No society can exist without a social contract

Economics Political Theory
1

Found this post on reddit challenging the idea of a social contract as invalid (my response is below the quote):

There has never been a society without coercion, and without some form of social contract. The forms these take can vary wildly, and depend a lot on the local conditions that caused the development of that society, but there is still always coercion. Even in Malinowski’s Crime and Custom in Savage Society1, the first anthropological book to properly recognise that law could exist outside the state, there was clear coercive force making people obey tribal “law.” (Law in inverted comma’s as it isn’t the same as Western Law in form or nature).

Those studies that have found examples of “law” outside the state (I really hate terminonolgy of legal anthropologists if I seem to be using it awkwardly) within Western Civilisation, these groups are always based on some form of coercion. Moore’s The Semi-Autonomous Social Field as an Appropriate Subject of Study2 identifies a system of “non state law” in the textile industry in New York. However, it is based firmly on coercion, both in the form of gift giving, and in the form of the Union Representative not enforcing his legal powers.

Nowhere in the study of legal systems that exist outside the state, has there been a situation without coercion. In the Malinowski study it was a case of “do as we say, or go and try and live by yourself. On an undeveloped Island. Oh and never see your friends again.” Social exclusion, especially in tribal places such as Somalia, is a major punishment. (I refer you to the European Court of Human Rights Case Salah Sheekh v Netherlands3, concerning refugee status, where it was found that he could not be returned to a “safe” area of Somalia as this would leave him outside the protection of his tribe).

So that is my view on the social contract. It cannot not exist. There is always a form of coercion overriding whatever voluntary behavior exists. In a lot of places where violence was not used as the coercion, this took place because there where other options which are just as effective and just as compelling. In the west, without a tribal society, and in short of forming actual communes (and becoming communist) it is not really possible to see how the social contract can be constructed outside a state. Even in non-western states, such as the Northern parts of Somalia, we see people constructing states because it is necessary to protect them from the likes of Al-Shabab4.

Now for its form in the current western world. Our society is based on property rights. Property rights need coercion to be introduced. Coercion is either violent or in a social contract. (see above). The thing about property rights is that they are not like contracts. They are not voluntary. I, me, owner of property, can enforce that right against you, non owner of this property, without any form of agreement between us. That includes the ability to exclude you, and the ability to enforce your obligations (such as not accidently damaging or polluting) without you having to agree to the existence of these obligations. Property law, at its heart, is non consensual obligations on the rest of the world to you (with the exception of the one person who sold it to you). The only way this can be enforced is by coercion. In tribal societies, this is by the threat of expulsion. In state societies, this is by the threat that you can be stopped by force. Whatever the form, there has to be an existing social contract that binds all the residents of the area, whether they consent or not. Because property rights cannot be a matter of choice between just the two people involved, because they apply to third parties. I grant your house an easement right across my Garden. You sell that house to someone else, and I sell mine to someone else. Those two then have to be able to enforce it against each other, even if one previously lived in Amsterdam and the other in Paris.

Only way for this to operate? At the very least there has to be a nightwatchman state. But still a state. The argument as to the most efficient form of state in terms of benefit to citizens is a different one. However, fundamentally, the social contract always exists. In our society, it exists within a state. If there was not a state, it would exist by another form of coercion.

Footnotes These are the things I referred to in the above. Don’t feel any obligation to read them, its just if you are interested in following them up.

  1. http://www.archive.o…stominsav00mali Malinkowski’s book. If you want to read it.

2.http://www.jstor.org/discover/10.2307/3052967?uid=3738736&uid=2129&uid=2&uid=70&uid=4&sid=55881724673 Moore’s paper. Can’t find it outside jstor, so can only be read if you have access. Sorry.

3.Salah Sheek v The Netherlands (1984/2004)

  1. http://en.wikipedia…wiki/Somaliland

Here is my reply, which is the beginning of some thought I have had recently about rethinking the philosophical foundations of society and deriving morality (it actually appears to be quite similar to argumentation ethics, though I am not sure how much; don’t worry, though, it doesn’t claim objectivity of morality, just necessity and implication due to discussion over justice):

First of all, his conclusion that you need a night watchman state is a non-sequitur. A night watchman state is one that relies on taxation. This violates property rights anyway, so it fails to create a society bound by a social contract of private property.

Second of all, it does appear that enforcing the right to property may be considered coercive. HOWEVER, 1) I am not very well versed in libertarian moral theory and 2) His argument falls into a deeper philosophical trap than yours. Here is what it is:

Supposedly, private property is coercive. However, in that case, how can we define coercion? Coercion implies that there is some inherent right that is being broken. I cannot think of a more fundamental right than the right to self-ownership. Ah, but self-ownership is a property right! Hence, it is coercion itself! See how this argument breaks down? The very discussion of the coercion of private property relies on an understanding of a right which stems from a private property. The definition of coercion (in the truth for moral underpinnings for society) is hence itself defined based on something which is also considered coercive. As such, (since we scorn coercion), feeling coerced against because your neighbors enforces his property rights is itself an act of coercion, because you are exercising your own self-ownership.

