Social Contract and Morality

Kyle Cupp has a brief post describing the dehumanizing moral effects of seeing human dignity and rights as springing entirely from a social contract (implied or explicit):

This reduction occurs when we understand and act upon our moral obligations to one another only within the framework of a social contract–when we limit our obligations to those who have entered into such contracts and consider ourselves obligated only to those who share our citizenship, have signed a treaty we have signed, or participate with us in some other contractual arrangement. I make this reduction when I don’t care about torturing terrorists because they’re not signers of the Geneva Conventions, when I wish to alienate the immigrant who enters my country against my country’s laws, when I ignore my obligations to those not yet born because the laws of the land do not recognize their personhood, or when I insist that others shouldn’t be given Constitutional rights when the rights I wish to withhold from them are basic human rights.

I think that he’s right as far as he goes, but I don’t think that his point that basic human rights and duties are inherent to humanity (rather than assumed via some sort of contract/relationship) is actually the point usually at dispute in our society. Rather, what seems often to be disputed is what the extent of basic human rights are — and which “rights” are merely agreed civic rights which we grant explicitly via the social contract.

For instance, on the torture debate, it seems to me that the two camps hold different views about the extent of basic human rights — not that one camp only believes in the social contract while the other believes in basic human rights. Essentially, those who are defending the use of “enhanced interrogation” on terror suspects assert that it is in keeping with basic human rights to user certain forms of physical punishment as coercion — punishing someone for refusing to provide information which the interrogators think they need in order to achieve some common good. What this people are saying (and I disagree) is: “It is morally acceptable and in keeping with basic human rights to waterboard (or beat or keep in the dark, etc.) someone who refuses to answer questions which might save lives. However, we as a society have made an agreement both internally with respect to our citizens and externally with certain treaty signing powers that we will forgo this morally acceptable means of coercion when dealing with criminals or POWs because we consider this to be to the overall common good.”

I would propose that the way of testing this claim of mine would be as follows: If those who support “enhanced interrogation” of terror suspects really believe that human rights come only from the social contract and not from basic human rights of some sort, then clearly this would apply to things even more clearly in violation of basic human rights. Would they support:

- Selling them into slavery.
- Cutting out their eyes and tongues and then turning them loose in the wilderness.
- Using them as live feed for zoo animals.

If not, we must assume that this camp does indeed believe that all people have basic human rights, they just think that these basic human rights are more minimal than others.

Now, I do think that Kyle points to a real moral danger. Human societies have a natural tendency towards having one set of rules for “our people” and another for “other people”. And so it’s important to challenge people to think about what rights are human rights and which ones are civic rights extended only via the social contract.

At the same time, among those prone to hysteria about rights violations, there is a great tendency to assume that all civic rights are basic human rights. So, for example, in the US a trial by a jury of peers is a civic right when accused of a crime — a right that we as citizens are given via the explicit social contract of our country. However, while being treated justly (and not being punished injustly) are basic human rights — trial by jury is clearly not. And yet in our society, which so often confuses our legal system with morality, it is quite common for people to consider any other means of dispensing justice than a jury trial to be “denying people their basic rights”.

While the social contract is clearly not the only thing that gives us rights, it is by no means unacceptable for certain rights and duties to be explicitly stemming from the social contract and available only to citizens or legal residents — not to those who are not members of the country.

15 Responses to Social Contract and Morality

  • Of course what are called “human rights” today are almost entirely the product of Western societies since the Sixteenth Century, much of it from Great Britain and America in origin. Much of what we call “human rights” today would have been denounced as pernicious and/or dangerous throughout most of human history by most cultures. To say that “human rights” arise simply due to inherent moral obligations that exist between people, we are confronted with the difficulty that most cultures for most of human history would vigorously disagree.

  • Thank you for the thoughtful response, Darwin. I’m pretty sure that I agree with the points you make, particularly in your last paragraph. To clarify my post, let me say that when the reduction is made, it isn’t usually (if ever) made flat out in a way that covers a person’s entire morality; it’s rather applied here and there inconsistently.

  • Donald,

    You raise a good point about the history of rights language. It is a recent invention. I tend to call rights a useful fiction, myself.

