On Contract Limitsr wer wer

8/12/2019 On Contract Limitsr wer wer

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On Libertarian Argument Limits to Social Contract Bargaining

David R. Hollady

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This dissertation is submitted in part requirement for the Degree of M.A. (Honours

with International Relations at the !niversity of "t Andrews# "$otland# and is solely

the wor% of the above named &andidate


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'n ibertarian imits to "o$ial &ontra$t )argaining

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*******,*******,*******

David R. Hollady

Table of Contents

TABLE OF CONTENTS ........................................................................................................ 2

ABBREVATONS ................................................................................................................. !

ABSTRACT ............................................................................................................................ "

NTROD#CTON .................................................................................................................. $

C%A&TER ' ON T%E NAT#RE OF (AN ........................................................................ )

REVE*OF%#(ANR+%TSDOC#(ENTS.............................................................................,-T%ATT%ENAT#REOF(ANSC%OCE.................................................................................,"T%ENAT#REOFNDVD#ALOBL+ATON...........................................................................,

C%A&TER ' ON T%E NAT#RE OF CONSENT ........................................................... 2,

DEFNN+CONTRACT..............................................................................................................22&ERCEVEDNECESST/OFCONTRACT..................................................................................2$L(TATONSONCONTRACT..................................................................................................20

C%A&TER ' ON T%E &RACTCAL (&LCATONS OF CONTRACT FLA*S ..!!

ENVRON(ENT.........................................................................................................................!"CONSCR&TON.........................................................................................................................!$DEBT.........................................................................................................................................!

CONCL#SON ..................................................................................................................... ",

BBLO+RA&%/ ................................................................................................................. ""

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Abbre1iations

Do De$laration of Independen$eNL 0atural awNNL 0ew 0atural aw&D 1ubli$ DebtSoV "$ale of 2aluesT+D Trans+generational Debt#D%R !niversal De$laration of Human Rights#N !nited 0ations#S !nited "tates

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Abstract

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ntrouction

&urrent modes of $onstitutional pro$ess afford ultimate power to the state to

$reate a do$ument to be approved by its $iti5ens in some form. The do$ument suffers

additional $onsideration from the international $ommunity# whi$h must re$ogni5e the

tenets of the new do$ument as prote$ting the rights that have $ome to be valued in the

$ourse of 6estern philosophy7 however# the modern $onstitutional pro$ess is sub8e$t

to numerous normative flaws and does not ne$essarily produ$e a governing do$ument

that $an logi$ally stand up to ob8e$tive analysis.

A$ademi$s disagree over all matters of rights# from their substan$e# to their

sour$e and appli$ation. 6hether $iti5ens en8oy rights# su$h as equality# based on

membership in a group or as sovereign individuals that e9ist prior to the state is an

important $onsideration when ma%ing a $onstitution. 6here governments submit

$onstitutions to be approved by a ma8ority and still sub8e$t those who disagree to the

provisions voted for by the ma8ority# a faulty assumption is allowed to persist-that

rights e9ist for groups# not for the individuals that $reate a state. The views of one

$onstituen$y# those that lose are potentially ignored.

This error in 8udgment is best viewed through the lens of the failed state-the

"omali $onstitution of :;right to liberty#?:but this did

not guarantee the safety of the individual in an environment where >serious# brutal

and often fatal $rimes are very $ommon.?/In a world where states $annot se$ure the

promises made# individuals must be able to guarantee their own rights or be said to

have no rights.

The failure of states to se$ure the promise of their $reed and the failure to truly

: >The &onstitution?/ >"omalia Travel "pe$ifi$ Information?

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represent the needs of the people ma%es it ne$essary to re$onsider the $onstitutional

pro$ess# espe$ially what rights the individual has when engaging in the $onstitutional

pro$ess with a potential government. As individuals# it is $ommonly a$$epted that he

or she has rights# whether based on "hues3$on$eption of human dignity or the older

Thomist $on$eptions of natural rights.4

This paper will argue that individuals e9ist prior to the states with rights based

on their unique and elevated $apa$ity for $hoi$e7 the right to $hoi$e# as the defining

$hara$teristi$ may not be abridged at any point during the $ontra$tual pro$ess# nor at

any point thereafter. Additionally# individuals must not ma%e de$isions that will limit

the $hoi$e of future generations who are entitled to the same range of $hoi$e#

in$luding the $hoi$e to a$$ept or re8e$t the so$ial $ontra$t $urrently in effe$t. In the

$urrent $limate where it not pra$ti$al to $onstantly devise a new $onstitution for ea$h

subsequent generation# $onstitutions should enumerate limited government powers in

order to allow ma9imum $apa$ity for $hoi$e at the level of the individual.

The argument will pro$eed in three $hapters. irst# a dis$ussion of human

nature# emphasi5ing how the ability for $hoi$e differentiates humans from other

animals# in$luding a review of past rights do$uments# the unique $apa$ity for $hoi$e

and a $onsideration of the idea of obligation# whi$h is $entral to a dis$ussion of

$onstitutional pro$esses. In a dis$ussion where rights are e9tended in the name of

>human dignity#?@it is sensible to dis$uss what it is to be human and why this is

signifi$ant. 6hile it is $ir$ular to suggest that humans should en8oy rights due to

human dignity with no further support# it is logi$al to surmise that individuals should

be allowed or entitled to maintain whatever it is that defines whatthey are. In the $ase

of humans# this paper will argue that the >what? is the $omple9 $apa$ity for $hoi$e#

3"ee "hue for a basi$ overview of Btraditional human rights.4"ee Alford for a dis$ussion of 0.@"hue# :4

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whi$h must be maintained in order to maintain humanity. This finding will dire$tly

impa$t the pro$ess of so$ial $ontra$t in that the governing apparatus should ma%e no

de$ision that would adversely affe$t an individuals humanity.

The se$ond $hapter will dis$uss the basi$ pro$ess of so$ial $ontra$t# first

defining the so$ial $ontra$t before dis$ussing its ne$essity and the pra$ti$al limitations

that the previous dis$ussion of human nature requires in order to maintain an

individuals humanity. A$ademi$s li%e &arole 1ateman suggest that in the $ontra$t

pro$ess# one party must ne$essarily have an e9pli$it or impli$it advantage over the

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mandatory $ons$ription represent three potential failures of so$ial $ontra$t theory-

ea$h s$enario represents a situation whereby the range of $hoi$e proffered to future

generations has been limited through failed $onstitutional pro$esses. )y reviewing the

effe$tiveness of so$ial $ontra$t in ea$h of these three areas# it is possible to re$ogni5e

the pra$ti$al appli$ation of the normative arguments e9pressed throughout this paper.

