Social Contract Theory as Statist Apologia

Among twentieth century works in the social contract tradition, John Rawls’s A Theory of Justice stands alone in importance and influence. Rawls’s “original position” is essentially a “highly abstracted version of the State of Nature,” ³ a way to think about the kind of governing structure to which people would likely consent when placed in a hypothetical construct meant to bracket out factors that might otherwise inappropriately bias their judgments. In the original position, individuals are fully equipped with their rational faculties, motivated by ordinary self-​interest, but positioned behind a “veil of ignorance” that prevents them from leveraging knowledge about either their own aptitudes and abilities or other personal attributes (for example their race or gender) in their decisions. The individual in the original position must hedge her bets and is, for that reason, more likely to be restrained and deliberate in her thinking and judgments about the characteristics of just social institutions. Reasoning from this delicately crafted hypothetical posture, Rawls reckons, people will see the merits in political system he advances, a welfare-​state democracy with a mixed economy and a robust program of regulation and redistribution.

Rawls’s veil of ignorance is in part an attempt to attenuate the effects of morally arbitrary factors such as one’s race, gender, social class, religion, etc., that is, to achieve more just institutions by correcting for the influence of luck. But luck egalitarianism, as it is called, presents serious problems if we are sensitive to public choice theory and therefore unlikely to believe that the people operating the means of correction and redistribution will themselves act justly. ⁴ Even on the abstract level of theory, luck egalitarianism is problematic. After all, even if we take it as true that one cannot really deserve the benefits that accrue to her as a result of talents with which she was lucky to be born, it is nonetheless unclear why someone else would deserve or have a claim to those benefits. If no one justly deserves the benefits of, for example, good genes, then it seems reasonable to default to leaving each and every individual free and uncoerced. Much as advocates of government conceive of it as something capable of standing outside of the people upon whom it acts, luck egalitarians seem to imagine wealth as something separate and apart from the actual, individual human beings who create it, a shared pool over which no claim is superior to any other. Further, once we decide to correct for luck, we must define it. If we are sufficiently deterministic, we may see putatively non-​arbitrary factors such as one’s effort, discipline, and resolve toward the achievement of her goals as likewise the products of good fortune; arguably not everyone is fortunate enough to inherit or receive instruction in these values, which are difficult to absorb and master in adulthood. Why should anyone enjoy the credit or wealth that ensues from their practice? Deciding what can safely be attributed to luck is, it turns out, its own infinitely thorny philosophical puzzle.

We might say that Rawls asks his reader to put the cart before the horse, to grant that there is a natural duty to support just institutions just as he argues that “the principles for institutions” must precede “the principles for individuals.” He writes, “[T]he principles for the basic structure of society are to be agreed to first, principles for the individual next, followed by those for the law of nations.” Rawls thus asks that we focus not “on any elements of specific interaction between [political institutions] and individuals,” but instead on specific qualities that make the structure of society just. For (most) libertarians, by contrast, it is only by analyzing such interactions that we can determine whether a given political institution is just. Here, Rawls relies on Francis Herbert Bradley’s famous dictum, “the individual is a bare abstraction,” ⁵ interpreting it to mean that nothing much can be meaningfully said about any individual’s obligations and duties absent a well developed theory of “the content of just institutions.” Yet it is difficult to imagine anything less abstract, more concrete and irreducible, than the individual, especially when compared with the notion of a political institution, which is a highly abstract composite of a number of separate concepts, many themselves rather more abstract than the human individual (for example, the physical edifices that house the institution’s personnel, equipment, books, etc.; the institution’s agents and employees; the rules by which the institution is governed and managed; the institution’s purpose or mission; its history and culture). Indeed, Murray Rothbard would say that, in a very real sense, there is no political institution — that the term is a mere stand-​in for “a real category of action adopted by actual individuals,” and that we risk muddled thinking when we pretend that political institutions are at the bottom of our inquiry. Rawls wants us to begin by thinking about the kinds of characteristics that define worthy institutions, much as classical political philosophy sought after the good polity.

