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What is a contract?
The concept of contracts is extremely important because it comes up in many contexts in debate; if you don't understand the underlying principles of what constitutes a contract, you'll be lost. So let's propose a simple definition: a contract is a binding agreement between two or more parties.
Here's what Encarta has to say about contracts:
Contract, in law, an agreement that creates an obligation binding upon the parties thereto. The essentials of a contract are as follows: (1) mutual assent; (2) a legal consideration, which in most instances need not be pecuniary; (3) parties who have legal capacity to make a contract; (4) absence of fraud or duress; and (5) a subject matter that is not illegal or against public policy.
In general, contracts may be either oral or written. Certain classes of contracts, however, in order to be enforceable, must be written and signed. These include contracts involving the sale and transfer of real estate; contracts to guarantee or to answer for the miscarriage, debt, or default of another person; and, in most states of the U.S., contracts for the sale of goods above a certain value.
Types of Contracts
Contracts are often classified as either contracts by specialty or simple contracts. Another class of obligations, sometimes referred to as contracts of record, are conclusive legal obligations created by the judgment or order of a court of record.
For debate purposes, we'll deal only with simple contracts, which do not depend for their validity on any particular formality in their execution, but rather on the existence of a consideration.
A simple contract may be written or verbal, or may even be implied from the acts and conduct of the parties manifesting their intentions. It usually comes into existence as the consequence of an offer and acceptance. Inasmuch as agreement must be in effect in order to create a contract, any mistake in setting forth the terms of the offer or acceptance that should be apparent to the other party negates the agreement, and no contract will arise. For instance, if you and your neighbor Bob reach an agreement whereby he will mow your lawn and you will wash his car, you have entered into a contract with him. Simply because he one day decides to pull up your weeds as well does not mean that you're suddenly obligated to wax his car too.
Simple contracts are frequently classified as express and implied. An express contract is one entered into on terms expressed in spoken or written words. An implied contract is one that is inferred from the acts or conduct of the parties.
Nullifying Contracts
The contract of a lunatic, an idiot, or a person so under the influence of a narcotic or of intoxicating liquor as not to be capable of a free exercise of will is sometimes said to be wholly void. In recent cases, however, such contracts have usually been regarded as merely voidable; and in some instances they are enforced if the other contracting party is unaware of the incompetency and the terms are fair. The contract of a minor, usually a person under the age of 18, is not void, but voidable, and it may be affirmed by that person on attainment of full age.
Breach of Contract
In case of a breach of contract the injured party may go to court to sue for money damages, or for rescission, for injunction, or for specific performance if money damages would not compensate for the breach. Specific performance of a contract is the right by one contracting party to have the other contracting party perform the contract according to the precise terms agreed therein. In many jurisdictions this right can be obtained only where money damages would be insufficient to compensate one of the parties. Under the law of some states a person may sue either for money damages or for specific performance.
How do you break a contract?
If a contract is made, and one side wishes to get out of it, that side cannot do so unilaterally; both sides must agree to ending a contract, no matter what steps one side might take. Here's where the consideration comes in. If I make a deal with you that you will work for me for a month for $50, and you decide somewhere before the month elapses that you don't want to work for me any more and offer to pay me back the $50, that's not good enough (unless there was a clause in our contract specifically allowing in advance that you could do so, which of course would be the obvious agreement of both sides). Even paying me $100 wouldn't be good enough. You must fulfill your contract. An agreement is an agreement. Only if we both agree to nullify the contract can it be nullified. Otherwise, you owe me the original consideration.
There is an enormous -- perhaps predominant -- body of law pertaining to contracts, and it is not an area you want to venture into unless you're a lawyer. Or at least you don't want to start arguing the ins and outs with a debater who probably knows no more about contract law than you do, in front of a judge who possibly does know more than you do. So stick to your guns. A contract is an agreement between two or more parties, and one can reasonably add that the agreement remains in force unless all parties agree otherwise. Let it stop there, and be done with it.
Okay, then. Is a verbal contract worth the paper it's printed on? (That's a Goldwynism, by the way. Samuel Goldwyn also said such memorable things as "Include me out!" and, to James Thurber, that he couldn't produce the script of a certain film because it was "too blood and thirsty." To which Thurber replied that, "I was horror and struck.")
