Social Contract as a Basis of Norms: A Critique* by Tibor R. Machan In this paper I will argue that social contract theories aimed at establishing norms for personal and community life are inadequate. I will also advance an alternative approach that captures some of the appeal of social contract theories. Furthermore, I show that in, for example, Kant and Rawls, the alleged contractual basis for the legitimacy of law and government is supplemented with the very strict requirement of self-consistency of the resulting norms. Once this element of internal consistency is isolated and let aside, the social contract thesis what is left of the social contract basis of norms and law is very meager and inadequate. Kant stated explicitly that the "idea [of social contract] alone enables us to conceive of the legitimacy of the state,"1 He made clear that the social contract would be a "mere idea of Understanding, which has, nonetheless, its doubtless (practical) reality" in that it "obligates every lawgiver to advance his statutes so that they could have emerged from the united will of the whole people, and to consider every subject, as regards his desire for citizenship, as though he had been party to accepting that will. For that is the basis of the legitimacy of every public enactment."2 Kant's idea was recently revitalized by John Rawls by way of the hypothetical social contract that is to be conceived of as having been formed behind "a veil of ignorance,"3 There are other, more Hobbesian, versions of social contract theory but, the Kant-Rawls version has become most prominent among contemporary political philosophers. For Hobbes the gist of the story is that when scarcity and congestion reached a certain point in the state of nature, the self-interested motivation of individuals drove them to convene and reach a consensus about certain rules of social life which a monarch of government was to make sure everyone obeyed by imposing strict sanctions against law breakers. At this point everyone gave up the natural rights that each possesses in the state of nature, except for the right to resist being killed. In Hobbes's version no specific content for the rules is specified, though it is assumed that they would aim for the maintenance of peace. Peace was seen by Hobbes as the only public good, aside from its maintenance. In the Kantian-Rawlsean version of social contract theory, however, more is assumed required of the rules -- they must be rational, fair, etc. Why is this idea so appealing to many of these philosophers? It seems to be suited to the task of providing an explanation of the moral content of the laws they prefer, because of some important assumptions. These assumptions arise from a long tradition of empiricist bias. Even Kant embraced this for the phenomenal world, where the practical task of politics is to be realized. These ideas include that human actions must be explained by reference to motives (as distinct from purposes, for example); that nature provides no guidance to judging something good or bad; that morality is mainly a social institution; that people lack freedom of the will, at least from the scientific, practical point of view, and that their conduct is neither morally right nor morally wrong except as a matter of their relationship to certain social goals; etc. This general empiricist-scientistic viewpoint favors the idea that prior to being bound by their own choices (which in the last analysis come to hypothetical revealed preferences, so as to accommodate empiricists standards), members of a social group are not bound by moral standards -- it isn't the case that they ought to live in certain ways rather than others apart from what emerges from their contract. With the demise of the classical idea of natural law, that human life has an end or purpose and that right conduct should further this, this hypothetical social contract had the best chance of resurrecting some semblance of respect for moral and legal principles.4 Yet even social contractarians seem to eschew simple the conventionalism the Hobbesian version of this approach produces. This is one reason why, for many, Hobbes' approach is inadequate. A look at Kant and Rawls will illustrate the point. Both Kant and Rawls invoke more than mere agreement in their efforts to make the contract supply us with moral and legal standards which can be considered binding. Kant believes that it must be confirmed by intuitively acceptable moral conceptions placed in rational equilibrium.5 Why is a mere agreement not sufficient? If no other source of norms is available -- especially in the case or Rawls -- why not simply insist that norms come from human choices, rational, self-consistent, irrational, arbitrary, or whatever? In the case of Kant, the "united will of a whole people" seems to be required only because he is convinced that this will secure the ingredient of consistency. Consistency appears to be a necessary feature of the source of moral norms, distinct in principle from the actual contract. For Kant, the act of will on the part of everyone is one, while the unison among all of them is another indispensable feature of the social contract. For Kant, consistency comes from the united act of consent, but in a non-Kantian philosophical framework it might come from some other source. Rawls introduces the idea of the veil of ignorance so as to establish for himself a basis for consistency. Consistency would be thwarted if the contractors had important individual characteristics, so Rawls makes all the contractors uniform. At any rate, in Rawls, the element of consistency comes from the veil of ignorance provision. The consent, in turn, seems to be based on the intuitions which Rawls imposes on the contractors. Rawls clearly rejects any basis for morality other than the hypothetical social contract. From what we have seen, Kant would agree although he appears to be confining this view to how social morality and law must emerge. Despite this belief in the social contractarian foundation of at least political morality, both philosophers have built into the contract an element, namely, rationality, that could stand independent of contracts, at least when we approach the situation from different philosophical positions. Why do Kant and Rawls not simply rest their social and political morality on an analysis of rationality rather than bother about some admittedly