Similarly, in his lexical structure, Rawls seems to advance an upside-​down vision of basic liberties, exalting political rights like the right to vote and run for office while subordinating more important rights like those associated with holding property and operating a business. I hesitate here to follow the generally accepted practice of designating these “economic liberties,” as such a designation seems to discount their importance and, moreover, obscure the extent to which these, too, are social and political rights. In any case, as Rose Wilder Lane noted, one is not born with an inalienable right to vote. The value of democracy, if indeed it is valuable, is instrumental, not intrinsic, a function of its power to safeguard individual liberty—to protect people in their pre-​political rights. We are, once more, presented with an empirical question, the answer to which is not obvious.

Rawls theory, while not inattentive to concerns about the liberty and autonomy of the individual, believes those values are advanced by a relatively powerful welfare state empowered to undertake extensive intervention and redistribution. His theory, then, seems to cling to the assumption—widely shared among both its friends and foes—that there is a necessary or inherent tension between liberty and relative equality as political values. Whether that is true ought itself to be the subject of deeper consideration. As Andrew Koppelman observes in his review of Free Market Fairness, John Tomasi’s “new synthesis of Rawlsian high liberalism and market-​oriented libertarianism,” much depends “on how unregulated markets actually work” (emphasis added). And recent scholarship like Tomasi’s has attempted to ground libertarian political arrangements in Rawls’s basic framework, confident that free markets, private property, and individual liberty actually work to serve Rawls’s underlying values. ⁶ In Radicalizing Rawls, Gary Chartier, who admits at the outset that he is no Rawlsian, argues that a Rawlsian methodology and set of concerns lead nonetheless to a preference for “global market anarchy,” for a cosmopolitan political order that radically limits “nonconsensual authority.” Modifying Rawls’s approach to shift the focal (and starting) point to individual persons rather than peoples, Chartier argues that the state has been and continues to be obstructive of Rawls’s idea of justice. Chartier suggests the feasibility and desirability of a stateless political order, based on free and voluntary association and market exchange without special privilege. Thus does Chartier continue the long and fruitful conversation between the social contract tradition and the political radicals who have challenged and revised it.

Even sophisticated students of political theory often misunderstand anarchism, taking it to posit human beings that are, by nature, quite without ill will, naturally cooperative and peace-​loving. And perhaps human beings, freed from the violent interventions of government rulers, would be significantly more generous, virtuous, and kind than they are today. But anarchism in fact requires no such tenuous assumptions about human nature (whatever it may be). Rather, anarchism says very much the opposite: it asks that we grant the worst, most Hobbesian assumptions about human nature. Hobbes argued that human beings’ baser impulses effectively preclude social harmony and cooperation in the state of nature, absent the “artificial man” of government. Without this sovereign entity standing watch over the relationships between individuals in society, compelling them to honor their agreements, the temptation to break contracts — to defect, in game theoretic terms — would overcome them. If we take those premises seriously, anarchism says, then it is all the more important that we abolish the state, that we do not permit some group of people to rule and dominate others. Subsequent economic insights, like those provided by public choice theory, help to explain why: people generally respond to incentives, and those given a special license to rule are not, on average, unlike the general population of human beings from which they emerge. They may actually be considerably worse, given the kinds of people political power is likely to attract. Thus are centralizations of power and authority dangerous to human life and liberty, incentivizing rather than neutralizing the worst behaviors. Centralizing power creates political instability — the chaos of which Hobbes speaks — by encouraging defection and violence, by making them much easier and more profitable. Political decentralization, by contrast, keeps everyone honest, unable to tap into a central reserve of consolidated power.

