Jamie HUBBARD writes:


I would like to ask Peter Junger to reply to Peter Harvey's mention of the //Agga~n~na Sutta// (//Diigha Nikaaya//III.92). It is often remarked that early Buddhism grew up in an urban, mercantile setting that is reflected in much of the way the sangha is ordered (e.g., Thaper's well- known article from Daedalus), esp. regarding this sutta and the notion of exchange that is so central to the workings of merit and karma. Does this give a way to derive a contractual sense of rights, if not going so far as the notion of inherent ownership?
I am not familiar with this //Sutta// but I take it that the reference is to this quotation from Peter Harvey's Panelist Statement:

Human rights talk are relevant primarily in regard to how governments or quasi-governments (cf.civil war situations) treat their people. Historically, the idea of human rights arose in the West, and is often connected with the idea of the social contract as the basis of society and government legitimacy. It has been said that Buddhism has no notion of the social contract, but this seems not to be the case. In the //Agga~n~na Sutta// (//Diigha Nikaaya//III.92), the first ruler is said to have been chosen by the people, in a situation where natural morality was in decline, in order to punish wrong-doers and thus ensure social harmony. This surely implies that the legitimacy of a ruler rests one their carrying out their role of protecting people. To the extent to which they act immorally towards their people, they have no right to govern them. Not only do they abuse people's right to be treated in accordance with the precepts, but they abuse the right which people have invested in a ruler to rule.

I am afraid that I see nothing in the passage paraphrased from the //Sutta// that corresponds to the rather peculiar idea of a ``social contract.'' The practice of electing a leader, or a ruler, is found in many societies; and it is often true that the legitimacy of the ruler depends on his continued acceptance by those whom he rules. But there is, I think, no idea of a social contract in such situations.

The frogs decide to elect a ruler and elect king log, then, finding him unsatisfactory, they elect king stork. This undoubtedly has happened many times in the history of sentient beings, whether frogs or men. But where is the contract? I just don't see one.

Again, though I am not qualified to have an opinion on the matter, I do tend to believe that Buddhism had an especial appeal to the mercantile and urban classes. But I see no reason why that should lead to a belief that rights against the ruler, or the rights of the ruler over the people, are created by some sort of contract.

Remember that no one actually believes that a bunch of nasty, brutish, and short Europeans sat down one day and actually executed a ``Social Contract''. The Social Contract is at most an implied contract--what we common lawyers call a quasi-contract; and, as I keep telling my students, a quasi-contract is no more a contract than a mock-turtle is a turtle. Quasi-contractual obligations are imposed by the law ``as if'' they were created by a contract; but the whole point of that label is that they are not actually created by any contract.

The (Quasi-)Social Contract is very much like Human Rights; such concepts were never conceived until some philosophical types in the seventeenth and eighteenth centuries felt obliged to invent them to justify their political positions. (I expect that they got the idea from the Biblical covenant between God and Israel; and they probably were also influenced by the medieval practice of a ruler granting rights and liberties to a community by a charter--with Magna Carta being the great example.) The trouble with the idea of the Social Contract is, of course, that it is hard to explain why any one should feel obligated by a fictional contract to which he was not a party. When a ruler abuses people, he abuses people, which is a bad thing. I don't think that it adds anything to say that he violates the people's rights or violates the Social Contract. Or rather it does add something: muddle-headness; and while we argue about the nature of rights, or the existence of the Social Contract, the lash goes on.

The idea of contracts as being something fundamental in the law is--at least as far as the common law is concerned--very much a nineteenth century development. As far as the civil law of the European continent is concerned, I am under the impression that there too it was only in the nineteenth century that Contract was raised to its present mystical status, the child of a Germanic fascination with a peculiar faculty called ``the Will'' that was originally invented by Augustine to exculpate God from liability for the sufferings of his creatures, who are responsible for their own //dukkha// because they have Free Will.

Of course, various consensual exchanges and agreements will be considered to be binding by the customs of any society, and merchants--and aristocrats--will often place a high value on keeping their word. But that does not mean that the merchants--or the aristocrats--believe that their customs were actually, or impliedly, created by some contract to which they were not even a party.

It seems to me that the Buddha's teachings suggest that we should behave ourselves, not that we should behave ourselves because we are non-parties to a fictional contract. Peter Harvey lists mainy invocations of ``the principle of sympathy with other sentient beings (//anukampaa//), which all sentient beings have latent in their minds, however much it is masked or ignored.'' That is the reason why we--and why rulers--should not cause others to suffer. To say that others have a ``right'' not to suffer and that that is why we should not mistreat them is simply to obfuscate the issue. I don't think that thinking in terms of such a right--or of a Social Contract--is consistent with the teaching that we should clarify our minds.

(But, of course, this does not mean that it is not skillful to talk of rights to someone who is attached to that concept--or that we should not try to //establish// legally enforceable civil rights.)

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Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
Internet: junger@pdj2-ra.f-remote.cwru.edu junger@samsara.law.cwru.edu