In a blog comment written two days ago, Eric asks:
“I have to ask a question about In Defense of Anarchism that continues to annoy me. How do social contract theorists, past and present, justify obliging future generations to honor the agreements made by a government's founding generation when those future generations have not themselves had the opportunity to choose to accept or reject the agreements? Even if a majority of the founding generation accepts the contract, with the passage of enough time the whole population will have grown so large by the addition of new members that the founding population could no longer be accepted as a majority by itself. In a footnote on p 41 of the 1998 paperback edition you mention "tacit or quasi-contracts ... which are invoked to explain the obligation of succeeding generations." I don't see how any such contracts could hold force. At least not in a society that purports to treat each individual citizen as his or her own decision-maker, who is not bound by obligations on his or her parents etc. (If a father commits a crime, should the son be punished for it?)”
He adds in a puckish parenthetical aside, “(Since you're
going to be 88 in less than a fortnight, I figure I need to get this question
in now.)”
The appropriate response to this is simply “good question!”
Locke in effect argues that when a young man (I do not think he is much
concerned about young women) reaches maturity, he can choose to emigrate if he
is not prepared tacitly or implicitly to sign on to the social contract. To
which, at least these days, one would respond “Good luck with that. Where are you suggesting he to go?” The simple
answer is that classical social contract theorists never satisfactorily
answered this obvious question. That is not in my view the most fundamental
problem with social contract theory but it is pretty much a killer all by
itself.
Notice that in John Rawls’s modern version of social
contract theory this problem does not arise. Rawls seeks to defend his two
principles, at least in the original and fundamental version of his theory before it goes all sappy, by claiming that the principles would be chosen by
rationally self-interested agents situated in what he calls the Original
Position, and these persons are in effect outside of time. Since I wrote a whole book showing that his argument is wrong, I
shall not repeat myself here, but suffice it to say that the problem of
subsequent generations as it arises in the original versions of social contract
theory is not for him a pressing issue. Rawls, by the way – giving credit where
credit is due – recognizes in a way that other social philosophers have not
that there is a serious question of what the present generation owes to future
generations – a question that he appropriately puts in the form of a conundrum
about what the proper social savings rate ought to be.
Well, that is my reply as a still youthful 87-year-old. Lord
knows what I will say in 12 days when I have passed my 88th
birthday.
This makes me want to reread Hume's "Of the Original Contract" (or rather, read it for the first time, as I was too lazy to do the assigned reading that week in the Hume seminar). I fondly but vaguely remember my professor's comment, "The darn thing never happened"; and also this selection -
ReplyDelete"Can we seriously say that a poor peasant or artisan has a free choice to leave his own country, when he knows no foreign language or manners, and lives from day to day by the same small wages which he acquires? We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master, though he was carried on board while asleep, and must leap into the ocean and perish the moment he leaves her."
Here it is on Gutenberg.org:
https://www.gutenberg.org/cache/epub/59792/pg59792-images.html#h213
Prof. Wolff,
ReplyDeleteIn John Locke’s defense, there was and is a principle in English common law that silence in the face of circumstances or in the face of a demand for acquiescence to a royal decree constitutes acceptance. You will recall that in the play and movie, A Man For All Seasons, emissaries for Henry VIII continue to come to Thomas More’s prison cell demanding that he expressly agree to the Succession to the Crown Act, recognizing Anne Boleyn as Henry’s lawful wife, and their prospective children as rightful successors to the crows. More responds that his silence alone suffices to constitute acceptance. In Locke’s view, if one continues to reside in a country, that constitutes acceptance of its laws. If one wishes to reject those laws, one can leave and emigrate to another country. In the 17th and 18th centuries, this was feasible, as many of England’s inhabitants emigrated to the New World, with its wide expanses, where one could begin a new life without submitting to a governmental authority one rejects.
Today, emigration is of course not as feasible a solution, since virtually every tract of land, with the exception of the Arctic and Antarctica, is governed by some nation state. Taken together, however, the governments of those nation states represent a broad spectrum of forms of government, from constitutional monarchies, to fascist dictatorships, to democracies of varying degrees of self-government and liberty, offering many options to choose from. There is no government which offers an ideal environment of complete self-government, unless one finds an uninhabited island to live on (and they do exist, if one has the skills to live off the land). There are, of course, the practical difficulties of being able to afford to emigrate, as well as the immigration quotas and laws which preclude emigration to many countries, e.g., Poland’s rejection of the refugees from Belarus.
