Social Laws, Part 10

Durkheim vehemently disagreed with Spencer and other classical liberals that the pursuit of individual self‐​interest will result in a spontaneous social order. He wrote:

Durkheim also insisted, contrary to Spencer, that the legal system of a society dominated by voluntary contractual agreements cannot rest on “negative” regulations alone. Such a thing is quite impossible, according to Durkheim. Indeed, the more a society becomes permeated with contractual agreements, the more positive regulations will be required in that society.

A legal system, according to Durkheim, will specify provisions for a valid contract that even the contracting parties cannot dispense with by mutual consent. For example, “It denies any binding power to undertakings entered into by one incapacitated mentally…or whose reasons are illegal, or made by a person who has no right to sell, or relating to a thing that cannot be sold.” Moreover, a legal system, not the contracting parties, will determine the formal conditions of a valid contract—so here again it is “society” that imposes rules that have not been determined or agreed upon by the contracting parties. An important function of contract law is “to determine the legal consequences” of contracts with effects that could not be foreseen or avoided beforehand. Those legal consequences, which are mandatory, are determined not by individuals but by “society and tradition,” as manifested in law. Durkheim concluded: “The law of contract therefore exercises over us a regulatory action of the utmost importance, since it determines in advance what we should do and what we can demand.”

Durkheim, to repeat, sought to establish two points. First, self‐​interest alone is insufficient to sustain a society of contract, or a dependable social order of any kind, since the conflicting interests of individuals will frequently cause them to violate their agreements. A more stable moral foundation is required, a foundation rooted in moral norms that no individual can avoid or change. Second, contrary to Spencer, a free society based on voluntary contractual relationships cannot sustain itself solely by “negative” regulations and laws that merely protect the rights of individuals. Rather, a government must also enforce “positive” regulations relating to contracts, in the manner described above. I will discuss the second point in the remainder of this essay. Discussion of the first point must await my next essay.

We should distinguish, as Durkheim did not, informal agreements that are not legally enforceable from those formal agreements that are legally binding and so may be coercively enforced. We also should distinguish, as Durkheim did not, the preconditions of a legal contract from the obligations incurred after those conditions are met.

When Herbert Spencer and other classical liberals spoke of a society based on contract, they were not necessarily referring to legally binding agreements. Rather, a society of contract was viewed as a society in which individuals can engage in noninvasive voluntary interaction, based on mutual consent, without any coercive interference from government. The term “contract,” in this tradition, was a generic label for all such voluntary associations; it did not refer only to formal, legally binding agreements. And when Spencer argued that a government in a society of contract should be restricted to “negative” functions, he meant that the government of a free society should restrict its domestic activities to protecting the right of individuals to engage in voluntary interactions with other individuals—agreements that permit people to pursue their own goals as they see fit, rather than having their actions and goals coercively dictated by government.

Problems of the sort listed by Durkheim will arise even with informal agreements. In some cases there may be a blurred line between mutual consent and an association in which one party was subjected to unjust duress. Another problem—one more among many—is what external signs must be given to signal consent. (We find this problem in contemporary discussions of “date rape.”) It is the job of a legal system and courts of law to settle these and similar controversies. Given the complexity of social relationships, no general rule can possibly anticipate every conceivable problem that may arise in those gray areas on the border between voluntary and coercive associations. Such matters require the good faith application of general rules to particular cases. They require, in other words, judgments, specifically, legal judgments in which the pros and cons are assessed and a final decision is rendered by an impartial arbiter guided by abstract rules.

In formal contracts, Durkheim was obviously correct when he maintained that a legal system will ultimately determine which agreements are enforceable and which are not. Spencer would have agreed with this claim, but he would have insisted that individuals, not tradition or some vague entity called “society,” will determine the particulars. We may say until we are blue in the face that “society” determines this or determines that, but in the final analysis only individual human beings, not society, can make decisions and undertake actions. We may not know which individuals in the distant past established a precedent or embedded a custom or convention more deeply into the social fabric, but we do know that such individuals existed, even if we know nothing else about them. There was never a being called “society” that stalked the land and made things happen.

In addition, the particular identities of those anonymous individuals are usually irrelevant to our understanding of social phenomena, which is why we sometimes speak of “society” instead of mentioning specific people. “Society” typically denotes those anonymous others that we know are (or were) acting purposefully to achieve goals, but whose concrete identities we do not need to know in order to understand the social outcomes of their actions.

As I explained in a previous essay, what is usually essential to our understanding of social phenomena is knowledge of the social or political roles played by individuals, not the particular and unique attributes of those individuals. When we say that the police enforce drug laws, we do not mean that some weird entity called “the police” goes around arresting people. Rather, we mean that anonymous individuals acting in the legally defined role of police officers enforce drug laws. And in calling those people “anonymous,” we mean more than that their identities (in many cases) are unknown to us; we also and more importantly mean that their personal characteristics are irrelevant to the point we wish to make. The individual characteristics of those officers are immaterial to our generalization—we don’t care about the marital status or hobbies of specific policemen, for example—so we employ the abstraction “police” instead of enumerating and describing the officers individually. Indeed, the latter process would actually obscure the relevant point, namely, that in their role as police officers certain people have the legal authority to arrest drug consumers, a privilege that most people lack. What matters here is the legal authorization per se, not the individuals vested with that authority, for it is the legal authorization that defines what we mean by “policeman.” The same reasoning obviously applies to broader abstractions, such as “society” and “state.”

What are we to make of Durkheim’s claim that the role of law in defining what does and does not qualify as a valid contract constitutes a type of “positive” regulation of the sort that Spencer opposed? Well, since Spencer never denied that a legal system should determine the preconditions of a formal contract, this controversy reduces to a verbal quibble. But we should keep in mind the difference between defining a formal contract and enforcing that contract after the preconditions (as established by the legal definition) have been satisfied. A legal system may stipulate that contracts formed with young children are not enforceable; precious few if any liberal individualists would protest this proviso. Is this kind of stipulation “positive” or “negative” in character? Whatever term we may wish to use, I cannot see how it makes any substantive difference. It certainly doesn’t affect the points Spencer wished to make about a society of contract and the proper role of government in a free society.