Legal regulations concerning axiological choices made by individuals in their private or intimate spheres, formed on the basis of the expectations and awareness of the democratic majority, are essentially deprived of legitimization and are not acceptable within the scope of prohibitions and restrictions they introduce.

The idea of the social contract is one of the most fundamental theoretical concepts to which liberalism referred from the very beginning. Not only due to the fact that one of its theorists was John Locke but also because the concept emphasises liberal pre-sources of all interpersonal interactions, such as individualism, free choice, rationalism, attachment to fixed rules as well as  minimalism of those rules. Is it possible to imagine a more liberal creation myth of the community institutions such as society and state?

In the beginning was the contract

There, in a hypothetical “primeval state”, people are their own masters. They are not bound by any laws, constraints, prohibitions, restrictions, namely: by any regulations. However, by not getting involved in any forms of cooperation they are at the same time deprived of protection from others who potentially may intend to take a swing at their lives, freedom or property. It is a dangerous situation as not everyone is able to defend themselves. This is the reason why people decide to enter a group and appoint institutions which at some point form a structure called ‘a state’. In the situation of unequal individual defensive skills or disparity in the amount of possessions it is a rational decision. However, it is of key importance to apply theoretical depiction of such decision in the form of a contract, to which people would accede voluntarily. Additionally, the contract is based on specific rules and arrangements which both parties agree to respect. This means that an individual –  party of the contract consciously gives up an absolute freedom in order to prevent the potential negative effects of the freedom (wilfulness) of others who may want to harm this individual – party on purpose. However, the individual – party is therefore resigning only from a part of the freedom and it is the part which must be sacrificed in a way so that the communal defensive structure could function effectively. There are no premises for making a rational assumption that the authorities were authorised to further restrict the freedom of the citizens. As a result, the country’s authorities – especially the authorities of a liberal democratic country (various dictatorial usurpations are usually, already in their origins, only violence-based forms of terminating social contract and introducing captivity) – are legitimized to authoritative actions (legislative, executive, control and others) exclusively within the scope of the processes which are the essence or the result of social relations. However, the authorities are not legitimized to conduct any regulatory actions which may affect individual or private (intimate) spheres of human life. At least not on the basis of social contract.

And if that is so, then how did it happen that parliamentary right to pass acts which are not legitimized by social contract are in modern democratic countries perfectly acceptable? The relation between two anti-liberal theoretical constructs, which in the modern world are still extremely up-to-date, seems to be fundamental here. Those two constructs are proselytism and democratism.

You have to believe…

Proselytism shall be here understood in a very broad term. It is not only about missionary work directed at converting people. As long as such proselytism is not connected with compulsion and violence, neither the liberal standpoint nor social contract have anything to blame on it. Even to the contrary: it is perceived as an important and valuable tool on the lifestyle market, where free competition between existing alternatives is present. It is about proselytism of entire axiological systems in which religious beliefs are sometimes a foundation, sometimes just a fragment and sometimes are not even present but those systems are formed to eliminate the free competition from the lifestyle market. This axiology is designed as a belief of the whole community or the entire national society. The idea behind creating such axiology is the desire to create a homogeneously strong, cohesive, disciplined and obedient society. Obedient, in the long run, to secular authorities which axiology and religion have at their disposal by the means of either the “throne-altar alliance” or directly by creating an established church with personal union of political and religious power. A desire to eliminate the phenomenon of pluralism of values, norms, attitudes and lifestyles from the life of a national community generates a tendency, functioning as a blackmail tool and a bargaining counter, to make the inclusion of an individual into a community and providing protection from various dangers, dependent on this individual’s readiness to conform. Declared conformation must, however, in those circumstances undergo sanctioning and control, and since moral norms regulate the scope of social interactions as well as the individual’s private life sphere, therefore legislation and control of the Church-State intervenes in both these fields of interest. The social contract is being changed by one party while the other party is presented with a fait accompli.

This naturally shows an image of dictatorship and tyranny which we have not been dealing with in our civilization for a long time. After all, the accusations of arbitrary actions of the authorities or of limiting individual’s freedom are nowadays automatically rejected by a crowning argument that the this power comes from a free choice of the citizens. “The authorities intercept phone calls? It is not because of the fact that a part of its structure makes work easier but because it was chosen in the elections and its actions have citizens’ approval. It bans in-vitro? It is not because one of the churches presents such attitude but due to the fact that a great number of politicians who have obtained election mandates, are followers of particular faith. This is OK.” Democratism is becoming a means of legitimization of all potential actions of the authorities. It includes also those actions which obviously could not be legitimized within the confines of social contract.

