Constitutional Law Assignment Question: Describe Social Contract As Propounded by Thomas Hobbes, John Locke and J.J.Rousseur

Constitutional Law Assignment
Question: Describe Social Contract as propounded by Thomas Hobbes,

John Locke and J.J.Rousseur.
1.Introduction and the theorists background-Locke,Hobbes,Rouseeeau&

Humes.
2.The Rational behind the theory
3.The Theory & Meaning
4.Divegent views of the theory
5.The relationship between the individuals & state should be determined by law
6.The influence of the theory on modern politics, constitutionalism
7. Underpinning philosophies of constitution.
8 Conclusion.
1.Introduction and the theorists background-Locke,Hobbes,Rouseeeau& Humes
The theory of social contract was expounded by John Locke, Thomas Hobbes, Jean and
Dume Humes during the enlightenment period in the seventeenth century.
2.The Rational behind the theory

In an attempt to propound the theory, the exponents examine the condition of a society
without political order which Thomas Hobbes termed as the state of nature. In such a society
every person would have unlimited natural freedom to rape, plunder and murder and this
will result in what was known as war of all against all. With such a situation it was envisaged
by Thomas Hobbes that life would be solitary, poor, nasty, brutish and short.
In order to escape this from this intolerable continual insecurity, the proponent posited that
there was the need to appoint a ruler and surrender part of their freedom to him to enable
him guarantee their freedom. to rule over them surrender part of their freedom to
The retort might be that nobody has a right to the exclusive possession of
their food, clothing, and shelter if others have equal need of them.
People have a duty to share, and the dispossessed thus do not wrong
anyone by even forcibly taking their fair share. Unfortunately, this
makes for a dynamic of which most people are well aware. If one's food,
clothing, and shelter are the result of one's own labor, and those
demanding their "fair share" have made no effort to provide for
themselves, but in fact have come to depend on securing by force the
goods that have been created by the effort of others, this is the very
definition of predation, and of gangsterism. The gangster who
specialized in violence, while others specialize in production, has a
predatory advantage.
. The ruler would guarantee their collective defense and their personal
security and in return they would obey his laws and give him their
complete obedience.(k212).
It is used as a means of demonstrating the value of government, the

grounds for political obligation and authority over a particular
geographical area .
The classic form of social contract theory suggests that there is a

stateless society from which individual's wish to escape by entering into
a social contract. The social contract obliges citizens to respect and obey
the state, in exchange for stability and security that only a system of
political rule can provide.
Description
Thomas Hobbes famously said that in a "state of nature", human life would be "solitary, poor,
nasty, brutish and short". In the absence of political order and law, everyone would have
unlimited natural freedoms, including the "right to all things" and thus the freedom to plunder,
rape, and murder; there would be an endless "war of all against all" (bellum omnium contra
omnes). To avoid this, free men contract with each other to establish political community, i.e.
civil society, through a social contract in which they all gain security in return for subjecting
themselves to an absolute sovereign, one man or an assembly of men. Though the sovereign's
edicts may well be arbitrary and tyrannical, Hobbes saw absolute government as the only
alternative to the terrifying anarchy of a state of nature. Hobbes asserted that humans consent to
abdicate their rights in favor of the absolute authority of government (whether monarchical or
parliamentary). Pufendorf disputed Hobbes's equation of a state of nature with war.[3]
Hence the theorists seek to demonstrate in a different way ,why a rational
individual should be behave
3.The Theory & Meaning

Social contract arguments typically posit that individuals have consented, either explicitly or
tacitly, to surrender some of their freedoms and submit to the authority of the ruler or magistrate
(or to the decision of a majority), in exchange for protection of their remaining rights. The
question of the relation between natural and legal rights, therefore, is often an aspect of social
contract theory. The term takes its name from The Social Contract (Du contrat social ou
Principes du droit politique), a 1762 book by that discussed this concept.
4.Divegent views of the theory
5.The relationship between the individuals & state should be determined by law
6.The influence of the theory on modern politics, constitutionalism
7. Underpinning philosophies of constitution.
8 Conclusion
1. The Social Contract is a theory expounded during the Age of Enlightenment in

the seventeenth century by Thomas Hobbes, John Locke and J. J .Rousseau to
tackle the social and political upheaval in England after the removal of the
Monarch.
2.It was also partly to tackle the question of the origin of society and the
legitimacy of authority of the state over the individual
3.It also means that individual in society surrender
2.To develop their theories of government, the theorists started with man
original condition, or what was known as the state of nature However the three
theorists differed in their assumption as to the state of nature,as aresult they
arrived at different solutions.
3. Hobbes and Locke were of the view that, the concept of state of nature was
without political authority or formal checks on the behavior of individuals. They
added that such a stateless
Although the antecedents of social contract theory are found in antiquity, in Greek and Stoic
philosophy and Roman and Canon Law, the heyday of the social contract was the
Hugo Grotius (1625), Thomas Hobbes (1651), Samuel Pufendorf (1673), John Locke (1689),
Jean-Jacques Rousseau (1762), and Immanuel Kant (1797) are among the most prominent of
17th- and 18th-century theorists of social contract and natural rights. Each solved the problem of
political authority in a different way. Grotius posited that individual human beings had natural
rights. Thomas Hobbes famously said that in a "state of nature", human life would be "solitary,
poor, nasty, brutish and short". In the absence of political order and law, everyone would have
Alternatively, John Locke and Jean-Jacques Rousseau have argued that we gain civil rights in
return for accepting the obligation to respect and defend the rights of others, giving up some
freedoms to do so. The central assertion of social contract approaches is that law and political
order are not natural, but are instead human creations. The social contract and the political order
it creates are simply the means towards an endthe benefit of the individuals involvedand
legitimate only to the extent that they fulfill their part of the agreement. According to Hobbes (in
whose view government is not a party to the original contract) citizens are not obligated to
submit to the government when it is too weak to act effectively to suppress factionalism and civil
unrest. According to other social contract theorists, when the government fails to secure their
natural rights (Locke) or satisfy the best interests of society (called the "general will" in
Rousseau), citizens can withdraw their obligation to obey, or change the leadership through
elections or other means including, when necessary, violence.
Locke believed that natural rights were inalienable, and that the rule of God therefore superseded
government authority, and Rousseau believed that democracy (self-rule) was the best way of
ensuring the general welfare while maintaining individual freedom under the rule of law. The
Lockean concept of the social contract was invoked in the United States Declaration of
Independence. Social contract theories were eclipsed in the 19th century in favor of
utilitarianism, Hegelianism, and Marxism, and were revived in the 20th century, notably in the
form of a thought experiment by John Rawls.[3]
The proponents opined that, all men were born free and equal .
They added that,Individual precedes society and that society was
created as a result of individual agreement. According to Hobbes,man
in the state of nature was in constant conflict with its neighbours on
accout of his essentilally selfish nature.In his own words,the life of man
was solitary,poor,nasty,brutish and short
LOCK another social contract thinker was of the view that,the state of nature was not a state of war.It
was a state of peace,goodwill mutual assistance and preservation
Hobbes, Locke and others were free to consider the development of

political structure from the starting point of man in the state of nature.
Hobbes in Leviathan' stated the case for absolute sovereignty, while
Locke in Second Treatises of Government' argued the defense of
parliamentary government and a limited liberal state.
Thomas Hobbes
In the Leviathan State the sovereign would have the right to make any
laws he saw fit. The only responsibility of the sovereign was to defend
the state and keep the peace. There was no contract between the
sovereign and those who appointed him. The only contract was the
agreement between the people to appoint somebody they would obey.
Hobbes created a ruler with absolute authority, who was irrevocably

handed the power to enforce unity and obedience. (b 205). To preserve
his own life each citizen must give absolute and unconditional obedience
to the sovereign and his laws and so in the Leviathan State the social
contract justifies authoritarian government (ll 112)
Hobbes model of social contract argued rebellion was not justifiable (n)
The purpose of the Leviathan commonwealth is to uphold the natural

law of self preservation is the beginning of the concept of natural rights.
This is the concept that man may make certain legitimate demands on
his fellow men (ll 112)
The role of the Leviathan State is limited to protecting its citizens. Apart
from the duty of the state to prevent conflict most other forms of
intervention into the affairs of men are unjustifiable. This is Hobbes
liberalism. (n)
Hobbes great accomplishment was to make government a subject for

