Chapter 3: The Social Contract

Chapter Three

The Social Contract

“When we covenant to constitute a commonwealth, we become by institution author of all the actions and judgments of the sovereign instituted.”

T Hobbes, The Leviathan, Chapter xvii

Broadly defined, a social contract is the foundational agreement for human association and cooperation.  In Hobbes’s concept of this basic agreement, a person gives up the right to do absolutely as he/she pleases or to take anything he/she wants, and by relinquishing those primal rights, gains both physical and emotional security.  Put another way, one I think Hobbes might like, a social contract is pure and simply a peace treaty. Under a social contract, “the war of all against all” is concluded, the conditions of armistice are agreed upon, and institutions for enforcing the peace are put into place.  And as we shall discuss in the next chapter, this institutionalization of the social contract – i.e. its enforcement – is key.

Think for instance of the institutions that were established following the conclusion of the great wars of the 20th Century: the League of Nations and the Permanent Court of International Justice with the end of the First World War; and the United Nations, the Court of International Justice, and the Breton Woods institutions (the World Bank, the International Monetary Fund, and the World Trade Organization) following the Second World War.  These global attempts at reframing and enforcing the social contract were monumental achievements. Unfortunately, these institutions are, as presently constituted, inadequate to meet the challenges of the 21st Century world.

It is my belief that one of the most important human enterprises of the present century will be rebuilding at all levels of human association basic, new social arrangements, or in our terms, new social contracts.  The presumptuous mind frame of the last century – full as it was of assumptions about almost every aspect of human culture and enterprise – provides little help for the hard work ahead.  And that is why it is extremely important that citizens of this planet learn new habits of engagement and association.  As a teacher of International Business Law, I am particularly concerned that the grand institutions of international commerce and law be recast to deal with the daunting political, social, cultural, and environmental challenges of the decades before us.  As a former politician, I am also conscious of the need for the closer-to-home aspects of human association to be refreshed and retooled.  From the nuclear family to the nuclear club of nations to the family of humankind, including all associations in between, we need to start a new groundwork and fashion a new style of engagement.  Politicians cannot institute at a global level what citizens have not practiced at a local level.  Every coffee table, every conference room, every committee meeting, every planning council, and every legislative session presents a place, a time and an opportunity for this foundational work–a work literally about human survival.

For Hobbes there are three critical components of social contract formation: authorization, representation, and sovereignty. The success or failure of all social contracts, large or small, rests on these three fundamentals.  In this chapter we shall deal with the first two – authorization and representation – and in Chapter 4 with perhaps the most critical and thorniest of all, sovereignty.

What confers legitimacy upon a government, a corporation, a community, a team, or even a family—on a joint human enterprise of any sort?  What is the source of an organization’s authority?  What form of representation does the organization provide? To what extent may the organization compel the loyalty of its constituents?  When we speak of social contract theory it is exactly this sort of “enquiry without assumption” that is addressed.  Very simply, a social contract is that instrument of agreement that invokes the authority, defines the representation and compels the loyalties that holds human societies together.

I want to begin this pivotal discussion of social contract theory with a story from my own childhood.  It’s a bit folksy, but stick with it; there is a point.  So I invite you now to take a detour to the Narrative Appendix, our playground for recess and refreshment, and read “Thou Preparest a Table Before Me.”

Thou Preparest a Table Before Me

A Story From Songs of Gentle Sadness

by Buie Seawell

About once a month, on Sundays, when I was a boy of 9 or 10, Mom, Dad, Terrell (my baby sister), and I would drive in the family’s pre-war Desoto from Lumberton to Raleigh, North Carolina, to visit my paternal grandparents. It took about two hours to get there, and I usually threw up somewhere along the way.  The road was just a two lane curvy highway back then, and went right through everything — Fayetteville, around the old slave market in the middle of that small city, then through Lillington and across the Cape Fear River, and finally through Fuquay-Varina to Raleigh.  I usually got carsick somewhere between the slave market and the river.

