To followers of Locke, we enter into a social contract with our government to escape the state of nature. We agree to submit to political authority under will of the majority. If the government breaks the contract by violating our fundamental rights or violating our trust we have the right to replace it.
There are two forms of consent: explicit and tacit.
Explicit consent is basically a declaration that you accept the beliefs or the legitimacy of the government. For example, in the citizenship ceremony in the USA, you swear an Oath. That is explicit consent.
Tacit consent is basically living under the government. By living under the government, obeying its laws, enjoying any benefits of the society (whether protection of property, safety etc.) indicates your consent to the legitimacy of the government. This includes people who were born in the USA or immigrants who are not officially part of the community.
But is this all BS? There is another school of thought originating in David Hume that criticizes this whole idea of a contract.
To Hume and his later utilitarian offspring, a right act maximizes the well-being for the greatest number of people (there are many variations, but this is the most basic). A state does not gain legitimacy because of social contract, it gains legitimacy because of its use–it aggregates well-being of all members.
So here’s how Hume criticizes Locke and the contract theories.
Empirical Problems of Contract theories:
- People don’t themselves understand their political obligation to be contractual based. They obey out of CUSTOM AND HABIT.
- The present generation has not contracted.
- David Hume says, “But the contract, on which government is founded, is said to be the original contract; and consequently may be supposed too old to fall under the knowledge of the present generation. If the agreement, by which savage men first associated and conjoined their force, be here meant, this is acknowledged to be real,; but being so ancient, and being obliterated by a thousand changes of government and princes, it cannot now be supposed to retain any authority.
- Election of rulers is elections done by a small number of people.
- Think about it. When the US constitution was drafted, how many people were even represented? Definitely not all the slaves or people without property. Or think about now, barely anyone votes, and not everyone who wants to vote can vote.
Now a person who believes in tacit consent would use it to answer Hume’s 2nd criticism. Hume responds with two more points.
- People do not understand it as tacit consent. They think there’s NO OTHER CHOICE than to live under the rule of a government.
- And if people do understand that it is a choice, they really cannot leave the society.
- Hume says, “Can we seriously say, that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires?
- Hume raises the oft-cited example of a ship that is set out to sea. That is the truth of tacit consent. You can ditch this ship, but you are jumping into the ocean.
- Contract theories assume that people have more knowledge and ability than they actually have.
- Hume says, “Reason, history, and experience shew us, that all political societies have had an origin much less accurate and regular; and were one to choose a period of time, when the people’s consent was the least regarded in public transactions, it would be precisely on the establishment of a new government.”
- Many original contracts are invalid, and are given legitimacy by contract theories
- Hume says, “When an artful and bold man is placed at the head of an army or faction, it is often easy for him, by employing, sometimes violence, sometimes false pretences, to establish his dominion over a people a hundred times more numerous than his partisans. He allows no such open communication, that his enemies can know, with certainty, their number or force. He gives them no leisure to assemble together in a body to oppose him. Even all those, who are the instruments of his usurpation, may wish his fall; but their ignorance of each other’s intentions keeps them in awe, and is the sole cause of his security. By such arts as these, many governments have been established; and this is tall the original contract, which they have to boast of.
We keep our promises because it promotes public utility. The real basis of legitimacy of government or the state is the utility.
Why are Hume’s points important? Besides the fact that he inspired future thinkers like Bentham and Mill who also rejected the idea of a social contract, he represents the crux of the flaw in libertarian philosophy. Libertarian philosophy likes to cite Utilitarians like Mill and Contractarians like Locke, often together. Although they might all agree that absolute government is bad and a limited government that protects negative rights is the best, utilitarianism and contractarianism cannot be used together because they clash fundamentally. This is the flaw that I really want Libertarians to work out.