  • I do agree with what Kyle said. But, from other discussions I know that I don’t agree with how Kyle applies his generic or all inclusive definition of basic human rights to all persons of all types of backgrounds, since his definition doesn’t seem to take into consideration ( or very little consideration) certain circumstances and/or the consequences that one must face when committing a crime or an act of war. This is applicable with regards to both illegal immigrants and terrorists.

    While I do believe that enhanced interrogation techniques are justified in very extreme, life saving circumstances, I do think that the Bush administration allowed the use of them too frequently. But, then again, one needs to realize the atmosphere after 9/11, and no person wanted anything like this to ever happen again. I don’t support the three items on your list. They are in violation of basic human rights. With regards to immigration, I am all for legal immigration but am against illegal immigration. One would think that having secure borders would be a good thing, especially for our safety, but certain people deride people who advocate for secure borders and call us other vile names just because we want immigrants to follow our laws and immigrate here via the proper channels.

  • My only issue is that I don’t ever recall Morning’s Minion, whom Kyle is supposedly defending with his post, demonstrating an accurate understanding of classical social contract theory, nor providing and concrete examples of this bad sort of “contract thinking” in our society.

    There is nothing wrong with the social contract. It defines clearly the parameters of government. The alternative is arbitrary authority. We as Catholics can be proud that the resistance to absolute, arbitrary authority probably began in the Salamanca school.

  • Yes, clearly those who support enhanced interrogation do so on the basis that:

    (a.) It is not a violation of basic human rights;

    (b.) Strictures against using such techniques in the civilian criminal and civil code apply only in the civilian criminal and civil code, because they arise from the social contract;

    (c.) Strictures against using such techniques against prisoners of war also arise, not from a fundamental right, but from a contractual obligation; namely, treaty obligations regarding lawful combatants. These do not apply to persons whose status is “unlawful combatant.”

    Of course, (b.) and (c.) depend on first establishing (a.). If in fact everyone does have a basic human right, intrinsic to their dignity as a human person, not to be waterboarded, why then the presence or absence of a contract doesn’t matter a whit. Only if (a.) is true, does anyone even bother with (b.) and (c.).

    So, what about (a.)?

    To repeat, (a.) asserts that enhanced interrogation is not a violation of the basic human rights intrinsic to the dignity of human persons.

    Now it sounds absurd on the face of it to say this. Obviously we know we shouldn’t go grabbing random persons and waterboarding them, so, in obedience to this moral intuition, we conclude that it must be “a violation of their basic human rights” to do so, right? And if it’s a violation of the basic human rights of any random person, it must likewise be a violation of the basic human rights of a war criminal like Khalid Sheikh Mohammed, right?

    Well, not so fast. One mustn’t go around waterboarding random persons. One mustn’t go around locking up random persons, either. Does it follow that locking up Khalid Sheikh Mohammed is a violation of his basic human rights?

    Why, no. It would only be a violation if he were innocent of wrongdoing. As he is a particularly nasty terrorist and about as far from innocent as it is possible to be, it’s perfectly okay to violate his basic human right of liberty, which is intrinsic to his dignity as a human being, by locking him up.

    Actually, I said that incorrectly. It’s not okay to violate his basic human right…but locking him up is no violation, because getting locked up is a freely-chosen consequence on his part. He chose, even asked, to be treated that way just by doing what he did. If he wasn’t willing to do the time, he shouldn’t have done the war-crime.

    But that raises a problem. Why can we not likewise argue that, while of course persons in general have a right to not be waterboarded, KSM voluntarily renounced that right by choosing to orchestrate terror plots to kill thousands of innocent people. Why can we not argue that, by doing this, he “chose, even asked,” to be waterboarded?

    Is there some qualitative or categorical difference between the right to freedom from imprisonment and the right to freedom from waterboarding, such that the former right can be voluntarily renounced by evil deeds, but the latter cannot?

    So the question is this:

    Given that people voluntarily renounce certain of their rights (at minimum, their liberty and/or property) when they commit heinous crimes by committing those crimes, it is reasonable, and not a violation of their rights, to forcibly deprive them of the benefits of the rights they have renounced.

