say,

Where there is no common Power, there is no Law; where no Law, no Injustice. It is consequent also to the same condition, that there be no Propriety, no Dominion, no Mine and Thine distinct; but only that to be every man’s that he can get; and for so long, as he can keep it.5

But note that those inferences are not consequent, as Hobbes has it, of the “natural condition”: they are, rather, a definition of that condition. We are not surmising how things might be, but drawing attention to certain familiar features of social life that we can—with effort—imagine away, and then plausibly see that such a social condition would be so difficult to imagine as to be all but impossible. The “natural condition” is that in which no widely recognized social rules as yet exist.

And what would be the problem? Here, Hobbes puts his finger on it: the basic problem is violence. It is certainly not the absence of a state, with its infinite further potential for more violence. People can often gain (or suppose they can gain) by taking advantage of others, taking their possessions or their very lives to serve our own purposes. How are we to prevent such things? The beginning of an answer, at least, is to adopt rules—literally to rule them out. Instead of evaluating our actions purely in terms of their likelihood of advancing our ends, we instead ask what our fellows have reason to put up with from us, and we from them. And to this, Hobbes has a brilliantly simple answer: we are to go for peace, not war; the methods of war (violence) are to be reserved for defense, against those who refuse to respect others. All else is peace, which is simply the absence of war.

The Here and Now

What’s going on here? And especially, how does this apply, not in the hypothetical vacuum we have imagined, but in daily life now? Although this is a question leading to many complications, there is still a relatively plausible and straightforward way of working out the implications of Hobbes’s idea.

First, we are not in the primitive “state of nature.” We confront each other against the background of much that we agree on.

In the here and now, we will face, roughly, two sorts of people: (a) peaceable ones who are ready to respect the lives, persons, liberties, and properties of others; and (b) people who are ready to “invade and despoil,” to use Hobbes’s colorful language—that is, to cheat, lie, steal, and perhaps inflict physical wounds or even death in order to get their way. What do we do about the latter? How do we behave toward the former?

Answering the second question is easy: they respect our persons, we respect theirs. The first three Hobbesian Laws say, essentially:

  1. Don’t make war on the peaceable, but be peaceable in return (and do feel entitled to counter violence with defensive measures, possibly including violence, in return).
  2. Don’t “reserve liberties for yourself that you won’t grant to others.” So insofar as we have agreed rules among us, do what those rules call for; and insofar as we don’t, then seek out those with whom you would like to cooperate more substantially than just by refraining from killing or damaging them, and work out the agreements you want. Thus, for example, we can buy and sell in the “marketplace”—stores, real estate, and all the myriad services of modern life, where we can “pay our money and take our choice.” Here, it is a matter of understanding the terms and living up to them. And so:
  3. In general, we are to keep our agreements when we make them. Note that there is no requirement to make any particular agreements. There is only the fundamental one that makes social life possible, as already sketched—the first Law, calling for peace. But if we do make a given arrangement with someone else, then we do have duties: we owe it to that person that we fulfill the terms, and the person owes it to us to do what has been agreed to. (The second and third Laws can be shown to be deducible from the first, but we won’t pause to go through the exercise here.)

These are all precepts that are not normally difficult to interpret in modern life—with one very big class of exceptions: the “laws” of the states we live in. Now here, the problem is that we did not agree, in any detail, to the vast majority of them and indeed, don’t even know more than a tiny fraction of the thousands of laws our various levels of government have passed. When the power of the state has been employed to create a certain institution or set of ways of doing things, and we see serious defects and problems in the systems it has worked out—well, what now?

For by far most of us most of the time, that issue is dealt with by knuckling under, “sucking it up,” and accepting, provisionally, the laws as they are in order to keep the authorities away, so far as possible, from our door. But clearly, we cannot, as did Hobbes, simply go along with the state’s rules as if they were due to an agreement that we had really made with particular people to select one person or small group of persons as the “ruler,” the authority on all details of our lives, followed by lifelong subordination to his decrees.

The moral status of the state is rendered a huge problem by its ambiguous status. Many, of course, talk as though what the laws of one’s state say to do is actually, morally right. One can be forgiven for wondering whether those who say this have actually thought it through. We look at Nazi Germany, Stalinist Russia, pre-Civil Rights Alabama—and then into the myriad problematic cases in modern life. And we can hardly swallow the Hobbesian dictum, that what the government says is in effect, truly “law”—truly has the force of Hobbes’s Law of Nature. “Like h—- it does!”—must be our reaction.

