Sub-title: How to turn an obfuscating framework into a framework that does work
Introduction to social contract theory
Social contract theory is an idea in moral, and political philosophy, that tries to establish some ‘contract’ (arrangement) which is collectively enforced by a common reason. It is essentially based on the motivation of resolving the problem of moral disagreement, without proposing any additional reasons beyond those already accessible to the relevant people. It proposes that there are public reasons to comply with such a framework.
It does not base the justification in some external reason, truth, principle, etc, but in agreement. A social contract is framed in terms of representative choosers, a device of representation, and actual participants. The general model is trying to see under which conditions actual participants could, would, and should act as some representative choosers to instate a device of representation insofar as the factual conditions are similar. Succinctly: if x, we would do y, and x obtains. This requires agents to have the knowledge, and belief of the ‘original state’ without the contract, and to evaluate that it is collectively preferable to follow it.
Proposed motivations can be objective or subjective, when we speak of whether the reason is something that additionally compels agents, or whether it’s continuous with the agent’s inner motivations. Proposed agreement mechanisms are consent/agreement, bargaining, aggregation of preference, equilibrium.
The idea of the universal social contract (USC) broadly fits into this tradition, due to sharing the core motivations, and commitments. However, it significantly diverges over many issues. This comes from the commitment to turn the social contract into a living, modifiable instrument
Issues, critiques, responses
The traditional position in social contract theory is that the original state is something that we can discover rationally, and that we are always oriented around preventing this particular outcome. The traditional critique is that this is a fiction that can support any political system in principle. For the USC, there are no sharp distinctions between the original state, and the agreement mechanisms. This is a consequence of the fact that the USC is a real instrument, and does not have predefined members. Therefore, the legitimacy is based in renewal, as these changes need to be justified to those ‘under’ the contract. This is a necessity because we do not fully know each other, and our knowledge does expand, as can our interests.
The next question is why a ‘rational agent’ might accept such a contract. In social contract theory, this is the dilemma of why one would give up ‘selfish’ interests. The move the USC makes is to not absolutely give up any interests. The role of agreement mechanisms in many contract theories in mediating between agents, can analogously be said to be done between interests in the USC. This is done by bargaining the available resources. This does not mean that the agents are irrelevant. In fact, agents and interests are mutually reinforcing. However, agents act in different ways, because no agent can account for all interests. The USC also uses the internal reasoning where possible. For example, it is in the nature of humanity to form communities. However, the USC isn’t only constitutional, but also meta-constitutional- it allows the change of its own norms. That is what allows it to be adaptive to different internal motivations, the layers of communities.
Another traditional question in social contract theory is that of legitimacy of revolution, and force. Can the state quash all dissent, or do the people have the right to revolt? It is my interpretation, that here, neither have the absolute right of violence. The contractee does not, as this would be a violation of general will. On the other hand, we cannot allow it to the Leviathan, because then it becomes a structure that exists merely for itself, and because every agent is also a general will. Consider the human body through its organ systems, our personalities, and so on. The enforcer of the contract only has the right to not immediately grant suffrage. Actually, there has to be a commitment to amicable relations, to prevent a war of all against all. Hobbes found this relatively benign due to its inevitability, although he did not like the conflict between states. However, in practice, such processes over the long run can be compared to mass extinction events. At the same time, no one thing can speak of the general will, for the general will ultimately lies with ‘the Universe’. A political order is just a special manifestation within/of an ecosystem, even if we put that aside for a moment. We should say that the Earth is the ultimate enforcer.
Another issue, and critique of social contract theory is the problem of consent. The USC avoids this by stipulating that the only true test of consent is the fulfillment of will. However, this should not be confused as an endorsement of manufactured consent, or some axiom of territoriality. What this means is a care for flourishing, so that interests are always benefited. In a political reading, this means expanding what consent means, so that there is more possible recourse. From this, we can also see an externalist aspect of the USC. This is because natural laws are the background. As such, we do not know all our interests, in a way. Thus, one reason is the centralisation of interest, so that they may be better discovered, and tended.
Is a social contract a community of rational agents? Not fundamentally. This is because rationality emerges from the “ir”rational. For Kant, the Universe might be a projection of the categories of our mind. However, that does not mean mutual understanding is only possible between humans. This is because all these parts interact with each other, and do not have true independence. Thus, the criterion for universal morality is perception, i.e. interaction. Despite our ignorance of how this participation in our categories is achieved by beings who see the world differently, this does not erase that it has a common ground. What’s more, we cannot be entirely sure of who the rational agents are, or even our own rationality. The Rawlsian ‘veil of ignorance’ present in original states can never be fully unveiled.
One difficulty is whether a social contract can ever achieve consent of the governed. I do believe that this can never be completely arranged. What is possible is improvement in coordination against the unknown, especially as it relates to the past, and future for humans. Another critique comes from the natural law tradition, in that agreeing to one law, does not imply agreement to all laws. Indeed, it does not, and that is why the precondition to the USC is agreement to all laws, which are lightweight. At the same time, can we not also apply this to natural rights? We can also say that not everyone agrees, as violations exist all the time. To ignore this, would be to fall again into total subjectivity. It is changing one tacit consent for another. Finally, what of the issue of leaving such a contract? Indeed, the USC does not endorse an absolute concept of treason. There must always be a possibility of exit. Nonetheless, some ‘realistic’ conditions might be excusable for particular communities, because there is force both by man, and by nature- to use crude terminology. Sometimes, we are compelled by one or the other, and we choose the preferable.
