The Myth of Utilitarian Social Contract and Issue of Natural Rights

In his book “Metaphysical Elements of Justice”, Immanuel Kant has explained the importance of a social contract by suggesting that the “idea [of social contract] alone enables us to conceive of the legitimacy of the state.¹ ” Most of the social contract theorists including Plato, Thomas Hobbes, John Locke, Rousseau, Immanuel Kant, and Ayn Rand herself have emphasized over the importance of a state (howsoever minimal) to maintain a just society and to defend the state (even if it is ultra minimal) they have proposed an idea of social contract or the acceptable nature of government.

Immanuel Kant further said that social contract “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 ”

This description of social contract justifies the compulsory taxation as a charge for the desired citizenship by every individual. However, Objectivists, and libertarian miniarchists Ayn Rand, Paul Beaird, Robert Nozick, and others do not accept this idea of Kant and they often reject compulsory taxation to maintain the government; rather, they suggest the idea of “voluntary taxation,” to finance the monopoly of government over initiation of violence and law enforcement.

The dilemma of miniarchists can be understood with the simple fact that while more than often they emphasize more over moral, ethical, principled, rational, or deontological arguments in support of individual freedom and individual rights, they succumb to the utilitarian point of view while talking about the mechanism of defending the individual freedom and rights. In most of the cases, the utilitarian and the ethical approach towards an issue lead to a similar conclusion. As for example, a utilitarian will oppose the issue of price control as he will claim that policies of price control will bring a shortage of commodities, on the other hand, the ethical approach will suggest that price control is immoral because it directly breaches non-aggression principle against the producers or sellers who are willing to sell their products at higher prices.

It can be said that in most of the cases, the utilitarian and rational approach both leads to same conclusion that supports individual liberty and free will. However, in case of the acceptance or rejection of the state, moral libertarians and utilitarian libertarians often differ in their conclusions. The basic difference between a utilitarian and a rational libertarian is that a utilitarian doesn’t hate the state, while a rational libertarian naturally hates the idea of state because it is directly against the concept of natural rights, self-ownership and non-aggression principle and hence, the state is the enemy of mankind. This difference has been well explained by Austrian economist and rational libertarian Murray N. Rothbard who is popularly known as the Enemy of the State. While analyzing David Friedman’s book; The Machinery of Freedom, Murray Rothbard claimed,

David does not hate the State at all; that he has merely arrived at the conviction that anarchism and competing private police forces are a better social and economic system than any other alternative. Or, more fully, that anarchism would be better than laissez-faire, which in turn is better than the current system. Amidst the entire spectrum of political alternatives, David Friedman has decided that anarcho-capitalism is superior. Murray Rothbard³ .

While David Friedman acknowledged that a government based on a social contract is certainly not the best system one can suggest in favor of individual freedom and prosperity of the whole society, we will see that the whole concept of social contract is mythical and irrational and it cannot protect the natural rights of individuals which is the basic motive or end to be achieved.

Socrates, Plato and the defense of Social Contract:

Plato explained the idea of Social Contract in his book Crito in which he suggests why Socrates argued in favor of the political obligation to accept the death penalty imposed on him by the Direct Democracy of Athens. Socrates suggests that he and every other citizen have attained a number of benefits from the State and they have participated in the process of political decision-making through direct democracy of Athens. Thus, he and other citizens are obligated to accept the rule and decisions of the state. However, this is not a justifiable defense of the State or the social contract that an individual is obliged to accept the dominance of the State over his individual rights if he has been offered certain benefits or if he has been invited to participate in process of political and legal decision making through Direct Democracy. Direct democracy is still a mass rule above individual liberty that allows an individual to argue and vote for his views. However, one cannot justify a social contract ordained by a direct democracy just like one cannot justify a robber and his robbery if he allows the victim to argue or defend against him.

Social contract thus is not a moral idea. However, a utilitarian view point about morality is different as Ludwig von Mises, one of the greatest moral liberal said,

All moral rules and human laws are means for the realization of definite ends. There is no method available for the appreciation of their goodness or badness other than to scrutinize their usefulness for the attainment of the ends chosen and aimed at. Ludwig von Mises⁴

However, it is worth noted that the utilitarian idea of social contract may certainly prove to be useful for the protection of the State; it has nothing in favor of or for progress of the individual, who is assigned to be the victim of majority or mob rule. Furthermore, the social contract; in fact, fails to offer the good of the society too because no matter a fascist or crony capitalist regime may prove to be beneficial for the oligarchs and big corporations, it is certainly detrimental to the society at large.

