The Social Contract
Questions of Sovereignty
“Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation.” The Federalist No. 44, James Madison.
The word compact derives from the Latin compacisci. Literally translated it means to make a contract. Social Contract theory was the dominant political theory at the time of the Revolution. It had three great expositors prior to the Revolution. Hobbes in “Leviathan” published in 1651 used Social Contract theory to justify an absolute sovereign power.
Locke defended limited government in his discussion of the Social Compact, and indeed, he used the term Compact rather than Contract. From his “Second Treatise of Government” published in 1690,
“Sec. 97. And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation, to every one of that society, to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact, if he be left free, and under no other ties than he was in before in the state of nature.”
Rousseau published his work, “The Social Contract, or Principles of Political Right” in 1762. It is famous for it’s opening lines,
“MAN is born free; and everywhere he is in chains. One thinks himself the master of others, and still remains a greater slave than they.”
This thought is not original with Rousseau, Locke said much the same thing.
“Sect. 4. TO understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.”
Extreme positions tend to produce the same result. Hobbes and Rousseau though coming from opposite directions and arguing to opposite ends both propose systems that result in a tyrannical form of government. Hobbes defends a strong central authority presumably a monarchy with all authority vested in it. Nothing it does can be illegal. In practice power in a monarchy divides between the mass of the people, an upper class and the monarch. In order to counter the constant threat of the upper class, the monarch must court the people and appear to be their defense against abuse by the upper class. He must become a peoples dictator.
To quote Machiavelli’s “The Prince”,
“Therefore, one who becomes a prince through the favour of the people ought to keep them friendly, and this he can easily do seeing they only ask not to be oppressed by him. But one who, in opposition to the people, becomes a prince by the favour of the nobles, ought, above everything, to seek to win the people over to himself, and this he may easily do if he takes them under his protection. Because men, when they receive good from him of whom they were expecting evil, are bound more closely to their benefactor; thus the people quickly become more devoted to him than if he had been raised to the principality by their favours; and the prince can win their affections in many ways, but as these vary according to the circumstances one cannot give fixed rules, so I omit them; but, I repeat, it is necessary for a prince to have the people friendly, otherwise he has no security in adversity.”
Louis XVI forgot this and lost his head. Rousseau proposes absolute power to the people, and nothing done by mandate of the people can be illegal. Masses of people choose charismatic leaders who promise them their desires fulfilled. They always end up choosing peoples dictators to rule over them. Thus Rousseau’s doctrines lead as inevitably to a peoples dictatorship as Hobbes does. Hobbes openly espouses an absolute authority and discusses natural rights as embodied in English Common Law at length. As such an honest man with so much devoted to basic human rights he is actually less dangerous to real freedom than Rousseau. Rousseau falls in love with the rule of the mob. He disdains to even consider natural rights suggesting that the will of the people is superior to any natural law that might provide individuals with natural rights. He is by far the more dangerous philosopher.
“As nature gives each man absolute power over all his members, the social compact gives the body politic absolute power over all its members also; and it is this power which, under the direction of the general will, bears, as I have said, the name of Sovereignty.” Rousseau, “The Social Contract” Book II Part IV, “The Limits of Sovereign Power“.
Locke is the middle ground. Both Hobbes and Rousseau are seductive writers, it is possible to become carried away by the color and emotion of their prose. Locke is far more reasonable.
These quotations show the dominant political philosophy at the time of the American Revolution and the framing of the US Constitution. As such they support three distinct types of argument about what is right and whether or not the Social Contract exists or is merely a figment of the imagination of political philosophers. Argument in this sense is technique or rhetoric not thesis.
