Abstract
Humans are social creatures, and any social organization requires an understanding among its members about how individuals in the society interact, what their obligations are to fellow members of society, and what they can expect from others. This understanding is the social contract. The social contract is universal, in that as far back as history can trace, and in every place around the world, humans have always lived in groups and have always worked cooperatively. Constitutions are a formalization of the parts of the social contract that specify what obligations the group compels from its members, and what rights group members are entitled to in return. In contrast to the Constitutional contract, social norms are a part of the social contract that conveys behavioral expectations, but without a formal set of sanctions for those who do not conform.
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Notes
- 1.
Not everyone shares this vision of anarchy. See, for example, Rothbard (1973), who describes an orderly anarchy based on markets and exchange.
- 2.
While this is a translation, it is interesting to note that Rousseau twice refers to people as a singular term (“the people is asked” and a few words later referring to the people as “it” rather than “they.” This flies in the face of an individualistic notion of a society as a group of people, but is quite consistent with Rousseau’s notion of a singular general will.
- 3.
Rawls (1971) says justice is fairness, but there may be a subtle difference between them. Schurter and Wilson (2009) argue that justice implies that people get what they deserve, whereas fairness implies that everyone has an equal opportunity. Thus, if one were to determine by a coin toss which of two individuals would get a prize, the outcome would be fair, because both had an equal opportunity, but not just, because the winner of the coin toss did not deserve more than the loser.
- 4.
With Rawls (1971), all advantages are removed because nobody knows any of their personal characteristics behind the veil. With Buchanan (1975), people lose any social or institutional advantages, but do not lose their personal identities, making it more plausible in Buchanan’s framework that some people might have a bargaining advantage as a result of personal characteristics. One might think about the strong vs. the weak, as in the example earlier in the chapter, but in negotiating a social contract the more intelligent might also have a bargaining advantage in drawing up a contract.
- 5.
It may be worth more than a footnote to remark that the Constitution even allowed slavery. Surely its authors were not behind a veil of ignorance, thinking there was some probability that after the Constitution took effect they would be slaves.
- 6.
Bailyn (1992) provides a possible example of citizen agreement to the social contract in the formation of medieval cities around 1050–1150. It was common for all residents of the city to meet in the town center and verbally affirm their agreement to abide by the city’s rules. This may have provided a real-world foundation for the social contract theory. But the example has no relevance to any present-day government.
- 7.
Cases of bribery and graft are not uncommon, but those leaving political office also have political connections and human capital that enables them to become effective rent-seekers. Former legislators are among the most effective lobbyists, for example.
- 8.
It is implausible to think that a country like the USA faces a threat of foreign invasion, but the threat of terrorism can be used in the same way. Certainly a terrorist attack is possible, and one happened in 2001, eight years ago as this is being written. The USA has a five-tier terrorist threat system, and the threat level is currently at its second-highest level: “High Risk of Terrorist Attacks,” where it has been since 2006, after being lowered from the highest level of “Severe Risk.” The problem is, the threat advisory system, like the boy who cried “wolf,” loses all meaning when during “normal” times the threat level is at the second-highest level. If it went up, people would see it as almost the same level it was before, so it loses its warning ability. However, keeping the threat level at the second-highest tier legitimizes government actions to respond to threats, enhancing the government’s power.
- 9.
Note that in 1861, when some of the US states tried to declare their independence the same way the colonies did in 1776, the result was a Civil War in which those who wanted to secede were compelled by force to remain under the jurisdiction of the government they tried to escape. The US makes a good example because few nations can claim democratic foundations as solid, yet even in the best case it is apparent that government is the result of coercion, not consent.
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Holcombe, R.G. (2011). Consent or Coercion? A Critical Analysis of the Constitutional Contract. In: Marciano, A. (eds) Constitutional Mythologies. Studies in Public Choice, vol 23. Springer, New York, NY. https://doi.org/10.1007/978-1-4419-6784-8_2
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