The Social Contract and Its Mismanagement

The social contract is the idea that morality and political arrangements are to be justified by social agreements. And I totally agree with this. This is the ideal of anarchism.

I suppose that the original historical source of this idea is from the interpretation of the Hebrew Bible in which the Hebrews make a covenant (agreement) with God. God gives them 10 rules by which they are to live, and if they do so, they will be rewarded in heaven. Except if the deal is not accepted, they go to hell. Not quite a free agreement, ey!

For the heyday of social contract theories, see the Wikipedia entry for: Social contract

In an earlier blog, I pointed out the mismanagement of the social contract by John Rawls: Too much amnesia in the Original Position of John Rawls.

And in a still earlier blog, I pointed out the mismanagement of Rousseau’s social contract by Ian Shapiro: (2) Further commentary on Ian Shapiro’s course: “Moral Foundations of Politics”.

In this blog I will point out how Immanuel Kant mismanaged the social contract.

There has been a great deal of effort (exegesis) to tease out of Kant a coherent proposal for grounding morality — with no positive results. And the reason for Kant’s failure is easily explained, but the reason for this failure has, as far as I know, eluded everyone.

What has not been noticed is that the social contract is between “rational beings.” And these “rational beings” are God, angels, and the human noumenal self (=soul). And besides being rational beings — and this is the missed part by all commentators: they are all IMMORTAL!

And whatever the rules which are agreed to by these immortals, must apply to all of them. The fact that the (human) soul is attached to a human body is a peculiarity of interest only to humans. If a universal rule is to be adopted for all concerned, it cannot be a rule serving only a particular interest of humans, such as not to die.

I could go on and point out the consequences of this line of thinking, but I will not. I will simply say that Kant’s ethics is grounded in science fiction.

Too much amnesia in the Original Position of John Rawls

John Rawls in his A Theory of Justice (1971) posits a group of rational people who are told to deliberate on rules of justice for a life they will have after being transported into some unpredictable human condition in some unpredictable institutional situations.

He concludes that the only rational choice is to agree on two principles. The following formulation here will suffice:

The two principles of justice are the liberty principle and the difference principle. The two principles are intended to apply to the basic structure of society–the fundamental political and economic arrangements–as opposed to particular actions by governmental officials or individual statutes. The liberty principle requires that the basic structure provide each citizen with a fully adequate scheme of basic liberties — such as freedom of conscience, freedom of expression, and due process of law. The difference principle requires that inequalities in wealth and social position be arranged so as to the benefit the worst off group in the world. Rawls states that the two principles are lexically ordered, with the liberty principle taking precedence over the difference principle in the case of conflict.

As it turns out, although the altered condition of the people in the Original Position is unpredictable, their transported institutional situation seems to be a liberal democratic society with a capitalist economy. So, in effect they are asked to write a meta-law for, let’s say, the Constitution of the United States. In effect, the second principle would require the introduction of either a right to a job for all or a basic income for all, and perhaps a free universal health care.

What these people in the Original Position seem to have forgotten is that they are animals on earth who need access to subsistence, and that they can get this subsistence if they have a free access to land. Before the contents of some agreed to rule is adopted, it is first necessary to make agreements in the first place. So, it seems that the first order of business is to come up with two meta-rules: Meta-Rule 1: Make Agreement (on Rules) rather than resort to coercion (War); Meta-Rule 2: Abide by the agreements (Rules).

Really, instead of the contrived Original Position, a more historically realistic situation is envisioned by John Stuart Mill. He imagines a group of colonists arriving at some uninhabited land.

Book II, Chapter 1. Principles of Political Economy:

In considering the institution of property as a question in social philosophy, we must leave out of consideration its actual origin in any of the existing nations of Europe. We may suppose a community unhampered by any previous possession; a body of colonists, occupying for the first time an uninhabited country; bringing nothing with them but what belonged to them in common, and having a clear field for the adoption of the institutions and polity which they judged most expedient; required, therefore, to choose whether they would conduct the work of production on the principle of individual property, or on some system of common ownership and collective agency.

