Social contract

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The term social contract describes a broad class of philosophical theories whose subject is the implied agreements by which people form states and maintain social order. In laymen's terms this means that the people made a trade-off, giving up some rights to a government and in return benefiting from greater social order. Social contract theory provides the rationale behind the historically important notion that legitimate state authority must be derived from the consent of the governed. The starting point for most of these theories is a heuristic examination of the human condition absent any social order, termed the “state of nature” or “natural state.” In this state of being, an individual’s action is bound only by his or her conscience. From this common starting point, the various proponents of social contract theory attempt to explain the individual’s rational self-interest in voluntarily subrogating individual freedom of action under the natural state (their so called “natural rights”) in order to obtain the benefits provided by the formation of social structures.

Common to all of these theories is the notion of a sovereign will which all members of a society are bound by the social contract to respect. The various flavors of social contract theory that have developed are largely differentiated by their definition of the sovereign will, be it a King (monarchy), a Council (oligarchy) or The Majority (republic or democracy). Under a theory first articulated by Plato in his Socratic dialog Crito, members within a society implicitly agree to the terms of the social contract by their choice to stay within the society. Under all forms of social contract, freedom of movement is a fundamental or natural right which society may not legitimately require an individual to subrogate to the sovereign will.

Thomas Hobbes (1651), John Locke (1689), and Jean-Jacques Rousseau (1762) are the most famous philosophers of contractarianism, which formed the theoretical groundwork of democracy. Although the theory of natural rights influenced the development of classical liberalism, its emphasis on individualism, and its rejection of the necessity to subordinate individual liberty to the sovereign will stands in opposition to the general tenets of social contract theory.[1]

Contents

Overview

State of nature & social contract

According to Hobbes' and canonical theory, the essence is as follows: Without society, we would live in a state of nature, where each person has unlimited natural freedoms. The downside of this general autonomy is that it includes the "right to all things" and thus the freedom to harm all who threaten one's own self-preservation; there are no positive rights or negative rights, only laws of nature and an endless "war of all against all" (Bellum omnium contra omnes, Hobbes 1651). To avoid this, people jointly agree to a social contract by which each gain civil rights in return for subjecting themselves to civil law or to political authority. In Hobbes' formulation, the sovereign power is not a party of the contract, only the beneficiary of it, and so is not bound by it.

Alternatively, some have argued that we gain civil rights in return for accepting the obligation to respect and defend the rights of others, giving up some freedoms to do so; this alternative formulation of the duty arising from the social contract is often identified with militia, or defense activity.

A fictional state of nature?

There is scholarly debate over whether the various theorists of social contract believed in a genuine historical state of nature and in a social contract that was actually made by our distant ancestors, or whether they saw it as a "thought experiment" or just-so story, a way of saying that all rational creatures would inevitably consent to such a contract. Rousseau's 1754 essay, Discourse on the Origin and Basis of Inequality Among Men, relies on a fictional remembrance of what has passed than a realistic historical description; but the ambiguity persists and seems to be inherent in the theories.[2] Hobbes conceives of the state of nature as a brutal struggle of all against all, a conception that may have been influenced by his experience of the English Civil War. Locke saw mankind as more inherently social, and his state of nature was more akin to the kind of society in which tribal peoples such as the Native Americans lived, one in which there already existed basic social mechanisms and norms. The agreement among plebeians and patricians known as the Twelve Tables of the Roman Republic in 501 B.C.E. was a social contract developed by ancient Western ancestors.[3]

Violations of the contract

The social contract and the civil rights it gives us are neither "natural" nor permanently fixed. Rather, the contract itself is the means towards an end—the benefit of all—and (according to some philosophers such as Locke or Rousseau), is only legitimate to the extent that it meets the general interest. Therefore, when failings are found in the contract, people renegotiate to change the terms, using methods such as elections and legislature. Locke theorized the right of rebellion in case of the contract leading to tyranny.

Since rights come from agreeing to the contract, those who simply choose not to fulfill their contractual obligations, such as by committing crimes, risk losing some of their rights, and the rest of society can be expected to protect itself against the actions of such outlaws. To be a member of society is to accept responsibility for following its rules, along with the threat of punishment for violating them. Most people are comfortable with laws punishing behavior that harms people because people are concerned about others harming themselves and don't plan on harming others. In this way, society works by "mutual coercion, mutually agreed upon" (Hardin 1968).

Some rights are defined in terms of the negative obligation they impose on others. For example, your basic property rights entail that everyone else refrain from taking what is yours. Rights can also involve positive obligations, such as the right to have stolen property returned to you, which obligates others to give you back what's yours when they find it in the hands of others (or, in modern society, to send the police in to do it). Theorists argue that a combination of positive and negative rights is necessary to create an enforceable contract that protects their interests.

