Social contract theories

The social contract theory, from a different viewpoint, focuses its attention on describing the ideal conditions by which the basic rules that organize a society could be justified.

The idea of an agreement adopted by individuals in an original position might be put closer to the foundation of the political community than to the stage of drafting a constitution. However, since the appearance of constitutionalism during the eighteenth century through the American and French revolutions was associated

Methodological considerations 25 to a new beginning, in which the approval of a constitution sought to establish an entire system of both new rules and a new basis of legitimacy, a constitution might be perceived, according to such traditions, as the necessary instrument to create the effect of a social contract (see Krisch, 2010, p. 49). A constitutional legal framework would be thus conceived as the prime tool to translate the moral principles adopted in the contract into institutional practice. Constitutions today, as a result of the aforementioned theoretical evolution, are generally conceived as contracts drawn up by “the People” (see Loughlin, 2010, p. 275).

The narrative of the social contract and the adoption of a constitution are intertwined by constitutional theory to the extent that constitutional supremacy had been usually justified seeing the constitution as the representation of the social agreement, the particular terms in which the contract (among the people that have participated and have consented to the rules within a context of special mobilization) is written (see in the context of the United States formation Rakove, 1997, pp.

My critical approach towards the social contract theories is related to my critique of an account on constituent power centred in analyzing citizenry participation, mobilization, and deliberation. Generally, my main objection, as I will develop, is the difficulty to determine, ontologically and epistemologically, the structure of the decision-making process attributed to the action of individuals. In my opinion, the theoretical approach to the phenomenon of creating a constitutional framework is more fruitful, both from ontological and epistemological perspectives, when we attend to the historical struggles that are expressed in facts and, particularly, in violence.

Even an author aware of the relevance of coercions in maintaining the system, such as Thomes Hobbes, intended nonetheless to explain the origins of the State through covenants. Hobbes stated that only force allowed the covenants to be respected but remained ambiguous on the mechanisms that led to the conclusion of the foundational agreement. Though, on the one hand, he admitted that “he which is made Sovereign made no Covenant with his subjects before-hand” (1965, p. 134) he also pointed out that the Commonwealth, the Civitas, was generated by the covenants concluded between men “one with another” (1965, p. 132) a consideration that justifies why Hobbes was incardinated, in spite of his scepticism and realism, in the social contract tradition (on this point see Schmitt, 2003, pp. 104-105). It is true that Hobbes distinguished between the Commonwealth created from Institution (that was grounded on an agreement among men) and the Commonwealth by Acquisition [that was established by the force of arms (Hobbes, 1965, p. 132)] but instead of exploring, as the historical experience suggests, if all the Commonwealths are in reality founded by acquisition, Hobbes delves into the Commonwealth established by consent focusing his thoughts regarding violence on the enforcement of the covenant but eluding the problem of the lack of fundamental agreement given the original imposition of the sovereign’s will.

Contractualist accounts on constituent founding are subjected to several problems long observed by political theorists. Here I might underline three main

objections. I shall mention briefly the first and the second (bearing in mind the huge literature that both have generated) while tackling in a bit more detail the third (also abundant in references) related to the difficult dialectic between the ideal conditions of a theoretical contract in the struggle of providing legitimacy to the constitutional founding and the empirical circumstances in which such foundations take place.

Firstly, I should remark that the building of a contractual theory on constitutional foundations is subjected to the same paradox already appreciated concerning the democratic foundation of a constitutional democracy. The requirement of individual consent as a source of legitimacy in the adoption of a specific constitution presupposes an agreement by the group of individuals that are called to give their consent to the constitutional rules. But no group of persons could be authorized to consent to a particular constitutional framework without a previous constitutional rule which, by the same token, requires a consent rendered by someone involved in the operation of creating a new constitutional framework, and so on, into a paradox of infinite regress (see, for instance, Zurn, 2010, pp. 193-195 and Barnett, 2004, pp. 11-31).

