Contract theory is tantamount to American constitutionalism and is central to the founding of the United States. In essence, contract theory means government by consent. In the Declaration of Independence, Thomas Jefferson, channeling authors like John Locke, wrote that “all men are created equal” and “endowed” with the “unalienable Rights” of “life, liberty, and pursuit of happiness.” Furthermore, “to secure these rights, Governments are instituted among Men, deriving their just powers form the consent of the governed.” Moreover, if any “Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.” This is the quintessence of American political theory: people have original and natural rights; people secure these rights by instituting a government that rules by their consent; if government violates these rights, the people can justifiably change their government since the “contract,” to which both people and government are parties, has been breached.
But is contract theory historically valid or is it merely a philosophical, feel-good construct used by Western democracies? Considering the date of Humes work, i.e., 1752, it is important to note that it was written prior to the construction and ratification of the Constitution of the United States. Under the circumstances of the ratification of the U.S. Constitution by state conventions elected by the people, the fact that the United States was founded by a contract proper is generally accepted. However, even by conceding that point, one may ask if the United States is still governed by consent or does it now resemble the kind of long-standing tradition described by Hume in his essay?
The following will be a combination of editorial summaries and direct quotations.
August Glen-James, editor
David Hume began his analysis by summarizing prehistory wherein he made two major points: first, that a form of contract must have been made by ancient man given the facts of human nature and condition—at least in the abstract; second, that there is no record of this contract. He wrote:
When we consider how nearly equal all men are in their bodily force, and even in their mental powers and faculties, till cultivated by education; we must necessarily allow, that nothing but their own consent could, at first, associate them together, and subject them to any authority. The people, if we trace government to its first origin in the woods and deserts, are the source of all power and jurisdiction, and voluntarily, for the sake of peace and order, abandoned their native liberty, and received laws from their equal and companion. The conditions, upon which they were willing to submit, were either expressed, or were so clear and obvious, that it might well be esteemed superfluous to express them. If this, then, be meant by the original contract, it cannot be denied, that all government is, at first, founded on a contract, and that the most ancient rude combinations of mankind were formed chiefly by that principle. In vain, are we asked in what records this charter of our liberties is registered. It was not written on parchment, nor yet on leaves or barks of trees. It preceded the use of writing and all the other civilized arts of life. But we trace it plainly in the nature of man, and in the equality, or something approaching equality, which we find in all the individuals of that species.
Hume then buttressed the abstraction of ancient man’s “consent” by identifying current political power, founded on “fleets and armies.” This kind of power is “plainly political, and derived from “authority,” which is the effect of established government. From this line of reasoning, Hume concluded that there must have been some type of primitive consent that had tacitly passed through the generations to his day. “A man’s natural force,” Hume noted, “consists only in the vigour of his courage; which could never subject multitudes to the command of one. Nothing but their own consent, and their sense of the advantages resulting from peace and order, could have had that influence.” Mankind, then, recognized the advantages obtained by governmental organization for the protection and, it is inferred, gave their consent to be ruled. Hume qualified his thoughts and conclusions thusly:
Yet even this consent was long very imperfect, and could not be the basis of a regular administration. The chieftain, who had probably acquired his influence during the continuance of war, ruled more by persuasion than command; and till he could employ force to reduce the refractory and disobedient, the society could scarcely be said to have attained a state of civil government. No compact or agreement, it is evident, was expressly formed for general submission; an idea far beyond the comprehension of savages: each exertion of authority in the chieftain must have been particular, and called forth by the present exigencies of the case: the sensible utility, resulting from his interposition, made these exertions become daily more frequent; and their frequency gradually produced an habitual, and, if you please to call it so, a voluntary, and therefore precarious, acquiescence in the people.
Hume then cut to the quick in the following way:
But philosophers, who have embraced a party, (if that be not a contradiction in terms) are not contented with these concessions. They assert, not only that government in its earliest infancy arose from consent, or rather the voluntary acquiescence of the people; but also, that, even at present, when it has attained its full maturity, it rests on no other foundation. They affirm, that all men are still born equal, and owe allegiance to no prince or government, unless bound by the obligation and sanction of a promise. And as no man, without some equivalent, would forego the advantages of his native liberty, and subject himself to the will of another; this promise is always understood to be conditional, and imposes on him no obligation, unless he meet with justice and protection from his sovereign. These advantages the sovereign promises him in return; and if he fail in the execution, he has broken, on his part, the articles of engagement, and has thereby freed his subject from all obligations to allegiance. Such, according to these philosophers, is the foundation of authority in every government; and such is the right of resistance, possessed by every subject.
