7 Post Renaissance Development of Natural Law- Social Contract Theories

Introduction

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 nature1and the idea of divine dispensation.2 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

1 W. Friedmann , Legal Theory (Fifth Edition, Universal Law Publishing Co. 2008) 98-101

2  ibid 104-108

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.3 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.4

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 degree5 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.6 It is this contract which governs the terms of the relationship between the state and the individuals.7 In the works of different philosophers, this contract has been propositioned as a historical fact and also as a legal postulate.8

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 people9 on whom it is exercised and not from a divine dispensation.10 Each theory discards the proposition that political authority is derived from celestial disposition. In retrospect, this aspect of social

3  Friedmann (n 1) 117; “therefore when men act unjustly towards one another, and thus experience both the doing and suffering, those amongst them who are unable to compass the one and escape the other, come to this opinion: that is more profitable that they should mutually agree neither to inflict injustice nor to suffer it. Hence men began to establish laws and covenants with one another, and they called what the law prescribed lawful and just.”

4  M.D.A Freeman (eds), Lloyd’s Introduction to Jurisprudence, (Eighth Edition Sweet and Maxwell 2008) 105;“The social contract is a wholly formal and analytic construct that can be used as means of presenting conflicting political ideals. In Hobbes (or Bodin or Grotius) it is used in defence of absolutism: in Locke in support of limited constitutionalism.”

5 See (n 28), (n 51) and (n 77)

6 This process has been explained by many consisting of two related processes of common agreements. By the first one, the society is established and by the second one, government is established. See Friedmann (n 1) 118; “.. men have at some time passed to a state of society, by means of contract in which they undertake to respect each other and live in peace (pactum unionis). To this contract is added simultaneously or subsequently a second pact by which the people thus united undertake to obey a government which they themselves have chosen (pactum subjectionis)”

7  Brian R. Nelson, Western Political Thoughts (Second Edition Pearson Education Inc 2011) 172; “The basic idea of the social contract is actually quite simple: The state is the result of a contract between human beings, and the scope and extent of the powers of the government are to be determined by an analysis of the terms of the contract.”

8 Friedmann (n 1) 118

9  Freeman (n 4) 106; “At root the political theory is that no man can be subjected to the political power of another without his own consent, Obedience to authority is thus legitimated by voluntary submission to those who exercise authority. But what individuals have consented to differs radically according to the particular values of the contract theorist.”

10Friedmann (n 1) 118

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.11

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.12

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.13 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.14 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.15

11Friedmann (n 1) 118; “…. the whole theory of social contract is a forerunner of democratic theory.”

12 ibid 119; “Grotius uses the construction of social contract… internally for the purpose of justification of the absolute duty of obedience of the people to the government,…”

13Ibid; “Grotius puts forward social contract as an actual fact in human history.”

14Ibid; “The constitution of each state he thinks is preceded by a social contract, by means of which each people had chosen the form of government which they considered most suitable for themselves.

15 ibid; “Whatever opinion one might hold about the excellence of the one or the other form government, each people has the right to chose the government it prefers.”

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.16 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.17 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.18 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)

Political Context

The political theory of Thomas Hobbes must be appreciated in light of the socio-political context he lived in19 and the ideals for the fulfilment 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 theory20 which would eliminate the possibilities of a disorderly society21 by making the authority of the state absolute and unquestionable.22

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.23 His depiction of the state of nature

16ibid; “…. they forfeit the right to control or punish the ruler however bad his government.”

17S.K. Sharma and Urmila Sharma, Western Political Thought Vol. 1, (Atlantic Publishers and Distributors Pvt. Ltd.2006) 376; “To Grotius political sovereignty is human in origin. It is vested in people who may delegate it conditionally or unconditionally. After delegating it, they cannot take it back.”

18 ibid 376; “The sovereign must obey natural law, divine law, constitutional law and law of nations. But no civil law or human law is binding upon him.” Also Friedmann (n 1) 119; “Grotius appears strangely vacillating on the question how far a ruler is bound by promises to his subjects. On the one hand, his sovereignty must not be impaired, at least in any case where authority has not been merely temporarily conferred upon him. On the other hand, Grotius is bound to admit from his philosophical premise that the ruler is bound by natural law which is valid even without promise. And the keeping of promises is, as we have seen, a paramount principle of natural law.”

