As a proponent of the contractarian idea in moral philosophy, I should say a thing or two about Crispin’s rather caustic remarks about the social contract.
The first thing to do is to agree with him that if we take the social contract view as it was stated in Hobbes (and nobody does better), as an argument for the state, it is a failure.
So far, so good. But modern contract theory is a theory of morals, not of the state. And as such, it is not wedded to statism at all. Indeed, the reason why the state looks so difficult to justify is that it is all but impossible for states not to proceed by coercing persons who have done nothing to merit this. And we cannot simply agree to be coerced for just any old reason, obviously.
Can we agree to be coerced for any reason whatever, and if we could, would that justify it? Here we have to consider what the murderer, say, has to say on this subject. His victim obviously does not consent, and so it looks as though murder isn’t going to be legitimate, on contract theory. The murderer might then claim that he doesn’t care about that – he just isn’t into the contract game. And that’s fine: he’s welcome to say this, as we put him in the electric chair. He of course can have no complaint to anything we can do to him, since he refuses to accept anything at all in the way of moral restrictions on is behavior.
But the rest of us do, for the very good reason that life is very much better if we live in a community in which everyone abides by certain restrictions. The question is: which ones? To this, I think the libertarian has the only good answer. We will restrict all to peaceable behavior. That is to say, we will forbid only aggression (counting, for present purposes, fraud as a type of aggression – something that not all will accept and which present limitations of time forbid getting into.) In short, we will not accept that others may intervene to worsen our lives, so long as that is avoidable, and of course on the understanding that we will likewise refrain from worsening others’ lives. That is what makes the “social contract” a contract: A’s adherence is contingent on B’s and vice versa.
Now, Crispin argues that “existing states are conceptually incompatible with the very possibility of consent.” (40) That cannot be taken literally, since apparently quite a few people do “consent” to the government they’ve got – they even go so far as to vote for it! He must mean that it is incompatible with universal consent. Whether that is so is, however, a lot trickier. That governments have extensive coercive powers is true. That they necessarily use them in immoral ways is prima facie false. They they invariably do use them, at least to some extent, in immoral ways is, I should think, true.
Following the Hobbesian story through to its political conclusion is not a good idea; here I side with Crispin, to be sure. The contractarian story is, I think, not only plausible but essential to the foundation of morals. (Crispin “believes, deep down,” that he possesses natural rights. Well, bully for him! And if the next man doesn’t? What’s he going to say to him? – if not that respecting each others’ rights of this kind is something from which each has much to gain, provided the other does in fact adhere to them. And sure enough, on p. 100, he says that what he’s going to say to them is Nothing. That’s a cop-out, however. This is not a game to be played among some few adherents of one’s favored creed: we are dealing, in principle, with all six billions of us in this biz. And if Crispin thinks that the other chap continues to have those rights even when he starts firing, he’s in for a short life. If there isn’t a mutually contingent understanding of the type that “contracts” exemplify, what is there?1
Certainly the stakes for a political social contract are incredibly high; but it is difficult to argue that they are literally impossible. Suppose there is a libertarian constitution: the government may use force only to prevent/punish coercion and fraud of individuals by other individuals. The state, by this constitution, is not permitted to “expunge anyone at any time,” and effective mechanisms are in place (I’m being wildly generous) such that citizens are protected from the wrongful use of its coercive capacities. This is a dream, yes. But it is not simply and in principle impossible, as Crispin appears to claim. 
Still, it’s impossible enough to do. We anarchist-leaners do not see that the state has much chance of making it into the halls of libertarian legitimacy. Or at any rate, if they do, it must be on the basis of a gamble. We throw in our cards with the state, do what we can to keep it from getting entirely out of hand, and calculate that our chances of doing well are much better even so than they would be in the absence of any state-like mechanisms at all. Crispin’s depiction of the state has a tendency to take Robert Mugabe as its archetypical case, but it seems to me we’re entitled to imagine that it would be more like, say, the American state under George W. Bush. The onus is on the serious anarchist to argue that the prospects for peace and prosperity are better under the no-government condition than under even that fairly mediocre specimen of the state at work.
One important point about this: the citizen does not need to think, and should not think, that the state actually imposes duties on anybody, ever. All of our duties are determined by moral considerations, and if the state has any role to play it is either that of enforcer or, sometimes, organizer in what would otherwise be coordination dilemmas. When it starts telling us how to live our lives, and charging us huge amounts of money to for things we could get on the market at a lower price and with much greater safety, it is off the rails. The person who resorts to the state’s nanny role as endorsed by morals needs a good talking to. Insofar as it performs any decent services, let’s have the services and spare the claptrap, thanks.
There is room for a serious argument for a highly liberal state, I think. But the path is thick with nettles, and they are indeed very nettling. In practical terms, the problem is that the state has an almost impossible time doing anything right, and that whenever somebody else could do it better, he should be allowed to. Since that is at least almost always, and in the end, maybe absolutely always, I don’t think there’s a lot of hope for the state in the rarefied air of us academics. We shouldn’t, however, overstate the case. The state isn’t quite as much of a straw man as Crispin makes it out to be.
Jan Narveson
Philosophy, University of Waterloo
Notes
1 Crispin, a bit later, says that he doesn’t know whether torture is wrong, but he does know that he doesn’t want to be tortured, supposes that probably most of us don’t either, and “I ask you to join me in condemning torture when it is performed on people other than ourselves as well.” Yes, and what does he propose to do to those who don’t so join? Will he simply show Power Points to the torturers with admonitions to desist? And if he’a to do more, will he think he’s justified in doing so? If so, I think, we are on the way, again, to the contractarian idea in morals.