The first form of argument is rhetorical and emotional. The majority of the Founding Fathers of the United States believed in Social Contract theory. The more radical among them like Thomas Paine were disciples of Rousseau. The majority were clearly influenced by Locke, the language in the Declaration of Independence and much of the Federalist Papers as seen above derives from Locke. The Constitution itself is Hobbes Leviathan, a powerful central government with sufficient power to enforce its mandates. Much of the Bill of Rights comes almost word for word from sections in the Leviathan which discuss Natural Rights. These Natural Rights were incorporated in the Constitution for the Carolinas written by Locke. The combination of the Constitution and the Bill of Rights may be described as Hobbes hobbled by Hobbes. Many of its framers and defenders may be presumed to partake in some degree in a belief in Hobbes dark and gloomy analysis of human nature and government. Therefore belief in the Social Contract is American and denying its existence is Un-American. All right thinking Americans therefore must believe in the Social Contract. This is political rhetoric.
The second form of argument is legal. The Constitution is a document written on the basis of Social Contract theory. Therefore arguments based on Social Contract theory are implicitly legitimate Constitutional Law arguments and must be given respect in our legal system. Arguments which deny the existence of a Social Contract are implicitly illegitimate as they deny the basis on which the Constitution was formed and thus such arguments can have no legal validity in the American system. The Constitution is an example of a Social Contract created formally and consented to formally by the Citizens of a nation.
The third form of argument is that many of the greatest minds in the history of political philosophy were social contract theorists. They found a contractual model of society useful in describing what society should be. This argument is dialectical. The idea of a Social Contract is implicit in all systems of law. Regardless of whether the law was dictated to the King by God, or the Emperor was Emperor by the Mandate of Heaven, or King was King by Divine Right, there is always an implicit contract. Confucius maintained that if an Emperor failed in his duty to the people he lost the Mandate of Heaven. Mencius developed this idea very clearly in his lectures to various princes in his time. The coronation oaths of the Kings of Europe when Divine Right theory was widely accepted included clauses that they would obey God and do their duty to the people. The Roman legal theory that justified the absolute authority of the Emperors held that that authority was vested in them by consent of the people. There has never been in the history of the world any social system which was not implicitly a Social Contract. The great question is, if you do not describe society as a contract, how do you describe it?
Many people, well educated, intelligent people, deny the existence of the Social Contract. They will maintain that they never consented to any such thing. They were born into the US without anyone asking their consent. They will maintain that they never signed any papers and that most governments in history were created by conquest, not by the consent of the governed. They will maintain that the state of nature described by Hobbes, Locke and Rousseau never existed. All of these arguments are political rhetoric. Accepting a state and not starting a revolution implies consent. To quote Hobbes “Leviathan”,
“Signs by inference are sometimes the consequence of words; sometimes the consequence of silence; sometimes the consequence of actions; sometimes the consequence of forbearing an action: and generally a sign by inference, of any contract, is whatsoever sufficiently argues the will of the contractor.”
Forbearing revolution constitutes consent to the Social Contract. Conquerors either establish a government by law or remain in a state of war with the conquered. Government by law is a contract. Humans are social animals by nature and therefore have a natural contract or exchange of goods and services for mutual benefit as a fundamental part of their nature and instinct.
The word contract itself was invented to describe relationships. Marriage is a relationship. Parenthood is a relationship. To say that a relationship which consists in an exchange of goods to satisfy needs is not a contract is to say that the very things that words like contract were invented to describe are not contracts. The sense of obligation to return good for good existed before language. It existed before writing. It existed long before any contract was ever written down and notarized. It is this mutual obligation which makes a contract not the paper on which it is written. The history of law is full of examples of this.
Marriage is an excellent example of this phenomenon. Common Law Marriage is a contract similar to the Social Contract. It exists and is legally binding even though the partners may have entered into it accidentally without any sense that they were entering into any legally binding contract. In Talmudic law the Ketubot or marriage contract is the basis of all contract law.
Some people will admit that society is a web of mutual obligations but deny that it is a Contract. This is reminiscent of marriage again. Over the last 30 years or so many forms of nontraditional unions have been invented because traditional marriage was condemned for various reasons. A couple of years back NPR had a bit about how today the participants in these non-traditional unions desired that they should have the same legal recognition as marriages and that they should impose the same legal obligations on the partners as marriage.
