Fairness and the Social Contract
12 October 2010
Recently in A coup in Ecuador? I made the claim that, “The protest in Ecuador was that benefits were to be cut for civil servants. This constitutes a breach of an implicit social contract.” Further developing the theme of distinct social contracts in distinct socio-political systems I wrote:
It is an accepted practice that, in advanced industrialized and democratized economies, members of the political class become rich after they leave office, not while they are in office… In poorer countries, it is accepted practice that members of the political class (or members of the civil service) become rich while they are in office, because there will be few opportunities to make money after that.
“There is an implicit bargain in modern Chinese society between the leaders and the led. Beijing tells its people ‘we will give you opportunities’ — to earn more, to enjoy a better standard of living than your parents did. But you, in return, will behave yourself.”
And then I continued:
This has been a consistent theme of commentary on the Chinese political situation over the past decade or so. The Chinese ruling elites of the communist party and the Chinese people are abiding by an informal social contract, such that the government will continue to deliver economic growth and opportunities to its people, and the people will not challenge the leadership of the Communist Party of China (CPC). I have encountered this in many different contexts, enough so that it may be considered part of the standard repertoire of talking points for talking heads.
Constitutional government, which has become the norm throughout the world (though often honored more in the breach than the observance), is an attempt to formalize a social contract in explicit terms. However, an examination of history since the emergence of the constitutional paradigm reveals that, despite formal arrangements of governmentality, implicit social contracts persist. Sometimes these implicit social contracts represent a curtailment of doctrines formalized in a constitution, and sometime these implicit social contracts represent promises made above and beyond the doctrines formalized in a constitution.
In any case, an explicitly formulated constitution is only part of how a society functions, and sometimes it is only a small part. The most common cases of this that come to mind are those egregious examples of nation-states that have constitutions replete with glittering generalities about democracy, opportunity, and freedom of expression — explicit promises that are not fulfilled in fact. The various constituent republics of the Union of Soviet Socialist Republics all had constitutions that guaranteed all manner of edifying freedoms, while almost none of these were observed in practice.
Perhaps most if not all constitutionally chartered nation-states begin in this way. In Becoming What We Are I noted that Martin Luther King jr’s famous “I have a dream” speech appeals to the unfulfilled promise of the American dream that all men are created equal. Indeed, it was only in the twentieth century that many of the constitutional protections that we take for granted in the US began to be taken seriously and were enforced by courts and the law.
The survival of implicit social contracts within nation-states administered according to the constitutional paradigm suggests the possibilities of a widening gap or a narrowing gap between implicit and explicit social contracts. The example I cite above of the US only coming lately to a respect of its explicitly stated constitutional paradigm is an example of a narrowing gap between implicit and explicit social contracts. One of the remarkable things about the US (and perhaps a source of “American exceptionalism”) is that the current implicit social contract (reaching back to perhaps some time near the beginning of the twentieth century) is that the explicit social contract will be respected and put into practice as far as practically possible. This is not entirely unique to the US. In the Scandinavian countries, for example, there is a widespread social consensus of narrowing the gap between political appearance and political reality.
It has become a commonplace of contemporary political commentary that US, NATO, and western military and peace-keeping operations constitute the attempt to impose a social system upon non-western peoples who live according to different social systems. Certainly many of us in the US have come to view the coincidence of implicit and explicit social contracts as a social virtue and even as a mark of fairness. But “fairness” is a slippery term. I know people who refer to the word “fair” as “the four-letter F-word” because of its overuse, misuse, and abuse.
With the above considerations in mind, I came to the realization today that in most societies “fairness” may be defined as that state of affairs in which the social contract is respected and put into practice, while it is a breach of fairness when the social contract is not respected and not put into practice. This picture, however, is complicated by the divide between implicit and explicit social contracts. One way to view the situation would be to hold that a people understands fairness (or, better perhaps, “justice”) as the approximation of the explicit social contract to the implicit social contract. In other words, in so far as the explicit social contract explicitly formulates and formalizes the implicit social contract by which a people is already living, then this is fairness or justice.
This is a deeply conservative formulation. It is closely parallel not only to what we find in Edmund Burke, but even the point of view to be found in Joseph de Maistre. The latter wrote a wonderfully concise essay, Essai sur le principe générateur des constitutions politiques et des autres institutions humaines (“Essay on the Generative Principle of Political Constitutions and other Human Institutions,” 1809), that more or less pursues this line of thought. In section IX of this essay, de Maistre formulates the following four propositions:
1. The fundamental principles of political constitutions exist prior to all written law.
2. Constititional law is and can only be the development or sanction of a pre-existing and unwritten law.
3. What is most essential, most inherently constitutional and truly fundamental law is never written, and could not be, without endangering the State.
4. The weakness and fragility of a constitution are actually in direct proportion to the number of written constitutional articles.
Once we understand the theoretical foundations of a highly conservative formulation of political society, we can schematically formulate liberal and radical conceptions of political society in contradistinction to the theoretical basis of conservativism. Certainly the first of de Maistre’s principles stated above — “The fundamental principles of political constitutions exist prior to all written law” — invites alternatives if not refutation. For starters, it stands in stark contradiction to the whole tradition of legal positivism that has been the foundation of Western legal thinking for at least the past hundred years. Indeed, one could argue that legal positivism emerged in Western history as a reaction to Old World doctrines such as those of Edmund Burke and Joseph de Maistre.
This is something that I will be thinking about in the coming days.
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Note added 13 October 2010: Today the BBC carried a story, Chinese veteran politicians call for reform, with this observation: “A group of 23 Communist Party elders in China has written a letter calling for an end to the country’s restrictions on freedom of speech. The letter says freedom of expression is promised in the Chinese constitution but not allowed in practice.” A translation of the actual text of the letter can be read at the Chinese Media Project.
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