Major Contentions

• Social contract theory emerged from the Reformation chaos to justify government by the consent of the governed; it replaced a far older origin theory that posited an organic growth of government founded upon the family as the model of more complex associations.
• We have reason to ask why the organic model of political association needed replacing and why social contract was the form of that replacement; the answer to both questions can be found in the axiomatic disjunctions spawned by the Reformation.
• The paternalism of the organic model easily accommodated the hierarchical authority of the aristocracy and was thought at the time to provide no means to relocate political power to individuals, which was required by the emerging modernist axioms of commitment.
• Those axioms, individual experience and universal reason, were inherently hostile to the surrender of agency that defines trust and characterizes authority.
• Because it was a product of the bitterest contentions resulting from the inability of authority to resolve challenges to trust in the Reformation, social contract theory presupposed such dissension to be the natural state of association and peaceful arrangements to be both unnatural and difficult to maintain.
• Aristotle had proposed political states as natural but not instinctual; he saw the challenge as extending the natural tribalism of the family to associations with strangers based not on love but on justice.
• Various modes of simulating “natural” affinities had emerged by the age of Reformation, including tribal, dynastic, and economic identity, but the most powerful spur to political association had always been divine right; because of its close association with the ravages of the Reformation, modernist theorists chose to reject the natural model of political association and so invented a novelty, a social contract, to replace it.
• The first contractarian, Hobbes, mistook the conventional modes of association from family to tribe to polity to be both unnatural and destructive of individual agency; because he proposed social contract theory in the shadow of religious regicide and civil war, he wrongly thought traditional conventions of political association to be artificial and imposed by power rather than embraced by trust; thus he germinated the seeds of mistrust that had been planted by the wars of the Reformation that would grow through the modernist era.
• Hobbes’ vision of artificial association made the state the arbiter of what he thought to be irreconcilable conflicts of self-interest; he failed to see that political associations are as fundamental to self-interest as other needs, and that the autonomous individual in the state of nature was neither historically possible nor metaphorically accurate; this error could never be separated from the contractarian model and continues to plague it in the form of political libertarianism.
• Hobbes explicitly rejected both the organic model of government and the natural rights theories that had accompanied it; any future attempt to graft rights to contracts would have to discount all but civil rights explicitly retained in originalist contracts; this liability largely explains the failures of contemporary theories of natural or human rights except as idealized ambitions of future civil rights progress because “justice” is conferred by the contract.
• The organic model is fully compatible with modernist axioms and also with the natural and human rights that enshrine justice as the arbiter of the quality of any civil statute; what is more, it sets these political rights in the larger context of the universal human needs that governments exist to facilitate.
• Adopting a contractarian model, by contrast, sees law as an inevitable imposition on human freedom, an alien and artificial limitation that obstructs rather than expands individual liberty; thus the contractarian model continues to propagate the historical distortions that attended its creation.

Consider two stories about how government came to be.

The first pictures persons existing wild and free, roaming the forests and the grasslands of a pristine world unburdened by obligations of any kind. But this edenic life carried the germ of its own destruction, for the license that saw no obligation also imposed no restraint. Theft, pillage, and rapine followed as night follows day, so with heavy hearts individuals came together to offer up their freedom at the feet of a ruler in exchange for protection from each other. In this way they created a government ab initio, the surrender of self-sovereignty both a compromise and reminder of their original power.

The second story is less uplifting and direct. In this version, humans were always included in a matrix of government, first as members of a family, then as associates of a clan whose elders provided for group welfare. Bound by extended ties of consanguinity, clans intermarried and grew into villages, towns, and cities. Diversity bred complexity, and so these nascent social units developed by trial and error the political arrangements they found most satisfactory to their needs (see “Needs Anchor Morality“).

You might think these nativity stories too similar to make much difference, particularly thousands of years later. Why ponder which is the accurate history after fifty centuries of development? But you’d be wrong. The political creation story you accept will orient your judgment on the proper role of the state and of the individuals who accept its laws. Here is why.

