This article was originally published by Joshua Mawhorter at The Mises Institute.
This year in the United States, we recognize the 250th anniversary of the final presentation of the Declaration of Independence on July 4, 1776. To the informed readers of the Declaration—mainly penned by Thomas Jefferson, but with the help of others—it is evident that Jefferson borrowed concepts and language from John Locke in terms of rights, the role of government, and consent.
In order to critique the British government and argue a case for independence, Jefferson borrowed from Locke’s social contract theory to demonstrate the limited role of legitimate government as rights-protector and consent as the basis for government. In possibly the most well-known statement toward the beginning, the Declaration states,
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
While not entirely consistent in every respect, the Declaration of Independence—as an act of secession—can be understood as one of the earliest major challenges to centralized, modern, sovereign authority within the emerging nation-state system. Although it created new states rather than abolishing state power itself, it decentralized and imposed limits upon British imperial sovereignty through an appeal to self-government and national self-determination.
To their great credit, Locke and Jefferson both affirmed pre-political natural rights, that the only legitimate role of government is to protect those rights, and that rights remain rights and crimes remain crimes whether one is a private individual or a state elite. In his Second Treatise of Government, Locke wrote,
. . .where an appeal to the law, and constituted judges, lies open, but the remedy is denied by a manifest perverting of justice, and a barefaced wresting of the laws to protect or indemnify the violence or injuries of some men, or party of men, there it is hard to imagine any thing but a state of war: for where-ever violence is used, and injury done, though by hands appointed to administer justice, it is still violence and injury, however coloured with the name, pretences, or forms of law, the end whereof being to protect and redress the innocent, by an unbiassed application of it, to all who are under it;. . . (emphasis in original)
To a point, Locke essentially presented a libertarian, non-state format for civil government. If the government respected self-ownership and private property and was simply a non-monopolistic voluntary organization for collective self-defense, keeping public order, and punishing crime that worked on the basis of contract, compact, or covenant, allowed entry and exit, and was funded by dues, then it would be governance without the state. However, practically and historically, governments have never restricted themselves to such legitimate activities, especially not modern nation-states.
Unfortunately, both Locke’s and Jefferson’s theories of government were not entirely consistent, and shared a Hobbesian core—so-called social contract theory.
Social Contract Theory
Social contract theory was first allegedly used to critique arbitrary government power; however, it ironically came to be the basis of legitimacy for the modern nation-state.
Thomas Hobbes, John Locke, and Jean-Jacques Rousseau all articulated very different social contract theories that shaped and shape modern, Western political thought. Such thinking took place within the Enlightenment, which challenged traditional centers of authority, including government; however, social contract theories attempted to cohere government with reason, ethics, and human will.
Social contract theory initially emerged partly as a response to divine right theories of kingship and absolutist claims to power. Thinkers sought to ground political authority in human agreement rather than divine mandate. Yet, paradoxically, this attempt to humanize and limit power ended up providing even stronger foundations for state authority. This represents a complete inversion. This is how social contract theory moved from a limitation to a justification for the state.
This theorizing obscured the true nature and history of the state. Social contract theories of government involve a conceptual anachronism in which a modern theory of the state’s authority is retrojected back into history and onto situations where such a concept did not exist. The final result was that—rather than challenging and limiting the authority and power of the state—social contract theories provided the state with a modern apologetic in which the state serves as the indispensable basis of society.
These social contract theories have key aspects in common: 1) critique of arbitrary rule; 2) replacement of divine legitimacy with human consent; 3) transformation of “consent” into a justification for political obligation; and 4) eventual sacralization of the state as the embodiment of society itself. Social contract theory is thus more of a post-hoc rationalization for existing state power than a genuine philosophical foundation for political authority.
Social Contract and Consent Arguments: Making Coercion Seem Voluntary
The inherent contradiction was in the attempt to make coercion compatible with individual freedom and consent. The result is that, unlike prior theories of governmental legitimacy, the modern state can claim through social contract theory—despite any objections to the contrary—that it is legitimate and you actually agree.
In Hobbes’s social contract theory, all the authority the state has comes from the original agreement by which people created the state and authorized the sovereign to act on their behalf. This is crucial to legitimize the actions of the state. Therefore, in Hobbes’s estimation, all the actions of state elites are not only authorized and legitimate but consensual.
From this Institution of a Common-wealth are derived all the Rights, and Facultyes of him, or them, on whom the Soveraigne Power is conferred by the consent of the People assembled.
According to Hobbes’s argumentation, since the state was brought about by the consent of the subjects and represents them, the state’s actions are the subjects’ actions.