rational analysis. (Notes)
John Locke
Hobbes and Locke
While
Lock did not have the such a dim view of the world as Hobbes This is
probably due to the fact that he lived in a time of comparative peace.
(notes)
Lock unlkike Hobbes was a believer in the seperation of powers ( t

division of the state into leglstvei, executive and judicial branches.
(notes)
Lock did not accept that absolute monarchy was the best stucure for a
state or the best way to govern a socioty. Rather Locke believed in the
supremacy of of the legislature over the monarchy. (notes)
Locke was however in agreement with Hobes on the social contract. Locke said that the proper
role of a government was to act as a commonwealth of men guided by the eternal' law of nature
to preserve the life, liberty and estate of the members of socioty (notes)
Nature did not neessarily protect property so it was for man to make such laws. Property rights
could only be claimed once a man had mixed his labour with nature this was part of the law of
nature for Locke (notes)
Locke thought that men were in a social contract with their soerign for the protection of three
inalianable natural rights of life, liberty and estate' which were given by God. He identified a
fourth right the right to rebel against unjust laws and their makers. ( the right to with draw
obediance is a group and individual rigth) (notes)
Conclusion
Thomas Hobbes concept of the social contract is the enduring

contribution to legal and political philosophy.(notes) (b 204?)
Hobbes own goal was to rule out the ligiamacy of civil rebellion and
thus to eliminate the possibility of civil war; which he regarded as the
greatest of evils. (ll112)
Hobbes believed that in the absence of a state, human beings would react
to each other with great savagery. He believed that all humans had equal
ability to kill one and other creating a constant state of insecurity. As a
result they would seek law and order for their own protection. They
would all agree to place someone in authority to tell them what to do.
Hobbes suggested that a number of people would appoint a king for the
sole purpose of giving orders and preventing constant turmoil. He
argued the only way to achieve this is by removing the individual's
power and bestow it upon one man. As a consequence the king has an
absolute right to make what ever laws he wants, he owes no
responsibility to the individual other than to keep the peace. In effect
Hobbs was setting up an absolute authority free of any contractual or
natural law restraint entrusting all power to the ruler to enforce unity
obedience.
John Locke (1634 1704)

For Locke the state of nature that preceded the social contract was not as
Hobbs envisaged but one of a golden age an Eden before the fall .
Bibliography
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In both moral and political philosophy, the social contract or political contract is a theory or
model, originating during the Age of Enlightenment, that typically addresses the questions of the
origin of society and the legitimacy of the authority of the state over the individual.[1] Social
contract arguments typically posit that individuals have consented, either explicitly or tacitly, to
surrender some of their freedoms and submit to the authority of the ruler or magistrate (or to the
decision of a majority), in exchange for protection of their remaining rights. The question of the
relation between natural and legal rights, therefore, is often an aspect of social contract theory.
The term takes its name from The Social Contract (Du contrat social ou Principes du droit
politique), a 1762 book by Jean-Jacques Rousseau that discussed this concept.
Although the antecedents of social contract theory are found in antiquity, in Greek and Stoic
philosophy and Roman and Canon Law, the heyday of the social contract was the mid-17th to
early 19th centuries, when it emerged as the leading doctrine of political legitimacy. The starting
point for most social contract theories is an examination of the human condition absent any
political order that Thomas Hobbes termed the "state of nature".[2] In this condition, individuals'
actions are bound only by their personal power and conscience. From this shared starting point,
social contract theorists seek to demonstrate, in different ways, why a rational individual would
voluntarily consent to give up their natural freedom to obtain the benefits of political order.
Hugo Grotius (1625), Thomas Hobbes (1651), Samuel Pufendorf (1673), John Locke (1689),
Jean-Jacques Rousseau (1762), and Immanuel Kant (1797) are among the most prominent of
17th- and 18th-century theorists of social contract and natural rights. Each solved the problem of
political authority in a different way. Grotius posited that individual human beings had natural
rights. Thomas Hobbes famously said that in a "state of nature", human life would be "solitary,
poor, nasty, brutish and short". In the absence of political order and law, everyone would have
Alternatively, John Locke and Jean-Jacques Rousseau have argued that we gain civil rights in
return for accepting the obligation to respect and defend the rights of others, giving up some
freedoms to do so. The central assertion of social contract approaches is that law and political
order are not natural, but are instead human creations. The social contract and the political order
it creates are simply the means towards an endthe benefit of the individuals involvedand
legitimate only to the extent that they fulfill their part of the agreement. According to Hobbes (in
whose view government is not a party to the original contract) citizens are not obligated to
submit to the government when it is too weak to act effectively to suppress factionalism and civil
unrest. According to other social contract theorists, when the government fails to secure their
natural rights (Locke) or satisfy the best interests of society (called the "general will" in
Rousseau), citizens can withdraw their obligation to obey, or change the leadership through
elections or other means including, when necessary, violence.
Locke believed that natural rights were inalienable, and that the rule of God therefore superseded
government authority, and Rousseau believed that democracy (self-rule) was the best way of
ensuring the general welfare while maintaining individual freedom under the rule of law. The
Lockean concept of the social contract was invoked in the United States Declaration of
Independence. Social contract theories were eclipsed in the 19th century in favor of
utilitarianism, Hegelianism, and Marxism, and were revived in the 20th century, notably in the
form of a thought experiment by John Rawls.[3]
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e concept of the social contract is posed by Glaucon, as described by Plato in The Republic,
Book II.
They say that to do injustice is, by nature, good; to suffer injustice, evil; but that the evil is
greater than the good. And so when men have both done and suffered injustice and have had
experience of both, not being able to avoid the one and obtain the other, they think that they had
better agree among themselves to have neither; hence there arise laws and mutual covenants; and
that which is ordained by law is termed by them lawful and just. This they affirm to be the origin
and nature of justice;it is a mean or compromise, between the best of all, which is to do
injustice and not be punished, and the worst of all, which is to suffer injustice without the power
of retaliation; and justice, being at a middle point between the two, is tolerated not as a good, but
as the lesser evil, and honoured by reason of the inability of men to do injustice. For no man who
is worthy to be called a man would ever submit to such an agreement if he were able to resist; he
would be mad if he did. Such is the received account, Socrates, of the nature and origin of
justice.[4]
The social contract theory also appears in Crito, another dialogue from Plato.
Classical thought
Social contract formulations are preserved in many of the world's oldest records.[5] The Buddhist
text of the second century BCE, Mahvastu, recounts the legend of Mahasammata. The story
goes as follows:
In the early days of the cosmic cycle mankind lived on an immaterial plane, dancing on air in a
sort of fairyland, where there was no need of food or clothing, and no private property, family,
government or laws. Then gradually the process of cosmic decay began its work, and mankind
became earthbound, and felt the need of food and shelter. As men lost their primeval glory,
distinctions of class arose, and they entered into agreements with one another, accepting the
institution of private property and the family. With this theft, murder, adultery, and other crime
began, and so the people met together and decided to appoint one man from among them to
maintain order in return for a share of the produce of their fields and herds. He was called "the
Great Chosen One" (Mahasammata), and he received the title of raja because he pleased the
people.[6]
In his rock edicts, the Buddhist king Asoka was said to have argued for a broad and far-reaching
social contract. The Buddhist vinaya also reflects social contracts expected of the monks; one
such instance is when the people of a certain town complained about monks felling saka trees,
the Buddha tells his monks that they must stop and give way to social norms.
Epicurus seems to have had a strong sense of social contract, with justice and law being rooted in
mutual agreement and advantage, as evidenced by these lines, among others, from his Principal
Doctrines (see also Epicurean ethics):
31. Natural justice is a pledge of reciprocal benefit, to prevent one man from harming or being
harmed by another.
32. Those animals which are incapable of making binding agreements with one another not to
inflict nor suffer harm are without either justice or injustice; and likewise for those peoples who
either could not or would not form binding agreements not to inflict nor suffer harm.
33. There never was such a thing as absolute justice, but only agreements made in mutual
dealings among men in whatever places at various times providing against the infliction or
suffering of harm.[7]
Renaissance developments
Quentin Skinner has argued that several critical modern innovations in contract theory are found
in the writings from French Calvinists and Huguenots, whose work in turn was invoked by
writers in the Low Countries who objected to their subjection to Spain and, later still, by
Catholics in England.[8] Francisco Surez (15481617), from the School of Salamanca, might be
considered an early theorist of the social contract, theorizing natural law in an attempt to limit
the divine right of absolute monarchy. All of these groups were led to articulate notions of
popular sovereignty by means of a social covenant or contract, and all of these arguments began
with proto-"state of nature" arguments, to the effect that the basis of politics is that everyone is
by nature free of subjection to any government.
These arguments, however, relied on a corporatist theory found in Roman law, according to
which "a populus" can exist as a distinct legal entity. Thus, these arguments held that a group of
people can join a government because it has the capacity to exercise a single will and make
decisions with a single voice in the absence of sovereign authoritya notion rejected by Hobbes
and later contract theorists.
Philosophers
Hugo Grotius (1625)
In the early 17th century, Grotius (15831645) introduced the modern idea that individuals had
natural rights that enabled self-preservation, employing this idea as a basis for moral consensus
in the face of religious diversity and the rise of natural science. He seeks to find a parsimonious
basis for a moral beginning for society, a kind of natural law that everyone could accept. He goes
so far as to say in his On the Law of War and Peace that even if we were to concede what we
cannot concede without the utmost wickedness, namely that there is no God, these laws would
still hold.
The idea was considered incendiary since it suggested that power can ultimately go back to the
individuals if the political society that they have set up forfeits the purpose for which it was
originally established, which is to preserve themselves. In other words, individual persons are
sovereign. Grotius says that the people are sui juris (under their own jurisdiction). People have
rights as human beings, but there is a delineation of those rights because of what is possible for
everyone to accept morally; everyone has to accept that each person as an individual is entitled to
try to preserve himself. Each person should, therefore, avoid doing harm to, or interfering with,
another, and any breach of these rights should be punished.
Thomas Hobbes' Leviathan (1651)