The first story is, of course, the tale of the social contract, first clearly enunciated by Thomas Hobbes in 1651 and revised repeatedly by Locke, the American founding fathers, Rousseau, and Rawls among others. The second is the explanation offered by Aristotle in his Politics published two thousand years earlier. So we are immediately faced with an issue: surely these early advocates of the social contract were familiar with Aristotle’s version of the founding of polities. If they found it lacking, shouldn’t we? Or to put it another way, why did they find it necessary to articulate a completely different version of the origin of the state?

Like all things modern, the idea of the social contract was rooted in the bloody ground of the Reformation. Hobbes had lived through the darkest years of the English Reformation, from the suppressions of James I to the execution of his son in the revolution waged in the name of Puritanism by Cromwell, the subsequent establishment of the Commonwealth in 1649, and the abolition of a monarchy of eight hundred years’ duration. This sad narrative mirrors a far worse situation on the Continent, an orgy of sectarian bloodlust dating from the German Peasants’ Revolt in 1519. The most destructive war in European history to that point, The Thirty Years’ War, had ended only three years before the publication of Leviathan in 1651. And still nothing was settled. The restoration of the Anglican monarchy would take another decade and the Jacobite rebellion of the Catholic James II was still a generation away. As late as 1780, the Gordon Riots demonstrated the sectarian anger lying just beneath the conventions of English life, and many now living recall the Northern Irish troubles only recently suppressed. So the social contract theory was breached in an atmosphere of religious fanaticism. It is only against this setting of savage religious strife that Hobbes’s story of what moved persons to establish the commonwealth in the first place can be understood (see “Premodern Authority“).

I wish to stress that the Reformation did more than wrench political theory from its traditional roots. Over its fifteen-decade span, it called the most common and settled warrants for truth and goodness into question, whirling two thousand years of inherited wisdom into history’s dustbin. Among the dead on the battlefields stretching from Bohemia to Ireland were twenty millions killed in sectarian conflicts. Medievalism died there too, and from its ashes modernism endured its protracted and painful birth (see “Modernism’s Midwives“). What slowly emerged from the bloodshed was not only a new set of warrants but also a new means of allowing them to operate. The new warrants that slowly came into focus are quite familiar to us now. Empiricism, expertise, competence, and undistilled experience are the means modernism has used to justify public declarations (see “What Counts as Justification?“). But these warrants require that we first accede to the power of the individual to decide, and that requires us to recognize some means by which she might decide. Before the warrants could provide consensual means to verify declarations, some equally consensual means by which to seek their verification had to rise to awareness. So these new axioms of commitment  had not only to enter the discussion but to dominate it to the degree that they could act as a priori precepts largely immune to dissent (see “The Axioms of Moral Systems”). It took an unconscionably long time for that to happen in the case of modernism. It hardly sprang fully formed from the mind of the bewildered combatants of religious fanaticism. Authority as a warrant for truth and goodness claims and its unspoken axiom, trust as a surrender of agency, had to suffer round after round of competitive assault until its inability to settle dispute became apparent to the exhausted champions of Christian heterodoxy (see “The Fragility of Religious Authority“). Hobbes’s account of the social contract was the first structured modernist attempt to renegotiate the terms of the relationship between ruler and ruled at a moment in history when the warrant of divine right of kings was suffering the same fate as all the old medieval warrants based on authority.

