Freedom of the Church and our Endangered Civil Rights: Exiting the Social Contract

In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some newly recognized by the Court over the last two decades, some with a slightly older lineage, and some sought after but not yet won by litigants—the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society and to thereby create, in effect, separate spheres of individual or group sovereignty into which otherwise binding legal norms and obligations do not reach. They are “rights to exit” civil society and the social compact at its core, or at least, rights to exit some substantial part of it

Legitimacy and Justice in Republican Perspective

Let justice be a feature of the social order imposed by a state and legitimacy a feature of how it is imposed: one that makes the imposition acceptable. This article argues that, so understood, legitimacy is quite a distinct concern from justice; that the core concern is with showing how state coercion is consistent with people’s being free citizens; that this does not require showing that the state exists by consensus or contract; that the best hope of satisfying the concern lies with arguing that state coercion need not be dominating; and that this is possible only within the republican theory that identifies freedom with the absence of domination, not interference

An anthropology of the social contract: The political power of an idea

The idea of the social contract resonates in many societies as a framework to conceptualise state–society relations, and as a normative ideal which strives to improve them. Policy-makers, development organisations, politicians, social scientists (including anthropologists), and our interlocutors all live with contractarian logics. While generations of political philosophers have debated the concept and its usefulness, the term has also travelled beyond academia into the wider world, shaping expectations, experiences, and imagined futures of state–society relations. An anthropology of the social contract explores ethnographically how this pervasive concept, laden with assumptions about human nature, political organisation, government, and notions such as freedom, consensus and legitimacy, impacts state–society relations in different settings. In this way, the social contract itself – its many emic instantiations, and its political effects – becomes the object of study

East of Eden: A Contractual Lens for an Unsettled Area of First Amendment Shunning Jurisprudence

The Free Exercise Clause was enacted for the purpose of protecting diverse modes of religious practice. One practice that numerous religious traditions observe is shunning—the expulsion and social exclusion of noncompliant individuals from a religious community. Yet because shunning usually involves concomitant harm to religious congregants, plaintiffs often bring religious-tort claims against religious entities for the injuries they suffer. This implicates free-exercise concerns for both the plaintiff and the religious-entity defendant. Despite the utmost importance of religious freedom in American jurisprudence, courts analyze religious-tort claims in widely disparate ways. And they typically rely on consent and membership as the basis for judicial decisionmaking. But these analytical lenses are flimsy and lead to unpredictable outcomes. At times, they are underprotective of religious plaintiffs; at others, they penalize religious entities and chill religious practices. In order to clarify a muddled sphere of free-exercise jurisprudence, courts should adopt a contract paradigm for analyzing shunning claims. A contract paradigm would lead to cleaner results and would uphold the integrity of religious institutions, which are necessary for religious individuals to thrive

The Sound of Silence: Default Rules and Contractual Consent

In this article, the author challenges the received wisdom of gap-filling in the absence of consent by showing how the concept of default rules bolsters the theoretical importance of consent. He accomplishes this by expanding and refining his analysis of a consent theory of contract. The author proposes that the concept of default rules reveals consent to be operating at two distinct levels of contract theory. First, the presence of consent to be legally bound is essential to justify the legal enforcement of any default rules. Second, nested within this overall consent to be legally bound, consent also operates to justify the selection of particular default rules. In part I, the author elaborates in some detail on the essential social functions that consent plays in the liberal conception of justice and the rule of law. He discusses how the consensual element of contract that comprises the liberal principle of freedom of contract addresses the pervasive social problems of knowledge and of interest. Freedom of contract entails both freedom to contract-the power to effect one\u27s legal relations by consent-and freedom from contract-the immunity from having one\u27s rights to resources transferred without one\u27s consent. Working together, these two components of contractual freedom harness the personal and local knowledge possessed by individuals and associations by enabling them to put their own knowledge into action while taking into account the vast knowledge possessed by others of which they are necessarily ignorant. Moreover, these components of contractual freedom also address the problem of interest by providing incentives both to use the knowledge in one\u27s possession and to take into account the knowledge of others. In part II, the author uses this functional analysis of consent to explain the important justificatory role played by manifestations of consent. He shows how, by manifesting their intention to be legally bound, contracting parties are implicitly committing themselves to the jurisdiction of a legal system that is thereby justified in using the background rules of contract law to fill the gaps in their agreement. Under certain circumstances, this consent to jurisdiction would also justify the enforcement of any promulgated set of default rules. In sum, a consent to be legally bound provides a necessary but only sometimes sufficient justification for enforcing whatever set of default rules may be promulgated by a legal system. In part Ill, the author argues that, within a consent theory of contract, silence can be meaningful and that its meaning should influence our choice of default rules when the circumstances described in part II are absent. He defends his consent theory of contract against Richard Craswell\u27s recent criticism that, whatever other justificatory virtues it may have, a consent theory of contract cannot assist in selecting among possible default rules. In particular, the author shows how a consent theory provides two compelling reasons to choose default rules that reflect the conventional or commonsense understanding existing in the relevant community of discourse. First, conventionalist default rules are likely to reflect the tacit subjective agreement of the parties and thereby facilitate the social functions of consent. Second, when parties have asymmetric access to the background rules of contract, enforcing conventionalist default rules will reduce subjective disagreements by providing parties who are rationally informed of the background rules with an incentive to educate those parties who are rationally ignorant of these rules. This, too, facilitates the social functioning of consent. In sum, where a consent to jurisdiction exists but is insufficient to justify the enforcement of any promulgated set of default rules, consent justifies the enforcement of conventionalist default rules. In part IV, the author takes up the issue of why objective or manifested consent can be considered as real or genuine as subjective consent. He discusses how the concept of default rules not only reconciles the idea of gap-fillers with consent as the basis of contractual obligation, but also may justify a more radical change in the legal system that makes contract law. In particular, it may support a horizontal legal order composed of competing legal systems, in contrast to the relatively vertical, monopolistic legal order we live in today. Finally, in Part V, he concludes by briefly discussing the difficult methodological problem of determining the commonsense or conventional meaning of silence