    Yet, even before we read Church teachings on the matter, we recognize that the Moral Law forbids us to treat these persons as if they had, by committing whatever evil deed, renounced all of the rights intrinsic to the human dignity. We may lock them up; so, crimes are clearly capable of constituting a rejection of one’s right to liberty. We may not hang them from a mechanized hook and lower them an inch at a time, screaming, into an industrial shredding machine; so, crimes are clearly incapable of constituting a rejection of one’s right to not be shredded alive.

    How then, can one distinguish between the two categories of rights? Which ones may be renounced by crimes of sufficient magnitude, and which may not, no matter how horrific the crime?

    The Right to Not Be Waterboarded seems, according to Church teaching and most thinking Catholic opinion, to fall in the category of rights which are never, ever renounced. Even if one were, say, to personally rape and slowly murder fifty thousand innocent children while enjoying the whole process, one would have, by doing so, renounced one’s rights to both life and liberty, but not one’s right to avoid waterboarding.

    Why so?

    I am perfectly content agreeing that there is a line to be drawn; I am perfectly content saying that that is where the line is drawn; but I am confused about whether it was drawn there arbitrarily and could have been placed elsewhere, or if it was drawn there according to some unalterable moral principle which, when understood, allows us to see that the line could only ever be drawn in that way.

    Does anyone want to propose a principle which explains the positioning of the line? Or is it arbitrary, after all?

  • Joe,

    I agree that there is nothing wrong with the social contract per se. My concern is with the social contract used as a metaphorical framework for moral thought and action. I’m critical of thinking of moral obligations too much in terms of a social contract, moral thought that relies too heavily on the metaphor, that at times fails to account for obligations that exist beyond its boundaries. When someone denies another a basic human right because that other is not a “signer” of the social contract, he has treated a personal moral obligation as if it were an obligation under a social contract.

  • And as others have pointed out, we have to distinguish between civil and “basic human rights.” Who decides what a basic human right is?

    For instance, I believe an illegal immigrant has a basic human right to have their immediate needs met – if they are hungry, feed them, if they are naked, clothe them, if they are sick, care for them, contract or no contract. That is the basic Christian obligation.

    But when it comes to say, access to social services such as medical care beyond the emergency level, or education, or food stamps, etc. – then the public authorities, whose charge is to maintain the common good, have every right to regulate and restrict who has access to these services on the basis of what is fiscally and socially sustainable.

    This used to be understood in Catholic social thought. Now I’m not so sure it is. Now “common good” has come to mean services and spending without limit, in the name of satisfying “basic human rights.” That is to say, more and more things are falling under the umbrella of “basic human rights”, all of which the state is obliged to tax and pay for.

    But unsustainable policies cannot benefit the common good. If society collapses under the weight of entitlements, benefits, and a greatly expanded understanding of “basic human rights”, then I would say a much greater moral harm is done a great many more people. Some may call that “consequentialism”, but I don’t think it is an intrinsic evil for states to set boundaries and limits in order to ensure basic functionality.

  • Who decides what a basic human right is?

    Spoken like a good anti-Christian nihilist!

  • I wasn’t going to allow or respond to this childish nonsense, but for the sake of clarity I will indulge:

    My intention was not to say that it is impossible to decide what a basic human right is, but that in politics, there are many competing claims that demand recognition.

    I am neither anti-Christian nor a “nihilist” (another one of the pet words). I will rephrase the question: who decides which claims to basic human rights are endorsed by the state? Why is it that many more things are considered “basic human rights” than were 100 years ago? I don’t say that there are no basic human rights, but that in the current political climate, the concept continues to expand without limit, without regard for realistic limitations, and in doing so, putting ALL human rights in jeopardy.

  • Joe, don’t let Karlson get under your skin. That’s just how he reacts when he can’t control the discussion and drop the comments that he doesn’t see as advancing his pet agenda. He becomes unhinged and resorts to desperate ad hominems. It’s his tell – like when someone who doesn’t have any good cards tries to bluff his way through a poker hand but doesn’t realize that when he does his unconscious “rub-his-nose-with-his-index-finger-and smile” routine he is telegraphing the fact that he’s got nothing to every skilled player at the table. Pity him.