Main article: Leviathan (book)
The first modern philosopher to articulate a detailed contract theory was Thomas Hobbes (1588
1679). According to Hobbes, the lives of individuals in the state of nature were "solitary, poor,
nasty, brutish and short", a state in which self-interest and the absence of rights and contracts
prevented the "social", or society. Life was "anarchic" (without leadership or the concept of
sovereignty). Individuals in the state of nature were apolitical and asocial. This state of nature is
followed by the social contract.
The social contract was an "occurrence" during which individuals came together and ceded some
of their individual rights so that others would cede theirs (e.g. person A gives up his/her right to
kill person B if person B does the same). This resulted in the establishment of the state, a
sovereign entity like the individuals now under its rule used to be, which would create laws to
regulate social interactions. Human life was thus no longer "a war of all against all".
The state system, which grew out of the social contract, was, however, also anarchic (without
leadership). Just as the individuals in the state of nature had been sovereigns and thus guided by
self-interest and the absence of rights, so states now acted in their self-interest in competition
with each other. Just like the state of nature, states were thus bound to be in conflict because
there was no sovereign over and above the state (i.e. more powerful) capable of imposing some
system such as social-contract laws on everyone by force. Indeed, Hobbes' work helped to serve
as a basis for the realism theories of international relations, advanced by E. H. Carr and Hans
Morgenthau.
Hobbes wrote in Leviathan (book) that humans ("we") need the "terrour of some Power"
otherwise humans will not heed the law of reciprocity, i.e. "(in summe) doing to others, as wee
would be done to".[9]
John Locke's Second Treatise of Government (1689)
John Locke's conception of the social contract differed from Hobbes' in several fundamental
ways, retaining only the central notion that persons in a state of nature would willingly come
together to form a state. Locke believed that individuals in a state of nature would be bound
morally, by the Law of Nature, not to harm each other in their lives or possessions, but without
government to defend them against those seeking to injure or enslave them, people would have
no security in their rights and would live in fear. Locke argued that individuals would agree to
form a state that would provide a "neutral judge", acting to protect the lives, liberty, and property
of those who lived within it.[citation needed]
While Hobbes argued for near-absolute authority, Locke argued for inviolate freedom under law
in his Second Treatise of Government. Locke argued that a government's legitimacy comes from
the citizens' delegation to the government of their absolute right of violence (reserving the
inalienable right of self-defense or "self-preservation"), along with elements of other rights (e.g.
property will be liable to taxation) as necessary to achieve the goal of security through granting
the state a monopoly of violence, whereby the government, as an impartial judge, may use the
collective force of the populace to administer and enforce the law, rather than each man acting as
his own judge, jury, and executionerthe condition in the state of nature.[citation needed]
Jean-Jacques Rousseau's Du contrat social (1762)
Jean-Jacques Rousseau (17121778), in his influential 1762 treatise The Social Contract,
outlined a different version of social contract theory, as the foundations of political rights based
on unlimited popular sovereignty. Although Rousseau wrote that the British were perhaps at the
time the freest people on earth, he did not approve of their representative government. Rousseau
believed that liberty was possible only where there was direct rule by the people as a whole in
lawmaking, where popular sovereignty was indivisible and inalienable. But he also maintained
that the people often did not know their "real will", and that a proper society would not occur
until a great leader ("the Legislator") arose to change the values and customs of the people, likely
through the strategic use of religion.
Rousseau's political theory differs in important ways from that of Locke and Hobbes. Rousseau's
collectivism is most evident in his development of the "luminous conception" (which he credited
to Diderot) of the general will. Rousseau argues a citizen cannot pursue his true interest by being
an egoist but must instead subordinate himself to the law created by the citizenry acting as a
collective.
[The social contract] can be reduced to the following terms: Each of us puts his person and all
his power in common under the supreme direction of the general will; and in a body we receive
each member as an indivisible part of the whole.[10]
Rousseau's striking phrase that man must "be forced to be free"[11] should be understood this
way: since the indivisible and inalienable popular sovereignty decides what is good for the
whole, then if an individual lapses back into his ordinary egoism and disobeys the law, he will be
forced to listen to what was decided when the people acted as a collectivity (i.e. as citizens).
Thus, the law, inasmuch as it is created by the people acting as a body, is not a limitation of
individual freedom, but rather its expression.
Thus, enforcement of laws, including criminal law, is not a restriction on individual liberty: the
individual, as a citizen, explicitly agreed to be constrained if, as a private individual, he did not
respect his own will as formulated in the general will. Because laws represent the restraints of
civil freedom, they represent the leap made from humans in the state of nature into civil society.
In this sense, the law is a civilizing force, and therefore Rousseau believed that the laws that
govern a people helped to mold their character.
Pierre-Joseph Proudhon's individualist social contract (1851)
While Rousseau's social contract is based on popular sovereignty and not on individual
sovereignty, there are other theories espoused by individualists, libertarians, and anarchists that
do not involve agreeing to anything more than negative rights and creates only a limited state, if
any.
Pierre-Joseph Proudhon (18091865) advocated a conception of social contract that did not
involve an individual surrendering sovereignty to others. According to him, the social contract
was not between individuals and the state, but rather among individuals who refrain from
coercing or governing each other, each one maintaining complete sovereignty upon him- or
herself:
What really is the Social Contract? An agreement of the citizen with the government? No, that
would mean but the continuation of [Rousseau's] idea. The social contract is an agreement of
man with man; an agreement from which must result what we call society. In this, the notion of
commutative justice, first brought forward by the primitive fact of exchange, ... is substituted for
that of distributive justice ... Translating these words, contract, commutative justice, which are
the language of the law, into the language of business, and you have commerce, that is to say, in
its highest significance, the act by which man and man declare themselves essentially producers,
and abdicate all pretension to govern each other.
Pierre-Joseph Proudhon, General Idea of the Revolution in the Nineteenth Century (1851)
John Rawls' Theory of Justice (1971)
Building on the work of Immanuel Kant with its presumption of limits on the state,[12] John
Rawls (19212002), in A Theory of Justice (1971), proposed a contractarian approach whereby
rational people in a hypothetical "original position" would set aside their individual preferences
and capacities under a "veil of ignorance" and agree to certain general principles of justice and
legal organization. This idea is also used as a game-theoretical formalization of the notion of
fairness.
David Gauthier's Morals By Agreement (1986)
David Gauthier "neo-Hobbesian" theory argues that cooperation between two independent and
self-interested parties is indeed possible, especially when it comes to understanding morality and
politics.[13] Gauthier notably points out the advantages of cooperation between two parties when
it comes to the challenge of the prisoner's dilemma. He proposes that, if two parties were to stick
to the original agreed-upon arrangement and morals outlined by the contract, they would both
experience an optimal result.[13][14] In his model for the social contract, factors including trust,
rationality, and self-interest keep each party honest and dissuade them from breaking the
rules.[13][14]
Philip Pettit's Republicanism (1997)
Philip Pettit (b. 1945) has argued, in Republicanism: A Theory of Freedom and Government
(1997), that the theory of social contract, classically based on the consent of the governed, should
be modified. Instead of arguing for explicit consent, which can always be manufactured, Pettit
argues that the absence of an effective rebellion against it is a contract's only legitimacy.
Critical theories
Consent of the governed
An early critic of social contract theory was Rousseau's friend, the philosopher David Hume,
who in 1742 published an essay "Of Civil Liberty". The second part of this essay, entitled "Of
the Original Contract",[15] stresses that the concept of a "social contract" is a convenient fiction:
As no party, in the present age can well support itself without a philosophical or speculative
system of principles annexed to its political or practical one; we accordingly find that each of the
factions into which this nation is divided has reared up a fabric of the former kind, in order to
protect and cover that scheme of actions which it pursues. ... The one party [defenders of the
absolute and divine right of kings, or Tories], by tracing up government to the DEITY, endeavor
