Contrat social

“ If an agreement exists, who is to execute its provisions? And if some refuse to assist, and shirk social duties, have they any claim to the assistance of the organization, have they any social rights? ”

“ Now, reparative justice should endeavor to re-establish the normal conditions of human association, of the "social contract." These normal conditions require that the contracting parties or associates be really free and major. ”

“ Whether there was ever such a thing as a Social Contract or not, as has been somewhat otiosely discussed, this, at least, is certain,—that the basis of all Society is the putting of the force of all at the disposal of all, by means of some arrangement{348} assented to by all, for the protection of all, and this under certain prescribed forms. ”

“ All Social Contract theories that are at all definite fall under one or other of two heads. They represent society as based on an original contract either between the people and the government, or between all the individuals composing the State. Historically, modern theory passes from the first to the second of these forms.
The doctrine that society is founded on a contract between the people and the government is of mediæval origin. ”

“ This theory of the Social Contract was once famous, and exerted a notable influence on political history, and it is still interesting in the same way that spinning-wheels and wooden frigates and powdered wigs are interesting; but we now know that men lived in civil society, with complicated laws and customs and creeds, for many thousand years before the notion had ever entered anybody's head that things could be regulated by contract. ”

“ Saint-Just expresses himself in almost the same words in his speech demanding the death of Louis XVI.: "The social contract is a contract which the citizens conclude with one another, and not a contract with the government. ”

“ Nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the Family. It is Contract. Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of Individuals. ”

“ The people, being subject to the laws, ought to be their author: the conditions of the society ought to be regulated solely by those who come together to form it. But how are they to regulate them? Is it to be by common agreement, by a sudden inspiration? ”

“ Consequently society was dependent, throughout all its details, on status, and the tie, or bond, was sentimental. In our modern state, and in the United States more than anywhere else, the social structure is based on contract, and status is of the least importance. Contract, however, is rational—even rationalistic. It is also realistic, cold, and matter-of-fact. A contract relation is based on a sufficient reason, not on custom or prescription. It is not permanent. It endures only so long as the reason for it endures. ”

“ A society based on contract is a society of free and independent men, who form ties without favor or obligation, and co-operate without cringing or intrigue. A society based on contract, therefore, gives the utmost room and chance for individual development, and for all the self-reliance and dignity of a free man. ”

“ THIS formula shows us that the act of association comprises a mutual undertaking between the public and the individuals, and that each individual, in making a contract, as we may say, with himself, is bound in a double capacity; as a member of the Sovereign he is bound to the individuals, and as a member of the State to the Sovereign. But the maxim of civil right, that no one is bound by undertakings made to himself, does not apply in this case; for there is a great difference between incurring an obligation to yourself and incurring one to a whole of which you form a part. ”

“ How can individually free persons unite in a society without giving up their freedom? The answer to this question took the form of a controversy on the subject of the social contract, i. e., the contract or agreement of individuals, as units, to form and maintain societies. ”

“ Though society is not founded on a contract, and though no good purpose is answered by inventing a contract in order to deduce social obligations from it, every one who receives the protection of society owes a return for the benefit, and the fact of living in society renders it indispensable that each should be bound to observe a certain line of conduct towards the rest. ”

“ If one with a perfect knowledge of the facts will part with his money, or bind himself by his contract in a sufficient consideration, any rule of law which would restore him his money or absolve him from his contract would subvert the rules of social order. ”

“ When these distinctions have once been admitted, it is seen to be so untrue that there is, in the social contract, any real renunciation on the part of the individuals, that the position in which they find themselves as a result of the contract is really preferable to that in which they were before. ”

“ The eighteenth-century theories of the social contract have been exposed to much clumsy criticism in our time; in so far as they meant that there is at the back of all historic government an idea of content and co-operation, they were demonstrably right. ”

“ Moreover, his aim is to find "a sure and legitimate rule of administration, taking men as they are and laws as they might be"; that is to say, his Social Contract is something which will be found at work in every legitimate society, but which will be in abeyance in all forms of despotism. ”

“ Contract, the originally conscious or subsequently unconscious agreement between individuals themselves and between individuals and society, is regarded by DeGreef as the essential characteristic of social phenomena. ”

“ The point of intersection of all these assembled sovereignties is called society. This intersection being a junction, this point is a knot. Hence what is called the social bond. Some say social contract; which is the same thing, the word contract being etymologically formed with the idea of a bond. Let us come to an understanding about equality; for, if liberty is the summit, equality is the base. ”

“ By its system of contracts and fiduciary relations, which bind men of the most varying localities, races, occupations, social classes, and national allegiance, it has woven a new net of human relations far more intricate and wide-reaching than the natural ties of blood kinship. ”