In that moment when anarchy and tyranny struggled for control, the venerated Aristotelian explanation that had sufficed for saner times seemed absurd. Hobbes view of human behavior was therefore bleak: “The condition of man is a war of everyone against everyone.”  Viewed through the lens of the disintegration of all reliable knowledge in the face of doctrinal war, the meaning of reason itself seemed as doubtful as the more powerful warrant of authority. There were clear causes for this difficulty traceable to the Reformation’s understanding of either term. First, reason had been entirely subsumed and domesticated by authority in its thousand years of total dominance since the fall of the Western Roman Empire. This was a yoke reasoning willingly put on as well as one that authority by its nature demanded. Many brilliant medieval minds had learned to subjugate their own logic to the divine will as interpreted by all of God’s agents on earth, and no less a mind than Thomas Aquinas had pronounced contradiction with authority a sure sign of error. But this humility had a second cause, and it derived from the nature of authority itself. Its claim rested entirely on the trust of the beneficiary. By granting trust, I am literally forfeiting my own ability and inclination to reason, telling the authority that I trust its decisions in preference to my own, that my own agency now will be put to sleep so that the dictates of authority might guide me without my interfering. That forfeiture of rational and moral agency will continue so long as trust does. And given the emulsified truth and goodness claims of religious authority in particular, trust is unlikely to be challenged because anomaly can find no lever to pry apart the alloyed goodness claims that authority has cemented to its truth claims. If God gave Moses the Ten Commandments, they must be moral imperatives and if these moral imperatives were given by God, they must be true. So what Descartes termed this “reasoning in a circle” had long been the trusted doctrine of authority, though reasoning is precisely what congregants could not do. The person who trusts is unlikely to re-appropriate sufficient rational agency to question these emulsified declarations of truth and goodness that are the trademark of religious authority, and even if he could, on what rational grounds could he bring a challenge? This will only change when those combined declarations are  assaulted by a challenge that can be neither suppressed nor ignored. Then trust must be forfeited as a prelude to a reacquistion of agency required for an inspection of what had been granted. That very act required to arbitrate anomaly necessarily must erode trust even if trust is once again extended. What had seemed strong is revealed as merely brittle. Then trust will pop like a soap bubble in the breeze as the thinker awakens from his sleep of reason with a groggy and awkward mind unused to critical thought. This was the condition of thinkers in the mid-seventeenth century. After more than a century of religious schism, heresy, war, and disintegration, their trust wavered, not just in their current authorities but in the grant of authority itself. By Hobbes’s day, Christendom had had eight generations of experience contending with contentious authorities each claiming divine approbation. Lifetimes had been spent shifting trust from orthodoxy to heresy and back again as new belief challenged old institutions only to claim new institutional authority elevating new doctrines and legalities. Hobbes signaled something different. Congregants began abandoning trust in authority itself, emerging as from a nightmare to seek clarity in a new kinds of axioms of commitment. The old authorities, even when long domesticated and resubmitted to monolithic authority, were subject to doubt, not because they were unreasonable but because they were no longer trusted. This was the birth of modernism. Among the authorities that now faced a dissolution of trust was the Philosopher himself, Aristotle, whose theory of the birth of government now came under new critical scrutiny.

If unbiased reason is brought to bear, nothing seems more reasonable than the accounting of our relation to government that Aristotle provided. He argued in his Nicomachean Ethics that persons desire not merely to live but to live well and fully, and he extended the argument in Politics to include their relation to their government. He saw no need to posit the invention of the state for the very simple reason that the state had existed as long as humans had. It was merely the mechanism for them to meet their needs for security and prosperity that lay beyond their individual abilities and their family’s. Its existence was organic and integral, though not instinctual. Our desire from birth is to practice a form of tribalism whose essence is the separation of persons into ours and the others. The germ of political participation lies in our interaction with family, which after all is a little state with its own rulers, ruled, and laws, so our inclination is to collaborate because we see the family as fundamentally ours. It meets our need for love and through subsidiarity assists us when we cannot meet our other needs. Such relations are entirely tribal and instinctual. They require no exposition for they characterize persons everywhere and at all times. The problem lies in extending that affiliation to those outside the instinctual units we find so natural, in transposing those in clan, village, tribe, and city from the others to ours, from strangers to fellows. This also involves a complex reorientation of moral duty, for our relations with strangers cannot grow from loving those we cannot know and cannot reliably assist. It must instead rely on a strict notion of justice, meaning what they are due (see “The Moral Bullseye“). And that is anything but instinctual, though the contributive needs that inspire it are. Our natural relationship with family takes justice as the minimum of our relations with them, expanding most naturally to relations built upon love, so the line where love ends and justice begins has to be rationally calculated or culturally instilled, built upon extant operations of mutual benefit between individual strangers (see “Justice Is Almost Everything”). Instinctive social norms are inadequate to the task of reorientation, and so conventional means to build on nature have to be put in place to regulate what is due and from the beginning were put into place as tribal units grew ever larger.

