March 31, 1999
Tibor R. Machan, Jan Narveson

Contents

• Introductory Remarks
• Tibor R. Machan
• Jan Narveson

Introductory Remarks by David Theroux

Good evening, ladies and gentlemen. My name is David Theroux, and I’m the president of The Independent Institute. I am delighted to welcome you to our Independent Policy Forum on the legal basis structure of a free society. This evening’s program is part of an expanded series of lectures, seminars, debates, and panel discussions at the Independent Institute.

As many of you know, The Independent Institute regularly sponsors programs featuring outstanding authors, scholars and policy experts to address major social and economic issues, especially as they may relate to important new books. And, today is certainly no exception. Tonight in particular, we are also delighted to be featurinbg a book sponsored by the Independent Institute, Private Rights & Public Illusions, authored by Professor Machan. Don’t leave here without one!

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The subject of liberty has been at the root of the American story from its inception. Yet, what liberty is and the role it rightly plays in society has been been hotly debated throughout our history. Do individual rights to choose and live freely conflict with claims for entitlements for health, welfare, safety and the environment? Or, is individual liberty and a society under a uniform Rule of Law the requisite to achieve a humane society?

While with the collapse of the Soviet Union, state-socialism is widely discredited in most parts of the world as a viable form of government, leviathan lives on, as Nobel Laureate economist James Buchanan has stated.

But is collectivism itself immoral? Is collectivism fundamentally dysfunctional economically and socially? If so, then many of the most cherished beliefs in American popular and intellectual culture are in serious need of re-examination.

Today, government plays a pervasive role in virtually all aspcets of our lives. The decisions of politicians and bureaucrats not only reach into our bedrooms, our jobs, our bank accounts, all that we consume, but also into the lives of people around the world, whether they live in Kosovo, Kenya, or New Delhi.

This evening, we are privileged to have two distinguished philosophers who will debate and discuss the issue, “Why Freedom?”

The format we will use is to have each speak for about 20 or minutes and then each will have five minutes to respond to each other. We will then open up the discussion for questions from the audience.

To begin the program, our first speaker is Tibor Machan. Tibor is Distinguished Professor of Philosophy at Chapman University, research fellow at The Independent Institute, Fellow at the Hoover Institution, and editor the journal, Reason Papers, which is beinning its 28th? year. He received his Ph.D. in philosophy from the University of California, Santa Barbara, and he has taught at Auburn University, University of San Diego, Franklin College, U.S. Military Academy, State University of New York at Fredonia, and California State University, Bakersfield.

Professor Machan is the author or editor of many books, including Capitalism and Individualism, Commerce and Morality, Human Rights and Human Liberties, Individuals and Their Rights, Introduction to Philosophical Inquiries, The Libertarian Alternative, The Libertarian Reader, Liberty and Culture, The Main Debate, Marxism, and Rights and Regulation. Dr. Machan has contributed to over thirty scholarly volumes, and he has authored nearly 100 articles and reviews in scholarly journals around the world. His articles have appeared in The New York Times, Los Angeles Times, Chicago Tribune, and other newspapers. Tibor has been devoted for three decades to advancing serious discussion of classical liberal political philosophy, and we are delighted to have him with us.

Tibor R. Machan: Why Agreement Isn’t Enough to Justify Liberty

Social compact theories attempt to explain the rationale for social or political norms, though arguably some include principles of personal conduct as well. I will argue here that social compact theories are inadequate. A sound political system not only needs agreement but logically prior non-conventionalist ethical principle(s) or, alternatively, natural drives (for example, the drive for self-preservation). Their success must in part rest on such elements that are not usually mentioned. The position I argue against is that social compacts by themselves, involving agreements by members of a community, can establish binding norms of any sort whatsoever.

Briefly, nothing follows from everyone concerned agreeing to abide by some guidelines unless agreements themselves have normative significance. And this cannot derive from a still prior compact, ad infinitum. Unless there is some prior norm that binds an agreement, the agreement fails to obligate. It contains no rationale committing anyone to do anything. That is, norms resulting from agreements have moral force only if promising, independently of any agreement making it binding, has moral force. That is to say, a rational individual can grasp that one ought to act this way even without sanctions.

The other option is that there is some inborn motive or drive that impels those who are party to a compact to live by it. Then the norms will be binding not because of the agreement but because the agreement had to be made (so as to secure safety or preserve life).

Yet many in political philosophy and theory appear to hold that without any prior ethical norm or natural drive guaranteeing the requisite behavior (at least among normal parties to the compact) a social compact can set up binding and enforceable guidelines.

After my critical remarks I will sketch an approach to establishing social or political norms that captures some of the appeal of social contract theories yet also avoids the problem of their lack of support on anything other than agreement or consent. Social contract theories, I argue, implicitly assume that prudence is a moral virtue (or a natural drive), one that we ought to (or will be motivated to) cultivate and in line with the dictates of which we ought to (or will) agree to the provisions of a social compact.

To start with, it is useful to note that in, for example, Kant and Rawls, the alleged contractual basis for the legitimacy of law and government is supplemented with the very strict requirement of self-consistency of the resulting norms. Once this element of internal consistency is isolated and set aside, what is left of the social compact basis of norms and law is very meager and inadequate.

One might, however, argue that self-consistency is something demanded of every theory—it is a meta-theoretical criterion that goes without saying. So if this self-consistency requirement places serious, binding constraints upon what may be contracted for via a social compact, then agreement alone renders the content of the social compact binding. But if such self-consistency is not inherent in a system that rests on agreement but is, rather, a distinct normative requirement, this suggests that normativity—the relevance of value judgments—is not something easily dispensed with in any sphere of human concern.

