The concept of natural law most succinctly can be described as a philosophy by which the positive law of man is subjected to the inhibition of a higher order. This philosophical conception of a validating higher order has taken many forms such as the principles of the law of natureand the idea of divine dispensation. The theory of social contract was another categorical expression of this basic conception which acquired its most categorical vigour in the post-renaissance period. The concept of social contract as the originating source of state authority can be traced back as far as Plato who provides the explanation of mutual agreement as the edifice upon which man built the conception of the law. However, we shall be focussing primarily on the philosophies of Grotius, Thomas Hobbes, John Locke and J. Rousseau whose theories from 15th-17th century established social contract as a dominant political and legal doctrine.
Salient Features of Various Social Contract Theories
The theories on social contract do not share a unified orientation. It has to be understood that the idea of social contract has been used as an instrumentality of promote diverse and contradictory ideologies.
Regardless of the nuances of individual conceptions of different philosophers, the theories on social contract are knit together with strands of commonalities in terms of their basic attributes. In all social contract theories, there is the conception of state of nature, i.e. a state of affairs before the advent of the organised state and instrumentality of law. The depiction of this state of nature by different philosophers differs both in kind and degree but the basic premise that there was a state of nature is common to all.
The transformation of a lawless and stateless set of affairs into that of an organised order is marked by contract to which all men are parties.It is this contract which governs the terms of the relationship between the state and the individuals. In the works of different philosophers, this contract has been propositioned as a historical fact and also as a legal postulate.
The fundamental premise of all proponents of social contract theory has been the assertion that political and legal power is derived from the consent of the people on whom it is exercised and not from a divine dispensation. Each theory discards the proposition that political authority is derived from celestial disposition. In retrospect, this aspect of social contract theory can be seen as the harbinger of the principle of democracy which squarely puts the authority of the government in the hands of the
Governed Grotius (1583-1645)
In the post-renaissance evolution of political philosophy, the first philosopher to analyse the theory of social contract as the originating source of authority for the government was Grotius. Grotius utilised the concept of social contract not for establishing an order of liberty but to justify complete obedience of the people to the government.
People’s Right of Choice
In the theory propounded by Grotius, social contract appears as factual incident of history and not as a postulate of reason. According to Grotius, the constitution of a country is the sequential effect of the social contract by which people chose the form of government most suitable for themselves. Without consideration of the merits of the choice itself, he recognised the supreme right of people to choose the form of government under which they seek themselves to be governed.
Justification of the Duty of Obedience
However, instead of using this concept as a springboard for the protection of the rights of the people, Grotius utilised it to further the proposition of the binding nature of the choice. Once the choice was made, the people had an absolute duty of obedience towards the government so formed and did not have the liberty to dispute its authority. Grotius does not provide a satisfactory solution when ruler acts in contravention of the basic tenets on which the government was formed. He finds it difficult to reconcile between preserving the authority of the ruler and simultaneously holding him answerable if he violates the terms of the contract by which people have made him the ruler.Here one has to appreciate that Grotius’s theory of social contract served the main purpose of facilitating greater stability in the international society by liberating the rulers conducting foreign relations from internal restrictions on their sphere of authority.
Thomas Hobbes (1588-1679)
The political theory of Thomas Hobbes must be appreciated in light of the socio-political context he lived in and the ideals for the fullfilment of which he envisaged his theory. Hobbes spent his life in times which were rife with civil wars in England and much of his philosophy can been seen as his attempt to carve a theory which would eliminate the possibilities of a disorderly society by making the authority of the state absolute and unquestionable.
Human Nature and State of Nature
His idea about the nature of the social contract between the people and the state is fundamentally linked to his perception of human nature. His depiction of the state of nature which provides the justification of the social contract is a direct consequence of the influential attributes of human nature.
