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The Social Contract and Natural Law in the 21st Century

Thomas Hobbes is credited with first explicitly laying out what became known as social contract theory, but the idea can be traced through Machiavelli to Augustine of Hippo, and all the way to ancient Greece and the two generations of philosophical work from Plato and Aristotle. Today, the concept is so ubiquitous within the western tradition that its model appears fairly simple: in order to avoid the chaos and danger of systemic anarchy, it is necessary for “the people” of a place to surrender some of the absolute freedom that an anarchist environment would provide, and submit to the laws restricting behavior as dictated by an hierarchical government – in American, one which holds its authority only with the consent of “the people.” When the model is broken apart and examined piecemeal, however, the seemingly common-sense assumptions propping it up may seem somewhat less obvious.

The first premise, that absolute freedom for individuals leads to chaos, stems from the state of nature theory found at least as early as republic era Roman law. The idea of the state of nature is that there is a categorical difference between rules established by people (laws of nations) and those which exist even in the absence of people (laws of nature). The theory arose again during the Renaissance, again premised on this delineation and presumed to harken back to a theoretical existence before the creation of the first state. In this pre-state environment, the only laws that applied to the people were those of nature. As such, the theory goes, because every individual is only interested in advancing their own ends (presumption of self-interest), the resulting competition would inevitably lead to nearly absolute social chaos.

This, of course, ignores the role of social relationships such as those between close relatives, members of a household, romantic couples, close friends, all of which effectively bind people together socially, and focuses only on the relations of rivalry, enmity, etc… which compel people to be at odds with one-another. Even the idea that the grouping of individuals into a discrete category, the people, at this level of a state of nature is contradictory, both with the assumption of total chaos and with the logical conclusion that the only categorical designations which would apply would be those within the perspective of each individual.

The concept of natural law, from the Roman Republic on, establishes a sound principle. There are rules which exist outside of those which are invented by humans. Those laws are the immutable guidelines of the physical world that are theorized through scientific study in physics, chemistry, biology, and all the other scientific disciplines. While Roman law appears to have seen nature as something to be conquered and superseded by the laws of nations, the truth is that these natural laws as wholly separate from human laws because they cannot be conquered or superseded.

Human laws, on the other hand, are behavioral restrictions enforced through threats of violence in one form or another, and executed by means of human action. When human behavior is observed in the absence of these restrictions, the result is not a war of all against all as Hobbes assumed, but instead a complex system of social arrangements between individuals, based upon their choices as informed by the ever-changing but understandable system emotions, symbols, and logic which shape any individual’s perspective. Thus, family groups and friendship networks will tend to work together. And when competition does present as a factor within social relationships, it will frequently occur in such a way as to avoid violent confrontation between individuals. Only when competition is between disparate groups which are so separated by territory or social network that other motivating factors push aside the desire to avoid violence, or when relationships of trust between family and friends are rejected by the parties involved, does interpersonal conflict reliably result in violence.

This is not at all a claim that people who live in non-state societies will never have violence between members of the same social network. Rather that what violence would occur would be far from absolute, and not a consequence of total social chaos as suggested by the traditional theory of natural law. Individuals in any society tend towards emotional and symbolic reasoning at least as much as rational decision making in determining their choices. Between the two, there is sufficient motivation from neurological predisposition and the drive to establish and maintain homeostatic equilibrium that individuals within a population will reliably engage in social behavior if provided the opportunity.

Also rejected is the assumption that “the people” will make a universal and abstract choice to give up freedom in exchange for social stability. The absolute chaos described by Hobbes does not exist in naturally occurring groups of stateless peoples, and historically such chaos has only remotely presented when the people involved were exposed to such an extreme level of iterated violence, a level so far beyond the baseline of stateless societies, that the various structures of sociability were rendered wholly ineffective.

Such synthetic violence is present almost exclusively throughout anthropology (typically in prehistoric circumstances), when one group of individuals relies on coercion to establish their hierarchical superiority over other groups – which are subsequently bound together by their shared fear of coercion into something resembling a unified category (symbolically representable as us against them). Systematic violence does not itself come as a consequence of non-state organizations universally, only from those groupings of individuals which have chosen to replace the social symbol of us and them with us against them. Conceivably, the role of fear within the cognitive processes of the populations targeted by such violence might even inform the growth of sociality within such populations, merging them together into a group closer to the hypothetical of “the people” seen as an essential element of a state.

It follows that the artificial elevation of one group over another (hierarchy) through the use and threat of sufficiently elevated violence can lead to the creation of government, either through accepting the aggressors’ terms and threats or defending against them. It is not the spontaneous consensus of “the people” out of the total chaos of a Hobbesian war of all-against-all which created the first “states” in history. In the process, there is resistance and disagreement about how to deal with the aggressors, and when a consensus is reached it is decided only by those who remain. Their descendants end up bound within a system of relations born from endemic violence, and are not themselves free from the symbolic us against them.

This is, of course, a very simplistic and hypothetical representation of the evolution of hierarchy and government within prehistoric populations. No doubt preceding conquest by the violent outsiders, similar dramas played out among smaller groupings of individuals, some even resulting in smaller-scale scenarios where hierarchy was developed based on violence. But these situations did not predominate those early settings, and it was not until the level of violence reached a point at which it could not be ignored or successfully defended by the individuals within geographically or symbolically delineated areas that the tide of pervasive egalitarianism turned up the level of violence within population and hierarchy was able to predominate.

The social contract is largely consequential of violence on a large scale, with perpetuating aggressors and victims. It is possible to honestly address the evolution of the role played by hierarchy in later iterations of historical events. Hierarchical overlords used (and still use) their ability to wield overwhelming violence to attain their needs and desires first by simply taking what they wanted from the people they conquered, subject peoples now symbolically owing their lives to their superiors for not being killed (yet). What is a portion of a family’s harvest, a crafter’s wares, or a woman’s fertility (and thus her freedom and dignity), when compared with that omnipresent fear of imminent and violent death?

The need to choose between death, exodus, or subservience is continued when an individual is in the role of “subject” within such a hierarchical relationship. Those who do not leave or die from resisting the authority of their superiors, have either taken control of the hierarchy themselves, or have chosen to submit and endeavor to make ends meet within their circumstance. Acceptance can thus become symbolic incorporated into the perspectives of entire groups of people, manifested as the hierarchical obligations of tribute. The desire to maintain homeostatic equilibrium becomes satisfied when the tribute obligations do not overwhelm the abilities of subject individuals to provide for themselves. Symbolic traditionalism regarding iterative tribute obligations is adopted by both rulers and their subjects, serving to develop and maintain equilibrium across the affected population.

Throughout history the social contract has not served to reduce violence between people, but instead to regiment and normalize violence in such a way as to maintain the system of traditional obligations between them. The argument that hyper-violent anarchy is the only alternative to the “restrained” violence of the state is invalidated by actual examination of human social behaviors, both historic and contemporary. Much of the philosophical framework for current liberal political systems has been built on inaccurate assumptions and faulty conclusions. There are certainly some valuable ideas that have come from political philosophy through the ages, but they need to be examined in the light of new knowledge and understanding.

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