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CONTRACT, COVENANT, CONSTITUTION

  • Loren E. Lomasky (a1)
Abstract
Abstract

Contract is the dominant model for political philosophy's understanding of government grounded on the consent of the governed. However, there are at least five disabilities attached to classical social contract theory: (1) the grounding contract never actually occurred; (2) its provisions are vague and contestable; (3) the stringency of the obligation thereby established is dubious; (4) trans-generational consent is questionable; (5) interpretive methods for giving effect to the contract are ill-specified. By contrast, the biblical story of the covenant Israel embraces at Sinai is shown to be more adequately attentive to each of these five desiderata. The essay then focuses on the U.S. Constitution, arguing that in many ways it is more reflective of covenantal legitimating themes than those of social contract. The result is a promisingly different mode of understanding government by the consent of the governed.

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1 That is so even for Thomas Hobbes, the most absolutist of the contract theorists. Once the state is unable to provide security for its citizens, the obligations they owe to their sovereign are rendered null and void: “The Obligation of Subjects to the Soveraign, is understood to last as long, and no longer, than the power lasteth, by which he is able to protect them. For the right men have by Nature to protect themselves, when none else can protect them, can by no Covenant be relinquished.” Hobbes Thomas, Leviathan, chap. 21, “The Liberty of Subjects,” ed. Tuck Richard (New York: Cambridge University Press, 1991), 153.

2 “[The state of nature is] a state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection.” Locke John, Second Treatise, in Locke , Two Treatises of Government (1689), ed. Laslett Peter (New York: New American Library, 1963), sec. 4.

3A Commonwealth by Acquisition is that, where the Sovereign Power is acquired by Force; And it is acquired by force, when men singly, or many together by plurality of voyces, for fear of death, or bonds, do authorizse all the actions of that Man, or Assembly, that hath their lives and liberty in his Power.” Hobbes, Leviathan, chap. 20, “Of Dominion Paternall, and Despoticall,” 138.

4 Jean-Jacques Rousseau is the conspicuous exception.

5 Those who believe that Somalia's collection of assorted warlords and puppets constitute the government of a state are invited to choose some other example.

6 That is more or less Hobbes's argument. The choice boils down to Sovereignty or Savagery, and so it is clear-cut. One may be luckier or unluckier with the quality of the rulers and institutions one gets, but that is not relevant to regime legitimacy.

7 Locke, for example, declares, “For when any number of Men have, by the consent of every individual, made a Community, they have thereby made that Community one Body, with a Power to Act as one Body, which is only by the will and determination of the majority. For that which acts any Community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the Body should move that way whither the greater force carries it, which is the consent of the majority.” Locke, Second Treatise, sec. 96.

8 Rawls John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).

9 I say “unrelated” because liability for debts or specific performances can extend to spouses or business partners. Note that these relationships are themselves voluntarily assumed.

10 A plausible alternative is that there exists a general moral duty to obey lawful political authorities, but that would render contract theory redundant.

11 Boyd Julian P. and Gaines William H. Jr., eds., The Papers of Thomas Jefferson, vol. 15 (Princeton, NJ: Princeton University Press, 1958), 392–97.

12 Locke, Second Treatise, sec. 6. Locke appends to this negative admonition the further stricture that one must, when one's own preservation is not in question, act (positively) to preserve the rest of mankind.

13 It is, though, the product of the absolute Sovereign of Heaven and Earth. Because the theological postulates on which Locke relies have fallen out of favor in contemporary political philosophy, latter-day Lockeans look elsewhere for moral foundations. For example, Nozick Robert, in Anarchy, State, and Utopia (New York: Basic Books, 1973), sedulously excises any theological appurtenances from his “Lockean” account of political legitimacy.

14 Locke, Second Treatise, sec. 13.

15 Exodus 19:7–8. All scriptural citations are from the New English Bible.

16 The question can legitimately be raised concerning just how voluntary an agreement can be with a deity who has just shown his power by drowning the Egyptian hosts under a wall of water. Indeed, the rabbis themselves raise it in the Babylonian Talmud (Tractate Shabbat 88a), where they play on the wording of Exodus 19:17 so as to read it as “Israel stood under the mountain,” i.e., God suspended the mountain over their heads and then “offered” them the covenant.

17 Strictly, the covenantal terms are not presented as being revealed all at once at Sinai but are instead handed down throughout Israel's extended sojourn in the wilderness. “Covenant at Sinai” is a synecdoche. I owe this reminder to Noah Greenfield.

18 The origin of the tradition is the Babylonian Talmud (Makkot 23b), where it is disputed. From this emerges an extensive literature to which Maimonides is perhaps the most definitive contributor. I owe this observation to Noah Greenfield.

19 Subsequent narratives of scripture indicate that Israel's success in employing the criteria is decidedly mixed.

20 Deuteronomy 17:14–20. Modern biblical scholarship explains this remarkable foresight by suggesting that Deuteronomy reads back into the time in the desert various practices and problems that emerge much later in the history of the nation.

21 I concede that this conceptual distinction is anachronistic, but I use it to underscore the avowedly political aspirations of the Hebrew scriptures.

