Hume Doubted the Social Contract, and Conservatives Learned From Him

Ask an American where government comes from and, if he has read the Declaration, he will say consent. Ask him when he consented and you will watch a long pause settle over the conversation. He did not sign anything. He was born here, or arrived at an airport and queued at a counter. Nobody handed him a parchment and asked him to put his name beside the Founders'.

A Scottish philosopher noticed this problem nearly three centuries before your cousin tried it at Thanksgiving. His name was David Hume, he published the objection in 1748, and it has been annoying people who love contracts ever since. The surprising part is how much conservatives owe him, and how much they should refuse to give back.

The essay

Hume's essay Of the Original Contract first appeared in 1748, in a collection called Three Essays, Moral and Political, and was later gathered into his Essays, Moral, Political, and Literary. It is a short piece, and it takes aim at the theory then fashionable among the Whigs, the theory associated with John Locke, that all legitimate government rests on the actual or implied consent of the governed.

Hume's strategy is to take the theory seriously and ask what it would require. He makes five main points.

1. The historical record shows no contract. Almost every government in history began in conquest, usurpation or gradual accretion. The Whig story of free men assembling in the woods to choose a ruler is a fable. If the legitimacy of a government depended on such an event, hardly any government in history would be legitimate.
2. Consent today is a fiction. Locke had said that a man gives tacit consent to a government by living under its protection. Hume answers that this proves nothing. A poor peasant or artisan, who knows no foreign language and lives from day to day on his wages, does not freely choose to remain in his country.
3. The ship. Hume's best-known image makes this concrete. We may as well say that a man, by remaining in a vessel, freely consents to the dominion of the master, though he was carried on board while asleep and must leap into the ocean and perish the moment he leaves her. A man born under a government and unable to leave it is in the same position as the sleeper on the ship.
4. Duty rests on utility and habit. People obey the government, Hume argues, because they see that society cannot subsist without it and because they are used to it. In his essay Of the First Principles of Government he states that it is on opinion only that government is founded, since force is always on the side of the governed and the governors have nothing to support them but opinion.
5. The promise itself rests on the same thing. Even if a contract had been made, why should people keep it? Hume says that the obligation to keep promises comes from the same source as the obligation to obey the magistrate: its necessity to human society. So the contract adds nothing. The foundation is usefulness all along.

That is a sharp piece of logic. It is also, as you can see, an attack on a theory of consent that treats a hypothetical signature as the root of authority.

Why the Founders read him anyway

You might expect an essay like this to be burned in Philadelphia. It was not. The Founders owned Hume and read him, and his most influential contribution to the American system has nothing to do with the social contract.

In 1752 Hume published his Political Discourses, which included an essay called Idea of a Perfect Commonwealth. In it he challenges the received wisdom, which came down from Montesquieu and ultimately from the ancients, that republics must be small. Hume argues the opposite: a large republic is better than a small one. In a small state a faction can grasp the whole, and people sharing a passion can easily combine. In a large state, the representatives are drawn from many places and interests, and it is harder for a single passion to capture them all.

If that sounds familiar, it should. It is the central argument of Madison's Federalist 10, which we dissect in Federalist 10 Explains Why a Large Republic Tames Faction Best. The historian Douglass Adair argued in the 1950s that Madison had absorbed Hume's idea and turned it into the Constitution's theory of the extended republic. Historians still discuss how direct the debt is, and it would be unwise to claim more than the record shows. But the parallel is plain, and Madison knew Hume's work.

So the Founders took Hume's constructive politics and left his scepticism about natural rights. That division of labour is the clue to what a conservative should do.

The best case for Hume

State the philosopher's position as a friend would, in the strongest form.

Hume was a realist about how societies hold together. Political order is not built from first principles and then installed. It grows, like language, from a long series of small practical agreements, and the rules that survive are the ones that worked. The authority of a law comes mostly from the fact that people have been following it, not from a theory of how it began. Abstract theories of justice are dangerous because they invite the reformer to tear down what works in the name of what ought to be. A sceptic about reason's power to remake society will protect institutions that have earned their place by long service. This is the root of conservatism, and Edmund Burke's defence of prescription, explored in Burke's Doctrine of Prescription Says Old Institutions Deserve a Hearing, grows straight from it.

Hume's friends add that his argument has a moral side. If government rested on a signed contract, then any government could be dissolved whenever a group declared that it had never signed. The Whig theory, taken literally, is an engine of revolution. Hume's view gives a society a reason to keep what it has, to reform by degrees and to treat disorder as the great evil.

All of that is good sense. The conservative tradition has absorbed it, and it is a reason to read Michael Oakeshott and G. K. Chesterton, whose own cases for tradition we examine in Oakeshott Said Being Conservative Is a Temperament Before It Is a Program and Chesterton Called Tradition the Democracy of the Dead, and He Was Right.