No nation, to my knowledge, has an office or department to which one can go and sign a statement stating, “I hereby withdraw my acceptance of the social contract of this country,” giving one a lawful basis to continue to live in that country while rejecting the applicability of its laws. The best that one can hope for is the right to at least engage in protests against the government and its laws. In the U.S., that right is protected by the free speech and freedom of assembly provisions of the First Amendment, and the courts have vigorously enforced these freedoms against encroachment, protecting the right, for example, of public employees and college professors during the 1960’s to refuse to take a loyalty oath that they did not support the Communist Party. See, e.g., Elfbrand v. Russell (1966); Keyishian v. Board of Regents of the University of the State of New York (1967). The right to protest peacefully without the threat of imprisonment or torture is perhaps the best that one can hope for as a means of expressing one’s opposition to the particular form of social contract in which one finds him/herself.
Cirrection:
ReplyDeleteI have no idea what succession to the crows entailed. but there was succession to the crown.
I think Locke's Social Contract is just will to live together in a society, which means to live under a government with them. Ultimately he is not too concerned with someone unwilling to do that. If one is dissatisfied with the government as it stands, and that government ignores his and others' complaints and continues to enforce laws and actions that invade their rights then he and like minded people are "at liberty to provide for themselves by erecting a new Legislative". He thinks if you can't get others to agree with you, you must be just a busy head or turbulent spirit.
ReplyDeleteIt's worth pointing out that the standard response--if you don't like (or accept) it leave, and if you don't leave you therefore like (accept) it--goes back a long ways. In Plato's Crito, Crito is trying to break Socrates out of prison before the latter's execution. Socrates argues against this. One of his arguments is that, by continuing to live in Athens and enjoy his life there, he has accepted the laws of Athens. He has the laws of Athens say to him: "So decisively did you choose us, and agree to be a citizen under us," (52c) that he cannot argue he was done wrong by them.
ReplyDeleteFunny thing: I suspect Plato didn't mean this to be a serious argument. Crito has an odd structure. In the first bit, Crito presents a bunch of apparently bad reasons to escape, based on shame if he (meaning Crito) fails to break Socrates out, how Socrates' friends and family will feel at his death, etc. In the second part, Socrates argues that those reasons cannot be good reasons--he famously uses the example of health, saying that if we want to know what is good for our bodies, we should refer to the doctor rather than the mob. Crito accepts that this is true, but then just repeats his mob-based reasons. Finally, Socrates presents a new set of reasons that, when you look at them, seem to mimic and attack Crito's psychological and emotional reasoning. Socrates inverts many of Crito's arguments, using Crito's bad reasoning against him. For example, Socrates points out that running away will enhance the public perception that he is guilty and thus be shameful, when Socrates had just argued before that external shame is irrelevant.
The argument above is from the last part, and is pushed to uncharacteristic extremes--"your country [the laws say] is to be honored more than your father and mother . . . . You must either persuade it or obey its orders, and endure in silence whatever it instructs you to endure, whether blows or bonds." (51a-b) Remember: this is the same Socrates who, when convicted, suggested that his penalty be getting the same free meals offered to Olympic champions.
Derek, that or modern equivalent is what I proposed to the judge as my puunishment when I was convicted of disorderly conduct in an anti-apartheid demonstration at Harvard's Fogg Art Museum in 1986. It did not go over too well then either.
ReplyDeleteI believe this is the old Progressive vs. Conservative issue. The Institutions of Justinian, from the 6th century, have been the starting place for legal tradition in the Western world. Many, today, believe that tradition should be burned and a new legal tradition should be created--just as the medical 4 humour system was replaced in the Age of Reason. However, the traditional legal science is so vast and complicated that any break from tradition can be one big botch. I believe the social contract is also complicated. But philosophy is not math. In math, one easily moves from one axiom to another. A proven tradition does not have to be proven again & again to back up a further proposition. But for philosophy one has to start, not from past tradition, but from axioms that have to be started all over again, or at least I believe it to be so. And, I believe, with everything else, there can always be some exception.
ReplyDeleteApart from the 'Never Happened' objection ( that is that they never was a social contract the right kind) Hume also raises intergenerational difficulty in his early critique of the social contract theory. As for the answer that young adults can leave the community if they don't like the deal, Hume points out that this is utterly impractical especially for peasants (one of the rare occasions that this rather upper-class thinker takes the peasant point of view). It is slightly less impractical nowadays in the age of mass migrations (I left my own country at the age of 23 and apart from a brief return for several months of unemployment have lived abroad ever since) but Hume certainly had a point in the 18th century and he still has a point today.