to render it so sacred and inviolate that it must be little less than sacrilege, however tyrannical it
may become, to touch or invade it in the smallest article. The other party [the Whigs, or believers
in constitutional monarchy], by founding government altogether on the consent of the PEOPLE
suppose that there is a kind of original contract by which the subjects have tacitly reserved the
power of resisting their sovereign, whenever they find themselves aggrieved by that authority
with which they have for certain purposes voluntarily entrusted him.
David Hume, "On Civil Liberty" [II.XII.1][15]
Hume argued that consent of the governed was the ideal foundation on which a government
should rest, but that it had not actually occurred this way in general.
My intention here is not to exclude the consent of the people from being one just foundation of
government where it has place. It is surely the best and most sacred of any. I only contend that it
has very seldom had place in any degree and never almost in its full extent. And that therefore
some other foundation of government must also be admitted.
Ibid II.XII.20
Natural law and constitutionalism
Legal scholar Randy Barnett has argued[16] that, while presence in the territory of a society may
be necessary for consent, this does not constitute consent to all rules the society might make
regardless of their content. A second condition of consent is that the rules be consistent with
underlying principles of justice and the protection of natural and social rights, and have
procedures for effective protection of those rights (or liberties). This has also been discussed by
O. A. Brownson,[17] who argued that, in a sense, three "constitutions" are involved: first, the
constitution of nature that includes all of what the Founders called "natural law"; second, the
constitution of society, an unwritten and commonly understood set of rules for the society formed
by a social contract before it establishes a government, by which it does establish the third, a
constitution of government. To consent, a necessary condition is that the rules be constitutional
in that sense.
Tacit consent
The theory of an implicit social contract holds that by remaining in the territory controlled by
some society, which usually has a government, people give consent to join that society and be
governed by its government, if any. This consent is what gives legitimacy to such a government.
Other writers have argued that consent to join the society is not necessarily consent to its
government. For that, the government must be set up according to a constitution of government
that is consistent with the superior unwritten constitutions of nature and society.[17]
Voluntarism
According to the will theory of contract, a contract is not presumed valid unless all parties
voluntarily agree to it, either tacitly or explicitly, without coercion. Lysander Spooner, a 19th-
century lawyer and staunch supporter of a right of contract between individuals, argued in his
essay No Treason that a supposed social contract cannot be used to justify governmental actions
such as taxation because government will initiate force against anyone who does not wish to
enter into such a contract. As a result, he maintains that such an agreement is not voluntary and
therefore cannot be considered a legitimate contract at all.
Modern Anglo-American law, like European civil law, is based on a will theory of contract,
according to which all terms of a contract are binding on the parties because they chose those
terms for themselves. This was less true when Hobbes wrote Leviathan; at that time more
importance was attached to consideration, meaning a mutual exchange of benefits necessary to
the formation of a valid contract, and most contracts had implicit terms that arose from the nature
of the contractual relationship rather than from the choices made by the parties. Accordingly, it
has been argued that social contract theory is more consistent with the contract law of the time of
Hobbes and Locke than with the contract law of our time, and that certain features in the social
contract which seem anomalous to us, such as the belief that we are bound by a contract
formulated by our distant ancestors, would not have seemed as strange to Hobbes'
contemporaries as they do to us.[18]
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Social contract theory, nearly as old as philosophy itself, is the view that persons' moral and/or
political obligations are dependent upon a contract or agreement among them to form the society
in which they live. Socrates uses something quite like a social contract argument to explain to
Crito why he must remain in prison and accept the death penalty. However, social contract
theory is rightly associated with modern moral and political theory and is given its first full
exposition and defense by Thomas Hobbes. After Hobbes, John Locke and Jean-Jacques
Rousseau are the best known proponents of this enormously influential theory, which has been
one of the most dominant theories within moral and political theory throughout the history of the
modern West. In the twentieth century, moral and political theory regained philosophical
momentum as a result of John Rawls Kantian version of social contract theory, and was
followed by new analyses of the subject by David Gauthier and others. More recently,
philosophers from different perspectives have offered new criticisms of social contract theory. In
particular, feminists and race-conscious philosophers have argued that social contract theory is at
least an incomplete picture of our moral and political lives, and may in fact camouflage some of
the ways in which the contract is itself parasitical upon the subjugations of classes of persons.
Table of Contents
1. Socrates' Argument
2. Modern Social Contract Theory
1. Thomas Hobbes
2. John Locke
3. Jean-Jacques Rousseau
3. More Recent Social Contract Theories
1. John Rawls' A Theory of Justice
2. David Gauthier
4. Contemporary Critiques of Social Contract Theory
1. Feminist Arguments
1. The Sexual Contract
2. The Nature of the Liberal Individual
3. Arguing from Care
2. Race-Conscious Argument
5. Conclusion
6. References and Further Reading
In the early Platonic dialogue, Crito, Socrates makes a compelling argument as to why he must
stay in prison and accept the death penalty, rather than escape and go into exile in another Greek
city. He personifies the Laws of Athens, and, speaking in their voice, explains that he has
acquired an overwhelming obligation to obey the Laws because they have made his entire way of
life, and even the fact of his very existence, possible. They made it possible for his mother and
father to marry, and therefore to have legitimate children, including himself. Having been born,
the city of Athens, through its laws, then required that his father care for and educate him.
Socrates' life and the way in which that life has flourished in Athens are each dependent upon the
Laws. Importantly, however, this relationship between citizens and the Laws of the city are not
coerced. Citizens, once they have grown up, and have seen how the city conducts itself, can
choose whether to leave, taking their property with them, or stay. Staying implies an agreement
to abide by the Laws and accept the punishments that they mete out. And, having made an
agreement that is itself just, Socrates asserts that he must keep to this agreement that he has made
and obey the Laws, in this case, by staying and accepting the death penalty. Importantly, the
contract described by Socrates is an implicit one: it is implied by his choice to stay in Athens,
even though he is free to leave.
In Plato's most well-known dialogue, Republic, social contract theory is represented again,
although this time less favorably. In Book II, Glaucon offers a candidate for an answer to the
question "what is justice?" by representing a social contract explanation for the nature of justice.
What men would most want is to be able to commit injustices against others without the fear of
reprisal, and what they most want to avoid is being treated unjustly by others without being able
to do injustice in return. Justice then, he says, is the conventional result of the laws and
covenants that men make in order to avoid these extremes. Being unable to commit injustice with
impunity (as those who wear the ring of Gyges would), and fearing becoming victims
themselves, men decide that it is in their interests to submit themselves to the convention of
justice. Socrates rejects this view, and most of the rest of the dialogue centers on showing that
justice is worth having for its own sake, and that the just man is the happy man. So, from
Socrates point of view, justice has a value that greatly exceeds the prudential value that Glaucon
assigns to it.
These views, in the Crito and the Republic, might seem at first glance inconsistent: in the former
dialogue Socrates uses a social contract type of argument to show why it is just for him to remain
in prison, whereas in the latter he rejects social contract as the source of justice. These two views
are, however, reconcilable. From Socrates' point of view, a just man is one who will, among
other things, recognize his obligation to the state by obeying its laws. The state is the morally
and politically most fundamental entity, and as such deserves our highest allegiance and deepest
respect. Just men know this and act accordingly. Justice, however, is more than simply obeying
laws in exchange for others obeying them as well. Justice is the state of a well-regulated soul,
and so the just man will also necessarily be the happy man. So, justice is more than the simple
reciprocal obedience to law, as Glaucon suggests, but it does nonetheless include obedience to
the state and the laws that sustain it. So in the end, although Plato is perhaps the first philosopher
to offer a representation of the argument at the heart of social contract theory, Socrates ultimately
rejects the idea that social contract is the original source of justice.