Of course they didn’t want to call them marriages, that would be too traditional. Many people believe that if they call a duck an eagle it will be an eagle and not a duck. Creating a distinction where no clear difference exists is one of the fundamental tricks of clever arguers. Generally they succeed in fooling even themselves. A contract is a contract, a duck is a duck, and an eagle is an eagle. If something has all the essential characteristics of a contract it is a contract. Form is not essential, paperwork is not essential, the form of contracting obligations varies tremendously from society to society. The existence of binding obligations between persons is universal. Betrayal of those obligations in one form or another is universally a crime. The discussion of the parallel between the order of the levels of Hell in Dante’s Inferno and Maslow’s Hierarchy of Needs in the section discussing the existence of Natural Rights is an example of this.
Money changes everything. In an economy in which money has not been invented yet, barter substitutes, and in an ecology, resources govern everything. It is the seeking for resources or money or goods which drives all life. All of biology and ecology can be described as a kind of economy. Economic relationships are successfully modeled as contracts. If you need a model to use in describing economic relationships, a contract model works.
Wolves kill and eat elk and deer. If there are no wolves, the population of elk or deer expands to the point where there is not enough food. Starvation and disease decimate the population and catastrophe follows. Wolves kill the old, the young, and the weak and keep the population down benefiting the survivors. This is not a nice contract, but it can be successfully modeled as a contract.
Symbiotic relationships occur throughout nature. Each can be successfully modeled and described as a contract. Social animals live together in groups exchanging goods and services for their mutual benefit. Such relationships can be successfully modeled as a contract.
How you can successfully model or describe society as anything but a contract is difficult to imagine. In every contract there is an exchange of goods and services. The wolves accidentally help maintain the health of the elk by killing and eating some of them. If the wolves kill too many elk, the wolves starve. If the wolves do not kill enough elk, the elk starve. If the contract is violated, both parties suffer. Ecological systems can be modeled economically in terms of gains and losses based on investment of resources or as contracts.
In Nature Red in Tooth and Claw, violation of implicit contracts causes all parties to suffer. There are implicit rights and obligations in all contracts. Violation of such rights and obligations cause suffering to the parties involved. Such violation may produce short term gain and the loss may not be easily foreseeable, but it is on these grounds that the Social Contract has empirical reality with teeth.
There is a relationship between practical reality, law, and moral or rhetorical argument. Social Contract theory allows us to model society in a manner from which legal and moral obligations may be drawn and realistically based on practical realities. To quote Hobbes “Leviathan”,
“To this war of every man against every man, this also is consequent; that nothing can be unjust. The notions of right and wrong, justice and injustice, have there no place. Where there is no common power, there is no law; where no law, no injustice. Force and fraud are in war the two cardinal virtues. Justice and injustice are none of the faculties neither of the body nor mind. If they were, they might be in a man that were alone in the world, as well as his senses and passions. They are qualities that relate to men in society, not in solitude. It is consequent also to the same condition that there be no propriety, no dominion, no mine and thine distinct; but only that to be every man's that he can get, and for so long as he can keep it. And thus much for the ill condition which man by mere nature is actually placed in; though with a possibility to come out of it, consisting partly in the passions, partly in his reason.“
A Social Contract allows us to escape this bitter state of nature postulated by Hobbes. This Contract evolved before it was formalized or the word Contract invented. Thus in the Social Contract we create a model from which we may deduce rules, justice and injustice, right and wrong. Human beings are social animals. Social animals need the respect of their fellows. This respect comes from obeying the standards of their society. Humans like moral reasoning. Amusingly enough, its sexy.
These three kind of arguments run together throughout history. All of them were used in the Federalist Papers and all are legitimate Constitutional law arguments. They are frequently confused, and frequently a discussion of any issue will move from one to another to a third of these sorts of arguments. This is difficult to avoid, and doubtless this book does this at many points. One intent of this book is to attempt to tie these things closely together and as far as possible make clear the manner in which they reflect a basic reality.