We can easily see how this argument quickly breaks down.

Thoughts?

2

I think a setting of terms is in order. Social contract theory is often criticized in the normative realm, where it is proposed as a moral imperative - as in, you ought to respect the state because you would rationally choose to do so in the state of nature. But he’s mostly talking about it descriptively, in the sense that any observed rule is like a tacitly agreed-upon contract between individuals in the society. I’m pretty sure Hobbes and Rousseau had more in their argument than that.

He also goes too far in defining property as a non consensual obligation upon others. Rules regarding property delineate what constitutes an offense, and these rules can arise through custom. While coercion may be used in response to rule breaking, I think it’s wrong to jump a step and say, “rules = coercion.” It’s better to keep them conceptually separate.

OK, he’s just contradicted himself. At the very least, you need a state, but there doesn’t need to be a state?

I think the best way to view the social contract is that it is expressed through de facto law and custom, not through fealty to the prevailing sovereign, regardless of that sovereign’s decisions. This is essentially what this guy does, conflating any kind of rule with a social contract. The debate, then, is what should the law be, and who should enforce it? The state is not the obvious answer to either question.

3

Is there something like a social contract? I guess one can find arguments for and against this.

For the sake of argument I think one needs to first separate the issue of the existence of the social contract from the legitimacy of the state, which should discussed later.

4

what I ask is this: is social contract a contract or not? If they say yes, I ask them to show me. If no, then… well, I win.

5

This. Half of the time people defend “social contract” they are actually defending social conventions or some sort of game theory equilibrium. Social Contract theory is a justification of, like you said, why we ought to respect the state. It IS NOT a theory of how people follow rules or how informal contracts work.

6

(Sorry got so excited reading the foolisness that I misworded item 1 below.)

First the “Social Contract” does not and can not exist. A contract can only exist between two parties neither of which is coerced into making the agreement, otherwise it is just a product of force. The society (Really monopoly government) party literally forces the other party through a myriad of means to interact with it and then calls this a “Social Contract” that lasts forever requires nothing of the Society party and allows the Society party literaly to decide the terms at will.

But what really irks me is the concept that just because something never has happened means that it can’t happen when this flies in the face of an uncountable number of things and relationships in the modern world. Here is a tiny subset of areas where people 1000 years ago would never thought could exist:

  1. Life without Chattle Slavery

  2. Electricity

  3. Heavier than air flight.

  4. Rights of women and minorities.

  5. Freedom of contract.

  6. Internal plumbing.

But when it comes to how a future society would work these bozos just clam up and come out with combinations of words to hide their emotional reactions.

7

Rothbard talking abou a “basic law code” existing in an AnCan society, that “all judicial agencies have agreed upon” is a type of social contract.

8

The Redditer didn’t explain what he means by “coercion”. Since he seems to consider social exclusion to be a form of “coercion”, that means he can’t be defining it as “the use or threat of force”, as social exclusion per se doesn’t involve such. Maybe he’s defining “coercion” simply as “actions that are perceived negatively by a particular person”. But under that definition, turning down someone for a job (for example) would constitute “coercion”. I’m not sure if that’s really what the Redditer has in mind.

9

Law concerns disputes that would otherwise to turn violent conflict. Law by its very nature concerns the threat of violence. The first definition wiktionary provides for coercion:

So, coercion is a necessary part of law. Where your redditer goes wrong about law, is that he does not understand that law is meant to resolve these disputes that would otherwise turn to violence. Sometimes the law ends up resolving these disputes with violence, but during the court/arguing part of law, there is nonviolence. There must be someone enforcing the law, whether it is the state, private groups, or even individuals. The problem with the state is that it is a monopoly on law, so not only is the state immoral in nature (it’s aggressive), but it has all the problems that we associate with monopolies (it has little incentive to create good law and it cannot really know if it is creating good law).

The social contract with the state is absurd. But the idea of living socially with others and having coercive law is not. But they are not the same thing.

10

I think this should be slightly re-stated. Participation in law is not coercive - two parties could agree to settle their dispute with a duel, or to simply drop the matter, etc. The choice to refuse to participate in law is not inconsequential, that is, the aggrieved party may then be within their rights to take matters into their own hands. This is not like the coercion by which the State’s law monopolist compels participation in law both by outlawing alternative decision-making (such as dueling or simply dropping the matter, in some cases) and coercing participation in law. Due to its absolute immunity, the law monopolist’s threats are never empty - compelling participation in law is considered morally neutral behavior, even when it requires the use of violent force.