)efore $ontinuing# it is worthwhile to note $ertain assumptions on whi$h this

paper will be based. irstly# this is a largely normative analysis of the problem of

so$ial $ontra$t7 however# it will depart from this normative tra$% in an effort to

$onfront the problems presented in a more realisti$ manner so that the solutions

offered may be applied. It should be $lear to the reader when the paper has departed

from its normative methodology in order to offer more pra$ti$al solutions. "e$ondly#

while the terms $onstitution and $ontra$t will appear to be used inter$hangeably# the

term B$ontra$t will appear in referen$e to normative dis$ussion while B$onstitution

will appear in pra$ti$al dis$ussion7 there will be some ne$essary overlap where these

two methods of analysis meet. Thirdly# this paper will assume that an effe$tive

$ontra$t pro$ess is a means of $reating legitimate authority in government7 in this

way# it will be desirable for governments to enter su$h a pro$ess to 8ustify their

authority. astly# this paper will assume that an advan$ed $apa$ity for $hoi$e is what

ma%es individuals human.

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C3a4ter ' On t3e Nature of (an

In a dis$ussion of what Bhuman rights must be afforded to an individual# it is

important to understand what it means to be human7 without understanding this# it is

impossible to determine any sort of enumeration of for humans. 'riginally# human

rights were natural rights or natural laws (0-norms found in nature that $ould be

dis$overed through reason.:=Modern interpretations of rights generally pigeonhole

natural rights in their Thomist or o$%ean form::without $onsidering the wider view#

opening 0 to )enthams >nonsense upon stilts?:/

$ritique. More modern

interpretations have fo$used on the idea of human dignity without giving mu$h

$onsideration to the idea of what it is to be human# or why it is that humans are

entitled to dignity7 the human rights tradition in this regard has built itself on an

emotional rea$tion of human e9$eptionally.

Despite these faults# s$ien$e has regarded the human spe$ies as different from

others# and has $ome up with reasons to support this differen$e. As Alasdair

Ma$intyre notes inDependant and Rational Animals,13dolphins have proved to be

so$iable animals with goals and means of $ommuni$ation7 dolphins have even

managed to learn simple forms of languages taught to them by trainers.:4In a$$epting

that there are other forms of intelligent life in the world# it $annot simply be

intelligen$e that sets humans apart# but rather a $ombination of ob8e$tive and

sub8e$tive rationality that allows humans to ma%e $hoi$es based on $riteria they

determine for themselves. Haye% notes the sub8e$tive nature of human interests where

individuals possess >s$ales of valueFwhi$h are inevitably different and in$onsistent

:=)la$%# C:3::"ee Alford $hapter two on 0.:/)entham# private rights are also the $on$rete e9pression-the pra$ti$al

manifestation-of the rights to life and liberty#? defending the ob8e$tive right toprivate property./=Justinian# 3/:Justinian# ;

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ob8e$tive and innate properties that are $annot granted by the state# only re$ogni5ed.

0 in itself did not appear again in Justinians form# but did reappear through the

$onstitutions of the ren$h in the De$laration of the Rights of Man and the !nited

"tates (!" De$laration of Independen$e (DoIthat de$lared# >all menFare endowed

with $ertain unalienable Rights.?//6hile 0 has sin$e $ome under fire from $riti$s

for relying on mysti$al origins and $ir$ular logi$#/3it does mar% the beginning of the

human rights tradition. Additionally# as Hayden notes# >$riti$s of 0 struggle to $riti$

positive law if there is no basis of moral authority#?/4whi$h 0 in its traditional form

provides. Regardless# re+$on$eptuali5ing 0 in a neo+Justinian sense provides a

possible tool in analy5ing the unique nature of humanity# an idea that will be

$onsidered in the ne9t se$tion.

The most re$ent addition to the $onstitutional pro$ess is representation# as

manifested in the Mayflower &ompa$t# whi$h di$tated that the settlers would >submit

to su$h government and governors as we should by $ommon $onsent agree to ma%e

and $hoose.?/@"imilar to the early manifestation of 0 under Justinian# representative

government had previously e9isted in Eree$e where Aristotle des$ribed a system

where offi$ials were >ele$ted by lot7?/


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of the provisions dis$ussed above# but built on the o$%ean 0 ideas espoused in the

DoI. The su$$ess of the do$ument is largely related to its vague guidelines# where

individuals are granted large amounts of freedom in order to avoid the >long train of

abuses?/Cthat led to the founding of the !". The 6eimar &onstitution# whi$h would

later allow the rise of 0a5i Eermany# had similarly progressive provisions# but

wea%ened its power with provisions that would initially de$lare >the rights of the

individual are inviolable#?/but $ontinue to allow >deprivation of individual libertyF

if based on laws.?/;The progress of the previous millennia has sin$e resulted in a

number of do$uments by the !nited 0ations (!0# li%e the !niversal De$laration of

Human Rights (!DHR# whi$h in$ludes the most e9pansive enumeration of rights#

going so far as to afford individuals >periodi$ holidays with pay.?3=The !DHR does

overrea$h on a number of its arti$les while providing no vehi$le or suggested pro$ess

to legitimi5e intervention to se$ure rights7 however reading through its arti$les one

re$ogni5es both an a$$urate depi$tion of the attitude in human rights dis$ourse as well

as a formidable attempt to $odify the rights required to allow $hoi$e.

The progression of rights do$uments does not provide a pi$ture of what the

$onstitutional pro$ess ought to prote$t or how it ought to fun$tion7 however it is a

useful means of seeing how the pro$ess has fun$tioned and what it has valued in the

past. Ka$h do$ument did represent a su$$ess at the time# primarily due to its superior

nature to previous do$uments-the penalties for death in Hammurabis &ode be$ame

milder by the time of Justinian-but progress is not the same as su$$ess. The progress

of ea$h do$ument was that it deferred more responsibility to the individual# failures

o$$urred when governments as$ribed more responsibility to themselves# as is seen

/CDoI# :/6eimar &onstitution/;Ibid3=!DHR# /4

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through the failure of implementation of the !DHR where a duty bearer is required

for an arti$le to su$$eed. 0o5i$%s argues that the only way to $reate utopia is to

$reate

>a framewor% for utopias# a pla$e where people are at liberty to 8oin

together voluntarily to pursue and attempt to reali5e their own vision of

the good life in the ideal $ommunity but where no one $an impose his

utopian vision upon others.?3:

As the do$uments move to allow more individual autonomy to utili5e the human

$apa$ity for $hoi$e# 0o5i$%s vision be$omes more viable.

That the Nature of Man is Choice

The notion of 0 espoused by Justinian->that law whi$h nature tea$hes to all

animals?3/-represents the $on$eption $losest to the true form of 0. Justinians

observation that $ertain things are natural is $orre$t7 $ertain things are a matter of

nature-of biology-and do not require intuition to re$ogni5e# but rather are obvious

to an observant individual. Humans feel pain when they are hurt7 pain is not

something that one must %now intuitively# but rather something ob8e$tive in the world

that $an be a$%nowledged by all individuals who have felt it. 1ain requires no

religious $onfirmation# nor rational sequen$ing to dis$over# only a stubbed toe or a

paper $ut. The human response to avoid pain is a natural one# and from this# one $an

a$%nowledge a 0 that individuals will tend to avoid pain when possible.