Anyone familiar with the Declaration of Independence will recognize the general tone of Hume’s analysis; however, after unfolding the theory of consent, he pivoted to practice, i.e., to what one may actually see in history. “But would these reasoners look abroad into the world,” Hume wrote, “they would meet with nothing that, in the least, corresponds to their ideas, or can warrant so refined and philosophical a system.” He continued:
On the contrary, we find, everywhere, princes, who claim their subjects as their property, and assert their independent right of sovereignty, from conquest or succession. We find also, everywhere, subjects, who acknowledge this right in their prince, and suppose themselves born under obligations of obedience to a certain sovereign, as much as under the ties of reverence and duty to certain parents. These connections are always conceived to be equally independent of our consent, in Persia and China; in France and Spain; and even in Holland and England, wherever the doctrines above mentioned have not been carefully inculcated. Obedience or subjection becomes so familiar, that most men never make any inquiry about its origin or cause, more than about the principle of gravity, resistance, or the most universal laws of nature. Or if curiosity ever move them; as soon as they learn, that they themselves or their ancestors have, for several ages, or from time immemorial, been subject to such a form of government or such a family; they immediately acquiesce, and acknowledge their obligation to allegiance.
Hume believed, then, that what history actually reveals is that subjection to government is by some kind of tradition rather than consent. Moreover, Hume claimed that anyone who espoused any degree of belief in the idea of consent would be imprisoned the authorities and abjured by friends “for advancing such absurdities.” Hume thought it strange that humankind should be so ignorant of such an “act of the mind” as consent thus resulting in “scarcely . . . a trace or memory of it.” Of course, this line of reasoning offers abstract support to his theories.
In order to salvage some conceptual framework for the government-by-consent thesis, Hume willingly conceded that the idea was thought to be “the original contract.” Consequently, it would be beyond the working memory of anyone then living and, obviously, there would be no written record of the contract as it would have been antecedent to very act of writing. “If the agreement,” wrote Hume” by which savage men first associated and conjoined their force, be here meant, this is acknowledged to be real.” However, this ancient framework had been “obliterated” over time and cannot “now be supposed to retain any authority” other than as a concept that explains the consent and voluntary compact in which government originated. “Besides this,” he wrote, “it is not justified by history or experience, in any age or country of the world.”
In this passage, Hume made one other salient observation: The whole concept seems to imply the ability of “fathers” to bind their “children” with some sort of proxy consent “to the most remote generations.” This, Hume wrote, is not a doctrine that will be allowed by “republican writers” as one generation cannot bind another’s free consent to be governed.
At this juncture, it is important to remember that this was written in 1752—well before the Constitutional Convention of the United States. This is salient as a strong argument can be made that the Constitution of the United States is, in fact, a contract, and was constructed by deliberation and agreement amongst parties who freely, by majority vote, gave their consent to be governed by the document. Consequently, after his analysis of the past, Hume addressed the governments of the present in this way:
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 pretense of a fair consent, or voluntary subjection of the people. When an artful and bold man is placed at the head of an army or faction, it is often easy for him, by employing, sometimes violence, sometimes false pretenses, to establish his dominion over a people a hundred times more numerous than his partizans. He allows no such open communication, that his enemies can know, with certainty, their number or force. He gives them no leisure to assemble together in a body to oppose him. Even all those, who are the instruments of his usurpation, may wish his fall; but their ignorance of each other’s intention keeps them in awe, and is the sole cause of his security. By such arts as these, many governments have been established; and this is all the original contract, which they have to boast of.
The face of the earth is continually changing, by the increase of small kingdoms into great empires, by the dissolution of great empires into smaller kingdoms, by the planting of colonies, by the migration of tribes. Is there anything discoverable in all these events, but force and violence? Where is the mutual agreement or voluntary association so much talked of?
Even the smoothest way, by which a nation may receive a foreign master, by marriage or a will, is not extremely honourable for the people; but supposes them to be disposed of, like a dowry or legacy, according to the pleasure or interest of their rulers.
On the premise that “force and violence” are the only discoverable facts in the history of rulers and the ruled, Hume turns to elections:
But where no force interposes, and election takes place; what is this election so highly vaunted? It is either the combination of a few great men, who decide for the whole, and will allow of no opposition: or it is the fury of a multitude, that follow a seditious ringleader, who is not known, perhaps, to a dozen among them, and who owes his advancement merely to his own impudence, or to the momentary caprice of his fellows.
Are these disorderly elections, which are rare too, of such mighty authority as to be the only lawful foundation of all government and allegiance?