If private property were adopted, we must presume that it would be accompanied by none of the initial inequalities and injustices which obstruct the beneficial operation of the principle in old societies. Every full grown man or woman, we must suppose, would be secured in the unfettered use and disposal of his or her bodily and mental faculties; and the instruments of production, the land and tools, would be divided fairly among them, so that all might start, in respect to outward appliances, on equal terms. It is possible also to conceive that in this original apportionment, compensation might be made for the injuries of nature, and the balance redressed by assigning to the less robust members of the community advantages in the distribution, sufficient to put them on a par with the rest. But the division, once made, would not again be interfered with; individuals would be left to their own exertions and to the ordinary chances, for making an advantageous use of what was assigned to them. If individual property, on the contrary, were excluded, the plan which must be adopted would be to hold the land and all instruments of production as the joint property of the community, and to carry on the operations of industry on the common account. The direction of the labour of the community would devolve upon a magistrate or magistrates, whom we may suppose elected by the suffrages of the community, and whom we must assume to be voluntarily obeyed by them. The division of the produce would in like manner be a public act. The principle might either be that of complete equality, or of apportionment to the necessities or deserts of individuals, in whatever manner might be conformable to the ideas of justice or policy prevailing in the community.

Examples of such associations, on a small scale, are the monastic orders, the Moravians, the followers of Rapp, and others: and from the hopes, which they hold out of relief from the miseries and iniquities of a state of much inequality of wealth, schemes for a larger application of the same idea have reappeared and become popular at all periods of active speculation on the first principles of society. In an age like the present [1848], when a general reconsideration of all first principles is felt to be inevitable, and when more than at any former period of history the suffering portions of the community have a voice in the discussion, it was impossible but that ideas of this nature should spread far and wide. The late revolutions in Europe have thrown up a great amount of speculation of this character, and an unusual share of attention has consequently been drawn to the various forms which these ideas have assumed: nor is this attention likely to diminish, but on the contrary, to increase more and more.

Rawls’ problem is caused by starting off with a bad idea of justice. Justice, in short, is simply the virtue of keeping to your agreements.

Anyway, here is Noam Chomsky’s view of Rawls:

Commentary on Michael Sandel

I have watched Michael Sandel’s Harvard course on justice, as well as some of his other public appearances, such as:

TED talk: The lost art of democratic debate

I find myself viewing his performances from different perspectives.

First, he claims as his agenda to promote public discourse on the common good. On this he is deluded. There are countless writings on moral issues. But very few read them. Then there are the speeches of eminent public speakers, such as Chomsky, Hedges, Hitchens, Zinn, Kinzer, Vidal, Pilger; and such programs as Democracy Now, Real News, and all sorts of Progressive publications. But who is aware of any of this? And who will listen to and take note of what Sandel is doing?

Second, he claims to be providing an example of what public discourse should look like. So what is his example? It is to introduce controversial questions, and offer the audience (or students) an opportunity to express their opinions with a reason. This is followed by Sandel’s own (sometimes prepared) commentary — not necessarily to adjudicate from his own perspective. One is left with the questions unresolved.

Third, his approach does not question our political institutions, but raises questions as a way of prescribing what the government should do. He does not seem to realize that our prescriptions to the government are otiose. As an example, in the U.S. preparation for an attack on Iraq in 2003, there were huge protests against this action both in the United States and the world. The result? Iraq was attacked.

The conclusion I draw is that public (democratic) opinion in the U.S. and in most other countries does not much matter.

Fourth, the issue he should be discussing is whether our political institutions function to promote the common good. Apparently, Sandel himself thinks that they do not. But he offers no guidance as to how to improve them.

Fifth, I have fundamental disagreements with him about his discourse on justice. Let me do this by saying something about the four cardinal virtues: moderation (or temperance), fortitude (or courage), prudence (or wisdom), and justice.

Virtues are habits or dispositions. The first three virtues can be exercised by a solitary individual like Robinson Crusoe on an island. The fourth virtue — justice — concerns behavior towards others; let us say of Crusoe towards Friday. And if justice is a habit or disposition, what is this disposition? My simple answer is that it is a disposition to abide by agreements.

