CONTRACTUALISM. – The doctrine that traces the foundation of society and the State back to the contract has very ancient origins, being enunciated, in embryonic forms, already by some Sophists (e.g., Lycophron, who defined law as a convention, a safeguard for reciprocal rights) and later by Epicurus (who conceived of law simultaneously as an agreement on what is useful: σύμβολον τοῦ συμφέροντος). Over the centuries, however, it assumed highly varied meanings. In the conceptions just recalled and in some subsequent ones, the contract appears as an act of arbitrariness, determined by individual interest. But the concept that social and political coexistence implies, in its members, a consensus based not on mere arbitrariness but on a higher necessity—namely, a law of nature—also dates back to classical antiquity (cf., e.g., Cicero, *De re publica*, I, 25). This concept rightly opposed the primitive contractualism but later also served for the elaboration and development of the same contractualist doctrine in a more elevated sense.
The formation and dissemination of the idea of the social contract, in its two forms of *pactum unionis* and *pactum subiectionis*, were especially favored by the tradition of a primitive “state of nature,” prior to the “state of society,” which was thus conceived as the effect of a deliberate transition; and by another tradition, very much alive among jurists, according to which imperial authority, as it existed even in the Middle Ages, derived its title of legitimacy from the voluntary transfer, by the Roman people through the *lex regia*, of its sovereign powers to the emperor (cf. *Dig.* I, 4, fr. 1).
Thus, the outlines for theoretical constructions of society and the State emerged, as deliberately accepted bonds in place of isolation and absolute freedom or anarchy, which were thought to characterize the primitive age. According to some authors, e.g., Althusius (*Politica methodice digesta* [1603]) and Pufendorf (*De iure naturae et gentium* [1672]), the pact of social union and that of political constitution would be two distinct and consecutive acts; according to others, however, e.g., Hobbes (*De cive* [1642]; *Leviathan* [1651]) and Rousseau (*Du contrat social* [1762]), they would be simultaneous or reducible to a single act.
Within such frameworks, the greatest variety of doctrines could find a place. The state of nature was sometimes depicted as a condition of innocence and happiness, at other times as one of unbridled license and fraught with danger; correspondingly, the exit from it was considered sometimes a decline (also connected with the Fall) and at other times a process toward a higher and more reasonable form of life (in this sense, e.g., Spinoza, *Tractatus theologico-politicus* [1670], chap. 16). Notable differences also arose in the definition of the clauses of the supposed contract (especially in its properly political aspect, i.e., as *pactum subiectionis*): while some authors (e.g., Althusius and Rousseau) argued that, in submitting to a government, the people would yet retain its original sovereignty and consequent rights, particularly in the event that the contract were subsequently violated by the other party (thus justifying tyrannicide, as maintained by monarchomachs, e.g., the Jesuit J. Mariana [*De rege et regis institutione*, 1599]), others (e.g., Hobbes) understood the contract as an irrevocable and definitive renunciation of sovereignty and natural rights by individuals and the people. In general, an attempt was made to construct a uniform ideological type of social contract (either to guarantee certain popular and individual freedoms or to justify absolutism); the formula of the contract thus became a dialectical tool for exercising political rationalism, which explains why the greatest flourishing of contractualist doctrines occurred in revolutionary ages (especially in the 17th and 18th centuries). Nevertheless, there were some authors, even of considerable importance like Grotius, who attributed to the social contract an empirically variable content (“*populus eligere potest qualem vult gubernationis formam*”: *De iure belli ac pacis*, 1625, I, chap. 3, § 8; cf. *Prolegomena*, § 15), and this apparently out of regard for certain data of experience, but in reality to justify, alongside a presumed consent, any existing political regime.
A subtle equivocation vitiated, to a greater or lesser extent, all these doctrines, because they indiscriminately attributed to the supposed contract the meaning of a historical fact and that of a rational principle or an ideal to be achieved. In the first sense, the thesis is certainly entirely erroneous, since there is no doubt that human coexistence in general, and political organization in particular, did not originate from deliberate agreements. The refutation of the theory in this respect is therefore as easy as it is peremptory, and it was repeated countless times, especially during the 19th century, when the theory itself had already undergone an internal process of correction and had been entirely abandoned in its first and literal sense.
Yet within the ambiguity of these pseudo-historical formulas lay an important theoretical assumption, namely, an attempt to rationally resolve the problem of the relationship between the individual and the State. The chief aim was to define the legal limits of public powers by embedding within the very structure of the State a system of guarantees for individual rights. This was the great function fulfilled, despite its undeniable errors, by the school of natural law, which indeed found in the theory of the social contract one of its most characteristic expressions. This fictitious schema served it, one might say, as a scaffolding for the construction of the modern “legitimate State” or “rule of law.” The supporters of the contractualist thesis in fact became increasingly aware of the merely hypothetical or “regulative” meaning of this dialectical argument; the progress in this awareness is clearly visible in Locke (*Two Treatises of Government*, 1689), and even more so in Rousseau, despite the persistent amphibology of their expressions.
With Kant, the mythology of the social contract as an empirical fact was openly rejected, and its value affirmed only as a speculative principle (*Über den Gemeinspruch*: “Das mag in der Theorie richtig sein,” etc. [1793], II; *Metaphysische Anfangsgründe der Rechtslehre* [1797], § 47). Similarly, even before Kant, the Sicilian abbot N. Spedalieri declared the foundation of civil society to be the contract, not as a fact but as a right (*De iurisprudentia*, 1791, I, chap. 12); and in the same sense Fichte expressed himself (*Beitrag zur Berichtigung der Urtheile des Publikums über die französische Revolution* [1793]).