In the case of a society without a law monopolist, I may choose to ignore a request for arbitration simply because I do not believe the other party’s threats to take matters into their own hands if I do not meet them for arbitration. This might be because no actual tort has occurred and, if the other party were to take matters into their own hands, that would constitute a tort in its own right, which I could then handle through law. In the absence of a law monopolist, I am not “guilty until proven innocent” in the sense that I am not compelled to appear in court anytime that anyone anywhere on God’s green earth decides to claim I’ve wronged them. In cases where I know the other party has zero evidence (because I know I committed no tort), I can choose to handle the situation more cost-effectively by simply ignoring their offer of arbitration and threats of retaliation.

Clayton -

11

I am honestly amazed how some people manage to twist property ownership up with coercion. I think that is quite a feat indeed.

There is no such thing as a social contract or a society. They are both abstract terms. If anything calling it a social contract is a miscarriage of language. Nothing about the social contract resembles a contract. It should be called the social requirement.

12

Is there any indication that the “social contract” was meant to be the same as the contract I’d use to sign up at the local gym? I’d personally understand this more figurately more like an implicit contract or something on the basis of “you leave me alone, I leave you alone”.

13

I think you are right. I usually say that law requires the threat of violence - I was trying to make coercion fit with this. Indeed, all threats of violence are coercive acts, but not all coercive acts are threats of violence.

Right. The point I’m trying to make is that not all disputes are in the realm of law. Disputes that require the threat of violence are in the realm of law. For example, suppose two friends go to the movies, and they cannot agree as to what movie to watch. They have a dispute, but it has nothing to do with law. They have no reason to go to court, as neither is threatening violence against the other. Sure, they might find a third party to help them out, but they would not be doing this to avoid violent conflict.

Now, if one of the friends assaults the other or threatens to assault the other, then this dispute is in the realm of law. They might still decide to settle it themselves by dueling or just dropping the matter entirely, but most people seek courts to help resolve disputes.

Right. One can ignore a request for arbitration, but there are certain risks involved in doing so. It may turn out that the other party’s threats are credible. Also, don’t forget that ignoring the court system is a good way to be labelled an outlaw. Most likely, if the other party cannot show society through the courts that their claim about you is credible, it would just be thrown out right away. Don’t forget, just because two parties must agree to arbitration/mediation, there are still going to be customs regarding law. Some customs might be useful to curb frivolous suits, such as if it is deemed frivolous, the plaintiff has to pay for the legal fees of the defendant. But I wouldn’t be surprised if there were a custom that if one makes a habit of ignoring arbitration (or depending upon the crime), that person may end up an outlaw.

14

I think you’re overlooking commonplace false accusations. The need to have rules like “if you make a false accusation and it turns out to have been false, you have to pay damages” actually arises as a result of the law monopolist - in a marketplace in law, there’s no such thing as “frivolous court cases” because by the very act of showing up for arbitration, you’ve demonstrated that the case is not frivolous to you.

If someone is falsely accused, he may rightly choose to refuse arbitration without consequence - he cannot even be declared an outlaw. The reason is that - in the absence of a law monopolist - every individual is fully liable for all his actions at all times. Let’s say Bob accuses Alice of stealing his TV. Alice knows she didn’t steal Bob’s TV, so he cannot possibly have evidence that she did. Bob asks her to go to court. She refuses even to show up because it’s a waste of her time. At this, Bob threatens to send his security company to collect his TV from her. But the fact is, she doesn’t have it, never had it and Bob cannot possibly have any true evidence that she does have it or ever did have it. Hence, she can safely ignore both his request for arbitration and his threats of summary action. If Bob does, foolishly, proceed to summarily act against Alice, he will find himself in court, charged with assault, theft, trespassing, etc. etc. etc. and Alice will win because she will have evidence of Bob’s actions and Bob will have no true evidence of his original claims against Alice which were supposed to be the basis for his summary action.

Even the act of declaring someone to be an outlaw is not an action which absolves anyone of liability. Let’s say someone says, “John is a criminal. Here’s the evidence for all to see. He refuses to come to law to handle the matter, so I hereby declare John to be an outlaw.” That declaration, in itself, means squat. If the outlawer has fabricated the evidence, for example, then anyone who acts against John on the basis of that fabricated evidence will still have committed a tort against John! Outlawing, in my view, is more of a de facto matter than a de jure matter - if you can take your evidence to a legal specialist who specializes in outlaw situations and then sell your claims (on the basis of the specialist’s review) to a bounty-hunter, then your aggressor has been de facto outlawed. This is a lot like the medieval Icelandic model (cf Friedman).