a. Thomas Hobbes
Thomas Hobbes, 1588-1679, lived during the most crucial period of early modern England's
history: the English Civil War, waged from 1642-1648. To describe this conflict in the most
general of terms, it was a clash between the King and his supporters, the Monarchists, who
preferred the traditional authority of a monarch, and the Parliamentarians, most notably led by
Oliver Cromwell, who demanded more power for the quasi-democratic institution of Parliament.
Hobbes represents a compromise between these two factions. On the one hand he rejects the
theory of the Divine Right of Kings, which is most eloquently expressed by Robert Filmer in his
Patriarcha or the Natural Power of Kings, (although it would be left to John Locke to refute
Filmer directly). Filmers view held that a kings authority was invested in him (or, presumably,
her) by God, that such authority was absolute, and therefore that the basis of political obligation
lay in our obligation to obey God absolutely. According to this view, then, political obligation is
subsumed under religious obligation. On the other hand, Hobbes also rejects the early democratic
view, taken up by the Parliamentarians, that power ought to be shared between Parliament and
the King. In rejecting both these views, Hobbes occupies the ground of one is who both radical
and conservative. He argues, radically for his times, that political authority and obligation are
based on the individual self-interests of members of society who are understood to be equal to
one another, with no single individual invested with any essential authority to rule over the rest,
while at the same time maintaining the conservative position that the monarch, which he called
the Sovereign, must be ceded absolute authority if society is to survive.
Hobbes' political theory is best understood if taken in two parts: his theory of human motivation,
Psychological Egoism, and his theory of the social contract, founded on the hypothetical State of
Nature. Hobbes has, first and foremost, a particular theory of human nature, which gives rise to a
particular view of morality and politics, as developed in his philosophical masterpiece,
Leviathan, published in 1651. The Scientific Revolution, with its important new discoveries that
the universe could be both described and predicted in accordance with universal laws of nature,
greatly influenced Hobbes. He sought to provide a theory of human nature that would parallel the
discoveries being made in the sciences of the inanimate universe. His psychological theory is
therefore informed by mechanism, the general view that everything in the universe is produced
by nothing other than matter in motion. According to Hobbes, this extends to human behavior.
Human macro-behavior can be aptly described as the effect of certain kinds of micro-behavior,
even though some of this latter behavior is invisible to us. So, such behaviors as walking, talking,
and the like are themselves produced by other actions inside of us. And these other actions are
themselves caused by the interaction of our bodies with other bodies, human or otherwise, which
create in us certain chains of causes and effects, and which eventually give rise to the human
behavior that we can plainly observe. We, including all of our actions and choices, are then,
according to this view, as explainable in terms of universal laws of nature as are the motions of
heavenly bodies. The gradual disintegration of memory, for example, can be explained by
inertia. As we are presented with ever more sensory information, the residue of earlier
impressions slows down' over time. From Hobbes point of view, we are essentially very
complicated organic machines, responding to the stimuli of the world mechanistically and in
accordance with universal laws of human nature.
In Hobbes' view, this mechanistic quality of human psychology implies the subjective nature of
normative claims. Love and hate, for instance, are just words we use to describe the things we
are drawn to and repelled by, respectively. So, too, the terms good and bad have no meaning
other than to describe our appetites and aversions. Moral terms do not, therefore, describe some
objective state of affairs, but are rather reflections of individual tastes and preferences.
In addition to Subjectivism, Hobbes also infers from his mechanistic theory of human nature that
humans are necessarily and exclusively self-interested. All men pursue only what they perceive
to be in their own individually considered best interests - they respond mechanistically by being
drawn to that which they desire and repelled by that to which they are averse. This is a universal
claim: it is meant to cover all human actions under all circumstances in society or out of it,
with regard to strangers and friends alike, with regard to small ends and the most generalized of
human desires, such as the desire for power and status. Everything we do is motivated solely by
the desire to better our own situations, and satisfy as many of our own, individually considered
desires as possible. We are infinitely appetitive and only genuinely concerned with our own
selves. According to Hobbes, even the reason that adults care for small children can be
explicated in terms of the adults' own self-interest (he claims that in saving an infant by caring
for it, we become the recipient of a strong sense of obligation in one who has been helped to
survive rather than allowed to die).
In addition to being exclusively self-interested, Hobbes also argues that human beings are
reasonable. They have in them the rational capacity to pursue their desires as efficiently and
maximally as possible. Their reason does not, given the subjective nature of value, evaluate their
given ends, rather it merely acts as "Scouts, and Spies, to range abroad, and find the way to the
things Desired" (139). Rationality is purely instrumental. It can add and subtract, and compare
sums one to another, and thereby endows us with the capacity to formulate the best means to
whatever ends we might happen to have.
From these premises of human nature, Hobbes goes on to construct a provocative and
compelling argument for why we ought to be willing to submit ourselves to political authority.
He does this by imagining persons in a situation prior to the establishment of society, the State of
Nature.
According to Hobbes, the justification for political obligation is this: given that men are naturally
self-interested, yet they are rational, they will choose to submit to the authority of a Sovereign in
order to be able to live in a civil society, which is conducive to their own interests. Hobbes
argues for this by imagining men in their natural state, or in other words, the State of Nature. In
the State of Nature, which is purely hypothetical according to Hobbes, men are naturally and
exclusively self-interested, they are more or less equal to one another, (even the strongest man
can be killed in his sleep), there are limited resources, and yet there is no power able to force
men to cooperate. Given these conditions in the State of Nature, Hobbes concludes that the State
of Nature would be unbearably brutal. In the State of Nature, every person is always in fear of
losing his life to another. They have no capacity to ensure the long-term satisfaction of their
needs or desires. No long-term or complex cooperation is possible because the State of Nature
can be aptly described as a state of utter distrust. Given Hobbes' reasonable assumption that most
people want first and foremost to avoid their own deaths, he concludes that the State of Nature is
the worst possible situation in which men can find themselves. It is the state of perpetual and
unavoidable war.
The situation is not, however, hopeless. Because men are reasonable, they can see their way out
of such a state by recognizing the laws of nature, which show them the means by which to
escape the State of Nature and create a civil society. The first and most important law of nature
commands that each man be willing to pursue peace when others are willing to do the same, all
the while retaining the right to continue to pursue war when others do not pursue peace. Being
reasonable, and recognizing the rationality of this basic precept of reason, men can be expected
to construct a Social Contract that will afford them a life other than that available to them in the
State of Nature. This contract is constituted by two distinguishable contracts. First, they must
agree to establish society by collectively and reciprocally renouncing the rights they had against
one another in the State of Nature. Second, 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. Since
the sovereign is invested with the authority and power to mete out punishments for breaches of
the contract which are worse than not being able to act as one pleases, men have good, albeit
self-interested, reason to adjust themselves to the artifice of morality in general, and justice in
particular. Society becomes possible because, whereas in the State of Nature there was no power
able to "overawe them all", now there is an artificially and conventionally superior and more
powerful person who can force men to cooperate. While living under the authority of a
Sovereign can be harsh (Hobbes argues that because men's passions can be expected to
overwhelm their reason, the Sovereign must have absolute authority in order for the contract to
be successful) it is at least better than living in the State of Nature. And, no matter how much we
may object to how poorly a Sovereign manages the affairs of the state and regulates our own
lives, we are never justified in resisting his power because it is the only thing which stands
between us and what we most want to avoid, the State of Nature.
According to this argument, morality, politics, society, and everything that comes along with it,
all of which Hobbes calls commodious living' are purely conventional. Prior to the
establishment of the basic social contract, according to which men agree to live together and the
contract to embody a Sovereign with absolute authority, nothing is immoral or unjust - anything
goes. After these contracts are established, however, then society becomes possible, and people
can be expected to keep their promises, cooperate with one another, and so on. The Social
Contract is the most fundamental source of all that is good and that which we depend upon to
live well. Our choice is either to abide by the terms of the contract, or return to the State of
Nature, which Hobbes argues no reasonable person could possibly prefer.
Given his rather severe view of human nature, Hobbes nonetheless manages to create an
argument that makes civil society, along with all its advantages, possible. Within the context of
the political events of his England, he also managed to argue for a continuation of the traditional
form of authority that his society had long since enjoyed, while nonetheless placing it on what he
saw as a far more acceptable foundation.
b. John Locke
For Hobbes, the necessity of an absolute authority, in the form of a Sovereign, followed from the
utter brutality of the State of Nature. The State of Nature was completely intolerable, and so
rational men would be willing to submit themselves even to absolute authority in order to escape
it. For John Locke, 1632-1704, the State of Nature is a very different type of place, and so his
argument concerning the social contract and the nature of men's relationship to authority are
consequently quite different. While Locke uses Hobbes methodological device of the State of
Nature, as do virtually all social contract theorists, he uses it to a quite different end. Lockes
arguments for the social contract, and for the right of citizens to revolt against their king were
enormously influential on the democratic revolutions that followed, especially on Thomas
Jefferson, and the founders of the United States.
Locke's most important and influential political writings are contained in his Two Treatises on
Government. The first treatise is concerned almost exclusively with refuting the argument of
Robert Filmers Patriarcha, that political authority was derived from religious authority, also
known by the description of the Divine Right of Kings, which was a very dominant theory in
seventeenth-century England. The second treatise contains Lockes own constructive view of the
aims and justification for civil government, and is titled "An Essay Concerning the True Original
Extent and End of Civil Government".
According to Locke, the State of Nature, the natural condition of mankind, is a state of perfect
and complete liberty to conduct one's life as one best sees fit, free from the interference of others.
This does not mean, however, that it is a state of license: one is not free to do anything at all one
pleases, or even anything that one judges to be in ones interest. The State of Nature, although a
state wherein there is no civil authority or government to punish people for transgressions against
laws, is not a state without morality. The State of Nature is pre-political, but it is not pre-moral.
Persons are assumed to be equal to one another in such a state, and therefore equally capable of
discovering and being bound by the Law of Nature. The Law of Nature, which is on Lockes
view the basis of all morality, and given to us by God, commands that we not harm others with
regards to their "life, health, liberty, or possessions" (par. 6). Because we all belong equally to
