Contract theory

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A contract theory ( English social contract theory , French théorie du contrat social , "contractualism", "doctrine of the social contract") is a legitimizing idea to justify state legal systems morally and institutionally. Either the actual consent of those involved to such an order can be used as a criterion or a hypothetical contract (the possible agreement of all parties concerned) can be assumed as a criterion for assessing the legality of an order. Contract theories have been around since ancient times in Epicurus , Lucretius, and Cicero, and were later taken up again by Thomas Hobbes and others.

prehistory

The breaking out of the individual and the state from the medieval world order and the resulting conflicts, especially the wars of religion , raised the question of the why and how of the political order with hitherto unknown vehemence. A specifically “modern” answer to this question is contract theory.

It cannot be taken for granted that negotiated treaties should ensure peace. For a long time, the order of rule and authority were understood personally and were based as much as possible on ancestry . The theory of divine right was used to justify rulership . Elections that were regarded as unpeaceful were frowned upon even in the Attic democracy , and in all ancient forms of rule the priority of birth was preferred, so that in the Middle Ages the inheritance that was considered peaceful also prevailed .

In the Middle Ages, contracts and alliances were a common occurrence among equals, for example princes, but also in the still underdeveloped business area, such as between traders. In addition, there were a few contracts (alliances) between individual subordinates, especially rich financiers ( Fugger , Welser ) and rulers.

Through Christianity, the idea of ​​a "covenant" between ruler and people - because of its parallel to the covenant between God and his people - experienced an appreciation, which was only slowly asserted and alongside which there was skepticism until modern times that it was involved about conspiracy (see Devil's Pact ). The covenant in the sense of the Bible is not a contract of equals with mutual legal claims , but obliges the believers to be faithful to the grace of the sovereign. The inflexibility of a fixed order in writing has been opposed to the principle of grace since late antiquity . Grace could not be demanded like contractual rights, but manifested itself as situation-related and personal arbitrariness of the ruler, which was assumed to be kind and just. Nonetheless, since the late Middle Ages, the fixed right that could be claimed has been upgraded over grace - and with it the written agreement.

The monarchists derived from the unwritten contract between ruler and people a right of resistance of the people against the ruler. A main motive of contract theories in the 17th and 18th centuries, when the bourgeoisie increased in importance, was - analogous to economic contracts - to demand contractual arrangements between subject and ruler for the political sphere.

variants

requirements

Three things are necessary for contract construction: the concept of the human being as free, i. H. self-determined and self-sufficient individual capable of acting , who is to agree to the contract of his own, free decision, the idea of ​​a collective as a voluntary association of free individuals serving their own interests and thus the concept of the state or society ( Thomas Hobbes speaks of body politic ) as Result of the conclusion of the contract and thinking in cause-effect relationships ( causality ), here the search for the first cause for the emergence of a state structure. These prerequisites are also characteristics of modernity .

idea

Thomas Hobbes had described the natural state of humanity in 1651 as a war of all against all ( Bellum omnium contra omnes ), which could only be ended by an orderly authority with absolute power . Sensible subjects should therefore consent to a power contract . Thereby they change from the natural state to the social state (state). Both the conclusion of a contract and the state of nature are only ideas that it could have been so.

A hundred years later, Jean-Jacques Rousseau turned against this view with the highly influential idea that the state of nature is, on the contrary, a paradisiacal peace that is only destroyed by social inequalities. In his main political-theoretical work On the Social Contract or Principles of State Law (1762), he called for the previous subordination to monarchy or aristocracy to be replaced by the will of individuals with equal rights in society.

In contractualism, it is assumed that individuals unite to form a state order based on natural interests of their own free will. This results in mutual relationships and a commitment to keep the agreed contract.

According to Wolfgang Kersting , the idea of ​​the social contract is a thought experiment that is divided into a “three-step argumentation strategy”: natural state - social contract - social state. The thought experiment in Hobbes' suggestive formulation tries to show that the law-free space brings with it a prisoner's dilemma situation, i.e. the impossibility of mutual trust. The application of the law then appears as a way of securing peace.