The forms such relationships evolved were founded upon three universal sources. The first source was those minimal standards of mutuality within family units. These are the most basic kind of obligations among persons who love each other, and they formed the grounding for extended family relationships built on blood relation and mutual need out to the larger community. The second source was a universal reason initially disposed to fairness but eventually framed to the more complex conception of justice. This allowed persons to recognize and reward equitable treatment and condemn and punish violations.  But because persons are always tempted to unfairness in their own favor, these relations were also founded upon a third source: the authority of clan elders with the gravitas to seek a general trust, a forfeiture of one’s own sense of what is right as a grant to those considered more capable. This final source is the soil in which aristocracies and monarchies were rooted once consanguinity became less clear. What was central to Aristotle’s understanding was the nature of conventionality as an entirely natural, if more than instinctual, evolution from individual to family to state. It could only be metered by reason or consensual trust.

This classical view saw governments as an entirely natural extension of the family, though clearly they could not be based on relations of love. Their conventionality derived from the kinds of relationships they fostered between ruler and ruled, which could be of many forms so long as they satisfied the needs of all involved, just as families may operate by a variety of rules so long as they meet the needs of their members. As the great classifier, Aristotle found these efforts grouped themselves into all the political categories he saw exemplified in Greek city-states: aristocracies, oligarchies, monarchies, and democracies. Just as families share a common culture that bind their members together, so too did early polities in Greece and elsewhere find conventional substitutes for the naïve congruities of the family. Any means that facilitated the identification could work. Chief among these was religious unity, and so we see a universal appeal to divine support of not only political leaders but of the systems that installed and maintained them in power. It bears repeating in the recounting that the conventional component of this aggregation of political authority was its manner of extending the tribal identity to groups larger than the family, something that was inherent in the effort of human beings to satisfy their needs. Some means of expanding tribal identity was inevitable because, as Aristotle maintained, “Man is by nature a political animal.” Since the complete catalog of his needs could not be satisfied by family units, it was entirely predictable that larger tribal entities would emerge.

From a recent perspective, we can see other ways to glue tribal identity. The Reformation demonstrated the brittle quality of religious authority in heterodox environments that challenge the trust that is its sole foundation. It is utterly unable to reconcile conflict using its own mode of warrant because trust challenged is trust destroyed, requiring the resubmission of rational and moral agency to individuals who formerly had willingly surrendered it. Other kinds of bonds had to be employed. Dynastic loyalties worked well to unify peoples who might have little else in common, for they conventionalized rulers as distant “little fathers” and mothers with familial obligations to their subjects, as the empires of the Caesars, Charlemagne, the Hans, and the Empress Victoria attest. Marx attempted to sketch out the natural affinity of economic class as a strong adhesive to group identity, and we see echoes of that attempt in references to classism or “class warfare” in our own age. There is, of course, resistance to such an economic identity in some quarters. We might think that national identity is as natural as the Pledge of Allegiance, but we should remember that it is a conventional mode of establishing an American tribalism and is not exempt from efforts to challenge it on its own terms because it cannot succeed in forcing strangers into tribal associations by even the most determined appeal to blood or soil, “fatherland” or “founding fathers.” States’ rights argues that “natural” units should be smaller while efforts to propagate international law and jurisprudence maintain that such units should be larger. And these forms of tribal identity are hardly discrete forms of conventional affiliations, so we see deified Pharaohs and Roman emperors, Charlemagne’s coronation by the pope, and frequent reminders that the United States is, after all, a Christian nation. Recent history reminds us too that what glues one tribe together may leave others cold. Efforts by Western powers to build nations in the Middle East break upon the rocks of religious identity that itself also might sunder upon sectarianism, as Hanbali and Wahabi contend among Sunnis, which brings us back to just that kind of contention that so moved Hobbes to argue for the social contract (see “Which Clash of Civilizations?“).

