The social contract theory is one of the theories of the origin of the state. It
has been emerged since the time of the sophists of the Greece but it has got
recognition in the hands of the great trio. The name of these great philosophers
were John Locke, Thomas Hobbes and Jean Jacques Rousseau.
The term social stands for the society where these individual persons live and
the term contract is an agreement or a promise made between the two or more
individual and a groups/society. There were many other theories of the origin of
the state but the social contract theory has explained the origin of state in a
This theory states that the society or the state came into being by a contract
that was made between the individual and the society or the contract that was
made amongst the individual people. It states that the conditions in the state
of nature at some point became worst and to come of this situation the people
entered themselves into a contract and according to this contract the people
will surrender some part of their right to the sovereign.
According to Hobbes
people will surrender all their rights to the kings and king will not be a part
of the contract, the king will be all sovereign whereas Locke says that the
people will surrender only a part of their right to the king and is also a part
of the contract and the people will have the right to change the king if he
fails to fulfill his duties and Rousseau talks about the General Will, it is not
the will of all nor it is the will of the majority but is a general will is the
will of the people for the common good.
Elements of the Social Contract
There are two principal elements to the social contract. The first is an
initial pre-political situation called a state of nature
� by the modern
philosophers and the Original Position
� by Rawls, the most significant
contemporary exponent of social contract theory.
In this initial situation, all
individuals are equal, they are all situated symmetrically relative to one
another, and they all have some incentive to leave the initial situation in
favor of some relative advantage gained by entry into civil society. The second
element is a normative characterization of the parties to the contract.
parties are described as:
- Motivated by self-interest, in as much as they will only agree to the
contract if they perceive that they will benefit from social interaction;
- concerned for the welfare of others, if only because they recognize that
the advantages they expect to derive from the social contract will be
conditional on their willingness to guarantee the same advantages to their
- rational or reasonable with respect to the way they understand their own
interests, the interests of others, and the just or moral principles that
ought to govern their pursuit of those interests.
But this theory of social contract has been criticized from the historical point
of view, it is not acceptable. History does not give a single evidence which
could indicate that there was a stable society. This theory is illogical and
baseless. The progress of the society has been from status to contract, contract
is not the beginning but the end of society. The contract cannot be made by only
one party as one sided contract as expounded by Hobbes. The relation between
individual and the state is not by contract but by birth.
Starting Point Perspectives On The Relationship Between Politics And Law
Law and politics as social phenomena are two emanations of the same entity (a
monistic ontological conception), regarding which their separate existence is
only a consequence of a human dualistic or pluralistic perception of the world
(a dualistic ontological conception). Furthermore, the difference between law
and politics is, from a deeper ontological perspective, in fact only illusory,
for reason of which also in the fields of legal and political theory and
philosophy there are conclusions regarding the partial or complete overlapping
of law and politics, sometimes even the equating of the two that raises a
crucial question of how both notions are defined. Regardless of such findings,
the distinction (i.e. consciously persisting in a distinction) between law and
politics at the current level of human development is necessary and
The Static And Dynamic Nature Of Modern Law
Goethe once said "all periods that regress and decay are subjective, while
periods of progress have an objective orientation."21 While it is true that this
oscillatory and dualistic perception of the world does generally accompany human
development, this or any other bipolarity is, in the holistic sense, merely
illusory. In the creation and study of the law, it is always necessary to rise
somewhat above the current time and space to see social fluctuations as only a
reflection of a general law of relativity which pervades the human world.
this case, it is not a matter of emphasizing the conservative nature of the law
mentioned earlier, but emphasizing the requirement for the law to have a
stabilizing function that does not allow the law to succumb to excessive
one-sidedness, for instance, being excessively programmatic. However, this can
only be achieved by establishing an appropriate balance between the static and
dynamic aspects of the law
Differences Between The Law And Politics
In general, it can be concluded that law and politics are similar in their
general normative orientation towards ordering societal relations. Within this
framework, their search for an appropriate or just distribution of social
statuses and goods depend on the standpoints of the given ruling elite at the
level of political and legal decision making. Law and politics are similar in
that both resort to certain ideological definitions of their value-related
objectives, which are at the highest abstract level often even identical.
the framework of democracy, for example, the state based on the rule of law,
constitutionality and legality, human rights and justice. However, in the
process of conceptualization they often grow increasingly different. In concrete
cases, the law often applies the principle of the state based on the rule of law,
the principle of justice, or a certain human right differently than politics.
