Have you ever signed a social contract?

Before pulling my wisdom tooth out the other day, the dentist asked me to sign a consent form, whereby I agreed to accept whatever risks the procedure entailed.

I attached my autograph to the piece of paper before me, rendering my soul to God and my teeth to the dentist. The transaction was straightforward, if in my view unnecessarily bureaucratic.

That, however, is more than I can say for my consent to be governed. I don’t recall ever signing a form to that effect, much less a binding social contract. Yet the terms ‘social contract’ and ‘consent of the governed’ are the two legs modern Western governments stand on, by and large firmly.

Both terms were coined by clever people trying to understand what makes governments just and legitimate. The need for a legitimising theory is obvious: governments have to take away some of our freedoms, giving us something in return.

That exchange has to be seen as voluntary, for otherwise the state would be tyrannical, and that’s not the image Western states like to project. I get all that. Yet the two terms in question still strike me as dubious.

In modern times, both were put forth as a refutation of traditional Western legitimacy derived from the divine right of kings. My two favourite political theorists accepted the concept of the divine right, but understood it differently.

Burke was quite literal about it: God willed the state. De Maistre was perhaps more accurate in his phrasing when arguing that traditional institutions go so far back that they disappear in the haze of time – we can’t trace them back to their historical origin. Therefore we might as well assume they come from God.

Either way, divine right was a factor of continuity: monarchies ruling in its name bound together generations past, present and future. The power of such monarchies was seldom absolute: some representative bodies, such as councils of elders, baron assemblies or parliaments kept it in check, but without denying the underlying principle. Divine right, like any other, came packaged with obligations to the issuing authority, which was another, less earthly, check.

When traditional institutions started to totter around the 17^th century, Thomas Hobbes et al. began to ponder other options. Unlike Rousseau a century later, Hobbes didn’t believe in the innate goodness of man. In a “state of nature”, he famously wrote, human life would be “solitary, poor, nasty, brutish and short”. That would lead to an incessant “war of all against all”.

To avoid that calamity, men entered into a social contract, subjecting themselves to an absolute sovereign, either individual or collective. They agreed to forfeit some of their natural rights, getting security in return. The theory was later developed by Locke and Rousseau, with the latter standing it on its head.

In his tract Du contrat social, Rousseau used the theory of the social contract to lay down the foundations of the modern totalitarian state:

“The state should be capable of transforming every individual into part of the greater whole from which he, in a manner, gets his life and being; of altering man’s constitution for the purpose of strengthening it. [It should be able] to take from the man his own resources and give him instead new ones alien to him and incapable of being made use of without the help of others. The more completely these inherited resources are annihilated, the greater and more lasting are those which he acquires.”

The idea of the social contract is thus not without its nightmarish potential, one that was amply realised by Rousseau’s followers soon after his death. That makes the concept too voluminous to be precise, able to include the affirmation of natural rights and their denial, democracy and dictatorship, freedom and tyranny.

That makes me question the validity of the very concept, which strikes me as mythological. Any real contract I’ve ever seen includes certain provisions without which it would be meaningless, such as the date on which it was signed, its duration, the clearly defined end it serves, the terms under which it could be cancelled, notarisation by a superior legal authority both parties accept as unquestionable.

The social contract has none of these. If we look at the traditional, organic state of Christendom, then de Maistre was right: since it can’t be traced back to any specific date, we might as well assume it came from God. Yet modern contrived states do start at a specific time, the USA in 1776, France in 1789, the USSR in 1917, Israel in 1948 and so on.

So was that the time the citizens of those states entered into an eternally binding social contract? If so, what are the cancellation terms? That is a serious problem because neither Hobbes nor Locke nor Rousseau made any such provisions. In effect, their social contract can only be annulled by a violent overthrow of government. In that sense, the social contract both legitimises and presupposes revolutions.

And what serves as the notarising authority standing above both sides? Illogically, it’s one of the parties to the contract, the state, that notarises the agreement. The state codifies the contract in any number of documents it issues and a tiny proportion of the people, if that, vote for. This kind of arrangement may be any number of things, from diabolical to celestial. What it definitely isn’t is a valid contract.

The same goes for the related concept: consent of the governed. This term appears in the very first paragraph of the American Declaration of Independence: “… That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

Is one to assume that the 56 delegates to the Continental Congress issued their consent to be governed on behalf of my American friends living today in New York, Texas, California and Michigan? Or was it the roughly six percent of the population able to vote for the US Constitution in 1789?

Looking at the issue synchronically rather than diachronically, today’s democracies operate on the assumption that, say, 30 per cent of the population voting in a government thereby give consent to be governed on behalf of the other 70 per cent. That’s nonsensical.

Let’s say 30 per cent of Britons vote in something like a Corbyn-led government, communist in all but name. Am I to assume I’ve consented to be governed by those I regard as satanic, even though I voted against them?

Both terms, social contract and consent of the governed, are fanciful misnomers. They have little to do with any political realities or even political ideals. For just societies are governed by just institutions lovingly nurtured over centuries.

It’s such institutions that give physical shape to the three pillars on which, according to Burke, government should rest: prejudice, which is intuitive knowledge; prescription, which is truth passed on by previous generations; and presumption, which is inference from the common experience of mankind.

And it’s those institutions that express prejudice, prescription and presumption as just laws that people must obey for as long as they live within the realm governed by such institutions. The word ‘must’ invalidates any notion of consent. And the term ‘contract’ is best kept for the commercial arena, where it has a precise meaning.