Libertarianism and Social Contract Theory

Libertarianism and social contract philosophy

If I am compelled to wear a label placing me in a political camp, I would declare myself a Libertarian. In truth, I am poor Libertarian because I also hold to a “social contract” theory of governance, similar to that of the Founders of this Republic.  (The Founding Fathers were heavily influenced by English philosopher Thomas Hobbes in establishing America’s First Principles, most notably the recognition of unalienable rights, the Social Compact, and limited government. ) Believing in any kind of "social contract" makes me a "bad" Libertarian. 

As one schooled in the law (JD, Regent University, 1999) I also understand some of the finer points of contract law in the United States.   A lawful contract between competent parties creates performance obligations on both parties.  These obligations are enforceable in a court of law.  Although contracts are usually written (courts prefer to rely on the express terms within the “four corners” of the contract) sometimes performance obligations may arise by virtue of behavior of the parties acting “as though” a written contract was in place.   If the parties communicate to each other that “if I do this, then you will do that” and one party accepts that offer so as to produce a reliance on the promised terms, then a judge may declare those terms to be enforceable. (Google “Detrimental Reliance”). 

The “Social Compact (or contract) philosophy/principle of government argues that social norms are enforced and enforceable by legal, as well as “extra-legal” (i.e. peer pressure, ostracism, etc. ) mechanisms with the result that behavior is “regularized” and manifested by the majority.

When people operate together in society, whether their participation is wholly voluntary or “enforced” by law or traditions or peer pressure, there are “rules” that govern that behavior.  Social stability is enhanced when the majority of people know, accept, and operate within the parameters of those rules (Google “mores”).  We can reasonably be expected to follow the rules because, on the whole, they are to our own advantage.  Breaking the rules tends to undermine them and thereby endangers our own well-being. Social contracts can be explicit, such as laws, or implicit, such as raising one’s hand in class to speak.  Some (many) of my Libertarian friends argue that, unless they individually and expressly consent to “the contract” they should be exempt from any performance obligations.  I argue that if you benefit in any way from the operation of “norms” in society, that that creates a reasonable expectation of “quid pro quo” performance on your part.  The application of this legal principle (apparently) makes me a “bad” Libertarian. 

Too many people today hold the conviction that their own life, and their own choices (for better, or worse) are (or should be) beyond the control of government, OR the “influence” of a higher standard of conduct (morality, religion, local or regional mores, etc.).   I argued recently with a young man that “liberty” as was expressed by the founders of this republic, means mostly the freedom to move on to another place that you might find conducive your own particular standards or lifestyle.  It had LESS to do with being “free to do “your own thing” in the midst of an opposing majority, and expect the law to protect your “right” to do so.   I know…it can be a thin line sometimes, but my study of early American political history and philosophy leads me to conclude that liberty includes the idea that “if you don’t like the way we do things here (in this community), you can leave”.    

While I strongly favor the right of individuals to act in their own self-interest, I hold that this “liberty” is an endowment from our Creator and as such, it is framed by His character and nature.   Logically, if God is the grantor of a fundamental right, that right is both anchored in, and limited by, the character and nature of God.  Ergo, no “right” may ever be claimed as “inalienable” or fundamental unless it is linked to the grantor.  Since God created us to be “in fellowship” or in “community” then those behaviors that will be most conducive to social health will be those in concert with “the laws of nature, and nature’s God”.  This ALSO makes me a “bad” Libertarian.

I was moved to write this blog after returning from a short trip on a public roadway.   There are “rules of the road” and most of these have been codified (made law by an act of the legislature) so that legal enforcement (with punitive sanctions) may reinforce those norms.  One that is NOT codified in my state (but may be in others) is that when a vehicle enters another roadway, they should accelerate quickly enough so as to safely merge with other traffic as quickly as practical.  Many people, aware of the cost of gasoline perhaps, or maybe just operating a lower “wave-length” than normal folks, act in this situation as though they are the only vehicle on the road. They accelerate slowly, forcing others (now behind them) to slow down to avoid rear-ending the slower vehicle.   This same principle applies when drivers operate in the left lane of a multi-lane highway but travel slower than most others in that lane.   (our state DOES have a law against that one).  In this case, it is not a question of obeying the posted speed limit, but rather, of not “obstructing” the journey of others.  It is irrelevant (for purposes of this law) that the slower driver is obeying the posted speed limit.  The law REQUIRES slower traffic to “keep right” (drive in the right-most lane). 

Many Libertarians chafe at any notion of “enforceable” standards of behavior just because those might be acceptable to the majority.    Libertarians are usually very much in favor of very little formal (government) structure and a great deal of personal autonomy.   But Libertarians are also “all over the map” when it comes to how much “regulation” of personal behavior is, or should be, enforceable by state action.  I thought about this dilemma when a slow-moving vehicle pulled in front of me on my way home this morning. 

When people decide to drive automobiles in the U.S.  they agree to obey the “rules of the road”.  These rules include both the codified (T.C.A. or “traffic code annotated”) as well as those rules without specific state-enforceable sanctions.  If you drive in a manner that forces others to halt their own journey, or creates an impediment, or significantly slows them down, you have implicitly violated the terms of the agreement (contract). Your “personal liberty” to drive slowly is now in conflict with the “personal liberty” of one which desires to drive faster.  As long as no safety issue is created, we have now TWO different standards of conduct expressed by two drivers with different philosophies or understandings of the notion of “liberty”.  

Driving a personal vehicle on public roads seems to me an accurate representation of how the social contract theory (principle) works.  If I drive, I agree to obey all laws (explicit) AND to do my best NOT to create an impediment to my fellow drivers (implicit).  That means I will be careful NOT to intentionally pull in front of a vehicle, and that I will accelerate as quickly as possible to avoid causing another driver to alter their speed. Even if it were not the law, I would strive to never to text while driving, nor allow myself to become otherwise distracted while driving.   I think that is the MORAL thing to do. 

The social contract is an implicit agreement (implied contract) among self-interested, rational agents.  According to well-established legal principles this means that we have no enforceable obligation to any person who does not participate in the contract. If you do not want to pay taxes for roads, you may not use the roads.   The same applies to any legitimate function or service of government. (Legitimate, for purposes of this article, means Constitutionally permissible or required. It specifically excludes any act of any legislative body that is acting, or has acted outside of that scope.)  If you benefit from the regulation of government in civil society, then you cannot (morally) be opposed to accepting the performance obligations that accompany that benefit. As with my driving illustration, just try to keep up. 

John Sterling

June 30, 2017