The Death of the Contract

It’s no great secret that on a political scale, I land left of center. Part of this blog is about that journey, both my own and the possibility that others may make the same journey through the process of examining previously unexamined places in themselves as well as evaluating modern life — often politically — from new standpoints and from within new theoretical frameworks.

Today I’m shuffling the cards and writing about something I’m actually relatively conservative about. Neither political persuasion quite has this right, but the line of thinking functions more as a criticism of good liberalism than it does traditional conservatism. It’s a ubiquitous feature of modern life that as Americans we take for granted, that is infused into the cultural and political heritage of Enlightenment thinking.

We’re often oblivious to the forces and systems that govern our lives. As I’ve noted previously, modernism and postmodernism have served important, though not ultimate, purposes in exposing these forces, such as ownership of means of production (Marx) or the unconscious mind (Freud). When we finally discover these forces, we often do so with the sublime realization that we really did know they were there all along, hiding within some kind of metaphor.

To use an example, imagine you go to a park with a large grassy field. Parks often have paved walkways or dirt paths that assist in navigating the park’s space. It might be quicker, in fact it usually is quicker, to take a shortcut through the grass. Why do we walk on pathways instead?  You might suggest that it is to keep your shoes clean, not to trample the plants, or not to interfere with others playing in the grass. Or perhaps the physical space of the park is asserting its power over you. As you cross the park with your mind on other things, you are being funneled by the layout of the park or by your own sense of social propriety in relation to the park. The park is influencing your behavior, and you are none the wiser.

You might choose to leave the pathway and cross the grass, as some do. There are many wonderful reasons to do so. You want to feel a small sense of liberation, you want to feel the grass beneath your feet, or perhaps you merely take it because the route is more direct. But notice that it is always in this order: you are first on the path, then you depart from it. Seldom does a person cross this space without acknowledging the path at all. In rejecting the path you acknowledge the force and primacy of its presence.

One of these systems that governs our lives is the idea of freedom as it comes to us through modern liberal democracy. Miroslav Volf sums up this particular notion of freedom (one among others, he notes) succinctly in Exclusion and Embrace:

“With the American and French revolutions the idea of freedom emerged as the pillar of modern liberal democracies. All people are equal and all are free to pursue their interests and develop their personalities in their own way, provided they respect the same freedom in others. Such freedom is inalienable, it is not conferred by others and cannot be taken away by them. Rather, if the exercise of freedom does not interfere with the freedom of other citizens, freedom must be respected, even if society at large finds the pursuits of its individuals members repugnant. Freedom is the most sacred good. When this inalienable freedom is either denied by a totalitarian state or suppressed by a dominant culture we speak of oppression. When the cage that holds people back from doing and being what they prefer is dismantled, we speak of liberation. That is at least a rough sketch of how many Westerners (and an increasing number of nonWesterners) think of oppression and liberation.”

The idea here is that by enthroning this vision of freedom, we can live peacefully and prosperously as a society. There’s a great argument to be made for it; relatively speaking, we’re living peacefully and prosperously. Even on its face it falls short however: what happens, for example, when freedoms do interfere with one another? How do we compromise between conservatives who believe that open-minded sexuality poisons the integrity of their part of society and liberals who believe that gun rights threaten the physical safety of theirs?

How can this vision of oppression and liberation, in other words, navigate the waters between two sea monsters who see one another as as mutually oppressive while respectively fighting for their own liberties?

Part of understanding this point of breakage is the metaphor through which we understand modern liberal democracy: the contract. You can hear it run right through Volf’s definition. We mutually agree not to disturb one another, but when that agreement is disturbed the agreement ends. My rights have been alienated, thus (the logic goes) the contract ends and I may now alienate the rights of the other.

Enlightenment thinker Thomas Hobbes described this process as a Social Contract called The Leviathan. People come together and mutually cede some of their rights to give authority to a state that through its power may form the wills of new citizens and insure peace at home and abroad.

Hobbes’ theory is however not a glamorous vision of humanity or its government. It presupposes firstly that people are “solitary, poor, nasty, brutish and short,” and secondly then supposes that the Leviathan created to govern them must do so through the “terror of power.”

I’ve illustrated the metaphor of “the contract” between disparate social groups and between the government and the governed. Let’s look at one more example on a more personal scale: the marriage contract. This reduces the exchange of “I do” to the signed certificate among witnesses: “to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part—or until one of us does not uphold their vow.”