0 has histori$ally been a means to find an ob8e$tive form of morality in the

world. "$holars have used it to 8ustify positive law# 8ustify a$tion or 8ustify rights7 but

ea$h of these requires one use 0 in a way that $annot be supported. 6hen Justinian

3:0o5i$%# 3:/-see 0o5i$%s part three for further dis$ussions on the impli$ations of

utopia and $ritiques on generali5ed $on$eptions.3/Justinian# 3

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notes >by the law of nature these things are $ommon to man%ind-the air# running

water#?33it is to suggest that air e9ists# so humans are li%ely to use it. 0 $annot be

used to determine ends without suffering >the epistemologi$al diffi$ulty of

determining norms that are dedu$ed in some other way from an ob8e$tive#

independent moral reality.?340 is a tool to des$ribe the means-what $apa$ity e9ists

in living things and the surrounding world that would $ause an e9pe$tation for $ertain

a$tion. This $on$eption of 0 will be termed 0ew 0atural aw (00.

In terms of the human biologi$al $apa$ity# the human brain is built to ma%e

$hoi$es based on a $omple9 set of $riteria# determined by the brain. Humans have

e9tensive amounts of Bwhite matter# a substan$e that allows for more $onne$tivity

between brain tissue and enhan$ed $ommuni$ation throughout different parts of the

brain.3@6hen a human $onfronts a $ertain e9perien$e# the information enters through

the thalamus# into the sensory pro$ess area and then to the frontal $orte97 however it

may also enter through the thalamus and pro$eed to the amygdala# a primitive part of

the brain that is home to the fear $entre and responsible for more impulsive and

emotional rea$tions.3


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identified by Haye% is the >s$ale of valuesFwhi$h are inevitably different.?3As an

individuals emotional atta$hment to $ertain values shift# so will their pro$ess of

reasoning. 6hile it may not seem sensible to give up all of ones possessions and live

a life of poverty# some individuals may feel a strong emotional atta$hment to a

parti$ular religious persuasion that advo$ates they ta%e a vow of poverty-this

persons pro$ess of sub8e$tive reasoning will determine that giving up his possessions#

based on his s$ale of values ("o2# will lead to the greatest personal happiness for

him. &hoi$e is defined as the de$isions that result from this sub8e$tive "o2.

The true nature of humanity is the unique $omple9ity of $hoi$e7 while other

animals a$t on instin$t to ta%e $are of their young# female humans may re8e$t their

instin$t to bear a $hild in favour of a rewarding $areer7 alternatively the same female

may embra$e the biologi$al instin$t that $ompels her to bear and $are for $hildren.

'b8e$tive rationality may view the $areer that provides the greatest degree of wealth

as the right $ourse for a prospe$tive university graduate# but the graduate may prefer a

$areer in a sub8e$t about whi$h they feel passionate# or in a $areer that will allow them

to spend more time with family. 0o5i$%s dis$ussion of utopia a$$urately portrays this

point7 however# 0o5i$% does not draw the obvious $on$lusion-the sub8e$tive

differen$es between humans are not only ne$essary to allow for an individual to

ma9imi5e their own personal "o2# but is the $hara$teristi$ that ma%es the individual

human.

"tates already re$ogni5e the ability to $hoose as the primary trait of the human

e9perien$e-in 6estern legal systems# a defendant may $laim inno$en$e by reason of

insanity# where they argue that the defendant >la$%ed the $apa$ity to have intended to

$ommit the $rime.?3;Defendants to whi$h this defense applies are in$ar$erated in

3Haye%# 443;>not guilty by reason of insanity?

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spe$ial fa$ilities and denied the rights given to other $iti5ens as so$iety re$ogni5es the

ability to ma%e $hoi$es as an integral part of the human e9perien$e. Humans have

$ertain biologi$al $apa$ities that indu$e them to a$t in $ertain ways# but these

biologi$al tenden$ies do not require humans to a$t in any parti$ular manner. In this

way# $hoi$e is the primary human right# and the $apa$ity that must be established and

maintained for an individual to retain their humanity.

The Nature of Individual Obligation

Modern 6estern philosophy assumes that liberal demo$rati$ forms of

government are the best way to afford rights to individuals7 however the method of

$reating the bond between $iti5en and state suffers from flaws in terms of the nature

of $onsent. &arole 1ateman is $riti$al of the idea of $onsent as a whole# but also notes

that >it is frequently argued that even if $iti5ens $annot# with any plausibility# be said

to have promised or $onsented# they are nevertheless# politi$ally obligated in the

liberal demo$rati$ state.?4=iberal demo$ra$ies have $ome to assume that the

privileges they offer will be better than an alternative# or least that individuals $onsent

merely by >$arrying out their daily lives in a $ertain way.?4:

In analy5ing the nature of individual obligation# it is best to start with what the

$ontra$t pro$ess requires-a promise. )y agreeing to be a $iti5en of a state# the

individual has be$ome sub8e$t to a power that is >in$omparably greater than those of

an individual.?4/1romising provides a problem if one a$$epts the arguments from the

previous se$tions that di$tate the primary human trait to be $hoi$e be$ause promises

limit $hoi$e. A parado9 seems to e9ist-if a human must be allowed a $omplete range

of $hoi$e# they must be able to promise themselves in any $onte9t they $hoose7

4=1ateman# 34:Ibid# 334/Rousseau# /:

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however# this promise will ne$essarily limit their future range of $hoi$e if it is truly

binding. 1ateman argues# >there $ould be no su$h pra$ti$e as promising if any single

promise did not presuppose that promises oblige#?43or that promises made must bind

the future range of $hoi$es available to the individual. If one a$$epts 1atemans

analysis of the impli$ations of promising# Tibor Ma$hans argument that >no

assuran$e that one who sees nothing wrong with brea%ing ones $ommitment to

various rules will be $onvin$ed about sti$%ing with the $ontra$t?44indi$ates that no

promises $an be made sin$e there is no absolute means to bind an individual to their

promise. or Ma$han# $ontra$t theorys inability to >defend itself in terms di$tated by

its own tenets?4@represents a serious flaw.

It is true that individual $hoi$e must be ma9imi5ed in the so$ial $ontra$t

pro$ess in order to maintain humanity and satisfy the only true human rights

requirement7 however it is also possible to maintain $hoi$e while promising.

1atemans definition does not $onsider whyone would promiseG a promise is given so

others may %now the intention of the individual. In this way# a promise is an outward

manifestation of a persons intention to a$t in a $ertain way. If it is true that it is not

possible to %now the $omplete range of an individuals "o2# it is natural that an

individual would a$t based on whatever intention was related to him by another. The

promise only binds the individual so long as they have not publi$ally e9pressed a new

intention# whi$h will dissolve the preferen$e indi$ated in the previous promise. "in$e

the a$t of promising gives others an indi$ation on how they should a$t relative to the

intentions of others# an individuals $hoi$e to a$t in a new manner that is

$ommuni$ated publi$ally will not violate the promise# as it is natural to e9pe$t

someone to preserve their own "o2# nor will it oblige an individual in a manner that

431ateman# /C44Ma$han (/==@# @4@Ibid

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will limit the $apa$ity for $hoi$e in the future. During the $ourse of the promise# one

may suggest that an individuals $apa$ity for $hoi$e is limited by the outward

e9pression they have given in the form of the promise7 however this $ritique does not

apply sin$e the individual will only maintain their $ommitment to the promise so long

as it fits their "o2# during whi$h time they would not $hoose to ta%e any other a$tion.

