This article is authored by Nidhi Bajaj, of Guru Nanak Dev University, Punjab. In this article, the author has explained the meaning of social contract and has also discussed the theories of social contract propounded by the three political philosophers: Hobbes, Locke and Rousseau. 

This article has been published by Sneha Mahawar.

Introduction 

A ‘Social contract’ connotes a hypothetical agreement used to explain the origin of society and state. Before the formation of state and government, man used to live in a state of nature. The social contract theorists compared the advantages of an organised government with the advantages enjoyed in the state of nature and reasoned as to why men should accept and obey the government voluntarily. The conclusions of this exercise led to the formation of a social contract setting out the rights and duties of the citizens towards the State. Although the idea of a social contract had been discussed priorly, the concept is predominantly associated with the English philosophers Thomas Hobbes and John Locke and the French Philosopher Jean Jacques Rousseau. 

Download Now

In this article, the author will explain the meaning of the social contract and social contract theories followed by a discussion of the social contract theories propounded by Hobbes, Locke and Rousseau.

Meaning of social contract

A social contract refers to an actual or hypothetical agreement between the ruled or between the ruled and the ruler, defining the rights and duties of each. Individuals being born into a state of nature, by exercising their reason and collective will agreed to form a society and a government. A social contract can also be viewed as a means to escape from the state of nature. Thus, a social contract can be of two forms:

  1. Firstly, a contract that led to the origin of the State: This contract simply spells out the willingness of the people to establish the State as the sovereign.
  2. A contract of government or a contract of submission: This contract deals with the course after the establishment of a State or society. It spells out the terms and conditions of governance and involves reciprocal obligations and promises on part of the ruler and the ruled. The most important of them is the promise of obedience made by citizens and the reciprocal promise of protection of citizens and good governance made by the King/Ruler/State.

The social contract is based on the express or implied consent of the people to give up some of the freedoms that they enjoyed in the state of nature in exchange for the protection of their remaining rights and the maintenance of social order.

The social contract theory

At the outset, social contract theory seeks to explain two things:

  1. Historical origins of sovereign power
  2. Moral origins of the principles that establish the legitimacy of the sovereign authority

Social contract theory deals with the formation of the social contract and gives answers to questions regarding the nature of life before the state came into existence and the reasons or circumstances that led to the formation of the social contract etc.

Life before the coming into existence of organised societies or governments is referred to as the ‘state of nature’. The condition of man and his life in the state of nature is described differently by different political thinkers. Some describe life in the state of nature as blissful and others describe it as brutish and harsh. To overcome the hardships existing in the state of nature, the following two agreements were formed:

  1. Pactum Unionis: Through this pact, people demanded protection of their lives and property. This led to a formation of society wherein all were to live in peace and harmony.
  2. Pactum Subjectionis: This pact was aimed at enforcing the initial contract. Through this pact, people collectively surrendered their freedoms and rights as existing against one another in the state of nature in favour of an authority which  in turn agreed to protect their right to life, property, and liberty.

Typical features

  • Social contract theories often deal with the relation between natural and legal rights.
  • The theory grew to prominence as the leading doctrine of political legitimacy during the mid-17th to early 19th centuries.
  • These theories usually begin with the examination and discussion of human life without political order, i.e., state of nature.
  • The theory explains why rational individuals would agree to give up their natural rights in favour of political order.
  • The social contract theory maintains that the law and political order are human creations.

Major social contract theories

Before proceeding with the discussion of social contract theories as propounded by various political philosophers, it is pertinent to note that the purpose of all social contract theories is not the same. Some theories focus on justifying the origin/power of a sovereign, while others deal with the protection of individuals from the oppression of a powerful sovereign.

Hobbes’s theory of social contract

Thomas Hobbes was the first modern philosopher who put forward a detailed social contract theory. Hobbes describes man’s nature as egoistic and selfish. To him, humans were isolated beings with insatiable desires who continually sought pleasure and avoided pain. 

State of nature

Since humans living in the state of nature were pessimistic and brutish, the state of nature was gloomy and sordid. The only rule that prevailed was “take if you have the power and retain as long as you can”. Men were suspicious and hostile towards each other in the state of nature. There was no law, no notion of right and wrong. Only fraud and force existed. The conditions of life existing in the state of nature made it ill-equipped for civilised pursuits. As long as a man were to live in a state of nature, there could be no society and his life would be short, poor, and solitary.