…because most people believe

Democratism is a crooked and insufficient argument against the critique of the authorities’ arbitrariness which violates the guidelines of social contract. Of course, we may assume that democratism shows that the actions of authorities are not in fact unilateral as elections are at least a source of a hypothetical citizens’ support for decisions of the authorities. The thing is that the parties to the social contract include all individuals while democratism enables the authorities to disregard some provisions to the contract against the will of minority of participants as long as the majority agrees with it. However, a contract of free individuals in its “primeval state” did not take into account the possibility of a self-willed renouncement of the rights to decide about the matters which concern only the individuals themselves (John Stuart Mill’s formula) for the sake of other citizens. By suggesting that the majority is usually volatile, democratism tries to undermine this manner of critique in a cunning way. It points out that in the future victims will have an opportunity to change the regulations contradictory to social contract. This is true but it does not, in any way, change the fact that the contract is being breached. This infringement reduces public trust, generates strong political emotions, casts doubt upon actual functioning of state of law and creates encouragement to a current minority group so that when it will acquire the majority position it shall “pay the former oppressors back” also by breaching the social contract but in a different way – a way to harm the other party this time.

John Rawls suggested an interesting exercise. The author broadly discussed his “veil of ignorance” concept. An individual who stands behind the “veil” has to imagine that he/she does not know anything about the society in which he/she will live when the “veil” is removed. One is aware only of one’s own values, religion and world-view. This individual is also in the possession of knowledge about the existence of other systems of values and religions but is not able to predict how the relations between the competitive world-views would look like. Rawls suggested that every rational human being would in such situation choose a liberal model of social co-existence since choosing any other model would be extremely risky. Of course a fanatic of religion X might hope for finding himself luckily in a majority among a civil society. But would he/she choose such anti-liberal order since it is perfectly possible that behind the “veil” he/she might find a society in which the majority consists of fanatic confessors of religion Y who will establish a non-secular state of the foreign religion and this individual will be automatically discriminated, deprived of the freedom of practising his/her own religion, may be even taken to jail, forced to convert to the other religion or might even get killed.  Liberal choice, thus the choice of world-view pluralism, equality and freedom of faith, state of law and individual freedom expressed in freedom of shaping our private and intimate spheres, is simply the safest choice that can be made behind the “veil of ignorance” – even for religious fanatics. They will maybe not play for full house but will have a chance to avoid the risk of complete failure. Of course it applies even more to people who are not fanatics at all. And since in the “veil of ignorance” situation which is unnaturally marked for its objectivism, liberalism of social contract seems to be an optimal choice then should it be not an optimal choice also in other situations?  It is definitely the most just one. Standing behind the “veil” people, technically speaking, go back to the “primeval state” in which they still do not possess knowledge about the axiological views of the entire community. In both cases, people aim at preserving their autonomy, liberty of choice and freedom of conscience within the associational contract scope and by this they are giving the same liberties – under general conditions of equality towards law – to others, even though those “others” may cultivate views and attitudes which might be perceived as indecent, abhorrent, inconceivable, unfamiliar, fatal or harmful for those “others” themselves.

You do not have a right to regulate

Legal regulations concerning axiological choices made by individuals in their private or intimate spheres, formed on the basis of the expectations and awareness of the democratic majority, are essentially deprived of legitimization and are not acceptable within the scope of prohibitions and restrictions they introduce. Inability to restrict individual’s freedom by other person is the only restriction which functions here on the basis of social contract. Others are simply a violation of civil rights. First of all we have to get acquainted with it individually so that we would be able to protect our own rights more assertively later on. For this change of attitude and stronger determination shall be noticed by elites of political power so that they would refrain themselves from restricting our freedom. An example can be provided by the surveillance of citizen by the present Polish state which is not only not decreasing but is even getting stronger, thanks to a planned ban of sell of anonymous pre-paid cards, weak reaction encourages democratic Leviathan to anti-freedom expansion. And how is this all going to end? In one of his works “The Road to Serfdom”, Friedrich August von Hayek has put it adequately: with socialism with authoritarian and clerical features.

Translation: Olga Łabendowicz