Besides this, there also exist specific political values, which essentially
differ from legal values (e.g. the value of affiliation or loyalty to a certain
The Question of Origins
At the domestic level, social contract theory is perhaps most susceptible to
criticism with respect to the question of Origins. Because no living person has
ever experienced an initial situation like the state of nature or the original
position, there is good reason to be skeptical about the state of nature as a
literal account of the origin of sovereign power.
This objection, most
prominently associated with David Hume, holds that the initial situation of
social contract theory can only be sensibly invoked as a hypothetical situation,
as a thought experiment that establishes a context within which the parties to
an agreement are most likely to act rationally or reasonably. It was in this
vein, that Hegel characterized the social contract as following from principle
(pure thought), which he distinguished from the historical conditions under
which the state and its laws developed. How a state was created Hegel
maintained, has nothing to do with philosophy.
One of the striking features of the relations between states, as opposed to the
relations between associates within a state, is the extent to which they occur
in a context that seems to more closely resemble the state of nature metaphor.
While, as we will see, the problems associated with social contract theory on
the questions of Justice and Legitimacy are only exacerbated by extending social
contract theory to the international context, the international context actually
has some advantages with respect to the question of Origins in general and to
the Humane objection in particular.
Prior to the establishment of international
laws or treaties, states are situated toward one another in two ways that mirror
the Lockean or Hobbesian state of nature.
First there is no authority that
stands above the parties to any putative treaty or international agreement.
Second, the enactment of any such agreement is based on the explicit consent of
the relevant parties, not the tacit consent that Locke was forced to have
recourse to in response to the problem identified at the beginning of this
section, Every Man, that hath any Possession, or Enjoyment, of any part of
the Dominions of any Government, doth thereby give his tacit Consent, and is as
far forth obliged to Obedience to the Laws of that Government.
The Questions of Justice
� and Legitimacy
While the international arena is better suited to social contract theory with
respect to the question of Origins, it poses particular challenges with respect
to the questions of Justice and Legitimacy. In particular, the international
arena violates the basic presupposition of the social contract theory that
individuals be as Locke put, promiscuously born to all the same advantages of
nature, and the use of the same faculties, should be equal one amongst another.�
The social contract's arguments for Justice and Legitimacy presuppose that the
parties to the contract will be relatively equally and symmetrically situated
with respect to one another. It is this constraint that ensures that the
substantive principles that inform the contract will be reasonable, equitable,
symmetrical, and so forth. Likewise, it is this constraint that ensures that
any authority empowered by virtue of the contract will exercise its authority
without favor or prejudice.
This problem is particularly acute at the international level, by consequence of
the vast differences between states, especially with respect to their relative
wealth and power. However many critics of social contract theory have argued
that the problem occurs at the domestic level as well. Particularly noteworthy
are those arguing from the feminist perspective (e.g. Carole Pateman's The
Sexual Contract) or from the perspective of critical race theory (e.g. Charles
Mills, The Racial Contract). These critics argue that racist or patriarchal
assumptions are built into social contract theory's claims with respect to the
nature of rationality or the substantive principles of justice.
Earlier critics of social contract, such as Rousseau and Karl Marx raised
concerns about the assumptions of equality and reciprocity that give the social
contract its appeal. Rousseau originally referred to the social contract as the
rich duping the poor� (though he later articulated his own egalitarian
version). Marx describes it as part of the ideology of capitalism, used to
legitimize the ongoing exploitation of the working class by the bourgeoisie.