. . .he that complaineth of injury from his Soveraigne, complaineth of that whereof he himselfe is Author; and therefore ought not to accuse any man but himselfe; no nor himselfe of injury; because to do injury to ones selfe, is impossible. It is true that they that have Soveraigne power, may commit Iniquity; but not Injustice, or Injury in the proper signification. (emphasis added)
Unfortunately, John Locke’s theory of government—while tending much more toward liberty than Hobbes’s—was also not entirely consistent, and those inconsistencies tended toward allowances for the state. While Locke championed the legitimacy of contract and consent, when it came to government, he argued that the government receives its legitimacy through the tacit or assumed consent of the people.
Locke also argued that any person who has property or receives government services (e.g., safety, government roads, etc.) within a certain territory has tacitly consented to the government and its policies, even if he did not expressly consent and even if he objects. Then—due to inconveniences—the consent of the majority is taken to be the consent of all. This locates political authority in the greater number. However, it actually locates political authority within a “majority” that may, in reality, be a numerical minority—a majority of those authorized and present to participate in a given vote, voting on limited, state-provided options.
Once consent becomes hypothetical, retroactive, inherited, or tacit, social contract theory starts functioning less as a limitation on power and more as a legitimating myth. What began ostensibly as an attempt to constrain and legitimize political power through the principle of consent ultimately transformed into one of the most powerful justifications for expansive state authority. This reversal represents one of the most significant developments in modern political thought.
Social contract theory doesn’t eliminate this coercion—it simply provides a philosophical veneer that makes it appear consensual. Once we accept that we’ve all “agreed” to the state’s authority, there seems to be no principled limit to what the state can do in the name of the common good or general will. After all, if we’ve consented to be governed, haven’t we also consented to whatever the democratic process produces?
From Revolutionary Tool to Conservative Bulwark
Social contract theory played a revolutionary role in the American founding, providing intellectual ammunition against British rule. The colonists could use John Locke’s arguments regarding natural rights, liberty, the role of government, and consent against the British government. As mentioned, the Declaration and its argument for the right of secession—rather than attempting to “alter” or “abolish” existing government—was a significant challenge to the Hobbesian state within the emerging nation-state system. The state could be limited via decentralization and self-determination.
Examining the extent of the American state today raises an important and puzzling question: How did the United States go from one of the most decentralized and limited governments of the late eighteenth century to arguably the most powerful state in modern history, possessing an unparalleled global military and financial reach? Put another way, why does the US appear to be a strange mixture of the theories of Hobbes and Locke?
Rothbard’s Conceived in Liberty—particularly volume 5 on the Constitution—attempts to somewhat answer this question. Patrick Newman’s Cronyism—particularly chapter 3—also further answers this. This author has also indicated that the American colonies—largely by conducting the war for independence within a statist paradigm, operating under a Continental Congress—created and responded to conditions during the war and afterward that led to greater centralization. Additionally, all along the way, there were also prominent voices calling for more centralization to win the war and more centralization to deal with the aftermath of the war. This eventually led to a huge step of centralization, often presented as a social contract to limit national power—the Philadelphia Convention and the Constitution.
In short, once the new American national state was established, the same theory that justified independence became a tool for preventing challenges to the new order. Now the new national government arguably had the “consent of the governed” because the Constitution was eventually ratified by majorities state ratifying conventions that were, in actuality, tiny minorities of the overall population. (For example, at the Virginia ratifying convention in 1788, 89 delegates voted in favor of ratification over 79, apparently agreeing to the Constitution for all of Virginia for all time). Under the Constitution, the Americans could be taxed by the new national government, but now it would be said to be valid because it was with representation.
Within less than 80 years, the Civil War would crush secession of many of the same states that had seceded from Britain, even as Lincoln used the Declaration of Independence as his justification. The state that was allegedly established on freedom, consent, and social contract could disavow all these in the name of freedom and democracy: “… that government of the people, by the people, for the people, shall not perish from the earth.” Because “the People” agreed to join the Union through majorities of ratification conventions from 1788-1790, later secession attempts became illegitimate rejections of consent rather than withdrawal of prior consent. In America, social contract theory evolved from a critique of state power to an apologetic for state power.
Conclusion
The tragedy of social contract theory is that, by trying to make the state compatible with human freedom, it ended up making human freedom, rights, and consent seem dependent on the state. Rather than limiting power, it provided power with its most sophisticated justification. Rather than protecting individual rights, it subordinated them to collective decisions reached through political processes. Rather than appealing to God for governmental legitimacy as in the divine right of kings, social contract theory made every citizen a co-author of their own subjection.
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