“ In general we may conclude that by the passage of such legislation society has definitely decided that there are some conditions of employment that cannot be safely left to free contract or to collective bargaining between employer and employe, but that they must be regulated by society itself on the broad grounds of social welfare. ”

“ He has shown that the right to contract is not conferred by society, but is a natural original right, brought by each individual into society; and that the obligation of contracts is not the result of positive law, but is intrinsic, and is conferred by the act of the parties. ”

“ The Social Contract or Compact is the most systematic form which has ever been assumed by the error we are discussing. It is a theory which, though nursed into importance by political passions, derived all its sap from the speculations of lawyers. True it certainly is that the famous Englishmen, for whom it had first had attraction, valued it chiefly for its political serviceableness, but, as I shall presently attempt to explain, they would never have arrived at it, if politicians had not long conducted their controversies in legal phraseology. ”

“ These clauses, properly understood, may be reduced to one—the total alienation of each associate, together with all his rights, to the whole community; for, in the first place, as each gives himself absolutely, the conditions are the same for all; and, this being so, no one has any interest in making them burdensome to others. ”

“ The social contract theory did not originate with the philosophers of the seventeenth and eighteenth centuries. It had its roots in the popular consciousness of mediæval society, and had been anticipated by the Greek Sophists. In the popular consciousness of the middle ages, and among writers on the ecclesiastical side, there grew up that particular form of the contract theory which has fixed itself most prominently in the minds of ordinary men — the idea of a contract between government and people. ”

“ If we try to learn what is true, we shall both do what is alone right, and we shall do the best for ourselves in the end. The interests of employers and employed as parties to a contract are antagonistic in certain respects and united in others, as in the case wherever supply and demand operate. ”

“ There are a great many people whose idea of Rousseau consists solely of the first words of the opening chapter of the Social Contract, "Man is born free, and everywhere he is in chains." ”

“ Has such a crime ever been laid to the charge of him who perishes in a storm because, when he went on board, he knew of the danger? The social treaty has for its end the preservation of the contracting parties. He who wills the end wills the means also, and the means must involve some risks, and even some losses. ”

“ What man loses by the social contract is his natural liberty and an unlimited right to everything he tries to get and succeeds in getting; what he gains is civil liberty and the proprietorship of all he possesses. If we are to avoid mistake in weighing one against the other, we must clearly distinguish natural liberty, which is bounded only by the strength of the individual, from civil liberty, which is limited by the general will; and possession, which is merely the effect of force or the right of the first occupier, from property, which can be founded only on a positive title. ”

“ Whether, for example, the law should enforce a contract to labour, when the wages are too low or the hours of work too severe: whether it should enforce a contract by which a person binds himself to remain, for more than a very limited period, in the service of a given individual: whether a contract of marriage, entered into for life, should continue to be enforced against the deliberate will of the persons, or of either of the persons, who entered into it. ”

“ When accepted, it was, therefore, a contract by which the State authorized the company to establish works and carry on a business which, without the authority, would be a nuisance to a few persons, in order to relieve a very large community from a greater nuisance. ”

“ If there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into, freely and voluntarily, shall be held sacred and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider—that you are not lightly to interfere with this freedom of contract. ”

“ A social contract, at one spontaneous and practical, an immense gathering of men associating together freely for the first time for the recognition of their respective rights, forming a specific compact, and binding themselves by a solemn oath: such is the social recipe prescribed by the philosophers, and which is carried out to the letter. ”

“ The obligation of every contract, then, will consist of that right, or power over my will or actions, which I, by my contract, confer on another. And that right and power will be found to be measured, neither by moral law alone, nor by universal law alone, nor by the laws of society alone; but by a combination of the three; an operation, in which the moral law is explained, and applied by the law of nature, and both modified and adapted to the exigencies of society by positive law. In an advanced state of society, all contracts of men receive a relative, and not a positive interpretation. ”

“ That if any labour contract or business be conducted by one of the parties to the detriment of the family, the other party shall have the right of appeal to the courts with the object of annulling the contract or forbidding the business. ”

“ The workingmen found out, a good while ago, that the only possible way of preserving and enforcing their right of contract in the sale of their labor was by uniting together and insisting on collective bargaining with their employers. ”

“ And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all it’s parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community ”

“ The law, being for the welfare and the protection of human society, refuses to recognize and enforce certain contracts had among its citizens, when those contracts are founded in moral turpitude or inconsistent with the good order or solid interests of society. ”

“ Men reared to consider their word equal to the most binding [200] legal contract ever made, would naturally find it difficult to realize, when entering civil life, that something else is considered necessary. ”