Abstract
Social contract theory imagines political societies as resting on a fundamental agreement, adopted at a discrete moment in hypothetical time, that both bound individual persons together into a single polity and set fundamental rules regarding that polity's structure and powers. Written constitutions, adopted at real moments in historical time, dictating governmental structures, bounding governmental powers, and entrenching individual rights, look temptingly like social contracts reified. I argue in this article, however, that something essential is lost in the casual slippage between social contract theory and the practice of constitutionalism. Enacted constitutions do not come into being against the background of a state of nature of isolated individuals; and by this I do not mean to invoke the too-familiar critique of the supposedly decontextualized liberal person, but rather to critique the aspiration to decontextualize the legal and political order. Constitutions are enacted in ongoing societies (whether newly politically sovereign or otherwise) with pre-existing laws and legal systems, political organizations, cultural and linguistic and religious divisions, and norms and mores. Moreover, the practice of constitutionalism is usually, at least in part, a practice of reconciling those legacies to a new political order, of making use of those legacies to build loyalties to or counterbalances against the state (or both). Most constitutions cannot be well-understood by retrospectively characterizing them as the kind of complete and radical break with the past envisioned by social contract theory. Contractarian blinders lead us to look for greater individualism, greater social unity, and greater coherence of principles than can actually be expected of constitutions or constitutionalism. Real constitutional orders appropriate, incorporate, and channel the histories and divisions of the societies they govern. Treating them as if they are social contracts will flatten and distort them, making those engagements with the past or with social plurality appear anomalous and encouraging their minimization. I aim to redirect some of our attention to non-contractarian constitutionalism, or non-contractarian strands within constitutionalism, both as intellectual inheritance and as lived practice. Non-contractarian elements persisted in constitutional theory across the apparent break of the late 1700s, even though these have to some degree been lost sight of more recently; and they have persisted and should persist in constitutional practice.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 71,290
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

Constitutionalism: Philosophical Foundations.Larry Alexander (ed.) - 1998 - Cambridge University Press.
Constitutions and Political Theory.Jan-Erik Lane - 1996 - Manchester University Press.
A Paradox of Sovereignty in Rousseau's Social Contract.Matthew Simpson - 2006 - Journal of Moral Philosophy 3 (1):45-56.
Constitutionalism and the Despatch‐Box Principle.Preston King - 1999 - Critical Review of International Social and Political Philosophy 2 (2):29-58.
The Constitutional Theatre.Olaf Tans - 2002 - Res Publica 8 (3):231-248.

Analytics

Added to PP index
2009-01-28

Total views
17 ( #638,957 of 2,518,735 )

Recent downloads (6 months)
1 ( #408,070 of 2,518,735 )

How can I increase my downloads?

Downloads

My notes