Muguerza, Javier - The Tanner Lectures on Human Values

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94 <strong>The</strong> <strong>Tanner</strong> <strong>Lectures</strong> on Human Valuesare those made from a philosophical point of view. And so wewill examine one such possible objection, which, in view of ourinterest, is of decisive importance.During the decade of the sixties, when Bobbio wrote the textwe have been discussing, his thought passed from a preferably“coactivist” conception of the law - the view of the legal statuteas an apparatus whose functioning is ultimately guaranteed by thepossible use of force - to a preferably “consensualist” view ofthe same. 36And consensulism, in the history of ideas, is indissolublylinked to contractualism, that is, to the different versions -at least to the different classical versions - of the theory of thesocial contract. Bobbio and his disciples have dedicated subtle,penetrating historiographical studies to this theory, but theiraccounts often stress too much, in my view, the resemblancebetween the classical theories of the contract and contemporary orimmediately prior theories of natural law. 37 In contrast, and forreasons we will soon see, I am especially concerned to emphasizethe counterexample of Jean- Jacques Rousseau, the Rousseau ofOn the Social Contract. As I already remarked in connection withKant, in Rousseau too there is unquestionably a clear trace of jusnaturalism-studiedwith authority and care by Robert Derathé —but the Rousseau theorist of the contract is in no way a jusnaturalist.38On the contrary, faithful in this to the remote origins ofcontractualism, Rousseau takes conventionalism, which is just theopposite of jusnaturalism, as his position. For, as everyone knows,36 See Alfonso Ruiz Miguel, Filosofía y derecho en Norberto Bobbio (Madrid,1983), 297ff.37See, for example, Norberto Bobbio and Michelangelo Bovero, Società e statonella filosofia politica moderna (Milan, 1979); see also N. Bobbio and M. Bovero,Origen y fundamentos del poder politico, selection and translation of texts by bothauthors by José Fernández Santillán (Mexico City, 1985).38R. Derathe, Jean-Jacques Rousseau et la science politique de son temps, 2d ed.(Paris, 1970).
[MUGUERZA] <strong>The</strong> Alternative of Dissent 95the tie between “conventionalism” and “contractualism” datesfrom many centuries ago. 39However, in our case we have no need to go back to the distinctionof the Greek Sophists between “nature” (physis) and“convention” (nomos), a distinction whose applicability in thedomain of politics Aristotle rejected when he defined man as“by nature a political animal.” To Rousseau, without going anyfurther back, it was quite obvious that the grounding of the socialorder represented by the contract was not to be sought in nature -“nature,” he wrote, “produces no law” - but instead was theproduct of a convention. 40Quite another matter is Rousseau’sestablishing at once a distinction between “legitimate” and “illegitimate”conventions - according to his thesis, no agreementcould ever legitimize the voluntary submission of one man toanother or of a whole people to a despot - but this involves thedistinct question of legitimacy, to which we will return at theproper time.Regarding our present interest, and if we interpret the UnitedNations declaration of 1948 in contractualist terms, the consensusof which Bobbio speaks is no more than what is called a “factualconsensus” or merely contingent agreement, that is, what we calleda “convention,” for such a consensus - to which Bobbio entrustedthe definitive de facto solution of the problem of groundinghuman rights, but which he himself offered as no more than asimple historical fact - might express no more than a strategiccompromise of the interested parties instead of being the result ofa rational discussion between them (remember Maritain’s anecdoteof which we spoke at the beginning: the delegates of the countriesrepresented on the commission were “in agreement” as to the list39 See J. W. Gough, <strong>The</strong> Social Contract: A Critical Study of Its Development,2d ed. (Oxford, 1957).40J.-J. Rousseau, Du contrat social, Oeuvres complètes, Bibliothèque de laPleiade, vol. 3 (Paris, 1964), 353ff.
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Muguerza, Javier - The Tanner Lectures on Human Values

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