But because we do live here and because so many people do follow those rules, we by and large have to live with those rules and complain as best we can in letters to the editor, books and papers, public meetings, and so forth—those of us, that is, who live in the better contemporary states where we can do such things without serious consequences, such as jail terms or being poisoned by an agent of the government, or … and of course, vote in elections in hopes of improving things.

This short excursion on the state is simply intended to illustrate why there is a clear answer to our question of the status and character of any fundamental agreement: it is moral, not necessarily political. It underlies, is antecedent to, legislation and edict.

The “Circumstances of Justice”

Let’s now go back to basics once more and ask, what is it about human life that makes the Hobbesian Laws of Nature so plausible as a set of rules for social living? This question is answerable, in general, and Hobbes and his successor Hume have worked out the answers with power and clarity. They are as follows:

  1. The only possessors of rational decisionmaking powers via deliberation are individual persons.6 Each person proceeds in the light of his or her own perceived interests (or “values”—for present purposes, the terms are the same) and powers. We choose among the options in action that our bodies, environments, and social circumstances make available, on the basis of our perceived, felt desires or interests, and try to do our best by them.
  2. Those interests and powers are enormously variable from one to another. The powers, crucially, typically include sufficient strength and will to inflict serious injuries on just about any of our fellows, along with much else. And our interests, given both our power and our environmentally available options, are such as to sometimes lead us into at least tentative conflict with at least some others.
  3. We are all dependent on our physical environments for food, warmth (insulation from extreme heat), and (clean) air, at a minimum. Especially, the requirements of sustenance and rough ambient temperature control can be met only by eating enough of a certain range of organic material from time to time and by fashioning clothing and some sort of shelter. Nature doesn’t take care of those requirements on its own: our exertions, and cognitive involvement, are needed as well.

    The requirements can lead humans into conflict, where, as Hobbes puts it, we both desire the same thing that we cannot both have (“have” enough of to keep us “content”); this is what it is to say that resources are “scarce.” Crucially, however, our environmental situation is such that the human input to resources enables us, with suitable levels of cooperation if available, to expand supply to overcome these scarcities. Scarcity, in other words, is not fixed and zero-sum, but amenable to more or less control at the hands of humans—especially to cooperating ones.

  4. Although all humans, probably, have some sympathies with others, most have relatively limited sympathy: when push comes to shove, we cannot expect people routinely to “love their neighbor.”
  5. And finally, morality is not “natural” either: at the least, not of sufficient natural power to cope with the potential difficulties stemming from the first four conditions.

These together show us that humans have something to gain from peaceable cooperation, and much to lose without it. Condition 3 especially, given the others, leads us to the brink—of war or peace. Which way shall we go? Hobbes, mankind in general, and libertarians in particular, say peace is the way to go. The output is “negative”: “seek peace” means, simply, don’t aggress, don’t use violence; more generally, don’t seek to make yourself better off by making some other people worse off. You may do that only if those people have already done something to merit defensive action by you.

Conversely, this fundamental rule does not immediately direct us to feed the starving, help the needy, or rescue the endangered. Whether and why those are things we ought to do are a matter for further inquiry. But whether we ought to kill people whenever it serves our interests is not a “further item.” To keep that on your list of options is indeed to head us down the road to the “war of all against all.” That we may make war on the warlike is rational. Making war on the peaceable, however, is another matter: even if it seems rational to do it, it is clearly not rational to subscribe to a general morality that allows it.

Note that contractarians are not saying that all rational persons will always be nice guys. We are saying that it is rational for people to publicly accept and support a general program of approval of the peaceable and disapproval of the warlike. The mark of acceptance of this is, first, that we live up to it by being peaceable; and, second, that we preach what we practice, encouraging others to be peaceable as well. Morality is partly action and partly promotion of an “agenda”—a program of public education, inculcation. Social contract proposes to identify a uniquely rational view of morality, one based on individual practical reason reacting to the fact of social life.

Self- and Other-Regarding Interests

The social contract theory is usually characterized as basing morality on “self-interest.” That is a misunderstanding, and an important but also understandable one. Rational action consists in choosing the best means to one’s own overall set of ends, indeed. But among those ends, are all of them exclusively concerned with the agent’s own benefit? Certainly not. Typically, as has long been recognized (e.g., by Bishop Joseph Butler7), we have interests in various other persons, especially loved ones such as a spouse and children, but also friends, fellow workers in favored causes, and more. Indeed, people are often ready to make major sacrifices, including even of their very lives, for those persons. The idea that rationality as such is self-interested in the sense that words like “selfish” conjure up is quite mistaken.