However, in the state of nature, the man had complete freedom and a natural right to everything including the right to one another’s bodies. According to Hobbes, natural laws existed merely for the fulfilment of individual good. There were 19 natural laws, the most important among them being:

  1. Seek peace and follow it
  2. Abandon the natural right to things
  3. Individuals must honour their contracts

Social contract 

The only way to achieve the goal of attainment of peace, self-preservation and self-protection was to enter into a contract for the establishment of a State. Individuals surrender their powers through a contract to a third party, who was not a party to the contract. 

Form of contract

I authorise and give up my Right of Governing myself, to this Man, or this Assembly of men, on this condition, that thou give up thy right to him, and authorise all his actions in like manner.

Thus, the basis of the Hobbesian contract was not common will. It was a contract of each with the other wherein each person agreed to give up his right in favour of a third party in consideration of other persons giving up their rights in the same manner. As a consequence of the contract, a third party(Sovereign) came into existence. The third-party was an artificial person distinct from natural individuals. 

The subjects were under an obligation to obey the sovereign because of the following reasons:

  1. Disobeying the sovereign would attract punishment.
  2. There was a moral consideration that the individuals must honour their contracts.
  3. Sovereign was the duly authorised representative of all individuals and individuals had authorised him to act on their behalf. 
  4. Moral obligation to obey based on consent.
  5. The desire of individuals for peace and order.

Features 

  • The Hobbesian contract was a social and political contract that created civil society and political authority. 
  • The contract created the State and government simultaneously.
  • Individuals agreed to a set of rules and in turn, they were guaranteed basic equality.
  • Sovereign must treat all individuals equally in matters of justice and levying taxes.
  • Sovereign power shall possess all the powers and be like a mortal God.
  • The contract was perpetual and irrevocable.
  • The sovereign power is unlimited, inalienable, permanent, and absolute. This did not mean that the king had divine rights, but this power was derived through a contract validly and willingly agreed upon. Individuals had no right to change the form of government.
  • Since the contract was entered by individuals with each other and not with the sovereign, there was no escaping from the subjection of the sovereign. The subjects had a duty to obey the sovereign.
  • The sovereign could enact any laws that it deemed fit and such laws were legitimate. Law was the command of the sovereign and the sovereign was supreme and even above law.
  • By creating a civil society, individuals voluntarily agree to limit their freedom.
  • According to Hobbes, the beneficiary of the contract i.e. the third party should be a monarch. 

Rights and duties of the sovereign

  • To govern and conduct policy;
  • Protection of civil society from dissolution;
  • To put limitations on right to expression;
  • Resolving conflicts; 
  • Choosing ministers;
  • Conferring honours;
  • Make war and peace with other States etc.

Criticism 

  • The ruler is not a party to the contract. 
  • Hobbes’s theorem of government was artificial. He provided for absolute authority without adequate standards to prevent the abuse of power.
  • Critics denied the Hobbesian reality of a state of nature by positing that if humans were so asocial and bad, they would have never come together to form a society or state.
  • Hobbes’s depiction of the state of nature is exaggerated, unreal and misleading.
  • The Hobbesian contract was permanent. There was no way to escape from the tyrannical government. 
  • According to the Hobbesian contract, liberty was a gift given by the sovereign rather than a right. 
  • Civil liberties are restricted in Hobbesian state.

Locke’s theory of social contract

Locke’s social contract theory explains that legitimate political authority was derived from the consent of people and such consent could be withdrawn if the freedom of the individual was violated.

State of nature

Locke conceived men as being free, independent, and equal in the state of nature. He described the state of nature as one of perfect equality where all humans enjoyed the right to life, liberty, and property. Locke’s state of nature was in stark contrast to that of Hobbes. Here, the man was not as brutish and selfish as described by Hobbes. The state of nature was not a state of war but a state of “peace, goodwill, mutual assistance, and preservation”. Locke’s state of nature talks about a pre-political order rather than a pre-social order. In the state of nature, man is governed by the law of nature. God made everything for subsistence and not for waste. Therefore, man had no right to take his own life or the life of others since even human life was given by God as a trust.

Social contract

According to Locke, the individual was a free and rational being who became a political subject out of his free choice. The purpose behind the formation of civil society was to protect and enlarge freedom. The state of nature was one of equality and liberty but it lacked security. Peace was not secure in the state of nature and was constantly disturbed by the viciousness of some degraded men. The state of nature lacked the following three important elements:

  1. An established, settled, and known law
  2. A known and indifferent judge
  3. An executive power to enforce just decisions

Thus, Locke tried to explain that men consented to the establishment of political authority to ensure greater observance of the laws of nature, to bring impartiality in decision making and implementation of rules, and to secure peace. People entered into the social contract for the protection of their life, liberty, and property.