1ateman is $orre$t that >politi$al obligation poses a general problemFbe$ause

it always requires aFvolunteerist 8ustifi$ation.?4$onsent theory has long been

embarrassed by the fa$t that it always runs into diffi$ulties by the demand to show

who has# and when# and how# a$tually and e9pli$itly $onsented?4Cis a problem7

however# in a pra$ti$al sense# it will li%ely be ne$essary to overloo% this flaw. The

writers of the DoI a$%nowledged the diffi$ulty of $onsent in saying#

>1ruden$e# indeed# will di$tate that Eovernments long established should

not be $hanged for light and transient $auses7 and a$$ordingly all

e9perien$e hath shewn# that man%ind are more disposed to suffer# while

evils are sufferable# than to right themselves by abolishing the forms to

whi$h they are a$$ustomed#?4

suggesting that while the $urrent government may not be the favoured one#

individuals usually prefer# in their "o2# to suffer rather ris% de$laring an intention

$ontrary to their promise to adhere to the tenets of the $ontra$t. It is not that

individuals do not have the right at any time to $hange their mind# but rather that their

"o2 di$tates that it is more worthwhile to $ontinue under the guise of the $urrent

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$ontra$t than ta%e the ris%s inherent in establishing a new $ontra$t. The importan$e of

the DoI is that it shows the ne$essary method of removing oneself from a $ontra$t by

de$laring a publi$ intention# allowing others to ma%e de$isions based upon the

de$laration of a new intent.

'bligation does pose problems for $hoi$e# but this problem is not

insurmountable in normative terms. As one moves to the pra$ti$al appli$ation of

obligation# it be$omes $lear that the "o2 e9hibited by ea$h individual-the same "o2

that ma%es them unique as a human being-is also what allows the normative flaws of

obligation to fun$tion in a pra$ti$al world# where individuals give ta$it $onsent

instead of de$laring a new intention $ontrary to the promise assumed through their

silen$e. As is seen in the $ase of the De$laration of Independen$e# or in the $ase of

individuals who $hoose to renoun$e $iti5enship to a nation# a publi$ announ$ement of

a new intention allows an individual to both ma%e a promise to establish an intention#

and then $ontinue to en8oy a $omplete range of $hoi$e by de$laring a new intention at

some point in the future.

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C3a4ter ' On t3e Nature of Consent

The first $hapter too% a great deal of $are to $onsider the nature of man in a

paper about so$ial $ontra$t for three spe$ifi$ reasonsG the human e9perien$e# the

human element# and the human restri$tions. irst# the individual human e9perien$e is

what matters when $onsidering the su$$ess of the so$ial $ontra$t pro$ess7 while

normative and logi$al analysis $an 8ustify $ertain a$tions# the logi$ must a$$ount for

the sub8e$tive "o2 of the a$tors. A so$ial $ontra$t is not ne$essary-as will be

dis$ussed in the se$ond se$tion of this $hapter-it is a de$ision made by individuals

after $onsidering their "o2. Individuals loo% to ma9imi5e personal utility based on

their own "o2-a su$$essful arrangement must be logi$al# but must also a$$ount for

the human e9perien$e as the means by whi$h su$$ess is evaluated.

The se$ond reason for the previous $hapter is the human element in the

$ontra$t pro$ess. 6hile normative theories should see% to argue based on logi$al

prin$iples# this logi$ must a$$ept that the a$tors# on whose e9perien$e the su$$ess of

the $ontra$t will be measured# will not ma%e de$isions based on ob8e$tive rationality.

Humans are rational $reatures that have a $apa$ity for rationality7 however the

individual human e9perien$e di$tates that ea$h person will have their own sub8e$tive

"o2# whi$h is responsible for the pervasive use of sub8e$tive rationality. 6hen

$onsidering the so$ial $ontra$t# a logi$al ar$hite$t will build a theory that will wor%

with a$tors that employ sub8e$tive rationality.

The third reason for the previous $hapter-and the purpose of this a$ademi$

endeavor-is to re$ogni5e what must be preserved in the $ontra$t pro$ess. It seems

prudent that humans be allowed to maintain their humanity# but without %nowing

what it is to be human# this is not possible. The idea that the $apa$ity for $hoi$e based

Hollady# D-DRAT /:


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on an individuals own unique "o2 is what ma%es an individual human means that a

$onstitution $annot ta%e any part of this away without ta%ing away part of the

individuals humanity. Additionally# the $ontra$t pro$ess# nor resulting $ontra$t# $an

be allowed to abridge this right. A government is the $onglomeration of individuals

with a $ommon purpose# whatever that purpose may be.4;

This se$tion will see% to apply these three ideas dire$tly to the idea of so$ial

$ontra$t. It will pro$eed by first defining so$ial $ontra$t and the normative method by

whi$h it o$$urs. This se$tion will also dis$uss $ommon $ritiques of so$ial $ontra$t and

note the ways in whi$h traditional dis$ourse limits the $apa$ity for $hoi$e. The se$ond

se$tion will dis$uss the ne$essity of so$ial $ontra$t-not that $ontra$t is ob8e$tively

ne$essary# but rather how it be$omes $learly preferred by most after a$%nowledging

the sub8e$tive "o2 held by individuals. The last se$tion will dis$uss in $lear terms the

pra$ti$al limits that must be pla$ed on the state in order to preserve $hoi$e for

individuals.

Defining Contract

"o$ial $ontra$t is similar to a promise-one party pledges to live under the

authority of another# generally with some balan$e of duties pledged and privileges.

1atemans definition of so$ial $ontra$t as a $onstru$t where >free and equal

individualsFrationally and 8ustifiably 8oin together in a politi$al $ommunity and put

themselves under politi$al authority?@=is a useful pla$e to start. Her definition

re$ogni5es individuals as prior to the state who ma%e a $hoi$e to 8oin based on a

shared "o2. There is nothing in her definition that requires individuals to 8oin# but

rather individuals are $onvin$ed by the merit of the arrangement that the $ontra$t is

4;Rousseau# :4 notes that >men $annot $reate any new for$es# but only $ombine and

dire$t those that e9ist.?@=1ateman# //

Hollady# D-DRAT //


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worth engaging. This definition fits the basi$# yet $omprehensive model of so$ial

$ontra$t offered by Rousseau.

Rousseaus model offers an opportunity to e9amine the normative pro$ess in its

simplest form7 in this model# all individuals e9ist prior to the state# 8oining together in

an effort to e9er$ise $ommon interests. The vote to a$$ept the initial $ontra$t must be

unanimous.@:As the $ontra$t is not pres$ribed for$ibly on the people# the state that is

$reated as a result of the $ommon interest should be $onsidered >the e9er$ise of the

general will.?@/6hat Rousseau proposes is simply a balan$e of duties and privileges

where

> what man loses by the so$ial $ontra$t is his natural liberty and an

unlimited right to anything# whi$h tempts him and whi$h he is able to

attain7 what he gains is $ivil liberty and property in all that he possesses.?@3

This basi$ understanding does not in$orporate a $omprehensive dis$ussion of all the

different sorts of variations in so$ial $ontra$t# but it does serve as a valuable starting

point in a dis$ussion of the short$omings inherent in the $ontra$tual pro$ess.

