The Social Foundations of Law

38 Pages Posted: 21 Aug 2012  

Martha Albertson Fineman

Emory University School of Law

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Date Written: 2005

Abstract

The first few words of the Constitution of the United States capture the idea of the social contract - the legitimacy of government is based on the consent of the people. The perceived mandates of the social contract set up reciprocal and integrally related expectations and aspirations for individuals, institutions, and the state.

By utilizing the concept of contract as a tool to interrogate the justice of existing social arrangements, this paper contests the principles suggested to be the foundational myths of liberal state theory, particularly that abuses of public power are more to be feared than abuses of private power and that autonomy is more legitimately the concern of the state than equality.

Traditionally, our nation has strived for formal equality, one where the rules apply equally to individuals no matter the outcome. However, the insecurity and unfairness generated in the current political and economic organization of this society suggest we should fashion a sense of equality that is more concerned with ultimate outcomes.

Keywords: Social contract, formal equality, substantive equality, social welfare, public institutions, social rights, civil rights, political rights

Suggested Citation

Fineman, Martha Albertson, The Social Foundations of Law (2005). Emory Law Journal, Vol. 54, 2005; Emory Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2132230

Martha Albertson Fineman (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-712-2421 (Phone)

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