Because the assumption of equality is so problematic at the international
level, the attempt to apply social contract theory to that arena serves to
further illuminate critiques like Rousseau's and Marx's, which emphasize how the
morality of the contract is subverted when agents are not equally and
The problem of asymmetry becomes particularly acute at the international level,
where there is and, for much of recorded history, has been a tremendous
discrepancy in power among parties to any putative law of peoples. Rawls avoids
this problem by beginning from an assumption of rough equality between the
parties to the second level original position, an assumption which is, of
course, highly questionable, particularly in the current geopolitical context,
in which one state exerts tremendous power over most, if not all, of the others.
Beyond the problem of inequality, there are other obstacles to using states as
proxies for moral persons in the process of enacting an international social
contract. Many states, for example, do not adhere to fundamental moral
principles with respect to the way they treat their own people. This makes it
unlikely that they would reason in accordance with the principles outlined in
Section II. If tyrannical regimes treat their citizens shabbily or cannot or
will not represent all of their citizens equally at home, it is unlikely that
they will carry norms of equity and reciprocity into international relations.
On the whole, while the social contract theory has been relevant to the explanation of the essence
of government as well for theorizing of democratic principles in modern state systems, it has
faced certain criticisms, is said to have argued that the social contract theory is
not founded on any historical evidence.
In our view, there is no validity of the assumption that
men originally lived in a so called state of nature, and then they thought of creating political
institutions by mutual agreement to establish order and security. Accordingly, the
societal movement is argued to have been from one status to one of contract.
Thus, in primitive
society, membership of a social group determined the status of an individual. Life of man was
governed by customs at the various level of grouping: family, clan, tribe etc. Law, sovereignty
and political institutions were said to have grown from this process in a very slow and gradual
manner, not by a compact of freely contracting individual. Postulations of natural
liberty and natural rights in the state of nature is said to be out of logic.
that rights are the products of a developed social consciousness and are enforced by
institutionalized law, they could not have existed in the earliest state when political awareness
and institutionalized law were totally absent. Moreover, some arguments against social contract
theory are about its binding force on generations of men that were not part of the initial
In any case, the doctrine of the social contract played a historical role by providing
for a theoretical justification for the new pattern of human relations necessitated by the
emergence of the capitalist society.
The law and politics create their own particular pictures of reality. None of
these pictures correspond to reality as such, which is an inseparable unity
beyond our human comprehension. However, both particular pictures are of utmost
importance for our societal life. Sometimes they
overlap, and sometimes they differ, more or less strongly. Yet, there is
something that the law, either national or international, should never include
in its sphere.
Namely, the differentiation of adversaries according to a
genuinely political criteria, which leads to a strict separation between "ours"
, or, in its most radical expression, to a strict separation
between friend and enemy. The ideal of Justice, often presented in a statue of a
woman with blindfolded eyes and scales in her hand, must always remain the
fundamental guiding principle of the law, and especially of judges and other
lawyers, who must never allow themselves to comprehend the parties in conflict -
either individuals, or different legal entities, including states and
international organizations - as enemies.
When the latter occurs, politics
inevitably prevails over the law, and the judge or any other person who thinks
and feels in that political-ideological way causes, in proportion to their
social rank and power (influence), serious damage to the autonomy of the rule of
law. This is, in turn, destructive for the democratic society and international
relations and must be as such avoided or appropriately confronted to the highest
- Burton, SJ.: An Introduction to Law and Legal Reasoning, Little, Brown
and Company, Boston - Toronto 1985
- Habermas Jiirgen: Between Facts and Norms. Polity Press: Cambridge 1997.
- Cassese, Antonio: International Law, 2nd Edition, Oxford University
Press, New York 2005.
- Immanuel Kant, The Metaphysics of Morals
- Rousseau, The Social Contract in The Collected Writings of Rousseau,
- Charles R. Beitz, Political Theory and International Relations
- John Rawls, A Theory of Justice (Harvard University)
- David Hume, Of the Original Contract,�
- Hegel's Philosophy of Right.
- John Locke, The Second Treatise of Government in Two Treatises of
Government (Cambridge University Press, 1988)
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