What is not mistaken is that our interests are ours. A does not act in order to promote B’s interests, or C’s, but A’s, even if A in fact chooses to promote the interest of B or C. That is the element of truth in the characterization.

But social contract calls on us to adopt principles that would be acceptable to everyone, not just to oneself. And for that reason, morality cannot be devoted to any one person or proper subset of persons, such as the adherents of a particular religious outlook. And since any proposal by one person to promote the good of another would be contingent on that other’s agreement, insofar as it figures as a moral requirement, the elements of regard for others in particular persons’ outlooks do not affect the overall result. Just as I cannot simply give you a certain gift without your acceptance, so I cannot include you as a beneficiary of some provision in the social contract unless you are prepared to accept it.

Hopefully, this clears up the issue about self-interest. But it does raise a different and very important question: that of motivation. The question is, why would I accept a moral requirement that might sometimes require me to sacrifice some interest of mine? It is here that the social contract scores over all other theories about the foundations of morals. I accept such a requirement because if I don’t, you and others will be at liberty to disregard it in your behavior toward me. If I feel free to murder you, then you are free to murder me. Am I ready to accept that implication? Not likely!

It is important that the answer could conceivably be yes. Every theory has to face the prospect that some people will claim to have no use for morality. With those people, all we can say is that we, the rest of mankind, are in principle at war with them—because they, after all, are at war with us. We can hope—and often really expect—that we will make life worse for such people. Social contract respects all interests that are compatible with the pursuit by others of their interests as well. Thus—and only thus—do we all get along, and progress, as a community.

Value Pluralism and the Social Contract

People differ. They differ in their physical and mental makeup, and that difference includes the particular profiles or complexes of values that they are inclined to pursue. This is value pluralism: recognition of the diversity of values among people. It is often called “moral pluralism,” but that expression is ambiguous. The basic social contract is not plural, but unitary, the same for all—that is its point. It does not permit a variety of conflicting moral requirements. On the other hand, the lifestyles, practices, tastes, and pursuits of people—their “philosophies of life”—are indeed plural, and they are precisely what morality does permit. In a sense, we each have one such profile, a distinct particular profile unique to the individual. (To illustrate the point, your hunger is a desire for food in your stomach, not mine, even if the particular kind of food we desire is exactly the same. But of course, it is usually different in that way, too.)

Social contract is designed to accommodate the widest possible array of interests compatible with the pursuits of everyone else. Thus, for example, the tolerance for diverse sexual behaviors, or religious beliefs, and so much else, for which liberalism in general is noted, is part and parcel of the outlook of social contract. And that, in fact, is the source of its universality. Everyone has the same requirement: to refrain from compelling his or her fellows to conform to any particular lifestyle, religion, or whatever other element of values that individual is interested in. We may attempt to persuade by argument or by example, but we may not force others to do things our way.

Political or Moral?

As was noted earlier, the social contract tradition has mostly been expounded in specifically political terms. All of us, on that account, agree to accept one government—a monarch, in most versions until recently—and to live in accordance with that government’s requirements. But then the question arises: Are you sure you’d want to go along with that ruler? Do we accept Adolf Hitler’s rules? It is surely obvious that this is questionable in the extreme. Not just government, but good government, is surely what we’d choose if we had our choice. (Do we? That’s actually a puzzle—see more below.) And that choice implies that we have some criteria for “good” government.

What is a government supposed to be trying to do that would make it choiceworthy? Any answer to that has to be a moral answer. We will all agree that what governments are for is this or that. Once we see that that’s what the choice has to be about, it becomes obvious that social contract must be viewed in moral terms, rather than necessarily or specifically in political terms. It is a logically open question whether, in the words of Thoreau, “that government is best that governs not at all.”8 Government, if it is to be legitimate, must respect our rights. It is not the source of those rights, at base; instead, it is—if it’s doing its job—obligated to protect them, for all of us.

Morality

In order to determine whether government is moral, we first have to understand what the concept of morality entails.

Morality—Rational and Otherwise

So, what is morality? There are several types of answers to this rather ambiguous question. First, of course, morality is a social phenomenon: it is a community’s set of generally accepted and generally imposed behavior controls. People address one another’s actions and respond—verbally and otherwise—along certain general lines, varying from one community to another.

Second, morality may be thought of as a set of rules, requirements, and principles—expressed as “Such and such is right,” or “You are to do so-and-so!”—where “you” is essentially everyone, and the people, the “we” who make the assessments and deliver the “commands,” are, likewise, also pretty much everyone. However, we want to use the sense of morality as that set of rules or principles, if any, that passes the tests of reason: the philosophically best such set, rather than just any old set that people may happen to have. And here, “best” is—we hope—thought of as “true” were it not that the applicability of the notion of “truth” is one of the questions philosophers discuss, at length, in their reflections on the subject of morals. But all we need to mean is this: a “true” or “right” morality is the one that all rational individuals can accept as the general canon for regulating interpersonal relations.