Sunday dinner at Judge and Gran Seawell’s was wonderful. My grandfather served on the North Carolina Supreme Court, and he and my grandmother lived on the third floor of the old Carolina Hotel.  On Sundays Gran would put two extra leaves in the dining table, filling almost all of the small living room of their apartment with table and chairs. If not too many grownups were there, I got to sit at the big table next to Gran Seawell.  My younger cousins had to eat at a small foldout card table in the kitchen. Usually one or more of my aunts or uncles would be there as well, and without fail the subject before, during and after dinner was politics.  I grew up thinking that this was mostly what all families talked about when they got together for family dinners.

In late April of 1948 we drove up to Raleigh to have Sunday Dinner with Judge and Gran.  An intensely contested Democratic primary election for governor was taking place that spring.  In those days, whoever won the Democratic nomination in May was always elected governor in November.  I didn’t know of but two Republicans in Lumberton — Mr. Sellers, who ran the bicycle and gun shop at Chestnut and 4th Street downtown, and Dr. Townsend, a dentist who lived on 17th Street.  The candidates for the Democratic nomination in the May Primary that year were a very distinguished man named Johnson and a good ole boy from Haw River, NC, named W. Kerr (pronounced like “car”) Scott.

The conversation that Sunday around the long table was really exciting.  My Dad (who was Mayor of Lumberton then), my Uncle Ashley (a lawyer in the Department of Defense in Washington), my Aunt Beth (a school teacher) and my grandfather all declared they were supporting Mr. Johnson.  My grandmother didn’t say much at first.  Then to everybody’s surprise she just said, “I’m supporting Scott.”

Gran Seawell was a very special person.  She was born in a little town near Sanford, NC, called Lemon Springs.  Her name was Bertha Smith.  And in 1904 at the age of 19 she was the switchboard operator for that part of what was then Moore County.  One day a very distinguished voice asked for a number in Lemon Springs, and a very squeaky voiced operator said, “Just a moment, Sir, I’ll connect you.”  It was my forty- year-old grandfather, then a bachelor and lawyer in Sanford, calling a client.  And as Dr. Frank Graham, the President of the University of North Carolina,  recalled that moment in an address on the occasion of dedicating a portrait of Judge Seawell in the State Supreme Court building, “Attorney Seawell hung up the phone, got in his buggy and drove out to Lemon Springs and introduced himself to Miss Smith on the spot.”  That one telephone call had everything to do with why I’m on the planet!  And that goes for most of the rest of us Seawells as well.

My grandfather’s name was Aaron Ashley Flowers Seawell, Jr. but everybody in the family called him either “Father” or “Judge Seawell,” except Gran Seawell, who called him Flowers.   Gran never attended college.  Yet she raised six children, all of whom attended the University of North Carolina at Chapel Hill.  All had graduate degrees in either law (the boys) or education (the girls).  And she would, over my grandfather’s long political career, as the wife first of a State Representative and then of the State Attorney General and finally of a Supreme Court Associate Justice, meet fancy people of all sorts – Senators, Governors, Presidents (President Truman came to Raleigh that same year, 1948.). Nobody intimidated her.

“Bertha,” Judge Seawell said, “You can’t do that.  Scott is an idiot.  He’ll ruin our state.  Johnson is my friend and the only choice. Period.”  Dad, Uncle Ashley and Aunt Beth nodded vigorously.

“Flowers,” said Gran, “Let’s not argue in front of the children.  We’ll discuss this later.”

“No,” said my grandfather, “I can see you’ve made up your mind.  And when your mind’s made up . . . well there’s not much sense in talking about it later.  Let’s make a deal, our votes are just going to cancel each other out, so you agree not to vote for Scott and I’ll not vote for Johnson.”  And thus, to the relief of everyone at the table, they agreed, and dessert was served.

