Social Contract Theory

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What is Social Contract Theory?

The concept of social contract theory is that in the beginning man lived in
the state of nature. They had no government and there was no law to
regulate them. There were hardships and oppression on the sections of
the society. To overcome from these hardships they entered into two
agreements which are:-

Pactum Unionis; and

Pactum Subjectionis.

By the first pact of unionis, people sought protection of their lives and
property. As, a result of it a society was formed where people undertook to
respect each other and live in peace and harmony. By the second pact of
subjection is, people united together and pledged to obey an authority
and surrendered the whole or part of their freedom and rights to an
authority. The authority guaranteed everyone protection of life, property
and to a certain extent liberty. Thus, they must agree to establish society by
collectively and reciprocally renouncing the rights they had against one another in
the State of Nature and they must imbue some one person or assembly of persons
with the authority and power to enforce the initial contract. In other words, to ensure
their escape from the State of Nature, they must both agree to live together under
common laws, and create an enforcement mechanism for the social contract and the
laws that constitute it. Thus, the authority or the government or the sovereign
or the state came into being because of the two agreements.

Analysis of the theory of Social Contract by :Thomas

Hobbes
Thomas Hobbes theory of Social Contract appeared for the first time in
Leviathan published in the year 1651 during the Civil War in Britain.
Thomas Hobbes legal

theory is based on Social contract. According to him, prior to Social

Contract, man lived in the State of Nature. Mans life in the State of
NATURE was one of fear and selfishness. Man lived in chaotic condition of
constant fear. Life in the State of Nature was solitary, poor, nasty,
brutish, and short.
Man has a natural desire for security and order. In order to secure selfprotection and self-preservation, and to avoid misery and pain, man
entered

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into a contract. This idea of self-preservation and self-protection are

inherent in mans nature and in order to achieve this, they voluntarily
surrendered all their rights and freedoms to some authority by this
contract who must command obedience. As a result of this contract, the
mightiest authority is to protect and preserve their lives and
property. This led to the emergence of the institution of the ruler or
monarch, who shall be the absolute head. Subjects had no rights against
the absolute authority or the sovereign and he is to be obeyed in all
situations however bad or unworthy he might be. However, Hobbes placed
moral obligations on the sovereign who shall be bound by natural law.

Hence, it can be deduced that, Hobbes was the supporter of absolutism.

In the opinion of Hobbes, law is dependent upon the sanction of the
sovereign and the

Government without sword are but words and of no strength to

secure a man at all. He therefore, reiterated that civil law is the real
law because it is commanded and enforced by the sovereign. Thus, he
upheld the principle of Might is always

Right.

Hobbes thus infers from his mechanistic theory of human nature that
humans are necessarily and exclusively self-interested. All men pursue
only what they perceive

to be in their own individually considered best interests. They respond

mechanistically by being drawn to that which they desire and repelled by
that to which they are averse. In addition to being exclusively selfinterested, Hobbes also argues that human beings are reasonable. They
have in them the rational capacity to pursue their desires as efficiently
and maximally as possible. From these premises of human nature, Hobbes
goes on to construct a provocative and compelling argument for which
they ought to be willing to submit themselves to political authority. He did

this by imagining persons in a situation prior to the establishment of

society, the State of Nature.

Hobbes impels subjects to surrender all their rights and vest all liberties in
the sovereign for preservation of peace, life and prosperity of the subjects.
It is in this

way the natural law became a moral guide or directive to the sovereign for
preservation of the natural rights of the subjects. For Hobbes all law is
dependent upon the sanction of the sovereign. All real law is civil law, the
law commanded and

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enforced by the sovereign and are brought into the world for nothing else
but to limit the natural liberty of particular men, in such a manner, as they
might not hurt but to assist one another and join together against a
common enemy. He advocated for an established order. Hence,
Individualism, materialism, utilitarianism and absolutions are interwoven in the theory of Hobbes.

Analysis of the theory of Social Contract by John Locke

John Locke theory of Social Contract is different than that of Hobbes.

According to him, man lived in the State of Nature, but his concept of the
State of Nature is

different as contemplated by Hobbesian theory. Lockes view about the

state of nature is not as miserable as that of Hobbes. It was reasonably
good and enjoyable, but the property was not secure. He
considered State of Nature as a Golden Age. It was a state of
peace, goodwill, mutual assistance, and preservation. In that state of
nature, men had all the rights which nature could give them. Locke
justifies this by saying that in the State of Nature, the natural condition of
mankind was a state of perfect and complete liberty to conduct ones life
as one best sees fit. It was free from the interference of others. In that
state of nature, all were equal and independent. This does not mean,
however, that it was a state of license. It was one not free to do anything
at all one pleases, or even anything that one judges to be in ones
interest. The State of Nature, although a state wherein there was no civil
authority or government to punish people for transgressions against laws,
was not a state without morality. The State of Nature was pre-political, but
it was not pre-moral. Persons are assumed to be equal to one another in
such a state, and therefore equally capable of discovering and being
bound by the Law of Nature. So, the State of Nature was a state of
liberty, where persons are free to pursue their own interests and plans,
free from interference and, because of the Law of Nature and the
restrictions that it imposes upon persons, it is relatively peaceful.

Property plays an essential role in Lockes argument for civil government

and the contract that establishes it. According to Locke, private property is
created when a

person mixes his labor with the raw materials of nature. Given the
implications of the Law of Nature, there are limits as to how much
property one can own: one is not

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allowed to take so more from nature than oneself can use, thereby leaving
others without enough for themselves, because nature is given to all of
mankind for its common subsistence. One cannot take more than his own
fair share. Property is the linchpin of Lockes argument for the social
contract and civil government because it is the protection of their
property, including their property in their own bodies, that men seek when
they decide to abandon the State of Nature.

