SOCIAL CONTRACT THEORY

SUBMITTED TO

THE TAMILNADU NATIONAL LAW SCHOOL, TIRUCHIRAPPALLI

In Fulfilment of the Requirements for Internal Component in

POLITICAL SCIENCE

SUBMITTED BY SUBMITTED TO

RESEARCHER PROF: SUBBA RAO

S.DHINESH (BC0140020) FACULTY INCHARGE OF FAMILY LAW – 2

SUBMITTED ON 29TH MAY,2017 TNNLS

INTRODUCTION

The Social Contract Theory which dominated the European political thought in the
Eighteenth century has played a very important part in the development of the modern
political theory and practice. Off all the speculative theories, the social contract theory is
most important. It is one of the oldest theories. This theory came into being as a result of
reaction against the theory of Divine Origin. Examples of this theory are available in many
countries both East and the West. According to this theory, the state was not created by god.
On the contrary, under the compulsion of circumstances, people contracted with the rulers
and as a result the state was organised. This theory offers an explanation for the origin of the
state and shows a relationship between those who govern and those who are governed. It is a
mechanical theory which starts with the assumption that prior to the organization of the state
man lived in a “state of nature”. It deals with two fundamental assumptions- first, a “state of
nature” and second, a contract.

OBJECTIVES

A. To understand Social Contract Theory.

B. To study the views of some famous exponents of Social Contract Theory.
C. To study the merits and criticisms of the Theory.

METHODOLOGY AND LIMITATIONS

Methodology- I have done this project on the topic “The Social Contract Theory”. I have
adopted doctrinal research based on the second hand sources for the purpose of my study.

Limitations- I have restricted my research to the views of Thomas Hobbes, John Locke and
Jean Jacques Rousseau due to lack of time and unavailability of sufficient study materials and
other resources.

WHAT IS SOCIAL CONTRACT THEORY?

Social contract, in political philosophy, an actual or hypothetical compact, or agreement,

between the ruled and their rulers, defining the rights and duties of each. In primeval times,
according to the theory, individuals were born into an anarchic state of nature, which was
happy or unhappy according to the particular version. They then, by exercising natural
reason, formed a society (and a government) by means of a contract among themselves.
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:-

1. Pactum Unionis; and

2. 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 subjectionis, 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. Man’s 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 self protection and
self preservation, and to avoid misery and pain, man entered into a contract. This idea
of self preservation and self-protection are inherent in man’s 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”, 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.

 Hobbes also argues that human beings are reasonable. 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. All real law is civil law, the law
commanded and 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 inter-woven 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. Locke’s 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 one’s life as one best sees fit. It was free from the
interference of others. In that state of nature, all were equal and independent. 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,
 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

 Property plays an essential role in Locke’s argument for civil government and the
contract that establishes it. According to Locke, private property is created when a
person mixes his labour 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
allowed to take so more from nature than oneself can use, Property is the linchpin of
Locke’s 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:-
1. Absence of established law;
2. Absence of impartial Judge; and
3. 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.

 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 Locke’s 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.

 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 labour 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, For Rousseau the invention of property constitutes humanity’s ‘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
civilisation. Through Social Contract, a new form of social organisation- the state
was formed to assure and guarantee rights, liberties freedom and equality.

 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 favoured people’s 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. Rousseau’s 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 HOBBES, LOCKE AND ROUSSEAU

Hobbes Locke Rousseau

The state of nature is Men exist in the state of Men in a state of nature
a state of war. No nature in perfect are free and equal. In a
morality freedom to do what they state of nature, men are
exists. Everyone lives want. The state of “Noble
in constant nature is not necessarily Savages”. Civilization
State of Nature fear. Because of this good or bad. It is is what corrupted him.
fear, no one is really chaotic. So, men do
free, but, since even give it up to secure the
the “weakest” could advantages of civilized
kill the “strongest” society.
men ARE equal.
To impose law and To secure natural rights, To bring people into
Purpose of order to prevent the namely man’s property harmony. To unite them
Government state of war. and liberty. under the “General
Will”.
Governments are Representation ensures Representation is not
designed to control, that governments are enough. Citizens
not necessarily responsive to the cannot delegate their
represent. people. Representation civic duties. They must
Representation is a safeguard against be actively
oppression. involved. Rousseau
favors a more direct
democracy to enact the
general will.
Governments must be 1. Governments 1. Governments
designed to protect must be designed to must be responsive
the people from protect the people and aligned with
themselves. from the the general will.
government. 2. People make a
Impact on
2. Natural Rights nation, not
Founders
must be secured. institutions.
3. Individual wills
are subordinate to
the general
(collective) will.