ReplyDeleteI am not sure that Hobbes is vulnerable to the intergenerational objection that definitely devastates Locke. He does not so much argue that we ought to obey the government because in some sense we (or our ancestors) have promised to do so. Rather he argues that we ought to obey the government because if we don't we risk collapsing into a state of nature in which the life of man would be nasty poor brutish and short. If we were in a state of nature it would be rational (though rather difficult) to contract our way out of it even if the newly created sovereign was rather harsh. Since we don't live in a state of nature we should thank our lucky stars and put up with the government that we have got, because the likely alternative is no government at all.
ReplyDeleteDear Professor Wolff,
ReplyDeleteWhile the issue might not play much of a role in A Theory of Justice itself, it does happen to figure quite prominently in Rawls's project of political liberalism. Indeed, in his "Reply to Habermas" (1995), he approaches it somewhat from the other end, as it were: by asking not how a founding generation of law-givers may legitimately bind future ones, but by discussing, in reverse, how present-day citizens may be described as politically autonomous despite living under a constitution that essentially predates their own birth. If I may quote from that piece at some length (my italics):
"Habermas (…) says that the constitution (of a society well-ordered by JaF) cannot be conceived as a project – as something yet to be achieved – and so public reason cannot involve the exercise of political autonomy but only the preservation of political stability (…). (It) is doubtful that he might think that in a well-ordered society as described ideally in JaF, radical democratic embers cannot be reignited because citizens cannot actually give themselves what they view as a just constitution when they already have one.
If this is the difficulty, however, it is easy to address. To make clearer the idea of political autonomy we say, first, that citizens gain full political autonomy when they live under a reasonably just constitution securing their liberty and equality (…), as well as adjust and revise them as changing social circumstances require (…). To this we add, second, that whenever the constitution and laws are in various ways unjust and imperfect, citizens with reason strive to become more autonomous by doing what, in their historical and social circumstances, can be reasonably and rationally seen (!) to advance their full autonomy. Thus in this case, a just regime is a project as Habermas says, and JaF agrees.
Even when the constitution is just, however, we are bound to ask: Why can citizens not be fully autonomous? Are the citizens of Rousseau's society of The Social Contract never fully autonomous because the Legislator originally gave them their just constitution under which they have grown up? Why should that memorable deed long past make any difference when they now comprehend the just constitution, and intelligently and wisely execute it? How could the Legislator's wisdom deprive citizens of the insights they have assimilated for themselves over generations? Why can those insights not be assimilated by citizens from their reflections and experience with these institutions and as they come to understand the grounds of the constitution's design? Does Kant's Groundwork deprive us of our achieving the insights of the moral law by reflecting on that work? Surely not. Why is understanding the justice of the constitution any different?
Moreover, not every generation is called upon to carry through to a reasonable conclusion all the essential discourses of legitimation and then successfully to give itself a new and just constitution. Whether a generation can do this is determined not by itself alone but by a society's history: that the founders of 1787–91 could be the founders was not determined solely by them but by the course of history up until that time. In this sense, those already living in a just constitutional regime cannot found a just constitution, but they can fully reflect on it, endorse it, and so freely execute it in all ways necessary. What is especially significant about our actually giving ourselves a just constitution (…) when we already have one and fully understand and act on it?"
In my view, too much is missed about what is good and interesting in Rawls when one focuses too much on the contractualist argument from the original position. The more Hegelian – that is to say, the socially and historically conscious – Rawls that comes to light especially (but not only) in his later writings, in my view, is Rawls at his very best.
Respectfully,
Markus Rutsche
Given what we now know about AGW, the question of what we owe to future generations takes on an importance that Rawls did not envisage when he wrote TJ. It is, needless to say, an obligation which we are not coming close to honoring.
ReplyDelete@ Charles Pigden
ReplyDeleteI think the phrase is "solitary, poor, nasty, brutish, and short."
But your paraphrase was close enough. ;)
IIRC, the author* of Plato and a Platypus Walk Into a Bar compared the "and short" in that quote to a certain diner's complaint that the food was terrible and the portions too small.
ReplyDelete*Actually someone who's appeared on the blog/comments before - a former student of Prof. Wolff's, right?
