Chapter VIII

SOCIAL CONTRACTS

1

It is impossible to imagine in the universe a harmony of all things, each with all the others. The only harmonies we know or can conceive, outside of what Mr. Santayana calls the realm of essences, are partial adjustments which sacrifice to some one end all purposes which conflict with it. That the tree may bear fruit for us, we readily kill the insects that eat the fruit. So the fruit will ripen for us, we take no account of the disharmony we create for innumerable flies.

In the light of eternity it may be wholly unimportant whether the harmonies on this earth are suited to men or to insects. For in the light of eternity and from the point of view of the universe as a whole nothing can be what we call good or bad, better or worse. All ideas of value are measurements of some part of this universe with some other part, and it is no more possible to value the universe as a whole than it is to weigh it as a whole. For all scales of value and of weight are contained within it. To judge the whole universe you must, like a god, be outside of it, a point of view no mortal mind can adopt.

Unfortunately for the fly, therefore, we are bound to judge him by human values. In so far as we have power over him, he must submit to the harmonies we seek to establish. We may as a sporting matter admit his theoretical right to establish his own harmonies against us if he can, and to call them better if he likes, but for us that only is good which is good for man. Our universe consists of all that it contains, not as such, not as the fly knows it, but in its relation to us. From any other point of view but man’s, his conception of the universe is askew. It has an emphasis and a perspective, it is shaped to a design which is altogether human. The very forms, colors, odors and sound of things are dependent for their quality upon our sense organs. Their relations are seen and understood against the background of our necessities.

In the realm of man’s interests and purposes and desires, the perspectives are even narrower. There is no human point of view here, but only the points of view of men. None is valid for all human beings, none for all of human history, none for all corners of the globe. An opinion of the right and the wrong, the good and the bad, the pleasant and the unpleasant, is dated, is localized, is relative. It applies only to some men at some time in some place under some circumstances.

2

Against this deep pluralism thinkers have argued in vain. They have invented social organisms and national souls, and oversouls, and collective souls; they have gone for hopeful analogies to the beehive and the anthill, to the solar system, to the human body; they have gone to Hegel for higher unities and to Rousseau for a general will in an effort to find some basis of union. For though men do not think alike, nor want the same things, though their private interests are so distinct that they do not merge easily in any common interest, yet men cannot live by themselves, nor realize even their private purposes without taking into account the behavior of other people. We, however, no longer expect to find a unity which absorbs diversity. For us the conflicts and differences are so real that we cannot deny them and instead of looking for identity of purpose we look simply for an accommodation of purposes.

When we speak, then, about the solution of a problem in the Great Society, we may mean little more than that two conflicting interests have found a _modus vivendi_. It may be, of course, that they have really removed all their differences, that one interest has yielded to the other, or both to a third. But the solutions of most social problems are not so neat as this; everything does not fit perfectly as in the solution of a puzzle. The conflicting interests merely find a way of giving a little and taking a little, and of existing together without too much bad blood.

They still remain separate interests. The men involved still think differently. They have no union of mind or purpose. But they travel their own ways without collision, and even with some reliance at times upon the others’ help. They know their rights and their duties, what to expect and what will be expected. Their rights are usually less than they claim, and their duties heavier than they like, yet, because they are in some degree enforced, conduct is rendered intelligible and predictable, and coöperation exists in spite of the conflicting interests of men.

The _modus vivendi_ of any particular historical period, the system of rights and duties, has generally acquired some high religious or ideal sanction. The thinkers laureate of the age will generally manage to show that the institutions, the laws, the morality and the custom of that age are divinely inspired. These are tiresome illusions which have been exploded a thousand times. The prevailing system of rights and duties at any time is at bottom a slightly antiquated formulation of the balance of power among the active interests in the community. There is always a certain lag, as Mr. Ogburn calls it, so that the system of rights and duties men are taught is generally a little less contemporary than the system they would find most convenient. But, whether the system is obsolete or not, in its naked origin, a right is a claim somebody was able to assert, and a duty is an obligation somebody was able to impose.