History

Classical thought

Some have argued that Epicurus explicitly endorsed "social contract" ideas; the last fourth of his Principal Doctrines state that justice comes from agreement not to harm each other, and in laws being made for mutual advantage (pleasure, happiness), and that laws which are no longer advantageous are no longer just. In this sense, the Greeks had little to do with contractualism as it is formulated by modern philosophy: Conventionalism is in fact quite the opposite of contractualism, since it considers justice to be the product of social conventions (as in the sophists' acceptation of the term), while contractualism considers nature to be the grounds of justice.[4]

Renaissance developments

Several critical modern innovations in contract theory are found in the writings of French Calvinists and Huguenots, whose work in turn was invoked by writers in the low countries who objected to their subjection to Spain and, later, by Catholics in England.[5] Among these, Francisco Suárez (1548-1617), from the School of Salamanca, might be considered as an early theorist of the social contract, theorizing natural law in an attempt to limit the divine right of absolute monarchy. All of these groups were led to articulate notions of popular sovereignty by means of a social covenant or contract: All of these arguments began with proto-“state of nature” arguments, namely that the basis of politics is that everyone is by nature free of subjection to any government. However, these arguments relied on a corporatist theory found in Roman Law, according to which "a populus" can exist as a distinct legal entity. Therefore, these arguments held that a community of people can join into a government because they have the capacity to exercise a single will and make decisions with a single voice in the absence of sovereign authority—a notion rejected later by Hobbes.

It is largely as a result of having rejected this medieval, Roman-Legal, and Aristotelian notion that in common parlance, contractualism refers to the theory of sovereignty first elaborated by Hobbes in the seventeenth century. His book, Leviathan, is generally considered to be a landmark of absolutism.

Thomas Hobbes's Leviathan (1651)

The first modern philosopher to articulate a detailed contract theory was Thomas Hobbes (1588-1679), who contended that people in a state of nature ceded their individual rights to create sovereignty, retained by the state, in return for their protection and a more functional society, so social contract evolves out of pragmatic self-interest. Hobbes named the state Leviathan, thus underscoring the artifice involved in the social contract.

Jean-Jacques Rousseau Du Contrat social (1762)

Jean-Jacques Rousseau (1712-1778), in his influential 1762 treatise The Social Contract, Or Principles of Political Right, outlined a different version of contract theory, based on the conception of popular sovereignty, defined as indivisible and inalienable—this last trait accounting for Rousseau's aversion for representative democracy and his advocacy of direct democracy. Rousseau's theory has many similarities with the individualist Lockean liberal tradition, but also departs from it on many significant points. For example, his theory of popular sovereignty includes a conception of a "general will," which is more than the simple sum of individual wills but based on acollectivist or holistic notion, rather than an individualist one. As an individual, Rousseau argues, the subject can be egoist and decide that his personal interest should override the collective interest. However, as part of a collective body, the individual subject puts aside his egoism to create a "general will," which is popular sovereignty itself. Popular sovereignty thus decides only what is good for society as a whole:

"[The social compact] can be reduced to the following terms. 'Each of us puts his person and and all his power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole.'"[6]

Rousseau's infamous phrase that man must "be forced to be free"[7] reflects the collectivist basis of his idea. Individual subjects resign their free will, as in Hobbes's theory, to form popular sovereignty; but, since the indivisible and inalienable popular sovereignty decides what is good for the whole, even if an individual lapses back into his ordinary egoism, he is forced submit his own will to that of the collectivity.

Rousseau's version of the social contract is the one most often associated with the term "social contract" itself. His theories had an influence on both the 1789 French Revolution and the subsequent formation of the socialist movement. Furthermore, one can note that, as in Locke or Hobbes' theories, Rousseau gave particular attention to subjective and individual questions, as in his Confessions for example.

Pierre-Joseph Proudhon's individualist social contract (1851)

While Rousseau's social contract is based on popular sovereignty and not on individual sovereignty, there are other theories espoused by individualists, libertarians and anarchists, which do not involve agreeing to anything more than negative rights and creates only a limited state, or no state at all.

Pierre-Joseph Proudhon (1809–1865) advocated a conception of social contract which didn't involve an individual surrendering sovereignty to others. According to his view, the social contract was not between individuals and the state, but rather between individuals themselves refraining from coercing or governing each other, each one maintaining complete sovereignty upon oneself:

What really is the Social Contract? An agreement of the citizen with the government? No, that would mean but the continuation of [Rousseau’s] idea. The social contract is an agreement of man with man; an agreement from which must result what we call society. In this, the notion of commutative justice, first brought forward by the primitive fact of exchange, …is substituted for that of distributive justice … Translating these words, contract, commutative justice, which are the language of the law, into the language of business, and you have commerce, that is to say, in its highest significance, the act by which man and man declare themselves essentially producers, and abdicate all pretension to govern each other.[8]

This idea of a social contract that excludes intervention by the state in individual liberty was also followed by other individualist anarchists, such as Benjamin Tucker (an enthusiast of Proudhon's writings) who said "Mankind is approaching the real social contract, which is not, as Rousseau thought, the origin of society, but rather the outcome of a long social experience, the fruit of its follies and disasters. It is obvious that this contract, this social law, developed to its perfection, excludes all aggression, all violation of equality and liberty, all invasion of every kind" (Liberty, VII, 1890).