Natural state

The state of nature as an unlawful space is so unbearable for Thomas Hobbes that everyone wishes to dissolve it. The state of society as a legal area, in which the members of society live together in an orderly manner, is a lesser evil. This postulates that those who are in a state of nature will voluntarily transfer to the orderly state of society through a contract .

Jean Jacques Rousseau also understands the state of nature as a law-free space, but on the contrary as a lost paradise, which individuals would have to approach in turn in view of its deformation through social inequalities. A civil society , in which reason rules, has the means of contract for this.

In the middle between the extremes Hobbes and Rousseau are the ideas of John Locke in Two Treatises on Government (1689), who considers men in a natural state to be equal and independent because they are ruled by a divine natural law (“the state of nature has a law of nature to govern it ").

Immanuel Kant ( idea for a general story with cosmopolitan intent , 1784) combines elements of these theories into a theory of public law , with which the state of society differs from a state of nature in which there can only be private law . With Kant, the individuals no longer merely have the will to reach a contractual agreement, but see the "absolute necessity of reason" of a positive legal order .

Since the 19th century

In the 19th century the social contract theories lost their persuasiveness as legitimation theories. In the emerging legal positivism , arguments based on pre-state legitimation strategies no longer played a role.

At the beginning of the 20th century, Max Weber's sociological definitions of power and domination took center stage.

John Rawls

John Rawls ' Theory of Justice (1971) shows that the concept of contract theory was not out of date in the 20th century . Rawls takes up Hobbes' idea of ​​the state of nature (in English original position , pronounced "original state"), as he assumes a " veil of ignorance " at the moment of agreement. This "veil" prevents individuals from realizing their position in society and the time in which they live. Rules that always bring advantages, regardless of the position and time of the individual, are therefore capable of consensus. The interchangeability of position and time allows a universalisability test of rules. The natural state of John Locke and Thomas Hobbes cannot be compared with the original state described by Rawls.

criticism

Contractualism in the form represented by Rawls is indeed worked out in a highly systematic manner, but makes correspondingly high demands on the people involved, who must understand its theoretical basis. Individuals must be competent judges of moral questions, have sufficient intelligence, be able to think logically, have sufficient life experience, take new knowledge into account, maintain personal distance, be ready for self-criticism and be able to empathize with others. These are skills that, while cherished in the Age of Enlightenment , cannot simply be expected to be fulfilled in reality.

Historically, there is also no case in which the contractualist model was actually used to create legitimacy. According to Volker Gerhardt's line of argument, all societies had already existing law, which was referred to in times of transition (and especially in this case) in order to legitimize new law. Thus, a foundation that creates legitimacy solely on the self-responsible person, as contractualism suggests, appears illusory, since legal forms always precede them, which are propagated in new relationships.

Principal theorists

Representative of classical contractualism

One of the best-known critics is CB Macpherson with The Political Theory of Possession Individualism. From Hobbes to Locke (German 1973).