Natural state of equality/freedom

 Hobbes: “Nature hath made men so equall, in the faculties of body, and mind . . .”
(86)
 Locke: state of nature is state of freedom and equality (287)
 Rousseau: “Man is born free; and everywhere he is in chains” (387)
STATE OF NATURE

 Hobbes: in absence of fear of common power (88, 90, 96, 117, 118, 120), war of all
against all (88-90); no right and wrong, no justice and injustice, no “propriety,” no
dominion, no mine and thine distinct (90).
 Locke: state of freedom and equality. It preexists political society, but is not a state of
limitless license (288). Law of nature = reason (289). State of nature is not purely
hypothetical: “That since all Princes and Rulers of Independent Governments all
through the World, are in a State of Nature . . .” (294).
 Rousseau: no private war in state of nature, no property (390). War in general is a
relation between state and state, not between man and man (390).

FREEDOM

 Hobbes: Right of nature = liberty each of us has to use power for preservation of our
own nature (91). Liberty = absence of external impediments (91).
 Locke: state of perfect freedom to order our actions, dispose of possessions and
persons within bounds of law of nature = natural state. Liberty vs. license. “Man
being born, as has been proved, with a Title to perfect Freedom . . .” (341).
 Rousseau: in state of nature: men are born free. “ . . . all, being born free and equal”
(388)

PROPERTY

 Hobbes: there can be no such thing in state of nature, since there is no law or justice
where there is no common power (90).
 Locke: property exists as a function of labor, so it exists even in the state of nature
(305-306). The chief purpose of civil society is to preserve it (341). “ . . . his Property,
that is, his Life, Liberty and Estate” (341). “And thus the Commonwealth comes by a
Power . . . and all this for the preservation of the property of all the Members of that
Society” (342).
 Rousseau: right of first occupancy: land must be uninhabited, man must occupy only
what he needs for his subsistence, possession must be taken by labor and cultivation
(394).
CRITICAL APPREHENTION
1. Rousseau propounded that state, law and the government are interchangeable, but this in
present senerio is different. Even though government can be overthrown but not the state. A
state exists even there is no government.

2. 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.

3. According to Hobbes, the sovereign should have absolute authority. This is against the rule
of law because absolute power in one authority brings arbitrariness.

4. 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.

5. Locke concept of laissez-faire is not of welfare oriented. Now in present scenario, every
state undertake steps to form a welfare state

CRITICISM

The social contract theory dominated the European political thought in eighteenth century.
But in nineteenth century it was severely criticised. Even before the publication of
Rousseau’s “Social Contract”,

Hume, the English philosopher, declared that contract as the basis of relations between the
government and the governed was incompatible with the facts of history.

Jeremy Bentham said, “I bid adieu to the original contract and I left it to those who amuse
themselves with the rattle who could think they need it”.

Sir Henry Maine maintained, “that nothing could be more worthless than such account of the
origin of the society and government as given by Hobbes”.

1. This theory is Unhistorical

History does not make any such example available as can prove that the state is the outcome
of any such contract. A few exponents of this theory cite the example of Mayflower Compact
(1620), Providence Agreement (1632). The Mayflower Agreement is as follows: “We do
solemnly and mutually in the presence of god and one another, convenient and combine
ourselves into a civil body politics for our better ordering and preservation.” But this
agreement does not throw a shade of light on the political and pre-political activities of
primitive men. The travellers who went to America from England were quite aware of the
characteristics of the state. The Mayflower Agreement did not, however, result in the
formation of the state. America remained under the control of England for some period.
Therefore, this theory is unhistorical and proves to be a bad history.

2. This theory is Illogical

This theory does not prove sound on the touchstone of logic. According to in the state of
nature, nature gave man the right to life, right to law, right to property and right to freedom.
Similarly, Rousseau also believed that people possessed in their primitive stage, a few rights
and enjoyed personal liberty to a certain extent. But all this depended on their institutions. All
these arguments are illogical because it is the state that gives rights to its people and assures
their guarantee. In the primitive stage, since the sate did not exist, the above-mentioned
argument that people enjoyed certain rights in the state of nature seems illogical. Despite this
picture of primitive stage, drawn by Hobbes and Rousseau, is imaginary. The conditions in
the primitive stage were neither so deplorable as have been described by Hobbes nor they
were so idealistic as Rousseau had described. In the primitive stage man lived in families and
groups. In this way, he led a social life to some extent. But now and then riots also broke out
between different groups.

