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Social contract theory for Occupiers: what law, culture and history tell us

No legitimate social contract can be devoid of stewardship, responsibility and duty. Recognising this allows us to assess both the historical significance of the democratic revolutionaries of our time, and the scale of the political challenge posed today by hypocrisy.
C. S. Herrman
5 January 2012

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.

Honour 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 ‘honour-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 §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 honour-based, where honour, 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 (pre-war Germany, Japan, India and many others). It remains regrettably true that status by and large reflects a man’s world where honour 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 recognise 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 woman have no ‘place of honour’. Honour-based women are often the guardians of a culture’s ideological dignity, that source from which all of honour 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 honour-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 honour-based moiety is über-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 honour as true leaders and not as capricious self-aggrandizers.

Democratic revolutionaries and material harvests 

What Henry Sumner Maine meant by ‘progression to contract’ should be interpreted as the evolution of some few societies (initially Rome, then the common law countries, now western Europe and beyond) to a dignity-based version of the social contract. This is precisely the kind of system where we are able to recognize democratic revolutionaries in search of a people willing to establish and protect individual rights as their voluntary and formal stewardship responsibility, and where there is a still greater reliance of accountability enforced upon governments from beneath – in this case to supervise over-enthusiastic expressions of private institutional freedom. It is important to note that what honour-based citizenries most fear – social disarray occasioned by powerful loose cannons – is given legal warrant in the newer version of the social contract. 

By the very fact of augmented freedom, private entities willing to strut their dignity are not only not less prone to mischief but are in fact all the better enabled to take matters too far – to carry prerogative to the point of caprice. Part of caprice is the swollen pride at believing they possess ownership of their office and can hole up within it, insulated from pressure or accountability. All of which makes it necessary to insist that no ‘advanced’ system of social organization can tolerate the seemingly innocent dictum that offices be permitted to ‘self-police’, whether because interference from without would seem to disaccept the dignity of the office, or because only officials can know how best to conduct their own affairs.

We must be unmistakably clear about two over-arching desiderata: the dignity of the office is best served by enforcing stewardship, not by allowing officers to escape responsibilities in the name of self-respect (read self-aggrandizement). As for who best knows how to maintain professional integrity, we rephrase what has gone before: offices are the interface of private prerogatives in the service of public interests, whence, as quasi-public institutions, their intended beneficiaries are not only credited with a de facto stakeholder right of holding officers accountable, but are in fact admonished to do so. It is the necessary corollary to the right of a democratic sovereign to topple a defective government – nothing could more perfectly legitimate public accountability over governments (or any other authorized entity) that act as if beyond the reach of the law or sovereign. 

The dignity-based social contract and the role of stewardship in modern society is prefigured even in our spiritual wellsprings, perhaps best exemplified by recourse to yet another branch of theory – Christology. Nietzsche may have wittily observed that Christ was the first, and last, Christian; what he failed to observe was that this just happened to be the world’s first major religion premised upon the inherent dignity possessed of each and every soul. Accordingly, God’s grace is had for the mere asking, and not because a public authority allowed it or because a priest sanctified it. Christianity will also presume that any original ‘covenant’ came from God, not from man (whence the consideration of inherent worthiness, and whence the likeness to a dignity-based contract). Furthermore, not only did Jesus conceive of his followers as officeholders (Christos ~ office) but required their stewardship (1 Cor. 9:11): “If we have sown a spiritual crop for you, is it too much to expect from you a material harvest?” 

That the dignity-based social contract is a direct parallel to Christological reasoning should not be a surprise. Law and religion are each variant expressions of principles dealing with human nature; in particular, of adverse reliance. The truth is again that religion can no more dispense with stewardship than can law; and a law that would wilfully weaken stewardship does the spirit and justice of its calling no favours.                                                                   

Hypocrisy 

The honour-dignity binary was prefigured in nineteenth-century philosophy and followed shortly thereafter in anthropology. Schopenhauer and Nietzsche introduced the Apollonian-Dionysian (DB and HB respectively) system while Margaret Mead and Ruth Benedict introduced the shame-guilt binary (HB and DB, respectively). After theory-deficient anthropologists defaulted the matter to sociologists, the individualist-collectivist binary took precedence, and now competes with the true and correct honour-dignity binary, correct for expressing the elemental mythic desiderata of the respective cultural types. Honour and dignity devolve into the others, not the other way around. 

What shame is to honour, guilt is to dignity. Shame presupposes a publicly recognized breach of respectability owed others. The dignity-based equivalent of disrespect is disacceptance, the mere thought of which, because questioning dignity, invites guilt. During the cold war Jean François Revel often identified American guilt as the culprit responsible for timidity in facing down the forwardness of the honour-based Soviets. Honour-based folk seem to sense this disability in the susceptible. Japan was confident America could not well up the courage to repel an attack or deal productively with its aftermath. Saddam Hussein famously fantasized, twice, that the United States had to be bluffing, for he was certain they just didn’t have the stomach. By the time Bill Clinton extracted his famously sensitive policy vane from the opinion polls, Milosevic had delivered a clinic on how to make dignity-based nations look pretty silly. 

