The Social Foundations of Law

by Martha Albertson Fineman

The first few words of the Constitution of the United States capture the idea of the social contract-the legitimacy of government is based on the consent of the people.’ The renewed interest in social contract theory since the 1970s may have been generated by the public diversity of viewpoints and perspectives that began to emerge at the time and that challenged the very idea of “we the people.”
     In the sprawling, secular, contemporary American context, appeals to social cohesion based on religious principles or on shared geographic boundaries are
of limited usefulness. Voluntary participation in societal institutions may generate identification with a group, but this too is limited. As I have noted earlier, “A national identity can be based on acceptance of a shared or common language, culture, or history, but in pluralistic and diverse societies citizens often are fragmented along exactly these lines.” As a result, quite often a unifying myth is fostered and perpetuated as a way to build unity where division might otherwise prevail.

The idea that societies produce foundational myths as a way to instill national identity and loyalty provides a way to begin to understand how some lines of social cohesion are forged and transmitted over time. One way to conceive of national community is through the establishment and transmission of myths or fundamental principles addressing the way society is ordered and the desirable traits of its citizens. Set out in mythic terms and reiterated through the generations, these can also be presented as coherent and binding principles-more than just aspirational, they can be asserted as symbolizing the existence of a social compact or contract embodying consensus and community among those who would otherwise remain strangers.


     The social contract is a legal or theoretical fiction-a metaphoric or symbolic idea connoting a sense of connectedness and unity in purpose and belief among members of a society. Such members are envisioned as being united by agreement, in the same way that contracts between individuals reflect binding relationships around agreed upon conditions. Contract is an appealing metaphor with which to consider social and political arrangements. It imagines autonomous adults-capable and equal individuals–engaged in a process employing wit, knowledge, and skill, rightly held to the terms they hash out in the process.
     In fact, in the modern context, the concept of contract is one of the primary devices for understanding individual and institutional relationships. Contract is the term we apply to all sorts of relationships, be they implied or formally established. Contract is viewed as displacing older, less democratic ways of understanding relationships, such as status and hierarchy, which impose structured relationships that are usually beyond individual alteration. The underlying and essential elements in a contractual relationship are (1) that two or more autonomous individuals with capacity (2) voluntarily agree (consent) to be bound by (3) some mutually bargained for benefit or trade (exchange).  This process of agreement and exchange provides the basis for establishing a contractual (reciprocal) legal relationship between individuals.
     The actual reduction of agreements and understandings to formal, written contracts is the way in which many private relationships are ordered in the realm of the market and related arenas.  Formal contracts in business and commercial transactions are typically the product of actual bargaining encounters that are reduced to writing and signed, often in the presence of witnesses. By contrast, average people in their roles as consumers or tenants routinely sign standard form contracts, which are sometimes referred to as “contracts of adhesion.” These contracts have terms that are set out by only one party and are imposed in a take-it-or-leave-it manner. These sorts of contracts may be regulated by the government or through legal doctrines that make certain terms unenforceable in an effort to protect the consumer from overreaching by others or gross unfairness. These exceptions aside, even with standard form contracts, the process is generally thought to be appropriately outside of government supervision and restriction. The ideas of individual autonomy and freedom to contract mandate that people be justly held to the bargains they have struck.
     The metaphor of contract in political theory operates on several levels. It may be used to talk about the imposition of coercive rules (law). In this regard, the social contract is articulated as a justification for considering individual citizens bound by established societal norms and conventions and for justifying state sanctioning of deviations.’  Looking at lawmaking as an occasion when we articulate specific terms of the social contract should mean that this process places a heavy responsibility on the elected representatives of average citizens. They must ensure that their deliberations retain integrity with regard to the spirit of the overall social contract, as it is understood by those whom it binds.
     As a rhetorical and ideological construct, the social contract functions like a foundational myth, except that its terms are explicitly directive, rather than merely inspirational. The idea that we, as individuals, are parties to the social contract carries with it the threat that our breach of its terms may result in the just application of sanctions. The social contract is the foundation for the application of law. As such, it is one of the ways in which we might make sense of the existing institutional arrangements in which rights and responsibilities are generated and imposed by our society. In this way, the idea of a social contract can be seen as an informal, intuitively understood ordering mechanism whereby our own actions, and the actions of others, may be judged. The perceived mandates of the social contract set up reciprocal and integrally related expectations and aspirations for individuals, institutions, and the state.”
Fineman, Martha Albertson, The Social Foundations of Law (2005). Emory Law Journal, Vol. 54, No. 201, 2005; Emory Legal Studies Research Paper No. 12-205. Available at SSRN:

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