God, and because we cannot take away that which is rightfully His, we are prohibited from
harming one another. So, the State of Nature is 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 and the
restrictions that it imposes upon persons, it is relatively peaceful.
The State of Nature therefore, is not the same as the state of war, as it is according to Hobbes. It
can, however devolve into a state of war, in particular, a state of war over property disputes.
Whereas the State of Nature is the state of liberty where persons recognize the Law of Nature
and therefore do not harm one another, the state of war begins between two or more men once
one man declares war on another, by stealing from him, or by trying to make him his slave. Since
in the State of Nature there is no civil power to whom men can appeal, and since the Law of
Nature allows them to defend their own lives, they may then kill those who would bring force
against them. Since the State of Nature lacks civil authority, once war begins it is likely to
continue. And this is one of the strongest reasons that men have to abandon the State of Nature
by contracting together to form civil government.
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 labor
with the raw materials of nature. So, for example, when one tills a piece of land in nature, and
makes it into a piece of farmland, which produces food, then one has a claim to own that piece of
land and the food produced upon it. (This led Locke to conclude that America didnt really
belong to the natives who lived there, because they were, on his view, failing to utilize the basic
material of nature. In other words, they didnt farm it, so they had no legitimate claim to it, and
others could therefore justifiably appropriate it.) 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 more from
nature than one can use, thereby leaving others without enough for themselves. Because nature is
given to all of mankind by God for its common subsistence, one cannot take more than his own
fair share. Property is the linchpin of Lockes 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.
According to Locke, the State of Nature is not a condition of individuals, as it is for Hobbes.
Rather, it is populated by mothers and fathers with their children, or families - what he calls
"conjugal society" (par. 78). These societies are based on the voluntary agreements to care for
children together, and they are moral but not political. Political society comes into being when
individual men, representing their families, come together in the State of Nature and agree to
each give up the executive power to punish those who transgress the Law of Nature, and hand
over that power to the public power of a government. Having done this, they then become
subject to the will of the majority. In other words, by making a compact to leave the State of
Nature and form society, they make one body politic under one government (par. 97) and
submit themselves to the will of that body. One joins such a body, either from its beginnings, or
after it has already been established by others, only by explicit consent. Having created a
political society and government through their consent, men then gain three things which they
lacked in the State of Nature: laws, judges to adjudicate laws, and the executive power necessary
to enforce these laws. 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.
Given that the end of "men's uniting into common-wealths"( par. 124) is the preservation of their
wealth, and preserving their lives, liberty, and well-being in general, Locke can easily imagine
the conditions under which the compact with government is destroyed, and men are justified in
resisting the authority of a civil government, such as a King. When the executive power of a
government devolves into tyranny, such as by dissolving the legislature and therefore denying
the people the ability to make laws for their own preservation, then the resulting tyrant puts
himself into a State of Nature, and specifically into a state of war with the people, and they then
have the same right to self-defense as they had before making a compact to establish society in
the first place. In other words, the justification of the authority of the executive component of
government is the protection of the peoples property and well-being, so when such protection is
no longer present, or when the king becomes a tyrant and acts against the interests of the people,
they have a right, if not an outright obligation, to resist his authority. The social compact can be
dissolved and the process to create political society begun anew.
Because Locke did not envision the State of Nature as grimly as did Hobbes, he can imagine
conditions under which one would be better off rejecting a particular civil government and
returning to the State of Nature, with the aim of constructing a better civil government in its
place. It is therefore both the view of human nature, and the nature of morality itself, which
account for the differences between Hobbes' and Lockes views of the social contract.
c. Jean-Jacques Rousseau
Jean-Jacques Rousseau, 1712-1778, lived and wrote during what was arguably the headiest
period in the intellectual history of modern France--the Enlightenment. He was one of the bright
lights of that intellectual movement, contributing articles to the Encyclopdie of Diderot, and
participating in the salons in Paris, where the great intellectual questions of his day were
pursued.
Rousseau has two distinct social contract theories. The first is found in his essay, Discourse on
the Origin and Foundations of Inequality Among Men, commonly referred to as the Second
Discourse, and is an account of the moral and political evolution of human beings over time,
from a State of Nature to modern society. As such it contains his naturalized account of the
social contract, which he sees as very problematic. The second is his normative, or idealized
theory of the social contract, and is meant to provide the means by which to alleviate the
problems that modern society has created for us, as laid out in the Second Discourse.
Rousseau wrote his Second Discourse in response to an essay contest sponsored by the Academy
of Dijon. (Rousseau had previously won the same essay contest with an earlier essay, commonly
referred to as the First Discourse.) In it he describes the historical process by which man began
in a State of Nature and over time progressed' into civil society. According to Rousseau, the
State of Nature was a peaceful and quixotic time. People lived solitary, uncomplicated lives.
Their few needs were easily satisfied by nature. Because of the abundance of nature and the
small size of the population, competition was non-existent, and persons rarely even saw one
another, much less had reason for conflict or fear. Moreover, these simple, morally pure persons
were naturally endowed with the capacity for pity, and therefore were not inclined to bring harm
to one another.
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 labor 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, which
constituted the pivotal moment in humanity's evolution out of a simple, pure state into one
characterized by greed, competition, vanity, inequality, and vice. For Rousseau the invention of
property constitutes humanitys fall from grace out of the State of Nature.
Having introduced private property, initial conditions of inequality became more pronounced.
Some have property and others are forced to work for them, and the development of social
classes begins. Eventually, those who have property notice that it would be in their interests to
create a government that would protect private property from those who do not have it but can
see that they might be able to acquire it by force. So, government gets established, through a
contract, which purports to guarantee equality and protection for all, even though its true purpose
is to fossilize the very inequalities that private property has produced. In other words, the
contract, which claims to be in the interests of everyone equally, is really in the interests of the
few who have become stronger and richer as a result of the developments of private property.
This is the naturalized social contract, which Rousseau views as responsible for the conflict and
competition from which modern society suffers.
The normative social contract, argued for by Rousseau in The Social Contract (1762), is meant
to respond to this sorry state of affairs and to remedy the social and moral ills that have been
produced by the development of society. The distinction between history and justification,
between the factual situation of mankind and how it ought to live together, is of the utmost
importance to Rousseau. While we ought not to ignore history, nor ignore the causes of the
problems we face, we must resolve those problems through our capacity to choose how we ought
to live. Might never makes right, despite how often it pretends that it can.
The Social Contract begins with the most oft-quoted line from Rousseau: "Man was born free,
and he is everywhere in chains" (49). This claim is the conceptual bridge between the descriptive
work of the Second Discourse, and the prescriptive work that is to come. Humans are essentially
free, and were free in the State of Nature, but the progress' of civilization has substituted
subservience to others for that freedom, through dependence, economic and social inequalities,
and the extent to which we judge ourselves through comparisons with others. Since a return to
the State of Nature is neither feasible nor desirable, the purpose of politics is to restore freedom
to us, thereby reconciling who we truly and essentially are with how we live together. So, this is
the fundamental philosophical problem that The Social Contract seeks to address: how can we be
free and live together? Or, put another way, how can we live together without succumbing to the
force and coercion of others? We can do so, Rousseau maintains, by submitting our individual,
particular wills to the collective or general will, created through agreement with other free and
equal persons. Like Hobbes and Locke before him, and in contrast to the ancient philosophers,
all men are made by nature to be equals, therefore no one has a natural right to govern others,
and therefore the only justified authority is the authority that is generated out of agreements or
covenants.
The most basic covenant, the social pact, is the agreement to come together and form a people, a
collectivity, which by definition is more than and different from a mere aggregation of individual
interests and wills. This act, where individual persons become a people is "the real foundation of
society" (59). Through the collective renunciation of the individual rights and freedom that one
has in the State of Nature, and the transfer of these rights to the collective body, a new person',
as it were, is formed. The sovereign is thus formed when free and equal persons come together
and agree to create themselves anew as a single body, directed to the good of all considered
together. So, just as individual wills are directed towards individual interests, the general will,
once formed, is directed towards the common good, understood and agreed to collectively.
Included in this version of the social contract is the idea of reciprocated duties: the sovereign is
committed to the good of the individuals who constitute it, and each individual is likewise
committed to the good of the whole. Given this, individuals cannot be given liberty to decide
whether it is in their own interests to fulfill their duties to the Sovereign, while at the same time
being allowed to reap the benefits of citizenship. They must be made to conform themselves to
the general will, they must be forced to be free (64).
For Rousseau, this implies an extremely strong and direct form of democracy. One cannot
transfer one's will to another, to do with as he or she sees fit, as one does in representative
democracies. Rather, the general will depends on the coming together periodically of the entire
democratic body, each and every citizen, to decide collectively, and with at least near unanimity,
how to live together, i.e., what laws to enact. As it is constituted only by individual wills, these
private, individual wills must assemble themselves regularly if the general will is to continue.
One implication of this is that the strong form of democracy which is consistent with the general
will is also only possible in relatively small states. The people must be able to identify with one
another, and at least know who each other are. They cannot live in a large area, too spread out to
come together regularly, and they cannot live in such different geographic circumstances as to be
unable to be united under common laws. (Could the present-day U.S. satisfy Rousseaus
conception of democracy? It could not. ) Although the conditions for true democracy are
stringent, they are also the only means by which we can, according to Rousseau, save ourselves,
and regain the freedom to which we are naturally entitled.
Rousseau's social contract theories together form a single, consistent view of our moral and
political situation. We are endowed with freedom and equality by nature, but our nature has been
corrupted by our contingent social history. We can overcome this corruption, however, by
invoking our free will to reconstitute ourselves politically, along strongly democratic principles,
which is good for us, both individually and collectively.

