Contrat Social

Social contract

Social contract describes a broad class of republican theories whose subjects are implied agreements by which people form nations and maintain a social order. Such social contract implies that the people give up some rights to a government and/or other authority in order to receive or jointly preserve 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 from any structured social order, termed the “state of nature” or “natural state”. In this state of being, an individual’s words or action are bound only by his or her conscience. From this common starting point, the various proponents of social contract theory attempt to explain, in different ways, why it is in an individual’s rational self-interest to voluntarily subjugate the freedom of action one has 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', to which all members of a society are bound by the social contract to respect. The various theories of social contract 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. Thus implicit in most forms of social contract is that freedom of movement is a fundamental or natural right which society may not legitimately require an individual to subrogate to the sovereign will.

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.

Overview

{According to Thomas Hobbes and canonical theory,} the essence is as follows: Without society, we would live in a state of nature, where we each have 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, only laws of nature and an endless "war of all against all" (Bellum omnium contra omnes, Hobbes 1651). In other words, anyone in the state of nature can do anything he likes; but this also means that anyone can do anything he likes to anyone else. To avoid this, free men by a social contract establish political community i.e. civil society in which each gain civil rights in return for subjecting to civil law or to political authority, a government. In Hobbes' formulation, the sovereign power is not a party of the contract but instead the sovereign is its creation; so it 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.

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, we 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, deserve losing 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. It is justified with laws punishing behavior that breaks the Social Contract because we are concerned about others harming us 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 our 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. Other have argued that Plato's dialog Crito express the Greek social contract theory. In this dialog, Socrates refuses to escape from jail to avoid being put to death. He argues that since he has benefited from living in Athens all of his life, this shows that he has (at least tacitly) accepted the social contract i.e. the burden of the local laws, and he cannot therefore abandon these laws now, even though they are against his self-interest.

Renaissance developments

Quentin Skinner has argued that several critical modern innovations in contract theory are found in the writings from 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 still, by Catholics in England. 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, to the effect 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 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 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 17th century. His book Leviathan is generally considered to be a landmark of absolutism.

Philosophers

Hugo Grotius

In the early 17th century, Grotius (1583-1645) introduced the modern idea of natural rights of individuals. Grotius says that we each have natural rights which we have in order to preserve ourselves. He uses this idea to try and establish a basis for moral consensus in the face of religious diversity and the rise of natural science and to find a minimal basis for a moral beginning for society, a kind of natural law that everyone could potentially accept. He goes so far as to say even if we were to concede what we cannot concede without the utmost wickedness, that there is no God, these laws would still hold. The idea was considered incendiary, since it suggests that power can ultimately go back to the individuals if the political society that they have set up forfeits the purpose for which it was originally established, which is to preserve themselves. In other words, the people i.e. the individual people, are sovereign. Grotius says that the people are sui juris - under their own jurisdiction. People have rights as human beings but there is a delineation of those rights because of what is possible for everyone to accept morally - everyone has to accept that each person is entitled to try and preserve themselves and therefore they shouldn't try to do harm to others or to interfere with them and they should punish any breach of someone else's rights that arises.

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 pointing to the artifice involved in the social contract. He believed that the state of nature for humans was asocial and apolitical. The state of nature was also regarded by Hobbes as war because we were nasty and mean; each person was a threat to others for natural resources. People therefore give up their natural law, right, and liberty for a social contract that provides the safety of civil law, right, and liberty. For Hobbes, it is important that this social contract involves an absolute government that does not rule by consent, since people cannot be trusted.

Jean-Jacques Rousseau Du Contrat social (1762)

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 explaining 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: it is thus collectivist or holistic, rather than individualist. 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:

Hence, Rousseau's infamous phrase that man must "be forced to be free should be understood as such: since individual subjects resign their free will, as in Hobbes's theory, to form popular sovereignty; besides, since the indivisible and inalienable popular sovereignty decides what is good for the whole, then if an individual lapses back into his ordinary egoism, he shall be forced to listen to what they decided as a member 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, if at all. This is related to the non-aggression principle.

Pierre-Joseph Proudhon (1809–1865) advocated a conception of social contract which didn't involve an individual surrendering sovereignty to others. According to him, 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:

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) proposed a contractarian approach that has a decidedly Kantian flavour, in A Theory of Justice (1971), whereby 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.

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?

According to the will theory of contract, which was dominant in the 19th century and still exerts a strong influence, a contract is not presumed valid unless all parties agree to it voluntarily, either tacitly or explicitly, without coercion. 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 present-day 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 key notion of social contract or compact is that the individual consents by entering or remaining on the dominion of an existing society, which is usually a geographic territory, in much the same way one does when entering or remaining in someone's household or private property. People are normally brought up from childhood to respect the boundaries of societies, including families, and the rules made by them for their territorial spaces. That is part of the socialization development process.

As legal scholar Randy Barnett has argued, however, while presence in the territory of a society is necessary for consent, it is not 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). This has also been discussed by O.A. Brownson, who argued that there are, in a sense, three "constitutions" involved: The first the constitution of nature that includes all of what the Founders called "natural law". 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.

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; then, 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 strange to Hobbes' contemporaries as they do to us.

Tacit Consent

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. Philosopher Roderick Long argues that this is a case of question begging, because the argument has to presuppose its conclusion:

An answer 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. However, this would rely on an ambiguity in the phrase "effective dominion over a territory"--meaning, it fails to clarify what is meant by "effective dominion" and provide the justification for the authority and ownership of said society over the territory. If it is admitted that the only justification of society's "effective dominion" over the land is the people's choosing to remain on the territory as part of the society, then it would still be subject to Long's argument.

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:

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 impossible, or the regime there 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 rights

Contractualism is based on a philosophy of rights being 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 underlined, however, as Hannah Arendt did on her book on imperialism, that the 1789 Declarations, in this agreeing with the social contract theory, bases the natural rights of the human-being on the civil rights of the citizen, instead of doing the reverse as the contractualist theory pretends to do. However, this individualist and liberal approach has been criticized since the 19th century by thinkers such as Marx, Nietzsche & Freud, and afterward by structuralist and post-structuralist thinkers, such as Lacan, Althusser, Foucault, Deleuze or Derrida. Several of those philosophers have attempted, in a spinozist inspiration, of thinking some sort of transindividuality which would precede the division between individual subject and collective subject (i.e. society). This view mirrors an interpretation earlier made by the philosopher Giovanni Gentile on his view of the true nature of society and how the individual attains actuality in regard to the state.

See also

References

Notes

Other references

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