A note on the history of the Social Contract

This convention is not of the nature of a promise: For even promises themselves, as we shall see afterwards, arise from human conventions. It is only a general sense of common interest; which sense all the members of the society express to one another, and which induces them to regulate their conduct by certain rules. David Hume Treatise of Human Nature, 3.2.2.10.

I have noticed before in the context of describing Adam Smith's criticism of Hume, in joint work with Spencer Pack, that despite Hume's many criticism of the social contract, in the passage above (where Hume is describing the origin of justice as a human convention), Hume echoes one of the more striking moments in Hobbes Leviathan. For according to Hobbes, the commonwealth is, when not founded through conquest, instituted by a covenant “of every man with every man … as if every man should say to every man, I Authorise and give up my Right of Governing my selfe, to this Man, or to this Assembly of men” (II.17; see also II.18).*

Both thinkers seem to be claiming that the rules of justice should be understood, or conceptualized, as originating at a particular moment in time when all the potential members of a society say something to all the other members about their wish to be ruled by law. In the Treatise this is not intended as a historical claim about the original departure from the state of nature because Hume is pretty clear that "the rule concerning the stability of possession... arises gradually, and acquires force by a slow progression, and by our repeated experience of the inconveniences of transgressing it." (3.2.2.10) Moreover, on Hume's views of cognition, in those pre-historical times there is little reason to believe that  humans are capable of fully grasping the nature of some such "general sense of common interest." But it does not follow that the social compact has, as is often thought, no place in Hume's political theory.+

As I noted yesterday, Andrew Sabl's excellent Hume's Politics, has made me return to familiar passages with fresh eyes. Sabl notes that Hume portrays the Middle Ages "as a barely tamed baronial anarchy." (191) The taming of this anarchy starts under Edward I, who uses the rule of law to protect ordinary people against the barons in order to enhance his own authority. One key moment in the long-term rise of liberty in England, is Edward's summoning of the first commons in 1295. Sabl discusses the episode throughout chapters 6-7, and it includes significant contributions to the history of political philosophy. (My post does not summarize it; go read it yourself!) Edward (who needed money for his foreign wars) had the right to levy taxes, but he lacked the ability. "Sabl writes, "The first parliament was an ad hoc response to necessity, not a recognition of new legal authorities. (192)

Here's Hume's account of the episode:

But when the multiplied necessities of the crown produced a greater avidity for supply, the king, whose prerogative entitled him to exact it, found that he had not power sufficient to enforce his edicts, and that it was necessary, before he imposed taxes, to smooth the way for his demand, and to obtain the previous consent of the boroughs, by solicitations, remonstrances, and authority. The inconvenience of transacting this business with every particular borough was soon felt; and Edward became sensible, that the most expeditious way of obtaining supply, was to assemble the deputies of all the boroughs, to lay before them the necessities of the state, to discuss the matter in their presence, and to require their consent to the demands of their sovereign. For this reason, he issued writs to the sheriffs, enjoining them to send to parliament, along with two knights of the shire, two deputies from each borough within their county, and these provided with sufficient powers from their community, to consent, in their name, to what he and his council should require of them. As it is a most equitable rule, says he, in his preamble to this writ, that what concerns all should be approved of by all; and common dangers be repelled by united efforts; a noble principle, which may seem to indicate a liberal mind in the king, and which laid the foundation of a free and an equitable government. History 2.106

As Sabl notes, the first commons was called to solve a coordination problem and to reduce transaction costs to the sovereign ("the most expeditious way"). Even if one allows (as Sabl notes) that Edward is planning a transaction, he does not seem especially liberal: he brings the representatives together in order to require consent in the name of his necessity.  For with Edward I we're far removed from the people's or parliamentary sovereignty--the king is the sovereign.

Even so, as Sabl emphasizes, Edward's formula, "what concerns all should be approved of by all" is an English rendering of Quod Omnes tangit ab omnibus approbetur (or q.o.t.)--an important doctrine dating back to Roman law (p. 211). Hume remarks the significance of this: it is the commitment to, and the institutionalization of, this principle that laid the foundation of a free and equitable government. That is to say, for Hume the ideals which accompany our practices make a huge difference.

As Sabl books illustrates, it is the interplay of these ideals and practices in local context that form a kind of dynamics of historical, practical reason. (This is not Sabl's term, but it captures the position nicely I hope.) Often our practices run ahead of our ideals and laws (as the theorist of spontaneous order would emphasize), but sometimes our ideals inform the (undoubtedly contested) reformation of our practices. (The contestation matters because these are not historically determined outcomes--Hume is no providentialist.) Many of the long-term consequences are unintended, but as Sabl remarks, Hume allows that some of them are intended.

Let me wrap up with a final observation. In the set-piece of Edward I in the History, Hume provides a case study when "a general sense of common interest" is observed (by the Sovereign) and articulated by the sovereign who "discusses" the matter in the presence of the representatives, who then "consent."** In fact, we may say about the institution of the practice/rule that the commons have to consent to new taxes that it, in fact, fits rather nicely the conceptualization of the convention of justice in Treatise 3.2.2.10. For, henceforth, the English regulated, with fits and new starts, their conduct in light of the new instituted practice and the ideal, and, thereby, started the slow escape from the feudal and barbaric state of nature.

 

*The structural similarity provides some evidence for Paul Russell's claim for the significance of Hobbes on Hume's thought.

+Sabl makes the ironic point,that for Hume, in light of coordination problems, that the "only actors who actually and historically governed by consent were not free citizens but feudal barons." (110ff.) As I note, this is not the whole story.

**Admittedly, it does not seem their consent required unanimity--it only seemed to require (as Hume notes in next paragraph) "majority." This consent is not entirely passive because as Hume adds in a footnote, "their business was not to check the king, but to reason with him, and consent to his demands." (emphasis added)