19S.K. Sharma and Urmila Sharma (n 17) 385; “Hobbes’ political writings were prompted by the civil wars and were intended by him to exert influence upon the side of the king.”

20 Nelson (n 7) 173; “Indeed, the whole idea of the social contract is an act of imagination. Hobbes does not really believe that civil society was formed at some determinate historical period by people sitting down and actually writing a contract, anymore than he believes in a real state of nature.”

21Freeman (n 4) 106; Hobbes’s own goal was to rule out the legitimacy of civil rebellion and thus eliminate the possibility of civil war, which he regarded as the greatest of evils.”

22 Friedmann (n 1) 120: “Living during the civil wars in England, Hobbes was convinced of the overwhelming importance of state authority, which he thought ought to be vested in an absolute ruler.”

23  S.K. Sharma and Urmila Sharma (n 17) 386; “Social behaviour, upon which the art of government rests….Hobbes proposed to show not what the government is, but what it must demonstrably be in order to control successfully beings whose motivation is that of the human machine.”

which provides the justification of the social contract is a direct consequence of the influential attributes of human nature.24

As perceived by Hobbes, human conduct is governed by impulses of selfishness, greed and uncontrolled aggression.25 The character of a man is marked by an endless appetite for power and selfish motivations.26 When all men are governed by such confrontational impulses,27 it results in a state of continuous and escalated friction.28 The state of nature is marked by lack of prosperity and preponderance of misery.29

Social Contract and its Implications

These states of affairs instigate30 surrendering all their natural rights31 men towards the necessity of self-preservation by to a ruler who in turn assures them of the preservation

24ibid 387; “Hobbes described state of Nature by his idea of selfish nature of man.”

25 Friedmann (n 1) 120-21: “In this natural state man pursues solely his own advantage without regard for anyone else and recognizes no limitation of his rights.”

26 S.K. Sharma and Urmila Sharma (n 17) 387; “Hobbes, thus described the individual as a completely self-centred and power-seeking animal.”

27 ibid 387; “The only basis of human action is a perpetual desire for power because man is essentially selfish and egoistic.” Also ibid 388; “In the state of Nature, each human being is actuated only by considerations that touch his own security or power. Other human beings are of consequence to him only as they affect this.”

28Thomas Hobbes, Leviathan (Hachetet India 2010) 71; “…men live without a common Power to keep them all in awe, they are in that condition which is called Warre; and such a warre, as if of every man, against every man.” Friedmann (n 1) 121; “Hence a state of perpetual and devastating warfare which threatens everyone.”

29  ibid 71; “In such condition, there is no place for Industry, because the fruit thereof is uncertain: and consequently no Culture of the Earth, no Navigation, nor use of the commodities that may be imported by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Soceity; and which is worst of all, continuall feare, and danger of violet death. And the life of man, solitary, poore, nasty, brutish and short.”

30 This is realised by the capacity of reason in an individual which is in contrast to the self-defeating nature which prevails otherwise. S.K. Sharma and Urmila Sharma (n 17) 388; “And if on the basis of Hobbes’ description of this part of human nature, we once told that man is completely self-centred and egoistic or savage and anti-social, it is not possible for him to set up government. It is, therefore, necessary to analyze the second principle in human nature, which is reason.”

31 Freeman (n 4) 106; “For each citizen to preserve his own life, he must give absolute and unconditional obedience to the law.”

of their lives.32 Unlike Grotius, Hobbes could not visualise any form of social contract apart from the one where all natural rights are surrendered to the ruler.33 He did not accept a form of social contract where anything less than the totality of the natural rights are surrendered to the government.34 However, where Grotius was not categorical,35 Hobbes is emphatic that the subjects cannot demand the fulfilment of any obligations by the ruler.36 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.37 He justifies the absolute authority of the state38 by linking it to a common purpose39 for which the authority has been created.40

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.41 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.42 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 fulfilment of these very rights that the state is conferred with extensive authority.