a. John Rawls' A Theory of Justice
In 1972, the publication of John Rawls' extremely influential A Theory of Justice brought moral
and political philosophy back from what had been a long hiatus of philosophical consideration.
Rawls theory relies on a Kantian understanding of persons and their capacities. For Rawls, as
for Kant, persons have the capacity to reason from a universal point of view, which in turn
means that they have the particular moral capacity of judging principles from an impartial
standpoint. In A Theory of Justice, Rawls argues that the moral and political point of view is
discovered via impartiality. (It is important to note that this view, delineated in A Theory of
Justice, has undergone substantial revisions by Rawls, and that he described his later view as
"political liberalism".) He invokes this point of view (the general view that Thomas Nagel
describes as the view from nowhere) by imagining persons in a hypothetical situation, the
Original Position, which is characterized by the epistemological limitation of the Veil of
Ignorance. Rawls original position is his highly abstracted version of the State of Nature. It is
the position from which we can discover the nature of justice and what it requires of us as
individual persons and of the social institutions through which we will live together
cooperatively. In the original position, behind the veil of ignorance, one is denied any particular
knowledge of ones circumstances, such as ones gender, race, particular talents or disabilities,
ones age, social status, ones particular conception of what makes for a good life, or the
particular state of the society in which one lives. Persons are also assumed to be rational and
disinterested in one anothers well-being. These are the conditions under which, Rawls argues,
one can choose principles for a just society which are themselves chosen from initial conditions
that are inherently fair. Because no one has any of the particular knowledge he or she could use
to develop principles that favor his or her own particular circumstances, in other words the
knowledge that makes for and sustains prejudices, the principles chosen from such a perspective
are necessarily fair. For example, if one does not know whether one is female or male in the
society for which one must choose basic principles of justice, it makes no sense, from the point
of view of self-interested rationality, to endorse a principle that favors one sex at the expense of
another, since, once the veil of ignorance is lifted, one might find oneself on the losing end of
such a principle. Hence Rawls describes his theory as justice as fairness. Because the
conditions under which the principles of justice are discovered are basically fair, justice proceeds
out of fairness.
In such a position, behind such a veil, everyone is in the same situation, and everyone is
presumed to be equally rational. Since everyone adopts the same method for choosing the basic
principles for society, everyone will occupy the same standpoint: that of the disembodied,
rational, universal human. Therefore all who consider justice from the point of view of the
original position would agree upon the same principles of justice generated out of such a thought
experiment. Any one person would reach the same conclusion as any other person concerning
the most basic principles that must regulate a just society.
The principles that persons in the Original Position, behind the Veil of Ignorance, would choose
to regulate a society at the most basic level (that is, prior even to a Constitution) are called by
Rawls, aptly enough, the Two Principles of Justice. These two principles determine the
distribution of both civil liberties and social and economic goods. The first principle states that
each person in a society is to have as much basic liberty as possible, as long as everyone is
granted the same liberties. That is, there is to be as much civil liberty as possible as long as these
goods are distributed equally. (This would, for example, preclude a scenario under which there
was a greater aggregate of civil liberties than under an alternative scenario, but under which such
liberties were not distributed equally amongst citizens.) The second principle states that while
social and economic inequalities can be just, they must be available to everyone equally (that is,
no one is to be on principle denied access to greater economic advantage) and such inequalities
must be to the advantage of everyone. This means that economic inequalities are only justified
when the least advantaged member of society is nonetheless better off than she would be under
alternative arrangements. So, only if a rising tide truly does carry all boats upward, can economic
inequalities be allowed for in a just society. The method of the original position supports this
second principle, referred to as the Difference Principle, because when we are behind the veil of
ignorance, and therefore do not know what our situation in society will be once the veil of
ignorance is lifted, we will only accept principles that will be to our advantage even if we end up
in the least advantaged position in society.
These two principles are related to each other by a specific order. The first principle, distributing
civil liberties as widely as possible consistent with equality, is prior to the second principle,
which distributes social and economic goods. In other words, we cannot decide to forgo some of
our civil liberties in favor of greater economic advantage. Rather, we must satisfy the demands
of the first principle, before we move on to the second. From Rawls' point of view, this serial
ordering of the principles expresses a basic rational preference for certain kinds of goods, i.e.,
those embodied in civil liberties, over other kinds of goods, i.e., economic advantage.
Having argued that any rational person inhabiting the original position and placing him or herself
behind the veil of ignorance can discover the two principles of justice, Rawls has constructed
what is perhaps the most abstract version of a social contract theory. It is highly abstract because
rather than demonstrating that we would or even have signed to a contract to establish society, it
instead shows us what we must be willing to accept as rational persons in order to be constrained
by justice and therefore capable of living in a well ordered society. The principles of justice are
more fundamental than the social contract as it has traditionally been conceived. Rather, the
principles of justice constrain that contract, and set out the limits of how we can construct society
in the first place. If we consider, for example, a constitution as the concrete expression of the
social contract, Rawls' two principles of justice delineate what such a constitution can and cannot
require of us. Rawls theory of justice constitutes, then, the Kantian limits upon the forms of
political and social organization that are permissible within a just society.
b. David Gauthier
In his 1986 book, Morals by Agreement, David Gauthier set out to renew Hobbesian moral and
political philosophy. In that book, he makes a strong argument that Hobbes was right: we can
understand both politics and morality as founded upon an agreement between exclusively self-
interested yet rational persons. He improves upon Hobbes' argument, however, by showing that
we can establish morality without the external enforcement mechanism of the Sovereign. Hobbes
argued that mens passions were so strong as to make cooperation between them always in
danger of breaking down, and thus that a Sovereign was necessary to force compliance.
Gauthier, however, believes that rationality alone convinces persons not only to agree to
cooperate, but to stick to their agreements as well.
We should understand ourselves as individual Robinson Crusoes, each living on our own island,
lucky or unlucky in terms of our talents and the natural provisions of our islands, but able to
