Social Contract and Political Obligation

A Critique and Reappraisal

Peter J. McCormick

• Publisher: Routledge
• Year: 2019
• eBook ISBN:
  9781000706574
• Topic: Política y relaciones internacionales
• Subtopic: Política

First published in 1987. This study is concerned with the problem of political obligation, the normative question of why one should obey the law, and with social contract thought as an answer to this question. It is entitled a critique, but the critique is not of social contract theory as such, but rather of the "orthodox" treatment of contract that yields so readily to the rough handling and easy rejection that is the normal lot of contractarianism in contemporary treatments. In its place will be suggested a reinterpretation of contract that sees it as making different assumptions and requiring different premises, and that is proof against many of the orthodox refutations of social contract theory; the reinterpretation is thus in the nature of a vindication.

First, from an examination of the most commonly cited champions of contractarianism (namely Hobbes, Locke and Rousseau) will be derive a reinterpretation of contract in the form of a new model or syllogism, the features of which will be brought out by contrasting it first with the contemporary ideas of John Rawls and then with the orthodox model itself. Democratic consent theory, as the heir to the remnants of the orthodox model, will be examined, and the ideas of T. H. Green will be considered as embodying an important feature of contractarianism omitted or ignored by the orthodox model (and hence by democratic theory.) Finally, the new model of contract will be suggested as a potentially useful approach to the problem of political obligation in the modern context.

This title will be of interest to student of politics and philosophy.

1. Introduction

The major subject matter with which this discussion will concern itself is political obligation, the question of the justification of obedience to law. The emphasis in such a phrase must be on the word “justification”; an enquiry into political obligation is not primarily concerned with the question of why people do or do not in fact obey, but must instead focus on why they should obey. Even the question of why people think they should obey, which so occupies, for example, Hume,¹ is logically a separate question; it is transparently clear that in the case of at least two of the philosophers to be considered (namely Hobbes and Rousseau), their primary intention was to demonstrate how mistaken most people were on the subject.

More specifically, within the field of political obligation theory, the discussion will concern itself with social contract, the doctrine that holds that the only legitimate foundation for government is that it is founded on the consent of the governed. Because the problem of political obligation is one of justification rather than explanation, the aspect of social contract with which such a discussion is necessarily concerned deals not with the origins but with the justification of society; the distinction is so obvious that it should not have to be made, but such an understanding is often absent from treatments of the contractarians.

Of course, the subject of obligation and social contract is hardly one of the unexplored regions of political philosophy; it is generally assumed to have been explored so thoroughly that social contract can be dismissed quite briefly and condescendingly from accounts of political obligation. Even such attempts as are made to resurrect the model — for example, that of John Rawls² — seem not repudiate but to underline such facile rejections, in that they merely repeat in slightly more sophisticated form the arguments and blunders of earlier thinkers. It is sometimes charitably granted that contract thought contains the general and laudable theme of government as possessing only limited powers in trust; beyond this, the contractarian position is quickly shattered and its remnants swept into democratic theory (especially when the question of pedigree enters the debate on democracy).

¹ David Hume, “Of the Original Contract,” from David Hume’s Political Essays, ed. by C.W. Hendel (New York: Bobbs-Merrill Library of Liberal Arts, 1953)

² cf. Chapter 6

However, this discussion has a purpose other than rehashing the oft-repeated refutations of contract theory as a viable basis for political obligation. It is entitled a critique, but the critique is not of social contract theory as such. Rather, it is the “orthodox” treatment of contract, the treatment that yields so easily to the rough handling that contract generally receives, which will be subjected to a critical analysis and rejected as inadequate. In its place will be suggested a reinterpretation of contract that sees it making rather different assumptions and requiring rather different premises, with the obvious result that it is proof against many, if not all, of the refutations of social contract theory. The reinterpretation is thus in itself something of a vindication of contractarianism.

The procedure for this treatment will be simple and direct. First, the most commonly cited champions of contractarianism will be examined, and from this examination will be derived a reinterpretation of contract in the form of a new model or syllogism. Next, the features of the new model of contract will be brought out by contrasting it first with the ideas of John Rawls and then with the orthodox model. Then democratic consent theory, as the heir to the remnants of the orthodox model, will be examined for its adequacy; after which the theories of T.H. Green will be considered as including an important feature of contractarianism omitted or ignored by the orthodox model (and hence by democratic theory). Finally, it will be attempted to apply the new model of contract as a potentially useful approach to the problem of political obligation in the modern context, and this in a way much more extensive and significant than general platitudes about fiduciary powers.

It should be specified in advance, to prevent misunderstanding, that a number of simplifying assumptions will be made; they are being made not because they are in any sense true, but because they facilitate discussion, prevent clumsy repetition, and avoid profitless or irrelevant bypaths.

First, the terminology of the discussion throughout will be that of command theory. This is not because the command theory is in any final sense satisfactory — in places, sharp criticisms will be made in passing of the command theory — but much of the language of political obligation (including even the basic question, “Why should I obey the law?”) seems to have command theory assumptions built right into it, and it would be both clumsy and distracting (and, for present purposes, quite unnecessary) to attempt to evolve a new vocabulary that would avoid such implications.

