Why is it a Contract? (The Social Contract Part 1)
And not a deed? Or a will? Or a merger agreement?
TL;DR: A contract requires an offer, acceptance, and consideration (an exchange of value). The social contract meanwhile requires an offer of principles, a reasonable justification for those principles, and an exchange of freedom for those justified principles to create moral duties. The absence of explicit consent is a reason which shapes the social contract, but by itself, is not reason enough to entirely reject the social contract. The social contract is a metaphor for the exchange of freedom for reason-based duties.
Finally, the purpose of this Substack can begin! But before getting into the actual social contract, I should start by explaining the contract metaphor, which has created a lot of confusion.
How can a social contract be legitimate? There never was an actual social contract in history. And even if there was, I didn’t sign anything? Why does this mystical contract get to tell me how to live my life? Isn’t tacit consent a loser argument anyway?
This post will hopefully explain the tragically misunderstood social contract.
Grounding the Social Contract
In my article on moral motivation, I argued four points:
Normativity is the development of reasons which justify restrictions on one’s own freedom.1
In morality, the mere pursuit of normativity (asking “Why should I be moral?”) is itself:
the recognition and valuing of one’s own freedom,
the recognition and valuing of reason, and
the acceptance of reason’s ability to bind that freedom. Freedom < Reason.
Since one’s freedom is valuable, but reason may justifiably restrict it, reason requires that the freedom of others be recognized and valued (if you value your X and other beings have Xs, then you must value those Xs; X=X).
Therefore, morality begins with free beings, bound by reason, who recognize and value each other’s freedom.
In summary: The state of nature for morality is parties possessing freedom, being required to value other beings’ freedom, and possessing a willingness to exchange their freedom for reasons.
That’s it! We don’t have preferences for utility, moral sentiments, a conception of the good, or even a capacity for rational thought. Just plain freedom. Yet the mere pursuit of normativity represents a willingness to exchange freedom for reasons.
Asking “Why should I (anything)” is basically asking “What reasons can I receive in exchange for my freedom.” It is reason that establishes normativity, including the moral duties we owe to other free beings.
Now let’s get more concrete.
Example: Let’s say we were to have an involuntary interaction (I recklessly crash my car into yours). Neither of us had consented to this traffic accident. But the only legitimate resolution would be to apply justifiable principles that reasonable parties would have agreed to.2
If we are purely free beings, then the accident may be our own responsibility, and exercising self-help (like you stealing my car for compensation) is as fair an outcome as any other. But since we are reasonable (moral) beings, who willingly surrender to reason, our resolution must rest on reasonable (moral) principles.
We can’t determine all non-consenting interactions after the fact, but we can come up with reasonable principles before the fact that govern how to resolve these interactions.
Would the principle let me drive off scot-free? Or that the burden is on you to get revenge? Or would it require that I make you whole? We aren’t sure yet. We’re still in the state of nature and haven’t established our principles.
Since the foundational moral question (“Why should I be moral?”) expresses an interest to exchange one’s own freedom for justifiable reasons, how can we get from there to create these necessary principles? Contract!
Elements of the Social Contract
Every law school course on contracts starts with examining the three basic elements of a contract: offer, acceptance, and consideration (a mutual exchange of value). The social contract possesses the same three elements, each of which will be reviewed.
1. Offer.
For the contract process to start, an offer must be made. In the social contract setting, this would be an offer of reasons to create binding principles.
These offered principles can be anything: You shall not kill, you shall not steal, you shall sacrifice your firstborn child after a bad harvest, you shall jump up and down on one leg every other Thursday. These principles can be justified based on whatever reasons that the offeror can think of.3
To go back to the car crash example, I may argue that I owe you nothing for the damage caused by my recklessness, with my reason being that it’s not my problem.
Stopping at this first step would make us moral nihilists/skeptics. It’s only continuing onto the acceptance stage of the contract do principles start to become objective.
2. Acceptance.
The second element is that the reason must be accepted by the party to be bound. There is no actual acceptance, but the proposed moral offer must be one that cannot be reasonably rejected.4 This process might create a lengthy dialogue, similar to commercial negotiations.5 Some proposed principles could never be justified, like sacrificing yourself to a utility monster or breeding utility rabbits. Yet others are so basic to what free parties would pursue that they could not reasonably be rejected.
