This is a first in a series of posts meant to be a primer on the basic set up of our nation’s government and its Constitution. This is motivated mainly by today’s news environment. So many assertions about law made by politicians, reporters, and – well – bloggers drive me crazy because they are misrepresentations to the general public. Of course, much of law and politics has room for interpretation. But when something is stated as a fact that is just plain wrong, or completely omits some really important clarifying information, I start muttering. And its possible to get a crash course on legal theory without going to law school. Here’s my attempt at formulating such a course.

This first one is a bit nerdy, but there’s a reason for it – bear with me. It’s important to start from the beginning. To talk about a legal framework, one must consider why it exists. In other words: why do governments exist? As humans, and especially as Westerners that believe in a human-centered paradigm, the surrender of ourselves to government directly contradicts our preciously-guarded concept of free will. Social Contract Theory studies why people are willing to make this surrender.

It is worth noting that each theory begins from the idea that, prior to establishing government, humanity starts from a “state of nature” where all people are free and equal. At some point, each government is created by a social contract where the people affirmatively chose to bind themselves to the government for mutual gain. Starting from the idea of “nature” is an exercise of suspending disbelief. I am aware of no point in history where I can truly say equality existed, and in many cases universal freedom is also problematic. In almost all countries and governments, the moment of a “re-set” where a country sits down and develops an entire governmental system from nothing does not exist. One of the very rare exceptions to this, however, is the United States.

The American Revolution began as a breach of social contract – the Declaration of Independence. When we won our liberty, our founding fathers contemplated and debated for over a decade to develop a government that would serve its people. In fact, they scrapped the first version as a failure. The preliminary constitution – the Articles of Confederation – was tossed out as ineffective after the 13 colonies that had signed onto it discovered its flaws. The Constitution that governs the United States today did not take effect until 1789.

Importantly, the system of government that was developed didn’t mirror the European counterparts in existence at the time. The focus was contractual, and the government’s role was of service. This is seen in the Constitution’s preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The People were contracting for a government that would keep them safe, free, secure, and unimpoverished. Moreover, the People were setting up a government that would ensure the same qualities for future generations. This was their social contract.

But I am getting ahead of myself. Understanding the background of social contract theory explains the why government is worth it. Here’s a brief breakdown on the key influencers of Western Social Contract Theory.

HOBBES

Thomas Hobbes (1588-1679) was an Englishman who, after a tumultuous birth and childhood, established himself as a scholar of a wide range of subjects and eventually settled in Paris. In 1642, when Hobbes was in his 50s, a civil war broke out in England. Shortly thereafter, Hobbes published the Leviathan. This work is considered the bedrock of social contract theory.

In Leviathan, Hobbes attributes the following qualities to men:

Natural Equality: people are roughly equal in their physical and mental powers. (Or they aren’t, but you only can see inequality if there’s a battle.)
Conflicting Desires: people want different things, or want the same things but there’s not enough for everyone.
Forward-Looking: people care about their current and future interests.

Gregory Kavka, a more recent scholar, adds two implicit Leviathan qualities:

Anticipatory Advantage: people will seek to improve their position by either attacking first or hoarding resources.
Limited altruism: people value their own interests over others.

With these assumptions, it is easy to see that men left to their own devices will result in violent chaos. In Hobbes’s words:

In such condition, there is…no account of time; no arts; no letters; no society…continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.

Sounds lovely.

Hobbes believes that people are inherently battle-prone, and therefore would never choose an option like sharing resources or working together if there is a slight chance that a better outcome is available by not working together. (His famous example of this is the Prisoner's Dilemma.) He believes that if people do make a pact to work together, they will ultimately break it.

Hobbes therefore argued for government was a way to be safe, secure, and unimpoverished. But, because Hobbes didn't believe that people could stick to pacts, he only believed in governments with absolute power. Therefore, his governmental solution was an absolute monarchy – a king. The trouble with this idea is that the monarch himself is also a human, and presumably would have the same five qualities listed above. More than a few scholars have pointed out that a monarch with absolute power could absolutely abuse it to line his own pockets.

The important thing to takeaway is that Hobbes created a value system that considered government as a function that benefits each individual. By extension, a government that failed to do that was a government that failed.

LOCKE

John Locke (1632-1704) was an Englishman and is widely known as the Father of Liberalism. He was educated in medicine at Oxford, and took residence as a physician to the Earl of Shaftesbury, who founded the Whig party. It appears that Locke’s Two Treatises on Government was written as a side project during those years of studying medicine. (And yet, entire revolutions are rooted in this document.)

To put it simplistically, the primary evolution from Hobbes to Locke is the addition of Locke's Christian morality. The first consequence of this is the application of the theory of Natural Law. Natural Law sees God as the ultimate law-maker, and the State of Nature as a reflection of those laws. Locke also believes that people were born with a “blank slate” for a mind, rather than being downloaded with pre-existing concepts prior to birth. Locke does not find these two concepts contradictory because even though people are born a blank slate, he believes their yearning for good and governance by Reason (capital R) demonstrates the order of Natural Law.