Still, does rationality need to be a prerequisite for any social compact? It may not be an inherent requirement of such a compact to involve participants who respect rationality. If some were to promote the idea that we ought to unite and reach agreement on irrational rules to govern us, it may obtain support and agreement on such rules may be reached. We know, for example, that many irrational groups exist, such as gangsters, gangs or other cabals the purposes of which are, as it were, crazy. Terrorists might be regarded as such, as might the Nazi Party or the Skinheads, each of which might establish their rules on the basis of nothing but agreement without these rules having any moral force. That the objectives or purposes sought by way of such irrational rules couldn’t be conscientiously and consistently implemented, acted upon, is, of course, just my point: something aside from an agreement is needed to establish viable, coherent and morally binding social compacts.

Let me spell this point out further. To deny that rules born out of a social compact resting entirely on agreement can be irrational flies in the face of history and common sense. Clubs, organizations, institutions, and other human groups that clearly embrace irrational ideas surround us. These they incorporate as their proposed guiding principles of conduct. Yet to claim they have moral force is to imply that they have moral legitimacy. Yet the substance of the criticism of such groups is precisely that they lack moral legitimacy. So such agreed to rules could arise from a social compact without being morally binding—who would morally blame someone who, upon a change of heart, decided to violate the norms of the Nazi Party.

Hobbes may be a better representative of nearly pure social compact theory. For Hobbes the gist of the story is simple: when scarcity and congestion reach a critical mass in the state of nature, the self-interested motivation of individuals drives them to convene and reach a consensus. They will then devise certain rules of social life which a monarch or government is to make sure everyone obey by imposing strict sanctions against law-breakers. At this point everyone gives up the “natural rights” that each possesses in the state of nature, except for the right to resist being killed.

In Hobbes’s version no content for the rules is specified, though it is assumed that they would aim for the maintenance of peace and preservation of human life. Hobbes saw peace as the only public good. In the Kantian-Rawlsean version of social compact theory, however, more is assumed required of than the mere laying down of rules—they must be rational, fair, etc.

What is so appealing about the Hobbesian idea, especially among supporters of the enlightenment based liberal tradition of politics? It seems well suited to the task of providing an empirically based explanation of the content of preferred laws. Even Kant embraced this for the phenomenal world—e.g., in his discussion of how people pursue happiness as a matter of natural necessity—where the practical task of politics is to be realized.

The following considerations that are satisfied by social contract theories accommodate the liberal goal of anti-authoritarianism and scientific respectability: (1) Human actions must be explained by reference to motives (as distinct from purposes, for example). (2) Nature provides no guidance to judging something good or bad. (3) Morality is non-cognitive. (4) People lack freedom of the will, at least from the scientific, practical point of view. And (5) human conduct is neither morally right nor morally wrong except as a matter of its relationship to certain social goals.

According to the empiricist-scientistic viewpoint, prior to being bound by their own uncompelled choices (which in the last analysis come to hypothetical revealed preferences, so as to accommodate empiricists standards), members of a social group cannot be bound by moral standards. By this understanding of human life it isn’t the case that people ought to live in certain ways rather than others. That would imply that they could do otherwise, that they possess free will and might be free in the sense of initiating their own conduct apart from not being compelled by others. Instead, they will be inclined or driven—naturally motivated—to do so.

Some dismiss this point on grounds that the idea of free will, such that one causes one’s own conduct, makes no sense and so morality could not involve the provision of free choice—that “ought” does not imply “can.” For them Hobbes, a mechanical materialist, could have a bona fide moral system, since all that means is that he could promote certain kinds of behavior and discourage others. For such folks ethics or morality isn’t a matter of choosing, on one’s own initiative, to do the right thing but of behavior in line with certain rules.

It is this view that seems to me to have recommended the social compactarian stance. With the demise of the classical idea of natural law (namely, that human life has an end and that freely chosen, self-caused right conduct ought to and can further this), the hypothetical social compact thesis resurrects some semblance of respect for social moral and legal principles. But this leaves us with an argument about the very nature of morality, including of social moral norms—are they ways we are driven to behave under certain optimal circumstances or are they ways we ought to come to behave on our own initiative? It is this last that was the idea of ethics or morality prior to the empiricist-scientistic era. Instead of dismissing morality entirely, as some champions of scientism would do, for others something had to be said in response to our moral concerns.

Let me put this in somewhat different terms. If the only hope for some semblance of moral and political standards arises within a deterministic framework, the place of such standards will be taken by some instinct or innate motive, that is, a force akin to other forces in nature. For Hobbes that innate motive was self-preservation or survival. It is this that drove people to form a social compact, even if he spoke on and off about this amounting to morality. (Philosophers often try to link concepts that do not really mesh.) So the theoretical role assigned to natural law (or some other way of understanding basic ethical norms) was assigned by Hobbes to a basic instinct or innate drive, never mind that he kept some of the older language of ethics or morality in place.

In both cases, the social compact does not contain the full measure of normativity sought from it. Simple agreement does not generate bona fide moral norms arising from the (hypothetical) social compact. Instead, either an innate biological or psychological drive or some prior natural (moral, ethical) law is needed. And it will not do to recast the meaning of “moral” so now what is in fact a natural drive amounts to a moral decision.