On May 8, 1948, the North Carolina primaries were held.  To the amazement of the Raleigh News and Observer and almost everyone else, W. Kerr Scott was nominated, and in November, elected Governor of North Carolina.  On Sunday, May 13, we drove up to Raleigh to have Sunday dinner.  Now after we were all seated and before we passed everything around and served ourselves, my grandfather always would “say grace.”  He was an elder in the First Presbyterian Church of Raleigh and spoke his prayers like he and God were on a first-name basis.  There was a long pause that Sunday while the food sat waiting on the table and I sat wanting to dive into the mashed potatoes and gravy.  Finally, Judge Seawell cleared his throat and said, “Before I pray there’s something I need to get off my conscience.  Bertha, last Tuesday I voted for Johnson. I broke my word.  I hope you will forgive me.”

Her head still bowed, Gran said in a crystal clear voice, “Flowers, that’s all right.  I voted for Scott.”

And that was all that was said that Sunday about the primary election.  In years to come, however, Governor W. Kerr Scott would do some interesting things.  He paved the dirt roads of eastern North Carolina so farmers could get their crops to market better.  And my grandmother would say, “Now that’s my Governor!”  He also appointed to state judgeships a bunch of his old Haw River buddies (who not only had not gone to Chapel Hill to law school, they’d never been within ten miles of any law school). Judge Seawell and Dad were furious about this stupidity.  And Gran knew it was stupid too.  But she’d just shake her head when the subject came up at Sunday dinner and say, “That’s my Governor.”

In those days you could only be governor of North Carolina for one four year term.  So when his term was up, W. Kerr Scott of Haw River ran for the United States Senate.  Gran supported him again.  And again he won.  And again the blessings were mixed.  The stupidest thing he, or maybe anybody else who ever served in the U.S. Senate ever did (though that covers a lot of territory) was to introduce a bill to deal with the problem of hurricanes hitting the Carolina coast.  It was during that wonderful period of American history when federal officials were trying to find something good to do with the atomic bomb. They called it Project Plowshare, from the scriptural passage: They shall beat their swords into plowshares, and their spears into pruning-hooks: nation shall not lift up sword against nation, neither shall they learn war any more.” [Isaiah 2:4] And W. Kerr Scott believed in the Bible.

So his bill directed the Department of Defense to develop feasibility studies on how nuclear (Or as he pronounced it, “new-clur”) bombs could be deployed to break up hurricanes over the North Atlantic Ocean before they had a chance to reach the shores of the Tar Heel State.  Talk about our tobacco giving people cancer! After a few good new-clur rain storms, that weed would have lit up your chest like ET’s in the movie about the cute alien who wanted to phone home.

But you know what?  My Grandmother would still say, “Well, that’s my Senator.”  She voted for him, and she owned up to it.  Today when folks vote for a politician who later ends up doing something stupid, their memories go absolutely blank: Who?  Maybe the problem came along with the flush toilet.  Bertha Seawell grew up in an old farmhouse with an outhouse.  We treat our votes like, well, flush and forget.  Not our problem.  It’s those damn politicians.  Now I’m pretty sure this is not what Jefferson and Madison had in mind, exactly.  Bertha Smith Seawell never got to go to college, but she understood the meaning of “democratic republic” better than a lot of office holders I’ve known over the years.  “That’s my Senator,” she would nod and say.  And that was that.

Post script: When I worked for a U.S. Senator some years ago, I would often despair over members of the Congress – especially in the Colorado delegation – who would excuse their less than stalwart postures on difficult issues, by saying, “Well I’m here to represent the people in my district . . . and they just don’t want ________ (higher taxes for education, rational gun control laws, paying the extra cost of effective pollution control, etc.).”  Hobbes believed that the Social Contract ran from each person directly to the Sovereign.  Not between interest groups, not political parties, not the body politic, but one to one, citizen to king or president or parliament or congress or court.  Presidents, Senators, Congressmen, Supreme Court Justices are elected or appointed as singular in their duty – a duty to the Republic — as the individual citizens they represent, citizens who themselves authorize and are actual party to the acts and consequences thereof, of their representatives.  My grandmother gave me the metaphor to explain that subtle, often ignored, but absolutely essential link of republican governance.