22 That is not to maintain that in every instance where p is commanded, there exists a balance of reasons on behalf of p rather than any alternative and, furthermore, that is why God commands p. For example, there may be no rationale whatsoever for disallowing pork chops rather than lamb chops. Perhaps, though, it is a useful discipline to have some food or other off-limits, and so the covenantal precepts include a food prohibition that is in itself arbitrary. If so, it is the prohibition that makes eating pork bad and not vice versa. The underlying theological jurisprudence of Torah does not provide a univocal answer to the Euthyphro question. Maimonides' Guide for the Perplexed is not the last word on the logic of that jurisprudence, but it is a necessary word.

23 A representative passage is Psalms 19:7–10: “The law of the LORD is perfect and revives the soul. The LORD's instruction never fails, and makes the simple wise. The precepts of the LORD are right and rejoice the heart. The commandment of the LORD shines clear and gives light to the eyes. The fear of the LORD is pure and abides for ever. The LORD's decrees are true and righteous every one, more to be desired than gold, pure gold in plenty, sweeter than syrup or honey from the comb.” No late-night infomercial endorses its product so fulsomely.

24 The nature and extent of interconnectedness in scripture between individual and communal responsibility pose difficult interpretive problems. In the space of just one chapter God declares to Moses, “I have considered this people, and I see that they are a stubborn people. Now let me alone to vent my anger upon them, so that I may put an end to them,” and then, “It is the man who has sinned against me that I will blot out from my book” (Exodus 32:9–10; 33).

25 The paradigmatic example is conversion to Christianity.

26 An interesting recent examination of the advantages of opt-out over opt-in rules is Thaler Richard and Sunstein Cass, Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven, CT: Yale University Press, 2008).

27 The ceremonial celebration of Bar Mitzvah is of relatively late origin, sometime in the Middle Ages. The female equivalent, Bat Mitzvah, is much later still. Because these rites only underscore a change in legal status that occurs independently of the ceremony, they are of no relevance to association membership and are only peripherally relevant to the communication of its significance. See Marcus Ivan G., The Jewish Life Cycle: Rites of Passage from Biblical to Modern Times (Seattle: University of Washington Press, 2004), esp. 84–85 and 106.

28 To ensure that the requirement is interpreted in the broadest possible way such that no affected party will be able to claim lack of notification, the text goes on to specify: “Assemble the people, men, women, and dependants, together with the aliens who live in your settlements, so that they may listen and learn to fear the LORD your God and observe all these laws with care. Their children, too, who do not know them, shall hear them, and learn to fear the LORD your God” (Deuteronomy 31:12–13).

29 Joshua 24:25–28. The text is unclear as to whether the covenant there enacted is identical to the Mosaic one or is revised by Joshua.

30 The rupture of associational ties paradigmatic for liberalism (insofar as it speaks to the priority of the individual over the community of origin) is the so-called excommunication of Spinoza from the Amsterdam Jewish community. I say “so-called” because it is unclear from the record who dumped whom.

31 “In those days there was no king in Israel and every man did what was right in his own eyes” (Judges 21:25). There is no libertarian jubilation in the pronouncement.

32 For example: “Add whole-offerings to sacrifices and eat the flesh if you will. But when I brought your forefathers out of Egypt, I gave them no commands about whole offerings and sacrifice; I said not a word about them” (Jeremiah 7:21–22).

33 Australia's constitution would be a good candidate for analysis in this framework, especially because it was largely modeled on the U.S. Constitution, constitutes a new commonwealth, and has had a successful run.

34 Not only chronologically is it maximally distant from the Mayflower Compact on one end and Billy Graham's revival meetings on the other.

35 It must be conceded that this people was almost entirely white, male, and propertied. Is that a blot on the popular authority claimed for the document? Undoubtedly. But rather than arbitrary exclusion undermining the normative status of the Constitution, over time the constitutional logic undermined policies of exclusion.

36 Whether that numeration is strictly accurate depends on criteria for individuation of constitutions: When is it the old constitution substantially modified, and when is it, instead, a genuinely new framework? However one comes down on constitutional metaphysics, the variability of constitutions is undeniable. See Maddex Robert L., Constitutions of the World, 3d ed. (Washington, DC: CQ Press, 2008); and Wolfrum Rudiger and Grote Rainer, eds., Constitutions of the World (New York: Oxford University Press, 2008).

37 For the rebellion of Korah, see Numbers 16.

38 I am not aware of a revisionary movement to eulogize George Washington as “Parent of his Country” but would not be surprised by its emergence.

39 Redemption of a nation by blood has at most a marginal role in Israel's covenant but is central to Christianity's. At the risk of over-theologizing, Washington plays the role of Moses/Joshua in the American mythology, while the role of Jesus is taken by Lincoln (and reprised in a fashion by the Kennedys and Martin Luther King).

40 This discussion has focused exclusively on the Constitution, but a comprehensive examination of the country's testamentary inheritance would offer equal attention to the Declaration of Independence.

41 Levinson Sanford, Constitutional Faith (Princeton, NJ: Princeton University Press, 1988).

I am indebted to Stewart Braun, Noah Greenfield, and Louis Lomasky for critiques of a previous draft. They are not, of course, responsible for errors of fact or interpretation offered herein. Ellen Paul's nonpareil editorial services have once again gently guided me across the compositional Red Sea and into the Promised Land of a finished manuscript. To her I owe thanks and probably also a few sets of tennis.

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Social Philosophy and Policy
  • ISSN: 0265-0525
  • EISSN: 1471-6437
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