Without the scientistic transformation, the Hobbesian story plays out this way: When someone considers entering—or, more realistically, remaining within the framework of—a social compact (necessitated by scarcity and congestion in the state of nature), the question arises: “Ought I to join in the search for some way of solving our problem?” In other words, there must already be standards for making the right choice about doing so. This standard is very likely what is called prudence: we ought to take reasonably good care of ourselves, including when we embark upon social life.

It is not cogent to deny that such a question can arise, based on the view that entering the convention is a matter of being driven to do so out of fear, for if we are determined to behave as we do, then this will hold following the social compact, so not judgments as to what we ought to do will be applicable. If “ought” implies “can,” then this holds before and after the social compact. But if it holds before, then there can be standards of ascertaining what one ought to do prior to the compact.

A quite recent example of social compact theory is advanced by Jan Narveson, in his The Libertarian Idea. He characterizes his version of this approach as the view that “the principles of morality are (or should be) those principles for directing everyone’s conduct which it is reasonable for everyone to accept. They are the rules that everyone has good reason for wanting everyone to act on, and thus to internalize in himself or herself, and thus to reinforce in the case of everyone.”

Here is how Scanlon puts the point in his defense of the contractarian approach:

But this is problematic because it builds into the social compact the requirement of reasonableness, yet, as we just saw, agreement by itself need not involve this at all. The normative requirement that we ought to be reasonable cannot be assumed as constitutive of agreements and, thus, of social compacts. Some who consider agreeing could ask, “Why should we be reasonable?” Granted, this may seem like a silly, even incoherent, question to some. Yet it is certainly one that has been raised by philosophers and, especially, some literary and religious figures. It may not be reasonable to have faith in God but many believe that that is just what we ought to have. It may not be reasonable to indulge one’s momentary feelings or passions, yet there are famous figures throughout history who have promoted this notion. Why are they wrong? Why should we follow reason instead of fancy, as Socrates had advised?

The contractarian stance does not answer that question but simply takes the indispensability of reasonableness for granted. As Narveson puts the point, “Those who insist on being unreasonable aren’t being metaphysical drop-outs; they are simply being sociopaths, and social contract theory explains very succinctly how to deal with such people: no contract, nothing is disallowed, and you do whatever you think necessary, period. If the ‘unreasonable’ don’t like that, then they have their answer to the question, ‘why be reasonable’.”

Yet isn’t it philosophically impoverished to provide this kind of answer to all those who have championed unreason, all those who have maintained that being reasonable is in some ways sectarian, biased or an expression of Western prejudice? Such people may be wrong but they need not be sociopaths, as are the inhabitants of the institutions for the criminally insane. If only those in such institutions defended unreason, all the efforts by certain philosophers and others to rebuff, for example, the post-modernist zeitgeist, with its very large dosage of irrationalism, would be pointless and wasted. It might not be easy to reorient irrationalists toward reason. But that the effort is made repeatedly suggests both that many who are capable of being reasonable choose not to be and that most of us see hope of convincing some such champions to become reasonable (perhaps by appealing to some modicum of reasonableness they do exhibit).

The answer to why it is wrong to be unreasonable could very well amount to a non-reducibly lengthy philosophical and related story—for example, something along lines that we are by nature rational animals; that nature, in turn, is a rational order, not some random, chaotic mess, and that for us to deal with nature successfully it is vital that we be reasonable. This answer, in turn, requires (at least now and then) a defense—it has to be shown to be true, not simply taken for granted. And for that purpose it isn’t sufficient to rely solely on common sense. And even if it isn’t going to convince those with an entrenched irrationality, they will at least help us to guide ourselves, including in how we ought to deal with irrational persons.

There are other problems with contractarianism, too, among them its fundamental limited egalitarian stance which is often taken for granted by its champions. The parties to the contract are viewed as having equal standing. yet why so? What if some are born with superior sensibilities and thus were in a better position to decide what rules ought to guide all of us? This egalitarian assumption needs to be defended, not just assumed, yet social compact theories typically start with the view that parties to the compact possess an equal measure of required sensibilities (e.g., prudence, self-regard).

Furthermore, if prior to the compact certain ethical standards had already bound us, then social compacts could be taken as ill formed. They should never have been entered into, etc. Prior to entering an agreement, one might have to decided whether to enter it—on certain ethical grounds. Indeed, given that social compact theory is often invoked to justify laws (or systems of rules) that reach far into the future, past the life plans for those who might have taken part in the agreement itself, one can easily raise the question of whether the contractual provisions of those in the past deserve respect. Should we be loyal to the US Constitution, for example? How about the United Nations’ Charter? Or the laws that arise from Hobbes’ social compact or Rawls’ compact forged behind the veil of ignorance? That would raise the issue of what grounds there may be for dismissing some of the provisions of these and other social compacts? Are such grounds themselves valid only because some later assembly of citizens have affirmed them? Or don’t these documents qualify as social compacts and why is that? And aren’t there many who disagree about that issue and what are we to do about them—is there some agreement, some social compact that will provide the answer to that question? An infinite regress looms here, I contend.

These are objections to social compact theory that need to be addressed. I do not believe they can be, successfully. The question that remains then is whether and where the social compact approach, given its shortcomings and given that from different philosophical perspectives it would not be necessary, is still required. I believe its power rests mostly on the scientistic, non-normative understanding of human conduct whereby we are driven to act as we do by inborn psychological dispositions that we cannot resist as a matter of choice.

Once, however, the theoretical power of empiricism and scientism has been lifted, I think the appeal of social compact theory would be narrowed considerably. In other words, while agreement may be important for purposes of implementing certain principles, it isn’t agreement per se that makes those the principles that we ought to adopt for purposes of community life.