Secondly, contractualist theories on political foundations are usually identified with democratic theory since they are focused on the involvement of individuals and their will in adopting a particular constitutional regime. But contractualism is not necessarily attached to democracy. The agreement of the principles of justice that have to rule a society (which, in constitutional terms, have to be translated into a constitutional framework) may well not be adopted by the individuals because they decide to do it but because such principles are objectively the best principles to organize a society.

Such an observation might be inferred in analyzing the most famous contemporary theory on the contractual foundations of a political community, that of John Rawls' Theory of Justice. In Rawls' theory, individuals, free from social, historical, or personal contingencies, conclude a social agreement that would be rational and fair (Rawls, 1971, pp. 118-123), a range of principles that from the founding moment onwards would establish the normative framework by which the political community would be ruled. But if such principles of justice must be adopted because they are objectively fair, then both the will of the individuals and their participation in the decision of adopting the principles, in spite of Rawls' procedural descriptions, are irrelevant. If there is a moral truth in organizing a society in its basic terms, such truth has to be established aside from whether individuals consent or not. The argument might be taken under another version which guides us to the main objection that burdens social contract theories regarding the decalage between the idea of moral objectivity and disagreements on values that are given in a real political framework. In this

Methodological considerations 27 way, authors such as Jeremy Waldron (1999, p. 111) in noticing that in political contexts, disagreements burst out disregarding the existence or not of moral certainties and are prone to conclude that moral objectivity is unhelpful in the situation of a need for political decision and, thus, is politically irrelevant.

In summary, if there are objective principles of justice in organizing a political consociation, democratic procedures established in order to ascertain them are superfluous.

The latter leads us to my third objection, which would be the classic objection to the social contract theory (posed not only towards Rawls' approach but also towards the versions of Locke, Kant, or Rousseau, which had a decisive impact on the configuration of constitutionalism). If there is not moral objectivity, that is in part because moral decisions are embedded by a particular historic and social context. In other words, what is criticized of social contract theories struggling with defining the universal conditions to ascertain the morality of the social agreement is, precisely, the lack of links between the theory and the reality, the lack of links between the performance of such universal agreement based on a supposed correct reasoning and any background shown by history or culture. Both modern communitarian traditions and authors close to what has been called “cultural liberalism” have centred their objections to contractualism under the mentioned perspective, pinpointing the detachment between the ideal and the real world (see, among many others, Taylor, 1992; Kymlicka, 2001b; Tamir, 1993; or Tully, 1995).

The influence of factual, historical, and existential circumstances in political processes poses the doubt around whether the reconstruction of a hypothetical agreement has any sense at all. Or worse, the abstraction of hypothetical agreement always carries the risk of excluding voices (Chambers, 2004, p. 155) to the extent that the entrenchment of general ideas such as Rawls' overlapping consensus may be deemed as a medium to undermine differences (Mouffe, 2009). General principles of political liberalism in Rawls' fashion would represent only abstractions oriented to impose the vision of the victorious groups upon the groups that have been defeated by history.

Regarding the relationship between Rawls' ideas and constitution-making, one might question to what extent the description of the original position and the principles of justice stemmed from it, may be related to the constituent moment and the normative conditions to evaluate the process of drafting and passing a constitution.

of conflicting political views in a given society, it is possible to reach a consensus on the essentials since all the individuals may agree to such principles and their pluralism may be reasonably handled, it is likely to be missed that discrepancies on constitutional matters might be existential and not subjected to any reasonable negotiation, to begin with, the foundation of the constitutional State itself and the determination of the political identity of the members of the founding community.