Clearly, social contract, like the other prominent theories of the subject, is mainly an entry in the third category. Every moral philosopher supposes that the favored set of precepts he or she endorses is also found, at least in some measure, in actual practice. But in view of the diversity of moralities among human communities, this supposition can hardly be maintained in a very thorough way. Social contract, if I and my predecessors in this vein are right, will be reflected very widely in almost all communities, even if such moralities are found along with accretions whose credibility we may have our doubts about. Every community disapproves of sheer murder, even while practicing stoning of premarital lovers or women who expose more than two inches of ankle, and so on. Every community disapproves of lying and cheating, even though its leaders lie and cheat extensively. Much of everyday morality, especially when we move very far from the philosopher’s home, doesn’t fare too well at the court of reason. But this observation doesn’t mean that moral theory is either pointless or impossible. Rational criticism is possible and is important.

Better for Everyone

Everyone has some idea of what’s good or bad in the way of day-to-day life, some idea of what’s better and what’s worse. If, then, we ask what we would ideally like from our surrounding society, there’s an obvious answer: each person, A, hopes that the actions of others that affect A will make for A’s own good (meaning what that person fundamentally values) rather than the reverse. Of course, that conclusion means that others hope the same from A. And so an obvious thought about a proposed morality is this: Does it conduce to everyone’s good? If so, then everyone would have reason to go along with it.

Utilitarianism is the theory that our actions—or at least our set of concrete moral rules—should as a whole conduce to the “maximum good” of society, where that is understood as the sum of goods and bads over the whole community. That definition of utilitarianism identifies a feature that makes the theory vulnerable, for it appears the theory could sanction the imposition of severe evils on some people in order to promote the good of some other people, so long as the number of the latter times the degree of good in question outweighs the weighted sum of evils to the former. So strong is this criticism that utilitarians are sure to devote a good deal of theorizing to show that the problem can somehow be avoided.

The social contract view, by contrast, does not have that particular problem. Because all have a veto, the basic rules do not sanction the evils of some as a price to be paid for the good of others. Either those sacrificed willingly go along, in which case they see the good of the others as part of their own good, or else they don’t go along and the action is overruled.

Social contract, then, calls for rules such that they are expectedly better for everyone. But that approach is misleading too. Very few of any human actions literally affect everyone, or could. And all human actions, insofar as they are deliberate and intentional, work expectedly for the good of the agent, at least. No one could rationally insist on universal benefit from anyone. But we can insist on universal nonharm from everyone. Usually, harm to others is easy to avoid, whereas benefit for others is not so easy to achieve; nor do we have much motive to produce such benefit.

Rather, we seek our good and therefore would promote it in cooperation with others who seek theirs, and so we find ways in which to advance our benefit mutually: acts on each person’s part that benefit some in some way and others in different ways, both being agreed upon by the other. In that way, we reconcile the diversity of human nature with the need for moral restraint. And this, we hold, is “the way to go” for society in general. If we insist only on refraining from intervening negatively in the lives of others, the way is open—in multifarious directions—for benefit to many. And because everyone is subject to both the same rule and the same general motivation, we can expect that the ideal of universal benefit is actually achievable—not a utopian dream, but an everyday expectation.

That is, it is so long as people are not malignant. But some of them are; against those, the theory insists on our universal right of defense—of and by oneself in the first instance, and in concert with our fellows who are under threat or are ready to help out in the second instance. What those who agree to nothing else agree to is disagreement—ruling nothing out. If they are dangers to others, then those others will perforce do their best to be at least similarly dangerous to them. They have, as we say, “asked for it.” The only things we can rule out for society as a whole are things we each want to avoid on our own behalf.

The reason the object of the social contract is not in the first instance government becomes, as we reflect on it, clear, in two ways. In the first place, there are any number of governments, and nations to be governed. If there were a single supercontract, would its object be an ideal world government? Or would it underwrite every government there is, warts and all? The second has to do with contract. Morality is about peace, but government is about war—coercion, violence, social control. Agents of the state are of two types: Machiavellians or—far more frequently—dissemblers who claim that they are using all this coercion for excellent reasons, even as they line their pockets at our expense. The “agreements” governments want are not social contracts, but alliances with some other governments against still others, and agreements among potential friends who will assist in supporting this particular government’s program of extraction.