The principle “The party whose recklessness harms a victim must compensate the victim for damages” is a non-rejectable principle that would be accepted by moral parties.
So your lack of formal acceptance does not give you license to steal, murder, or take someone else’s lunch from the work fridge just because it didn’t have a name on it. The principles that forbid these behaviors can’t be reasonably rejected (although exceptions to the general rule are a separate issue worthy of their own negotiation). Once the initial principles are accepted, they become justified reasons.
3. Consideration.
So principles have been offered, justified, and accepted. Do we have a contract? Not yet! We can accept all the principles we want, but if we don’t actually give up something for those principles, then they’re just gifts. There is no contract until there is an exchange of value.
But what do parties in this agreement have to exchange? Freedom! That’s all we are starting with. Without giving up anything, reasons are just feel-good ideas (what Louis C.K. calls “believies”). They may be nice to have, but if they can’t create a duty, they lack moral force.
For a justified principle to have moral force, the accepting party must give up the freedom that the justified principle requires. Since freedom is fairly valuable, the reasons supporting these principles have to be pretty good. Through this exchange, the contract is consummated and, therefore, binding on all free parties.
This doesn’t mean that accepted principles must be obeyed or even enforced for them to become moral duties. But it does imply this important point: moral duties must justifiably restrict freedom. If a justified principle isn’t strong enough to restrict one’s freedom, then it exists outside of morality. Many utilitarian and religious demands fall under the category, but that will be a future post.
After this process, a moral principle is not a mere expression of preferences; it becomes a justified duty. After recklessly crashing my car into yours, I’m duty-bound to pay for all damages that I’ve caused you.
And these duties bind all free beings, regardless of their actual abilities or even consent. The latter will be discussed more below.
Nonconsensual Contracts?
Yet what about parties who did not consent to the contract?
Voluntary consent is a powerful reason for a party not to be bound by duties. But it is still just a reason. Reasons that justify the imposition of duty can still be strong enough to overcome a party’s lack of consent. And as I’ve argued elsewhere, it is neither practicable nor desirable to have a social contract based on actual consent.
You may be a strong libertarian and still not yet convinced that a hypothetical contract, which no one has explicitly consented, has any legitimacy. However, forced contracts are created all the time.
Whenever an accident occurs that leads to damaged property, a purchase contract is made. Or if contracting merchants are missing certain essential terms in their agreement, a court can impose new controlling terms. Or if a decedent passes without a will, the state’s intestacy laws govern.
Whenever there is a dispute between parties, but there exists no actual agreement that deals with the dispute, then the law imposes a contract between them. And these contracts can only be grounded on justifiable reason-based principles. There aren’t formally accepted contracts, but since they involve creating terms between involuntary parties, these forced agreements must be justified in some way.
A party’s consent is not necessary for certain agreements. And in other instances, a party's actual consent isn’t even enough to make a valid contract.6 Consent is a reason, but it’s not the only reason. And there are an unlimited number of possible reasons which can shape our duties to one another.
Hell, even if the law that governs non-consenting transactions is ambiguous (imagine a vague divorce law applied when there’s no prenuptial agreement) and can support different rules, it’s reason that governs which interpretation should be applied. If a contract must be made, what can justify its legitimacy besides the principles developed in the social contract described above?
It should be emphasized that the social contract isn’t an actual contract or even a fixed hypothetical agreement. It’s a process representing the exchange of freedom for binding reasons. Social contracting may be a better analogy. But I will stick to the unfortunately misleading vernacular of contractualism.
So what principles can we find in the social contract? What makes a reason justified? What reasons can overcome the lack of consent? And who decides?
Great questions for future posts.
Or subjective experience, or consciousness, or autonomy; take your pick of terms.
This might sound familiar as a constructivist view of metaethics. This view serves as the foundation of contractualism.
See A.J. Ayer’s Emotivist view of ethics, also known as hurray/boo theory. All normative statements are considered only as an expression of preferences, devoid of any truth value. This is the first step of ethics, but it’s not the last.
See Chapter 1 of T.M. Scanlon’s 1998 book “What We Owe to Each Other” for an in-depth discussion on reasons.
These include cases where a contract is made through an illegitimate process like fraud or duress or creates an unjust outcome like unconscionable agreements.
Future contracts are NEVER those who died before the contract is created.