And what will be the agreements which Crusoe and Friday make? Their common concern is to stay alive: self-preservation. And to do this they have to have a free access to the land and water for food and shelter — in short, the necessities for sustaining life. So, they will agree on some equal division of land or on some equal mode of access to the necessities for life. They will also agree not to harm each other nor to interfere with their pursuit of these necessities. But I think they would also agree to an exception clause, namely, that these agreements are not binding if they threaten self-preservation.

Justice or morality is the disposition to sincerely abide by these agreements. And injustice or immorality is to act counter to these agreements. That is all.

I know that the usual view of justice has to do with something like an equal application of the law. Well, if, let us say, Crusoe and Friday agree to have a judge or arbitrator — call him Joe, then Joe will agree to use an impartial rule to decide cases. And if Joe abides by such an agreement, Joe will act justly as a judge; otherwise, he will act unjustly by not abiding by the agreement to act impartially.

My sixth and last comment, is that a discussion of justice has to take into consideration history and sociology; specifically, we have to take into account the fact that, as argued by Franz Oppenheimer, in his book The State, states have arisen through conquest, and have morphed from slave empires, to feudal kingdoms, to constitutional democracies and dictatorships. In all cases states have been resilient to moral considerations, and have supported various forms of plutocracy and capitalism.

Core Morality and other types

I offer below an incomplete sketch of my approach to morality. It agrees with much of what Gilbert Harman has written.

Writings on ethics tend to treat two different questions under the title of “ethics.” One is a question of prudent behavior; the other is a question of moral behavior. But, I must admit, that some contexts are such as to raise the perplexing question as to which has priority.

To distinguish the question of prudence from that of morality, let us consider the case of a solitary individual cast away on an island — call him Crusoe. His primary problem is one of survival. Given his desire for survival, he will have to follow, what Kant called, hypothetical imperatives. There are things he ought to do in order to survive. If he has tools, there will be right and wrong ways of using them. Again, if he is interested in efficiency, he must do things in certain ways. Will certain dispositions and habits — call them virtues — serve him well? Certainly. He can strive for happiness, which will be a function of leisure time. But I make no claims about what constitutes happiness. Whatever it is, it will be a matter of satisfying his interests. And since interests vary, so will the ways for reaching happiness. What I want to claim is that the question of moral behavior does not make sense for a solitary individual — unless he lives in a mythical world with another person — a god or spirit.

Let us now introduce another person to the island — call him Friday. I will call core morality the behavior which both of them agree to regarding each other. This will be expressed by rules. And these rules can be negative or positive, depending on what they forbid to be done to each other, or required to be done to each other. Justice will consist of abiding by the freely made agreements. (Agreements may be complicated because of tacit assumptions.)

However, there is also the most important question of trust. Can Crusoe trust Friday, and vice versa? Assuming that both are sincere, this does not settle the question of trust. Whether each is trustworthy is in part determined by their character, or, to put it another way, by their possession of virtues.

They can also agree on how to behave towards plants, animals, and the rest of their environment. Such rules I will call marginal morality.

If we introduce a third person on the island — call him Tarzan, with whom we do not interact, then Crusoe’s agreement with Friday in regard to Tarzan can be called peripheral morality. Peripheral morality may allow us to kill, rob, torture, sacrifice, or enslave Tarzan.

Theories of normative morality have been either teleological or deontological, i.e., based on consequences or based on rules. If I were Crusoe entering into an agreement with Friday, I would agree to the rule:

Neither of us will harm the other, except for self-preservation.

This is the element of egoism that is presupposed in normal core morality. But there is also, what I will call abnormal core morality, which takes place in sports in which the requirement of not harming each other, and the exception of self-preservation are suspended, and what is done is done strictly by the rules regardless of consequences.

This code of honor, as it way be called, requires a strict obedience to the rules with no exceptions for self-preservation. In extreme cases, it has the form: I will do X, even if it kills me; and if I do not do X, I will kill myself. Such was the code of the kamikazi and the samurai.

