legitimate action and the implicit contract
PHIL 1000
Apr 7, 2003
The Social Contract theory is a philosophical device that serves many purposes. One major function is an attempt to determine the relation that a person has to the state and the nature of obligation a citizen has to his country. There is great debate among the Social Contract theorists to how we enter into the contract and how that has an effect on the obligations we have. It is also a question of whether or not legitimate action can exist if the social contract is a myth. If we do not actually enter into the contract then it is not justified for a ruler to impose laws and regulations on its citizens.
There is great debate among social contract theorists as to how we enter into this contract. It would seem that a contract of this importance and consequence would call for some ceremonial signing, but most feel that implicit consent can be binding enough to justify legitimate action. In the case of the American constitution, arguably the first society to actually write out a social contract, it was created before any of its current citizens were even born, so how can you be born into a contract of that nature and importance? Rousseau relates this idea to a person being born a slave based on the fact that his parents are slaves. It is not in our control to be born into a certain situation of a society. Many have responded to this problem by explaining that when we reach the legal age of majority, we implicitly sign this contract by remaining in the state and participating in its legal arrangements.
John Locke agrees with this argument with an emphasis on the ownership of property. In his, “Second Treatise of Government” he argues that when a person enjoys a part of the land, he belongs to that state and must adhere to its laws. If this person quits their land by selling or giving away their property, they are free to leave and join another commonwealth. This consent, Locke explains is ‘tacit’, or not explicitly stated. How is it that we can be bound to a contract that is only implied? Locke’s argument is dependent on the assumption that a person can easily pick up and immigrate to another country. This may have been true in the past, but it has become much more difficult to change your citizenship. It is not only devastating to a person’s economical state but to their overall sense of community. In our most extreme cases of tyrannical states, many would not be allowed to leave their country any other way than by risking their lives. Because he is reliant on this argument, it has become very outdated and presumptuous. If someone chooses a land and chooses a ruler, it seems unreasonable that they would have to leave their country if there was some dispute over laws or policy that they have arguably created.
Thomas Hobbes, in his “Leviathan” also argues that this contract is not an explicit one. He explains that we enter the contract through the mutual transference of rights. This can come in the same form as buying, selling or exchanging our property. He defines two different signs of a contract. They can either be express or inferred. Express contracts are signed by speaking phrases such as, “I give”, “I promise” or “I grant”. The words are spoken with complete awareness of the significance of their words. A contract by inference could be either the result of words, silence or action. In the second case, the contract is very tacit, but Hobbes holds that this contract is just as binding as one signed on paper, so long as the contract is mutual.
Hobbes and Locke rely on the assumption that we have signed a contract in order to justify political obligation. If they cannot trace this obligation back to the actual formation of the contract, then they cannot say that the actions of a state, or the state itself are legitimate. If they could show that there was an actual formation of a contract, it would be possible to show that there is a moral obligation to follow the laws that a ruler imposes. It would be the laws that the citizens in fact choose. Democratic leaders justify this position by explaining that they are elected by the people and therefore speak for the people. As Wolff puts it, “through the device of the social contract, the people become the rulers.”(1998, p. 164) Rousseau recognized the problem in this and knew that not all persons are involved in law making: “If the state is not kept small enough for everyone to participate in law-making, then so far as he is concerned, tyranny replaces liberty.”(Wolff, 1998, p. 165) How is it that a person can make a law, when he is not even active in the process of the legal system? Even if the chance is slight of the elected ruler corrupting the law, the consequence is of great measure. Even greater the consequence if, as Hobbes argues, revolution is not justifiable. Rousseau also feared that society could be corrupted if people’s interests stray from the political activities of the state and move towards the interests of their wallets. There is a tendency for people to focus on power and self-gain and therefor they will either become vested in the advancement of his own person, or just simply become distracted from the politics in general.
Some theorists, Locke included, believe that the majority opinion is sufficient for the creation of a law or policy. They do not assume that social disagreement of laws and the like will not arise in a state and because of this, they depend on the assumption that the majority opinion is in the right. We know from overwhelming historical evidence that this is not true. Many major revolutions in thought and theory have come from a minority opinion fighting against an often aggressively opposing majority. Even more simply though, if I am voting against a proposed law and believe that it is a wrong one, even though most wish for it to be passed, “how can I be said to ‘obey only myself and remain as free as before.’”(Wolff, 1998, p. 168)
In order for a contract to be binding, we must have somehow entered into it. For such a significant contract as this one, implicit or tacit consent does not suffice. Even if tacit consent is as binding, a person must know the contents and stipulations of the contract they are signing onto. Because we are born into this contract, many do not even question it. The overwhelming majority of our society is ignorant to their rights and laws. It has also been shown that the authority and the state at times withhold this information from the public in order to take advantage of their own positions. The police do it all the time. You can argue that it is the responsibility of the citizen to educate themselves in their laws and history of their society, but most do not contemplate their obligations until they take OAC Philosophy or law, both elective courses. We have been raised to do as we are told without question of the law. We give explanations to our actions by saying things like, “we have to. It’s the law” instead of things like, “I abide by the laws that I have made”. Without the actual formation of the Social Contract, in Locke and Hobbes’ theories, legitimate action of a state can not be justified and therefor without the proof that the contract exists, they cannot say that our government is justified in their control.