What a conservative should take

Here are the lessons worth keeping, in order.

First: legitimacy is built by long practice. A constitution works because generations have lived under it, argued about it and learned its meaning. The American Constitution is a written text, but it operates on a mass of habits, norms and understandings that no text contains. Anyone who proposes to throw it out and start over, on the ground that no one living has consented to it, has not noticed that the habit of living under it is what holds it up.

Second: be suspicious of the fiction. A theory of consent that requires every citizen to have agreed to every law is a fiction, and fictions can be pressed into service by anyone who wants to declare the law void. Hume's ship is a useful antidote to the sort of student who announces that he never signed the Social Contract and so owes nothing to the government.

Third: opinion is power. Hume saw that all government rests on the opinion of the governed. That is a warning and a promise. If the people lose faith in an institution, no law can save it. If they keep faith in it, no army is needed. It follows that the shaping of opinion, through schools, churches, newspapers and families, is the most political thing a society does.

Fourth: the extended republic. The Hume who argued for large republics is the Hume the Founders were right to read.

Notice, too, that Hume was no friend of tyranny. In his essay Of Passive Obedience, published in the same period, he argued that the duty of obedience gives way in extreme cases, where resistance is the only remedy left to defend the constitution. He simply refused to rest that right on a fairy tale about a signature. He wanted the right of resistance to be grounded in the public good. A conservative can respect the care of that move and still ask whether the public good, without any notion of natural right behind it, is a firm enough rock. The colonists thought it was not, and a Declaration was the result.

What a conservative should leave

Now the other half. Hume was a brilliant man whose philosophy carries a flaw that an American conservative must not overlook.

He has no ground for rights. If government rests on utility and habit, then everything government does is justified by those, and nothing stands above them. The Declaration says that all men are created equal and endowed with unalienable rights. Hume's philosophy gives no account of why that should be true. A right is a claim that holds even when habit and utility point the other way. A rule that holds only so long as it is useful is a policy, not a right. If the majority finds it useful to override the minority, Hume's argument has nothing to say.

He underrates the role of reason in judging a government. Hume's own reply to Locke could be turned against the old regimes. The mere fact that a thing has long been done does not make it just. Slavery had a very long history. American abolitionists defeated it by appealing to a standard above custom, the one the Declaration provides. Burke's prescription needs the natural law behind it, or it becomes a licence for whatever has lasted. We examine this tension in Burke Versus Paine, the Argument That Defined Left and Right for Good.

He sets the question of the contract wrongly. Locke did not mean that every person signed a paper. The consent in his theory is a standard of legitimacy, a test any government must meet: does it secure the rights it was set up to protect? The test is not undermined by the fact that no one has signed. The Declaration makes the same point. The government's just powers derive from the consent of the governed, and the way to measure it is to ask whether the government is doing what a free people would approve, which is why Locke's idea is more precise than Hume allows, as we argue in Consent of the Governed Was a Precise Idea in Locke, Not a Slogan.

He leaves the Founders' revolution without a justification. On Hume's logic the colonies owed obedience to the Crown as long as the habit of obedience lasted and the government was tolerable. The colonists appealed to a higher law. They won the argument because they had one.

A fair verdict

Put the two views side by side. Hume gives conservatives the argument for humility: the best constitution is not a blueprint but an inheritance, and a people who forget this will break something precious. Locke and the Declaration give conservatives the argument for firmness: some things are not up for negotiation, and a government that violates them forfeits its claim.

A natural-rights conservative needs both. Without Hume, he becomes a theorist who thinks a society can be rebuilt from axioms. Without Locke, he becomes an antiquarian who cannot say why any evil should be resisted if it is old enough. The Founders, being practical men, held the two together. They wrote a Declaration of principles and then a Constitution of procedures, and they were wiser than either philosopher alone. We trace how that Enlightenment inheritance was actually used in Myths About the Enlightenment That Get the American Founding Wrong.

The case in brief

1. Hume's Of the Original Contract (1748) argued that government rests on habit, opinion and utility, not on any actual agreement, and his ship image showed why tacit consent is a fiction.
2. The Founders read Hume and took from him the extended-republic argument that Madison put at the centre of Federalist 10.
3. Conservatives should keep his lessons: legitimacy grows by long practice, fictions can be weaponised, and opinion is the real foundation of power.
4. They should leave his scepticism about rights, since utility and habit cannot say why any minority is safe, and the Declaration needs a standard above custom.
5. The Founders held both halves together: principles in the Declaration, inherited procedures in the Constitution.

What you can do: read the Declaration's second paragraph and one chapter of an old state history in your own town, then ask which of your local customs deserve to be kept because they work and which deserve to be changed because they are wrong.