Clayton -

15

The guy in the OP is confused about what ‘social contract’ even refers to (answer: the state). Still better is the fact that he essentially argued that ordered anarchy, i.e. a stateless society, is possible, but then for some reason made a random jump to society = the state.

16

A lot of this makes sense, but I have a couple questions. Why should Bob find himself in court just because he aggressed against Alice? After all, Alice refused to begin with, so why should Bob care? I imagine that the reason is that Alice can easily sell her claim to some company that specializes in collecting claims based on contingency. So, if Alice herself cannot threaten Bob to get him to court, someone who is interested in making money off of her claim will do the threatening instead.

The outlaw situation seems to me like it could happen in a couple of different ways. First, in a customary law society, customs become law. Just because the parties to the dispute have to agree to go to arbitration instead of being arrested and all that jazz, this does not mean that there wouldn’t be certain customs that have come to be regarding certain crimes. For example, a crime such as murder might get settled in court. But if the family of the victim can prove someone is the murderer, and that person refuses to come to court, it’s not like they wouldn’t be able to take retribution against him. There retribution would be lawful so long as that someone really is the murderer, and his family cannot try to take the victim’s family to court. The only way they could would be if the accused had been innocent after all.

Second, someone can be an outlaw in a certain area. Someone might end up outside the protection of the law in the Boston area. If someone’s crimes were so great and he refuses arbitration, he has essentially named himself as an outlaw. He is refusing the protection of the law and it can be demonstrated that he is guitly. He would have to flee the area or risk death. I agree with what you said about the bounty hunter (okay, I agree with it, but it is true independently of any of my beliefs).

17

Because Alice will have actual (true) evidence of Bob’s wrong behavior. Hence, he must come to the bargaining table or, yes, she will be able to sell her claim to the kind of people who do that kind of thing or she could even take summary action against Bob herself - if Bob were to sue as a result of this, he would lose because he was the aggressor in this situation, not Alice.

I disagree with the bolded statement. They can take them to court, it’s just that they won’t win if the victim’s family can prove that the murder did, in fact, murder and that the manner of their retribution was justifiable (i.e. didn’t involve torture or whatever).

I think you’re analyzing multiple, independent variables unnecessarily. Custom (tribal/clan law), ostracism, exile, etc. are independent of the analysis of law itself, that is, we can come to conclusions about the essential features of any law system (the “logic of law”, if you will) without looking at the particular features of how law systems exist in the “real world”, that is, in what ways societies deviate from having law. In my view, societies where statutory “law” is the predominant system of “law”, there is, in fact, a de facto state of lawlessness. The preconditions for the actual practice of law are simply absent from a society primarily governed by statutory “law”. I can imagine other, less extreme, abrogations of the operation of law. So, there is a spectrum of degrees to which law can actually be operational within a given social order but law itself - what the logic of law is - remains unchanged.

Clayton -

18

Clayton,

Makes sense as per usual. Just a couple more questions (for now). Do you consider the practice of outlawry to deviate from law? Could you give me a couple of less extreme examples regarding what you consider to break from law?

Thanks.

19

No, I don’t think outlawry deviates from law but I think the examples I’m familiar with where a person would be “declared” an outlaw, there was still some kind of sense of law as being administered by a unitary organization (monopolist of law) and outlawry as a kind of “shunning” or “refusal to do business with” the outlaw on the part of that organization. In a completely unhampered market in law, such collusion would be impossible… there would always be an arbitrator willing to accept cash from an “outlaw” to hear a dispute between him and someone else.

Nevertheless, I think that historical outlawry is an imperfect reflection of the underlying law principle that once a person refuses to settle a dispute through non-violent means, the only recourse left is violence. The key issue in an unhampered market in law (where strict, individual liability is always in operation 100% of the time) is how to convince someone who specializes in “settling accounts” through non-arbitrated means that you’ve really, really got proof that the individual in question has done something that is worthy of death or other, less extreme measures, such as repossession. I’m not going to just go out and shoot someone on your say-so. Not only will you have to pay me, you’re going to have to convince me that I’m not going to end up a wanted man.

I think that English common law is an example of a law system that still is not an unhampered market in law but is less hampered that modern, statutory law. So, you could still have really stupid insane things happen in English common law (can’t think of an example off the top of my head, but I know there were some ridiculous things that were considered tortious at one time and also some ridiculously disproportionate punishments for other things). Rothbard believed that the abuses of common law arose as a result of the fact that it was not subject to reason (I think he briefly discusses this in EoL). However, I disagree with Rothbard on this point and I think that wherever we see departures from rationality in common/customary law, it is the result of some kind of hampering in the law market.

Clayton -