In reality, there is not a more terrible event, than a total dissolution of government, which gives liberty to the multitude, and makes the determination or choice of a new establishment depend upon a number, which nearly approaches to that of the body of the people: for it never comes entirely to the whole body of them. Every wise man, then, wishes to see, at the head of a powerful and obedient army, a general, who may speedily seize the prize, and give to the people a master, which they are so unfit to choose for themselves. So little correspondent is fact and reality to those philosophical notions.
In support of his argument, Hume used a familiar example: The Glorious Revolution of 1688. Hume unpacked the English experience as follows:
Let not the establishment at the Revolution deceive us, or make us so much in love with a philosophical origin to government, as to imagine all others monstrous and irregular. Even that event was far from corresponding to these refined ideas. It was only the succession, and that only in the regal part of the government, which was then changed: and it was only the majority of seven hundred, who determined that change for near ten millions. I doubt not, indeed, but the bulk of those ten millions acquiesced willingly in the determination: but was the matter left, in the least, to their choice? Was it not justly supposed to be, from that moment, decided, and every man punished, who refused to submit to the new sovereign? How otherwise could the matter have ever been brought to any issue or conclusion?
Hume then inserted an observation of the Athenian democracy. First, “women, slaves, and strangers” were all excluded; second, only “a tenth part of those bound to pay obedience to it” . . . including the dominions of conquest . . . ever participated in its establishment or voted therein; and, thirdly, “they employed force to oblige some cities to enter into their league.” Hume seemed unimpressed by this “most extensive democracy” from history.
His stated intention, though, was not “to exclude the consent of the people from being one just foundation of government” where it had a place; however, “it is in vain to say,” said he, “that all governments are or should be at first, founded on popular consent, as much as the necessity of human affairs will admit.” But history strikes again in that “conquest or usurpation, that is, in plain terms, force, by dissolving the ancient governments, is the origin of almost all the new ones, which were ever established in the world.” Hume, in essence, claimed that any consent that may be traceable in history was “irregular,” “confined,” “intermixed with fraud or violence” and, as a consequence, cannot have any great authority. Therefore, “some other foundation of government must also be admitted.”
Hume returned to the theory of consent and denied that human nature would ever permit the necessary conditions:
Were all men possessed of so inflexible a regard to justice, that, of themselves, they would totally abstain from the properties of others; they had forever remained in a state of absolute liberty, without subjection to any magistrate of political society; but this is a state of perfection, of which human nature is justly deemed incapable. Again, were all men possessed of so perfect an understanding as always to know their own interests, no form of government had ever been submitted to, but what was established on consent, and was fully canvassed by every member of the society: but this state of perfection is likewise much superior to human nature. Reason, history, and experience shew us, that all political societies have had an origin much less accurate and regular: and were one to choose a period of time, when the people’s consent was the least regarded in public transactions, it would be precisely on the establishment of a new government. In a settled constitution, their inclinations are often consulted; but during the fury of revolutions, conquests, and public convulsions, military force or political craft usually decides the controversy. [italics added]
Hume went on to claim that “the people” are commonly dissatisfied with “new” governments, but through fear and necessity, they submit to the government. “Time” accustoms a nation by degrees to submit to government and, subsequently, regard rulers (first considered usurpers or conquerors) as lawful:
In order to found this opinion, they have no recourse to any notion of voluntary consent or promise, which they know, never was, in this case, either expected or demanded. The original establishment was formed by violence and submitted to from necessity. The subsequent administration is also supported by power, and acquiesced in by the people, not as a matter of choice, but of obligation. They imagine not, that their consent gives their prince a title: but they willingly consent, because they think, that from long possession, he has acquired a title, independent of their choice or inclination.
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 artizan 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 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. What if the prince forbid his subjects to quit his dominions; as in Tiberius’ time, it was regarded as a crime in a Roman knight that he had attempted to fly to the Parthians, in order to escape the tyranny of that emperor? Or as the ancient Muscovites prohibited all travelling under pain of death? And did a prince observe, that many of his subjects were seized with the frenzy of migrating to foreign countries, he would doubtless, with great reason and justice, restrain them, in order to prevent the depopulation of his own kingdom. Would he forfeit the allegiance of all his subjects, by so wise and reasonable a law? Yet the freedom of their choice is surely, in that case, ravished from them.
Hume next approached his thesis by both scenario and history. First, human society is always a mixture of the old and young. Consequently, history has never furnished an example of a generation passing away, in toto, followed by a new one coming of age and forming, through general consent, a new government. The actual case is rather that stability is found in the continuity of inherited institutions and established constitutions, which generally persist throughout time.