Somehow surprisingly, if we take into account the idealistic preconception that embeds Rawls' theory on the possibility of elucidating the principles of justice, Rawls argued that ontological claims, that is, presuppositions about the constitution of agents and the social world, needed to be avoided in political thought (Rawls, 1996, 2001; see on this point Rosenthal, 2019, pp. 238-245). On the one hand, the principles of justice resulting from consensus are beyond the historical circumstances but, on the other hand, in Rawls' account such principles are not ontologically defined, since under an ontological grounding of society it would be impossible to reach a stable consensus on justice in liberal political communities (Rawls, 1996, p. 387). In this way, Rawls' conception of justice would not be grounded on citizens' ontological claims that may confront them, but on principles able to leave to the individuals an ample space to make their coexistence in society compatible with their own ontological doctrines (Rawls, 1996, p. 375). But the question, particularly ifwe turn to a “genealogical approach” as I shall introduce in the next section, is if the principles of justice in a liberal society such as the ones outlined by Rawls are not themselves an ontological claim even though there is the attempt to represent them as freestanding and even-handed political values resulting from consensus. The principles of justice are either partisan outcomes of historical contingencies or ontologically founded. There is nonetheless another possibility relying on the fact, as Rosenthal derived from her lecture of Rawls through Foucault's critique on liberalism (2019) that if the principles of justice, as the foundations of liberalism themselves, are not anything but the outcome of the political struggles for power displayed along the history legitimized through a narrative of even-handed political values. In other words, Rawls' principles of justice would not have done anything different than the solutions provided by the metaphysical and religious systems, which is to conceal through an idealization, that what is the result of a strategy of domination given by the historical events.

Contractualism and history

In spite of the difficulty to adjust the normative requirements of social contract theories to real historical experiences, the struggle to associate a social com­pact ideal to particular founding episodes has been present in the representative authors of the strand from the beginning of the tradition. Christian Wolff, Emer de Vattel,⁶ John Locke, and Jean-Jacques Rousseau may be considered ances­tors of contemporary scholars intending to find pathways to establish norma­tive premises about constitutional creation grounded on individual participation, deliberation, and consent.

Indeed, the predominance of the social contract theory in the seventeenth and the eighteenth centuries could only be understood as the effect of thinking about the States as independent actors on the world stage (see David Bates, 2007, p. 18 and Richard Tuck, 1999, pp. 84-85). But the appearance of such States, their consolidation as sovereign entities vested with internal and external supreme power, was the result of a cycle of repeated violence both between the social, religious, and ethnic groups at the internal level, and between other powers at the external level (Mann, 1986; Tully, 1975). Thus, according to Tuck, the “autonomous” agent described by the theory of the social contract was an analogy between the individual and the State only possible to be conceived as a mirror of the sovereign condition to which the States acceded after bloody conflicts. Behind the thinking of figures such as Locke or Rousseau, in sculpting the idea of free and equal individuals agreeing on the fundamental regulation of the society, violence was presupposed in preparing the frame in which the contract would take place in a similar vein that had previously happened to the internal order created by the sovereign States in the Modern Age after defeating rival powers.

In analyzing the process of colonization in North America under the parameter of the social contract theory, John Locke, for instance, had to deal with the apparent incompatibility of his theory on the consent of the governed, with the appropriation of land by European settlers despite the opposition of native peoples (on this criticism of Locke's theory see Tully, 1995, pp. 72-80; Simmons, 2001, pp. 158-178). The answer provided by Locke suggests the kind of strategy adopted by a contractual vision which, though focused within a historical context, makes abstraction of cultural and national particularities: the a priori exclusion of a group from the contract. According to Locke, thus, the appropriation “with any express Compact of all the commoners” (Locke, 2015, Sec.25, p. 286) was justified in the case of the Europeans occupying America's indigenous peoples' lands since, even admitting that natives were human, they belonged to the earliest and most primitive stage of the human evolution and they had not even created any political jurisdiction (among other passages, Locke, 2015, Sec. 30, pp. 289­290 and Sec.108, pp. 339-340). They represented “the perfect State of Nature” (Sec. 87, p. 324) which was called to be regulated by those nations provided of laws, jurisdiction, and sovereignty. In other words, Aborigines ought to be subjected to those who already had concluded the social contract.

