The Social Contract, Consensus, and Foucault

From the late 17th to early 18th centuries, people realized that social order is possible without complete harmony, conformity, or blind obedience to authority. Individuals who violate social norms do not have to be tortured, executed, or banished. As Foucault documented (in Discipline and Punish), beginning the last few decades of the 18th century the more brutal forms of punishment, which targeted the body, were replaced by “corrective” practices targeting the soul. The soul became a target of reform or reshaping. Rather than brutalizing the human body, rights (to life, liberty, and property) were taken away. The 1830s was probably the peak of the zeal for social reform.

Rather than staging public tortures and executions, the law can deal with norm violations in a routine, bureaucratic way through “painless” execution, imprisonment or fines. Execution takes away the right to life. Imprisonment takes away the liberty, and fines take away some of one’s property/money.

Thus, the concept of social unity was replaced, for a while, with the theory of the social contract. If a person wishes to exercise their rights to life, liberty, and property–or to live freely in society–one must respect the rights of others to life, liberty, and property. This principle was, in turn, found to be contradictory because Hobbes left a special position for the Sovereign–all of the Sovereign’s subjects are equal but they must submit to the authority of the Sovereign, who represents God on earth. Additionally, “the problem with the social contract is that a “contract already presupposed an established social order” (Luhmann, Intro 234). Due to this contradiction, social contract theory was supplanted by a theory of consensus (shared norms and values hold society together), which Hobbes had rejected even if it wasn’t yet considered a theory.

In Hobbes’ view, [the] mechanistic quality of human psychology implies the subjective nature of normative claims. ‘Love’ and ‘hate’, for instance, are just words we use to describe the things we are drawn to and repelled by, respectively. So, too, the terms ‘good’ and ‘bad’ have no meaning other than to describe our appetites and aversions. Moral terms do not, therefore, describe some objective state of affairs, but are rather reflections of individual tastes and preferences.

Internet Encyclopedia of Philosophy. https://www.iep.utm.edu/soc-cont/#SH2a

Later still, the consensus theory was supplanted by theories of political legitimacy, or theories on the legitimate use of power.

According to Luhmann,

If it is no longer obvious that society by its nature comprises actual human beings whose solidarity is prescribed as ordinata concordia [well-ordered concord] and in particular as ordinata caritas [well-ordered love], a theory of consensus can step in with a substitute concept. In the seventeenth and eighteenth centuries, this led to the resuscitation and radicalization of the theory of social contract. . . . However, this theory soon had to be abandoned. It was a legally circular construction and thus unable to explain the absolute and permanent binding force of the contract. . . . It was superseded in the nineteenth century by [new?] consensus theories and by a notion of solidarity and integration on the basis of consensus. Finally, in still weaker dilution, “legitimacy” was demanded for institutions able to impose order even in the absence of consensus, and therefore against resistance. Thus, with Emile Durkheim and Max Weber, sociology begins.


(Theory of Society, vol 1, p. 8)

If we still insist on maintaining the consensus model,

against our better judgment, we would then have to deny that social conflicts, dissent, and deviant behavior are part of society, or make do with the assertion that they, too, presuppose some sort of consensus (for example, about the offensive value of certain abuse).

. . .

Another consequence of the assumption that individuals materialize society through their behavior lies in the hypothesis that structural problems of society (e.g., excessive differentiation without sufficient integration, or contradictions in the structures and behavioral expectations of society) manifest themselves in deviant individual behavior and can be empirically ascertained in such behavior. The classical monograph on the subject is Durkheim’s study on suicide. But family instability, crime, drug taking, or withdrawal from social engagement could also be mentioned. . . .

All this should give sociology cause to doubt whether consensual integration is of any constitutive importance for a society at all. After all, it would suffice to assume that, as communication proceeds, it generates identities, references, eigenvalues, objects—whatever the individual human being experiences when confronted by it.

. . .


(Theory of Society, vol 1, p. 8-9)

. . .

The problem of conflict is the excessive integration of subsystems, which mobilize more and more resources for the dispute, withdrawing them from other fields; and the problem of a complex society is then to ensure sufficient disintegration.


(Theory of Society, vol 2, p. 6-7)

Societal subsystems can become too closely connected or excessively integrated. This is the opposite of indifference, and indifference, according to Simmel, means there can be no conflict.

Excessive integration of systems means that if one system is destabilized the closely integrated system is likely to be destabilized as well. For example, if the decisions of one organization are overly dependent on the decisions of another organization, the first organization loses a degree of freedom. For example, if GM decides to make a change in automobile production, the companies in the supply chain, or their decisions, will likely be affected.

On the level of function systems, Luhmann gives this example:

Tabling a budget in parliament can be an event in the political system, in the legal system, in the system of the mass media, and in the economic system. This means that integration takes place continuously in the sense of the mutual restriction of the degrees of freedom enjoyed by systems. But this integration effect is limited to single events. . . .

In the pulsation of events, systems integrate and disintegrate themselves from one moment to the next. If repeated and then anticipated, this may influence the structural development of the systems involved. Humberto Maturana speaks of “structural drift.” But the operational basis for integration/disintegration remains the single event, which is identified simultaneously at a given moment in a number of systems. . . .

[S]ystems continually integrate and disintegrate, being only momentarily coupled and immediately released for self- determined follow-up operations. Such temporalization of the integration problem is the form that highly complex societies develop to process dependencies and independencies between subsystems at the same time.

On the operational level, societal differentiation therefore demands the constant signaling of distinctions. . . . In aristocratic societies, great value is placed on the distinctive characteristics of the noble way of life, and the distinctions are chosen so as always to connote the negative side, what is “common” or “uncouth.”


(Theory of Society, vol 2, p. 7-8)

. . . .

Georg Simmel was very interested in social l conflict, although from a different theoretical perspective. Simmel viewed conflict as an integrative force.

Conflict itself resolves the tension between contrasts. The fact that it aims a peace is only one, an especially obvious, expression of its nature: the synthesis of elements that work both against and for one another. This nature appears more clearly when it is realized that both forms of relation–the antithetical and the convergent–are fundamentally distinguished from the mere indifference of two or more individuals or groups. Whether it implies the rejection of the termination of sociation, indifference is purely negative. In contrast to such pure negativity, conflict contains something positive.

Simmel, George (1971). On Individuality and Social Forms., p. 71

If we are indifferent to some person or some group, there’s no possibility of conflict. The convergent form (coming together) and the antithetical form (separating) are both positive and of sociological interest. Both are forms of “sociation.” But if I’m indifferent to the other, there is no “sociation,” which means no social systems is formed. In social theory prior to Simmel, “conflict meant the negation of unity” (p. 71). If we consider Marx and class conflict, the capitalists and the workers belong to different, opposed social groups. If we somehow attained communism, there would be no more class conflict because it would be a classless society.

Differences, for example between social classes, are constantly renewed. This is clear in the novels of Jane Austen and others. Members of the upper class spend a lot of time pointing out and commenting on the vulgarity of the commoners–their bad taste, etc. The antipathy for the lower classes is continually renewed.

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