  • Yeah, sorry, Joe. I didn’t see Henry’s comment while it was still sitting in moderation, or I probably would have just deleted it as the non-comment it is.

    Pity is probably the right move here.

  • Eh. Maybe I should have let you, but it’s good to clear the air. People should see what we’re dealing with too.

  • My understanding, with regard to whether a terrorist or criminal forfeits the right not to be tortured, lies in the distinction between torture and other types of violence. War is inherently violent, and if it is unjust it is a travesty, but if it is just it is permitted (notice I don’t say noble, however, though personal acts of courage that are genuinely noble certainly occur even in unjust wars). Torture is not merely violence, but violence ordered toward a particular end: getting information out of the subject. So, where punishment or defense merits “violation” of the right an aggressor forfeits, the same may not be true of merely getting information from them by force that damages the body or the mind. (That’s my definition of torture in concrete terms, also.) I would suggest that while punishment is oriented directly toward dealing with the action it punishes and defense likewise, torture is on the other hand oriented directly toward information and therefore not, in the moral order, an immediate necessity and justified response to forfeiture of rights (which is a very limited forfeiture even where it does occur, by the way; it’s almost as if the criminal forces his rights out of the picture, although I do not mean by that a necessity argument which is a nicer way of saying a utilitarian argument). I would further argue that we have historically viewed torture as wrong regardless of any contract — things such as the Geneva Convention were put together largely after and in response to the great war crimes of the twentieth century that we prosecuted anyway (waterboarding by the Axis forces in WW2, for example). Finally, I would note that the Church appears (I say appears because the Catechism has been unclear in the past, inasmuch as stating as if it were required what is still technically only pious opinion is technically unclear) to teach that torture, that violence ordered toward extraction of information rather than either punishment or direct defense, is intrinsically evil.

    Thus, while I’m not totally closed to being corrected if I’m mistaken as to any of those moral standpoints, those are the well developed points that would need to be addressed to even begin suggesting torture is permissible on those who forfeit the bulk of their rights.

    Also, if one does argue that torture is permissible on war criminals because they’ve forfeited rights, one has to demonstrate the forfeiture of rights before one can act on it — and in terms of law, that generally means convict the war criminal first and interrogate after — which entirely robs the “necessity” argument of any urgency factor, the way it takes time to convict. One could argue also that an active combatant proves his status by that action, as these are whom one may shoot in a war without any trial or other formal process; however, one may not generally shoot an enemy who is captured and deprived of ability to combat because you’ve removed them from the very situation of immediate combat that both allows and necessitates said immediate judgement, so it’d be questionable whether such a parallel would even make torture of captured foes legitimate or rather prove it illegitimate.

  • I should also note regarding my definition of torture that damage need not be permanent. Also, I’m not sure I shouldn’t include direct infliction of pain in there, but one could argue pain as passing mental damage (since it impairs one’s immediate ability to think clearly)… but it’s the direct infliction, not the result of damage, that makes the difference — not that the classical notion of the direct object of an act means anything to the vast majority even of Catholics today, who would probably fail to realize that that _is_ drawing the line between mere discomfort (which is different from pain in kind, not just degree) or poor living conditions or anything like that and actual inflicting of pain. Let’s see, anything else… Risk. I’d probably count anything that risks such things just as sure as anything that obviously does it, simply because morality doesn’t play loose with possibilities and doubts (even where it acknowledges the _subjective_ effects of doubt, which, mind, can worsen the moral content if one is guilty of allowing the doubt to stay and especially to stay in a thing one knows one will act in).

    There’s a lot of temptation these days to call definitions unclear because we can equivocate around them, as if a clear definition would be immune to equivocation — and yet actually, that’s in the definition of equivocation: when something’s not clear in the first place, there isn’t a good meaning #1 for which to misconstrue with meaning #2, now is there? So anyway… yeah, I felt the need to try to add further qualification. Not sure I succeeded.

    And of course, one can also say all this is my “armchair theologian” pontification, but then, I don’t have to be stolen from to tell you we should criminalize theft either.

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