Second, it will be assumed that the obligations of citizens are limited to obeying laws. This seems rather an unlikely hypothesis; in some systems, the obligations of a citizen include not just obedience to law but some participation in the making of laws; in some extreme cases, a citizen may be obligated not just to obey the law but to assist in enforcing it; and we may even hypothesize extreme circumstances in which it may be useful to speak of an obligation to disobey the law.³ Such questions are useful and important, but they are basically complications to or applications of a theory of political obligation; it is simplest and least confusing to develop a theory of political obligation by referring to the paradigmatic case of obedience to laws before going on to explore the margins. Again, this is more a question of avoiding awkward terminology than the assumption of an exclusive philosophical stance.

Third, it will be assumed that the question “Why should I obey the law?” can be answered at a very general level. In fact, as McPherson⁴ and Flathman⁵ argue most conclusively, it is the case that such a question can never be answered “Yes” or “No,” but can only be used to yield insights and criteria for answering the more specific question “Should I obey this law?”. It shall be understood throughout that this is the only meaning that the general question can have; if at times the discussion is framed as if it were being answered for all laws (the most general level) or all laws in a specific political system (the next most general level), this will only be for the cause of economy of words, or the avoidance of unnecessary distracting explanations.

³ cf. e.g. Mulford Q. Sibley, The Obligation to Disobey, (New York: The Council on Religion and International Affairs, 1970), passim.

⁴ Thomas McPherson, Political Obligation (London: Routledge & Kegan Paul, 1967).

⁵ Richard E. Flathman, Political Obligation, (New York: Atheneum, 1972).

It should be obvious that the discussion contains two most unequal parts. First, there is the attempt to reject the orthodox interpretation of contract by developing a new model which enables the contractarians to be explained more consistently and satisfactorily; second, there is the suggestion that such a model is potentially applicable to the contemporary problem of political obligation. The two are logically distinct, and the attempt to develop and explain the general model is not only logically prior to but also much more important that the suggestion of a possible current application of that model. If it can be demonstrated that most attacks on contract, customarily accepted as devastating, are in fact directed well off target, then this has significant implications for the study of political philosophy. If it can further be indicated that a more accurate interpretation of the device is not only not formally refuted but still potentially applicable, this makes the model even more exciting, but the merits of the basic argument do not stand or fall by such a demonstration.

2. The Theme Introduced: Grotius

The works of Hugo Grotius, and specifically the Prolegomena to the Law of War and Peace, provide the starting point for the concept of contract to be developed in this discussion, but only the starting point. This of course is not to say that Grotius was the first to introduce a concept of contract into the discussion of politics; any such assertion could be easily refuted. An embryonic form of contract is present (or can easily be read into) the Crito of Socrates.⁶ Feudal society was most explicitly and directly based on a personal contract between lord and vassal. Hence it is neither original nor particularly surprising that Grotius should employ a contract mode; what is significant is the particular form his application took.

The basic point of the Prolegomena is a description of the logical requirements of an orderly community, listed as including abstention from theft and restitution of that belonging to another, the obligation to fulfill promises, and general agreement between a man’s actions and his deserts;⁷ the importance of the provision requiring that men abide by pacts is stressed by its repetition.⁸ He expresses these logical prerequisites in terms of a law of nature⁹ which is closely connected with human reason and discoverable by it.¹⁰ It is an important feature of Grotius’ concept of natural law that it does not depend on God’s will but is a purely rational conception; wicked though it is even to suggest such a thing, natural law possesses validity even should there be no God.¹¹ Reason and reason alone dictates the contents of natural law, and reason alone validates it.

⁶ See Appendix

⁷ Hugo Grotius, Prolegomena to the Law of War and Peace (tran. by F. Kelsey) (New York: Bobbs-Merrill Library of Liberal Arts, 1957), #8; p.9

⁸ Ibid, #15, p.12

⁹ Ibid, #16, p. 13

¹⁰ Ibid, #9 & 10, pp.9–10

But if the natural law relates to the requirements for the maintenance of social order as consonant with reason,¹² what makes this natural law binding on individuals — how is the individual connected to that society the principles of which are discovered by reason? The answer for Grotius lies in “an impelling desire for society,” and specifically for peaceful society, which is “among the traits characteristic of man” and “peculiar to the human species,”¹³ one indication of which is the very existence of the human faculty of speech.¹⁴ It is this natural sociability which leads men into society and binds them to the natural law that prescribes the nature of that society. There are faint hints of a lack of self-sufficiency as providing an additional reinforcing motive,¹⁵ but echoing the Stoics Grotius insists that man would be sociable and desire to enjoy society even if he lacked...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Title Page
• Original Copyright Page
• Table of Contents
• 1. Introduction
• 2. The Theme Introduced: Grotius
• 3. The Theme Developed: 1. Hobbes
• 4. The Theme Developed: 2. Locke
• 5. The Theme Developed: 3. Rousseau
• 6. The Theme Clarified: 1. The Imputed Contract and John Rawls
• 7. The Theme Clarified: 2. The Orthodox Model and Imputed Contract
• 8. The Theme divided: 1. Democracy, Consent and Obligation
• 9. The Theme Divided: 2. T.H. Green
• 10. Conclusion
• Appendix I. Walzer and Democratic Consent Theory
• Appendix II. Socrates and Contract
• Appendix III. The problem misstated: the direct democracy model
• Appendix IV. Green, Bradley and the Idealist Theory of Obligation
• Appendix V. Note on Pufendorf
• Appendix VI. Rousseau and Plato
• Bibliography