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OpEdNews Op Eds    H2'ed 8/20/12

Social Contract Theory for Occupiers: What Law, Culture and History Tell Us

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Message C. S. Herrman

The social contract, like the contract we think of in ordinary legal parlance, is what the law dictionary terms 'commutative' -- "in which what is done, given, or promised by one party is considered as an equivalent to or in consideration of what is done, given, or promised by the other" (Black's Law, 6th, emphasis added). Of special interest to theory is the fact that this use of the word 'consideration' is recent, and reflects in this writer's estimation an oversight serious enough to be largely responsible for the recent world-wide financial crisis, and in consequence the on-going Occupy movement. The oversight was, in particular, one of dismissing the linkage between the original use of that word and the idea we have always referred to as stewardship

In good theory every contract requires a pair of relations, each featuring adverse reliance in which the parties to the agreement risk mutual disadvantage requiring mutual assurances -- what legal scholars originally took to calling 'considerations' -- against predation by the other. "Consideration, according to the traditional definition," noted James Barr Ames, once Dean of Harvard Law, "is either a detriment incurred by the promisee or a benefit received by the promisor in exchange for the promise."  Why each was once a consideration says a great deal about the early legal concept of stewardship. 

Of the two adverse relations, one is introduced by the promisor and is rooted in universal human experience where self-aggrandizement is so often feared from those requesting partners in acts ostensibly for mutual benefit. It is a bit cynical because those developing it lived at a time when it was seriously negligent not to watch one's back. By day a man was expected to thwart burglars; caught by night, their punishment was more severe, reflecting the cowardice of more easily evading the owners. The other adversity arises from the nature of the contract itself. Going to the doctor presupposes adversity if only because the doctor has knowledge and skills placing her in a position to take advantage.

In the traditional definition of consideration the 'detriment' arises from fear of aggrandization, and what accrues to the promisor is the benefit of a consideration balancing the risk entailed by the reverse promise (arising from the contract itself). The way it works in modern society, to use the medical example, is that insurance covers the doctor's back, while licensing and professional oaths are considerations covering the patient's back. These 'considerations' are really better considered as the stewardship obligations we have always presumed them to be. 

Add a wrinkle: suppose that both considerations, and thus both stewardship components, fall to the same person. The result is a species of implied contract we recognize as an 'office'. There are many ways to create an office. I can just file the proper papers and thereby legitimately claim to be a corporate officer; I can go to school for a while, then take an exam and follow that with an oath, whereby I am a professional of some sort of office providing services; or I strap myself into a car and drive to my destination. This last is an ad hoc office, or 'office on the fly'. The driver's responsibility is to venture forth with sound mind, with willingness to exercise diligence and care (to off-set inherent risk to traffic and pedestrians). The duty amounts to following signs and rules of the road. 

This example illustrates another seminal ingredient in the office, regardless of the type: the public is half of this equation. Offices are interfaces between private conduct and public expectation. Adding a detail will establish the relevance clearly enough; corporations are by definition offices, thus all corporate officers owe stewardship duty to the public. Ouch! This one fact easily accounts for the well-known observation that courts have permitted corporate charters to become a distant afterthought. Who wants to be saddled with stewardship? 'I want my cake, and by God I will pay what it takes to be able to eat it, too!' An old story, that of money and influence. Sadly, it is to be expected when legal theory has reached its nadir, characterized by 'malaise' (not my word, but it'll do), that political ideology fills the vacuum. And the chief usurpers are activist conservative judges at the highest levels.

Honor and dignity 

The social contract can also be used heuristically, allowing broad swathes of cultural phenomena to be understood as ideologically suited to one or the other of two different but related types of contract. The first type concerns people negotiating with a prospective leader, whom they promise to obey in return for stability, security and that stewardship duty -- to receive the same, less collateral damage. This should augment our understanding of, and appreciation for, what recent scholars have taken to calling 'honor-based cultures' (HB), one consequence being the designation's application to countless more societies than merely the well-known warrior Norsemen of old or the Arabs of today. 

