CONTRACTUALISM. — The doctrine that places the foundation of society and the State in the contract has very ancient origins, since it is already found, in embryonic forms, among certain Sophists (Lycofron, for example, defined law as a convention, συν-δηλα, guaranteeing reciprocal rights) and later in Epicurus (who similarly conceived law as an agreement concerning what is useful: σύμβολον τοῦ συμφέροντος); but over the course of the centuries it assumed very different meanings. In the conceptions just recalled, and in some others that followed, the contract appears as an act of arbitrary will, determined by individual interest. But the idea that social and political coexistence implies consent among its members likewise goes back to classical antiquity; this consent is based not on mere arbitrariness, but on a higher necessity, namely, a law of nature (v. , for example, Cicero, De republica, I, 25). This idea rightly opposed primitive c.; but it later also served the elaboration and development of the same contractualist doctrine, in a higher sense.
The formation and spread of the idea of the social contract, in its two forms of pactum unionis and pactum subiectionis, were especially promoted by the tradition of a primitive “state of nature,” preceding the “state of society,” which was consequently conceived as the result of a deliberate transition; and by the other tradition, very much alive among jurists, according to which imperial authority, as it still existed in the Middle Ages, derived its title to legitimacy from the transmission, voluntarily carried out by the Roman people through the lex regia, of its sovereign powers to the emperor (v. fr. 1 Dig. I, 4).
The outlines were thus gradually formed for 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 Althusio (Politica methodice digesta [1603]) and Pufendorf (De iure naturae et gentium [1672]), the pact of social union and that of political constitution were two distinct and consecutive acts; according to others, however, for example Hobbes (De cive [1642]); Leviathan [1651]) and Rousseau (Du contrat social [1762]), they were simultaneous or reduced to a single act.
Within such schemes, the greatest variety of doctrines could find a place. The state of nature was sometimes represented as a condition of innocence and happiness, and at other times as one of unrestrained license fraught with dangers; correspondingly, departure from it was sometimes regarded as a decline (also connected with original sin), and at other times instead as progress toward a higher and more reasonable form of life (in this sense, for example, Spinoza, Tractatus theologico-politicus [1670], chap. 16). Very considerable differences also arose in the definition of the clauses of the supposed contract (especially in its properly political aspect, that is, as pactum subiectionis): some authors (e.g., Althusio and Rousseau) maintained that, while submitting to a government, the people nevertheless retained their original sovereignty, with the consequent rights, especially in the event that the contract was subsequently violated by the other party (hence 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 (e.g., Hobbes), understood the contract as a definitive and irrevocable renunciation of the sovereignty and natural rights of individuals and of the people. In general, an attempt was made 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. This explains why the greatest flourishing of contractualist doctrines occurred in revolutionary ages (especially in the seventeenth and eighteenth centuries). There was, however, no lack of authors, including one of considerable importance such as Grotius, who attributed an empirically variable content to the social contract (“populus eligere potest qualem vult gubernationis formam”: De iure belli ac pacis*, 1625, I, chap. 3, § 8; cf. Proleg., § 15), apparently out of regard for certain data of experience, but in reality in order to lend legitimacy, through a presumed consensus, to any existing political regime.
A subtle equivocation corrupted all these doctrines to a greater or lesser degree, because they indiscriminately attributed to the supposed contract both the meaning of a historical fact and that of a rational principle or an ideal to be attained. In the first sense, the thesis is certainly entirely erroneous, since there can be no doubt that neither human coexistence in general nor political organization in particular originated in deliberate agreements. The refutation of the theory in this respect is therefore as easy as it is conclusive, and it was repeated a thousand times, especially during the nineteenth century, when the theory itself had already undergone a process of internal correction and, in its original and literal meaning, had been entirely abandoned.
Yet concealed within the ambiguity of the pseudo-historical formulas was a theoretically most important premise, namely, an attempt to resolve rationally the problem of relations between the individual and the State. The principal aim was to define the juridical limits of public powers by incorporating into 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 found in the theory of the social contract one of its most characteristic expressions. This fictitious scheme served it, one might almost say, as scaffolding for the construction of the modern “legitimate State” or “State governed by law.” The supporters of the contractualist thesis in fact became increasingly aware of the merely hypothetical or “regulative” significance of this dialectical argument; the progress of 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 act was openly rejected, and the value of this idea was 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, chap. 12); and Fichte (Beitrag zur Berichtigung der Urtheile des Publikums über die französische Revolution [1793]) also expressed himself in the same sense.
