Follow-Up On The Social Contract

Last week we examined the “social contract” in some depth, to see if it passes as a legal concept. This week we’ll examine two follow-up issues: one that I didn’t mention and one that I mentioned, but didn’t delve into.

And for those who missed last week’s post, we started by noting that the social contract is the concept that describes the origin of society and the legitimacy of the authority of the state over the individual. It asserts that all of us have consented to surrender some of our rights to a ruling group, in exchange for the protection of our remaining rights.

The Contract of Adhesion

There is one kind of contract that could be claimed as legitimately applying to the social contract. (This claim negates nothing we covered last week, and it’s also a dodgy type of contract.) It’s called a contract of adhesion, and it’s the kind of contract you “agree” to when using a parking garage. The tiny print, which you never read, absolves the garage from more or less everything and punishes you for any error.

In an adhesion contract, there is no negotiating, no clarification of terms, and very often an imbalance of power.

Courts frequently strike down such contracts, for reasons like these:

    • The contract is unfair or oppressive to one party. (Unconscionablity.)
    • You wouldn’t have agreed, if you had known the real terms. (Reasonable expectations.)
    • If the terms were so complex, or finding them was so convoluted, that they aren’t knowable by any practical standard.
    • If the terms changed between when you agreed and when they were enforced.

I’ll stop here and leave you to examine the social contract in this light.

An Honest Justification

I finished our previous post by saying this:

Those who wish to justify the status quo are free to do so, but I’d like them to put forth justifications that are honest and substantial, not merely slogans endlessly repeated.

I think that’s a fair request, but it also struck me that since the social contract is the only thing that has entered most minds, coming up with an honest alternative might be daunting. And so, I’ll play advocate and provide one:

Forcible rule of the few over the many might be defensible, if all other options would be worse.

This justification would require many follow-on proofs, of course. Here are some that spring to mind:

    • What are the alternatives? Is that really all of them?
    • Have they been proved worse? And if so, by what standards of comparison and proof?
    • When and how often have they been proven false? By whom? When those people are paid, from where does the money come? What are the self-censorship pressures they face?

I’ll leave you to wrestle with these things, should you wish. But this is, at least, an honest line of inquiry.


Paul Rosenberg