Kven this simple version of so$ial $ontra$t e9hibits flaws that many have tried

to solve over the years7 this paper re$ogni5es two basi$ problems. The first of these

problems is ta$it $onsent-$onsent of future generations raised under the guise of a

$ertain $onstitution# but that have not e9pli$itly promised to follow its provisions. The

se$ond problem is the binding nature of so$ial $ontra$t as eviden$ed through

1atemans staun$h definition of promising dis$ussed in the previous $hapter. 'ther

problems do e9ist# su$h as the relative bargaining power of different a$tors dis$ussed

by 1ateman7@4however these will not be treated here.

@:Rousseau# :=@/Ibid# /@@3Ibid# :;@4"ee 1ateman for dis$ussion on relative power of a$tors in bargaining.

Hollady# D-DRAT /3


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The idea of ta$it $onsent is not e9pli$itly noted by Rousseau# who requires that

all individuals submit to the $ontra$t initially before they sub8e$t themselves to the

will of the ma8ority in $on$ert with the $ontra$t. To understand the of the idea of ta$it

$onsent# ne$essary to $onsider o$%e. o$%e# who notes >0o body doubts but an

e9press $onsent# of any man entering into any so$iety# ma%es him aFsub8e$t of that

government#?@@poses the question of >how far any one shall be loo%ed on to have

$onsented?@hath any possessions# or

en8oyment# of any part of the dominions of any government?@Cand >is as far forth

obliged to obedien$e to the laws of that government# during su$h en8oyment.?@

o$%es $on$lusion is $orre$t# however his means of analysis in this regard are

fundamentally flawed. The individual e9ists prior to the state# as do all of his

possessions7 while these possessions have benefitted from the so$iety $reated by the

government under whi$h they then e9ist# the so$iety and government have gained

re$ipro$al advantage through their inter$ourse. This re$ipro$al advantage amounts to

debt paid-o$%es ne$essity that they $ontinue to be used under the guise of the

$urrent government is faulty. At the end of the first $hapter# the idea of a promise as

an outward e9pression of intention that gives others an e9pe$tation upon whi$h to

base their own a$tion was dis$ussed-it is for this reason that ta$it $onsent $an be

supported. An individual who lives and operates under the laws of the lo$al

government has given no reason for others to believe he has not $onsented to the

$ompa$t. As is the $ase of any promise# at any time the individual deems the so$ial

$ontra$t to no longer be in his best interest# he may publi$ally de$lare himself to no

@@o$%e# @@@


25/47


longer be a member of the $ontra$t.

The binding nature of so$ial $ontra$t is a se$ond problem that merits dire$t

$onsideration. o$%e gives a series of $ir$umstan$es where the $ontra$t would be

void# generally in$luding some failure of government to provide as promised7

however o$%e $on$ludes that >the power that every individual gave the so$iety#

when he entered into it# $an never revert to the individuals again as long as the so$iety

lasts# but will always remain in the $ommunity#?@;a sentiment similar to Rousseaus

de$laration that >the powers of the states are in$omparably greater than those of an

individual publi$ possession is also# in fa$t# more se$ure and irrevo$able.?the whole gala9y of

politi$al philosophers from 1lato to HegelFassumed that the fundamental politi$al

problem is sus$eptible of a final solution#?


26/47


possible. 0o5i$%s analysis agrees# suggesting anar$hy may be a viable alternative#


27/47


so$iety remains under two hundred individuals# it is still possible to use >personal

loyalties and man+to+man $onta$t to %eep order.?


28/47


larger the so$iety# the larger the $apa$ity for $hoi$e.

There is nothing about the human e9perien$e that requires the range of $hoi$es

for an individual be e9panded# and this is where the idea of $hoi$e departs from the

idea of pure utility. 6hile arranging so$iety may $ause more utility to e9ist in the

world# raising the level of utility e9perien$ed by ea$h individual# this is not ne$essary.

6hen a human individual be$omes an adult prior to the state# they have a number of

$hoi$es-it is these $hoi$es that $annot be abridged. The individual in question may

see% to ma9imi5e this by e9er$ising his interests in the $onte9t of so$iety# he may

even re$ogni5e the in$reased utility by be$oming a $iti5en of a state# but it is his or her

$hoi$e to ma9imi5e utility in this way. "tates that see% to improve utility for all

individuals under the guise of the government assume that all individuals will

re$ogni5e utility in the same way. 6hile 00 suggests that humans will see% the

$ompany of others# pro$reate# see% opportunities for leisure# et$.# this does not

ne$essarily represent the interests of all people. An individual may $hoose a

government that see%s to ma9imi5e his utility in this way# but it must be a $hoi$e on

his part to do so.

"o$ial $ontra$t is not a ne$essary entity# simply a desirable one. 00 gives a

firm basis for analy5ing the e9pe$ted wants of individuals# and through this it is

possible to see why so$ial $ontra$t is desirable7 however# as is the $ase in any

revolution# not all individuals will agree to the same terms# or agree that a so$ial

$ontra$t is desirable based on their sub8e$tive "o2-this ability to $hose what might

ob8e$tively seems to be an irrational $ourse of a$tion is essential in maintaining

humanity.

imitations on Contract

This paper has sought to $hara$teri5e $hoi$e as the $entral $omponent in

Hollady# D-DRAT /


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humans in order to understand the so$ial $ontra$t pro$ess. If all parts of the previous

dis$ussions are implemented# then no restri$tions are ne$essary-ea$h individual will

agree to live by whatever is valuable to them at the time and leave when that no

longer $arries the same value that it did previously7 however in pra$ti$al terms# this is

not entirely possible. 6hen a state $reates a $onstitution# it is unli%ely to en8oy

unanimous support# it is unli%ely to be e9pli$itly approved by ea$h individual of ea$h

future generation# and it is unli%ely to in$lude provisions that will allow those that did

not agree to its tenets to live in a way that is $ompatible with their own "o2 in spite

of the $onstitution to whi$h they are bound.

As this paper promised to ma%e some pra$ti$al suggestions alongside the

normative arguments that have formed its foundation# this se$tion will e9amine those

areas of the individual e9perien$e that may not be affe$ted by the government. As

ea$h of the provisions here apply to the individual prior to the state and# it $an be

suggested that they form the basis for a sort of impli$it global $onstitutionalism-

values that must be preserved to maintain humanity. 6hile traditional 0 and human

rights theorists offer wea% support as to why their rights are ne$essary# maintaining

what ma%es an individual human and allowing individuals to a$t to pro$ure rights on

their own behalf is not only theoreti$ally supported by the $on$eption of human

nature submitted at the beginning of this paper# but also empowers the individual to

obtain rights for themselves in the absen$e of effe$tive governments and without

undue burden on a duty bearer. In pra$ti$e# governments must do four thingsG

maintain basi$ freedoms# a$$ept ta$it $onsent# allow for amendments# and allow

individuals to abolish or leave the $ontra$t.