It can be said that in Lockean theory, there are two aspects to the social contract :

  1. Individuals contracted with each other to submit to majority rule and organise themselves as a civil society for the protection of life, liberty, and property. The individuals did not surrender all of their natural rights but only the right to interpret and execute the law of nature and restore their grievances. These three specific rights to enforce the laws were now vested in the community as a whole.
  2. After the establishment of civil or political society, the second task was to appoint a government that will declare and execute the natural law. Individuals established a government to act as a judge in the nature of a “fiduciary power” for promoting certain ends.

Even after establishing a government, the community retained supreme power, meaning that if the government failed to preserve society or if its performance was not satisfactory, people could take steps to change the government. Thus, the government could be changed, altered, or dissolved legitimately

Features of Lockean contract and political authority

  • The relationship between civil society and government is based on trust. If the government acts contrary to the trust reposed in it by the community, the people have the power to change the government.
  • Political authority is legitimate as long as it is based on the consent of the people. 
  • The government is not a party to the contract.
  • The government was to have three wings:
  1. Legislature: It had the power to make laws. The legislature was the supreme body within the government. 
  2. Executive: The power to enforce the law was vested in the executive. Executive also included the judicial power. The executive was subordinate and accountable to the legislature.
  3. Federative: The Federative wing had the power to make treaties and conduct external relations.
  • Locke was of the view that absolute political power is illegitimate and advocated for a limited sovereign state. The state existed for the people who formed it and not vice versa. The state must be based on the consent of people subject to the Constitution and the rule of law.
  • The sovereign was limited since it derived power from community/people in a fiduciary capacity.
  • The obligation of people to obey the government was conditional on the protection of an individual’s right to life, liberty, and property by the government.
  • The state is to deal with political matters and cannot interfere anywhere else. There was a dichotomy between state and society, the private and the public sphere. Even after the establishment of the State, an individual has the right to pursue his activities in a private sphere without any interference.
  • The purpose of government is to protect and uphold natural rights, especially the right to life, liberty, and property.

Criticism 

  • Locke assumed that a minority would consent in all things to rule by the majority.
  • The government is not a party to the contract.
  • People cannot be given a choice to disobey the law.
  • The state of affairs existing in Locke’s state of nature is unreal and hard to believe.
  • It seems that Locke is encouraging people to cause rebellion.

Rousseau’s theory of social contract

State of nature

According to Rousseau, in the state of nature man was solitary but happy, healthy, and free. Human beings were guided by instincts of self-preservation and compassion. Man differed from other animals because he possessed a will and desire for perfectibility. He was innocent and independent and ignorant of any rights, passion, vengeance, interests. Rousseau’s view was that humans were not born with reason. It was a quality that remained dormant until a situation arose for its need. Human beings were happy without reason or thinking. The emergence of reason led to an increase in the wants and needs of humans. As a consequence, man ceased to be happy and his life became miserable and far from peaceful. Rousseau called the departure from the state of nature “a fatal accident”. He has described the state of nature as a golden past that could not be recaptured. 

For Rousseau, it was important to study the state of nature because of the following reasons:

  1. To understand the original primitive condition of mankind
  2. To identify the qualities and characteristics of human nature in man’s original state
  3. To describe and evaluate the new state of nature, i.e., the present-day society

Civil Society: fraudulent social contract

As people started living together, individuals realised that they could rely or depend on others in certain matters of mutual interest. Then, as the man started living separately with his family, he discovered love and beauty and started acting rationally rather than instinctively. Small communities developed. Division of labour was introduced. Men started to make discoveries and inventions and in their leisure time, they made comparisons with others. This developed feelings of jealousy, pride, and contempt. Once they started to live in a society, human beings transformed psychologically. On entering society, a man entered into the phase of dependence. The creation of private property and the division of labour generated differences in wealth, power, and status. This interdependence led to inequality. A man who was supposed to become more free ended up in chains by losing his independence. This is why Rosseau called the emergence of society and departure from the state of nature a fatal accident. Civil society came into existence to protect the property of the privileged few. It was formed to protect peace and protect the right to property of those who were lucky enough to have possessions. It converted de facto ownership into rightful ownership and the poor remained dispossessed of any property. However, one thing was clear once civil society emerged there was no going back to the state of nature. 

Solution: Genuine social contract

In order to become free, every individual must give up all his rights to the entire community, creating the same conditions for all and thus creating equality. Rousseau talked about the creation of a right society instead of a first society. According to him, men are subject to “general will” which exists for the public good. Consent is the basis for political authority. Force can never be a basis for establishing political authority. Also, society is not a natural occurrence. Man can enter into society(relationships with other men) out of his own will and choice. A higher organisation would be a polity that would look after the general interests of its members. The right kind of society would enhance human freedom. The object of the social contract was to reconcile liberty with authority. Rosseau rejected the idea that the social contract involved the surrender of freedom to a third person.