Practical examples
The first, and most obvious is the question of elections. Legitimacy of elections is only absolute if the choice of election (not merely between choices, but the method itself, and the type of representation) is absolute. Therefore, in practice, there is no absolute legitimacy. We speak of proportionality to the freedom of election. Of course, this prevents any complete general will. Some wills are currently incompatible. However, institutes such as eg. granting (legal) personhood widely, or compromise methods, allow some bridging of this reality. One practical method is to focus on the largest effects. That is, a community first establishes the simplest, yet most accessible, comprehensive, and accessible methods. Then, over time, coordination is possible where the conditions allow, through the meeting of more specific methods.
Social contracts are closely tied to the idea of constitutions. In constitutional law, there is much talk about the idea of the aspirational constitution. What is the use of such a document if it has such a provisional nature? This is an important coordinating mechanism that allows for the growth of rights, and members. The use is the determination to expand those rights, not just to members, but to all beings. With only the former, it is useless due to changes of political regime, war, etc. However, the latter keeps its utility. We can see how constitutional identity develops, eg. the US constitution, or the declaration of Rights of Man and Citizen. They are a legalistic way of getting together a very broad sector of persons who consider those rights important. How might one perhaps collect these statues? Keeping and studying. Living the way. A mass constitutional assembly where they are studied, and brought together. Popularised and open input and editorship by the many. In a way, this is not radically different from eg. religions either. The Constitution of Medina is important in the history of Islam. We are trying to give a legal language to all these things, ultimately so that the judiciary may act. This also makes true judicial activism possible for the judiciary, whilst maintaining good governance connected to the basic principles of social contract. Perhaps the oldest similar impulse is the Lyceum’s project of collecting the constitution of Greek city-states. This is also what allows integrating law with other fields. It helps us recognise the amorphousness of law, but at the same time always present, influencing our decisions every day, and us in turn being influenced by the laws of nature, especially ecosystems- to whom we must listen, and cooperate. The judiciary is also the alternative mechanism disputes, where we can more elegantly see the combination of aspiration, and judicial restriction which they might impose.
Another topic is human rights. We could say they are mass recreations of individual interests, that give possibility for them to function. The generations of human rights, expanding moral concern, ... At the same time, they also give give respect for integrity for ‘repositories’, individuals, societies, etc, which not only manage them, but have a greater than life existence as builders of the process. Those especially don’t exist without nature, sustainability, connection to other generations, healthy environment, which is why there are also ‘green’ rights.
One significant objection that can be raised against caring about future generations in expected value is the non-identity problem. This even applies for many non-consequentialist theories of ethics. Where is the harm in just not doing anything about climate change, if there will be no people to be harmed personally, in effect? Where is the harm in respecting our duty to tell the truth to an existential terrorist, who sill simply make all of existence vanish 1000 years hence? If we stipulate the need to increase our concerns over time, and that identity is constructed, there is a plausible answer. Our own existence was already in a way ‘predicted’ in the past, and there is a duty towards those fruits they’ve been reaping by acting as if there will be future generations. We could say that not only do agents create duties, but duties create their own agents. The example of the knowledge of hunger being necessary to disover hungry people is illustrative. Furthermore, if our moral concern is increasing, then it has to include future generations in at least some instances. This is to avoid breaking the chain of the universality of social contract, so that it can be consistent with past generations.
How would this look like in daily practice? There are surprising overlaps with many ‘personal’, ‘earthly’ considerations that are supposedly often objections to any cognitivist et al theories in ethics. A permaculture is a great example of this kind of social contract. This is because it allows you to take into consideration ‘non-formal’ consent from your knowledge of the natural world, and so on. Even though it is not prima facie intended, it also brings an increase in the diversity of life, which almost everyone agrees is a net positive, except in the cases of people who have otherwise particularly different temperament, illness, etc. Finally, it is a ‘system’ that actually becomes more responsive to everyday needs, wants, thoughts, by integrating them, and this increases people’s emancipation. it also relatively seamlessly allows, at least in principle, contractualisation of amorphous categories which everyone agrees have much influence, but are very segmented, such as technology, common nature, etc, in hopes of reducing overall burden of complexity. Finally, the USC allows plenty of opportunities for individual action to contribute in various ways through contractual communities, without having (as likely as) a failure point of some libertarian proposals, where no one cooperates on the issue because: it is too much of an investment, and no one is doing it, and there is no ‘practical sense’ of urgency, ...
Youth representation- the youth movement is now a significant concern, Yet, there are many unique issues that are now facing the youth in developed societies, such as the effect of social media. This could make possible a compromise if necessary: still some gradation of legal capacities, but at the same time, legal representation for everyone through other avenues.
Bioregionalism, management of forests, the local community with its land... : the USC ‘abstracts’ territory in a way, so that the same pieces of land, immovable property, etc, can have various different stakeholders. this is ultimately managed by the higher levels, and then the USC at the top, so that truly global governance is possible without removing differences, or just having a more powerful, imposing authoritarian state.
Greater freedom of court / dispute resolution: it would be possible for anyone* to contract with anyone, and they would have a lot of options in many cases to resolve at different courts. The whole issue of international private law/conflict of laws largely recedes into the background.
Conclusion
Ultimately, the USC is not turns social contract theory into a grammar of coexistence. It is a a living framework to enable renegotiation and agreement of the shared future.