There is a weakness to simple practical arguments. To many philosophers practical arguments must lead to the same conclusion that moral arguments lead to. If they do not then either the practical or the moral argument must be in error. This is quite probably true. To believe that most people will see it this way is false. This is a belief in enlightened self interest. It assumes that people will look at the long term consequences of their actions and act wisely. There is probably no falser assumption possible. To quotes Spinoza’s “Political Treatise”,
“We showed too, that reason can, indeed, do much to restrain and moderate the passions, but we saw at the same time, that the road, which reason herself points out, is very steep; so that such as persuade themselves, that the multitude or men distracted by politics can ever be induced to live according to the bare dictate of reason, must be dreaming of the poetic golden age, or of a stage-play.”
Or to quote Mencius in the same vein,
“4. 'If your Majesty say, "What is to be done to profit my kingdom?" the great officers will say, "What is to be done to profit our families?" and the inferior officers and the common people will say, "What is to be done to profit our persons?" Superiors and inferiors will try to snatch this profit the one from the other, and the kingdom will be endangered.” Mencius Chapter 1.
If arguments about what is right are based entirely on practical results many people will take short term gains as real profit and behave in a fashion that is destructive to society and possibly themselves. This is one of the reasons Epicureanism is among the most misrepresented and misunderstood philosophies in history. If one person does something and gets away with it, others will imitate him. When a large enough part of the population does this, the Contract fails and all cease to receive the benefits of the Social Contract. While this may take time and the initial violator may enjoy his short term gains until he dies, in the long run, the people as a whole suffer. In addition people need the earned respect of others. If they violate the legitimate mutual obligations they owe to others they cannot fulfill this need. Actions which violate the Social Contract cripple an individuals ability to fulfill his own needs as a social animal.
Social Contract theory provides a rational basis for deducing moral standards and condemning this sort of behavior. The opportunity to profit by such behavior is created by the existence of the Social Contract. Behaviors which abuse other participants in the Contract are a violation of the contract. By profiting from the Contract a person has assumed an obligation to obey the terms of the Contract. When a person violates this obligation he behaves in a manner which is morally and implicitly, legally wrong. Thus, the practical nature of the Social Contract dictates moral and ethical standards. All human beings need the company of other humans to improve their lives. This implies obligations to those others. The Social Contract between members of the same social species is obviously different than the ecological balance between wolves and elk. This gives the Social Contract a moral element that the relationship between wolves and elk lacks. It does not necessarily change the pragmatic realities when human wolves abuse human sheep beyond limit, negative consequences ensue as inevitably as if wolves were to destroy the elk they need to survive.
Aristotle said in Book III part 6 of his “Politics“,
“The conclusion is evident: that governments which have a regard to the common interest are constituted in accordance with strict principles of justice, and are therefore true forms; but those which regard only the interest of the rulers are all defective and perverted forms, for they are despotic, whereas a state is a community of freemen.”
Hobbes in “Leviathan” shows a dislike of Aristotle’s judgment and generally rejects Classical Governmental theory as justifying revolution even while admitting that what Aristotle called perversions of government are violations of natural law,
“It is true that a sovereign monarch, or the greater part of a sovereign assembly, may ordain the doing of many things in pursuit of their passions, contrary to their own consciences, which is a breach of trust and of the law of nature; but this is not enough to authorize any subject, either to make war upon, or so much as to accuse of injustice, or any way to speak evil of their sovereign; because they have authorized all his actions, and, in bestowing the sovereign power, made them their own. But in what cases the commands of sovereigns are contrary to equity and the law of nature is to be considered hereafter in another place.”
Hobbes lived through the English Revolution during which Charles II was beheaded. His opinions reflect his experience. His State of Nature more accurately describes the collapse of the Social Contract from internal division than those Hunter/Gatherer societies which have evolved cultures which provide unwritten rules which all learn from birth and follow almost instinctively.
Spinoza who watched mobs tear good friends to pieces and was almost burnt at the stake has similar sentiments about the necessary submission of the Citizen to the State.