Once the social contract theory is compared with a historical circumstance, as the specific historic situation of the European settlers regarding the Aboriginal peoples of North America, the agreement between the supposed free and equal individuals is converted into a structure of the domination of a group (the insiders of the contract) upon others (the outsiders or those that have not given any consent to the rules agreed because they have been, from the beginning, marginalized or destroyed).

The problem that Locke already envisaged and that has been fully developed by those streams of political thought critical of social contract theories relies on determining the membership of the group called to conclude the social compact (Preuss, 1992-1993, pp. 656-660; Benhabib, 1994, p. 10). Membership in some human community is the primary good that we distribute to one another and the one on which we ground our other distributive choices: it determines from whom we require obedience and collect taxes or to whom we allocate goods and services (Walzer, 1983, p. 31). The configuration of the membership is, however, the result of ancestral conflicts marked by wars and violence. Historical experience points out to what extent the members met in creating the social agreement integrate a group (mostly defined under ethnic premises) which have been able to impose their power upon other groups. Such dominated groups have been precisely the ones that even subjected to the rules agreed by the participants of the social contract were in the origins of the political community excluded, damaged, and even eliminated (Taylor, 1992, p. 25). Also, Giorgio Agamben, for instance, develops his theory on the creation of the People in a political sense as the outcome of an incessant civil war among the different classes and ethnic groups (2000, pp. 31-32).

Aside from the context of the colonization of the Americas, in a sequence of thoughts that would impinge on the assessment of the revolutionary events that occurred in Great Britain by the end of the seventeenth century, the other historical scenario in which the normative propositions erected around the idea of social contract had a determining influence was the American Revolution.

The independence of the American States and the subsequent constitutional developments there recorded as contexts in which the logic of violence was replaced by the logic of consent, had been explored not only by people politically and intellectually involved in the events, but also by modern scholars, such as Hanna Arendt and Bruce Ackerman, who used an interpretation of the American Revolution in order to provide historical resorts for their political and constitutional theories grounded in the metaphor of the contract. In this strand, even admitting that “social contract” approaches developed by political writers during the seventeenth and eighteenth centuries were referring to “fictions,” Arendt aimed to demonstrate that such fictitious explanations of existing relationships between the members of a community had historical and factual translations. Even Habermas estimated that in Arendt's reconstruction of the American founding she placed an excessive emphasis on “the venerable figure of the contract” (1977, p. 24) rather than on her own concept of praxis which would have required major attention to the historical developments that allowed the creation of a new legal order. Arendt's narratives would represent, nonetheless, one of the most prominent endeavours to apply a contractualist political theory to real political conditions and, as such, a magnificent proposal to explore a concept of politics grounded only in an associative bond established through free and public deliberation, supposedly unstained by traces of violence (see Marchart, 2007, p. 159; Topf, 2019, p. 54). Arendt's theory on power associated with the episode of the creation of the American Republic and the notion of constitution as an agreement of free men, such extraordinary commitment of a large number of people to political debate, discussion, and participation directed towards the creation of free institutions, might be summarized in the following and famous passage:

In distinction to strength, which is the gift and the possession of every man in his isolation against other men, power comes into being only if and when men join themselves together for the purpose of action, and it will disappear when, for whatever reason, they disperse and desert one another. Hence, binding and promising, combining and covenanting are the means by which power is kept in existence; where and when men succeed in keeping intact the power which sprang up between them during the course of any particular act or deed, they are already in the process of foundation, of constituting a stable worldly structure to house, as it were, their combined power of action.