Liberalism to Libertarianism

“Liberalism” is a much-discussed and much-contested notion. Much of the discussion, however, is due to lack of definition—even an insistence that clear definition is impossible. But a reasonably clear, fairly definite understanding of the idea enables us to make sense of it and to see what’s right about it. It goes as follows:

Liberalism is exemplified by normative systems that hold two points: (a) that the sole acceptable purpose of rules, laws, and in general interventions must be the good of those intervened upon; and (b) that it is those persons themselves, rather than any supposed authorities, who fundamentally embrace those values. Individuals, then, are the basic holders of the values that interventionist institutions and personages are to respect. (We might say that they are the “originators” of value, but that statement is misleading and gets us into unnecessary metaethical discussions.) Both are essential. So-called liberals of the present day tend to think that they, the pundits or the theorists or the elected politicians, know what people want better than those people themselves.

On the first point, liberals contrast with Thrasymachus in Plato’s Republic, who declares for Kleptocracy: the purpose of government, says he, is to extract the maximum from the governed. Government is for the sake of the governors, rather than the governed.

The second contrasts with Plato himself and with all whom we may refer to as “conservatives” (a term whose popular usage is related to but not identical to this) who would insist that someone else knows what’s good for us better than we do. Our good is not what we say, but what he (or it, where “it” refers to some supposedly authoritative institution or group) says.

The liberty and dignity of the individual follow from those two basic features. And they, in turn, lead to the social contract theory. For if we each fundamentally pursue our own values, and yet we wish the protection of restrictions against the interventions of others, then we shall have to secure them on the basis of mutually agreeable arrangements: those that leave each of us better off and no others worse off. And by far the main respect in which we can expect this improvement is to forgo the method of promoting our benefit that consists in forcibly extracting it from others. Not, then, imposed slavery, but free exchange. That is libertarianism.

Libertarianism

To understand how the libertarian principle can be applied to social contract theory, we first need to clarify and define the basics of libertarianism.

Libertarianism: What and Why

The essence of libertarianism is that we declare peace: each person has a right to the nonaggression of others. So there is a general duty of nonaggression. (It is tiresome, but necessary, to remind readers that justified defensive actions are not “aggressive”—they are rational responses to others’ aggressions.) Note that this security is not based on “self-ownership” as is often said; for it is self-ownership. To own oneself is to have the right to decide what one is going to do, which is the same as others being required to refrain from the aggressive interventions of others. But it is literally based on our capacity to promote our own good, plus the perceived capacity of others to interfere with that promotion, and of our own to interfere with theirs. Thus, we all benefit from mutual peace.

Pareto

The social contract presumes a general sort of equality. But it is not equality in the capacity to produce goods; it is, rather, a rough equality of broadly aggressive capabilities—of our capacities to make life worse for others. It is that capacity that is, socially speaking, our chief problem. And it is that that leads us to adopt the Pareto criterion of exchange. An exchange is said to be Pareto superior if at least one party is better off, and all others no worse. Of course, in a one-on-one exchange, each party acts to promote his own benefit, and so each is or at least supposes himself to be better off as a result. But meanwhile, there is everyone else, who possibly may be affected by our interaction. And social contract calls on us to respect all those other people’s interests as well, namely, by not worsening them through our actions. And so social contract sanctions all and only transactions that leave at least some better off and none worse off than in the status quo before the exchange.

Our broadly Hobbesian perspective is that the fundamental beneficial exchange with all others is peace for peace—I don’t harm you; you don’t harm me—which is better for all than the “war of all against all,” in which we cannot expect or rely on the forbearance of others. (It is also better than the war of some against some, if peace is possible.) Nothing about those exchanges, however, requires that the degree of benefit we might each obtain from a given exchange be “equal,” if we can even measure the quantities whose equality is in question. It has been a stumbling block of utilitarianism since its inception that there is no obvious way to come up with an interpersonally valid such “measure.” But that we each, subjectively estimating our situations, reckon that we will improve our lives from the transaction, is by comparison not generally difficult—indeed, the sheer fact that each party voluntarily accepts it is taken to be presumptively sufficient reason to suppose this. Importantly, we can come up with evident, socially transmissible ways of indicating our assent to proposed arrangements. All we need on that score is effective communication. We come up with the language of promises and contracts to do the job, and it generally works. (Where it breaks down, we will need means of negotiation and adjudication to settle possible disputes.)

