Contract and Law

This essay is intended to present what I see as the foundational argument against all social-contract and social-contract-like theories of government.



Law does not depend upon contract.  Contract depends on law.  This is the thesis of the essay; No contract need exist in order for their to be law, but law must exist in order for there to be contract.  If this claim is correct, then all social-contract theories of government are false.  By social-contract theories I mean only those theories which justify the authority of real or possible governments by virtue of a contract with the people.*  That contract may be formalized or implicit.

The most important barrier to acceptance social-contract-theory faces, but not an argument, primarily.  An image, a definition.

The argument is that social-contract-theory depends on certain parts of that image which it has no right to.

Those parts are:  Shared agreement to the same terms, binding nature of agreement, **

Shared agreement requires shared interpretation.  Something has to define the level of detail required in agreement/interpretation.

as well as principles of "equivilance."  This can't be the contract, a subcontract, or the parties to the contract.







*I am excluding, for the time being, the quasi-contractual theory of John Rawls.  Rawls invites us to consider what reasonable self-interested  parties would agree to 

**I am not saying that "the consent of the governed" is irrelivant to justification of government.  Consent, whether implicit or explicit, is important to a wide range of moral questions.  Consent is not contract, however.  It does not even imply agreement, since agreement implies an (at least partially) shared conception of reality, and consent only requires the non-objection to an action.  The acting party and consenting party(s) may have completely different interpretations of the action, and still maintain consent.  Not so for agreement.

• Law does not depend upon contract. Contract depends on law.
• The most important barrier to acceptance social-contract-theory faces, but not an argument, primarily. An image, a definition.
• The argument is that social-contract-theory depends on certain parts of that image which it has no right to.
• Those parts are: Shared agreement to the same terms, binding nature of agreement,
• Shared agreement requires shared interpretation. Something has to define the level of detail required in agreement/interpretation.
• as well as principles of "equivilance." This can't be the contract, a subcontract, or the parties to the contract.
• "Binding" must mean more than "it would be wrong to break it"
...?
• Contract requires a party above and outside the contractual scheme to function as judge

---