Shortly afterward, G. D. Romagnosi also accepted the formula of the social contract to signify the “natural law of society.” “Once the idea of a fictitious contract is removed,” he warned, “the idea of a perpetual obligatory will takes its place” (*Istituzioni di civile filosofia ossia di giurisprudenza teorica*, posthumous ed. [1839], IV, chap. 1). Thus, the true motives implicit in earlier doctrines were brought fully to light, especially those emerging from Rousseau’s: according to which the social contract cannot be concluded or modified at will, nor does it require any extrinsic manifestation of consent, since it arises directly, as a categorical necessity, from the very constitution of human nature. Thus understood and brought to the end of its development, contractualist theory substantially reconnects and reconciles with the classical conception of the natural foundation of society and the State.
However, opposition to that theory remained always alive, not only on the part of opponents of natural law, but also for various arguments, though largely directed against the inferior and outdated forms of the doctrine (v. , e.g., the criticisms of TAPARELLI, *Saggio teoretico di diritto naturale appoggiato sul fatto*, Palermo 1840-41, 8th ed. [Rome 1949], I, diss. 2, ch. 10, and those of Vareilles-Sommières, *Les principes fondamentaux du droit* [1889], chs. 12-22).
It is well to note, finally, that in its centuries-old and complex vicissitudes, the theory of the social contract was often tempered with other elements, even of a theological character, so that it sometimes appears to have been accepted only in part and integrated or adapted in various ways. Marsilius of Padua, for instance, asserts that the institution of princes derives from God as a “remote cause,” but God himself wills that it be accomplished “per hominum mentes, quibus talis institutionis concessit arbitrium” (*Defensor pacis* [1324], I, ch. 9, 2; cf. the formula “populo faciente et Deo inspirante” of John of Paris). Cardinal Nicholas of Cusa (*De concordantia catholica* [1433], II, 8-14) upholds the consensual origin of all political power (“per viam voluntariae subiectionis et consensus”), while still attributing to God the foundation of this power and regarding society as a natural fact, in accordance with the Aristotelian-Thomistic teaching. Others, such as the Jesuit Molina (*De iustitia et iure* [1593], II, 22), maintain that the authority of the “corpus reipublicae” depends “immediate a Deo,” yet discern a certain consensual character in the formation of that same “corpus.” These and other seeming divergences are reconciled, especially by Catholic writers, in the fundamental thesis that agreements and consent derive from man’s free and social nature, which in turn depends on God. In this sense, for instance, the Dominican Soto (*De iustitia et iure* [1556]) and the Jesuit Suárez (*De legibus ac Deo legislatore* [1612]; *Defensio fidei catholicae* [1613]) express themselves. By emphasizing the voluntary and conventional element in political institutions, an attempt was also made to highlight the difference between the human institution of the State and the divine institution of the Church. In general, it may be said that this represents an effort to demonstrate dialectically the original value of the human person in relation to society and the State. The foundation of this value, however, cannot but be connected with the supreme principles of philosophy.
Clearly distinct from those theories hitherto mentioned are certain doctrines that arose in the 19th century, to which the name “neo-c.” has been given. Unlike the earlier ones, they do not proceed from ideal principles nor do they aim at any pragmatic goal; rather, they seek to establish, solely through observation of facts, that in human societies there is always an implicit agreement approximating a true contract, though not formally concluded. Thus, for example, Fouillée speaks of the social organism as an “organisme contractuel,” attempting a “conciliation des idées de contrat et d’organisme” (*La science sociale contemporaine* [1880], II, ch. 3); De Greef likewise considers “consentement réciproque” to be the distinctive feature of social phenomena (*Introduction à la Sociologie* [1886], part I, ch. 6); others, such as Bierling (*Zur Kritik der juristischen Grundbegriffe* [1877-83]), indicate in the fact of recognition (Anerkennung) or spontaneous adhesion the essential condition for the positive existence of legal norms. There has also been talk (e.g., by Bourgeois, *Solidarité* [1896]) of a “quasi-contrat social” to express the solidarity binding together associated men. All these theoretical attempts have given rise to no small disputes and objections. It is clear, moreover, that, even if they contain elements of truth, the idea of contract is invoked here only in a very broad and almost metaphorical sense.
Greater importance and more precise meaning, within this same range of doctrines, is found in the formulation of H. J. S. Maine, who defines the progress of societies as “a movement from Status to Contract” (*Ancient Law* [1861], ch. 5 at the end, and ch. 9), taking status to mean the personal condition determined by birth, and contract that resulting from free agreements. This concept, too, has been subjected to various criticisms (e.g., by Vanni), while it was accepted and developed (especially by Spencer) not only as a datum of historical experience but also as a goal set before the evolution of human civilization. The “kingdom of contract,” which would gradually be established in social relations (even beyond the field of private law), would in essence signify the positive recognition of the equal freedom of all men, and thus of those same fundamental rights of the person that the old school of natural law had represented as belonging to a state of origin. Thus, almost concluding the cycle of its singular vicissitudes, the doctrine of the social contract has received from modern positivist writers, on the basis of empirical and inductive observations, an intense confirmation of its deepest metaphysical and deontological content.