The other cultural type, the 'dignity-based contract' (DB), could in theory arise from an interesting twist on the first. Because the social contract is no less valid when the promisor is not the people themselves but instead the leader seeking followers, those who would become leaders must make a point of demonstrating their sincere commitment to the people's welfare. But that presupposes a consideration, a stewardship promise of responsibility such as, for example, assuring rights or privileges for those professing allegiance. When people are assured of such valuables they naturally take to thinking they inherently deserve them, whence the connection with dignity. 

A faction preparing a Constitution for their countrymen likewise belongs to this category. Aside from the US founding document where dignity is imputed, Germany's post-war Constitution is explicitly dedicated (Art.1 sec. 1, "Human dignity is inviolate") to preserving dignity, the mythic repository of inalienable rights. Other historical examples include charioteering opportunists arriving in the ancient Near East, whose chance of bloodlessly winning their way into power required promises to prospective subjects of undisturbed continuation of their customs and religion. Sir Frank Stenton ( Anglo-Saxon England ) reports that Ethelred "promised that in return for the renewed allegiance of his people he would be a true lord to them, reform everything of which they had complained, and forgive all that they had done or said against him." Rome built her system of international law from experience at accomplishing, if at some cost in popularity, quasi-arms-length 'client' arrangements. 

Were these two variations of social contract to be superimposed, we would have stewardship responsibilities in the form of guarantees of rights and customs and the implied responsibility on the part of the citizenry not to trample one another's rights (stewardship owed the sovereign will often migrate, in tow with sovereignty itself, to the people). The duty end of things is much the same as when the citizenry is the promisor. In each case it includes avoiding damage and managing duties efficiently and effectively, with minimal recourse to arbitrary, and none whatever to capricious, exercise of granted authority.

A man's world

Henry Sumner Maine was an English legal historian who very presciently suggested ( Ancient Law ) that civilization progressed from the authority of status to that of contract. To a competent social theorist, societies characterized as status-mongering are honor-based, where honor, in what might appear an overly simplistic set of observations, is itself a status designation consequent to manly conduct meriting social esteem: machismo (our Hispanic and Italian friends), chauvinism (Russia and environs, for example), patriarchy (Near East takes the cake), serious paternalism (Asia offers the best examples) and fawning respect for this or that variation on the authoritarian theme (prewar Germany, Japan, India and many others). It remains regrettably true that status by and large reflects a man's world where honor is, in addition, frequently officious and thin-skinned. (All of these characteristics serve survival value in difficult times. That they seem brutish to some is only the indication we are lucky enough to be able to recognize this. Dignity is more evolved, also far more difficult to attain, and no society has attained it at all well, let it be noted.) 

Not that women have no "place of honor'. Honor-based women are often the guardians of a culture's ideological dignity, that source from which all of honor can make sense both in relation to religion as well as law. Recall the Spartan women ridiculing husbands who might waver a millimeter in their warrior propensities (not to mention Aristophanes' Lysistrata ). Thus when women misbehave the consequences are no less dire. 

The honor-based system follows the contractual pattern in which a people goes in search of a leader. Our theory predicts that in positing a stewardship "responsibility' owed to the "authorities' a populace sees stability and security as the foremost virtues, from which we deduce a disposition to accept authoritarian, even totalitarian, regimes. Empirical evidence also confirms the prediction that the honor-based moiety is uber-realistic, almost cynically so, whence they accept rulers as necessary evils. They must be obeyed, but, because prone to abusive exercise of power, must be reigned in by socially sponsored and supervised (think Greek ostracism) stewardship "duties' by which authority-figures may demonstrate their honor as true leaders and not as capricious self-aggrandizers.

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Mr. Herrman is a liberal philosopher specializing in structural metaphysics, where he develops methodologies enabling him to derive valid and verifiable answers not only in matters of the ontology of reality, but also in real-world concerns for (more...)
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