Thomas Hobbes, Leviathan and the Hobbes Social Contract:

The concept of Hobbes social contract and the whole of Leviathan is based on a pessimistic approach that “Man, is the dupe of error, the slave of sin, of passion, of fear, of care, the enemy of himself or of others or of both and the civil order appears as the whole or a part of the scheme of his salvation.⁵ ” For Hobbes, the major issue was to find a way to dissuade civil wars and hence, the Hobbesian social contract is much murkier than that suggested by Socrates and Plato. For Hobbes, the individual will was of least value as he claimed that human will is his “last appetite,” by which he meant that an individual’s will is his last resort to save himself against the fear of violent death. According to Hobbesian social contract, the main beneficiary of the contract is the government or ruler which acquires the sovereign will not as a declared contract, but this Hobbesian social contract is considered valid from silence, forbearance and consequential actions of the citizens. Hobbes believed that self-protection against being killed is very important motive for any individual and hence, he considered that his social contract was not only valid for a chosen government through the process of democracy or direct democracy, rather; his unwritten, undeclared social contract was also valid for those governments that were instituted through wars and conquests. For Hobbes, a contract of abandonment of individual rights under duress of death or other harms was equally valid. Thus, according to Hobbesian social contract, the government certainly has a right to demand taxes from citizens taxes are the fees not only for the services that the government may provide, but it is also the fees of the government to let people live peacefully.

Hobbesian social contract is not only morally invalid as it breaches the moral stand of self-ownership and non-aggression principle, it is unacceptable from utilitarian point of view too because while a Hobbesian social contract is certainly favorable for the State or government, it offers no benefits for the citizens other than an uncertain chance to live without the fear of violent death.

John Locke and his idea of Social Contract based on Natural Rights

John Locke was one of the strongest critic of Hobbesian social contract and Hobbes’ idea of validity of a contract made under duress. He mentioned that an individual’s will is his understanding and judgment under no fear and a contract under duress is certainly invalid. John Locke was a proponent of individual liberty, self-ownership and property rights; however, he suggested that a government is necessary to protect individuals’ rights of liberty and property. John Locke further acknowledges that a government is an artificial society against the natural rights and a man can enter voluntarily through a social contract to form a political society. He further suggested that all such men associated via a social contract “must be understood to give up all the power necessary to the ends for which they unite into society.⁶ ” That is, just like Hobbesian social contract, Locke’s idea of social contract is also dependent on tacit consent of individual citizens. However, unlike Thomas Hobbes, John Locke clearly mentions that any contract under duress is invalid and hence, he offers a line of difference between a coercive robber and the government. However, Locke’s idea of political obligation through a social contract depends on the majority rule as he compares a political society as a physical body which will move in the direction in which greater force is applied. Furthermore, he suggested that those people in minority who did not offered voluntary consent to the political power holds no moral standing to oppose the government. He also suggests that a common government is necessary to solve any dispute and those who recognize this need to employ the government over those too who doesn’t recognize the authority of the government⁷ .

While John Locke certainly offered a greater weight to individual freedom than Thomas Hobbes and he opposed the idea of Hobbesian social contract under duress being considered valid, however, he failed to notice that the political obligation supposedly thrown by his idea of social contract over minority of people who don’t voluntarily consent to the government are still under duress and majority rule is not much different than the rule of pirates and robbers as it is against the non-aggression principle; thus, despite of the differences between him and Thomas Hobbes, Locke’s idea of political obligation is not much different than Hobbesian social contract and hence, is invalid. From utilitarian point of view too, the idea of political obligation of John Locke doesn’t seems valid because under a political regime of majority, more stress will be given on social welfare while the individual rights will be sacrificed. However, John Locke suggests that if the government invades individual rights, people have a right to rebel against such unjust governments. Yet, the whole concept of Hobbesian social contract is to avoid civil wars and it has been seen through the course of history that keeping a vigil on governments is difficult for individuals whose main motive is to devote their abilities in wealth building so that they can enjoy their life in a peaceful manner.

Immanuel Kant and his idea of Social Contract

Kantian idea of social contract is another version of Hobbesian social contract whose major premise is that nothing can be adjudged as good or evil by itself and morality is an artificial concept. Thus, Kant denied any importance for natural rights of an individual and stressed more on the rights offered by a rationally valid social contract. Kant believed that individuals need to be provided a certain set of moral laws to achieve certain social motives for the benefit of the society. Thus, the whole concept of the Kantian theory of social contract is based on social welfare and development. Furthermore, Kant also stressed that such social contract should be legally binding and it should be rational, and self-consistent. Immanuel Kant established that a contract under duress or ignorance is invalid and unlike Hobbesian social contract theory or that of John Locke, Immanuel Kant stressed more over the voluntary consent of everyone involved in a social contract as he said,

“Every action is right which in itself, or in the maxim 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. Immanuel Kant⁸ “