Rousseau said that “man is born free and is everywhere in chains”. A community that was constituted by all consenting individuals voluntarily submitting to the general will was the solution to his paradox of persons born free, but yet in chains.

Features of Rousseau’s contract and political authority

  • Every human activity was related to politics.
  • Oppression can never lead to the formation of a society.
  • Consent is the basis of society. 
  • Rousseau gave importance to the general will of the community along with the need to protect individual freedom. He attempted to reconcile the claims of a community with that of the individual and the claims of authority with those of liberty. 
  • Sovereignty is the exercise of the general will. All individual rights are subordinate to the general will.
  • The creation of a community leads to a moral transformation of the individual.
  • An ideal republic would be a community of virtue. 
  • Rousseau described Ancient ‘Sparta’ and ‘Rome’ as models of his ideal republic.  
  • The ‘general will’ would be the source of all laws. The executive will could not be the general will. Only the legislative will which was sovereign could be general will. 
  • The State should be a consensual and participatory democracy. According to Rousseau, direct democracy embodied the legislative will. 
  • Human beings can become truly free by following the dictates of the law.
  • Rousseau rejected the idea of total surrender of powers which made the individual submissive to the Sovereign. 
  • Sovereignty was inalienable and indivisible.
  • Sovereignty originated and stayed with the people. 
  • Rousseau described the government as an agent of the general will.
  • As Rousseau did not see any possibility of the general will becoming tyrannical, he did not provide any safeguards against such a condition.
  • Liberty for Rousseau was the greatest good. 
  • Property was the root cause of moral corruption and injustice.

Criticism

  • Rousseau’s idea of the general will is too vague. 
  • Rousseau failed to give a practical example of his social contract.
  • His theory is paradoxical as while maintaining that society has corrupted mankind, he devises another social contract to eliminate this corruption.
  • The abstract general will seems to be an absolute regime.

Need for a renewed social contract

While traditional social contract theories deal with the origin of state and society, the modern versions and revivals of social contract theories are not concerned with that. The social contract on which society is currently based emerged as a means to tackle the post-war problems. The social contract must be changed and updated with a change in circumstances. The pandemic that the world witnessed beginning in 2020 and is still witnessing has called for the need for a renewed social contract. The United Nations(UN) in Part II of “Our Common Agenda-Report of the Secretary-General” has proposed the renewal of the social contract. The foundations of the new social contract are as follows:

  1. Trust: In order to build trust and counter mistrust between people and institutions and different groups of society, the report makes the following proposals:
  • Establishment of institutions that listen: Governments should conduct national listening and envisioning the future exercises and establish better ways of listening to the people that it serves.
  • Services: Governments are urged to make investments in public systems and services and ensure quality public servants.
  • Justice and rule of law: The Secretary promoted a new vision of law and recognised justice as an essential element of the social contract.
  • Taxation: Governments should consider using taxation for reducing inequalities in wealth. 
  • Stringent actions must be taken to tackle corruption.
  • Information in digital space: A global code of conduct that promotes integrity in public information could be explored together with States, media outlets and regulatory bodies, facilitated by the United Nations. 
  1. Inclusion, protection and participation
  • Social protection systems including Universal Health Coverage
  • Education and lifelong learning
  • Decent work 
  • Women and girls at the centre, peace at home
  • Adequate housing digital inclusivity
  1. Measuring and valuing what matters to people and the planet
  • Finding measures of progress that complement GDP 
  • Implementing the recent System of Environmental-Economic Accounting (SEEA)
  • Considering alternatives to GDP, such as the human development index, the inclusive wealth index, the Genuine Progress Indicator, the multidimensional poverty index and the inequality-adjusted human development index. 
  • Finding ways to validate care and informal economy such as valuing the unpaid care work, investing in quality paid care as part of essential public services and social protection arrangements.

Thus, the report recognised the importance of the renewal of the social contract between governments and their citizens and within the societies as well. It is time to rebuild trust and embrace a comprehensive vision of human rights.

Conclusion

The above-mentioned social contract theories have been described as hypothetical arrangements to understand and clarify certain political problems. A significant conclusion to be drawn from social contract theories is that law and political order are not natural, but have been created by humans. A social contract is only a means for achieving the end of maximum good and benefit of all individuals in the form of protection of civil liberties, law and order and peace. It is a sort of agreement by people on the laws and rules by which they are to be governed. 

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here