Levy on Constitutions without Social Contracts
Jacob T. Levy (McGill University - Department of Political Science) has posted Not so Novus an Ordo: Constitutions without Social Contracts on SSRN. Here is the abstract:
Social contract theory imagines political societies as resting on a fundamental agreement, adopted at a discrete moment in hypothetical time, that both bound individual persons together into a single polity and set fundamental rules regarding that polity‘s structure and powers. Written constitutions, adopted at real moments in historical time, dictating governmental structures, bounding governmental powers, and entrenching individual rights, look temptingly like social contracts reified.
I argue in this article, however, that something essential is lost in the casual slippage between social contract theory and the practice of constitutionalism. Enacted constitutions do not come into being against the background of a state of nature of isolated individuals; and by this I do not mean to invoke the too-familiar critique of the supposedly decontextualized liberal person, but rather to critique the aspiration to decontextualize the legal and political order. Constitutions are enacted in ongoing societies (whether newly politically sovereign or otherwise) with pre-existing laws and legal systems, political organizations, cultural and linguistic and religious divisions, and norms and mores. Moreover, the practice of constitutionalism is usually, at least in part, a practice of reconciling those legacies to a new political order, of making use of those legacies to build loyalties to or counterbalances against the state (or both). Most constitutions cannot be well-understood by retrospectively characterizing them as the kind of complete and radical break with the past envisioned by social contract theory.
Contractarian blinders lead us to look for greater individualism, greater social unity, and greater coherence of principles than can actually be expected of constitutions or constitutionalism. Real constitutional orders appropriate, incorporate, and channel the histories and divisions of the societies they govern. Treating them as if they are social contracts will flatten and distort them, making those engagements with the past or with social plurality appear anomalous and encouraging their minimization.
I aim to redirect some of our attention to non-contractarian constitutionalism, or non-contractarian strands within constitutionalism, both as intellectual inheritance and as lived practice. Non-contractarian elements persisted in constitutional theory across the apparent break of the late 1700s, even though these have to some degree been lost sight of more recently; and they have persisted and should persist in constitutional practice.
And from the paper:
The de facto solution, born in French Revolutionary thought but foreshadowed in Locke and Rousseau, is that precisely one social fact from before the enactment of a contractarian constitution survives the founding moment and retains normative and juristic significance: the fact that these persons in this territory make up a political people because they are a nation.46 The counterpart in Hart’s philosophy of law is that a legal system depends on some one pre-legal social fact: a rule of recognition.
The bootstrapping problem that one cannot give a contractarian justification for the boundaries of the contracting group or of the rule of recognition, and must rely on a pre-contractarian social fact, leaves it unclear why there should be only one such fact that survives. “We, the people” and “the principle of any sovereignty resides essentially in the Nation” may be founding words of the modern constitutional tradition, but they do not constitute arguments. There is no non-question-begging reason why constitutions must derive from and ground legitimacy in a national people with pre-constitutional unity, rather than a plurality of pre-constitutional groups or institutions working or evolving together.47 Rationalist contractarians have suggested that such pluralism runs afoul of the moral priority of individuals over groups. But this distinction is illusory; the unitary pre-constitutional national people is a reified group as much as any other would be.
There is an affinity here with Joseph Raz’s argument, contra Hart and Kelsen, that a legal system may contain a plurality of rules of recognition and a plurality of socially-recognized legal sources, that they need not all be reducible to a single Grundnorm. The affinity is not an identity. Neither Hart’s rule of recognition nor Kelsen’s Grundnorm is a social contract; both are certainly compatible with, say, a legislating monarch who rules because it is generally accepted that his or her family has always done so—subject perhaps to constitutional constraints that are themselves customary rather than enacted. But in modern democracy governed by a written constitution, we will typically be thinking of non-contractarian elements of an overall constitutional order, not of a wholly non-contractarian constitution. Since a constitutional order is juristic as well as political, non-contractarian constitutionalism in such a state might depend on Raz’s argument being correct. The reasons why an Indian tribe is a valid source of law in the American context and the reasons why Wyoming is may just be different reasons, not reducible to a single master rule of recognition.48
Highly recommended.