“Besides, reason altogether teaches to seek peace, and peace cannot be maintained, unless the commonwealth's general laws be kept unbroken. And so, the more a man is guided by reason, that is (Chap. II. Sec. 11), the more he is free, the more constantly he will keep the laws of the commonwealth, and execute the commands of the supreme authority, whose subject he is. Furthermore, the civil state is naturally ordained to remove general fear, and prevent general sufferings, and therefore pursues above everything the very end, after which everyone, who is led by reason, strives, but in the natural state strives vainly (Chap. II. Sec. 15). Wherefore, if a man, who is led by reason, has sometimes to do by the commonwealth's order what he knows to be repugnant to reason, that harm is far compensated by the good, which he derives from the existence of a civil state. For it is reason's own law, to choose the less of two evils; and accordingly we may conclude, that no one is acting against the dictate of his own reason, so far as he does what by the law of the commonwealth is to be done.”
Much of his “Political Treatise” reads like Hobbes “Leviathan”.
In despotic states Aristotle includes the excesses of Democracy as well as Oligarchy and Tyranny. There is a mutual contract between ruler and ruled. If the masses abuse the few, the poor abuse the wealthy, or the wealthy abuse the poor, the government is perverted. From Aristotle’s “Politics” Book III, Section VII,
“Of the above-mentioned forms, the perversions are as follows: of royalty, tyranny; of aristocracy, oligarchy; of constitutional government, democracy. For tyranny is a kind of monarchy which has in view the interest of the monarch only; oligarchy has in view the interest of the wealthy; democracy, of the needy: none of them the common good of all.”
What Aristotle calls Democracy today might be called Communism, or in Cicero’s time Ochlocracy. John Locke in “Second Treatise on Government” discusses the perversion of a Monarchy,
“The being rightfully possessed of great power and riches, exceedingly beyond the greatest part of the sons of Adam, is so far from being an excuse, much less a reason, for rapine and oppression, which the endamaging another without authority is, that it is a great aggravation of it: for the exceeding the bounds of authority is no more a right in a great, than in a petty officer; no more justifiable in a king than a constable; but is so much the worse in him, in that he has more trust put in him, has already a much greater share than the rest of his brethren, and is supposed, from the advantages of his education, employment, and counsellors, to be more knowing in the measures of right and wrong.”
In Book VI Section IV of his Politics Aristotle emphasized the importance of responsibility in government especially Democracies,
“Every man should be responsible to others, nor should any one be allowed to do just as he pleases; for where absolute freedom is allowed, there is nothing to restrain the evil which is inherent in every man. But the principle of responsibility secures that which is the greatest good in states; the right persons rule and are prevented from doing wrong, and the people have their due. It is evident that this is the best kind of democracy, and why?”
Words are tricky in this context. It is easy to fall into discussing the Social Contract as a contract between the government and the people. It is convenient and not always inaccurate in context. Essentially the government is the embodiment of the contract between the Citizens. The Social Contract is a contract between Citizens, the government is the instrument created by the Contract to maintain its integrity. Suggesting that the government is a party to the Contract gives the government a status and power which it does not rightly possess. It suggests that the government can negotiate with the Citizens for better terms or dictate terms to them as it chooses. The government is not a party to the Contract the Contract is between the Citizens and the government is the tool created by the Citizens to maintain that Contract. The government has no rights only duties. Citizens have Rights. When a Citizens duty to the State is discussed what is really meant is a Citizens obligation to his fellow Citizens which the State represents both legally and symbolically.
Social Contract theory is a very useful model for describing human society and government. It allows a sound basis on practical realities which can provide a legitimate guide to necessary moral, ethical and legal rules. These rules in turn provide a practical guide to what behaviors should be condemned and to what degree. This includes some obligation to help individuals avoid the traps created by short term profits which produce long term loss and will in the end deny them the real respect they need from others.
It is these mutual obligations which lead many to condemn Social Contract theory. They provide prescriptive rules of conduct. Such prescriptive rules deny that License which is confused with Liberty. Hobbes states in “Leviathan”,
“Therefore of things past there is no deliberation, because manifestly impossible to be changed; nor of things known to be impossible, or thought so; because men know or think such deliberation vain. But of things impossible, which we think possible, we may deliberate, not knowing it is in vain. And it is called deliberation; because it is a putting an end to the liberty we had of doing, or omitting, according to our own appetite, or aversion.”