In this respect, contrarians have a point: tribalism may prove insufficient to glue social identity when other options challenge the means of tribal affiliation. This has profound implications for appeals for strangers to love one another in a polity founded upon justice. (see “Empathy: a Moral Hazard”). But that same universal reason that estimates fairness also recognizes when tribal appeal advantages one tribe and slights another, and this also must erode the appeal of oppressed tribes as it strengthens attractions to oppressors.  One of the many requirements of totalitarian rule is a constant reiteration of the tribal relation of state to individual, as sickly a shadow of familial love as all commands to love strangers must be.

The impossibility of such a foundation for a polity could hardly have been more clear to Hobbes, the inheritor of a century and a half of savage sectarian war. He certainly could see no natural bonds linking persons in a political landscape marked by war of each against all. It is little wonder that he dismissed Aristotle’s analysis. “Scarce anything can be more absurdly said in natural philosophy…nor more repugnant to government than much that (Aristotle) hath said in his Politics nor more ignorantly than a greater part of his ethics.” Where Aristotle had seen political association as a natural expansion of our search for eudaimonia, a good life, into a public sphere marked by cooperation for mutual advantage and the means to promote political affiliation as the conventional means to accomplish this simple and universal goal, Hobbes saw only contention, strife, and competition. “(Agreements) of men is by covenant only, which is artificial [italics mine]; and therefore it is no wonder if there be somewhat else required, besides covenant, to make their agreement constant and lasting; which is a common power to keep them in awe and to direct their actions to the common benefit.” It is entirely understandable, though regrettable, that Hobbes mistook the mode of a natural association for the entirety of the association itself, and so sought some stronger impetus to compel consensus and cooperation and discourage the bane of his era: contention based upon differing conceptions of the good.

For Hobbes, it was persons’ security as a means of basic survival and not their contributive needs that forced them as autonomous individuals into a reluctant political affiliation. Who can blame him for forming such a judgment in the dismal chaos of the Wars of the Reformation? But we need to ask another question: was Hobbes’s experience representative of historic civic experience or an aberration? The question expands when we add the permutations of the social contract theory of government that Hobbes launched: those of Locke, the American Founding Fathers, Rousseau, and Rawls. Each of these later writers both refined and distorted Hobbes’s original notion in a manner entirely representative of modernism’s desperate attempts to replace authority as a warrant for truth and goodness claims. Unlike authority, the use of reason and closely examined experience that modernists used in its stead provide the means to reconcile disagreement by refinement and thoughtful analysis, but at the cost of certainty and settled belief.

Allow me to lay my cards on the table at this point. If asked whether the disagreements between Hobbes’s view of political affiliation and Aristotle’s are more attributable to Hobbes’s era or Aristotle’s error, I would not hesitate for a second to blame Hobbes for a perversion of human motivation derived from the perverse age in which he lived (see “Where Do Rights Originate?”). The false assumptions that moved him to propose a single and prehistoric contract were magnified by the inheritors of his theory that beat it into shapes more suited to their eras. I argue that the social contract mistakes the mode of political association for the motive and so distorts both history and political theory. You will never find a historical state of nature, never find a primeval agreement among totally free individuals living without restraint, never find any support for human rights in such an agreement, and never find justice as the governor of government in any social contract justification for government. It simply exists as brute and positive force putatively binding the inheritors to the wishes of their ancestors. Or rather, to a majority of their ancestors. As a result of this reality, what you will find in contractarian arrangements is a simmering resentment against government as an infringement on originalist freedom that imagined persons running wild in the rosy wilderness, leading to a perverse valuation of the autonomous individual as the fundamental unit of government somehow isolated from and superior to the community that satisfies some of her vital needs (see “Alienation of Civic Affection“). Libertarians are always blathering about their rights, yet their theory of government provides absolutely no means for them to claim any rights whatsoever except those specified in social contracts. “Life, liberty, and pursuit of happiness” are no more specification of rights than they are legitimized by their being enumerated in The Declaration of Independence.  For if they were proposed as true rights, they would have been enshrined in the U.S. Constitution as civil law rather than registered as rhetorical fluff in a document with no binding force. But then they are mere baubles beyond the power of law to supply or to arbitrate, though always within law’s power to deny.