Audi, Robert (Ed). (1999). The
Apr 7, 2003
The Social Contract theory is a philosophical device that serves many purposes. One major function is an attempt to determine the relation that a person has to the state and the nature of obligation a citizen has to his country. There is great debate among the Social Contract theorists to how we enter into the contract and how that has an effect on the obligations we have. It is also a question of whether or not legitimate action can exist if the social contract is a myth. If we do not actually enter into the contract then it is not justified for a ruler to impose laws and regulations on its citizens.
There is great debate among social contract theorists as to how we enter into this contract. It would seem that a contract of this importance and consequence would call for some ceremonial signing, but most feel that implicit consent can be binding enough to justify legitimate action. In the case of the American constitution, arguably the first society to actually write out a social contract, it was created before any of its current citizens were even born, so how can you be born into a contract of that nature and importance? Rousseau relates this idea to a person being born a slave based on the fact that his parents are slaves. It is not in our control to be born into a certain situation of a society. Many have responded to this problem by explaining that when we reach the legal age of majority, we implicitly sign this contract by remaining in the state and participating in its legal arrangements.
John Locke agrees with this argument with an emphasis on the ownership of property. In his, “Second Treatise of Government” he argues that when a person enjoys a part of the land, he belongs to that state and must adhere to its laws. If this person quits their land by selling or giving away their property, they are free to leave and join another commonwealth. This consent, Locke explains is ‘tacit’, or not explicitly stated. How is it that we can be bound to a contract that is only implied? Locke’s argument is dependent on the assumption that a person can easily pick up and immigrate to another country. This may have been true in the past, but it has become much more difficult to change your citizenship. It is not only devastating to a person’s economical state but to their overall sense of community. In our most extreme cases of tyrannical states, many would not be allowed to leave their country any other way than by risking their lives. Because he is reliant on this argument, it has become very outdated and presumptuous. If someone chooses a land and chooses a ruler, it seems unreasonable that they would have to leave their country if there was some dispute over laws or policy that they have arguably created.
Thomas Hobbes, in his “Leviathan” also argues that this contract is not an explicit one. He explains that we enter the contract through the mutual transference of rights. This can come in the same form as buying, selling or exchanging our property. He defines two different signs of a contract. They can either be express or inferred. Express contracts are signed by speaking phrases such as, “I give”, “I promise” or “I grant”. The words are spoken with complete awareness of the significance of their words. A contract by inference could be either the result of words, silence or action. In the second case, the contract is very tacit, but Hobbes holds that this contract is just as binding as one signed on paper, so long as the contract is mutual.
Hobbes and Locke rely on the assumption that we have signed a contract in order to justify political obligation. If they cannot trace this obligation back to the actual formation of the contract, then they cannot say that the actions of a state, or the state itself are legitimate. If they could show that there was an actual formation of a contract, it would be possible to show that there is a moral obligation to follow the laws that a ruler imposes. It would be the laws that the citizens in fact choose. Democratic leaders justify this position by explaining that they are elected by the people and therefore speak for the people. As Wolff puts it, “through the device of the social contract, the people become the rulers.”(1998, p. 164) Rousseau recognized the problem in this and knew that not all persons are involved in law making: “If the state is not kept small enough for everyone to participate in law-making, then so far as he is concerned, tyranny replaces liberty.”(Wolff, 1998, p. 165) How is it that a person can make a law, when he is not even active in the process of the legal system? Even if the chance is slight of the elected ruler corrupting the law, the consequence is of great measure. Even greater the consequence if, as Hobbes argues, revolution is not justifiable. Rousseau also feared that society could be corrupted if people’s interests stray from the political activities of the state and move towards the interests of their wallets. There is a tendency for people to focus on power and self-gain and therefor they will either become vested in the advancement of his own person, or just simply become distracted from the politics in general.
Some theorists, Locke included, believe that the majority opinion is sufficient for the creation of a law or policy. They do not assume that social disagreement of laws and the like will not arise in a state and because of this, they depend on the assumption that the majority opinion is in the right. We know from overwhelming historical evidence that this is not true. Many major revolutions in thought and theory have come from a minority opinion fighting against an often aggressively opposing majority. Even more simply though, if I am voting against a proposed law and believe that it is a wrong one, even though most wish for it to be passed, “how can I be said to ‘obey only myself and remain as free as before.’”(Wolff, 1998, p. 168)
In order for a contract to be binding, we must have somehow entered into it. For such a significant contract as this one, implicit or tacit consent does not suffice. Even if tacit consent is as binding, a person must know the contents and stipulations of the contract they are signing onto. Because we are born into this contract, many do not even question it. The overwhelming majority of our society is ignorant to their rights and laws. It has also been shown that the authority and the state at times withhold this information from the public in order to take advantage of their own positions. The police do it all the time. You can argue that it is the responsibility of the citizen to educate themselves in their laws and history of their society, but most do not contemplate their obligations until they take OAC Philosophy or law, both elective courses. We have been raised to do as we are told without question of the law. We give explanations to our actions by saying things like, “we have to. It’s the law” instead of things like, “I abide by the laws that I have made”. Without the actual formation of the Social Contract, in Locke and Hobbes’ theories, legitimate action of a state can not be justified and therefor without the proof that the contract exists, they cannot say that our government is justified in their control.
Audi, Robert (Ed). (1999). The Cambridge
New Jersey
Western World, 33.
Philosophy.
Western World, 35.
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