Veil of Ignorance and Constitutional History

• Autor(a) principal: Clavero, Bartolomé
• Data de Publicação: 2023
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Jurídica da Ufersa
• Texto Completo: https://periodicos.ufersa.edu.br/rejur/article/view/11650

This essay, Veil of Ignorance and Constitutional History, could be titled otherwise by coining a neologism: Multicontractarianism and Constitutional History. The strong revival of the doctrine of social contract during the last decades, driven by John Rawls’ A Theory of Justice (1971) as foundation for equality between individuals tending a veil of ignorance over the diversity of conditions of any kind, has produced an unexpected chain reaction bringing into view deeply unequal social contracts in the plural. The trigger was, in 1988, Carole Pateman’s The Sexual Contract insofar as it fully challenged the principle of ignorance for the achievement of justice. She disclosed the meaning of family order as the political space in which women’s subordination is entrenched. Furthermore, she highlighted how classic contractarianism, since Locke, assumed and exposed the marital power as the first of the powers in contrast with the current contractarianism that, since Rawls, tends its veil of ignorance on the family conditionings of the woman’s status even in times of rights. Along these lines, Charles Mills continued in 1997 with his The Racial Contract, contrasting equally the transparency of classical contractarianism with the opacity of present supremacism regarding the whole set of a racialized subordination on a colonial basis. There is even more. In 2009, Pateman and Mills attempted to integrate their respective visions into a comprehensive category of Subordination Contract. Then, in 2015, Stacy Clifford-Simplican’s The Capacity Contract came contending that supremacist assumptions about the capacity of the individual are at the basis of all subordination contracts. Other contracts, such as the Generational Contract and the animal or Species Contract, have been added. Thus we finally have a multicontractarianism at the antipodes of contractarianism. This essay argues that mainstream constitutional historiography has been developed under the paradigm of monocontractarian blindness and that, therefore, the perspectives provided towards the past by multicontractarianism might open horizons no less unexpected.