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 has been 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). The kernels of truth implicit in the earlier doctrines were thus brought fully into the light, having already emerged above all in Rousseau’s doctrine: according to this doctrine, the social contract not only cannot be concluded or modified arbitrarily, but does not even require any external manifestation of consent, since it follows directly, as a categorical necessity, from the very constitution of human nature. Thus understood, and having reached the end of its development, the contractualist theory substantially reunites and reconciles itself with the classical conception of the natural foundation of society and the State.
Nevertheless, opposition to that theory always remained alive, not only on the part of opponents of natural law, but also on account of various arguments, directed, however, for the most part against the inferior and superseded forms of the doctrine (v. , for example, Taparelli’s criticisms, Saggio teoretico di diritto naturale appoggiato sul fatto, Palermo 1840–41, 8th ed. [Rome 1949], I, diss. 2, chap. 10, and those of Vareilles-Sommières, Les principes fondamentaux du droit [1889], chaps. 12–22).
Finally, it is worth noting that, in its centuries-long and complicated vicissitudes, the theory of the social contract was often tempered with other elements, including elements of a theological nature; so that it sometimes appears to have been accepted only in part, and integrated or shaped in various ways. Marsilius of Padua, for example, affirms that the institution of the principalities derives from God as «causa remota», but that God himself wills it to be accomplished «per hominum mentes, quibus talis institutionis concessit arbitrium» (Defensor pacis [1324], I, chap. 9, 2; cf. the formula «populo faciente et Deo inspirante» of Giovanni da Parigi). Cardinal Niccolò da Cusa (De concordantia catholica [1433], II, 8–14) maintains the consensual origin of every political power («per viam voluntariae subiectionis et consensua»), while likewise attributing the foundation of this power to God and considering society a natural fact, in accordance with 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 discerning a certain consensual character in the formation of that same «corpus». These and other apparent divergences are reconciled, especially among Catholic writers, in the fundamental thesis that agreements and consents derive from the free and sociable nature of man, and that this in turn depends on God. In this sense, for example, 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 arrangements, 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 the c. represents an attempt to demonstrate dialectically the original value of the human person vis-à-vis society and the State. The foundation of this value cannot, in any event, fail to stand in relation to the supreme principles of philosophy.
Quite distinct from those mentioned thus far are certain doctrines that arose in the nineteenth century and were given the name of neo-c. Unlike the earlier doctrines, they do not proceed from ideal principles nor pursue any pragmatic aim, but tend to establish, through observation of the facts alone, that in human societies there is always an implicit agreement which approximates the true contract, although it has not been 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, chap. 3); De Greef similarly considers «consentement réciproque» the distinctive character of social phenomena (Introduction à la Sociologie [1886], part 1, chap. 6); others, for example Bierling (Zur Kritik der juristischen Grundbegriffe [1877–83]), identify in the fact of recognition (Anerkennung) or spontaneous adherence the essential condition for the positive existence of juridical norms. There has also been talk (for example, by Bourgeois, Solidarité [1896]) of a «quasi contrat social», to express the solidarity that binds conscious men to one another. All these theoretical attempts have given rise to not a few disputes and objections. It is clear, moreover, that, even if they contain elements of truth, the idea of the contract is invoked here only in a very broad sense and almost metaphorically.
Of greater importance and more precise significance, within 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], chap. 5, at the end, and chap. 9), understanding by status the personal condition determined by birth, and by contract that resulting from free agreements. This concept too became 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 the goal set for the future evolution of human civilization. The «kingdom of contract», which would be established gradually in social relations (even beyond the sphere of private law), would in substance signify the positive recognition of the equal freedom of all men, that is, of those same fundamental rights of the person which the ancient school of natural law had represented as belonging to an original state. Thus, almost bringing the cycle of its singular vicissitudes to a close, 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.