Why do social compact theorists reject a substantive ethical approach to grounding politics and law? As Narveson puts the point, the answer is easy: “There are people out there, apparently, who don’t agree with the Greeks about how to live—or anyway, don’t seem to....Aristotle is telling us how to be happy, and if he’s right and we genuinely disagree, then we shall be unhappy. So what? What business is it of [anyone] whether I am unhappy?”

The problem with this response is that the same can be said about the results of the social compact. Narveson and others tell us that we ought to let everyone be free. But there are people out there, not just apparently, who do not agree with Narveson about how we ought to act toward one another as human beings, as fellow citizens, as neighbors, etc. So what if we are not free? We simply won’t be able to do as we want to, so what’s wrong with that? Where is there a good reason, other than some people’s agreement, that freedom is better than, say, full equality or conscripted service to the gods or some other goal?

Put differently, there is just as much trouble about agreeing with Narveson as there is with Aristotle. This is of no philosophical consequence. In part philosophy is done so as to convince people of what they do not now believe, be it done by Aristotle and his students or Narveson and his. Social compact theory does not escape the problems we face because of disagreements among us. It is no less difficult to guarantee the acceptance of the case for principles that arise from a supposed social compact than ones that arise from Aristotelian arguments. If it were, social compact theory would long have produced the results Narveson believes follow from it, namely, widespread agreement about the value of individual liberty and the resulting protection of that liberty throughout human societies.

It is more likely that theories of all kinds will find skeptics who reject them. The issue that remains is which theories are better. If it turns out that people in fact ought to strive to be happy, then that is a premise with which our thinking about how we ought to live must contend. It must contend with it when we consider what kind of communities are best suited for us, since ones that disallow our striving to be happy will fail us. It turns out that the free society is most conducive to the pursuit of happiness—it is no accident that the American Founders concluded this after much consternation about what kind of society they ought to found.

All this does not mean anyone can impose the vision of how to live on anyone else, not even that anyone is authorized to try. One’s business is learning how we ought to live is just that, learning it and doing it and, maybe, telling it here and there. Not making anyone conform. But once one has learned it, one can continue to try to figure out the implications of this view for social and political life. It turns out that the political framework that makes the pursuit of happiness possible, given how varied such a pursuit can be, also makes possible the rejection of that pursuit or the pursuit of unhappiness or godliness or cleanliness.

In any case, the case for liberty or individual autonomy inspired by the Aristotelian tradition of moral philosophy does seem to hold out philosophical promise. Aristotle’s naturalism, since it abandons the Platonic aspiration for timelessly fixed natures from which eternal standards of good and bad, right and wrong, may be derived—not, however, deduced, because of what Hume has taught—gives us a reconceptualization of what is meant by “the nature of X.” This can produce a revitalized naturalistic ethics, one that resists Moore’s open question approach (for reasons too complex to spell out here and ones I have provided elsewhere ).

In terms of the best classification of what it is to be a human being, one can learn what a good rendition of such a being would come to, which, since human beings are free, responsible agents, provides us with norms we ought to choose to apply in our own lives. Being distinctive as potentially rational animals, human beings are at their best if they choose to actualize this potential to live rationally, to be reasonable. This is a plausible candidate for an ontological foundation for the ethics social compact theory only presupposes without argument. It implies, furthermore, that insofar as we are social beings, with the requirement of some type of community, we face the question as to what kind of community will be most hospitable to our task of choosing to live rationally, the right way. The standards of such a community are, among other ingredients, our basic, natural, rights that all members will be required to observe and won’t be able to violate with impunity.

The social contractarian aspect of this way of thinking of political norms include, most prominently, what an economist might call the ultimate exit option: no one may be coerced to remain part of the community, the consent of the governed is required for government to have authority to administer the (just) laws. But no one may “consent” to governmental deeds that would be immoral to do in private.

So what remains of social compact theory is, indeed, very important: namely, the value of freely reaching agreement among human beings, and the justifiability of certain kinds of efforts to reach it. For instance, when participants in the polis can and do in fact agree on how to maintain and preserve appropriate standards of social justice (as well as on who should administer the effort), something crucial to the lives of the participants is achieved—the efficient preservation of the conditions of proper social intercourse. The compact is, as it well, the will that is needed to apply the norms. Human beings, who have free will, do not always do what is right vis-à-vis their fellows and to impress them with the need to abide by the proper norms, force is sometimes needed. Such force would be ineffective if the political will didn’t back it. If, as the liberal tradition holds, the proper norms provide individuals with the jurisdiction over their significant actions, they would be the first to be involved in political action, that being within the range of significant actions.

To put the matter plainly, it isn’t sufficient to learn of the true principles of justice, it is also vital to apply them and that would not be possible without widespread agreement—i.e., a social compact or contract.

But, here the compact is not the ultimate basis of social or legal norms, let alone of personal ones. Instead, it is implied by prior ones or some aspects of them—e.g., individual sovereignty—to be the method by which political (meta)norms can and will be upheld, interpreted and enforced in society. That method—in the Western legal tradition referred to as “due process”—is itself always open to evaluation—that is how one can tell whether a system is corrupt or flawed in some other way. When consent secures the method to achieve due process, something enormously valuable happens: the prospect of success (because willing and possibly rational or prudent) in the maintenance of justice.

Where social compact fails is as the first word about social and political norms. Social compact will not suffice as the grounding of how we ought to live in each other’s company—mere agreement does not establish what is socially or politically right. For that we also need first to have a clear enough idea—if only, perhaps, in very general terms—of how we ought to live.