Social contracts first and foremost authorize, or legitimate, governance.  This authorization can be either formal or informal, but it is not merely symbolic; it is actual, tangible, and real.  There are symbolic acts of authorization, of course–the saying of the Pledge of Allegiance, the singing of the National Anthem, or the swearing of the oath of allegiance by a resident alien becoming a naturalized citizen – but each of these formalities points to both a transforming and an enforceable reality.  It is instructive to read aloud the Oath of Allegiance that aliens take when becoming citizens:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.

In reality, every last citizen of our republic is so pledged, whether  they have actually spoken these words under oath or not.  Our common bond is not guilt by association; rather it is association by authorization.  Merely by enjoying the freedom and security of our commonwealth, we have authorized our governance, cast our lot with this revolutionary experiment in representative democracy, just as surely as if we had been in Philadelphia in 1776 when the Declaration of Independence was adopted and the Framers pledged for us all in the last line of The Declaration:  “And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.”

Geoffrey Garin of Peter Hart Research was my pollster when I was in politics in Colorado.  For my money Jeff is the finest political pollster in the country.  One reason he’s so good is that he runs focus groups to get an “ear” for how to ask questions and develop effective polling instruments.  Geoff tells of a group he conducted in 1990 to collect information on public attitudes on such issues as the extraordinary national indebtedness our government was running up during the Reagan presidency. Geoff pointed out that the national debt at the time was something like three trillion dollars, meaning that every man, woman and child in the country owed about $10,000.00 apiece.  An outraged member of the group shot back, “That’s not my debt; it’s the government’s debt.  Let them pay it.”  One wonders who “them” is?  Certainly Lincoln’s words at Gettysburg suggest that he didn’t have a clue: “. . . and that government of the people, by the people, for the people, shall not perish from the earth.”

Key to understanding Hobbes’s concept of authorization is his notion that each citizen individually and directly authorizes the social contract that binds the political community and forms the body politic. Authority and responsibility link governor and governed directly. To recall Hobbes’ words quoted at the outset of this chapter, “When we covenant to constitute a commonwealth, we become by institution author of all the actions and judgments of the sovereign instituted.”  In the modern world, it is not our habit to think thus, the contemporary frame of mind being concerned with asserting independence, not with accepting the responsibilities that arise there from.  Furthermore, from a Hobbesian point of view, the problem only becomes worse when looked at from the perspective of representation.

For Hobbes, the second key element in social contract formation is representation. What is it exactly that we citizens of the commonwealth have authorized?  What does our government represent?  How is each of us represented by our government?  The two concepts – authorization and representation – are intricately linked.  Hobbes believes that the primary thing represented by all legitimate governments is an agency for keeping the peace. In other words, government first and foremost exists for the security of the citizens of the commonwealth.  The function of the sovereignty created – whether monarchy or republic – is to enforce the peace.  And Hobbes is fond of “representing” this idea in dramatic form as a Leviathan, i.e. the Peace Beast!

The word “represent” has manifold uses in common parlance.  Lawyers represent us before the courts.  Business agents may be authorized to represent our interests in buying property or selling stocks.  In the law of agency – the legal foundation of all business association — a key concept (quite radical actually) is that “the acts of the agent are the acts of the principal.”  An actor on the stage represents a character in the play, making visible and tangible the written words of the playwright.  A flag visually represents the nation-state.  And, of course, we call the form of governance in many democratic nations such as the United States a “representative democracy.” But what is the nature and substance of how we as citizens are represented by our government?  What are the duties of the representatives, elected or appointed, whom we have authorized?  And perhaps more importantly, what are the duties of the citizens who are thereby represented?

Hobbes is not primarily interested in what our representatives – the King or the Parliament or the Courts – owe the citizen.  His primary focus is on the other side of the equation, namely, what “we the people” owe the commonwealth.  Such thinking runs counter to most modern sensibilities.  After all, our thinking goes, it is all about us isn’t it?  They are our representatives, aren’t they, elected to represent us?  Then they should do what we tell them.  Period. But who is this “us”? On the coinage of the United States are these Latin words: E Pluribus Unum, “Out of Many, One,” a phrase hauntingly close to Hobbes’s idea of political authorization and representation.