illusive, fictional social contract? Rawls and Kant both reject any sort of metaphysical or ontological grounds for morality. Rawls was very clear in his Eastern Division APA Presidential Address when he stated: "Now my thought is this: much of moral theory is independent from the other parts of philosophy."6 Kant, too, locates morality in pure reason, without external foundations: "Every action is right which, in itself, or in the maximum on which it proceeds, is such that it can coexist along with the freedom of the will of each and all in action, according to a universal law." 7 With reference to social morality, Kant held furthermore, that we should all "act externally in such a manner that the free exercise of the will may be able to coexist with the freedom of all others, according to a universal law."8 (Kant wished to deduce every legal judgment from pure reason.) For example: "If a man and a woman have the will to enter on reciprocal enjoyment in accordance with their sexual nature, they must necessarily marry each other; and this necessity is in accordance with the juridical laws of pure reason."9 Now in Rawls' case, the attempt to reject personal and social morality's dependence on other parts of philosophy cannot succeed for reasons I have noted elsewhere.10 Briefly, any effort to explicate the Rawlsian task to specify the nature of moral obligation begs for philosophical clarification from the non-normative branches of the discipline. There is no way to avoid explication of the idea of "rational" in terms of at least elements of the philosophy of mind, ontology, the subject of free will versus determinism, etc. If, for example, being rational implies, as Kant suggested, that an agent is free to make choices, to initiate conduct, this alone will make a difference as to the ethics and politics that human beings ought to adopt. In Kant, of course, the attempt to secure the foundations of morality in pure reason, removed from that impossible field, metaphysics, is much more complicated since Kant devotes the better part of his philosophical work to showing that metaphysics is inherently impossible since its concepts are mind-dependent, impossible to attest to objectively. This, however, must lead to an untenable view, mainly on grounds of self-refutation. To wit: the transcendental character of human understanding cannot be established without initial reference to independently existing, objectively real (other) human beings who, on the Kantian scheme, can be identified only if that transcendental human understanding has been established. For this and many other reasons, the Kantian social contract theory is not the only source of moral standards for social conduct. So we have Rawls' failure to establish the independence of moral theory and Kant's failure to develop a conception of (human) reason that is independent of metaphysics. Their social contract theories are, in turn, open to the criticism that the (hypothetical) contract they invoke is unnecessary for grounding social morality. Instead, they could explicate the demands of reason or rationality, quite independently of any agreement behind a veil of ignorance or act of will of the whole people. Now common sense already suggests one serious problem with all kinds of social contract theories, Kantian, Hobbesian, or Rawlsian. This is that they cannot escape the force of a recast version of Moore's open question argument. It is always perfectly intelligible to ask whether what people (would have) willed either behind a veil of ignorance, in unison, or at some great convention should have been willed by them in the first place. It might first be replied that the social contract theory of grounding norms will render that kind of question unintelligible. But this will not do in the present case since the very nature of morality or ethics requires that its provisions be applicable universally, which means that conduct preceding the social contract, including entering it, must be open to ethical assessment. To whit, when someone considers entering a social contract while encountering scarcity and congestion in the state of nature, the question can be raised, "Ought I to join in the search for some way of solving our problem?" In other words, there must already be standards for making the right choice about doing so. That is an inherent requirement of ethics and social morality. (Rawls admits that some such standard might be discovered but, regards it obstructionist to wait for it.11) It is not cogent to deny that such a question can arise, based on the view that entering the convention is a matter of being driven to do so out of fear, for if we are determined to behave as we do, then this will hold following the social contract, so not judgments as to what we ought to do will be applicable. If "ought" implies "can," then this holds before and after the social contract. But if it holds before, then there can be standards of ascertaining what one ought to do prior to the contract. A quite recent example of social contract theory is advanced by Jan Narveson, in his The Libertarian Idea.12 He characterizes his version of this approach as the view that "the principles of morality are (or should be) those principles for directing everyone's conduct which it is reasonable for everyone to accept. They are the rules that everyone has good reason for wanting everyone to act on, and thus to internalize in himself or herself, and thus to reinforce in the case of everyone."13 Here, too, a question is being begged: why should we be reasonable? Granted, this may seem like a silly question to some but it is certainly one that has been raised by philosophers and, especially, some literary and religious figures. It may not be reasonable to have faith in God but many believe that that is just what we ought to have. It may not be reasonable to indulge one's feelings, yet there are famous figures throughout history who have promoted this notion. What are they wrong? Why should we follow reason, instead of fancy, as Socrates has advised us? The contractarian stance does not answer that question but simply takes the wisdom of reasonableness for granted. Then, also, the fundamental egalitarian bias in social contract must be called into question. Why regard as equally worthwhile every will involved in forging the contract? If this were not a requirement, and if we took the possibility of prior standards