David Theroux

Thank you, Tibor. Our next speaker is also a distinguished and widely published political philosopher.

Jan Narveson is professor of philosophy at the University of Waterloo in Canada. He received his Ph.D. in philosophy from Harvard University and his books include The Libertarian Idea, Morality and Utility, Political Correctness: For and Against (with M. Friedman), For and Against the State (ed. with John Arilyn Sanders), and Moral Issues. Professor Narveson has been a contributor to many scholarly volumes, and he has served on the editorial boards of such journals as Dialogue, Ethics, Philosophical Research Archives, Journal of Social Philosophy, and Social Philosophy and Policy. A member of the Royal Society of Canada, he has also taught at Stanford University, Johns Hopkins University, Bowling Green State University and the University of Calgary.

It gives me great pleasure to welcome Jan Narveson.

Jan Narveson: Comments on Tibor Machan’s Critique of the Social Contract Theory of Justice

“I argue here,” says Tibor, “that social contract theories, aimed at establishing norms for community life, are inadequate without some logically prior non-conventionalist ethical principle(s) on which they must in part rest.” This is a charge that could be pressed in different ways. I discern about a dozen strains of argument in his paper. (They may not all have shown up in his more informal presentation today.)

1. The Status of Promises, Agreements, Contracts, Commitments

Tibor’s particular way seems to be this: “Nothing at all follows from everyone concerned promising to abide by some guidelines, since unless there is some prior norm that binds us to what we promise to do, these promises contain no rationale committing anyone to do anything.”

Whether he has a point there depends very much on what he means by a ‘prior norm’. To philosophers in the present audience, I expect, a threat of infinite regress looms before us. Now, it cuts both ways, in fact. If anybody wants to argue that anybody is committed to anything, he needs to explain why. If his argument is that we are somehow committed to keep our commitments, he has the problem Tibor appears to think that only we contractarians have. If it is not that, however, then one would like to know why he thinks it’s a big deal for us in particular.

If you say, “I promise to do x”, you have, so far as I am concerned, told me that you have accepted a commitment to do x. If you break this and I then complain about this, can you reply by saying, “So I said ‘I promise’—so what? Why should that be thought to prove anything?” Most of us, I think, would conclude that you are engaging in sophistry or didn’t know what you were talking about. And yet we obviously don’t think that you had a commitment to do x prior to your promise to do it. Promises commit because that’s what they’re for: to promise is to convey to others that you agree that you are committed to doing whatever it is you promise. No further principles or norms are required.

Social contract, however, is a more fundamental explanation of norms, including that one. It does not particularly involve promises and commitments of the usual kind; they are a special case from its point of view. (The law of nature that we are to keep our agreements is the third, not the first, of Hobbes’ ordered list of Laws of Nature.) What the social contractarian says is that there are certain norms such that it is reasonable to recognize those, and to act on them provided others do too, because to do so is advantageous, given social circumstances. The social contract theory is an answer, and so far as I can see the only credible answer, to the question of the “origin” of norms—to what makes sense of general social norms from the rational point of view.

Tibor later makes the odd suggestion that the person who asks to opt out of some clause he’s agreed to, deciding that he “ought to have said so before agreeing to it”, has made a “moral claim that has its basis not in a prior contract but in something more fundamental.” I find this puzzling. In any actual contract, we can ask for a renegotiation. If we don’t get it, we can elect to pay the penalty clause rather than carry through on our specific part of the contract. That is an option we simply have, and it’s inherent in any contract or compact.

That said, we should also remember that the level we are talking about, namely the selection of fundamental principles by which everybody is to guide his or her actions in relation to everybody else, is such that we are going to have a very small selection of principles. Certainly we will not go for Rawls’s second principle, which is a muddle, but I have long insisted—backing up the classic philosophers on the matter—that we will indeed accept a single general principle of liberty. This principle makes it wrong to use force against those who have not in turn used force against others. ‘Deciding to change our mind about this” is deciding to go ahead and use force against the innocent—that is, to declare war on them. But you didn’t ask them about that, I notice. And the implication of opting out of that is that you’re in for a fight, one which, if the rest of us play our cards right, you will lose. If general principles for all are our object, then that’s the only option there is for deciding to use force: if it’s OK for me, then it’s necessarily OK for you, too. Tit for tat.

2. Does Contractarianism require “prior values”?

A very different kind of objection to the social contract idea (or perhaps just a more general one) goes like this. Each supposed participant in the social contract must have values before he can be motivated to engage in contracting at all. Therefore the social contract cannot provide the fundamental explanation of norms.

The reply to that one is easy, but raises a general point about the theory that it is absolutely crucial to understand from the start. Social contract provides a fundamental explanation of morality. It does not provide, nor does it purport to provide, a fundamental explanation of all kinds of values in general. As I point out in my book, The Libertarian Idea, morality is not a matter of chocolate vs. vanilla, nor even of Rachmaninov vs. Beethoven. Social norms are meta- in relation to individual preferences. No preferences, no basis for social norms. But preferences are, after all, norms for the individual whose preferences they are (or we may want to distinguish norms as a subset of preferences more generally, but that doesn’t matter here.) Given individual preferences and the capacity of individuals to affect each other for better or worse, each individual has a basis for socially agreed norms, or rules. Rational people will accept those rules that enable us all to do best by our own individual values, our own individual preferences among styles of life. The basis of the general social norm is nothing but our individual values. Yet morality replicates none of those values (or does so only incidentally. The man who finds he just really enjoys being just is perhaps rather unusual, but the fact that he does so is obviously not the basis of justice.)