Rights, Right, and the General Right of Liberty

To say that someone, A, has a “right” is to envisage that there is someone else, B, upon whom this right of A’s imposes a duty, which is a cost to those upon whom it is imposed. Note that that’s all that rights are: duty imposers. A supposed right that imposes no restrictions on anyone, such as Hobbes’s so-called right of nature, is simply not a right at all. Rights, like morality in general, are about our interrelations: people relating to each other. If some theorist purports to be asserting rights of animals, canyons, and so on, what he is attempting to do is to impose duties on us. Canyons and seals cannot speak for themselves, and from the viewpoints of those of us who don’t see any benefit in accepting the proposed rights of canyons or seals, the advocate has an uphill battle. And since the social contract is strictly notional—it is not a political convention—and everyone has a veto, it’s a lost battle at the level of fundamental rights, which is what we seek here. If animals are to have rights, that will have to be well downstream.

Where it is proclaimed that someone has a fundamental moral right, B is everyone else. Moral rights are rights of everyone against everyone. Libertarianism’s proposed fundamental right is that of peace from all others, that is, their refraining from aggressions. Refraining from aggressions is a cost to them insofar as they suppose they might benefit from such aggressions. To get a unanimous agreement of all with all, at least notionally, we therefore need to show that everyone does better on balance by accepting this cost in return for the benefits of security from the depredations of his fellows. What would make it worthwhile to accept this cost must be that peace is seen by the others as better than war. If they don’t get it, then we will of course have war. That is the bottom line, and the respect in which Hobbes has the right idea. Social life with no constraints is dangerous and likely altogether unprofitable. With them, we can advance—together. Without them, we have the unhappy Hobbesian prediction: life devoid of the benefits of civilization and “nasty, brutish, and short.”

And so we may as well admit that the general fundamental right of liberty is had by all and only all those for whom peace is preferable to war. We can argue that this liberty is for literally everybody, but against those advancing with guns, argument will have to wait. Still, it is arguable that a consequence of this statement is that immorality as a live option is going to be less profitable as military technology and social organization advance. One hopes that the war of all against all will become, as time goes on, the war of some few against all the rest of us—and, frankly, that we who prefer longevity, comfort, and interesting lives will win.

In going for the simplest principle—Hobbes’s first Law of Nature, calling for peace and the renunciation and proscription of wars of aggression—we adopt the rationally most plausible basic morality.

Liberty and Property

Libertarian, and classical liberal, thinkers have been distinctive in proclaiming a right of property as part and parcel of the basic array of moral rights to which we should all be entitled. For example, in Locke’s version, the Law of Nature calls upon all “not to harm another in his life, health, liberty, or property.”9 (A careful analysis will show that his law is equivalent to Hobbes’s first Law as well, but we needn’t pursue that here.) What we do need to pursue, however, is his fourth entry, which raises many eyebrows. The basic right of peace is easily seen to forbid attacks on our persons, yes—but why on our properties as well? Of course, Locke rightly points out that our properties include, indeed start with, our selves, a claim that, as pointed out earlier, is really equivalent to the liberty principle itself. But external property? Houses, cars, TV sets? Coal mines? 747s? How do those items make it into the protected set?

The beginning of wisdom here is to appreciate that an attack on your property is an attack—an attack on you. If you try to defend against my attack, then I have to attack not your TV set but your person. The question then becomes, why should you give in to my attacks rather than defend? For that is what a denial of property rights amounts to.

The answer is in the main also supplied by Locke, but as this is not a history of the subject but a theoretical exposition, we won’t pursue exegesis here. Instead, we follow the customary division of how we “acquire” things. A can avail himself of x for his own use by (a) simply finding it, being there, occupying it (as when it’s a bit of land); or (b) by making x, in which case it would be requisite that the stuff he makes it out of is also somehow his rather than someone else’s; or (c) someone else, B, could just give x to A, out of love, say. And then (d) A could get x by exchange: A previously has y, B has x, each would prefer what the other now has to what he or she has, and so they make an agreed exchange. This exchange transfers the property from one to the other in a completely peaceable way. And finally, of course, (e) A might just take it from B. But this fifth way, we hold, is excluded by our principle. The question is, how?

And the short answer is that what is here called “theft,” or more accurately dispossession against the will of the previous possessor is a case of aggression, because aggression is intervention, against his will, into the life and activities of another person in a way that leaves him worse off. (The liberal idea entitles us to take it that “leaving B worse off ” and “against B’s will,” for such cases, are equivalent, noting that B is always free to change his mind about what is to his benefit.)

Aggression is “making war”—just what the Hobbesian-libertarian principle forbids. If x is previously within B’s “possession,” and it came to be so without any previous aggression by B against anyone else, then forcibly separating x from B is wrongful—a violation of B’s right.