3. This theory gives us a wrong progress of mankind

The exponents of social contract theory argue that people entered into a contract in order to
protect themselves from aggression and safeguard their interests. But history presents before
us a different version. According to an eminent author, “The family was the unit, property
was held in common, custom formed law and each man was born into his status in society.”
In this it is quite clear that man advanced from its primitive stage and took to contract and not
the vice-versa. According to Sir Henry Maine, “Contract is not the beginning but the end of
society”. Ever since, the primitive stage man’s status has been decided by his birth and not
by the contract. For example, a born slave had to remain a slave or a born priest had to
remain a priest. He was not entitled to change his status on the basis of the contract.
 4. Contract can not be binding on the succeeding generations

Into a contract there always entered two parties. A contract can not be entered into by one
party alone. Therefore, Hobbes’s notion of a single party contract is decidedly wrong. Despite
this when those who had entered into a contract die, the contract does not remain binding on
their posterity. In this connection, Bentham has very aptly remarked, “I am bound to obey not
because my great grandfather may be regarded as having made a bargain which he did not
really make with the great grandfather of George III, but simply because rebellion does more
harm than good”. Thomas Paine has also criticised the conception of the contract because it is
entirely binding and in conscious a dead weight on the wheel of progress.

5. This theory is legally Invalid

This theory tells us that state is the outcome of the contract. But the fact is that the state was
formed first and the contract was conceived much later. The contract is not possible in the
absence of state.

6. This theory is artificial.

This theory tells us that the state is like a machine, manufactured by a man. But the reality is
that the state and the political institutions under it are the result of evolution. Aristotle has
very aptly remarked that the state is a natural institution.

7. This theory had a bad Philosophy.

This theory tells us that a relation with the state are optional. For example, Locke has asserted
that the people reserve the right to dethrone the king if he fails to perform his duties. And if
people can go against the binding of the contract, the state will meet its end and anarchy will
prevail.

8. This theory is dangerous

In the opinion of Bluntschli, the social contract theory ois very dangerous. H believes that
examples are there which proves that kings entered in the contract with certain classes of
people and administrator and enforced their own laws. “ The social contract theory” says
Bluntschli, “ is highly dangerous, since it makes the states and institutions as a product of
individual caprice”.
 9. This theory is far from reality

The exponents of social contract theory did not aim to trace the origin and development
of the state. Only serve their own ends, they conceived this theory and, therefore, this
theory is far away from reality.

ANALYSIS

According to me, The Social Contract Theory is a farfetched idea as all the people coming
together and forming a contract is practically impossible. Also, making contracts without any
knowledge of rights and obligation (as at that time), ‘consensus ad idem’ of people at the
time when there was no common language or culture, choosing suitable sovereign among
many seem impractical.

Thomas Hobbes, John Locke and Jean Jacques Rousseau, all three have done a great work in
the subject. Although some areas had loopholes and their theories were highly criticised by
others, but, the merits can not be ignored and overlooked. They presented the idea that,
unsystematic state of nature can be controlled by a sovereign, which I, in fact, find true.
CONCLUSION:-

Delineating or Defining the realm of Human Nature had been a red-letter topic for the
Philosophers even since the Pre-Socrates times to the Present.
In spite of their Noble efforts, many a Philosophers had Axiomatic Beliefs rather than
rational assertions with regards to Human Nature.

Of the Views on State of nature by the three fore-mentioned Philosophers, Hobbes was a
Conservative who was also Cynical in his conception of Human nature. Rousseau on the
Other hand, was too liberal and optimistic. He believed that everything in a Human society is
Perfectible and Idyllic without any concrete base for his ideas.

Locke sounds More Commonsensical than the other two, while he does not personify the
Human nature as statically Virtuous or Vicious. He says men are capable of doing both Good
and evil depending upon the necessity and that necessity is the need for self-preservation. If
there is no harm upon an individual of sound mind, there is no reason for him to be Brutish or
nasty to his fellow beings.

Politically Locke was a Representative Democrat, who had eventually proved by present
times to be prophetic.
 BIBLIOGRAPHY

1. Hobbes, Thomas. 1651a. Leviathan. C.B Macpherson (Editor). London: Penguin

Books (1985)

2. Locke, John. Two Treatises of Government and A Letter Concerning Toleration.

Yale University Press (2003).

3. Rousseau, Jean-Jacques. The Basic Political Writings. (Trans. Donald A. Cress)

Hackett Publishing Company (1987).

4. Braybrooke, David. 1976. “The Insoluble Problem of the Social

Contract.” Dialogue Vol. XV, No. 1: 3-37.

5. Gauthier, David. 1988. “Hobbes’s Social Contract.” Noûs 22: 71-82.

6. Hampton, Jean. 1986. Hobbes and the Social Contract Tradition. Cambridge:
Cambridge University Press.