Tibor seems not to have understood this in advancing this criticism against my theory: “Yet once again, even in this Hobbesian approach, we find a non-contractual element, namely, that everyone has good reason for wanting everyone to act on the rules in question. But if contract were all that is needed for the binding character of social rules, why is it important to mention that we have good reasons to back the goal of having us all act on rules?” Unless you confuse moral and nonmoral norms, this is easily answered. Moral norms are the objects of an agreement that is motivated by our non-moral values. Each of us desires to live one or another sort of life; that is what motivates us to accept principles that prohibit other people from doing what would make it impossible for us to live those lives. But the contents of these lives, which are notoriously diverse, are not moral. They are, of course, evaluative. If you don’t have any pre-moral preferences or values, morality can make no sense.

3. Narrow-based Promises vs. Morals

Tibor seems to have still another problem. “We know, for example, that many irrational groups exist, such as gangsters or gangs or other cabals the purposes of which are crazy. That these purposes couldn’t be consistently implemented, acted upon, is, of course, just my point: something aside an agreement is needed to establish viable, coherent social contracts.” This claim, so far as I can see, involves a fairly simple misunderstanding. The agreements made between one or a few individuals and one or a few others do not, and obviously do not, have status as moral norms. That is got only by including everyone who is affected by the proposed actions, and moreover requiring unanimity in the agreement among that widest relevant group. Now, if Tibor thinks that the rest of us are perfectly happy to be raped, robbed, tortured, or subjected to endless propaganda tirades by some small group of thieves or religious fanatics, etc., then I’m intrigued to hear about it. Knowing as I do about his experiences with the Hungarian Communist regime, I conclude that it would be uncharitable to think that, and more plausible to infer that he has truly misunderstood the contractarian project.

4. Hobbes in particular

When considering specific versions of social contract theory, Tibor comes to Hobbes as a case in point. He says, “In Hobbes’ version no specific content for the rules is specified, though it is assumed that they would aim for the maintenance of peace and preservation of human life.” That is one of the most astonishing comments on the history of philosophy I’ve ever heard. Hobbes is famed for laying down a set of “laws of nature” which are explicitly put forward as rational norms. They command us as rational beings to seek peace, to claim no more liberty than we are willing to allow others, to keep our contracts, to in general “strive to accommodate ourselves to the rest”, to refrain from vindictive punishment, and much, much more. How this can be said to be ‘contentless’ I am at a loss to understand.

By the way, I should add that I deplore Hobbes’ political philosophy as much as I admire his moral philosophy. His argument for the state is, happily, altogether fallacious.

5. Kant

Tibor apparently thinks that Kant does better, but I claim that Kant does, in fact, exactly the same. For so far as I can see, Kant is himself an out-and-out contractarian in his political theory. Admittedly not enough people read his writings on that subject, which are later than the popularly-read Foundations of the Metaphysics of Morals. But that is insufficient. In the Rechtslehre, which is his official philosophy of Right, we have it that the fundamental principle of politics is nothing other than the libertarian principle, and he makes explicit appeal to the social contract idea in, for example, discussing the idea that natural resources are collectively owned. In this he is entirely at one with Hobbes. (Later in his paper, Tibor actually quotes Kant’s fundamental principle of justice. But he seems to miss the point. Especially, he seems to think that Kant is a genius at making deductions from his own principles, and thus that it actually follows from the principle of universal freedom that anybody who wants to have sex with a woman has to marry her! Nothing of the sort follows, of course. But that isn’t because the principle is wrong; it’s because Kant doesn’t know what he’s doing.)

Tibor rightly cites Rawls as differing from the above. Or at least, Rawls thinks he differs. But Rawls is so muddled that I hesitate to devote space to his views here. Suffice to say that the idea of the “veil of ignorance” does not do what he seems to think. Everybody agrees that the fundamental principles of politics must be the same for all; the contractarian seeks those principles on which literally all have sufficient reason to agree. Which side of a veil of ignorance you were on when you agreed wouldn’t in fact matter, for if you are behind it, still, you know that every actual person is out in front; and therefore you must frame your principles so that actual people have reason to subscribe to them, not just the unreal behind-the-veil “people” in the Rawlsian contract situation.

6. Prudence

Tibor suggests that “social contract theories assume that prudence is a moral virtue,”—but that is also wrong. Prudence is, indeed, a virtue in almost anybody’s repertoire of values, because it is the virtue of watching out for one’s various other values in a longer view, so that getting one of the things we want doesn’t preclude our getting others of those things. But it is not assumed to be a “moral” virtue. Morality requires us to refrain, in general, from inflicting damage on other people in the pursuit of our own interests, but it doesn’t require us to be prudent. It says that you are free to do silly things, if you insist. (But it says that if you do, don’t expect us to get you out of the resultant messes!)

7. Consistency

There is also a claim that “To start with, it is useful to note that in, for example, Kant and Rawls, the alleged contractual basis for the legitimacy of law and government is supplemented with the very strict requirement of self-consistency of the resulting norms.” As if consistency were, somehow, an independent further norm on top of the ones you’ve already agreed to. But it is not. You are inconsistent when you contradict yourself, not when you contradict somebody else. You contradict yourself if you say you will do x, and then you don’t. But there’s nothing wrong with that anyway, unless you authorized somebody else to rely on you to do x, and to go to some trouble on that account. Then there is indeed something wrong with it, and you owe that person recompense for the trouble you put him to. But you owe him that, not on account of some extra requirement of “consistency’ on top of what you agreed to, but rather, simply by virtue of what you did agree to.