Right. His name is Tom Cathcart. (I had to look it up.)
ReplyDeleteI don't see how Locke's story of the Social contract turns in any way on an act of agreement on the part of a member of society. Locke thinks you are obliged to respect the rights of others whether you are in a society or not. Freedom just means acting in a way that respects those rights. For Locke that is all the "autonomy" there is. Whether in society or if you're a member of a nomadic clan, acting in a way that doesn't respect the rights of others is not "autonomy" but rather criminality. The social contract is in place when people have resigned the individual obligation to enforce those rights against such criminals. The "Social Contract" describes a condition of a people rather than being a particular act on anyone's part. How that all starts is no essential part of the story.
ReplyDeleteOn the occasion of his 80th birthday celebration (today he is 91), Jürgen Habermas answered the same question exactly as Locke: Whoever wants to be consistent and does not agree with the constitution must emigrate.
ReplyDeleteThere is one more point which I would like to add regarding the question of whether one is not bound by a social contract unless one has explicitly agreed to be so bound, having not been present when the hypothetical social contract was first adopted. This raises the question of reciprocity. If one maintains that s/he is free to reject the laws of a country, e.g., the laws making murder and attempted murder illegal, then one has no basis to expect reciprocity by others in that society. If you claim not to be bound by laws which make murder, and attempted murder, unlawful, for example, and you are free to murder as you choose, then you have no right to expect that others will respect that law vis a’ vis yourself. You have no right to claim that your right to life was violated by a neighbor who has attempted to murder you.
ReplyDeleteBy the same token, if one claims s/he is not bound by the provisions in the United States Constitution, because you were not one of the signatories when it was originally adopted in 1789, and thereafter amended by the Bill of Rights, then you have no right to claim that the government may not search your home without a warrant; that you cannot be arrested for denouncing Trump or Biden as illicit and incompetent executives; that you cannot be arrested for attending religious services; etc., etc. Locke’s concept of acceptance by failure to emigrate is, I submit, supported by the implicit expectation that one will be protected by the same laws that your failure to emigrate protects others from you, even those laws with which you may disagree. If you believe that you do not have to emigrate, but still have the right to disobey the country’s laws, then you have no right to complain when those laws are violated vis a’ vis yourself.
Prof Wolff, thanks for your reply. I don't have to worry any longer that I was missing something obvious.
ReplyDeleteProf Wolff on tv.
ReplyDeleteMore more here>
One of the challenges of following the comments in this blog is that they often lead down deep rabbit holes.
ReplyDeleteMarkus Rutsche posts an interesting comment mentioning Habermas, and I, knowing little about Habermas other than that he was associated with the Frankfurt School, search the web and youtube for information about him. In the process I read that he has been called "one of the most influential philosophers in the world" and "the most important German philosopher of the second half of the 20th century." How did I not know that? It also seems that Brian Leiter is not a fan of Habermas:
"Marx, who was a good writer (unlike Habermas), seized the imagination of revolutionaries in the 19th-century because he explained to them the causes of what was visible to them and what to do about it; he didn’t have to persuade them that they were suffering. No one who reads Marx could mistake him for Habermas"
(lol)
"Cohen and Habermas are obviously not proponents of identity politics, but their 'normative turn' has similar causes: the state suppression of communist activism in both North America and Germany; the rise of a huge class of professional scholars at universities in the affluent capitalist countries; and the clear appeal, to the latter, of sitting around thinking about whether comfortable professors and their graduate students have a good moral reason to be opposed to capitalism. The 'moral theory industry' in the capitalist universities has a lot in common with the 'identity politics industry,' even though the former like to think of themselves as 'rigorous' and 'analytic” thinkers.'
from an interview of Leiter in Il Manifesto, 2018
and
"Habermas, over the last half-century, has increased the amount of flotsam by several orders of magnitude"
'Why Marxism Still Does Not Need Normative Theory'
https://www.analyse-und-kritik.net/Dateien/5a798590516c6_leiter.pdf
(not that Leiter is some kind of god, but his name frequently pops up in the comments on this blog)
Incidentally, in that last paper mentioned above, it seems that Leiter is (or was) a skeptic on claims of an overpopulation crisis. (That there is an overpopulation crisis seems obvious to me, although many on the left are skeptics). See what I mean about a rabbit hole?
If I followed up on every thread that dangles in the comments, I would get no work done during the day. I need to be more like LFC.
