Can the Social Contract justify Political Authority?

Based on my reading of “The Problem of Political Authority” by Michael Huemer

Governments are the most powerful organizations on our planet. They can kill or incarcerate you if you break any rules, they can take money from every person under their control, they can bar millions from entering certain areas, and they can do it all with total mandate and without fear of punishment. 

Not only can the government do all of these things, but also it is the only organization that is allowed to do them. Governments have a monopoly on whatever services they want, and they are the supreme authority in a land. This mandate to create rules and services and have a monopoly in enforcing and providing them is called Political Authority and it is used to justify the coercive actions of all governments. Importantly, Political Authority is ‘content independent’ to an extent which means that the actions of governments aren’t justified based on the content of their laws, but rather simply the fact that they are a valid political authority.* For example, governments are allowed to make laws about their borders, drugs, international trade, etc all without appealing to some higher moral authority. Political Authority’s ubiquity and power necessitates a strong moral justification.

*If you don’t believe that governments have ‘content independent’ authority to make and enforce rules you can’t call them supreme law of the land because they are appealing to a higher authority, it would be difficult to justify their monopoly because if all they are doing is following some outside morality then anyone could do it, and impossible to say that they have Political Authority.

What can justify Political Authority? This is a question that political philosophers have been trying to answer for millennia. I can’t talk about all of these justifications here but in the next few posts I’ll go over the three most common ones: consent, democracy, and consequential benefits. 

If a government can prove that the people it presides over consented to its  Political Authority, then it is justified in using it based on this consent. Perhaps the most common way consent between governments and people is conceptualized, at least in the western world, comes from Enlightenment Philosophers like John Locke and Thomas Hobbes. These two are often presented at odds, but really they agreed on a lot of stuff. Including their concept of consent between a government and a group of people, the Social Contract. The basic story goes something like this: Everyone starts in a stateless society, a “state of nature” which might be nasty or not so bad. Either way though, everyone eventually comes together and realizes that they could trade away some of their freedom to get some benefits out of a government. And so they bestow the government with Political Authority. No coercion here, government is just a voluntary transaction; I’ll pay taxes and follow your rules if you protect me from bandits. 

There are many different types of social contract theory. First, is the most simple and most literal interpretation: explicit social contract theory. An explicit social contract theorist would point to Rome or the United States and say that their founding documents represent written and voluntary consent to Political Authority. While this is probably true for John Hancock, almost no one else was shown or signed this contract. Nobody else was actually asked for their explicit consent so explicit contract theory fails to justify the government's Political Authority over anyone who didn’t sign. 

The vast majority of social contract theorists accept the failure of explicit social contract theory to comport with reality and many move on to implicit social contract theory. This says that even if you don’t give your explicit consent to the government, you implicitly consent just by staying in the country, using government services, and following laws. However, for implicit consent to be valid it has to fulfill a few common sense conditions. First and foremost, there has to be a way to dissent that does not require you to forfeit something to which the other party has no right. If I asked people to ‘speak now or forever hold your peace’ and no one did, I’d have implicit consent. But if I asked people to ‘pay me a hundred dollars now or forever hold your peace’ and no one did, the implicit consent would not be valid because their one hundred dollars was not within my rights to request. When people stay in a country, that doesn’t prove their implicit consent to Political Authority because the government has no presupposed rights to force them to leave or follow their laws. 

The most sophisticated and erudite social contract theorists accept the inadequacy of implicit consent to justify Political Authority and instead look to the concept of hypothetical consent. Hypothetical consent makes a lot of sense in many ethically intuitive situations. Imagine that a man comes into a hospital unconscious, but he needs surgery to survive. The surgeon needs to invade their privacy , cut them open, and put them at considerable risk to do the operation. These actions would normally require consent, but that consent isn’t available to get.  Hypothetical consent can be used here because it's clear that almost anybody would consent to a life saving surgery if they could. This simple version of hypothetical consent fails immediately in the case of Political Authority because it is only valid when other forms of consent aren’t available, but the government could easily get explicit consent or dissent, they just choose to ignore it.

Some hypothetical consent theories can get around this, however, by creating idealized situations where hypothetical consent is more valid than explicit consent. The most famous of these is Rawls’ ‘original position’ and ‘the veil of ignorance.’ In this hypothetical, everyone becomes a paragon of reason and they are stripped of their individual conditions to remove any self serving biases. The agreements that these people reach about Political Authority, or anything really, are more valid than ones reached on earth because they are untainted by bias and selfishness. Those are good reasons to hold this hypothetical agreement above real ones, but that only matters if a hypothetical agreement can actually be reached! Most anarchists and statists aren’t so because they stand to personally benefit from their ideology, so stripping them of their individual conditions wouldn’t change their position much. There are also many reasonable anarchists and many reasonable statists, so making everyone reasonable wouldn’t lead to immediate agreement either. Further proof of the intractable differences of ideology comes from Rawlsian philosophers themselves. There are dozens of unbiased, reasonably argued, and wildly diverse theories about what decisions would arise out of the original position. Even if most of these philosophers believe that a government would arise out of the original position, they certainly don’t agree on what type of government it would be. Although a totalitarian and a democrat agree that there should be a government, this doesn’t justify subjecting the democrat to totalitarian rule. It is not clear that universal agreement or consent could be reached in the original position, and forcing non-universal agreement onto some people who don’t agree presupposes a valid justification for that coercion which is what we’re trying to get from this in the first place. 

What if philosophers hash out their differences one day and universally agree on the conclusions from the original position? Even then, the universally agreed upon ‘reasonableness’ of their conclusions isn’t strong enough to justify force. A company could make you a job offer that is completely reasonable. Good pay, easy hours, nice perks, but no matter how good the job offer is, they would never be justified in forcing you to take it, even if people stripped of their individual conditions would take the offer every time.

Consent through a social contract is one of the deepest myths of our civic religion. It is taught almost universally in civics and history classes and it is still held in high regard by political philosophers today, however, this idea is inadequate to justify the content independent power of Political Authority.

---