Contractualism

CONTRACTUALISM. - The doctrine that places the foundation of society and the State in a contract has very ancient origins, being already enunciated, in embryonic forms, by certain Sophists (Licophron, for example, defined law as a convention, συν-δηλα, guaranteeing reciprocal rights) and later by Epicurus (who similarly conceived right as an agreement on what is useful: σύμβολον τοῦ συμφέροντος); but over the centuries it assumed quite varied meanings. In the conceptions just recalled, and in certain other later ones, the contract appears as an act of arbitrary will, determined by individual interest. But the concept that social and political coexistence implies in its members a consent whose basis is not mere arbitrary will but a higher necessity, that is, a law of nature, likewise goes back to classical antiquity (see, for example, Cicero, De republica, I, 25). This concept was rightly opposed to the primitive contractualism; but it also later served for the elaboration and development of the contractualist doctrine itself, in a loftier sense.

In fostering the formation and diffusion of the idea of the social contract, in its two forms of pactum unionis and pactum subiectionis, there concurred especially the tradition of a primitive "state of nature," anterior to the "state of society," which was accordingly conceived as the effect of a deliberate transition; and the other tradition, very much alive among jurists, according to which the imperial authority, as it still existed in the Middle Ages, would have drawn its title of legitimacy from the voluntary transmission, carried out by the Roman people through the lex regia, of its sovereign powers to the emperor (see fr. 1 Dig. I, 4).

Thus there gradually took shape the schemata for the theoretical constructions of society and the State, as bonds deliberately accepted in place of the isolation and absolute freedom or anarchy that were supposed to have characterized the primitive age. According to some authors, for example 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, for example Hobbes (De cive [1642]; Leviathan [1651]) and Rousseau (Du contrat social [1762]), they would be simultaneous or would reduce to a single one.

Within such schemata the greatest variety of doctrines could find a place. The state of nature was sometimes represented as a condition of innocence and happiness, at other times as one of unbridled license and fraught with dangers; correspondingly, the exit from it was sometimes regarded as a decline (connected also with original sin), at other times instead as a progress toward a higher and more reasonable form of life (in this sense, for example, Spinoza, Tractatus theologico-politicus [1670], ch. 16). Very notable differences also arose in the definition of the clauses of the supposed contract (especially in its properly political aspect, that is, as pactum subiectionis): inasmuch as some authors (for example, Althusius and Rousseau) maintained that, in subjecting itself to a government, the people would nevertheless have preserved its original sovereignty, with the consequent rights, especially in the event that the contract were subsequently violated by the other party (whence the justification of tyrannicide, upheld by the monarchomachs, for example, by the Jesuit G. Mariana [*De rege et regis institutione, 1599]); others on the contrary (for example, Hobbes) understood the contract as a definitive and irrevocable renunciation of the sovereignty and natural rights of individuals and of the people. An attempt was made, in general, to construct a uniform ideological type of social contract (either in the sense of guaranteeing certain popular and individual liberties, or in the sense of justifying absolutism); the formula of the contract thus became a dialectical instrument for exercising political rationalism; which explains how the greatest flourishing of contractualist doctrines occurred in revolutionary ages (especially in the 17th and 18th centuries). There was nevertheless no lack of some author, even one of notable importance such as 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, ch. 3, § 8; cf. Proleg., § 15), and this apparently out of regard for certain data of experience, but in reality in order to whitewash, with a supposed consent, any existing political regime.

A subtle equivocation vitiated, in greater or lesser measure, all these doctrines, because they promiscuously attributed to the supposed contract the meaning of a historical fact and that of a rational principle or of an ideal to be attained. In the first sense, the thesis is certainly entirely erroneous, since it is beyond doubt that both human coexistence in general and political organization in particular did not originate from deliberate agreements. The confutation of the theory under this aspect is therefore as easy as it is peremptory, and was repeated a thousand times, especially during the 19th century, when the theory itself had already undergone a process of internal correction, and in its first and literal meaning had been entirely abandoned.

In the ambiguity of the pseudo-historical formulas, however, there lay hidden a theoretical assumption of the greatest importance, namely an attempt to resolve rationally the problem of the relations between the individual and the State. The aim was above all to define the juridical limits of public powers, inserting into the very fabric of the State a system of guarantees of individual rights. This was the great function performed, even through its undeniable errors, by the school of natural law, which had precisely in the theory of the social contract one of its most characteristic expressions. This fictitious schema served it, one might almost say, as scaffolding for the construction of the modern "legitimate State" or "State of law." The supporters of the contractualist thesis in truth became ever more conscious of the merely hypothetical or "regulative" meaning of this dialectical argument; the progress in such awareness is clearly visible in Locke (Two Treatises of Government, 1689), and still more in Rousseau, notwithstanding the persistent amphibology of their expressions.