Criticism

32ibid; “Law and government thus become necessary as a means of promoting order and personal security.”

33 Hobbes (n 28) 99; “The only way to erect such a Common Power, as may be able to defend them from the invasion of Forraigners, and the injuries of one another, and thereby to secure them in such sort, as that by their owne industrie, and by the fruites of the Earth, they may nourish themselves and live contentedly; is, to conferre all their power and strength upon one Man, or upon one Assembly of men, that may reduce all their Wills, by plurality of voices, unto one Will: which is as much as to say, to appoint one man, or Assembly of men, to beare their Person; and every one to owne, and acknowledge himselfe to be Author of whatsoever he that so beareth their Person, shall Act, or cause to be Acted, in those things which concerne the Common Peace and Safetie; and therein to submit their Wills, every one to his Will, and their Judgements, to his Judgment.”

34 Friedmann (n 1) 121: “Hobbes, does not, like Grotius, recognise an unlimited variety of social contracts by which people may surrender a greater or smaller proportion of their rights.”

35At (n 18)

36  Friedmann (n 1) 121; “Hobbes emphatically rejects any contractual or quasi-contractual right by which subjects could demand the fulfillment of certain obligations by the ruler.”

37 ibid 122: “Hobbes’ sovereign…… is in no way instituted and legitimated by superior sanction whether of divine right or natural law, or of anything else. He is purely and solely a utilitarian creation of the individuals who institute him in order to prevent them from destroying each other.”

38 S.K. Sharma and Urmila Sharma (n 17) 393; “… for Hobbes, there is no choice except between absolute power and complete anarchy, between an omnipotent sovereign and no society of whatsoever kind.”

39 ibid 390; “The power of the state and the authorities of the law are justified so far as they contribute to the security of the individual human beings.”

40Freeman (n 4) 106; “Hobbes informs us that we should infer the characteristics of political obligation from the intention of him that submitteth himself to his power, which is understood by the end for which he so submitteth. His theory of political obligation is thus derived from a consideration of the end of the institution of sovereignty, namely, the peace of the subjects within themselves, and their defence against a common enemy.”

41Friedmann (n 1) 120: “Hobbes shifts the emphasis from natural law as an objective order to natural right as a subjective claim based on the nature of man and thus prepares the way for the later revolution of individualism in the name of ‘inalienable rights’”

42Freeman (n 4) 106; “In Hobbes’s there is the germ of a concept of natural rights, the idea that man may make certain legitimate demands on his fellow men.”

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,43 turning them into nothing more than a set of moral guidelines44 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.45 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.46 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.47

John Locke (1632-1704)

Political Context

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.48 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 state49 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 Estate50 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.51 Endowed with the faculty of reason, men followed the law of nature which enabled them to decipher the ways of the world.52 In such a state of

43Friedmann (n 1) 120; “… Hobbes still acknowledges objective rules of natural law of an immutable character, but he divests them of any practical significance by depriving them of sanctions.”

44 Edgar Bodenheimer, Jurisprudence The Philosophy and Method of the Law (Sixth Indian Reprint Universal

Law Publishing Co. Ltd. 2009) 43; “Thus in its practical effect Hobbes’s law of nature is nothing more than moral guide for the sovereign, while law in its proper sense consists of the commands of the sovereign.” Also Friedmann (n 1) 121; “Natural law, though still given a place of honour- Hobbes enumerates no fewer than nineteen principles- is shorn of all power.”

45ibid 42; “If the government enacts iniquitous or tyrannical laws, this does not entitled the people to resist their enforcement; the only sanction for governmental wrong is that the rulers, instead of enjoying a happy afterlife, will suffer the pain of eternal death.” For more see Hobbes (n 28) 100-07

46ibid 44; “For Hobbes, the function of government exhausts itself in preserving peace and security….”

47 S.K. Sharma and Urmila Sharma (n 17) 399-400

48Friedmann (n 1) 123; “Locke restored the medieval conception of natural law in so far as he made it superior to an immutable by positive law.”

