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Society as a Contract

Sociality defines human beings in a different way than it defines other social animals. In other animals the individual encapsulates the species. Even if it is a specialized form – even if it is a sterile drone – still its genes record what it cannot embody or propagate. The societies of insects are all in the genes. What matters is not the hive but the queen; the hive itself is pure unfolding.

But the society of human beings, though genetically driven, is not genetically predictable. There is historical variation in how a society forms, as there is epigenetic variation in an individual. A single human being contains the certainty of a society, but not the form of that society.

We cannot establish society on a rational basis because society exists to serve a need that is prior to reason. Society begins not in contract, but in instinct. But all instinct can do for society is to establish it in one of its basic forms; what is built on top of that, is built with contracts.

What are these basic forms? There are only two: rule by the old, or rule by the young.

Rule by the old suits small populations. Thus we find tribes and villages with elders, and the most ancient city-states constituted with Senates. Paradoxically, while it is by far the more stable of the two forms, it is not the ground state. When it fails, government by the old collapses into government by the young; but it is so hard for a large population to attain government by the old that it usually arrives there by way of government by the young.

Neither rulers nor ruled are immortal. This fact is not without political significance. People age: this is the advantage of rule by the old over rule by the young. Those who attain power old cannot expect to keep it long, so they tolerate the division of responsibilities requisite to a smooth succession.

But those who attain power young can never risk losing it. In rule by the young the rulers are not usually themselves young. The difference is that in rule by the old, age is the title to power; while in rule by the young, it is youth, and the deeds and quality of youth.

Rule by the old is the model of the kinds of societies we call tribes, and of ancient republics; rule by the young is the model of societies we call feudal, and of crime we call organized. At the top of such pyramidal systems the king or boss is probably much older than his vassals or boys at the bottom; but his authority derives from how well he understands and can sway the youth of his comitatus (or his posse).

Rule by the young is perishable; it lasts only as long as it takes to grow old in power. Of course growing old in power is the trick. Rule by the old, left alone, lasts forever; some extant specimens are older than history. But few societies are left alone forever.

It is in competition with other societies that the rule of the old shows it weakness; and war is the ultimate competition. Where the young rule, there is never any difficulty in finding and empowering a competent military commander. Ability trumps respect. But where the old rule, authority and ability are opposites, because authority is reserved for those least able to abuse it.

Accordingly we see that when a militant rule by the young arises, in its aftermath, even when it loses, all the governments involved go over to the young. It is like rabies: those who try to restrain the first victim get bitten; then they all go mad.

This, of course, applies only to civilized countries: there is no difference in authority and ability where there is no such thing as tactics. But consider that the humiliation of Carthage brought about the rule of youth that set Hannibal in command; and how that Rome was forced to answer with Scipio was the beginning of the end of the Republic, once his glory set him above the law.

The same competition that appears in war also appears, more subtly, in commerce, culture, and discovery.

Of the two forms, I would rather live under the rule of the old; I would rather rule by the rule of the young. So ruled, I could plan for the future; so ruling, I could decide it.

Rule by the old is the default form of government, the one adopted when there is no basis for choice; rule by the young is the ground state, the one that comes into effect when no government at all seems possible.

(Thus I regard anarchists and libertarians as being on the side of the young; they call what they aim for free trade or cooperation, but what they mean is freedom of action for the young, from a government that they despise as belonging to the old. But freedom of action is the same thing as government. If I can hurt you, and you cannot do anything about it, then I rule you.)

Can there be government that is both stable and active? If rule by the old correlates to aristocracy, and rule by the young correlates to monarchy, the answer after all this fuss is obvious: democracy.

Note, however, that these two forms of rule are not classes to one or the other of which all governments must belong. They are elemental forms of government. In classification they serve as poles, to one or the other of which a real government sometimes draws nearer; in analysis they are recapitulated and combined at different levels. Any real government – certainly any modern government, on a national scale – is really a hierarchy and network of governments, in which governments both fit inside and parallel other governments.

I want to resist as strongly as I can the notion that there is some simple nosology of government. The threefold division we blame on Aristotle – monarchy, aristocracy, isonomy (democracy) – what use is it? Even if we assign each form its evil twin – tyranny, oligarchy, democracy (ochlocracy) – what does the choice mean, except approval or disapproval? What structural features are different between each twin?

When Aristotle speaks of democracy, he means election by lottery; when he speaks of aristocracy, he means nearly what we mean by meritocracy; what he means by a monarch is more like what we would call a political boss, than the throne-sitters the word king calls up. And this is the best classification we have!

A constitution does more than fix power relations between classes. A constitution – even one that does not work as its written prospectus suggests – is a piece of social machinery. Once people have the leisure to propose them, an artistic diversity of forms of government can be designed and practiced. People can govern themselves by as many schemes of constitutional machinery as they can invent; they may make decisions according to the will of the king or the voice of the people; they can consult the innards of ravens, the shapes of clouds, the pips of dice, the whisperings of prophetesses, the papers of economists. As long as everyone believes in it, as long as nothing unexpected challenges it, if it works, it works. This is the first kind of society-as-contract: like a corporate charter, it defines how things work while things work.

But sometimes things stop working. Plague strikes, you lose the war, rivals outspend you, your markets attempt suicide. When no procedure answers to the problem, then the old and the young are heard from. Either the old among the powerful combine to keep things from going wrong; or things go wrong, and the young find themselves making decisions.

Here we find the second kind of society-as-contract. It has only three possible forms.

The first is the contract between old and young, while both have power. The old agree not to seize power from the constitutional forms, and the young agree not to accept power when the mob offers it to them, except in the name of the constituted government as a whole.

The second is the contract between the old and young, after the old take power; promising that when the elite needs renewal, they shall be the ones coopted.

The third is the contract that the young offer the old when power falls to them: to retain them for their advice, and not to let the mob blame and destroy them.

Consider the French Revolution, when all three contracts were offered but fell through. The first, when Louis fled, and the Jacobins and Girondins accepted the loyalty of the mob and the bourgeois, respectively; the second, when the Girondins tried to exclude the Jacobins; the third, when the Jacobins recruited the mob into the Terror.

It is very easy to write a constitution that works; any lawyer can do it. But it is very hard to write a constitution that fails gracefully. Fortunately, there is a quick test: the longer the written form of the constitution, the more untrustworthy it is. The English constitution, at zero words, has lasted almost a millennium; the American, at ≅4500 words, has lasted over two centuries. The Soviet constitution came in, by the end, at ≅13,300 words – a work of fiction of nearly novel length. The Chinese at ≅14,000 strikes me as dubious. The length of the recently defeated EU constitution – about 150,000 words (can that be right?) – is perverse.1

Consider any common business contract: the longer it is, the more detailed the terms, the more ways the contract can bend without breaking, and the less it should be trusted. The longer the contract, the less relevant – witness unreadable software EULAs, whose terms are less unenforceable than incomprehensible. When nothing is certain, the only contract that holds is the handshake.

Hippocrates taught that medicine has two parts: diagnosis and prognosis. Prognosis is the showmanlike part. The purpose of giving a disease a name and predicting to the patient its future course is not to inform the doctor, but to impress the patient. Diagnosis is the subtle and difficult part: the ability to trace the course of the disease so far, to discover and remove its causes, to recognize and avoid its dangers. Diagnosis is how the doctor finds a cure; prognosis is what makes the patient agree to submit to the cure. Most political and sociological thinking is prognostic. I am trying to see how a diagnostic approach might work.


Figures for the US and Chinese constitutions include amendments. The figure for the EU constitution derives from an automatic conversion (pdftotext | wc -w) and may be inaccurate.