Most humans are sympathetic. If the person who attacks us is, say, in desperate need, most of us are ready to help. But we aren’t ready to simply turn over our valued and legitimately obtained things (e.g., our incomes) to all comers. And the libertarian principle says that we may not be forced to do so at all. In this, the libertarian differs radically from every other political and moral orientation.

A Brief Note about Socialism

A comparison with what we may very broadly term “socialist” theories is useful here. The libertarian principle differs from any socialist idea in the following way. Socialisms in general proclaim egalitarianism, in the sense that nobody is to be able to advance more than anyone else: the condition of progress for A is that A shares it with B, C, and so on, in a supposedly “equal” degree—of course, thereby inheriting the classic problems of measurement of utilities that has plagued utilitarianism from the start. And so, in its political-economic version, socialists call for appropriation by agents of the public for “redistribution” along the particular egalitarian line being pressed by the version in question—for example, “from each according to his ability, to each according to his need.”

By contrast, libertarianism permits any action of A’s that advances A’s well-being, so long, merely, as it does not thereby worsen B’s. Particular actions, or specific programs of action, need not literally improve the situations of all, or even anyone other than the individual actor (or whoever that actor is trying to benefit). So consider the hypothetical desperate person described earlier: do we harm him by refusing to help? No. We do not make that person worse off than in the status quo, in which the individual is already desperate. After our refusal, the person is still desperate. But, of course, we meanwhile might have offered a paying job or temporary aid until the person gets on his or her feet. We might even have persuaded a great many people to join in an insurance network to alleviate just such cases.

But the fundamental social contract does in another way meet the egalitarian criterion as stated and, libertarians hold, meets it better than any socialism: we are all better off having libertarian morality in place, even if we are not necessarily all better off from anyone’s doing any particular right action. The reason is that in our hypothetical prior condition of total amorality, people are not forbidden to harm others in any number of ways, including killing.

Clearly, to live in a society where nobody kills is a big improvement. If everyone’s having an internalized inhibition against such killing serves in fact to prevent those killings, then having a morality, which is essentially a set of internalized inhibitions, will lead to the safer condition in question. And that is a major improvement. Moreover, says the libertarian—contrary to what you might think—we are all better off living under the libertarian principle than under any seemingly more “generous” principle. A society where we are compelled to do much for others, even when it leads to no benefit to ourselves or those we care for, is more onerous than one in which we are all free to help as much as we care to, but also not to help if we don’t care to (not, it should be noted, free from the frowns of others, but free at least from their swords and chains). Whereas, as history so resoundingly attests, societies imposing huge burdens on all remain or become poor—so poor that their typical citizens are worse off than the beggars in free societies. The impositions of welfarist moralities ring hollow—just like the promises of politicians, with which we are all familiar.

“Luck” Egalitarian Libertarianism

Some theorists have argued that because we cannot possibly have made the set of natural resources upon which we ultimately draw to make into usable goods to enhance our conditions, then we should take the view that those basic resources are, somehow, public property. (Locke himself begins that way, immediately recognizing that so to regard it poses a major problem for any ideas of legitimate acquisition by individuals.) The “luck” egalitarian/ libertarian’s idea is that we should distribute the value of undeveloped natural resources equally among all, in the interests of fairness, but above that, it’s free market all the way. What we cannot do is agree with, for example, the Sharia whose “whole package [according to an Islamic spokesman] would include free housing, food, and clothing for all, though of course anyone who wished to enrich himself with work could do so.”10

After all, the luck egalitarian reasons, none of us can have done anything to deserve whatever assets we may have, or that our environments offer, by nature. Before we are born, there is no “we” to have done any deserving, and after, it is too late: here we are, having emerged from this particular womb, in this particular natural and social environment, none of which could have been our doing. So how can we “deserve” it?

Now, one may be tempted to go from “no one deserves it any more than anyone else” (which is surely true) to “so it should go equally to all” (which is clearly not). But the reasoning is fallacious. If the idea is that it is a necessary condition of one’s legitimately having x that one deserves x, and it is then observed that at the outset, no one deserves anything, then what should be equally distributed is not everything—it’s nothing. And that way lies madness. And after that, it is but a quick step to realize that we should be regarded as entitled (to use Robert Nozick’s nice distinction) to whatever just is part of us or attached to us or in whatever way “given” to us by nature or, by our own efforts, somehow carved out of or extracted from nature. For to deprive us of what we possess—however we came to possess it so long as it was not by violence—is to aggress against us. And that deprivation, to remind yet again, is precisely what is forbidden by the basic Law. (Note: one could have been given by nature some horrible physical malady, say. Some of Nature’s endowments we would be glad to be without. Forbidding others from taking those, if they could, would be otiose.)

