This approach has its slightly more contorted variations. Maybe the social contract was broken, so the person breaking that contract is going to lose certain legal/moral rights. (Often only loosely connected to the clause 'broken' in the first place.) Or maybe the speaker asserts that the social contract involved some 'trading' of rights, where some pre-civilised caveman gained certain social duties in return for a right not to be clubbed over the head. All these variations are also terrible.
Few top-tier debaters, and virtually no professional political philosophers, would nowadays make or defend the social contract argument as it is used in debating today. Here's why: Social contract arguments are transparently false and intellectually dishonest, even though they are so commonplace in debating that most debaters don't question their basic premises. Let's run through several interpretations of what a 'social contract' could mean, and see why they are all deeply problematic.
- There is a social contract: Citizens, by joining a society, consented to some set of common rules, so they are morally bound to obey them.
- This purported contract is entirely fictional. It existed at no point in history. Why should I be bound by a fictional contract cooked up by an over-imaginative political theorist?
- Most citizens do not choose their states. Citizens are born into states (without their own consent), and from birth are bound by legal and social rules that they did not choose.
- Moreover, if life in the 'state of nature' is nasty, brutish and short, then in what sense can I be said to have consented to its alternative? If I'm drowning in the sea, and you offer me a 'contract' in order to allow me onto your boat, that contract is made under duress and is of no moral or legal significance.
- Ok, citizens obviously don't choose their states. But they implicitly consent to a social contract by not leaving.
- Immigration is prohibitively expensive for the majority of human beings on the planet.
- Even if immigration were affordable, most human beings have unchosen, intimate, connections to people and groups within their states, which make it unreasonable to demand that they leave. If the only way for you to signal disagreement with a contract that I'm foisting on you is for you to promise never to see your mother again, it's clearly not reasonable to take your silence as an indication of agreement.
- Where would citizens leave to? We aren't living in the sixteenth century; there aren't large, habitable tracts of land where people may live free of state power. If persons leave, they must almost always leave to join another state. But that's not consent. Suppose I lived on an island with no travel to the outside world. There is a Northern Mafia that controls the North half, and a Southern Mafia for the South half. Each takes my presence in its half as a sign that I have consented to obey its rules. Each points out, correctly, that I could leave (for the other half) if I chose. Can I be said to have consented to live under the rule of the mafia?
- Ok, so that approach is hopeless. But maybe citizens consent to the social contract by voting?
- Either voting is optional, in which case many citizens will not in fact have 'consented' (almost half, in the case of many Western liberal democracies), or voting is compulsory, in which case it cannot be a sign of consent.
- Many citizens may in fact have voted for the losing side in an election. How can they be said to have consented to the winner's rule?
- Even citizens voting for the winning side may have been forced to make a choice between poor alternatives. If I offer you a choice between torture or death, can you be said to have consented to torture? Why is it different if there is a 'Torture' party and a 'Death' party?
- Good grief! So maybe citizens consent to the social contract by receiving government services (welfare, public highways, police protection)?
- There are many government services which I cannot opt out of. (Take, for instance, the benefits of clean air or military defence.)
- If the state takes my resources by force (through taxation), and then converts those into services, I may have to consume those services. That doesn't imply that I consented to any wider set of rules that the state dreamt up!
- Since the state generally exercises a monopoly on the use of violence, it drives other providers out of business, forcing me to consume its services. I have to rely on the state police, because the state takes steps to make sure that their police force is the only one. A monopoly that systematically destroys all its competitors does not thereby have consenting customers.
- So maybe the social contract is entirely hypothetical; it is a claim about what reasonable people would consent to, if they had the choice.
- A hypothetical contract is not a 'milder' form of contract; it is not a contract at all! It is therefore not morally binding. A court would look rather dimly on my having stolen your car and left you a reasonable sum of money, even if I argue that you would (hypothetically) have consented to the exchange.
- Why do we imagine whether a person would agree to this contract in totality? Maybe he agrees with some clauses but not with others. If the contract is: "I will take you out of a state of nature in which your life is nasty, brutish and short. I will feed you and give you safety. In return, you will make me dictator for life." It may be that it is reasonable to consent to that contract if the alternative is a Hobbesian world. But why is that the appropriate alternative to consider?
- Finally: If you are making this form of social contract argument, you need to provide reasons why reasonable people would (hypothetically) consent to this form of contract. But in that case, don't waste everyone's time. Skip the words 'social contract', and just give reasons for the desired legal duty/obligation directly. The words 'social contract' add nothing.
- I add as an addendum: The use of hypothetical contracts as 'intuition pumps' to help us think about what set of rules a reasonable person would find desirable is still prevalent in modern political philosophy. This kind of claim is occasionally a useful rhetorical strategy in debating, but it's often better made without the jargon "social contract"; e.g. "Look, a reasonable person would agree to rules X because of Y, so we should implement rules X."
- Equally still alive is the claim that, if a perfectly rational person would consent to a certain system of rules, then people are (in some sense) obliged to obey them. This is not a very useful argument in debating, because proving that a rational person would consent to or desire your proposed rules is generally the entire debate.
In summary: Social contract arguments - cliche, bad strategy, and just plain wrong. Debating would be better if they didn't exist.