With Kant the mythology of the social contract as an empirical act is openly rejected, and the value of this idea is affirmed solely as a speculative principle (Über den Gemeinspruch: "Das mag in der Theorie richtig sein," etc. [1793], II; Metaph. Anfangsgründe der Rechtslehre [1797], § 47). Similarly, even before Kant, the Sicilian abbot N. Spedalieri declared the contract to be the foundation of civil society, not as a fact, but as a right (De' diritti dell'uomo [1791], I, ch. 12); and in the same sense Fichte also expressed himself (Beitrag zur Berichtigung der Urtheile des Publikums über die französische Revolution [1793]).

Shortly afterward, G. D. Romagnosi likewise accepted the formula of the social contract, to signify the "natural law of society." "Once the idea of a fictitious contract is set aside – he cautioned – the idea of a perpetual obligatory will takes its place" (Istituzioni di civile filosofia ossia di giurisprudenza teorica, posthumous ed. [1839], IV, ch. 1). Thus there were brought fully to light the nostici di vero implicit in the earlier doctrines, and already emerged especially in that of Rousseau: according to which the social contract not only cannot be concluded or modified at will, but does not even require any extrinsic manifestation of consent, since it results directly, as a categorical necessity, from the very constitution of human nature. Understood in this way and having reached the end of its development, the contractualist theory is substantially reunited and reconciled with the classical conception of the natural foundation of society and the State.

However, opposition to that theory always remained alive, not only on the part of the adversaries of natural law, but also through various arguments, directed however for the most part against the lower and superseded forms of the doctrine (see, for example, 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 worth noting, finally, that in its centuries-long and complicated vicissitudes, the theory of the social contract was often tempered with other elements, including of a theological character; so that it sometimes appears accepted only in part, and integrated or shaped in various ways. Marsilius of Padua, for example, affirms that the institution of rulers comes from God as a "remote cause," but that 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) maintains the consensual origin of every political power ("per viam voluntariae subiectionis et consensua"), while nevertheless attributing to God the foundation of this power and considering society as a natural fact, according to Aristotelian-Thomistic teaching. Others, for example the Jesuit Molina (De iustitia et iure [1593], II, 22), maintain that the authority of the "corpus reipublicae" depends "immediate a Deo," while nevertheless recognizing a certain consensual character in the formation of that same "corpus." These and other apparent divergences are reconciled, especially for Catholic writers, in the fundamental thesis that agreements and consents derive from the free and social nature of man, and this in turn depends on God. In this sense express themselves, for example, the Dominican Soto (De iustitia et iure [1556]), and the Jesuit Suárez (De legibus ac Deo legislatore [1612]; Defensio fidei catholicae [1613]). By giving prominence to the voluntary and conventional element in political orders, the intention was also to bring to light the difference between the human institution of the State and the divine institution of the Church. In general, it may be said that contractualism represents an attempt to demonstrate dialectically the original value of the human person in relation to society and the State. The foundation of this value cannot, in any case, fail to be related to the supreme principles of philosophy.

Clearly distinct from those mentioned thus far are certain doctrines that arose in the 19th century, to which the name neo-contractualism has been given. Unlike the preceding ones, they do not proceed from ideal principles nor do they propose any pragmatic aim, but tend to establish, by the observation of facts alone, that in human societies there is always an implicit agreement, which approaches a true contract, although 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 similarly considers "consentement réciproque" as the distinctive character of social phenomena (Introduction à la Sociologie [1886], part 1, ch. 6); others, for example Bierling (Zur Kritik der juristischen Grundbegriffe [1877-83]), indicate in the fact of recognition (Anerkennung) or of spontaneous adherence the essential condition for the positive existence of legal norms. There has also been talk (for example, by Bourgeois, Solidarité [1896]) of a "quasi contrat social," to express the solidarity that binds men who are conscious of one another. All these theoretical attempts have given rise to no small number of disputes and objections. It is clear, moreover, that, even if they contain elements of truth, the idea of the contract is evoked here only in a very broad sense and almost by metaphor.

Of greater importance and more precise meaning, in this same order of doctrine, is the formula 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), understanding by status the personal condition determined by birth, and by contract that resulting from free agreements. This concept was also the object of various criticisms (for example, 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 for the future evolution of human civilization. The "reign of contract," which would be established by degrees in social relations (also beyond the field of private law), would mean in substance the positive recognition of the equal liberty of all men, that is, of those very fundamental rights of the person which the ancient school of natural law had represented as belonging to an original state. 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 unexpected confirmation of its deepest metaphysical and deontological content.

Giorgio Del Vecchio