49 Freeman (n 4) 108-09; “Locke ….. was not an enemy of political authority. He saw it as a human good. Rulers have the right to rule , to use their political power for the public good.

50John Locke, Two Treaties of Government ( Twenty-first Printing Cambridge University Press 2010) 350

51 Freeman (n 4) 107; “To Locke the state of nature that preceded the social contract was not, as conceived by Hobbes, one of brutal horror, but rather a golden age, an Eden before the Fall.” Friedmann (n 1) 123; “Like Hobbes, Locke goes back to a state of nature, but his state of nature is Paradise Lost, a state “peace, good will, mutual assistance and preservation.””

52ibid 107; “It is through exercising reason that men can and should know what God wills them to do.”

nature, man was free to act on his will and conduct himself as per his discretions53 as long he did not harm the interests of another man.54 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.55 Every man56 enjoyed the authority to guard against the violations of the law of nature and had the consequential authority to impose sanctions for its violations.57 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.58 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.59 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.60

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.61

2.  The power to enforce the law of nature by punishing transgressors.62

53Bodenheimer (n 44) 45; “Locke assumed that the natural state of man was a state of perfect freedom, in which men were in a position to determine their actions and dispose of their possessions as they saw fit.”

54  ibid 45; “This state of nature was governed by a law of nature which, looking toward the peace and preservation of mankind, taught men that, all persons being equal and independent, no one ought to harm another in his life, health, liberty or possessions.”

55 Locke (n 50), 271; “And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man’s hands, whereby everyone has a right to punish the transgressor of that law to such a degree, as may hinder its violation…”

56The idea of everybody being entitled to enforce the law of nature is explained by Locke as consequence of the perfect equality which persists in the state of Nature. Locke (n 50) 272; “For in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in the prosecution of that law, every one must needs have a right to do.”

57Bodenheimer (n 44) 45; “As long as the state of nature existed, everybody had the power to execute the law of nature and punish offences against it with his own hand.”

58 Locke (n 50) 351; “…In the state of nature there wants a known and indifferent judge, with authority to determine all differences according to the established law: for everyone in that state being both judge and executioner of the law of nature, men being partial to themselves, passion and revenge is very apt to carry them too far, and with too much heat, in their own cases; as well as negligence, and unconcernedness, to make them too remiss in other men’s.”

59 ibid 350; “though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others: for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure.”

60 Bodenheimer (n 44) 45; “In order to end the confusion and disorder incident to the state of nature, men entered into a compact by which they mutually agreed to form a community and set up a body politic.”

61 Locke (n 50) 352; “The first power, viz. of doing whatsoever he thought for the preservation of himself, and the rest of mankind, he gives up to be regulated by laws made by the society, so far forth as the preservation of himself, and the rest of that society shall require; which laws of the society in many things confine the liberty he had by the law of nature.”

62 ibid 353; “Secondly, The power of punishing he wholly gives up, and engages his natural force, (which he might before employ in the execution of the law of nature, by his own single authority, as he thought fit) to assist the executive power of the society, as the law thereof shall require:”

Thus the state becomes a purposive enterprise63 created in order to serve a foundational objective and these objectives determine the extent of its authority.64 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 trust65 with consequential duties to honour the said trust.66 The state in this scheme did not have unchallenged authority67 and was liable to have its actions questioned on the ground of being violative of the natural rights of men.68 As long as the government fulfils its promise, there is no legitimate cause for which it can be deprived of its authority.69

Criticism

One of the major inconsistencies70 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.71 If an individual is obligated to abide by the will of the majority,72 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.73 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.

J. Rousseau (1712-88)

Political Context

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.74 This complexity of his theory has allowed it to be contextualised

63 ibid 350-51; “The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property. To which in the state of nature there are many things wanting.” Here Locke uses the term property in the larger sense of including lives, liberties and estates. See ibid 350

64 Bodenheimer (n 44) 46; “If it deals arbitrarily and improperly with the lives and fortunes of the people, it violates the essential conditions of the social compact and the trust relationship under which it holds its power.”

65Freeman (n 4) 109; “Central to Locke’s conception of government was the idea of trust.”