Have-Nots? Free Markets on Poverty

Especially here in the Wealthy West, many wring their hands over the plight, as it may be, of their country’s or the world’s poor. And they ask how those poor are to be ministered to in the absence of state assistance. There are two excellent responses to this, plus a very fundamental third.

  1. It is not obvious that the better-off owe anything to the poor; if anything, it is pretty obvious that they don’t. For it is not the activities of the relatively wealthier that have made the poor poor. Bad government, bad luck, and various sheer circumstantial factors account for nearly all cases.
  2. By this time, most of the world’s poor are poor because of the incursions of governments, usually military—either their own or neighboring ones. Obviously, the first thing to do is to get those armed men off their backs—however that’s to be done.
  3. State largess is always extracted from taxpayers, many of whom will always be unwilling. A noncoercive solution is always to be preferred. And such a solution is essentially universally available: the poor are ready to work for lower wages, making profitable interaction with them a live option. Whenever world politics permits such beneficent “exploitation,” we can expect it to happen. And that will certainly solve the problem, just as it has in the wealthy countries already, as for example in modern China, which has, after abandoning the absurdities of Maoism, effectively embraced market solutions, raising the living standards of a half billion or more from dire poverty to Asian-standard middle class in a very few decades—something that socialism showed no potential whatever for accomplishing.

We add that poverty in the “rich” nations is trivial compared with that in Africa and South Asia. Yet those unfortunate nations are also coming along, despite their desperately awful governments. Those fortunate areas whose governments have reasonably free-market sympathies—South Korea, Singapore, Hong Kong—are far above the levels endured by the citizens of, say, North Korea. They indeed have joined the world’s rich economies.

This is the ultimate solution to “poverty.” Handwringing and sponging off taxpayers are not. We, of course, should and do regard it as a virtue to be helpful to others, including the poorly off, who are naturally likely to be prime candidates for philanthropic assistance. But such assistance is necessarily temporary and occasional—especially useful in response to disasters such as tsunamis and earthquakes. Otherwise, however, the market is our fundamental and sufficient recourse. The poor we need not “always have with us”—unless you insist on counting as “poor” those in the lower tenths or fifths or whatever of the actual income distribution, whatever it is. But to do that, however politically popular, trivializes the problem insofar as it is one.

Conclusion

Social contract is misconstrued as an agreement among a particular set of people to establish a government. Properly viewed, as an account of the underlying rationale and genesis of morality, it is the fundamentally rational approach to that subject and, in consequence, to that of government. It is so because it accounts for—derives—morals from the very general facts of human nature and society, in terms comprehensible to all normal people. It proceeds from the obvious premise that we are all possessed of interests and abilities, that we live among others of broadly similar situation in those respects, and that we can communicate and achieve cooperative solutions to serious problems of supply. No other moral theory does so without resorting to mysteries and opacities. And the most natural and obvious reading of our situations impels us to the libertarian view as our fundamental moral outlook. It is that basis that enables us to make progress in social life. No more can reasonably be asked.


  1. David Gauthier, Morals by Agreement (Oxford, UK: Oxford University Press, 1986).
  2. Thomas Hobbes, Leviathan (New York: Dutton, 1953 [1651]), chap. 13, p. 101.
  3. Carles Boix, Political Order and Inequality: Their Foundations and Their Consequences for Human Welfare (New York: Cambridge University Press, 2015).
  4. George Klosko, Political Obligations (New York: Oxford University Press, 2005).
  5. Hobbes, Leviathan, chap. 14, p. 105.
  6. We table here the large subject of animal life “below” the human level, where the massive barrier is at least that of ready communication. We, in general, simply cannot literally talk with animals, whereas we can literally talk with virtually any other adult humans, at least via fairly reliable translation. And if we can’t even make an agreement with some animate being, there obviously isn’t much of a case for requiring us to keep that agreement.
  7. Joseph Butler, Fifteen Sermons Preached at the Rolls Chapel (London: J. and J. Knapton, 1726).
  8. Henry David Thoreau, “Civil Disobedience,” in Collected Essays and Poems, ed. Elizabeth Hall Witherell (New York: Penguin/Library of America, 2001), p. 203.
  9. John Locke, Second Treatise of Government (North Carolina: Hayes Barton Press, 2006 [1690]), sect. 6, p. 8.
  10. Quoted by Graeme Wood in “What ISIS Really Wants?” Atlantic, March 2015, p. 86.