As noted above, modern public choice theory seems to vindicate some of the general anarcho-​libertarian critiques of social contract theory. Lysander Spooner, for example, understood the paradox of attempting to escape the violent world of Hobbes’s nightmares by giving a privileged group of people access to a monopoly on violence. The strong and politically connected and sophisticated are likely to benefit from the establishment of such a monopoly, to leverage it unscrupulously to their private advantage. Whether or not he fully appreciated its implications, Locke seems to have noticed the paradox. ⁷ As Steve J. Shone observes in Lysander Spooner: American Anarchist, “[T]he irony lies in the fact that Spooner is criticizing social contract theory using an argument made by Locke and criticized by Hobbes.” Spooner simply proceeds further than did Locke, contending that not only are a people justified in throwing off the yoke of a tyrannical government, one that no longer has their consent, but that the individual is justified no less in doing the same. Spooner even went further than Hume, who, though famously hostile to social contract justifications for political authority and obligation, defended government in principle for its social utility. Spooner, the staunch natural rights theorist, would not have been moved by Hume’s (and, later, Bentham’s) appeals to utility, but it is important to note that he would have objected even on those terms: for Spooner, government did not serve law and order but was the practical antithesis of both. It functions practically to oppress its subjects and enable a comparatively small group of monopolists to enrich themselves and deprive the rest of their due reward.

Earlier, proto-​anarchist strikes at social contract theory are present in the work of William Godwin, who, quoting Thomas Paine, drew a distinction (familiar to contemporary libertarians) between society and government: “Society and government … are different in themselves, and have different origins. Society is produced by our wants, and government by our wickedness.” Godwin, as we shall see, even tips his hat to full anarchy. In Godwin’s work, of course, “anarchy” is employed in the older, pre-​Proudhon sense, to mean the state of disorder or chaos that ensues from the absence of authority. ⁸ We are not yet to Proudhon’s anarchy as order, as a system of balance and justice. But even in this older sense, Godwin argues, it is far from clear that government is to be preferred to anarchy, “that the mischiefs of anarchy” are worse than those of government. Godwin writes, “With respect to personal security anarchy is certainly not worse than despotism, with this difference that despotism is as perennial as anarchy is transitory.” For Godwin, “Anarchy awakens mind, diffuses energy and enterprize through the community,” where despotism tramples the mind, yielding “an equality of the most odious sort.” In his critique of the Rawlsian social contract, contemporary anarchist philosopher Crispin Sartwell follows Godwin, arguing that even after we grant “all of the assumptions Rawls packs into the original position, it is not clear that the contractors would not choose anarchy.” ⁹ Radicalizing both liberal thought generally and Hume’s famous appraisal of social contract theory, Godwin develops an approach that bears striking similarity to market (or individualist) anarchism and Proudhonian mutualism. “Godwin’s society,” April Carter writes, “is to be built on a series of mutual and constantly renewed compacts between freely contracting individuals,” rigidity and permanency being at odds with individual conscience and reason. Here, Godwin, often regarded as one of the very first theorists of anarchism, anticipates Pierre-​Joseph Proudhon, the first to explicitly describe himself as an anarchist. Proudhon argued that the true social contact is an actual agreement between consenting individuals, a voluntary meeting of the minds that binds two equals, both of whom benefit. Overlapping networks of such individual agreements would form the fabric of a society in which people interacted as economic producers, united by shared goals rather than compulsion. Proudhon therefore longed for the “reign of contract,” for the gradual replacement of government’s “military rule” with genuine agreements. Thus would anarchy, or the absence of political rulers, mean order rather than chaos.

Our best guesses at the terms to which reasonable people would agree were they sitting in Rawls’s imagined original position are still only a matter of conjecture, inescapably bound to each guesser’s priors. Libertarians throughout history have figured that we ought to be careful to avoid coercing people who have never actually sat in the original position or agreed to specific terms, however beguiling a clever philosopher’s thought experiment may be. It is, after all, difficult enough just to decide whether a given act is coercive. ¹⁰ And as we have noted above, allowing some individuals to assume the role of a government, possessed of the unique powers associated therewith, is unlikely to compel those individuals to act more nobly or selflessly. Hobbes imagines that individuals will lie, cheat, and steal as soon as the opportunity presents itself, conscience giving way to concrete material interests. If he is correct, the Weberian state, with its monopoly powers and claim of territorial sovereignty, becomes incredibly dangerous, indeed, the most dangerous of all human institutions. It may be that political power is the chief source of — rather than a route of escape from — the war of all against all.