The Social Contract and Consent Theory

Content independence. Having agreed to be governed, you are bound by the decisions of the body you agreed to set up, whether or not you like each one, exactly as a party to a contract is bound by what the arbitrator decides.

Limits. If the grant was limited, the government has only what was granted, and an act beyond it binds nobody. This is the intellectual ancestor of every doctrine that an act beyond power is void.

The right to resist. If the ruler is a party or a trustee, breach releases the other side. This is why the contract theory is politically revolutionary and divine right is not.

The kinds of consent

The theory's difficulty is factual: no such agreement was ever made. Four responses have been given, and a good answer distinguishes them because they are of very unequal strength.

Express consent. An actual undertaking. Rare: an oath of allegiance, a naturalisation ceremony, an oath of office. Where it exists it binds clearly, and it covers a tiny fraction of any population.

Tacit consent. Consent inferred from conduct: residing in the territory, using the roads, accepting the protection of the courts, voting. Locke relies on this heavily.

Hypothetical consent. Not consent at all but the claim that a rational person would agree to these arrangements. This is how modern contract theory works, and it is honest about not being a historical claim.

Original contract as a founding myth. The claim that a real founding moment occurred. Almost nobody now defends it as history, but constitutions do something similar deliberately: the Indian Constitution opens by saying that the people of India adopt, enact and give it to themselves, which is a founding act performed in the text.

The criticisms

It never happened. No such agreement is recorded anywhere, and the anthropological record does not show societies moving from a stateless condition into one by agreement.

A contract cannot bind those who did not make it. Even if ancestors agreed, a contract does not bind their descendants. This is Hume's and Paine's objection, and it is the strongest.

Tacit consent is not consent. Hume's illustration is the sharpest thing written on the subject: you may as well say a man consents to a ship's authority when, having been carried aboard while asleep, he remains on it, though he knows he must leap into the ocean and perish the moment he leaves it. Residence is not choice where leaving is impossible.

The contract presupposes what it explains. An agreement is binding only if there is already a rule that agreements bind. So the theory needs a moral order in place before the contract, and cannot claim to have created obligation from nothing.

It assumes an individual who does not exist. The state of nature imagines people who are already rational, already speak a language, already own things and already keep promises, all of which are products of society. Hume, Burke and later the idealists all press this.

Hypothetical consent is not binding. That a rational person would agree does not mean you did. As a modern critic put the point, a hypothetical contract is not simply a pale form of an actual contract; it is no contract at all.

Why it survives every criticism

If the objections are that strong, why is the theory still the dominant one? Because of what replaces it if you drop it.

Its moral core is untouched. Whatever the history, the claim that authority must be justified to those subject to it, and that they are not simply material for others to rule, survives every objection about dates and anthropology.

It gives the standard of criticism. A government can be measured against what people could reasonably agree to, which is exactly what modern contract theory does.

It is the theory constitutions are written in. Every constitution that opens with the people giving themselves the instrument is using the contract idea to do real work.

Nothing better explains limited government. If authority is granted for a purpose, it stops where the purpose stops. No rival theory produces limits so naturally.

A worked example

A resident association forms in a new building. Twenty flat owners meet, adopt rules, elect a committee and agree that the committee may levy monthly charges and fine those who default.

This is a contract theory in miniature, and every element appears.

The state of nature is the building before the meeting: no rules, disputes about parking and water, and no way to settle them except by argument and strength.

The contract is the meeting. Notice the two questions: the owners contract with each other, not with the committee, so the committee is a creature of the agreement and not a party to it; and they transfer only what is needed, the power to levy charges and to fine, not the power to decide whom they may marry.

The obligation binds owner number seven, who voted against the charge, because she agreed to the procedure by which such things are decided. That is content independence appearing in a stairwell.

And the criticism arrives immediately. Flat number twelve is sold, and the buyer never attended any meeting. Is he bound? In law yes, because the rules run with the flat. In the theory the answer is harder, and it is precisely Hume's objection about descendants. What the association actually relies on is that the buyer took the flat knowing the rules and enjoys the lift, the security and the water: tacit consent and fair play doing the work that express consent cannot.

Distinctions that carry marks

What the contract theory is NOT

It is not one theory. Hobbes, Locke and Rousseau agree on the machinery and on almost nothing else.

It is not a historical claim, in its serious versions. It is a device for asking what authority is for and what it may do.

Consent is not agreement with each law. Consent is to the arrangement, which then decides things you may dislike. A student who says the contract theory means you obey only the laws you approve of has inverted it.

It is not dead. It is the form in which democratic legitimacy is argued today, and Module IV's chapter on the consent of the governed is its direct descendant.

Quick revision

1. Four parts of the machinery: the state of nature; natural law and natural rights; the contract; and the obligation that follows from having agreed.
2. Two questions decide the shape: who are the parties, and how much is transferred.
3. What consent explains: particularity, content independence, limits on government, and the right to resist.
4. Kinds of consent: express (rare), tacit (Locke's, and weak), hypothetical (not consent at all), original contract (a founding act, which constitutions perform in their own text).
5. Criticisms: it never happened; a contract cannot bind descendants; Hume's sleeping passenger destroys tacit consent; the theory presupposes that promises bind; and it assumes an individual who is already a product of society.
6. Why it survives: its moral core, that authority must be justified to those subject to it, is untouched by any of those objections.

Test yourself

1. Set out the machinery common to all social contract theories. A state of nature, a condition without government used to ask what political authority is for. Natural law and natural rights, which people hold before any state and can therefore assert against it. The contract itself, defined by two questions: who the parties are, and how much is transferred. And the resulting obligation, which is simply the duty to keep one's own agreement, the most familiar moral duty there is.

2. What does consent explain that rival theories do not? Particularity, since you are bound to this state because it was this agreement you made. Content independence, since having agreed to a procedure you are bound by its outcomes whether or not you like them. Limits on government, since a power granted for a purpose stops where the purpose stops, which is the ancestor of the rule that acts beyond power are void. And the right to resist, since a ruler who is a party or a trustee can breach and thereby release the other side.

3. Distinguish express, tacit and hypothetical consent, and rank them. Express consent is an actual undertaking, such as an oath of allegiance or naturalisation; it binds clearly and covers very few people. Tacit consent is inferred from conduct such as residence, voting or using public services; it covers almost everybody and is weak, because the conduct has other explanations. Hypothetical consent is the claim that a rational person would agree; it covers everybody and is not consent at all, functioning instead as a test of the reasonableness of the arrangement.

4. State Hume's objection to tacit consent. That residence cannot show choice where leaving is not a real option. Hume's illustration is that one may as well say a man freely consents to the authority of a ship's master when, having been carried aboard while asleep, he remains on board, though he knows he must leap into the ocean and perish the moment he leaves it. Most people are born into their state, cannot afford to leave and would not be admitted anywhere else, so inferring agreement from their staying infers a choice they never had.

5. If the criticisms are so strong, why is the contract theory still dominant? Because its moral core survives all of them. Whatever the history, the claim that authority must be justified to those subject to it, and that people are not material to be ruled by others, is untouched by objections about dates and anthropology. It supplies the standard by which governments are criticised, namely what people could reasonably agree to; it is the idea constitutions are written in, since a preamble by which the people give themselves the instrument is a contract performed in the text; and no rival theory produces limits on government so naturally.