Reason removes the Liberty of Ignorance by informing us of the consequences of our actions. Plato said in book VIII of his Republic,
“The ruin of oligarchy is the ruin of democracy; the same disease magnified and intensified by liberty overmasters democracy — the truth being that the excessive increase of anything often causes a reaction in the opposite direction; and this is the case not only in the seasons and in vegetable and animal life, but above all in forms of government.”
Excesses in Liberty lead inevitably to tyranny. Again from Plato’s “Republic”,
“The excess of liberty, whether in States or individuals, seems only to pass into excess of slavery.”
Many prefer to say that there are no rules, the strong devour the weak and all social standards are arbitrary. A contract implies mutual obligations of the state to the people, of the rich to the poor, of the poor to their fellow Citizens. Everybody wants others to owe them things. Nobody wants to be in debt to others. This is hypocrisy. It is irrational for anyone to consider a contract to be binding on others and not expect to be bound by it themselves. Plato’s “Republic”,
“And so tyranny naturally arises out of democracy, and the most aggravated form of tyranny and slavery out of the most extreme form of liberty? As we might expect.”
The question is what are these binding obligations which Citizens owe each other and which are merely excuses for one group to exploit another?
Society cannot exist except as a web of mutually binding obligations. Society without a Contract is an impossibility. Such a “society” is a perpetual state of war between oppressors and oppressed. Describing that Contract in practical terms and developing the legitimate obligations it implies on the participants in that Contract is the function of political philosophy. This mutual web of obligations means that all participants in the Contract have certain Rights and certain obligations.
The question becomes what are legitimate rights under the Social Contract and what are not. Certain Rights must exist or no Contract can exist. Some things are rights under lesser contracts and do not belong to all participants in the Social Contract. Others are Rights under the Social Contract. How do you tell the difference? Much of this book will be devoted to discussing our traditional rights in detail and analyzing them in terms of Human Nature.
In primitive societies, the Contract was unwritten. Laws did not exist, only the traditional behaviors of the people which were passed from generation to generation by example. Having no other example, all the children grew up doing what they saw the adults do, and crime was virtually nonexistent.
Hobbes somewhat pessimistically described life in the state of nature as, “and the life of man, solitary, poor, nasty, brutish, and short.” This was not entirely true. Man was never solitary, and while poor, he did not know it because everyone else was about as poor as he was. Life was short and frequently brutal but no one realized this because they knew nothing else. Hence this period in human social development is remembered in myth and legend as a lost paradise around the world.
In nature the pressure of the environment maintained the bonds and obligations between individuals without written law. An example of how this mechanism works may be provided by the colorful practical wisdom of Duke Sir Einrich Armpitsbane. The good Duke earned his title as a warrior in the SCA. The SCA is a group once described by Mensa as recreating the Middle Ages with refrigeration and without VD. They get together hold tournaments, get drunk, play music, and generally have a good time. Duke Sir Einrich was a remarkably powerful fighter. He and his buddies had been motorcycle gangsters before they joined the SCA. He could break peoples jaws using a rattan sword striking metal helmets. He easily won the highest martial honors in the Kingdom. He told me that this did not make him happy. (Why he felt I needed this particular lecture escapes me.) He pushed people around, he bullied them, and no one wanted to have anything to do with him. He discovered that despite being King and Ruler, he was miserable because no one liked him or desired to have anything to do with him. So he changed his ways.