In making rules, one can also agree to punishments for breach of rules, and also for allowable excuses. Given that we have prudential considerations, sometimes one has to make a judgment call about how to act. Or, as C. D. Broad would say: What is the most fitting way to act under the circumstances?

[See my “Concepts of Persons and Morality“]

Bullshit in Ethics

Before I say anything about my economic and political principles, let me say something about ethics. I am in agreement with Gilbert Harman that moral principles are relative to agreements. And this kind of claim is logically prior to the usual teleological and deontological positions normally defended. This is true especially of rule utilitarianism -– the position which claims that the rules or ethical principles which should be adopted on the basis of universal utility. My position on this is that this is, for the most part, in most contexts, the actual working criterion. But it is not the working criterion for various agreements involving sports -– the limiting case of which is the duel or, worse, Russian roulette, or “chicken.” Many sports involve the risk of injury or even death. Yet, engaging in sports is not considered immoral, and the person who causes an injury or death to his colleague is not deemed to have done anything immoral. Why? Because he has freely agreed to play the sport. And the guiding principle here is that two or more consenting adults cannot do anything immoral to each other. Morality is a function of agreements; not utility.

Richard Hare is the most prolific writer on ethics -– defending utilitarianism. I think I can incorporate most of his ideas into my position when involving cases of general social interaction, cases where we want to legislate, or as Hare would put it, prescribe rules of social behavior. His formal rule is that of universality. This means that the rules we adopt cannot contain proper names. At first blush, it will have the form: for any person x and y, x cannot harm y. But such rules, contra Kant, can be expanded to include exceptions. For example, I would expand this rule to read: for any person x and y, x cannot harm y, except for self-defense or self-preservation.

Hare himself adopts what is called the Impartial Observer, God’s point of view, an ideal Social Contract. In Hare’s case, he calls it the Archangel’s point of view. These are, I think, better than Kant’s criterion of what I would want to prescribe universally. But all these positions are attempts at constructing some ideal. By contrast, my ideal is to have actual persons come together and try to reach an agreement. In other words, I would like to see flourishing communities in which democracy is practiced.

Such communities would no doubt, for the most part, be guided as is Hare by a vision of the common good. But I would like to distinguish Hare’s Positive Utilitarianism from Karl Popper’s Negative Utilitarianism. Positive Utilitarianism wants to promote welfare; negative utilitarianism wants to diminish harm. In this regard we can look at distributive justice as a type of positive utility; and retributive justice as a utility in diminishing harm.

In legislating rules, it is safer to legislate rules which forbid harm than legislating rules which promote the good.

Herbert Spencer, and more recently Robert Nozick, wrote about the danger of legislating for distributive justice. Robert Nozick, in particular, favored an entitlement theory of justice rather than some non-historical ideal of current distributive justice. His position rests on two principles: a just acquisition theory and a just transference theory. I agree with him on this.

The problem with both Spencer’s and Nozick’s recommendations to existing legislative bodies are that they are merely recommendations, which no existing legislative bodies will adopt. Peter Kropotkin advances a solution to this by condemning all such legislative bodies as being the State. Existing legislatures are chosen by ignorant citizens who give power to self-serving politicians.

As Nozick, and before him Marx and other realized, but which was explicitly defended by Franz Oppenheimer, the current States are the consequence of aggression or conquest. Conquest originally gives rise to slavery, which morphs into feudalism, which morphs into capitalism or state socialism.

Marx, Weber, and Franz Oppenheimer are all in agreement that capitalism – the exploitation of workers – is impossible without denying workers access to free subsistence land. Such a pool of potential workers who have no free subsistence land is called the proletariat.

Feudalism gives the peasant land, but it ties him to it, and demands of the serf labor and tribute. With the abolition of serfdom, the free peasant –- especially in Russia –- has to make redemption payments to the former landlord, which made his condition even worse than under serfdom.

In England, with the demand for wool for textiles, the agricultural and common land was enclosed for grazing, depriving the peasants of the means of subsistence and eventually depriving them even of their own land -– converting them into proletarians.