The real problem with dignity-based folk is that the tools and methods necessary to defeat an honour-based enemy are sometimes precisely those that make them start feeling guilty about everything: ‘Oh, we just can’t stoop that far.’ Revel was the first and last to elucidate the political side of guilt in recent times (How Democracies Perish). The former US President Ronald Reagan was a man who understood honour-based people if only because he was constantly fighting an internal struggle over honour and dignity throughout his life. To give credit where due, he fought fire with fire and managed quite creditably. Liberals have yet to figure out that when conservatives say they will compromise, it means they are gaming dignity-based queasiness at low-handed methods. Liberals need to get real. 

Conservatives, whether rural, working class or religious, are in general better able to understand honour-based foes for the simple reason that they themselves tend to be honour-based. Times were when they were also perspicaciously aware of impudence before it playfully poked at their ‘indecency button’. Today, however, there is little that’s over the top for strong-willed conservatives.  And there’s little that the liberals are willing to do about any of it despite the fact that those most upset over the loss of stewardship values are also equally wary of disturbances too close to their own ‘indecency button’. 

There are basically two strains of indecency to be concerned about, one typifying each of the cultural types. The honour-based rule of thumb is that one must steer clear of malevolent disrespect, and at all cost avoid arrogance (a DB thus labeled might as well acknowledge failure in the ‘winning hearts and minds’ category). In the distinction as between the moral and the ethical, the HB go the moral route, meaning they feel it in the heart, whereas the DB take it to the head with principles of ethics. The DB set are most up-in-arms about displays of disacceptance or dismissiveness toward them. Topics liable to get there in a hurry: whatever is inequitable and/or unprincipled relative to their standards.

What, at their best, classical liberals and moderate conservatives share in common is an abiding appreciation of the stewardship responsibility to condemn and defeat hypocrisy. Whether from moral scruples (conservatives) or ethical principles (liberals) the result is a knee-jerk outrage against wanton hypocrisy. But people of this calibre are no longer a majority on either side either of the political or cultural divide. Hypocrisy in politics is all the rage… 

“Progressives who had their hearts set on Obama,” once observed Nobel economist Paul Krugman, “were engaged in a huge act of self-delusion." Curtis Roosevelt, grandson of FDR, recently wrote, “Why rely on the commitments of someone who received our wholehearted support in the election of 2008 – because we thought he had emphatically made these promises – and then tabled them upon moving into the White House? Our support for 2012 should not require blind faith.”  This business of ‘blind faith’ is precisely why social contracts require a stewardship consideration from the promisor.

Similar comments have been made about the French President Nicolas Sarkozy. The same litany describes at once an indecently-acting conservative Frenchman, and an indecently-acting liberal American. At bottom the complaint is their hypocrisy, the uncomfortable dissonance between promise and practice. Political wannabes get the notion that labels don’t so much matter, nor good habits; what matters is that they be elected because, well, they will make the best President. Why? Quite simply, only they can deliver; they are the best! The redundancy, the absence of any principles or serious intent regarding policy seems to typify the age of me, me, me. Those who do speak to principle tend to be at once conservative and over the top. 

Now the opposite of hypocrisy should be what conservative and liberal enemies might utilize to see through their mutual enmity. We have suggested ‘decency’; Revel suggested sincerity. Interestingly, it is the Occupy Movement that most fully understands this. Its consensus assemblies reduce mainly to pleas for decency, sincerity and magnanimity. Like the French and American opponents of hypocrisy, the Occupiers are likewise a mix and match of liberal, moderate conservatives, and small but vocal contingencies of Tea Partiers and libertarians – and of course their European (and elsewhere) near-equivalents. 

 “We have, in a phrase, confused ends with means,” observed Nobel economist Joseph E. Stiglitz (“The Book of Jobs,” Vanity Fair, 23 Dec. 2011). “A banking system is supposed to serve society, not the other way around. That we should tolerate such a confusion of ends and means says something deeply disturbing about where our economy and our society have been heading. Americans in general are coming to understand what has happened. Protesters around the country, galvanized by the Occupy Wall Street movement, already know.” These remarks readily generalize to the world-wide Occupy Movement.

Real solutions 

Unfortunately, however, the ‘new world order’ is marked by leniency to those allowing expedience to dominate and tower over a more muted and stewarded approach to electioneering, governing and managing. Thus if the Ninety-nine percent want a real solution, they must not only recognize and stand up for shared values but manifest contempt against this leniency – in their own respective ranks!! 

You cannot compromise with those who do not wish to compromise. So easy to say, so difficult to believe and take seriously. The corollary is still more difficult, especially so for the dignity set: When the HB One Percent declare war, the Ninety-nine percent (largely DB) must respond with war. They have not. Until they do so by some meaningful metaphor, the opposition is in a default win-win posture.

The promise of the Occupy Movement is in its massed presence, whether with demonstrations, closures or boycotts. Nothing less will survive the winter drain on nerves and stamina. Nothing less will deliver a message the opposition will regard without laughing in contempt. It is easy to complain, but supremely difficult to convince the masses not to vote against their own interests, or to get couch potatoes into the streets, or to get the One Percent to take anything seriously but themselves.

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