He and his buddies began learning to play music, especially drums, they began practicing chivalry in a rough barbaric manner. They created a fun party atmosphere at their camps which was rough, barbaric, a bit thrilling, but not really threatening. When I fought alongside them as a mercenary, every night they would break out their drums and start playing belly dancing music around the campfire. All the ladies in the nearby camps would come and dance around the fire. It was like magic. The moral of this story is that it is better to be the kind of noted warrior who can operate magic drums of belly dancer summoning than to be the kind of billy-badass who nobody likes. Another way of saying this is that you don’t shoot the piano player. This should be a no-brainer but it escapes a lot of young men growing up in every generation. The good Duke was forced not by any physical threat or superior authority, but by his own needs, to become a nicer guy more respectful of other people. Small human societies are self-regulating.
When men acquired technology like agriculture, herding, etc. they became able to support larger populations. This change in population density coupled with economic changes made fundamental changes in the human environment. Humans are still uncomfortable in this artificial environment and seek to create small enclaves closer to what nature has suited them to. They do this through religion, clubs, reenactment groups, etc. One of the strongest theories about the evolution of the human brain relates it to the need to compute social interactions. Dunbar in “Co-Evolution of Neo-Cortex Size and Language in Humans” finds a strong correlation between social group size and neocortical brain size in primates which successfully predicts brain size in modern hunter-gatherer groups. 60% of human conversation is concerned with gossip or evaluating the reputation of other humans suggesting a causal relationship between increasing group size and the development of language.
Aristotle recognized this difficulty in his “Politics”, Book VII, part 4,
“But if the citizens of a state are to judge and to distribute offices according to merit, then they must know each other's characters; where they do not possess this knowledge, both the election to offices and the decision of lawsuits will go wrong.”
He places the limit of any good government at the point where all Citizens can know each other personally or at least reliably by reputation.
This is the thing which changes of population density irrevocably change. At a certain point a society which governs itself by reputation because all Citizens know each other becomes impossible. Truly, in such a state, where all Citizens are known to one another written laws are unnecessary. The City States of Greece and the problems of government which Aristotle address are a transition period from tribal government to larger states. Societies as small as Aristotle postulates do not actually need written laws. Everyone knows everyone else, the basic mores of the group are commonly shared. They are transmitted by personal example from generation to generation and no one radically violates them out of concern for their own reputation. Such concern was a life and death issue. Failure to treat your fellows fairly could frequently mean their failure to aid you in times of desperate need. Human instinct makes concern for reputation a life and death issue. Many surviving Hunter/Gatherer societies survived in this condition up to almost modern times.
As technology advanced populations increased and economies became more complex. These changes greatly increased the opportunity for individuals to treat other individuals unethically. When the population of a society grows to the point that people cannot judge other people reliably by reputation, it becomes possible to live successfully by deceiving your fellow Citizens. As technology advanced the accumulation of wealth became more possible and with it the abuse of fellow Citizens through the power of wealth or the abuse of them without fear of losing their respect. A kind of contempt of others impossible in a more primitive society became possible. All of these things made legal and political authorities necessary, and that made the abuse of such newly constituted authority possible.
In this sense the State is a very different entity than the State of Nature. In both a Social Contract exists. In the State of Nature the enforcement of the terms of Contract was done by Nature. Human Nature would punish transgressors of unwritten rules, and Nature Bloody in Tooth and Claw would punish social conventions which did not work.
The transition to a more developed Society weakened or destroyed the natural mechanisms which enforced the Social Contract and created great new opportunities for abuse. The absence of these natural regulators of behavior gave humans a freedom that they were not evolved to handle. In this greater freedom people cannot trust their instincts and daily reinforcement to govern their actions. License becomes confused with Liberty. It is for this reason that more developed societies must analyze the nature of the Social Contract and define its rules. In this context, this more technologically and economically advanced Social Contract has an implicit purpose. That purpose is to improve on the state of man in a more primitive and natural Social Contract. If it does the opposite and denies to men what they would have possessed naturally without work in that more primitive Social Contract or state of Nature, it violates its implicit purpose. It becomes a perverse or criminal state. Hence, those things which men possessed without work in a State of Nature can be called Natural Rights. To deny them to Citizens is a violation of the implicit purpose of the Social Contract.