We realize at once the reality of this conception of marriage as well as its perversity. The example is a good one because it also exposes the limits of a contract. Even if we were to view the intimate bond of marriage from the standpoint of a contract, we are faced with a big problem, one that Volf calls the irony of a “successful divorce.” Though a successful divorce may entail the clean separation of two who have become one, it is impossible to make good the losses entailed by two so mutually intertwined parties. There is no such thing as “successful divorce” — there is only divorce, a realization that exposes the reality of human relationships and their intimate nature.

The contract is a ubiquitous metaphor for modern life which, as Volf says, is essentially a “business of individual self-interest.” He goes on:

“Plagued by fear of harm and driven by desire for comfort, individuals enter into contracts that favor them with ‘security and gain.'”

Yet we sense that the ability of the contract to govern social and political relationships is stretched to the limit, and we’re right. In the book Moral Sentiments and Material Interests, summarized in a 3-day lecture series at Yale (Part 1, Part 2, Part 3), the economist Samuel Bowles presents a body of tremendous work, one important correlative of which severely challenges what he calls “complete contracts.”

The idea is relatively simple. We approach the design of laws with the premise, like Thomas Hobbes (David Hume, Machiavelli, Adam Smith, Charles Mandeville, and so on), that people are fundamentally self-interested. A good law, he goes on to quote Jeremy Bentham, is one that is in a person’s private self-regarding best interest to observe rather than being in their interest of behaving virtuously or being committed to the best interests of one another.

The problem is that Bowles’ research shows that both the principle of self-interest is false (people do not behave self-interestedly in economic experiments) and that rules, laws, and so forth that treat people as inherently self-interested tend to “crowd out” the desired behavior. When we rely on citizens to be virtuous, we find that they behave virtuously. When we treat them as self-interested, in response they behave selfishly.

A complete contract then is as specific and explicit as possible, detailing particularly what punishment is to happen in the case that the contract is breached. This might be a law as much as it may be a business deal. Paradoxically, delineating provisions for the breach of a contract exponentially increases the chance of a contract being breached. By including a provision for the scenario in which one party is prone to behave selfishly, we include in the contract an exit penalty that is seen not as a punishment by a person prone to self-interest but rather as a price tag.

Miroslav Volf sums this argument up nicely from a theological standpoint by outlining three ways that contracts misconstrue human life:

  1. Humans are socially situated in relationships that extend beyond the surface of the self. Humans are not “autonomous individuals” that only unite to advance their self-interests.
  2.  We are more often bound by “common destiny” than by “mutual utility.” Mutual commitments often cannot be limited by terms and conditions specified in advance:
  3. Human relationships are not strictly reciprocal. Our obligations to our neighbors are not invalidated by our neighbors failure to fulfill their obligations.

So the contract is dead. We recognize its present social utility while recognizing simultaneously that it can only continue to produce the bitter fruit of social disunity and political failure that we experience presently. What alternative could we possibly have?

Suffice to say that I believe the answer lies between the two books I’ve already mentioned, Moral Sentiments and Material Interests and Exclusion and Embrace, the argument for which solution I will have to present another time. But I will give some concluding thoughts.

I have to be careful before I go into this part. I do not mean to disarm the distinction between oppressors and the oppressed. To do so is perverse and makes a mockery of suffering. The Bible is indisputably on the side of the widow, the orphan, the slave, the exploited, the underdog, the disenfranchised, the victim, the excluded.

The Bible is also, however, not so much in the business of demanding rights as it is in laying down of rights. This happens on a personal level: in other words, this truth does not exist for us to point at others and say “you have gotten enough.” It is rather for us to learn the self-donating love of the crucified god.

Notice that self-donation is the true opposite of the self-interest of the contract. As a virtue, it is scandalous. As Volf says,

“The ultimate scandal of the cross is the all too frequent failure of self-donation to bear positive fruit; you give yourself for the other—and violence does not stop but destroys you; you sacrifice your life—and stabilize the power of the perpetrator.”

Yet the model of scripture is undeniable. When God makes the covenant with Abraham in Genesis 15, Abraham cleaves in half the sacrificial animals before God puts him to sleep and passes through the animals alone, a unique ritual in which God pledges that he will bear the burden of the covenant and that he alone would rather die than break the covenant. At the foot of the cross we find that again God has done something profound: though he has upheld his side of the covenant, he has still submitted himself to death on behalf of his human partner in the broken covenant. Volf writes:

“In a world of clashing perspectives and strenuous self-justifications, of crumbly commitments and strong animosities, covenants are kept and renewed because those who, from their perspective, have not broken the covenant are willing to do the hard work of repairing it. Such work is self-sacrificial, something of the individual or communal self dies performing it.”

Let us then submit to one another in self-donating love, laying down our rights in order to fight for the rights of others. We’ll find that the contract is dead—and that we’ve instead birthed a covenant.

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