As perceived by Hobbes, human conduct is governed by impulses of selfishness, greed and uncontrolled aggression. The character of a man is marked by an endless appetite for power and selfish motivations. When all men are governed by such confrontational impulses, it results in a state of continuous and escalated friction. The state of nature is marked by lack of prosperity and preponderance of misery.
Social Contract and its Implications
These states of affairs instigate surrendering all their natural rights men towards the necessity of self-preservation by to a ruler who in turn assures them of the preservation
of their lives.Unlike Grotius, Hobbes could not visualise any form of social contract apart from the one where all natural rights are surrendered to the ruler. He did not accept a form of social contract where anything less than the totality of the natural rights are surrendered to the government. However, where Grotius was not categorical,Hobbes is emphatic that the subjects cannot demand the fullfilment of any obligations by the ruler. The sovereign thus created is not subject to any order of superior authority in the form of either divine of natural law. Though Hobbes still recognises the value of natural laws, he divests them of political relevance by making it categorically clear that the benchmark in the creation and sustenance of the state is not the adherence to an objective order of abstract principles but it lies in responding to the need for which men have got together to create the state. He justifies the absolute authority of the state by linking it to a common purpose for which the authority has been created.
As mentioned earlier, his primary purpose was not to provide a set of immutable rights to man. However his conceptualization of the human nature as a ground for the subjective claim of natural rights provides the philosophical bedrock upon which later conceptions of “inalienable rights” were formulated.To Hobbes can be credited the principal idea that every man is entitled to a claim against other men, even though the extent of the claim in the vision of Hobbes was only existential.Hobbes made the individual the centre of his political universe from whom begins the creation of the state authority. Though the point is often missed in his zealousness to endow the state with indisputable authority, he recognised the right to self-preservation of every man and it is for the fulfillment of these very rights that the state is conferred with extensive authority.
The major criticism against Hobbes is in relation to the totalitarian nature of the government. He relegated the principle of natural law to the background, turning them into nothing more than a set of moral guidelines and stripped the individual of any serious right to resist the despotism of the state. No matter how unjust the actions of the state might be, the individual had no recourse apart from absolute and unquestioned obedience. Another point of critique with the theory of Hobbes is the limited functionality in the domain of the government. Despite having unbridled and absolute power, the sovereign only has to concern itself with the preservation of peace and security.The sovereign had no higher ideal to aim or no greater principle of welfare to secure. In overall balance of factors, it seemed an uneven trade off for the state to have so much of power and so less of responsibility.
John Locke (1632-1704)
In the conception of Locke, natural law acquired a similar stature as the one prescribed to it in the medieval era wherein the positive law of men must conform to the natural law. The purpose of his theory was in stark contrast to that of Hobbes. Locke used the social contract theory to establish boundaries on the power of the state by creating inalienable rights of men which were inviolable. Where Hobbes used the concept of social contract to justify the absolute and unquestionable authority of the state, Locke used the same concept to legitimize restrictions on the power of the state to interfere with the liberty of an individual. He identified the right to Life, Liberty and Estate as the inalienable, non-derogable rights of every individual.
Human Nature and State of Nature
The description of the state of nature in the philosophy of Locke is characterised by peace, goodwill, cooperation and sustenance. Endowed with the faculty of reason, men followed the law of nature which enabled them to decipher the ways of the world. In such a state of
nature, man was free to act on his will and conduct himself as per his discretions as long he did not harm the interests of another man.This law of nature also enabled each man to defend what he deemed to be his right under the law of nature and to execute sanctions against anybody who violated the postulates of the law of nature. Every man enjoyed the authority to guard against the violations of the law of nature and had the consequential authority to impose sanctions for its violations.It is this right of enforcing the law of nature shared by the multitude of individuals, which leads to the conditions necessitating the social contract. As each individual had the right in this regard, there could be no unified standard of determining whether law of nature has indeed been violated. Each man judged the matter as per his own sense of reason which created a variety of interpretations and a great amount of uncertainty for each individual as to the extent to which his rights would be protected in the state of nature. In a scenario fraught with conflicting claims, there could never be a surety as to the preservation of one’s life, liberty and estate. It is in order to eliminate these uncertainties that men decided to associate themselves into an organised polity.
