Social contract

“ 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. ”

“ 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. ”

“ Much as the notion of a "social contract" has been ridiculed, it nevertheless seems to be clear enough, that all social organization whatever depends upon what is substantially a contract, whether expressed or implied, between the members of the society. No society ever was, or ever can be, really held together by force. It may seem a paradox to say that a slaveholder does not make his slaves work by force, but by agreement. ”

“ 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." ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Being able to regard itself in only one capacity, it is in the position of an individual who makes a contract with himself; and this makes it clear that there neither is nor can be any kind of fundamental law binding on the body of the people — not even the social contract itself. This does not mean that the body politic cannot enter into undertakings with others, provided the contract is not infringed by them; for in relation to what is external to it, it becomes a simple being, an individual. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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? ”

“ 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. ”

“ 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. ”

“ Under the social contract, by which they conceived the State to be constituted, individuals gave up all their rights and possessions to the community, and got them back immediately afterwards as mere State concessions, which there could be no injustice in withdrawing again next day for the greater good of the community. ”

“ 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. ”

“ 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. ”

“ What else is the declaration itself than the formulation of the state contract according to Rousseau's ideas? And what are the several rights but the stipulations and specifications of that [Pg 9] contract? [7]
It is hard to understand how an authority upon the Contrat Social could make such a statement though in accord with popular opinion.
The social contract has only one stipulation, namely, the complete transference to the community of all the individual's rights. [8] The individual does not retain one particle of his rights from the moment he enters the state. ”

“ The social contract founded upon this basis will be a perpetual pact between those who have and those who have not. And acting on these principles, those who benefit by the laws will be the lawmakers, for they necessarily have the instinct of self-preservation, and foresee their dangers. ”

“ 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. ”

“ It will be seen at once that the second statement, which could easily be fortified by others from the Social Contract, says more than the first. It is not apparent that the common will, created by the institution of society, need "tend always to the welfare of the whole." Is not the common will at least as fallible as the will of a single individual? ”

“ It is required to find a form of association able to defend and protect with the whole common force the person and goods of every associate, and of such a nature, that each, uniting himself with all, may still obey only himself, and remain as free as before. This is the fundamental problem of which the Social Contract provides the solution. The problem of political obligation is seen as including all other political problems, which fall into place in a system based upon it. How, Rousseau asks, can the will of the State help being for me a merely external will, imposing itself upon my own? ”

“ 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. ”

“ As, in a state of nature, the natural obligation of a contract consists in the right and potential capacity of the individual to take, or enforce the delivery of the thing due to him by the contract, or its equivalent; so, in the social state, the obligation of a contract consists in the efficacy of the civil law, which attaches to the contract, and enforces its performance, or gives an equivalent in lieu of performance. ”

“ 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. He who wishes to preserve his life at others' expense should also, when it is necessary, be ready to give it up for their sake. Furthermore, the citizen is no longer the judge of the dangers to which the law-desires him to expose himself ”

“ 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. ”

“ 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. ”

“ Five years after the publication of the Social Contract, a remarkable book was written by one of the economic sect of the Physiocrats, the later of whom, though specially concerned with the material interests of communities, very properly felt the necessity of connecting the discussion of wealth with the assumption of certain fundamental political conditions. ”

“ 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. ”

“ To decide that the son of a slave is born a slave is to decide that he is not born a man.
If then there are opponents when the social compact is made, their opposition does not invalidate the contract, but merely prevents them from being included in it. They are foreigners among citizens. When the State is instituted, residence constitutes consent; to dwell within its territory is to submit to the Sovereign. ”

“ He looks at the man, and he finds him in each case essentially the same—a primitive and undeveloped creature who has not come into his rightful heritage.
CHAPTER X MAN'S SOCIAL ENVIRONMENT 27. MAN IS ASSIGNED HIS PLACE.—The old fable of a social contract, by virtue of which man becomes a member of a society, agreeing to renounce certain rights he might exercise if wholly independent, and to receive in exchange legal rights which guarantee to the individual the protection of life and property and the manifold advantages to be derived from cooperative effort, points a moral, like other fables. ”

“ Society consisted at first merely of a few general conventions, which every member bound himself to observe; and for the performance of covenants the whole body went security to each individual. Experience only could show the weakness of such a constitution, and how easily it might be infringed with impunity, from the difficulty of convicting men of faults, where the public alone was to be witness and judge: the laws could not but be eluded in many ways ”

“ If then we discard from the social compact what is not of its essence, we shall find that it reduces itself to the following terms: "Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole." ”