Representative of modern contractualism

Representative of moral contractualism

See also

literature
  • Enlightenment and Criticism Special Issue 7, Focus: Contractualism . Published by the Society for Critical Philosophy Nuremberg , Nuremberg 2003 (some articles online , including by Jan Narveson )
  • David Gauthier : Morals by Agreement , Oxford: Clarendon Press 1986.
  • Michael von Grundherr: Morality out of interest. Metaethics of Contract Theory . de Gruyter, Berlin 2007 ISBN 978-3-11-019356-5
  • Wolfgang Kersting : On the logic of the contractualist argument , in: Gerhardt, Volker (Hrsg.): The concept of politics. Conditions and reasons for political action. Metzler, Stuttgart 1990, pp. 216-237. ISBN 3-476-00692-1
  • Wolfgang Kersting: The political philosophy of the social contract , Scientific Book Society, Darmstadt 2005, ISBN 3-534-18953-1
  • Wolfgang Kersting : Contract Theories. Contractualist theories in political science. Kohlhammer, Stuttgart 2015. ISBN 978-3-17-024166-4
  • Roland Kley: Contract Theory of Justice: A Philosophical Critique of the Theories of John Rawls, Robert Nozick, and James Buchanan . Haupt, Bern 1989, ISBN 3-258-04035-4
  • Peter Koller : New Theories of the Social Contract . Duncker & Humblot, Berlin 1987, ISBN 3-428-06208-6
  • Anton Leist: morality as a contract? Contributions to Moral Contractualism . de Gruyter, Berlin 2003, ISBN 3-11-017270-4
  • Christian Müller: The contract theory argument in economics , Duncker & Humblot, Berlin 2000, ISBN 3-428-10084-0 .
  • T. Nagel : Equality and Partiality , Oxford University Press 1991.
  • Derek Parfit : Reasons and Persons , Oxford University Press 1984.
  • Derek Parfit: A Consequentialist Perspective on Contractualism , in: Theoria 66/3 (2000), 228-236.
  • P. Pettit: Can Contract Theory Ground Morality? , in: J.Dreier (Ed.): Contemporary Debates in Moral Theory, Blackwells 2006, 77–96.
  • T. Pogge: What We Can Reasonably Reject , in: Nous Supplement 11 (2002), 118-47.
  • Richard Saage: Contract Thinking and Utopia: Studies on Political Theory and Social Philosophy of the Early Modern Age . Suhrkamp, ​​Frankfurt am Main 1989, ISBN 3-518-28377-4
  • TM Scanlon : The Difficulty of Tolerance , Cambridge: Cambridge University Press 2003. Review (PDF file; 106 kB) by Stephen Darwall
  • TM Scanlon: Contractualism and Utilitarianism , in: Amartya Sen , Bernard Williams (Eds.): Utilitarianism and Beyond, Cambridge: Cambridge University Press 1982, 103-28.
  • TM Scanlon: What We Owe to Each Other , Cambridge, MA: Harvard University Press 1998.
  • TM Scanlon: Contractualism and What We Owe to Each Other , in: H. Pauer-Studer (Ed.): Constructions of Practical Reason: Interviews on Moral and Political Philosophy, Stanford University Press 2003.
  • T. Schmidt : The idea of ​​the social contract: rational justification in political philosophy . Mentis, Paderborn 2000. ISBN 3-89785-201-2
  • Richard Schottky: Studies on the history of the political philosophy of contract theory in the 17th and 18th centuries: Hobbes - Locke - Rousseau - Fichte; with a contribution to the problem of the separation of powers in Rousseau and Fichte . Rodopi, Amsterdam 1995, ISBN 90-5183-908-1
  • Ferdinand Tönnies : Thomas Hobbes, the man and the thinker , Frommann, Stuttgart [1896, ²1910] (exp.) ³1924 (facsimile 1971)

Web links

Wiktionary: Social contract  - explanations of meanings, word origins, synonyms, translations
Wiktionary: contract theory  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Münkler, Herfried: "Thomas Hobbes" Campus 2001.
  2. ↑ Wolfgang Kersting: Contract Theory , in: Stefan Gosepath, Wilfried Hinsch, Beate Rössler (Eds.): Handbook of Political Philosophy and Social Philosophy , Vol. 2, Berlin: de Gruyter 2008, pp. 1430–1436
  3. ^ John Locke: The Second Treatise of Civil Government 1690, chapter 2, section 6
  4. ↑ Hariolf Oberer (Ed.): Kant: Analyzes, Problems, Criticism III, Würzburg: Königshausen & Neumann 1997, pp. 258–260. ISBN 978-3-8260-1169-6
  5. ↑ Volker Gerhardt: The political deficit of contractualism , in: Merkur. German magazine for European thinking. , H. 714, 62 (2008), pp. 1034-1039, here p. 1038
  6. ↑ Volker Gerhardt: The political deficit of contractualism , in: Merkur. German magazine for European thinking. , H. 714, 62 (2008), p. 1039.