Locke believes that God is all-powerful, but that God gave men the ability to rule themselves. The moral obligation of humanity is to rule itself in conformity with Natural Law. The way to achieve this goal is to use Reason (the voice of God that was in each man) to maximize good. Natural Law, and therefore maximization of good, is achieved by avoiding harm to the Life, Health, Liberty, or Possessions of another human. Man-made law and government are the tools to effect the goal.

Locke solves the problem of an overly powerful ruler by naming God as the power source of that government. Which only works if you 1) believe in God, 2) believe God is good, and 3) believe that God is interested in government. Regardless, Locke argues the government is only in compliance with that power if it serves the greater good of all its subjects, and if the government does not maximize the greater good, those who subscribe to Reason had the right and duty to revolt.

In fact, Locke envisions a healthy government as one that relies in part on what I like to think of as “controlled revolt” – where tensions within the government continually challenge the status quo. He advocates for separation of powers. He devises three main functions or powers of government – the legislative (law-maker), the executive (law-enforcer), and the “federative” (essentially, the one who interacts between the socially contracted government and outsiders and/or Natural law). Locke doesn’t necessarily believe that each role needed to be exclusive of the other, but argues that no single entity or person should have all the roles. Locke does feel that each role should be held by more than more than one entity.

Locke’s view was more individualistic than Hobbes's. Hobbes envisioned a sort of "all or nothing" situation - either everyone is at war tearing each other apart, or an absolute monarch is controlling it peacefully. Locke viewed the State of Nature as an individual journey. Everyone was born into nature, and born with Reason, and had the choice to determine whether they would be moral and comply with Reason/God. Therefore, society could be orderly and in compliance with Natural Law even while an individual could be out of compliance.

The unique aspect of this individualism is the concept of consent to government. Because men were born “by nature, all free, equal, and independent,” then “[n]o government can have a right to obedience from a people who have not freely consented to it.”

Rousseau

Jean-Jacques Rosseau (1712-1778) was a proud citizen of Geneva who spent a good deal of time in and greatly influenced France. His life was not short on drama, and his own writings tinge with narcissism and some paranoia. Despite the exciting storyline, he contributed a great deal academically, and is well-known for healthy debate with contemporary philosophers Hume and Voltaire. On this subject, Rousseau is known for The Social Contract.

Rosseau starts from the same idea of equality between and self-interest in all people. He adds to this idea that humans are inherently interconnected, and therefore even at a state of nature a person’s ability to achieve goals is reliant on the actions of others. As with the prior philosophers, he believes that people are motivated by freedom and “self-love.” Like Locke, he does not believe government can be forced upon people, particularly the conquered. Power by coercion is inherently illegitimate; government by coercion is slavery. Instead, true government is the result of surrender of certain powers by all citizens in order to obtain benefits. His ideal government is one that defends and protects the “person and goods” of each citizen in such a way that each citizen, while uniting with the common good, doesn’t detect a limitation on freedom. Thus, Rosseau felt that a true government was one that preserved equality – that all people would be giving up the same rights to receive the same benefits.

This is easier said than done, and many note that perhaps Rosseau is better at identifying problems than solutions. Nonetheless, he makes a major contribution from the standpoint of government in his concept of a General Will – that is, the general will of the governed. For the General Will to truly govern all persons, it had to come from all persons. This is difficult to accomplish because the will of individuals or groups will undoubtedly compete for the will of the whole. Therefore, he defines a good government to as one that included two separate parts – one to govern by making and applying laws (Government), and one ensure the solidarity of the General Will (Sovereignty). His Sovereign is not a person or a monarch, but the General Will. And while that sovereign, in his view, does not owe a duty to individuals, it will name and protect individual rights because a proper General Will accounts for the individual rights of all.

The Takeaway

In short, the purpose of government is to avoid the State of War. The State of War is rooted in the premise that humans are equal and competing. A good government resolves competition with equality. This is done by:

Representing the wishes of the whole population.
Preserving both individuals (or individual groups) and society as a whole. Individuals are preserved by ensuring there are protections for things like life, liberty, and property. Society is preserved by ensuring there is safety, continuity or a future, and a better quality of life.
Dividing or “checking” the power sources so that the General Will of society remains supreme ensures that humans, who are inherently flawed, will not return to a State of War.

Some references if you’d like to learn more:

Stanford Encyclopedia of Philosophy – this is an amazing resource for anything philosophy, and is cherished by everyone in the academic field as a cohesive, free forum for almost any philosophical scholar you can imagine. You can find far more than info on social contract theory philosophers here: https://plato.stanford.edu/index.html
The Social Contract Theorists: Critical Essays on Hobbes, Locke, and Rosseau. Edited by Christopher Morris, Rowman & Littlefield Publishers, 1998.
Jameskane.com – for modern day research on trust and loyalty, which is strikingly similar to social contract theory.