seriously, then it might not be unthinkable that some social contracts were ill formed, should never have been entered into, etc. Thus one might provide oneself with the theoretical background for criticizing the Rawlsian system on grounds, at least in part, that no self-respecting individual should have agreed to the terms which grew out of the contract made behind the veil of ignorance -- at least not until he or she became a bit more knowledgeable about various things. The question that remains then is whether the social contract approach, given its shortcomings and given that from different philosophical perspectives, it would not be necessary, is still required. Once the extreme pressure of empiricism and scientism has been lifted, I do not think so. Rawls' need for the contract stems from his view that people, driven by motives, cannot be placed under moral obligations to which they did not agree explicitly (within a hypothetical contract). And in Kant, the phenomenal world of practical social life requires some sort of practical agreement for the law to be binding, even though that agreement must ultimately be based somehow on pure reason. The orthodoxy of empiricism, in abandoning any hope for metaphysics, however, has lost not only its philosophical but also its social force. The field is wide open and new beginnings can be forged. It seems to me, in particular, that a reconsideration of the Greek conception of human nature, specifically Aristotle's, would provide greater promise for grounding justice than any such truncated approach as social contract theory. If we abandon the Platonic hope for timelessly fixed natures from which eternal standards of good and bad, right and wrong, may be derived -- not, however, deduced, because of what Hume has taught us -- a reconceptualization of what is meant by "the nature of X" can produce a revitalized naturalistic ethics, one that resists Moore's open question approach (for reasons too complex to spell out here and ones I have provided elsewhere14). In terms of the best classification of what a human being is, what it is to be a human being, one can learn what a good rendition of such a being would come to, which, since human beings are free, responsible agents, provides us with norms we ought to apply in our own lives. Being distinctive as potentially rational animals, human beings are at their best if they actualize this potential to live rationally, to be reasonable. This is an ontological foundation for the ethics social contract theory only presupposes without argument. It implies, furthermore, that insofar as we are social beings, with the requirement of some type of community, we face the question as to what kind of community will be most hospitable to our task of living rationally, the right way. The standards of such a community are, among other ingredients, our basic, natural, rights that all members will be required to observe and won't be able to violate with impunity. The social contractarian aspect of this way of thinking of political norms include, most prominently, what an economist might call the ultimate exit option: no one may be coerced to remain part of the community, the consent of the governed is required for government to have authority to administer the (just) laws. But no one may "consent" to governmental deeds that would be immoral to do in private. So what remains of social contract theory is, indeed, very important: namely, the value of freely reaching agreement among human beings, and the justifiability of certain kinds of efforts to reach it. For instance, when participants in the polis (a human community guided by sound judgment) can agree on how to maintain and preserve the proper standards of social justice (and on who should administer the effort), something crucial to the lives of the participants may well be achieved -- e.g., the efficient preservation of the conditions of proper social intercourse. But, here the contract does not establish -- or constitute the ultimate basis of -- norms. Instead, it is required by prior norms to be the method by which political (meta)norms can be upheld and interpreted in a social context. That method is always open to evaluation. When consented to, however, something enormously valuable has been achieved: the prospect of successful (because willing and possibly rational or prudent) maintenance of social justice.15 ENDNOTES: 1. Immanuel Kant, Metaphysical Elements of Justice, trans. John Ladd (Indianapolis: Bobbs-Merrill, 1965), p. 80. 2. Immanuel Kant, Werke (Bruno Cassier, 1914), 6:380-81 (My translation.). 3. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 36. 4. For a survey, see Shirley Robin Letwin, "Modern Philosophies of Law," The Great Ideas Today, 1972 (Chicago: Encyclopedia Britannica, 1972) pp. 105-53. 5. Immanuel Kant, The Philosophy of Law, trans. W. Hastic (Edinburgh, 1887), reprinted in Great Books of the Western World (Chicago: Encyclopedia Britannica, 1952), 42:436. 6. John Rawls, "The Independence of Moral Theory," Proceedings and Addresses of the American Philosophical Association (Newark. DE: University of Delaware, 1975), p. 5. 7. Kant, The Philosophy of Law, p. 398. 8. Ibid. 9. Ibid., p. 419. 10. T. R. Machan, "A Note of Independence," Philosophical Studies 30 (1976): 419-21. Natural law and rights theories achieve what the veil of ignorance aims for, namely the securement of moral equality, but only for the purposes of understanding political life. They focus on human nature, something we all share. 11. Rawls, "The Independence of Moral Theory," p. 21. 12. Jan Narveson, The Libertarian Idea (Philadelphia: Temple University Press, 1988). 13. Ibid., p. 131. 14. See, Tibor R. Machan, Individuals and Their Rights (LaSalle, IL: Open Court Publishing Company, Inc., 1989). 15. For a full treatment, see T. R. Machan, "Individualism and the Problem of Political Authority," The Monist 66 (1983): 500-16 (which is chapter 7 of op. cit., Individuals and Their Rights. Why, for example, would it be wrong to contract for the use of some third party who has not consented? Because that party has rights and, independently of any contractual determination, it is wrong to violate rights. Incidentally, the concept of a "meta-norm" is advanced by Douglas B. Rasmussen and Douglas J. Den Uyl, Liberty and Nature, An Aristotelian Defense of Liberal Order (LaSalle, IL: Open Court Publishing Company, Inc., 1991).