John Locke considered property in the State of Nature as insecure because

of three conditions; they are:-

Absence of established law;

Absence of impartial Judge; and

Absence of natural power to execute natural laws.

Thus, man in the State of Nature felt need to protect their property and for
the purpose of protection of their property, men entered into the Social
Contract.

Under the contract, man did not surrender all their rights to one
single individual, but they surrendered only the right to preserve /
maintain order and enforce the law of nature. The individual
retained with them the other rights, i.e., right to life, liberty and estate
because these rights were considered natural and inalienable rights of
men.

Having created a political society and government through their consent,

men then gained three things which they lacked in the State of Nature:
laws, judges to

adjudicate laws, and the executive power necessary to enforce these laws.
Each man therefore gives over the power to protect himself and punish
transgressors of the Law of Nature to the government that he has created
through the compact.

According to Locke, the purpose of the Government and law is to

uphold and protect the natural rights of men. So long as the
Government fulfils this

purpose, the laws given by it are valid and binding but, when it
ceases to fulfil it, then the laws would have no validity and the
Government can be thrown out of power. In Lockes view,
unlimited sovereignty is contrary to natural law.

Hence, John Locke advocated the principle of -a state of liberty; not of

license. Locke advocated a state for the general good of people. He
pleaded for a

constitutionally limited government.

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Locke, in fact made life, liberty and property, his three cardinal rights,
which greatly dominated and influenced the Declaration of American
Independence, 1776.

Analysis of the theory of Social Contract by Jean

Jacques Rousseau
Jean Jacques Rousseau was a French philosopher who gave a new interpretation to the theory
of Social Contract in his work The Social Contract and Emile. According to him:

Social contract is not a historical fact but a hypothetical construction

of reason. Prior to the Social Contract, the life in the State of Nature
was happy and there was equality among men. As time passed,
however, humanity faced certain changes. As the overall population
increased, the means by which people could satisfy their needs had to
change. People slowly began to live together in small families, and then in
small communities. Divisions of labor were introduced, both within and
between families, and discoveries and inventions made life easier, giving
rise to leisure time. Such leisure time inevitably led people to make
comparisons between themselves and others, resulting in public values,
leading to shame and envy, pride and contempt. Most importantly
however, according to Rousseau, was the invention of private property,
which constituted the pivotal moment in humanitys evolution out of a
simple, pure state into one, characterized by greed, competition, vanity,
inequality, and vice. For Rousseau the invention of property
constitutes humanitys fall from grace out of the State of
Nature. For this purpose, they surrendered their rights not to a single
individual but to the community as a whole which Rousseau termed as
general will.

According to Rousseau, the original freedom, happiness, equality and

liberty which existed in primitive societies prior to the social contract was
lost in the modern

Civilization. Through Social Contract, a new form of social

organization- the state was formed to assure and guarantee
rights, liberties freedom and equality. The essence of the Rousseaus
theory of General Will is that State and Law was the product of General
Will of the people. State and the Laws are made by it and if the
government and laws do not conform to general will, they would be
discarded.

While the individual parts with his natural rights, in return he gets civil
liberties such as freedom of speech, equality, assembly, etc.

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The General Will, therefore, for all purposes, was the will of majority
citizens to which blind obedience was to be given. The majority was
accepted on the belief that

majority view is right than minority view. Each individual is not subject to
any other individual but to the general will and to obey this is to obey
himself. His sovereignty is infallible, indivisible, unrepresentable and
illimitable.

Thus, Rousseau favored peoples sovereignty. His natural law theory

is confined to the freedom and liberty of the individual. For him, State,
law, sovereignty, general

will, etc. are interchangeable terms. Rousseaus theory inspired French

and American revolutions and given impetus to nationalism. He based his
theory of social contract on the principle of Man is born free, but
everywhere he is in chains.

COMPARISION OF THE THEORY OF SOCIAL CONTRACT OF THOMAS

HOBBES, JOHN LOCKE AND JEAN JACQUES ROUSSEAU

Hobbes asserts that without subjection to a common power of their rights

and freedoms, men are necessarily at war. Locke and Rousseau, on the
contrary, set forth the view that the state exists to preserve and protect
the natural rights of its citizens. When governments fail in that task,
citizens have the right and sometimes the duty to withdraw their support
and even to rebel.

Hobbes view was that whatever the state does is just. All of society is a
direct creation of the state, and a reflection of the will of the ruler.
According to Locke, the only important role of the state is to ensure that
justice is seen to be done. While Rousseau view is that the State must in
all circumstance ensure freedom and liberty of individuals.

Hobbes theory of Social Contract supports absolute sovereign without

giving any value to individuals, while Locke and Rousseau supports
individual than the state or the government.

To Hobbes, the sovereign and the government are identical but Rousseau
makes a distinction between the two. He rules out a representative form of
government. But, Locke does not make any such distinction.

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Rousseaus view of sovereignty was a compromise between the

constitutionalism of Locke and absolutism of Hobbes.

CRITICAL APPREHENTION

Rousseau propounded that state, law and the government are

interchangeable, but this in present scenario is different. Even though
government can be overthrown but not the state. A state exists even
there is no government.

Hobbes concept of absolutism is totally a vague concept in present

scenario. Democracy is the need and examples may be taken from
Burma and other nations.

According to Hobbes, the sovereign should have absolute authority.

This is against the rule of law because absolute power in one authority
brings arbitrariness.

Locke concept of State of nature is vague as any conflict with regard to

property always leads to havoc in any society. Hence, there cannot be a
society in peace if they have been conflict with regard to property.

Locke concept of laissez-faire is not of welfare oriented. Now in present

scenario, every state undertakes steps to form a welfare state.

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