6estern $onstitutions tend to re$ogni5e basi$ freedoms# to the point that the

international $ommunity $onsiders those new $onstitutions that do not in$lude a

Hollady# D-DRAT /;


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spe$ifi$ enumeration of basi$ freedoms as illegitimate. )asi$ freedoms-freedom of

religion# spee$h# et$-are the simplest manifestation of $hoi$e in a $onstitution. 0one

of these basi$ freedoms require positive a$tions from others# only a negative

$ommitment to not infringe on an individuals freedom to $hoose for themselves.

6hile# in pra$ti$e# a right to use whatever $urren$y may not be sustainable and wre$%

havo$ in so$iety# the right to a free press allows individuals to $hoose to share ideas.

!ndoubtedly a $onstitution will eliminate some degree of freedom# formali5ing norms

in su$h a way that one must pay for items in dollars or weigh goods in %ilos# but so

long as the basi$ freedoms are prote$ted and one may leave the $ontra$t# an

individuals "o2 is li%ely to prefer those menial sa$rifi$es over a Hobbesian state of

nature and maintain $hoi$e through this preferen$e.

Allowing for ta$it $onsent seems simple-the state would want individuals to

have a seamless means by whi$h they will be$ome ta9paying $iti5ens of the state7

however it is not so simple. An individual who has be$ome a member of a state

without e9pli$it $onsent to the $ontra$t is an individual who has not agreed to the

do$ument as a whole# only the norms under whi$h he lives. 6hile living the day+to+

day lifestyle that the $ontra$t $reates may be satisfa$tory in their "o2# this does not

mean that they will a$$ept more o$$asional parts of the $ontra$t li%e $ons$ription. The

$onstitution must be written in su$h a way that there are no provisions that will redu$e

the $hoi$e of a $iti5en that has not e9pli$itly agreed to a $ourse of a$tion-if someone

is a pa$ifist# ta$it $onsent should not obligate them into military servi$e. &onstitutions

must be stru$tured in su$h a way that duties imposed on individuals-those that affe$t

$hoi$e-require e9pli$it $onsent. 6hile 8oining the military may be a $hoi$e offered#

one $annot be $ons$ripted without e9pli$it $onsent# as it will restri$t their ability to

$hoose and adversely affe$t their humanity.

Hollady# D-DRAT 3=


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The Ameri$an ounding athers $reated a broad $onstitution that allowed it to

remain relevant for hundreds of years7 however the original te9t was not perfe$t. In

the &onstitution# two basi$ prin$iples are displayedG versatility and the $apa$ity for

$hange. )y ma%ing a vague do$ument with few absolute provisions# the ounding

athers allowed the &onstitution to persist through generations of $hanging

$onditions. The $learly defined amendment pro$ess $reated a system to $hange the

do$ument a$$ording to the $hanging norms of the future so$iety. A so$ial $ontra$t

$annot foresee the "o2 that will be e9er$ised by su$$essive generations7 however#

maintaining the $apa$ity for $hoi$e through the enumeration of a few very spe$ifi$

freedoms within a broad system and $reating a pro$ess whereby future generations

$an $hange the do$ument to meet their needs is an effe$tive solution to the problem

that $iti5ens will not want to >$hange government for light and transient $auses.?


32/47


determines an alternative to be preferable.

Hollady# D-DRAT 3/


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C3a4ter ' On T3e &ractical m4lications of Contract Fla5s

The flaws presented in the so$ial $ontra$t pro$ess $reate ne$essary problems

for the legitima$y of $ontra$t# espe$ially as these flaws apply to future generations. It

is not un$ommon for politi$al theorists to overrea$h# $reating a burden of duty where

none should e9ist7 however the flaws of so$ial $ontra$t $reate a burden unli%e any that

has previously e9isted as legitimate-pla$ing it on future generations. o$%e notes

that individuals $an $ommit themselves to a $ourse# but >$annot by any $ompa$t

whatsoever bind his $hildren or posterity.?C:

The flaws of so$ial $ontra$t are best seen through the lens of three

$ontemporary issuesG the environment# $ons$ription and debt. The environment poses

an interesting dilemma in that its maintenan$e requires restraint by those that

$urrently use it-this restraint is tantamount to a restri$tion of $hoi$e. The apparent

parado9 between $hoi$e now and range of $hoi$e later is an ideal pla$e to start in a

$onsideration of the potential flaws of $ontra$t. &ons$ription presents a problem that

seems slightly dated# but still e9ists today. 6hile some states require military servi$e

as a duty# $ommitting the lives of unborn generations to dangerous wor% poses a

serious threat to the sovereignty of individual $hoi$e. The last issue is trans+

generational debt (TED. It has be$ome a$$eptable for politi$ians to spend on $redit#

leaving future generations to pay the bill for servi$es in$urred by previous

generations. &urrent generations have no $laim against their $hildren# a population

that is not even guaranteed to a$$ept the so$ial $ontra$t nor had any part in de$iding

what $onstitutes a worthy e9penditure.

C:o$%e# @4

Hollady# D-DRAT 33


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En1ironment

In :;;# the average individual living in the !" used the equivalent of .

metri$ tons of oil.C/&onsumerism is on the rise with the worlds ri$hest twenty

per$ent of individuals using over three quarters of the available resour$es.C3In real

terms# every drop of oil used is oil that $annot be a$$essed by future generations7 as

this paper has argued that individual $hoi$e must be maintained and this se$tion has

suggested that imposing limits on future $hoi$e is a violation of these prin$iples# it is

worthwhile to $onsider whether the use of resour$es or degradation of the

environment now will adversely affe$t $hoi$e later.

The environment poses an interesting starting point $on$eptually be$ause it

requires one measure the range of $hoi$e offered to the $urrent generation against the

range of $hoi$e offered to future generations-the $hoi$e to mine $oal on a par$el of

land now means that future individuals will not be able to mine that same property7

however this apparent flaw $an be re$on$iled. Re$on$iling this apparent parado9

requires a normative $onsideration of what $hoi$es must be passed on to a future

generation# or whether a $urrent generation really $an have $omplete freedom.

As has been shown# $hoi$e defines human nature# that ea$h of us has a unique

$apa$ity for sub8e$tive rationality based on our own "o2 that informs our de$ision

pro$ess. As an individuals "o2 will be ne$essarily sub8e$tive# it is reasonable to

suggest that sub8e$tive reasoning will be based on a sub8e$tive interpretation of the

options presented# or that an individual will ma%e de$isions about what they feel will

best serve their "o2 based on what they believe to be true.

If individuals ma%e $hoi$es based on a range of opportunities available that

would suggest that they $ould ma%e any $hoi$e $on$erning the environment and that

C/>1opulation and 0atural Resour$es?C3>&onsumption and &onsumerism?