However, in his essay “What is Enlightenment,” Kant accepted that majority of people remain ignorant about the just actions pertaining to social morality and hence, his whole concept of social contract was to bring enlightenment to masses to create an egalitarian society. This is exactly against the idea of a valid contract because an individual can enter in a valid contract only if he is aware of the right choices of making that contract. Furthermore, if everyone is enlightened, there is no need of a binding social contract as suggested by Immanuel Kant. While Immanuel Kant offers enough stress for individual freedom, his take on egalitarian society is so intense that he suggests political obligation over individuals to accept the social contract as he says, “The citizen cannot refuse to pay the taxes levied upon him; indeed, impertinent censure of such taxes could be punished as a scandal that might cause general disobedience. Nevertheless, this man does not violate the duties of a citizen if, as a scholar, he publicly expresses his objections to the impropriety or possible injustice of such levies.⁹ ”

This makes the whole concept of Kantian political obligation very similar to Hobbesian social contract as although it provides a right for individual to criticize the wrong act of the government, it certainly doesn’t guarantee safety for individual against the government as he remains at the whim of the government to which he is politically obligated through a social contract. This idea of social contract is also not valid on utilitarian standards because there is no guarantee that the state will maintain rational laws while the scholarly citizens have a right to criticize irrational laws and exercises of the government, he certainly have no way to defend himself against these irrational actions. Such a situation is bound to encourage, oligarchy, hegemony, corruption, and corporatism which are certainly neither in favor of social welfare, nor in favor of individual’s improvement.

Ayn Rand and Minarchist idea of Government and Social Contract

Ayn Rand’s idea of nature of government and the social contract binding the citizens is similar to that of Locke as she suggests that every citizen should offer consent to the natural rights of individuals and to the principle of non-aggression. Rand justifies the social contract by suggesting that without the monopoly of government on law enforcement, impartial judgment, proper solutions for disputes along with the lines of objective standards will be difficult. However, she stresses on the necessity of the government in a Hobbesian manner by claiming that in absence of monopoly of government on initiation of violence and law enforcement, the society will be in chaotic wars. Ayn Rand suggests that a valid social contract can be attained through a republic government based on a rationally valid constitution protecting natural rights of individual citizens and she categorically opposes coercive compulsory taxation to maintain such government.

While maintaining the monopoly of government on initiation of violence and law enforcement is certainly impossible without employing coercive taxation, such a social contract is also against the natural rights of an individual to choose the service provider without any obligation or under no duress.

Libertarian minarchists support a social contract as they assert that a jurisdiction is necessary for law enforcement. However, they fail to mention the probable size or area of such a jurisdiction where a republic will exercise its obligatory social contract. Furthermore, libertarian minarchists agree that taxation is robbery and hence, anyone not willing to take services of the government doesn’t need to pay any service charge or tax; but then, they leave such an individual against all odds without allowing him any right to defend himself through his own means of private protection and law enforcement. This is certainly a violation of natural right of self-defense of an individual.

I believe that the property of a property owner is his personal state, personal nation, and personal jurisdiction. True, some laws requires jurisdiction because they pertain to property, hence, a person with no property cannot implement any such law because he has no jurisdiction (property). What about those contract laws which involve no property, no jurisdiction, but voluntary decisions? Contract laws do not require any jurisdiction; they are not based on boundaries, but on Non-aggression principle. If farmer A sells marijuana to B voluntarily and B buys it willingly, any state law forbidding growth, buying or selling of marijuana is either useless or it is coercive and is against principle of non-aggression. In a state where there won’t be any public property but only private property, the property owner will have their jurisdiction on their property and there will not be any need of the government because, the monopoly will be of the property owner. Yes, there will be need of arbitrator services, courts, police, which can be privatized as some libertarian minarchists agree.

However, minarchists suggest that if an accused feels that the private protection system is unjust, he should have a public law enforcement body based on social contract to bind all individuals to which all these individuals tacitly consent through silence, forbearance and activities. This is a contradiction in itself because if a criminal doesn’t consent to the law enforcement of private property owner, he cannot tacitly consent to the state laws and social contract. Also, if a person breaches a contract, he simply loses his rights to an extent. Furthermore, there is no provision of protection for an accused against the tacit social contract and public law enforcement system and hence, civil wars are inevitable in case of minarchist society.

Thus, it is clear that the concept of social contract to protect individual rights and to avoid civil wars is based on false premises because neither a government based on any tacit social contract can protect individual rights (as the government itself breaches the natural rights to some extent), nor it can guarantee protection against civil wars.

1. Metaphysical Elements of Justice, Immanuel Kant, Translated by John Ladd [↩]
2. Immanuel Kant on Social Contract, Werke [↩]
3. Murray Rothbard, Do You Hate the State [↩]
4. Human Action, Ludwig von Mises, Chapter 27, Section 3 [↩]
5. Dr. Strauss on Thomas Hobbes and Hobbesian Social Contract, Libertyfund.org [↩]
6. John Locke, Second Treaties of Government [↩]
7. John Locke, Second Treaties of Government [↩]
8. Immanuel Kant, The Philosophy of Law, Libertyfund.Org [↩]
9. Immanuel Kant, What is Enlightenment?, Translated by Mary C. Smith [↩]