Rights and autonomy; contracts and games

Philosophy, et cetera has been revising for his exams, and so has a pair of excellent posts on "political fictions" and John Stuart Mill.

The "political fictions" post is about the problems with natural rights and the social contract - two things I seem to talk about a lot. I say "seem" because I'm not a natural rights theorist (despite rights being a central plank of my ideas about relations between citizens and the state), and I don't think that there was ever a historical social contract where everyone sat down and signed a piece of paper laying out their mutual rights and obligations (except maybe in Scotland). Despite this, I think they're both very useful ideas which touch on something important, so maybe its worthwhile to elaborate a little more on my thinking in these areas.

Firstly, natural rights based in natural law don't exist. They are, as Bentham put it, "nonsense upon stilts". Quite apart from the ethical arguments against natural law theories (see Hume's "is-ought" distinction), if we adhere to any sort of scientific worldview then we have to accept that the universe does not give a shit about what we do. Facts about morality have to come from reason, or (somehow, and I know exactly how hard it is) from us and what we value.

Despite this, I think that the idea of rights is a good one. Laying down a list of things the government just can't do to you, or that you're entitled to receive from it seems to be a relatively good way of managing the relationship. And the commonly accepted lists of human rights (large and small) generally encapsulate how I want people to be treated by governments (or by each other). The problem is providing them with a moral basis.

Fortunately, there are other options besides natural law here. You can ground a system of rights in rule-utilitarianism, or in personal autonomy. I prefer the latter - rights exist to protect our autonomy and allow us to exercise it without interference - but I'm not exactly hostile to the other option. There's a great deal of overlap between respect for personal autonomy and preference-based utilitarianisms - both are ultimately about people pursuing their own goals - and a system of rights grounded in rule-preference-utilitarianism would be virtually indistinguishable from one grounded in a simple respect for autonomy.

(While you can also ground rights in a social contract as resulting from mutual restraint of our practical liberty, that's more a matter of pragmatics than ethics; there's really nothing moral about it. Still, if you want to build a political theory that broadly supports liberalism, is compatible with a scientific and naturalistic worldview, and avoids the pitfalls of dependence on a particular ethical theory, that's the way to go...)

Of course, grounding rights in utilitarianism or personal autonomy simply pushes the question back another level, from "why are rights valuable" to "why is autonomy (or happiness or preference-satisfaction) valuable?" And the answer to that is that you have to start somewhere. In any moral system, you eventually have to pick something and say "this is what we value". And while you can often make persuasive arguments as to why a particular value should be preferred, usually rooted in moral psychology or theories of human nature, these tend to run into Hume's is-ought problem again. The fact that we want to be happy or that we have goals and the ability to choose between them, and get frustrated when other people presume to make choices for us doesn't actually give us reason to place moral weight on those things. So at some stage, you just have to say "fuck it", assert something as an axiom, and hope for the best.

Secondly, social contracts. What social contract theories are good for is showing us why we have some government rather than none at all, and firmly establishing the idea that society exists by mutual restraint and government by consent. I don't think anybody seriously disputes either of these points. Instead, quibbles tend to focus on questions of historicity and how people can be said to consent to an agreement they were never personally party to. But both these problems are because people are focused on the word "contract", implying a one-off, legally binding agreement which imparts obligations on its parties. I think that this is missing the point a little.

The core of social contract theory is a game-theoretic argument that we are all better off by exercising mutual restraint. If I don't kill you, and you don't kill me, then we can both go about our business without too much trouble. Those with a passing familiarity with game theory will recognise this as a giant multiplayer form of Prisoner's Dilemma. But rather than being played only once, sometime in the distant past (as those arguing over consent seem to think), it is played constantly, every minute of every hour of every day, by everyone. As a practical matter, we are every bit as free as those Hobbes imagines in the State of Nature; each of us can kill, steal, rape, or rob. Every time we refrain from doing that, we reaffirm our commitment to the social contract and each other. It's not just government which is a perpetual referendum, but society as well.

Isn't this just tacit consent in a poor disguise? Not quite - because if we view it as a game, rather than a contract, questions of consent become irrelevant. It's not binding, it's just a good idea. We should play the game and practice mutual restraint not because we agreed to and should keep our word, but because it's in our own best interests to do so.

But isn't it the case that sometimes it may not be in our best interests to play? That sometimes we may in fact benefit from lying, cheating, and killing people? Certainly. Each of us is of course free to choose not to honour the social contract, to become a defector in the game. The problem is that if you do, the rest of us will hunt you down and punish you (if we can catch you, and if you have too few friends to back you up).

This is why I said above that there was nothing moral about social contract theory. It's pragmatics, not ethics, rooted in power and violence and force. The State of Nature is always with us - we've just papered over it.

Despite that nasty, brutal fact, I think that we still need to worry about consent. Why? Because while the social contract gives us government, it doesn't give us legitimacy. To get that, we need consent, not mutual intimidation and a balance of terror. How do we get that consent? Philosophy, et cetera hints at the answer - we should build a government and society worthy of people's consent, one they will freely support irrespective (rather than because) of the big stick lurking in the background.