If Tibor really does think that consistency, of the relevant kind, is an extra requirement, by the way, he’s in trouble, for he will run up against the problem that Lewis Caroll so beautifully expounds in his dialogue between the tortoise and Achilles. If we are given that if p, then q and we are also given p, we may infer q. But why is that so? Is it that if, if we are given if p then q and p, then q? But aren’t we then assuming that if, . . . etc.? Please note that if this were a problem at all, it would be perfectly general against all reasoning in any domain, including any theories whatever that Tibor might want to put forward. [Caroll, “What the Tortoise said to Achilles”]

His claim that the crazy plans of cliques and cabals “cannot be consistently implemented” is, by the way, false. What they can’t be, is allowed by the rest of us—hardly the same thing! But that is where social contract comes in. What these cabals do, if it is immoral, is so because it requires making use of the rest of us contrary to our consent or agreement.

Tibor also says, rather obscurely, that the Kantian idea delimits in some way what can “what can count as a bona fide contract. But then the resulting agreement will itself be much more than something arising from the contract alone.” Again, this is muddled. There is no limit to what you can propose, but what you can get me to agree to is quite another matter, for that requires my input, not just yours. And I’m not about to let you walk all over me—that’s what the social contract is all about!

8. Basic Drives in relation to Hobbes’s “Laws of Nature”

Back to Hobbes: it is quite wrong to say that “the theoretical role assigned to natural law (or some other way of understanding basic ethical norms) was assigned by Hobbes to a basic instinct or innate drive.” As already pointed out, Hobbesian natural laws are “precepts of reason” for beings interested in getting on in life. If there are instincts or innate drives that impel us to do this, fine; but the laws of nature are not innate or instinctual. They are, instead, rational as pertaining to the important set of cases in which we are dealing with our fellows. Dealing with them is a special and important case, because unlike plants or subhuman animals, our fellow men have reason and the capacity for judgment, and also are likely to be quite a lot different from us in their ranges of interests. Moreover, they are damn dangerous, as Hobbes says—any of them could, if he took a mind to, kill us, for instance. If we don’t care whether they do, of course, we will have no use for morality and that will be that. But if we do, then we do well to adhere to and advertise our adherence to certain general principles, namely those of Hobbes’s “Laws of nature”.

Tibor also notes the dependence of moral philosophy on science, and more generally on facts about people and the world around us. No quarrel there!

9. Valuing Others

Tibor asks a potentially serious question when he says this: “In addition, the fundamental egalitarian stance of social contractarianism can be challenged. Why regard as equally worthwhile everyone, that is, every will involved in forging the contract? Why yield to the agreements of all or most, anyway?” But first, it should be noted that social contract theory doesn’t ask us to place any particular “value” on anyone. All it tells us is to keep peace with them. The reason for yielding to this is simply that if you don’t, you invite them to make war on you, which they will, and if they do, life is likely to be a lot worse for you. And if you don’t think so, then you will pay no attention to morality—for awhile. However, your life expectancy, if you’re thorough about this, will be very low.

10. Slave societies

Tibor envisages a social world in which “it is part of the social contract that some people in society would be slaves.” Evidently Tibor thinks that this is possible. If so, I’d be glad to have details. And in the meantime, if it is possible, I would remind him that the terms of the social contract are such that everyone is to be able to pursue the best life possible for him, compatibly with everyone else’s doing likewise. Now, the slave presumably picks his best option, given the enormously coercive environment to which he is subjected. But how could one represent such an environment as having been chosen by all concerned? We think that what’s wrong with slavery is precisely that the slave has no choice, is coerced to do what he does. Coercion is incompatible with free choice; but free choice is the name of the game for contract theory. What it has going for it is that all positions are elected, given the like freedom for all others. The young girls in Ghana who are “sex slaves of the priests” on his account, presumably did not choose to be such. How, then, does it come about that a genuine social contract would nevertheless eventuate in their slavery? Significantly, Tibor says that the young girls in question are “left out of” the choice of how to live. That by definition means that the social contract, as understood by social contract theorists, is violated, for in our view, nobody can be left out.

11. Right Choice

Tibor is perfectly correct to say that whatever we choose, we could always intelligibly ask whether we made the best choice, or the “right” choice. True. So what? Is he going to say that the Leaders get to step in and correct the choices we make for us? Or not. If he is, then I presume he should turn in his libertarian union card. but if he is not, then I am at a loss to see how he’s going to use his observation for any relevant political purpose. Either somebody else is brought in to run your life for you, or he’s not. If he is, we’re out of libertarianism. if he’s not, then his advice is welcome, thank you, but the individual is going to have to choose for himself, rightly or wrongly.

Tibor proposes that when we encounter the familiar problems of the state of nature (that’s the state in which there are no rules, remember), “the question can be raised, ‘Ought I to join in the search for some way of solving our problem?’ In other words, there must already be standards for making the right choice about doing so.” Here again, Tibor confuses the general arena of values and choice-making, which are certainly non-moral, with morality. There are no moral standards for telling you that morality is a good idea. What could be the point of such a question-begging maneuver? But there are certainly reasons for electing to live by moral principles rather than just barging along on your own. That is why it is possible for morality to be rational. It would not be possible, however, if morality could only be justified by previous moral standards.