Second, Hume acknowledged that “some innovations must necessarily have place in every human institution; and it is happy where the enlightened genius of the age give these a direction to the side of reason, liberty, and justice.” But violent innovations, no individual is entitled to make and are dangerous, too, if attempted by legislatures. If history provides contrary examples, as in the reigns of Henry VIII and Charles I, “they are not to be drawn into precedent, and are only to be regarded as proofs, that the science of politics affords few rules, which will not admit of some exception, and which may not sometimes be controlled by fortune and accidents.” He continued:
The violent innovations in the reign of Henry VIII proceeded from an imperious monarch, seconded by the appearance of legislative authority: those in the reign of Charles I were derived from faction and fanaticism; and both of them have proved happy in the issues: But even the former were long the source of many disorders, and still more dangers; and if the measures of allegiance were to be taken from the latter, a total anarchy must have place in human society, and a final period at once be put to every government.
Thirdly, Hume theorized that either in the case of a “usurper,” who banished a “lawful prince and royal family,” or the subsequent overthrow of said usurper by the banished prince, consent plays no role. “I may now ask, upon what foundation the prince’s title stands? Not on popular consent surely: for though the people willingly acquiesce in his authority, they never imagine, that their consent made him sovereign. They consent; because they apprehend him to be already, by birth, their lawful sovereign. And as to that tacit consent, which may now be inferred from their living under his dominion, this is no more than what they formerly gave to the tyrant and usurper.”
Hume then returned to “a more philosophical, refutation of this principle of original contract, or popular consent” with “the following observations.” The rest of Hume’s thoughts will now be given without comment.
All moral duties may be divided into two kinds. I. Those to which men are impelled by a natural instinct or immediate propensity, which operates on them, independent of all ideas of obligation, and of all views, either to public or private utility. Of this nature are, love of children, gratitude to benefactors, pity to the unfortunate. When we reflect on the advantage which results to society from such humane instincts, we pay them the just tribute of moral approbation and esteem: but the person, actuated by them, feels their power and influence, antecedent to any such reflection. II. The kind of moral duties are such as are not supported by any original instinct of nature, but are performed entirely from a sense of obligation, when we consider the necessities of human society, and the impossibility of supporting it, if these duties were neglected. It is thus justice, or a regard to the property of others, fidelity, or the observance of promises, become obligatory, and acquire an authority over mankind. For as it is evident that every man loves himself better than any other person, he is naturally impelled to extend his acquisitions as much as possible; and nothing can restrain him in this propensity, but reflection and experience, by which he learns the pernicious effects of that license and the total dissolution of society which must ensue from it. His original inclination, therefore, or instinct, is here checked and restrained by a subsequent judgment or observation.
The case is precisely the same with the political or civil duty of allegiance, as with the natural duties of justice and fidelity. Our primary instincts lead us, either to indulge ourselves in unlimited freedom, or to seek dominion over others: and it is reflection only which engages us to sacrifice such strong passions to the interests of peace and public order. A small degree of experience and observation suffices to teach us, that society cannot possibly be maintained without the authority of magistrates, and that this authority must soon fall into contempt, where exact obedience is not paid to it. The observation of these general and obvious interests is the source of all allegiance and of that moral obligation which we attribute to it.
We shall only observe, before we conclude, that though an appeal to general opinion may justly, in the speculative sciences of metaphysics, natural philosophy, or astronomy, be deemed unfair and inconclusive, yet in all questions with regard to morals, as well as criticism, there is really no other standard, by which any controversy can ever be decided. And nothing is a clearer proof, that a theory of this kind is erroneous, than to find, that it leads to paradoxes repugnant to the common sentiments of mankind, and to the practice and opinion of all nations and all ages. The doctrine which founds all lawful government on an original contract, or consent of the people, is plainly of this kind; nor has the most noted of its partizans, in prosecution of it, scrupled to affirm, that absolute monarchy is inconsistent with civil society, and so can be no form of civil government at all; 38 and that the supreme power in a state cannot take from any man, by taxes and impositions, any part of his property, without his own consent or that of his representatives. What authority any moral reasoning can have, which leads into opinions so wide of the general practice of mankind, in every place but this single kingdom, it is easy to determine. The only passage I meet with in antiquity, where the obligation of obedience to government is ascribed to a promise, is in Plato’s Crito: where Socrates refuses to escape from prison, because he had tacitly promised to obey the laws. Thus he builds a Tory consequence of passive obedience on a Whig foundation of the original contract. New discoveries are not to be expected in these matters. If scarce any man, till very lately, ever imagined that government was founded on compact, it is certain, that it cannot in general, have any such foundation.
**This work is in the public domain and can easily be found on the Internet