(Arendt, 1963, p. 174)

However, the undeniable attractiveness of Arendt's interpretation of America's Revolution exposed in her book On Resolution, with all her praises to the value of public life, the power of collective action, or the construction of a political order linked with the struggle and the participation of free men, does not diminish the background of specific coercions, military conflicts, and social exclusions that were not unknown in the origins of the United States as we shall see in Chapter 3. Putting the stress on such conflicts reveals to what extent the “value of the common action” or “the political consciousness of free citizens” (Ackerman, 1993, p. 206) was a matter of a minority that can hardly be identified with “the People” and that, in another sense, did not constitute the factors capable of bringing the Revolution to fruition, and the constitutional order to be established.

On his commentaries on Arendt's work, Antonio Negri admitted the fascination engendered by Arendt's characterization of the constituent power as an absolute foundation of the political public space but, shortly afterwards, Negri criticizes the transformation of Arendt's theory from a radical idea of freedom associated with the new beginning, to a more modest conception of the agreement and consensus among men. And, finally, in presenting the American Revolution as the scenario in which took place such foundations of the political space through free participants that agree among themselves, Negri qualifies Arendt's move as “historical cynicism” (Negri, 2002, p. 33).

A more detailed historical approach may certainly show that in concrete foundational episodes, power is gained so far as there is capacity to organize means of coercion. The power appears and disappears not because of the joining or the dispersion of participants but because of their ability to impose their order through violence and repressing future discrepancies in the same way. “Action,” to use Arendt's term, has grounding, in the real world, not only in the coming together of people and the declarations they make. It is accompanied with a weapon or, at least, the threat of using the weapon. It has been plausibly argued that maybe there is some religious or metaphysical belief in the background of Arendt's formulation about “the power,” which has been "phenomenological essentialism” conceptually overdrawn and politically unrealistic (Benhabib, 1996, pp. 70-71). The effectiveness of promises and covenants exists only as long as said promises and covenants are enforced by the use of physical might. The legitimacy of a new order, and so it is still appreciated by international public law in the case of the formation of a new State, depends on the capacity of exercising “the monopoly of the use of physical force within a given territory.” And such legitimacy is lost when rulers are unable to enforce through coercion the law that they generate. Promises and covenants concluded among men have been irrelevant both to history and to other agents that had to recognize the new political order.

In spite of her discourse on the promises, covenants, and agreements related to the grounds of political foundation, Arendt was perfectly aware of the concurrence of violence during the transformation of a constitutional framework. Such a problem, nevertheless, seemed to be relegated to a secondary position, considering it both in the remote past (as in the comments on the Bible and the foundation of Rome reveal in On Rerolunon, 1963, p. 31) or as a consequence of a wide social inequality, a factor which, according to Arendt in a sublimated lecture on the American Revolution, would mark the difference between the latter, and the French or Russian regime changes (1963, pp. 53-110; on this point see Arato, 2020, pp. 92-93). As we shall see in translating the theory here developed on constituent power in the case of the American States, Arendt's selective portrayal of the American foundation in contrast with the horrors of the abject poverty in France or Russia gives little attention to the barbarism of American slavery (Arendt, 1963, pp. 71-72), while the question of the occupation of indigenous people's lands, and their extermination, does not deserve any comment at all (for criticism of such omissions in Arendt's narrative of the American founding see Scheuerman, 1997, p. 156 and Wolin, 1983).

Social contract theories, from Locke to Rawls, are prone to be presented in an abstract fashion - something difficult to make compatible with research centred on society and history. However, authors such as Locke himself, and Arendt, do not relinquish a presentation of their conceptions on the legitimate social organization and, consequently, on the foundations of a legal order, under the coverage of particular historical developments such as the American colonization by the European settlers, in Locke, or the American Revolution, in Arendt. In my opinion, nevertheless, such accounts blind the eye to the physical coercions that took place in these historical episodes which, among other things, permitted the definition of the group (through both the exclusion and the destruction of other groups) that was called to adopt the fundamental decisions on its future ruling.

The analysis of the historical circumstances surrounding State-building and its legal translation in constitution-making processes are, precisely, the object of the approach that shall emerge as the main theoretical support of my disquisition: the genealogical model.