The Social Contract and Sovereignty

In his essay The Source of Sovereignty , written in 1982, Ridgway K. Foley Jr. writes the following:

“The attitude that sovereignty resulted from some sort of formal or informal contract or agreement between citizens for their mutual advancement and protection crops up in varying guises from ancient to modern times. From Bodin and Hobbes this discipline extends in some form or other to the Kelsenite theory today; perhaps the fact that it contains a partial truth accounts for its tenacity, yet the pseudo-romantic vision developed by Rousseau ought to be quelled once and for all time, since it leads to the omnipotent state. Perhaps at some time lost in the dim past, a group of men in a given territory met and banded together for economic betterment and personal protection, although one encounters grave difficulties in envisioning a “social contract” in the formal sense where all inhabitants solemnly vote allegiance and then inscribe their names on a dusty parchment. Moreover, one cannot assume total assent to all terms of the bargain, leaving one wondering the source of authority to bind dissenters (whither sovereignty).

The most devastating attacks upon the theory supporting a “social compact” emanate from the nineteenth-century anarchists, Lysander Spooner[1] and Herbert Spencer.[2]

Spooner cogently argued that assenting parties to a constitution or law cannot logically bind unborn future generations even if one could stretch a point to urge that the assenting majority bound all persons residing in the same territory. (Since the franchise exists sparsely today, and even more scantily in antediluvian times witnessing the development of most constitutions, and since many of the enfranchised failed to exercise their right to accept or reject the basic norm by voting for reasons of dissatisfaction with the apparatus or the alternatives, one cannot validly conjecture that majorities adopt constitutions. What is the source that binds the nonparticipants to the result: sovereignty?)

Spencer powerfully demonstrated that a dissenter cannot be made a party to an agreement in spite of his choice (if justice and morality are founded upon the respect for free choice). Thus, while the social compact theory enjoys some practical value, it fails to withstand rigorous analysis and it fails to accord with known historical fact.”

Read the entire essay here,


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