But I digress. The thing about contracts that you have to remember is that an agreement is an agreement no matter what, and that at least in US law, there's an incredible body of protection for agreements regardless of seeming loopholes. If you and I come to a verbal agreement and don't get around to signing a piece of paper, it is still legal and enforceable, providing one side can prove that an agreement was reached -- if it's your word against mine, good luck to either of us, but if there was a witness, the contract most likely will stand. That's a simple contract, as per the encyclopedia legal definition, and that's what we'll be concentrating on here.
THE BIG GUNS, THE SOCIAL CONTRACT ITSELF
So what is the social contract?
The social contract is the tacit agreement among unconnected individuals whereby they come together to create a society. And you have to know something about Hobbes and Locke and Rousseau and Rawls to really understand the social contract, but if you know nothing else, know this: there is no one way of looking at the social contract. There is no one philosophical statement of the s.c. that everyone agrees to. There is no absolute right or wrong in discussing the s.c. (as long as you don't totally make it up -- ignorance of the texts is readily apparent to anyone who isn't ignorant of the texts). And the reason for this is simple: there is no such thing, in fact, as a social contract. At no time did any unconnected individuals come together to create a society, and when they didn't do this they also didn't do it by agreement. The social contract must be understood as a philosophical construct and a philosophical construct only; that is, a way of understanding society and the place of individuals within society. Understanding social contract philosophy becomes a tool, therefore, for understanding the way things are in the world, and the way things ought to be. Ultimately it becomes the study of the rights of individuals within society, and the rights of society granted to it by its individual members.
What happens to individuals without a social contract, that is, before they come together to form a society?
"Whatsoever therefore is consequent to a time of war, where every man is enemy to every man; the same is consequent of the time, wherein men live without other security, than what their own strength, and their own invention shall furnish them withal. In such a condition, there is no place for industry; because the fruit thereof is uncertain; and consequently no culture of the earth; no navigation, nor use of commodities that may be imported by sea; no commodious building; no instruments of moving and removing, such things as require much force, no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish and short."
That is the state of nature according to Thomas Hobbes, author of Leviathan, who believed that the state of nature is equivalent to a state of constant warfare. Everybody has their own stuff, which they have to protect from everyone else, all of whom want to take it from them. It's every man for himself, and devil take the hindmost. If I want something that you have I will bop you over the head to get it rather than work for it myself, and vice versa, and we'll spend most of our time defending ourselves from each other.
John Locke, on the other hand, believed a little differently. Specifically, he defined the state of nature simply as a place of absolute freedom and equality. Rousseau believed quite contrarily in the noble savage. We'll get into some specifics more later.
Anyhow, how do you end a state of war?
Logical, isn't it?
So what is the point of the social contract?
"Government has no other end but the preservation of property." By property Locke means not only territory, but the fruits of your labor on that territory -- your general life and liberty. Hobbes says that the State can do anything it wants to you and remain intrinsically just; Locke says the State can only act correctly as it acts by its members' consent. Hobbes gives power to the State; Locke keeps it with the people. According to Locke, men unite into commonwealths because "in the state of nature there are many things wanting... an established, settled, known law... a known and indifferent judge, with authority to determine all differences according to the established law... [and] power to back and support the sentence." Locke claims you need three things to make up a government: laws, judges to analyze those laws in specific cases and make determinations about them, and power to enforce those determinations. So you need a legislative to create the laws, a judiciary to judge them, and an executive to make sure they're executed. Sound familiar? Does the phrase "checks and balances" ring a bell?
So Locke, while sniffing at Hobbes's state of war, still doesn't find the state of nature all that great a situation. Property disputes will inevitably arise. "If man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest and subject to no body, why will he part with this freedom? ... though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others. For all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsure." So people may be rational, but the greater part are "no strict observers of equity and justice." As a result, men come together via the social contract for their own benefit, to create a straightforward system of enforced laws that they can all abide by for their total benefit as a community. (Just a reminder: "life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed...")
IF YOU CARE TO GO ON... DID ANY OF IT REALLY HAPPEN?
One issue of variance in s.c. philosophy, as noted above, seems to be the nature of the state of nature. What is the point of creating something, even if it's imaginary, called the state of nature?