66 Friedmann (n 1) 123; “He used the notion of social contract, not, like Hobbes, in order to demonstrate the transfer of all natural rights to authority, but on the contrary, to justify government by majority and to show that governments hold their power in trust, with the duty to preserve the individual rights whose protection the individuals have entrusted to them.”

67Freeman (n 4) 108-09; “… all men had the right to resist the ruler, even of a legitimate political society, where he manifestly abuses his power.”

68 ibid 109; “Men put their trust in their sovereign. A ruler who betrays this trust must be overthrown. He puts himself into a state of war with his subjects and each of these has the same right to resist him as any other unjust aggressor.”

69Friedmann (n 1) 124

70 For a more detailed overview, See S.K. Sharma and Urmila Sharma (n 17) 437-39

71  Friedmann (n 1) 124; “There are many logical flaws in Locke’s theory, such as the incompatibility of inalienable individual rights with majority rule.”

72ibid; “At the same time, Locke states that a majority agreement is identical with an act of the whole society, as the consent by which each person agrees to join a body politic obliges him to submit to the majority.”

73Freeman (n 4) 109

74 Bodenheimer (n 44) 53; “It is not altogether easy to follow the rather complex deductions of Rousseau.”

for competing ideologies.75 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.76

Human Nature and State of Nature

Rousseau’s depiction of the state of nature is closer to that of Locke.77 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.78 The state of nature is not that of warfare or unhappiness but one primarily of individual isolation.79 The element which disturbed the inherent nature of peace is the institution of private property.80 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.81 For him, the submission of all natural rights to the community in itself was a guarantee of the continued enjoyment of such rights.82 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.83 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. 84

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.85 The sovereign was not any

75Friedmann (n 1) 125; “Rousseau’s work simply abounds in contradictions; it would be easy to quote him as a champion of inalienable individual rights as well as of the absolute supremacy of the community; as a nationalist- or as a cosmopolitan; as a defender of reason- or as an autocrat.”

76 ibid 125; “Rousseau contrives to justify the people’s sovereignty, the volente generale, on the one hand and the original and inalienable freedom and equality of all men on the other.”

77Freeman (n 4) 111

78S.K. Sharma and Urmila Sharma (n 17), 464; “According to Rousseau man by birth had no evil tendencies. It was the result of wrong social actions which made him evil.”

79ibid 465; “Rousseau believed that in the state of nature all lived as isolated and had neither ties of obligations nor duties……. Man was in peaceful ignorance.”

80 ibid; “Institution of private property, which entered the society, disturbed the whole atmosphere of pre-civil state.”

81Friedmann (n 1) 125; “Essentially Rousseau’s argument is that freedom and equality of men were the basis of their happiness, existent in primitive communities and lost in modern civilisation. Now that the blissful natural state of society has gone, the task is to find a form of social organization which guarantees those natural rights of freedom and equality.”

82 Bodenheimer (n 44) 53; “ Each man, in giving himself to all, gives himself to nobody; and as there is no associate over whom he does not acquire the same right as he yields others over himself, he gains an equivalent for everything he loses, and an increase of force for the preservation for the preservation of what he has.”

Quoting Roussearu, The Social Contract Book I, Chapter 6

83S.K. Sharma and Urmila Sharma (n 17) 471; “The state, according to Rousseau, which is created through the social contract is not an arbitrary state. It is established to maintain an atmosphere in which individuals can enjoy their liberty in the best possible way.

84 Freeman (n 4) 111; “To Rousseau, the social contract is a mystical construct by which the individual merges into the community and becomes part of the general will”

85 ibid 112; “Law is the register of the general will. Government can only be tolerated so long as it accurately reflects the general will.”

individual or institution to whom the individuals surrendered their natural rights.86 The individuals are prone to the general will of the community.87 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.88 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.89 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,90 which consequentially protects the rights of the individual as well.91 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.92