John Rawls's Theory of Justice (1971)

John Rawls (1921-2002), in his major work A Theory of Justice (1971), proposed a contractarian approach that has a decidedly Kantian flavor. Arguing from "first principles" he postulates that rational people in a hypothetical "original position," setting aside their individual preferences and capacities under a "veil of ignorance," would agree to certain general principles of justice. This idea is also used as a game-theoretical formalization of the notion of fairness. Implicit in Rawls' theory is a version of the social contract.

Philip Pettit's conception of republicanism (1997)

Philip Pettit (b. 1945) has argued, in Republicanism: A Theory of Freedom and Government (1997), that the theory of social contract, classically based on the consent of the governed (as it is assumed that the contract is valid as long as the people consent to being governed by its representatives, who exercise sovereignty), should be modified, in order to avoid dispute. Instead of arguing that an explicit consent, which can always be manufactured, should justify the validity of social contract, Philip Pettit argues that the absence of an effective rebellion against the contract is the only legitimacy of it.

Criticism

Hume

An early critic of the validity of social contract theory was David Hume. In his essay "Of the Original Contract," contained in his Essays Moral and Political (1748), Hume stressed that the contract theory of government was not supported by available historical data.

Social contract is a violation of contract theory?

Normally, a contract is not presumed valid unless all parties agree to it voluntarily, that is, no one has been pressured under the threat of physical force to enter into it. Lysander Spooner, a 19th century lawyer and staunch supporter of a right of contract between individuals, in his essay No Treason, argues that a supposed social contract (of the Rousseauean sort) cannot be used to justify governmental actions such as taxation, because government will initiate force against anyone who does not wish to enter into such a contract. As a result, he maintains that such an agreement is not voluntary and therefore cannot be considered a legitimate contract at all. However, the philosophical concept of social contract does not address the same issues as the juridical contract theory, making the name "social contract" potentially misleading. For this reason some thinkers, such as James Madison, preferred the term social compact.

The notion of consent has always been problematic for contract theory, since the actions of the state are never in perfect alignment with any single individual's will. One legal scholar notes that consent does not mean consent to any rules the society might make, and a second condition of consent is that the rules be consistent with underlying principles of justice and the protection of natural and social rights, and have procedures for effective protection of those rights (or liberties).[9] A more nuanced approach is found in Brownson's separation of three types of consent. The first the constitution of nature that includes all of what the United States Founders called "natural law," or "self-evident truth." The second would be the constitution of society, an unwritten and commonly understood set of rules for the society formed by a social contract before it establishes a government, by which it does establish the third, a constitution of government. To consent, a necessary condition is that the rules be constitutional in that sense.[10]

Modern anglo-american law, like European civil law, is based on a will theory of contract, according to which all terms of a contract are binding on the parties because they chose those terms for themselves. This was less true when Hobbes wrote Leviathan; more importance was attached to consideration, meaning a mutual exchange of benefits necessary to the formation of a valid contract, and most contracts had implicit terms that arose from the nature of the contractual relationship rather than from the choices made by the parties. Accordingly, it has been argued that social contract theory is more consistent with the contract law of the time of Hobbes and Locke than with the contract law of our time, and that features in the social contract which seem anomalous to us, such as the belief that we are bound by a contract formulated by our distant ancestors, would not have seemed as foreign to Hobbes' contemporaries as they do to us.[11]

Implicit social contract theory presupposes its conclusion

The theory of an implicit social contract holds that by remaining in the territory controlled by some government, people give consent to be governed. This consent is what gives legitimacy to the government. The problem with this argument, and legitimacy arguments in general is that it leaves itself open to the charge of question begging, that is, the argument has to presuppose its conclusion:

I think that the person who makes this argument is already assuming that the government has some legitimate jurisdiction over this territory. And then they say, well, now, anyone who is in the territory is therefore agreeing to the prevailing rules. But they’re assuming the very thing they're trying to prove—namely that this jurisdiction over the territory is legitimate. If it's not, then the government is just one more group of people living in this broad general geographical territory. But I've got my property, and exactly what their arrangements are I don't know, but here I am in my property and they don't own it—at least they haven't given me any argument that they do—and so, the fact that I am living in "this country" means I am living in a certain geographical region that they have certain pretensions over – but the question is whether those pretensions are legitimate. You can’t assume it as a means to proving it.[12]

One response to this argument is that a society which has effective dominion over a territory, that is, a state, is the sovereign over that territory, and therefore the true, legal owner of all of it. This is actually the theory of law for real property in every country. What individuals can own is not the land itself, but an estate in the land, that is, a transferrable right to use and exclude others from use. The true owner is the sovereign, or supreme lawmaking authority, because it can make and enforce laws that restrict what one can do on one's estate.

