Social Contract, Free Ride. Anthony de Jasay

reserve powers of coercion. However, if there were no such authority, it would be constituted anew and equipped with coercive power, “as if” by unanimous consent. All prudentially motivated persons would want to be mutually assured that none of them could upset or frustrate the expected advantages of everybody else’s command-obedience. This als ob result, which would be reached by free and unanimous agreement if it had not been reached by some other “real-time,” historical process, is of course the social contract as an explicatum arising from rational choices. Its terms reflect the general will. “Particular general wills” have to submit to the post-contract commands ("social choices") of the general will. If they preferred to disobey and face sanctions, they could actually be forced into specific performance. Such coercion is essentially contract-enforcement, voluntarily agreed to in the social contract because implicit in its logical structure.

      It also follows from the contractarian analysis of terms that interest-antagonism, let alone domination-subjection between state and civil society, is a contrived misstatement of post-contract states of affairs. Conflicts between the propertied and the propertyless, taxpayers and tax beneficiaries, are negotiable in a political market-place where certain exchanges can make some better off without having to make others worse off. They are part and parcel of consensual adjustment processes and fully consistent with unanimity about the terms of the social contract itself.

      Both the Marxist plea that “unequal” contract is really command, even if technically it has been agreed to, and the contractarian plea that command which it is in our prudential interest to obey is really contract, even though it has not been formally agreed to, are of course heavily normative. They operate through a reinterpretation of social arrangements and through a classification of the actions of the parties involved as being either “ostensibly” free or “really” free, according to what is required for the plea to be successful.

Avoiding Freedom-Talk and Rights-Talk

      There is no need to seek a foolproof distinction between contract-based and command-based social co-operation by references to the freedom, or degrees of unfreedom, of entering into the relevant commitments and of acting in compliance with them. On the contrary, there are reasons against trying to base robust concepts upon frail ones. Avoidable recourse to concepts of freedom can only too easily lead to the graveyard of philosophical reputations, due to a person’s freedom being an awkward function of constraints set both by nature and by the acts and omissions of other free persons. Nature is a datum, but how to deal with the freedom of others? Are there not more unknowns than equations?

      Circularity or an infinite regress is involved in defining the freedom of each in terms of the freedom of others: witness the vacuous formulae “equal freedom” (Kant, Herbert Spencer), or “greatest freedom compatible with like freedom for everybody else” (Rawls).⁶ As freedom cannot be grasped and explicated by reference to itself, freedom-talk invariably spills over into rights-talk, “rights” defining freedoms and serving as the exit from circularity to a firm fulcrum on which to rest freedom concepts. A person’s freedom, then, is confined within his rights; his rights, in turn, are constrained by the rights of others. Why, however, should a person have a particular right to begin with? Why should his rights (assuming he has any) stop, and those of others start, at a particular borderline? Rights can only serve as an Archimedean firm stopping-point if they do not themselves suffer from the logical disability which makes freedom-talk circular. Barring recourse to a transcendental, ultimate stopping-point in God’s will or in a natural order, it seems to me hard to feel much optimism on that score.

      

      The other reason for not getting involved in unpromising and intractable issues of freedom and rights has to do with Occam’s razor. There is a simple, minimal way of establishing and using the contract-command distinction in terms of the minimum amount of explanation needed by each.

      Let the object of a contract be some entity, whether money, utility, or concord, of which both parties would rather have more than less, i.e., which is a good for both, and let there be forms of possible co-operation between them which are expected by each to result in more of the good to the two of them taken together, and in not less of it to each separately. Minimal rational-choice assumptions help establish the probability, or make it greater than it would have been otherwise, that a contract will be concluded committing the two parties to the co-operative acts needed to produce the expected incremental surplus good, as well as settling in advance its distribution between them. An additional, relatively easy, assumption of no deceit, no entrapment, can exclude any solution of the bargaining problem involved in the distribution of the surplus which does not leave any of the parties at least as well off as if he had not entered into the contract.

      The crucial difference in a command-obedience relation compared to contractual co-operation is that the former always requires some additional explanation; the surplus good expected to result from the giving and carrying out of commands is an insufficient reason for the existence of the relation. Unlike the contract, the object of the command is not always a good for both the superior and the subordinate; often it serves the superior alone. (Nor, incidentally, is the distribution of the surplus between superior and subordinate a matter of the two of them solving a bargaining problem.) Historical explanations of command would discover real-time causes, such as the residual effects of conquest, authority springing from inherited status, or the sheer force of character, and perhaps above all the “threat potential” inherent in uneven distributions of force. Functional explanations would furnish reasons drawn from the contribution or benefit structure of a potential co-operative arrangement which would set obstacles to contractual agreement and call for command. Regulating city traffic, keeping a classroom silent, cultivating sugarcane in an impossible climate, fighting a war on foot-and-mouth disease might not lend themselves to contract at all or only with very indifferent success. The functional explanation will in some cases complement the historical, explaining the longevity and resistance to wear and tear of a command-obedience relation originating in history. Explanations of the state are often of this latter kind.

      Reliance on minimal explanation for contract and the need for non-minimal ones for command seem to me a simpler, less unsatisfactory way of dividing non-affective co-operative social arrangements into contract and command than the recourse to slippery notions of freedom and rights. Even so, the dividing-line remains blurred.

2

       Promise, Performance, and Enforcement

      Unless there is specific occasion for proceeding otherwise, I shall argue as if all contracts were bilateral, two-sided. (Lawyers sometimes call a contract “bilateral” only if it still involves two unexecuted performances, or duties, in satisfaction of two promises, or rights; while if one has been already executed, leaving only one outstanding, they call it “unilateral.” This usage is misleading and should, I think, be avoided.) Although there may be several persons to a side, for the moment it will do to suppose one person or “party” on either side. The essential elements of bilateral contracts are:

      1. two promises; each party is both promisor and promisee;

      2. two sets of performances, one by each promisor. They have two configurations:

      (a) one performance set is contingent on the other;

      (b) the two performances or performance-sets are mutually contingent.

      The decisive dimension of the structure is the timing of its elements relative to each other. Following Hobbes,¹ one can distinguish three timing patterns. A given pattern must first and above all be looked at to see whether fulfilling its terms represents an “equilibrium-point”² in the sense that, faced with the choice between “perform” and “default,” each party will prefer to perform unless the other party defaults first. A contract having such an equilibrium-point