It's 2018, let's stop pretending we can command other people to live as WE please because we have strength in numbers
[I am writing an essay for a class titles "Law and Revenge", and have chosen to tackle the philosopher Cesare Beccaria. Here is my introduction on his work and I would love to hear what you think about the "muh social contract" arguement in general, as well as how he used it. Beccaria's works have had a huge influence on the judicial system in America and (at least once) the merits of his stance were argued in the supreme court in the case of Payne v. Tennessee.]
In his 18th century treatise, “On Crime and Punishments,” Cesare Beccaria considers the true purpose of laws and their associated punishments. At the time, the prevailing notions were in favor of using cruel punishments against people for violations of a religious code of ethics. Often such punishments were at the discretion of clergy or royalty and led to inconsistent levels of punishment for the same crime. Against this backdrop, Beccaria makes a case for the complete reformation of the existing legal system, adopting “enlightened reason” over the existing passions and superstitions (10). Specifically, he argues that society and laws only arise from a social contract whereby each individual is relieved of a portion of their liberty to achieve a more peaceful society. Using the social contract as a base to formulate his ideas on law, Beccaria argues that all laws should be enforced as logically as possible. Instead of a judge ruling based on the “spirit of the law”, he claims that rulings based on the strict letter of the law are the only just way of judging the accused and imposing punishment if need be (11). As an extension of this point, Beccaria expresses the need for the law to be plainly written, because laws incomprehensible to the general public puts citizens “at the mercy of a handful of men” (12). Some of his most modern points are that there needs to be a separation between the “sovereign” who crafts the law, and the “magistrate” who reads the law and makes a judgement based on the evidence presented, and the notion that the punishment visited upon a wrongdoer is to be proportional to the “harm they cause society”. Radical for his time, these element appear to have made some of the most lasting impacts on modern judicial systems.
Throughout his treatise, he references the fact that the social contract is not voluntary and does need to be maintained through force. I say that is thoughtful and honest of him to point out. Most people aren't so forthcoming about that fact.
Tell me: Do you think we need state courts or the idea of the "social contract" today, or have our understandings of liberty and natural rights left state solutions in the dust? Let me know what/why and I will be upvoting any thoughtful comments I see.
"our understandings of liberty and natural rights"
^^^ That depends on who "our" is. There are an awful lot of people these days--the thought crimes, hate speech, etc crowd--who don't seem to have any grasp whatsoever of liberty (liberty for anyone who isn't a clone of themselves anyway). So theoretically a "social contract" is needed just as much now to counteract the far left equivalent of the old time "religious code of ethics." Modern progressivism really is the exact same thing as the past's runaway religious zeal: it aims to force its views on others and control them.
What I find interesting is how people hang onto the "social contract" catchphrase of Beccaria's writings but have dumped all the other elements that I dare say make it most feasible. Laws aren't plainly written, spirit of the law abounds, and activist judges are practically writing their own laws (that they then enforce-or not.) So if Beccaria's supports for a social contract have already been eroded, is there even a good basis for one anymore?
True, I would love to hope that most people are capable of logic. Mostly my argument in this case is to get them to concede that you cannot logically force someone to behave against their will. Every time they contradict that concession I hold their feet to the fire about it.
Common law, like we have in the US is completely borked. We can't both have a codified and clearly written code of laws, and also a system which is created through a compilation of case law and legal precedents. The best way to have a legal system is Civil law tradition of most of Europe (not to say that the current EU legal systems are good, they are just cut from a better cloth).
Sure, as posted classically the social contract is bullshit, however, in order to exert sovereignty over a territory you need to create a polity and an organized militia that needs structure, also you need to ensure transactions and provide trust for the solution of disputes. So a social contract is this born amongst the ones that wish to ensure their progeny the future of the commons and services produced in that territory. Wouldn't you agree that social contracts are an inevitable?
In one version or another I would lean your way. As far as an overarching doctrine applied to all without express consent I do not think it needs to or ought to exist. Social contracts can and should be voluntary and plainly written I believe. In general a statist form of the social contract is born out of an existential or external threat like invasion, plague, or the like. This might make sense for the generations effected by such threats, but once it is over the justification of a top-down authoritarianism ceases to exist. Likewise, further generations do not consent to it in the way the first generation did.
