Nota bene: this is the fifth of a series of blog posts on “the paradox of politics”; footnotes are below the fold.

“In vain, are we asked in what records this charter of our liberties is registered.” –David Hume, Of the Original Contract (p. 263) [1]

Last week, I began a new series of blog posts on the paradox of politics, starting with Thomas Hobbes and John Locke (see here and here). In brief, both Hobbes and Locke attempt to solve this perennial paradox by positing two imaginary constructs: a world without law or government (the state of nature) and a hypothetical agreement (the social contract). [2] Alas, to quote Jake’s reply to Lady Brett in The Sun Also Rises, isn’t it pretty to think so?

As it happens, it was the great philosopher-skeptic David Hume (1711–1776) who was the first to point out an embarrassing flaw in Hobbes and Locke’s elegant theoretical solution. [3] Simply put, if the social contract is the foundation of government and law, where do we go to look up the actual “terms and conditions” of this fictitious user agreement?

More specifically, in his Enlightenment-era essay “Of the Original Contract” (reprinted in Cohen 2018, pp. 262-269), Hume explains why the social contract theories of Hobbes and Locke (and Rousseau, for that matter) are “not justified by history or experience, in any age or country of the world.” (p. 264) For Hume, government and laws cannot be traced back to some hypothetical or fanciful agreement among illiterate savages; instead, history teaches us that government and laws are almost always the result of conquest and coercion:

“Almost all the governments which exist at present, or of which there remains any record in story, have been founded originally, either on usurpation or conquest or both, without any presence of a fair consent or voluntary subjection of the people.” (p. 265)

To this Humean historical objection, Hobbes and Locke attempt to salvage their social contract theories with yet another make-believe fantasy, the fiction of tacit consent — or in the case of Rousseau, “the general will” or volonté générale. [4] For Hobbes, for example, “The obligation of subjects to the sovereign, is understood to last as long, and no longer, that the power lasteth, by which he is able to protect them” (quoted in Cohen 2018, p. 201), while Locke writes: “If a man owns or enjoys some part of the land under a given government, while that enjoyment lasts he gives his tacit consent to the laws of that government and is obliged to obey them.” (quoted in ibid., p. 228, Locke’s emphasis)

Really? Hume’s take-down of the fiction of tacit consent is so devastating and logically irrefutable that it deserves to be quoted in full:

“Should it be said that, by living under the dominion of a prince which one might leave, every individual has given a tacit consent to his authority and promised him obedience; it may be answered that such an implied consent can only have place where a man imagines that the matter depends on his choice. But where he thinks (as all mankind do who are born under established governments) that, by his birth, he owes allegiance to a certain prince or certain form of government; it would be absurd to infer a consent or choice, which he expressly, in this case, renounces and disclaims.

“Can we seriously say, that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives, from day to day, by the 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. . . .” (p. 266, Hume’s emphasis)

In other words, Hume calls bullshit! But where does this leave us? Does the paradox of politics have no solution, after all? If it takes a theory to beat a theory, what is Hume’s solution to the law-liberty dilemma? (To be continued …)

[1] All page references in this blog post are to Michael Cohen (ed.), Princeton Readings in Political Thought, 2nd ed. (Princeton University Press, 2018).

[2] Also, for what it’s worth, Jean-Jacques Rousseau (1712–1778), building on the work of Hobbes and Locke, would create a third great strand of social contract theory a century later. See generally J. J. Rousseau, On the Social Contract, reprinted in Cohen 2018, pp. 270-297.

[3] Hume published his essay “Of the Original Contract” a few years before Rousseau wrote his classic work on the social contract. Nevertheless, the logic of Hume’s critique of Hobbes and Locke also extends to Rousseau. As a further aside, Hume and Rousseau were not only contemporaries; they also had a famous falling out in 1766. See generally John T. Scott and Robert Zaretsky, The Philosophers Quarrel: Rousseau, Hume, and the Limits of Human Understanding (Yale University Press, 2010).

[4] Rousseau’s description of the “general will” is reprinted in Cohen 2018, pp. 272-273.