Hollady# D-DRAT 34


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there is no duty owed to future generations. The future generations may inherit an

environment that is signifi$antly degraded by the a$tions of the past generations# but

this $annot be viewed as having limited their range of $hoi$e. Just as the previous

generations did# they will $ome into a world with an unlimited range of $hoi$es based

on the environment that is presented to them-individuals living in the dessert who

would li%e to be$ome farmers will not be able to be$ome farmers7 while they have an

unlimited range of $hoi$e available to them# these $hoi$es are based on environment

to whi$h they have a$$ess. In the $ase of one wishing to farm in the dessert# it is not

the $hoi$es of individuals in the past that have restri$ted their ability to farm# but

rather naturally o$$urring environmental pro$esses that have made the land on whi$h

they live unsuitable for $ertain a$tivities.

The true range of $hoi$e will ne$essarily be limited by the $ir$umstan$es that

e9ist. An individual should be able to $omport themselves in a way that serves their

own interests and be able to thin% or do anything that they have the means to thin% or

do7 however the right to thin%# feel or do any parti$ular thing of interest does not

impose duty on others to a$t in su$h a way as to ma9imi5e the range of $hoi$es

available to another. )efore moving on# it is worth noting that this dis$ussion does not

pre$lude the possibility that an individual may value passing on a more healthy

environment to future generations-this se$tion is not an argument of how an

individual should feel or the moral norms of so$iety that may determine behaviour#

simply that environmental degradation does not affe$t $hoi$e.

Conscri4tion

&ons$ription# or mandatory military servi$e# poses obvious problems for

individual $hoi$e. 6hile an individual who has e9pli$itly $onsented to a $ontra$t in

Hollady# D-DRAT 3@


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whi$h $ons$ription e9ists may pledge themselves to military servi$e# as o$%eC4notes#

the initial members of the $ontra$t have no $laim over future generations. In a

normative sense# there should be no problem-individuals who do not a$$ept the

$ontra$t by simply refusing to serve7 those who do not ob8e$t a$$ept the provision as a

duty worth giving in e9$hange for the benefits gained through $ontra$t. 1ra$ti$al

$onstitutional pro$esses do not require e9pli$it $onsent# and sometimes even obligate

in $ases where an individual has e9pli$itly not $onsented by voting against a

$onstitutional referendum# ma%ing $ons$ription a pra$ti$al problem for $hoi$e.

'ver fifty states have a >$ompulsory $ons$ription?C@poli$y where at least

some part of the population will be required to 8oin and over seventy states have some

$ons$ription requirement that may in$lude mandatory servi$e or >sele$tive

$ons$ription.?Cprovide youth

training ne$essary for 8ob mar%et needs.?CJordans $ons$ription poli$y is meant to be

in the best interest of its people7 however $ompelling individuals to 8oin and

$ontrolling the sort of training they re$eive in order to stimulate desirable po$%ets of

the mar%et assumes the government %nows an individuals "o2 best# or that the

government has the privilege of determining what is best for an individual.

The ta$it $onsent required for pra$ti$al $onstitutional pro$esses will

C4o$%e# @4C@>Military "ervi$e Age?C!" raises spe$tre of $ons$ription?C>Military "ervi$e Age?

Hollady# D-DRAT 3


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ne$essarily obligate individuals to military servi$e# possibly against their will# in any

state that still requires $ons$ription. During the 2ietnam 6ar# the !" deployed a

for$e# one quarter of whi$h was draftee based. 'f this twenty five per$ent# this $ore of

draftees were responsible for over thirty per$ent of the $asualties. Individuals were

and still are $ompelled to 8oin a for$e to whi$h they never e9pli$itly $onsented#

$ausing the death of over seventeen thousand individuals in the $ase of the 2ietnam

6ar-a $onfli$t that did not dire$tly affe$t the se$urity of the !". Military servi$e is

not a harmless $hoi$e-not to say it is a wrong $hoi$e-but $arries signifi$ant ris%s

that $ombat will always present. or$ing individuals into servi$e introdu$es a

signifi$ant ris% of mortality into their lives.

True freedom# and the real manifestation of $hoi$e# requires an individual

e9er$ise their own "o2 independent of government $ontrol. In pra$ti$al terms# a

$onstitution that allows $ons$ription poses a ne$essary threat to future generations

who are required to ta$itly $onsent to the government that e9ists prior to them and yet

serve the tenets to whi$h they may have never intended to agree. &ons$ription is not a

harmless imposition# but rather a dangerous requirement that e9ists in some form in

over seventy states. 6hile ma8or 6estern powers have abandoned an a$tive

$ons$ription poli$y# ma%ing it seem li%e a distant issue# several Kuropean states still

require $ons$ription in some form and the !" has reserved the right to re$all the

draft.C;"o long as $ons$ription $ontinues to e9ist# it will impose una$$eptable limits

on individual $hoi$e in pra$ti$e.

Debt

In a normative sense# there is no problem with debt within $ontra$t as it is-

individuals borrow money to pay for servi$es that they will pay ba$% in the future7

C;Ibid

Hollady# D-DRAT 3C


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however in pra$ti$e# and when new $iti5ens are $onstantly added to a state through the

means of ta$it $onsent# large amounts of standing debt $reate a system where benefits

en8oyed today are paid for by $iti5ens of tomorrow. In pra$ti$e# there is over forty

trillion dollars of global publi$ debt (1D.=It is important to $onsider that#

theoreti$ally# there is no guarantee that future generations will a$$ept the $ontra$t and

pay this debt-this possibility is more realisti$ than it seems.

In Afri$an or Middle Kastern states where $onsistent government is not always

viable# there is no guarantee that a new generation will maintain the previous

government. During the Arab "pring# $iti5ens demanded new leadership-essentially

new government-in states li%e Tunisia# whi$h held over twenty billion dollars of

1D.:&onsidering this volatility# there e9ist two basi$ problems in pra$ti$e for large

TEDG those times when individuals ta$itly a$$ept the $onstitution to whi$h they are

naturally obliged and times when they do not a$$ept the $onstitution to whi$h they are

naturally obliged.

or those individuals that are said to have ta$itly $onsented to the government

that e9ists# whi$h is to say they have made no publi$ de$laration of an intention to not

follow the tenets of the $onstitution $urrently in e9isten$e# TED pla$es a burden on

them from whi$h they re$eive no benefit. Ta$it $onsent is a parti$ular problem

be$ause it $an only be suggested that an individual has impli$itly $onsented to the

$ontra$t at hand# not given e9pli$it $onsent to live under the pre$epts of the

$onstitution7 their $ommitment is to the norms established by the do$ument# not the

do$ument itself. or those who are naturali5ed or that e9pli$itly a$$ept the $ontra$t# it

would stand to reason that they have also a$$epted the debt that $omes with that7

however# those who have not e9pli$itly $onsented are required to pay for goods and

=>The global debt $lo$%?:Ibid

Hollady# D-DRAT 3


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servi$es that they did not authori5e or determine ne$essary. In Eree$e# the 1D is

equivalent to one hundred and thirty nine per$ent of its gross domesti$ produ$t/while

the its e$onomy $ontinues to de$line-this debt is so large that it has threatened to

ta%e down the Kuro7 in the !"# the 1D is appro9imately fifteen trillion dollars#3while

only a fra$tion of the population was naturali5ed in a way that they $hoose to a$$ept

the debt. or these $iti5ens# the debt passed is an entity to whi$h they did not approve#

but is normatively a$$eptable sin$e they e9pli$itly a$$epted the debt through

naturali5ation.