The Commonwealth in Hobbes’ view is not authorized by blocs of special interests nor by majorities or pluralities, but by each discrete individual, each citizen, himself or herself.  The relationship between citizen and sovereign is direct, one to one. Diversity of interests therefore is rampant. No one agent can represent three hundred million citizens with their hundreds of divergent concerns in any aggregate sense, save one: providing security, i.e., creating and maintaining the conditions of peace.  Beyond that, the sovereign, the representative owes us individual citizens zero, nil, nada.  Beyond that, the sovereign is answerable only to God, or in Hobbes’s words, to “the Laws of Nature.”  The modern practice of governing by the incessant polling of the populace would have been both unthinkable and totally repugnant to the political philosopher from Malmesbury.  This is radical stuff.

There is an old expression among lawyers, “He who represents himself has a fool for a client.”  In a similar vein, the “spoiled brat concept” of governance that prevails in most liberal democracies gives rise to a like motto, “E Pluribus Stultus,” or, “Out of Many, a Fool.”  And there are sufficient election results to support the contention!  Hobbes believed that those chosen to govern were authorized to do precisely that: to the best of their ability govern, act boldly on behalf of the Commonwealth “without fear or favor.”  Those four words actually are the foundation of the ethical professional of journalists, the so-called Fourth Estate.  In Hobbes view, “without fear of favor” should be the modus operandi of all sovereigns, all authorized to govern.

The essence of representation is that the representative gives political form and voice to the common will.  Imagine what might have happened if the representatives of the colonies gathered in Philadelphia in the spring and early summer of 1787 had decided that it was incumbent upon them, as some argued it was, to return to the individual colonies for further instruction and authority before adopting the Constitution of the United States.  Thank God, following Madison’s wisdom, they understood that they were to be “true representatives, and not mere vote carriers,”  (Sieyes:2003:12, Representation Vieira and Runciman)  and a political miracle happened, the colonies became a nation, literally, “one nation under God.”

For Hobbes, representation is the means by which individual citizens become a nation, a Commonwealth, a sovereign entity with will, purpose and common destiny. And that which is represented is not Nietzsche’s “Will to Power” but rather a common will to peace, the creation of a place in time and space where “life, liberty and the pursuit of happiness” is more than a dream; where it is made real in the daily lives of citizens.

I conclude this chapter with a quote from the book, Representation, by Monica Brito Vieira and David Runciman (Polity Press, Cambridge, 2008, p. 32) which brilliantly sums up Hobbes’s view of representation:

The genius of Hobbes’s account (as contrasted with John Locke) was that he did not assume that there was anything natural about representation, nor did he believe that agreement about representation could precede government.  He identified representation with the creation of government itself, which he understood as a wholly artificial process. “Artifice” for Hobbes did not have any of its later connotations of narrow, cramped pretense.  It meant creativity, the ability of human beings to fashion a world that worked for them.  In this respect, Hobbes’s was the more (i.e. more than John Locke) radical account of representation: by making representation co-extensive with the capacity of government to act, rather than a limitation of that capacity, he allowed it to be whatever political representatives wanted to make it.

Hobbes would have understood and appreciated the artifice that we call our own social contract as a nation – The Constitution of the United States – and the creative, inspired moment when “human beings fashioned a world that worked for them.”  Our common future again requires a principled boldness in both citizenship and governance.  Citizens are called to authorize representation not based on special interest, but rather on common cause: most fundamentally, our own survival.  Representatives are called to act with radical boldness, not with their political survival in view, but rather with the very survival of the human enterprise first and foremost.  Nothing that is timid can save us; we who are living on the cusp of environmental tolerances, demand unimpeded boldness.

We turn then to the most difficult issue of all – sovereignty.  Hobbes believed, up against the imperatives of survival, it takes a Beast to constrain us, or as he would sometimes fashion it “a mortal God” . . . The Leviathan.