Prof. Wolff,
ReplyDeleteI watched the second of the above clips, which records a hearing in a Massachusetts court in which you, and several of your colleagues, were charged with, I assume, disorderly conduct at the meeting of the Harvard Board of Chancellors regarding demands that Harvard defund its investments in companies which conducted business in South Africa. During the protest, you and your colleagues interrupted the proceedings, for which you were arrested and charged, I assume, with disorderly conduct. At the hearing, you and your colleagues claimed that the protest was necessary (I am extrapolating here) in order to prevent an injustice, i.e., Harvard’s investments which sustained the greater injustice of apartheid in South Africa. During the hearing, the prosecutor objected to the admission of any testimony by you and your colleagues in support of the necessity defense. The judge sustained each of the prosecutor’s objections.
Unfortunately, for whatever reason, you and your colleague decided to represent yourselves at the hearing, rather than retain an attorney. I am confident that the defendants could have afforded to retain a civil rights attorney. In all likelihood, the ACLU would have represented you for free. Had you had representation of counsel, I am confident that the attorney would have cited Thornhill v. Alabama, 310 U.S. 88 (1940), in which the Supreme Court overturned an Alabama statute which was being used to suppress protests in Alabama by labor unions. In that decision, the Court stated:
“The statute must be judged upon its face. P. 96. (a) The charges were framed in the words of the statute and the finding was general; it is not necessary to consider whether the evidence would have supported a conviction based upon different and more precise charges. P. 96. (b) The very existence of a penal statute such as that here, which does not aim specifically at evils within the allowable area of state control, but sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press, results in a continuous and pervasive restraint of all freedom of discussion that might reasonably be regarded as within its purview. One convicted under such a statute does not have to sustain the burden of showing that the State could not constitutionally have written a different and specific statute covering the particular activities in which he is shown to have been engaged. P. 97. (c) Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression.”
Although I expect that you will not be engaging in many protests in the future (who knows, the 2024 election may provide cause for you to reengage in such protests), I urge you never to show up in court to defend yourself without an attorney, whatever the charge.
So do I. ;)
ReplyDeleteAbove was in response to Eric's "I need to be more like LFC."
ReplyDeleteCharles Pigden and others,
ReplyDeleteOne of the points that Graeber and Wengrow make in The Dawn of Everything and some of their other writing is that one of the hallmarks of "freedom" cherished in many societies, such as among many indigenous Americans, is/was the ability to pick up and go somewhere else if you no longer feel that you fit in, with the very reasonable expectation that you will be able to find acceptance in the place you move to. By that measure, how free are we, with all of our material comforts, today?
https://twitter.com/davidwengrow/status/1455838287965396992
Another Anonymous: "This raises the question of reciprocity. If one maintains that s/he is free to reject the laws of a country, e.g., the laws making murder and attempted murder illegal, then one has no basis to expect reciprocity by others in that society. If you claim not to be bound by laws which make murder, and attempted murder, unlawful, for example, and you are free to murder as you choose, then you have no right to expect that others will respect that law vis a’ vis yourself. You have no right to claim that your right to life was violated by a neighbor who has attempted to murder you.... If you believe that you do not have to emigrate, but still have the right to disobey the country’s laws, then you have no right to complain when those laws are violated vis a’ vis yourself."
ReplyDeleteThat is not an abrogation of rights secured under higher laws that may trump any local, possibly illegitimate laws. (And by local I am absolutely including state laws and national laws.)
Eric,
ReplyDeleteCan you cite to me one of the "higher laws" you are referring to, and what does it say, and how did it comet into existence?
Another Anonymous @12:58pm,
ReplyDeleteThe Kings Bay Plowshares defendants had representation by at least one attorney (a constitutional law professor). They still were sentenced to many years in federal prison for their symbolic protest action, despite no one having been harmed.
Correction: They were sentenced to many months in prison.
ReplyDeleteEric,
ReplyDeleteI did not say that being represented by an attorney guarantees victory. But it makes victory more likely than appearing in court pro se. I have never encountered a litigant, especially a criminal defendant, who prevailed representing him or herself, except in small claims court, where in most jurisdictions attorneys are precluded.
In the Kings Bay Plowshares protest, the seven protesters broke into the Kings Bay Naval Submarine Base, in which were housed nuclear weapons. There was clearly unlawful trespassing, and the 1st Amendment does not protect clearly criminal activity. This is a far cry from the protest which Prof. Wolff and his colleagues engaged in.