Practical Replacements: home owners societies and town chambers of commerce can take over such a role of deciding what and how the efforts and funds of constituents should be collectivized to provide for "common good" services such as roads, public transportation, dispute resolution, and security forces. This way the contract is plainly written and cannot be justified to force others to behave against their will or self interest.
Thanks for the comment btw
You're welcome, I'd like to dig in a little bit
If we can produce a market for un-consumable commons using a government we can just as well produce a market for consumable private goods.
But that law and commons are two different things. But there is no reason whatsoever, that knowing how to construct the common law, government should be capable of producing law. It cannot. Law is discovered, contracts and exchanges are made.
Why is it that libertarians tend to associate Contractualism with Anarchism, where there is extraordinary demand for the state, instead of associating Contractualism with Nationalism where there is almost no demand for the state?
Anarchism evolved in Eastern European borderlands, and in Western European ghettos.
Contractualism evolved with near kin relations in the North Sea.
(Frisia, England, Denmark, Norway, Sweden, and then Germany and East)
You can only have contractualism under nationalism. Othewise you must have statism
Perhaps I am misunderstanding you, but it seems like you are saying that in a nationalist framework, there is less justification of a state then there is in a Anarchist framework.
Taking the etymology of anarchy:
An: without
Archos: rulers
and philosophical thought on the topic from ancient Taoists, to enlightenment era European, to modern intellectuals like Lysander Spooner, the overwhelming though on anarchism is founded in the idea of private contracts between individuals and objective ethics and negative law derived from first principles. I cannot see how in any way a state is justified here.
in a nationalist framework there is indeed less justification of a state, we create a deflationary government. the problem with anarchy is the creation of a ghetto ethic state, IMO, if you want I can ellaborate
If you can direct me to any state, historical or current, which started small and stayed that way, I would love to see it.
Whether you believe in the slave/master morality dichotomy of Friedrich Nietzsche or not, there seems to be evidence for it. The superior minority embraces an ethic if free will and individuality, the inferior majority adopts a collectivist, illiberal ethical framework. Through the nature of a democracy, the majority can enforce their will through the vote, whereas the Nietszche's "ubermensch" who's ethic genuinely benefits all is artificially usurped by the the counter-ethic.
Can you elaborate on the idea of ghetto ethic states?
Every polity starts small and tends to start by kith and kinship, then they evolve and create a militia to exert authority over the territory they want to control and then they expand.
I do believe the Nietzschean dichotomy for it is the basis on which western civilization is founded upon.
When I write about ghetto ethics I meanthe ethics of the medieval urban ghetto.
Ghettos are a "state within a state" and as such, their residents can conduct exchange and transactions as if they are state actors by relying upon high trust exchange in-group, while using low trust exchange out-group.
However we cannot act as a "state"by applying low trust with some traders and high trust with others because the net result is a near universally low trust society for the vast majority.
In such an environment, demand for the state and its interventions act as a proxy.
For the mere fact that trust just remains high, since low trust is by definition the use of cunning and deception to obtain discounts and premiums that the opposite party would not tolerate willingly.
In other words, low trust ethics are parasitic, and impose high transaction costs on the population.
What I am trying to point out is the absurdity of using the model of a state within a state to advocate for a stateless society.
In that scope the entire Rothbardian project is absurdly illogical.
Aristocratic egalitarianism (the protestant ethic) suppresses all cheating such that demand for the state is low because transaction costs and conflicts are minimized, while the velocity of production and exchange is high.
I don't think we need a social contract, but I think it's important to understand why contracts work. So if someone breaks a contract then what? You sue. But what if you win and the other person ignores the courts ruling? Then the police come and they go to jail. Without the threat of violence a contract is just a bunch of words. Now does the threat of violence have to be provided by the government? No, there are private security companies that can do that. However, is it wise to privatize everything? It depends on who you ask. Some people would say yes, but I would not be one of them. I think if you can put a price on it it should be privatized. Things like schools and roads can easily be privatized. Can you put a price on justice? I don't think you can, and that is why I think we will always need a government backed court system.
That makes a lot of sense, but I do not believe that the conclusions follow from the premise necessarily. As an example: If you are living in a town and you fail to uphold an element of your homeowner's contract with the homeowners association then you can be removed (by force if need be) if a clause in the contract permits it. Why does it? Privately contracted security forces. This hypothetical does not look much different than the world today from an external standpoint, but if you look under the hood, then everything is expressly consented to.