iving in the 6estern world predisposes individuals to believe that

government institutions e9ist with a degree of $ontinuity7 however# as previously

noted# the Arab "pring and the $onstant turmoil in Afri$a suggests that ta$it $onsent is

not a given. ebanon holds over fifty+five billion dollars worth of 1D#4yet is unable

to maintain effe$tive governan$e as it $ompetes with He5bollah for $ontrol of the

national government. After the fall of Mubara%# Kgypt is saddled with nearly two

hundred billion dollars of debt@and a non+des$ript governing stru$ture. "tates that

abandon their past $onstitutions through revolution or pro$edure may either de$ide to

$arry the debt forward and pay it ba$% under the guise of a new government or dis$ard

it as a remnant of the previous administration# but ea$h $ase presents problems. or

those that $arry it forward# the publi$ $onfirmation that the government did not

represent the interests of the people means that the people will $ontinue to be

responsible for something they already 8udged to be outside their "o27 for those who

re8e$t it with the previous government# $reditors will be spurned-a potential ris% of

doing business. It must be re$ogni5ed that politi$al entities are not so stable as to

/>1ubli$ Eross Debt?3>Eross K9ternal Debt?4>Elobal debt $lo$%?@Ibid

Hollady# D-DRAT 3;


40/47


re8e$t the possibility that governments will fall# and the debts they in$urred will not be

a$$epted by the ne9t generation.

or all the Leynesian theories on debt spending as a means by whi$h states

$an regulate and maintain the e$onomy# the logi$al impli$ations of these a$tions must

be $onsidered. In terms of so$ietal norms# it is generally a$$epted that one should only

pay for what they re$eive7 in a normative sense# there is no guarantee that the

$iti5enry will maintain the $urrent government and agree to pay at all. Instead of

be$oming an adult with a $omplete range of $hoi$e# individuals are limited by debt

imposed on them# requiring them to either disavow themselves of the debt and their

state# or $ontinue in a state of ta$it $onsent and unmerited servitude.

Hollady# D-DRAT 4=


41/47


Conclusion

The post+6estphalian era has a$$epted the state as the primary instrument in

politi$s7 however this assumption that the state must ne$essarily e9ist is

fundamentally flawed. Theorists suggest the state as the primary unit# and then

suggest that governments $an only be legitimi5ed through the support of the $iti5enry#

but do not $onsider the possibility that no parti$ular government will garner the

widespread support ne$essary to instill the legitima$y needed by the state to a$t on

ea$h $onstituents behalf. 1ra$ti$e bears this out-failed states li%e "omalia and Haiti

have proven unable to form lasting government# in some $ases leading to pervasive

violen$e as $ompeting interests drive a$tors to $onfli$t. The inability for these fa$tions

to mediate their interests# instead turning to violent means by whi$h they hope to

serve their interests# presents a physi$al manifestation of the different "o2 present in

humans# but also provides an e9ample where individuals must prote$t themselves in

the absen$e of some overar$hing authority.

It is ne$essary to start with the question of what it means to be human-for all

those who argue that human dignity is a basis by whi$h rights may be logi$ally

supplied# they assume two things with no supportG that humans are in fa$t different

from other animals and that humans are entitled to dignity. The se$ond assumption is

dependant on the first in that one first must define what it is to be human before one

$an understand why humans deserve dignity. Assuming something is entitled to

dignity without %nowing what it is provides no logi$al basis by whi$h the $laim of

deserved dignity may be substantiated.

Humans are in fa$t different. 6hile many animals may be $apable of learning#

$ommuni$ating or even planning# humans $ombine these abilities-these instin$ts-

Hollady# D-DRAT 4:


42/47


with the $apa$ity for sub8e$tive rationality. Humans develop and use a sub8e$tive "o2

that is not only unique to humans as a spe$ies# but also unique to ea$h individual

human. This reali5ation allows the theorist to do two thingsG determine what it means

to be human# from whi$h one $an start to understands what rights are required# and

$reate effe$tive normative models that a$$ount for the human element in their

analysis.

6hat it means to be human is the most important $onsideration in that all

future de$isions $on$erning rights must be 8ustified by this $on$eption. This paper has

suggested the idea of 00# or a form of 0 that uses biology as a means by whi$h

one $an understand human nature# is a useful tool for analysis. That humans $an

$hoose has no $lear lin% to the idea of morality# other than to suggest that a $olle$tion

of individuals may $ome to value $ertain prin$iples# from whi$h one $an surmise that

groups of individuals so$iali5ed together may develop a similar sub8e$tive range of

prin$iples whi$h they $all morals.

00 also suggests that humans are so$ial $reatures and will $hoose to 8oin

together in so$iety. At this point one must dis$uss how this may ta%e effe$t. That

humans have the $apa$ity and the right to ma%e the de$ision to 8oin is $ertain# but

moving from the normative dis$ussion to the pra$ti$al dis$ussion# it is ne$essary to

$onsider whether the human $apa$ity for $hoi$e is preserved# and what measures must

be ta%en to ensure that the new government does not infringe upon individual $hoi$e.

In pra$ti$e# this means limiting the power of the state to a$t $ontrary to $ertain

liberties-basi$ freedoms# ta$it $onsent# amending $ontra$t and leaving $ontra$t-in

order to maintain the humanity that is manifested through $hoi$e. 1ra$ti$al appli$ation

requires theorists a$$ept some degree of normative flaw in the %nowledge that the

human element will allow near seamless appli$ation of $ontra$t7 while a $onstitution

Hollady# D-DRAT 4/


43/47


may not be perfe$t# the "o2 e9er$ised by most will allow the government to $ontinue

as individuals $hoose that whi$h they %now over that whi$h they do not %now.

1ra$ti$al flaws do still e9ist# and generally o$$ur when the government has

sought to in$rease its own power over the $iti5enry. 6hile# as dis$ussed before#

environmental issues do not pose a threat to the logi$ of so$ial $ontra$t# $ons$ription

and debt do threaten the $hoi$e of future generations. Individuals may pass debt onto

themselves# or obligate themselves into servi$e until whi$h time it no longer suits

their needs7 however the government or past generations may not hamper any present

or future individuals right too $hoose without adversely affe$ting their humanity.

Individuals are $apable of ma%ing $hoi$es that affe$t their lives and must be

allowed to do so. It is an individuals $hoi$es that ma%e him different from other

animals and other humans. If it were true that all humans were ob8e$tively rational

and shared the same values# there would be no need for $ontra$t sin$e all individuals

would share the same "o27 however this is not the $ase. Eovernments are not

ne$essary# they are desired and only $ome into being through the $olle$tive a$tion of

individuals-it is essential that a $onstitution satisfy the needs of the people that it

represents in order to maintain logi$al legitima$y.

Hollady# D-DRAT 43


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