exchanges
Modern philosophy has grown heartily fed up with the individual-and-his-contract, and with good reason. But of course he won't go away, because markets, trade, commerce, buying and selling, haven't gone away.Our individual here in other words is a figure of speech, a transgression of the economic genre upon the moral one.
Our abstract individual,our individual-with-his-contract is of course alive and well despite the fact that he has long been played to death by philosophy. The critique is a familiar one: these universals, the individual in the contract, the subject of rights, the legal subject, the juristic person etc. are,after all, particular, "historical",time-bound.
Accordingly, philosophy (or perhaps one should say "creative philosophy") has gone off to create new and bold concepts - leaving drab,staid,legal philosophy way behind, trapped and stuck as it is in contract-talk
On the other hand,legal thinking has had to create concepts too, and in its case it has had to try and make them work - a test philosophy escapes!
The English moral philosopher,Mary Midgley, has written
“The cluster of ideas that centres on the image of a contract has been very expansive, generating powerful ideas of rights, autonomy, interests, competition, rationality as self-interest, and so forth. It has strongly influenced our whole idea of what an individual is - again something that we take for granted and rarely think to alter when we run into trouble.”
She goes on: “contract-talk portrays people as essentially distinct beings - billiard balls on the table - each free to make just what contracts it chooses and to abstain from all others…Unfortunately, personal relations, such as friendship, do normally have to be relied upon to last, because they involve some real joining together of the parties. Friends share their lives; they are no longer totally separate entities.”
And furthermore:“This isolation of the individual is seriously distorting, not just for educational purposes, but for wider moral and political ones, and it bears upon our whole conception of personal identity. The kind of abstract intellectual being, who needs a social contract to show him whether he should choose to belong to the human race, has been a useful fiction for many practical purposes, but we are now reaching the limits of his usefulness and becoming a good deal inconvenienced by his faults.” (M.Midgley, Utopias, Dolphins and Computers: Problems of Philosophical Plumbing. Routledge 1996. pps. 7-8,42)
Mary Midgley is by no means the only critic of contract-talk. One might even say that such an attitude is de rigeur amongst our philosophically inclined thinkers.Roy Bhaskar, for example, rants and rails at “the impoverished, isomorphic, asocial atoms or choice machines of individualist orthodoxy.” (R.Bhaskar, Reclaiming Reality, Verso 1989. P.7.)And Zygmut Bauman, in similar vein,informs us: “The gist of the contract is that the duties of the partners (sic) have been negotiated, defined and agreed before any action is undertaken. What the partners are expected to do, what they may be called to do, what they may be reprimandeed for not doing - all this is spelled out and circumscribed in advance. It is required of both partners - no less, but no more either - that they fulfil their respective ‘contractual obligations’…Partners are not persons, not individuals. Their obligations could be performed by others, if need be; if it is I who does it, it is merely because I signed the contract. I am no more than a legal construct, patched together from the paragraphs of the agreement. In their impersonal contractual capacity, partners need not be, and usually are not, interested in each other’s welfare…The entering (into contract) has an explicit purpose; and that purpose is purely selfish.” (Z.Bauman, Postmodern Ethics. Blackwell 1993. pps.8-9.)
Our contemporary philosophical writers clearly take objection to the reciprocal figure in a legal contract!
Law and Individuality (points for the class of jurisprudence)
The persistent theme to so much of any critical stance with respect to law turns on its abstraction, its depersonalisation of the subject and filtering of all that is legally irrelevant. The view then comes to prevail of law as a structure in some sort of opposition with human individuality, with all the many injustices which might and do arise here providing ample argumentative support. Yet nothing could exist of law if it were in fact the expulsion of individuality.
Case law is concerned all the time with acts of and by individuals, so individuality rather than being denied or expelled is naturally presumed and is constantly being dealt with in the law’s action upon it .
Individuality is not so much banished from the law`s scheme of things as perpetually “worked over”. Apart from this it serves well to note that the hallowed individual appearing as such a central concern in critical and humanitarian declamation is already itself an abstraction.
Certainly in formal legal language the individual comes forward merely as a cipher, but the actors in any court-room drama are nevertheless individuals at the same time. And one might be forgiven for thinking that a legal system which constructs its own special notion of personality, citizen, domicile, contracting party, accident victim, accused or whatever, in its application may very well give to people something in the way of an addition to their actual individuality . Whether they wish for such a thing or not is another matter.
The tension between abstraction and individuation is all part of life`s rich tapestry and is not even particular to law and legal processes. Philosophy is well familiar with it. Gaius and being Roman are not the same. Nor are Jack and being-a-party-to-a-contract. There is a problem here in logic(maybe), but not in life.
In social life individuals are branded by all manner of abstractions and part of the process of individuation is how we deal with them. We can only get so far, however, with these categories of abstraction and individuation,of universal and particular, useful though they may be in portraying a general picture of things - and it has been remarked before how universal categories of this kind are perhaps one of humanities’ lazier inventions.
The Rule of Law (points for the class of jurisprudence)
The rule of law within European legal culture means in effect the rule of private law. The extent to which a society comes to submit to this rule of law is also a measure in some sense of its potential for anarchy because law of this type is by no means the only, or in some societies even the most significant, feature of social order. As Professor Rene David has shown in his seminal work comparing major world legal systems, the quest for order in social relationships may be far more strongly supported by dint of custom or tradition than anything recognisable as law per se .
Traditionally it is deeply shameful for a Japanese person to become involved even in civil proceedings. It would be a mark of failure. The same is true of Chinese tradition, whereas our masses of civil litigation would imply quite a different sort of attitude. The Confucian virtue of “jen”, meaning compassion, human-heartedness, though achieved in relation with others, does not need to come forward as law. There is here a traditional antipathy to both law and logic, the latter in particular being an abuse upon the subtleties of nature. An introduction to Japanese law (Noda 1966) puts it very bluntly: “To an honourable Japanese the law is something that is undesirable, even detestable, something to keep as far away from as possible. To never use the law, or be involved with the law, is the normal hope...In a word, Japanese do not like law.”
The preponderance of the rule of law within European legal culture may well therefore be seen as making up for something lacking in our social fabric where relationships appear to be bound by law and little else. How far the family has been replaced by the individual as the unit of moral currency must clearly be of great significance in this connection. Certainly from the standpoint of many other cultures besides our own the reciprocal creature at the centre of our rule of law would appear morally insubstantial.
Europe and America are, needless to say, litigious societies par excellence, with rule not only of law but of lawyers. Laws intrude upon us in our social behaviour at every twist and turn, and though we too might not “like it”, our history and political economy have demanded it and prevailed. We are ordered as abstract legal personae and our laws are articulated through private law construction, through the reconciliation of individual claims with legal provisions of one kind and another. The very process of legal abstraction and the corresponding subsumption of persons under legal rules is testament to the social fact of a private law archetype, where market reciprocity underpins the unity of positive law. Legal unity is given in greatest part by this relation of reciprocity - we find it both historically and conceptually at the opening of private law, and where reciprocal ground proves impossible to find, private law encounters its vanishing point.
It might well be said, if it is the case that our positive laws are based upon the commercial morality of reciprocity, what of it? Isn’t that fair enough? It is arduous enough at the best of times to ensure this principle operates at the practical level, to obtain “corrective” justice, as it is sometimes called.