Social Contract and its Implications
In the social contract contemplated by Locke, man does not surrender the totality of his natural rights but only a part of it. Man retains his natural rights of life, liberty and estate and surrenders to the state the following;
1. The power to act according to his own interpretation of the law of nature for his own preservation.
2. The power to enforce the law of nature by punishing transgressors
Thus the state becomes a purposive enterprise created in order to serve a foundational objective and these objectives determine the extent of its authority. The obligation of the state to uphold its promise to the subjects in terms of the inviolability of certain rights was fundamental to the structuring of the state. By using the social contract theory, he propositioned the power of the state as being a power held in trust with consequential duties to honour the said trust. The state in this scheme did not have unchallenged authority and was liable to have its actions questioned on the ground of being violative of the natural rights of men. As long as the government fulfils its promise, there is no legitimate cause for which it can be deprived of its authority.
One of the major inconsistencies in Locke’s theory has been the incompatibility between his idea of inalienable rights of the individual and in the legitimacy of the majority rule in the administration of societal affairs. If an individual is obligated to abide by the will of the majority,how is he to respond when the will of the majority trample upon his rights? Another drawback in Locke’s theory is the dilution of the right of resistance against the ruler when the ruler violated the terms of the pact. He recognises the obligation of the state to uphold the standards of life it promised, however, he finds legitimacy in rebellion only in extreme of situations.
Unlike Hobbes and Locke, whose political theories, despite drawbacks, are marked by strands of consistency, appreciating the complex propositions of Rousseau presents a far more analytical challenge. This complexity of his theory has allowed it to be contextualized for competing ideologies. In enunciation of his political theory, one can trace an effort to simultaneously uphold the supremacy of the community and the freedom and equality that he proposes all men to be entitled to.
Human Nature and State of Nature
Rousseau’s depiction of the state of nature is closer to that of Locke. For him, man by his basic instincts was not evil. Any evil that can be traced in men is a product of the influences of social factors. The state of nature is not that of warfare or unhappiness but one primarily of individual isolation. The element which disturbed the inherent nature of peace is the institution of private property.The concept of private property introduced elements of jealousy and greed in the conduct of man. It is this gradual disappearance of equanimity in the state of nature which prompted the creation of the political civil society.
Social Contract and its Implications
Rousseau conceptualised the element of social contract as a postulate of reason and not as a historical fact. He used it to provide backbone to his visualisation of the relationship between the government and the governed. His conception of the social contract was as an instrumentality to secure for each man his natural rights of freedom and equality. For him, the submission of all natural rights to the community in itself was a guarantee of the continued enjoyment of such rights.It becomes the responsibility of the community to ensure that the individual, in return for the submission of his natural rights, gets the entitlement to the guarantee of his civil liberties. While Rousseau placed importance on the protection of the rights of the individual, in the ultimate analysis, the collective interests of the community were of much greater concern to him.
Thus in the social contract, the government was obligated to respond not to the interests of the individuals, but to the collective interest of the community. The sovereign was not any individual or institution to whom the individuals surrendered their natural rights. The individuals are prone to the general will of the community. Because the sovereign was constituted by the individuals of the state, the general will in the conception of Rousseau is inherently reflective of the individual will of a man. In Rousseau’s conception, there could not be any conflict between the interest of the individual and the interest of the community.In order to ensure this purity of integrity, Rousseau did not favour the representative theory of democracy. For him, the power of people to decide for themselves has to be exercised by them directly. Rousseau believed that the transfer by everybody of all their rights to the community, an assurance is created that the interest of the common public will be safeguarded, which consequentially protects the rights of the individual as well. Because the social contract did not involve a transfer of authority to a separate entity in a manner similar to that of Hobbes, the arrangement is less reflective of a contract and more like a collective authorisation.