Ronald Dworkin's Law's Empire (1986)

In his 1986 book, Law's Empire, Ronald Dworkin touches briefly on social contract theory, firstly distinguishing between the use of social contract theory in an ethical sense, to establish the character or content of justice (such as John Rawls' A Theory of Justice) and its use in a jurisprudential sense as a basis for legitimate government.

Dworkin argues that if every citizen were a party to an actual, historical agreement to accept and obey political decisions in the way his community's political decisions are in fact taken, then the historical fact of agreement would provide at least a good prima facie case for coercion even in ordinary politics:

So some political philosophers have been tempted to say that we have in fact agreed to the social contract of that kind tacitly, by just not emigrating when we reach the age of consent. But no one can argue that very long with a straight face. Consent cannot be binding on people, in the way this argument requires, unless it is given more freely, and with more genuine alternate choice, than just by declining to build a life from nothing under a foreign flag. And even if the consent were genuine, the argument would fail as an argument for legitimacy, because a person leaves one sovereign only to join another; he has no choice to be free from sovereigns altogether.[13]

A typical counterargument is that the choice is not limited to tacit consent to the status quo vs. expatriation, but also includes accepting the contract, then working to alter the parts that are disagreed with, as by participating in the political process.

Another counterargument is that there is tacit consent as long as there is somewhere else to go, even if life there is difficult or inpossible, or the regime oppressive. A society has dominion over its territory and the sovereign power to make the rules for it, but no duty to provide a comfortable alternative. By this argument, the Universe is not organized for our comfort or convenience, and life is often not a choice between good and bad, but among the alternatives that are available, which may all be bad.

Criticisms of natural right

Contractualism is based on a philosophy that rights are agreed to in order to further our interests, which is a form of individualism; each individual subject is accorded individual rights, which may or may not be inalienable, and form the basis of civil rights, as in the 1789, Declaration of the Rights of Man and of the Citizen. It must be underscored, however, as Hannah Arendt did on her book on imperialism, that the 1789 Declarations bases the natural rights of the human-being on the civil rights of the citizen, instead of the reverse as the contractualist theory pretends to do.[14] However, this individualist and liberal approach has been criticized since the nineteenth century by thinkers such as Karl Marx, Friedrich Nietzsche or Sigmund Freud, and afterward by structuralist and post-structuralist thinkers, such as Jacques Lacan, Louis Althusser, Michel Foucault, Gilles Deleuze, or Jacques Derrida. Several of those philosophers have attempted, in a spinozist tradition, to think based on some sort of transindividuality which would precede the division between individual subject and collective subject (that is, society).

See also

Notes

  1. Amy H. Sturgis, The Rise, Decline, and Reemergence of Classical Liberalism, Lockesmith Institute, 1994. Retrieved January 13, 2009.
  2. Christopher Kelly, "Rousseau's 'peut-etre:' Reflections on the status of the state of nature," Modern Intellectual History 3 (1) (2006): 75-83.
  3. Gordon L. Anderson, Philosophy of the United States (St. Paul, MN: Paragon House, 2004, ISBN 1557788448), 10-11.
  4. Internet Encyclopedia of Philosophy, Social Contract Theory. Retrieved January 13, 2009.
  5. Quentin Skinner, The Foundations of Modern Political Thought: Volume 2: The Age of the Reformation (Cambridge, 1978).
  6. Jean-Jacques Rousseau, Oeuvres complètes, ed. B. Gagnebin and M. Raymond (Paris, 1959-95).
  7. Oeuvres complètes, III, 364.
  8. Pierre-Joseph Proudhon, General Idea of the Revolution in the Nineteenth Century (1851).
  9. Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004).
  10. O.A. Brownson, The American Republic: its Constitution, Tendencies, and Destiny. Retrieved January 13, 2009.
  11. Joseph Kary, "Contract Law and the Social Contract: What Legal History Can Teach Us About the Political Theory of Hobbes and Locke," Ottawa Law Review 31 (73) (Jan. 2000).
  12. Roderick Long, Libertarian Anarchism: Responses to Ten Objections, Section (1). Retrieved January 13, 2009.
  13. Ronald Dworkin, Law's Empire (Fontana Press, 1986), 192-3.
  14. Agamben, (2005).

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