3

The prevailing system of rights and duties is designed to regulate the conflicting purposes of men. An established right is a promise that a certain kind of behavior will be backed by the organized force of the state or at least by the sentiment of the community; a duty is a promise that failure to respect the rights of others in a certain way will be punished. The punishment may be death, imprisonment, loss of property, the nullification of a right, the expression of disapproval. In short, the system of rights and duties is the whole system of promises which the courts and public sentiment will support. It is not a fixed system. It varies from place to place, and from time to time, and with the character of the tribunals and the community. But none the less it makes the conduct of men somewhat rational, and establishes a kind of union in diversity by limiting and defining the freedom with which conflicting purposes can be pursued.

Sometimes the promises are embodied in coercive law: Thou shalt, on penalty of this, do that; thou shalt not do so and so. Sometimes the promise is based on a contract between two parties: there is no obligation to make the contract, but, once made, it must be executed or a certain penalty paid. Sometimes the promise is based on an ecclesiastical code: it must be followed or the wages of sin will be visited either in fact or in anticipation upon the sinner. Sometimes the promise is based on custom: it must be respected or the price of nonconformity, whatever it may happen to be, must be paid. Sometimes the promise is based on habit: it must be executed or the disturbance faced which men feel when they break with their habits.

The question of whether any particular right or duty shall be enforced, the question of how it shall be enforced, whether by the police, by public criticism or private conscience, will not be answered by reasoning _a priori_. It will be answered by the dominant interests in society, each imposing to the limit of its powers the system of rights and duties which most nearly approximates the kind of social harmony it finds convenient and desirable. The system will be a reflection of the power that each interest is able to exert. The interests which find the rule good will defend it; the interests which find it bad will attack it. Their arguments will be weapons of defense and offense; even the most objective appeal to reason will turn out to be an appeal to desert one cause and enlist in another.

4

In the controversies between interests the question will be raised as to the merits of a particular rule; the argument will turn on whether the rule is good, on whether it should be enforced with this penalty or that. And out of those arguments, by persuasion or coercion, the specific rules of society are made, enforced and revised.

It is the thesis of this book that the members of the public, who are the spectators of action, cannot successfully intervene in a controversy on the merits of the case. They must judge externally, and they can act only by supporting one of the interests directly involved. It follows that the public interest in a controversy cannot turn upon the specific issue. On what, then, does it turn? In what phase of the controversy can the public successfully interest itself?

Only when somebody objects does the public know there is a problem; when nobody any longer objects there is a solution. For the public, then, any rule is right which is agreeable to all concerned. It follows that the public interest in a problem is limited to this: that there shall be rules, which means that the rules which prevail shall be enforced, and that the unenforceable rules shall be changed according to a settled rule. The public’s opinion that John Smith should or should not do this or that is immaterial; the public does not know John Smith’s motives and needs, and is not concerned with them. But that John Smith shall do what he has promised to do is a matter of public concern, for unless the social contracts of men are made, enforced and revised according to a settled rule, social organization is impossible. Their conflicting purposes will engender unending problems unless they are regulated by some system of rights and duties.

The interest of the public is not in the rules and contracts and customs themselves but in the maintenance of a régime of rule, contract and custom. The public is interested in law, not in the laws; in the method of law, not in the substance; in the sanctity of contract, not in a particular contract; in understanding based on custom, not in this custom or that. It is concerned in these things to the end that men in their active affairs shall find a _modus vivendi_; its interest is in the workable rule which will define and predict the behavior of men so that they can make their adjustments. The pressure which the public is able to apply through praise and blame, through votes, strikes, boycotts or support can yield results only if it reinforces the men who enforce an old rule or sponsor a new one that is needed.

The public in this theory is not the dispenser of law or morals, but, at best, a reserve force that may be mobilized on behalf of the method and spirit of law and morals. In denying that the public can lay down the rules I have not said that it should abandon any function which the public now exercises. I have merely said that it should abandon a pretense. When the public attempts to deal with the substance it merely becomes the dupe or unconscious ally of a special interest. For there is only one common interest: that all special interests shall act according to settled rule. The moment you ask what rule you invade the realm of competing interests of special points of view, of personal, and class, and sectional, and national bias. The public should not ask what rule because it cannot answer the question. It will contribute its part to the solution of social problems if it recognizes that some system of rights and duties is necessary, but that no particular system is peculiarly sacred.