The Fool
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 |  Subject: Social Contract  Sat Jan 24, 2009 12:01 pm | |
| - Quote :
- 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 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 personal power, constrained by 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 stand in opposition to the general tenets of social contract theory.[1] http://en.wikipedia.org/wiki/Social_contractThe social contract is no contract at all: Criticisms - Quote :
- 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.
[edit] 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,[6] 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,[7] 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.[8]
[edit] Di Law Code Theory
The theory that natural rights cannot be revoked by a national government.Di law code theory is the idea that each society has two law codes. One of them is the law code of nature, and the other is the law code of the government. Di Law Code Theory states that government can only take away rights protected within its own law code. This clashes with the extent of the authority social contract gives to government.
[edit] 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:
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.[9]
This section does not cite any references or sources.
Please help improve this section by adding citations to reliable sources. Unverifiable material may be challenged and removed. (October 2008)
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.
[edit] 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.[citation needed]
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.
[edit] 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.[10] 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. | |
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