Historically we are now at a point where liberal contractualism has to be figured in terms of an equal opportunity and anti-discriminatory ethos. All social actors are to be accorded as contractual individuals. If they need the assistance of the law to assure them of this standing, it is not the rhetoric of protection but the rhetoric of anti-discrimination which is deployed.
(Yeatman, 1997: 51)
In the 1980s and 1990s, governments in the English-speaking countries have increasingly sponsored contractualist modes of regulation. The so-called `new contractualism' stems from the rebirth and adaptation of 17th- and 18th-century notions of `social contract' and 19th-century conceptions of the `classical law of contract', touching relationships in various spheres of life, both public and private. The notion of contract, in some cases legal and in some cases non-legal, now increasingly underpins the employee--employer relation, some aspects of race relations, and relations between politicians and bureaucrats, spouses, children and parents, educational institutions and students, as well as between the state and beneficiaries of a host of public services. Contractual arrangements in the world of commerce, which previously were the main realm of contractualism, have spilled over into other domains, constituting an important -- though as yet under-appreciated -- dimension of the neo-liberal phase of societal development.
Many analysts of the new contractualism have been interested in the social and policy implications of contemporary contractual and quasi-contractual forms of regulation. The objective of this paper is to contribute to the debate on such issues by assessing the relationship between the new contractualism and social protection. It does this principally -- though not exclusively -- with reference to the work of Anna Yeatman (1995, 1997, 1998a, 2001; also Davis et al., 1997; Yeatman and Owler, 2001), who has provided the most cogent and politically evocative non-neo-liberal analysis of new-contractualist thought and policy. Yeatman's thesis is that the new-contractualist phase in history provides a unique opportunity to redefine citizenship in ways that transcend and improve on the discourse and practice of social protection. For Yeatman, the new contractualism is consistent with equality of opportunity; and the struggle to attain equal opportunity is not, in the current climate, adequately served by social protection. Most importantly, protection is patrimonial in inspiration and effect.
Contrary to the Yeatman thesis, the primary argument of this paper is that the new contractualism should not be considered without primary reference to the principle of social protection. At its centre, social protection deals with all mechanisms designed to redress the harsh social effects of untrammelled market forces. Any attempt to bifurcate social protection and contractualism is somewhat artificial and can only be considered in the abstract.
The first section of the paper examines the concept of the new contractualism, first identifying briefly its historical antecedents in the `old contractualism' of 17th-, 18th- and 19th-century ideas. The second section reviews the historical stage consistent with the scaling back of contractualism: that of social protection. Finally, the third section analyses the relationship between the new contractualism and social protection in the light of the Yeatman thesis.
The new contractualism
The concept of a new contractualism presupposes the existence of an old contractualism. The original contractual device, the idea of a social contract, has been dated back at least to Plato in the fourth century BC (Barker, 1947: v-xi; Gough, 1957: 10-15). It was during the mid-17th to the late-18th century, however, that social contract theory became prominent. During this period within which classical liberalism first evolved, key theorists debated issues around individual choice and consent, which came to the fore in the context of a society which engendered two basic (interrelated) types of social contract. …