Hobbes in Leviathan discussed good and bad laws,
“For the use of laws (which are but rules authorized) is not to bind the people from all voluntary actions, but to direct and keep them in such a motion as not to hurt themselves by their own impetuous desires, rashness, or indiscretion; as hedges are set, not to stop travellers, but to keep them in the way. And therefore a law that is not needful, having not the true end of a law, is not good. A law may be conceived to be good when it is for the benefit of the sovereign, though it be not necessary for the people, but it is not so. For the good of the sovereign and people cannot be separated. It is a weak sovereign that has weak subjects; and a weak people whose sovereign wanteth power to rule them at his will. Unnecessary laws are not good laws, but traps for money which, where the right of sovereign power is acknowledged, are superfluous; and where it is not acknowledged, insufficient to defend the people.”
Hobbes dictum that laws are to keep people from harming themselves goes a bit too far in allowing the state to attempt to govern people for their own good, but his objection to unnecessary laws is well founded. You will note that according to Hobbes good laws make strong people. A formal system for determining whether or not a law passed by the State is legitimate is to ask, “Does this law increase the freedom or individual power of the Citizens”. If it does not, then it is not a legitimate law. Frequently things possessing the appearance of Liberty actually results in the loss of individual power, freedom and ability to act. If you do not make laws against murder then anyone can kill you. If you do not make laws against theft then you are not secure in your possessions. Traffic laws make it possible to drive vast distances with a minimum of traffic congestion. Laws about the usage of radio frequencies makes it possible for Citizens to tune in to radio stations with an assurance that they will find content they like. All of these laws actually increase the freedom and power of Citizens to live their lives as they choose. If these laws did not exist, then these things would be impossible.
Spinoza in his Political Treatise says,
“And so our conclusion is, that that natural right, which is special to the human race, can hardly be conceived, except where men have general rights, and combine to defend the possession of the lands they inhabit and cultivate, to protect themselves, to repel all violence, and to live according to the general judgment of all. For (Sec. 18) the more there are that combine together, the more right they collectively possess. And if this is why the schoolmen want to call man a sociable animal — I mean because men in the state of nature can hardly be independent — I have nothing to say against them.”
In other words men combine to increase the individual security and power and this is the origin of Natural Rights.
The State has no business acting except to improve the lives of its Citizens. This is the implicit purpose for which the Social Contract exists and the State is simply the formal embodiment of this Contract. If the State passes laws that do not increase or guarantee the real freedom of its Citizens, it is passing laws which it has no legitimate authority to pass. In earlier political Theory there was a tendency to overcompensate for the opportunities for abuse created by large populations with an excessive regimentation of the Citizens. Facing these problems early in the history of mankind frequently led to giving the central authority an authority which longer historical experience showed violated the necessary freedoms of mankind. Works like Plato’s “Republic” and “Laws” strike an American as totalitarian. Even Aristotle’s “Politics” seems to propose what we might consider an invasive state. More modern theorists like Adam Smith in his “Wealth of Nations” have clearly demonstrated that liberty is essential to the ability of citizens to contribute to the State as is discussed in the section on Liberty and Slavery. This general tendency to confuse the moral regimentation of the Citizens with the legitimate enforcement of ethical laws is contrary to the principle of Separation of Church and State.
To quote Aristotle in his Ethics, possibly his most famous general principal,
“Virtue, then, is a state of character concerned with choice, lying in a mean, i.e. the mean relative to us, this being determined by a rational principle, and by that principle by which the man of practical wisdom would determine it. Now it is a mean between two vices, that which depends on excess and that which depends on defect; and again it is a mean because the vices respectively fall short of or exceed what is right in both passions and actions, while virtue both finds and chooses that which is intermediate. Hence in respect of its substance and the definition which states its essence virtue is a mean, with regard to what is best and right an extreme.”
The rational principle is that men form societies to increase their quality of life. This implicit purpose determines the legitimate exercise of the role of the State. This Contract involves give and take. Too much authority in the State violates this purpose by making life worse than it would have been in the absence of the state. Too little authority in the State makes it impossible for it to accomplish its purpose. This calls for a division of sovereignty between the State and the Citizen.