12. Practical reason: Why be reasonable?

Tibor suggests that the question “Why be reasonable?” is a serious and entertainable question. It is unclear to me in what sense this is true. To ask “why?” is just to ask for reasons, after all, and thus to suppose that reasons are or can be relevant to the question at issue. If no reasons are relevant to anything, then no theory—Tibor’s or anyone else’s—can be of any interest whatever.

Practical reason is the background from which our theoretical deliberations about the shape of morals emerge. To be practically reasonable is to have some idea what one’s interests are, and to have those is to have motivation to pursue them in the most effective way. That’s what practical reason is.

When Tibor further quotes me to the effect that “those who insist on being unreasonable.. are simply being sociopaths ...” he should note that this is a question that arises post-contract, not pre-contract. Being unreasonable in this context is proposing to have one set of rules for oneself, while expecting others to live by another set. That is by definition contrary to the idea of having a morality. If I know that you cannot understand what a commitment is, have no idea what it is to adhere to a principle, then the relation between me and you can only be one that is governed by no principles. I shall just have to do my best against you by main force, since you don’t understand anything else. If Tibor complains that this person would be better off if he did understand such things, he isn’t contradicting my view but simply echoing it. If he thinks that to say such things is to invoke new and underived moral principles, though, it seems to me he’s obviously wrong about that.

Thus, the suggestion that some have “championed unreason” seems to me not interesting in this context. Nietzsche, to take a major case in point, observes,

“I should not, of course, deny—unless I were a fool—that many actions which are called immoral should be avoided and combated, and likewise that many which are called moral should be performed and encouraged. ”

Those very sensible words of Nietszche’s illustrate my point. Who are these alleged champions of unreason? I suspect that they are into quite a different department of inquiry from this one. Not to care whether people feel free to murder anyone they like is to be a fool, period. It is not to be immoral: it is to be silly. It is to be incapable, apparently, of morals, but it is hardly to call them into question in some intellectually serious way. (It is very serious indeed to be confronted with a sociopath. I would be interested to know whether Tibor’s discourse to such a person will be any more effective than mine or anyone else’s.)

Concluding Summary of Contractarianism

Let me conclude by explaining again the sense in which the social contract outlook is “required.”

1. People come equipped with an array of personal interests, values, preferences; and also with an array of personal capabilities.

2. Rationality consists in utilizing their capabilities on behalf of their interests, so as to achieve as much as possible of what they are interested in achieving.

3. We cannot assume that their interests, as regards their fellows, are of any particular sort: e.g., that they will be highly benevolent, or highly malevolent, or whatever.

4. But insofar as other people are capable of exerting themselves in ways that are contrary to my preferences, I have a problem: how do I get them off my back? And how, perhaps, do I instead enlist their help?

5. The suggested answer—the only one possible, when you think of it—is to trade in our tendencies to make other people worse off, in exchange for a like cessation of their tendencies to do the same; and beyond that, to proceed on a basis of specific agreement. Thus we avoid the dangers that our fellows present to us, and maximally utilize those of their capabilities that can be useful to ourselves. That is equivalent to Hobbes’s great principle of Seeking Peace, and reserving the right to go to war only when others make war against ourselves. If we all follow that, then we will also be free to make those enormously variable agreements by which we avail ourselves of the talents of our fellows, for the betterment of our lives.

I don’t see room for any other perfectly general principles for constraining the actions of all. In other words, I see no room for any other proposed morality to have the general support of reason. Note, for example, that the putatively irrational are free to be just as irrational as they like, so long as they do not thereby worsen the situations of their fellows.

We should reject the idea that it is somehow classier to base morality on some fancy ideas of intrinsic values or natural virtues independently of what people value. It is no good taking it to be some sort of a prior moral command to respect the freedom of others: if it’s prior, then it’s arbitrary from the perspective of those who are to be governed by morals. We do not respect the freedom of cows, chickens, or grizzly bears: we go right ahead and eat the former, and will kill the latter if they attack us or otherwise interfere. But in the case of people, who have minds of their own, we can expect to do better by mutually internalizing principles calling upon all to desist from making involuntary use of the bodies and minds of their fellows. And those who can’t do better are outside the pale; they choose the life of the grizzly, and will be hunted down accordingly if they insist on being trouble-makers.

By the way, there is very widespread agreement about some of the most basic principles of morals. Every society has rules against murdering or otherwise injuring fellow tribesmen; every society identifies some things as the private property of particular persons, others being abjured to keep off; every society, generally speaking, frowns on actions designed to be unwelcome to others. What there isn’t widespread agreement about is the degree to which certain elite classes such as the priesthood or the government is exempt from those general requirements. (That is still true today, of course.) It is this rough uniformity of basic moral rules that enabled Plato and his fellow discussants to ask how these rules originated, without questioning that they were indeed the rules to be respected.)

The social contract outlook is an elegant and straightforward system, but it too requires that we make distinctions. Since Tibor seems often to have run afoul of them, I am not optimistic about the prospects of others doing better. Still, one must try. Tibor apparently knows what happiness is, and knows that general respect for liberty is the way to achieve it. I find that puzzling. If he knew what makes people happy, why should he allow them to choose, when evidently he knows and they don’t? In fact, we leave each other in peace and reserve the right to cut up our neighbors’ views of The Good over the dinner table. To base the principle of society on our results in that context, however, would be a terrible idea. Natural-law ethics of the Aquinas/Machan stripe is a mistake, got from confusing the two different projects of (a) deciding how to live, and (b) getting along with our fellow men. Value criteria must be applied in both cases, and those to be deployed in the second are derivative from those utilized in the first—but nevertheless, they aren’t the same, and we confuse them at our peril.