Hobbes denied any notion of rights beyond the civil, arguing that every man competes for an absolute freedom in the state of nature as his natural right and so is incapable of any surrender beyond whatever civil arrangements he is forced to negotiate  (see “Our Freedom Fetish“). A corollary to that argument must be that civil rights are the only rights that government recognizes (see “Natural and Political Rights”). And a necessary corollary to that contention must be that no alternative to positive law can be justified within the polity that chooses to define rights as it wills (see “When Is Civil Disobedience Justified?“) In a contractarian state, “as it wills” must always entail a majoritarian vision of the common good (see “Two Senses of the Common Good”). If a contractarian foundation for government leads us into this thicket of wrongs, we might ask not only how such errors came to be but also how can corrections be made?

We can return to the modernist axioms whose first articulation resulted in Thomas Hobbes’s many errors. They rely on universal reason and individual experience as foundational axioms of commitment. Hobbes’s conception of those qualities was blurred by eight generations of religious bloodlust, and what is more, he could not anticipate the compounded errors of his mistaken justification for political power. But we, who are as removed from his age as he was from the world before Luther, can see both if we return to the origin of the state and the means by which persons affiliate with it.

Rights are both universal and specific and are granted neither by religious authority nor governmental power, for if they were, they could as conveniently be revoked (see “Needs and Rights“). Individual needs do enable government and convey individual rights, but to infer that their priority puts the individual and her government in tension is as pernicious as saying individuals are superior to their need of skill because that need precedes its inevitable satisfaction. Government satisfies a universal human need just as families do, as skill does, or at least it does when government is founded upon delivering justice, defined as “to each her due.” But these civil rights are merely the tip of the iceberg. They exist regardless of the conventional forms of political bonds that join persons to units larger than the family because they are rooted in the universal needs that governments exist to satisfy, have always existed to satisfy. And though governments can justly satisfy only a very small number of these universal human needs, nothing else can, and so governments are as necessary for flourishing as families. But unlike families that are structured upon mutual love, governments are founded upon delivering justice. So long as the false contractarian justification is used to understand government, it must deliver something less.

We see the consequences of this error everywhere today. When libertarians argue that government is some alien “they” and that “they” can do little right, when they seriously argue that government was established to protect individual freedom rather than promote justice, we have to wonder why they think we need government at all since it seems they also see it as the greatest threat to individual liberty. Like Hobbes, they see government as a regrettable expedient rather than a necessary constituent of human happiness. Perhaps, like Thoreau, they also think “that government is best that governs least” (see “Foundations of the Law: an Appetizer”). One then is forced to press the issue for today’s libertarians as one must for Thoreau. If you know what goods government exists to procure, what are those goods, and how do you know? The resentments of libertarians are less a product of their deprivations than of their nonsensical presumptions. Contrast their protests against the positive enumerations of goods staked out by an elaboration of Aristotle’s theory of government and see which one seems more sensible to you (see “Functional Natural Law and the Legality of Human Rights”).

For anyone who takes social contract theory seriously, I urge a careful study of the Reformation and a close reading of Leviathan, with its lengthy examination of religious truths that were in hot dispute in Hobbes’s lifetime yet which seem as desperate as his theories of political preference to a contemporary reader. Despite his anachronisms, we seem bound by our reverence for the Founding Fathers to cling to the myth of the social contract. Just as we’ve inherited the Reformation’s dichotomies concerning justification, we also carry into our own age its distortions and anxieties. It is our painful inheritance that social contract theory as a justification for government continues to propagate the distortions that attended its creation.