What Hobbes and Locke and Rousseau, among other s.c. philosophers, are trying to do with their concept of state of nature is explain the situation that exists prior to individuals joining together to form society. They seem to think of this as a literal situation that at one point existed in the history of mankind. I would suggest, as would most present-day historians, that this was not the case. Societies were not the result of conscious decisions made by rational humans; instead, they were the natural evolution of our species. All great apes have very complex societies; human society is noticeably more complex than gorilla society to our eyes, but to the eyes of Hobbes or Locke, to whom gorillas were in fact mythical creatures, the idea that society might be intrinsic to many levels of mammals never crossed their mind. So, they came up with other explanations for human society. The state of nature, to them, really existed, and really was contracted out of, although even they understood that the contract was implicit and not explicit (no papers were signed, in other words). The important thing for us to contemplate is not where the old philosophers thought societies came from, but what they thought individuals gained from society that they otherwise wouldn't have gained if they had never formed a society in the first place. Think about human evolution if there were no benefits from society: regardless of how societies in fact did get formed, they wouldn't have been formed -- or at least not endured -- if they were not beneficial. What Locke claims are the benefits of society -- clearly delineated and enforceable laws that are to everyone's benefit -- is his important message, not how societies were literally formed.
So what might be a better way to contemplate the concept of state of nature?
The reason we postulate the social contract is to create a starting place for defining the roles of governments and individuals in the world at large. What are the responsibilities of governments to its members, and vice versa? As soon as we say the social contract is such and such, we can logically build a social structure, complete with rights and obligations, based on that assumption .
This is where John Rawls comes in. Say what you will about his various ideas regarding justice as fairness (his main thesis), he is interesting to read because he approaches his subject with the realism of a contemporary writer. His understanding of the universe is relatively the same as ours: he lives in our time, with our problems. And too, his philosophy is the end product of much study of the philosophers, like Locke & co., who came before him. So when you read him, the way he explains what he's doing makes a lot more sense than the disciplines of Locke or Rousseau. Rawls discusses his philosophy as a theoretical schematic, not a scientific reality. At times, he looks to his goal, which is to define justice and to explain how a society can best be just to its members, and works back from there, rather than working from a premise such as acceptance of state of nature. So what Rawls proposes is "the original position," which is very much comparable to state of nature, at least in theory. By original position he means, imagine that rational individuals are about to create a society: what sort of decisions would they make about that society if their original position was such that all their decisions would be made for the benefit of the least favored member of that society? Put another way, he's saying: imagine that nothing about society exists. Now, imagine the best way to create the best society, not for you, but for everyone in that society. Your original position is the situation from which you make your judgments, because once you're in the society, you have a position of power or wealth or whatever that you will want to defend or improve -- i.e., you're looking out for yourself. But in the original position, you look out for the least strong, without self-interest. The end result -- the formation of a society for such and such a reason -- is very similar to the social contract, the end result of which is, too, the formation of a society for such and such a reason. By the way, Rawls uses the term veil of ignorance to explain our situation in the original position. The veil of ignorance presupposes that, in the original position, we are ignorant of out own position in society; this way, since we are as likely to be the least favored as much as the most favored, it will be logical for us to make judgments in favor of the least favored, as that could be us.
So, sum up the social contract. What is it, and what is the point of it? And why is it important in L-D debate.
I'll give you my working definition. The social contract is a philosophical construct for understanding the relationship of individuals to society. No more, no less. And it's important in L-D because many of the resolutions we debate are very much designed around the conflicts of the individual versus society, and which is the most important (there's no right answer to that one). And I'll go further and say that L-D is important to real life because these issues are in fact that meat of everyday reality. We are real individuals living in a country with a real government that continually allows or disallows us various rights and privileges. When our government is justified to do this, so be it. When it's not, we should be prepared to fight against it. The Founding Fathers knew that, and did that. They were willing to work hard to understand what government is all about, and they were willing to die for their belief in it (Ben Franklin said, to wit, we must all hang together, otherwise we will all hang separately -- these guys knew what they were in for). And the framers of the constitution, the documentary source of our US law, knew this too. The day citizens no longer have to study and improve society, will be the day ... (fill in your own metaphor; something with pigs or monkeys is usually fun).