Criticism

The contentious points in the theory of Rousseau are primarily to do with his championing of contrasting set of ideals which are seemingly not capable of occupying the same framework due to the inherent opposite nature in the values reflected.93 Another ambiguity in his theory is the insufficient explanation of the concept of ‘general will’.94 He does not explain the means by which the exact ‘general will’ of a given community can be determined.95 Questions have also been raised about the unsuitability of the ‘general will theory’ in relation to larger states as distinguished from smaller city states where his theories seemed more applicable. Moreover, his theory has trappings of despotism of the majority as he refused to acknowledge any categorical restraint on the will of the majority.96 However, it is a weakness more in the modality with which he sought to protect the individual’s liberty. What cannot be

86 S.K. Sharama; 470; “It should be observed here that the ‘sovereign’ means, in Rousseau, not the monarch of the government, but the community in its collective and legislative capacity.”

87 Bodenheimer (n 44) 53; “In civil society, the individual is subject to no other individual, but merely to the general will, that is, the will of the community. Sovereignty, to Rousseau, meant the exercise of the general will.

88ibid 54; “The sovereign he argued, being formed wholly of the individuals who compose the state, can never have any interests contrary to theirs. The sovereign therefore need not give any guarantees to his subjects. Each individual, in obeying the general will, merely obeys himself.”

89J.Rousseau,‘TheSocialContract’https://archive.org/stream/therepublicofpla00rousuoft/therepublicofpla00rousuoft_djvu.txt accessed on 9

October 2014; “In any case, the moment a people allows itself to be represented, it is no longer free: it no longer exists.”

90ibid (n 89); “the total alienation of each associate, together will his all rights, to the whole community; for, in the first place, as each gives himself absolutely, the conditions are the same for all, and this being so, no one has any interest in making them burdensome to others.”

91 S.K. Sharma and Urmila Sharma (n 17) 470; “According to Rousseau, there could be no conflict between authority vested in the people as a whole and their liberties as individuals.”

92 Bodenheimer (n 44) 55; “There is no contract of subjection between the people and the government, such as had been construed by Hobbes. Expressed in legal language, government is nothing but an agency which may be revoked, limited, or modified at the will of the sovereign people.”

93Friedmann (n 1) 125; “His whole Contract Social labours under the difficulty of proving the superiority both the organic community and of natural rights of man.”

94ibid 126; “Rousseau never develops the implications of general will to consistent conclusions.”

95Friedmann (n 1) 126, also S.K. Sharma and Urmila Sharma (n 17) 474-76, also Bodenheimer (n 44) 54; “The general will is the central concept in Rousseau’s philosophy, but the full meaning of the term is far from clear and has been the subject of a great deal of argument and controversy”

96 Bodenheimer (n 44) 55; “There can be no doubt that Rousseau’s theory may easily lead to an absolute democracy, in which the will of the majority is not subject to any limitations. He leaves no safeguard against the omnipotence of the sovereign and no guaranty of natural law except the wisdom and self-restraint of the majority.”

doubted however is that the predominant purpose behind his theory was to ensure the protection of the liberties of the individual.

Summary

1. Generally, theories of social contract are directed to underline that the state derives its authority from consent of the people and its powers are limited to the purpose for which the people have given consent.
2. The theories of social contract as envisioned by different scholars vary in terms of objective, content and nature of social contract.
3. Grotius recognised the right of people to choose the kind of government they wanted to be governed by.
4. Grotius did not accommodate the idea of dissent of disobedience against a government so chosen.
5. Thomas Hobbes justified the creation of social contract by postulating that nasty human nature led to a state of conflict from which social contract provided the only escape.
6. The social contract of Hobbes involved a total surrender to rights to the sovereign and an absolute authority of the state over its subjects.
7. As per Locke, it was not evil human nature which necessitated a state but the inherent deficiencies in the state of nature which created a fragmented and inconsistent enforcement of the laws of nature.
8. Locke focuses more on the inviolability of the rights of an individual and the social contract operates as a limiting instrument on the powers of the state.
9. The social contract conceptualised by Rousseau is not as much of a contract as it is an act of collective authorisation as there is no bipartite agreement similar to that of Hobbes or Locke.
10. Rousseau did not support the representative form of democracy and instead emphasised on people directly exercising their power of governance by what he called as “General Will” of the society.