enter into negotiations and deals with one another to trade goods and services with one another.
Entering into such agreements is to our own advantage, and so rationality convinces us to both
make such agreements and stick to them as well.
Gauthier has an advantage over Hobbes when it comes to developing the argument that
cooperation between purely self-interested agents is possible. He has access to rational choice
theory and its sophisticated methodology for showing how such cooperation can arise. In
particular, he appeals to the model of the Prisoner's Dilemma to show that self-interest can be
consistent with acting cooperatively. (There is a reasonable argument to be made that we can
find in Hobbes a primitive version of the problem of the Prisoners Dilemma.)
According to the story of the Prisoner's Dilemma, two people have been brought in for
questioning, conducted separately, about a crime they are suspected to have committed. The
police have solid evidence of a lesser crime that they committed, but need confessions in order to
convict them on more serious charges. Each prisoner is told that if she cooperates with the police
by informing on the other prisoner, then she will be rewarded by receiving a relatively light
sentence of one year in prison, whereas her cohort will go to prison for ten years. If they both
remain silent, then there will be no such rewards, and they can each expect to receive moderate
sentences of two years. And if they both cooperate with police by informing on each other, then
the police will have enough to send each to prison for five years. The dilemma then is this: in
order to serve her own interests as well as possible, each prisoner reasons that no matter what the
other does she is better off cooperating with the police by confessing. Each reasons: "If she
confesses, then I should confess, thereby being sentenced to five years instead of ten. And if she
does not confess, then I should confess, thereby being sentenced to one year instead of two. So,
no matter what she does, I should confess." The problem is that when each reason this way, they
each confess, and each goes to prison for five years. However, had they each remained silent,
thereby cooperating with each other rather than with the police, they would have spent only two
years in prison.
According to Gauthier, the important lesson of the Prisoner's Dilemma is that when one is
engaged in interaction such that others actions can affect ones own interests, and vice versa,
one does better if one acts cooperatively. By acting to further the interests of the other, one
serves ones own interests as well. We should, therefore, insofar as we are rational, develop
within ourselves the dispositions to constrain ourselves when interacting with others. We should
become "constrained maximizers" (CMs) rather remain the straightforward maximizers (SMs)
that we would be in a State of Nature (167).
Both SMs and CMs are exclusively self-interested and rational, but they differ with regard to
whether they take into account only strategies, or both the strategies and utilities, of whose with
whom they interact. To take into account the others' strategies is to act in accordance with how
you expect the others will act. To take into account their utilities is to consider how they will fare
as a result of your action and to allow that to affect your own actions. Both SMs and CMs take
into account the strategies of the other with whom they interact. But whereas SMs do not take
into account the utilities of those with whom they interact, CMs do. And, whereas CMs are
afforded the benefits of cooperation with others, SMs are denied such advantage. According to
Gauthier, when interacting in Prisoners Dilemma-like situations, where the actions of others can
affect ones own outcome, and vice versa, rationality shows that ones own interest is best
pursued by being cooperative, and therefore agents rationally dispose themselves to the constrain
the maximization of their own utility by adopting principles of morality. According to Gauthier,
rationality is a force strong enough to give persons internal reasons to cooperate. They do not,
therefore, need Hobbes Sovereign with absolute authority to sustain their cooperation. The
enforcement mechanism has been internalized. "Morals by agreement" are therefore created out
of the rationality of exclusively self-interested agents.
Given the longstanding and widespread influence that social contract theory has had, it comes as
no surprise that it is also the objects of many critiques from a variety of philosophical
perspectives. Feminists and race-conscious philosophers, in particular, have made important
arguments concerning the substance and viability of social contract theory.
a. Feminist Arguments
For the most part, feminism resists any simple or universal definition. In general though,
feminists take women's experiences seriously, as well as the impact that theories and practices
have for womens lives. Given the pervasive influence of contract theory on social, political, and
moral philosophy, then, it is not surprising that feminists should have a great deal to say about
whether contract theory is adequate or appropriate from the point of view of taking women
seriously. To survey all of the feminist responses to social contract theory would carry us well
beyond the boundaries of the present article. I will concentrate therefore on just three of those
arguments: Carole Patemans argument about the relation between the contract and womens
subordination to men, feminist arguments concerning the nature of the liberal individual, and the
care argument.
i. The Sexual Contract
Carole Pateman's 1988 book, The Sexual Contract, argues that lying beneath the myth of the
idealized contract, as described by Hobbes, Locke, and Rousseau, is a more fundamental contract
concerning mens relationship to women. Contract theory represents itself as being opposed to
patriarchy and patriarchal right. (Lockes social contract, for example, is set by him in stark
contrast to the work of Robert Filmer who argued in favor of patriarchal power.) Yet the
"original pact" (2) that precedes the social contract entered into by equals is the agreement by
men to dominate and control women. This original pact is made by brothers, literally or
metaphorically, who, after overthrowing the rule of the father, then agree to share their
domination of the women who were previously under the exclusive control of one man, the
father. The change from classical patriarchalism (24) to modern patriarchy is a shift, then, in
who has power over women. It is not, however, a fundamental change in whether women are
dominated by men. Mens relationships of power to one another change, but womens
relationship to mens power does not. Modern patriarchy is characterized by a contractual
relationship between men, and part of that contract involves power over women. This fact, that
one form of patriarchy was not overthrown completely, but rather was replaced with a different
form, in which male power was distributed amongst more men, rather than held by one man, is
illustrated by Freuds story of the genesis of civilization. According to that story, a band of
brothers, lorded over by a father who maintained exclusive sexual access to the women of the
tribe, kill the father, and then establish a contract among themselves to be equal and to share the
women. This is the story, whether we understand Freuds tale to be historically accurate or not,
of modern patriarchy and its deep dependence on contract as the means by which men control
and dominate women.
Patriarchal control of women is found in at least three paradigmatic contemporary contracts: the
marriage contract, the prostitution contract, and the contract for surrogate motherhood. Each of
these contracts is concerned with men's control of women, or a particular mans control of a
particular woman generalized. According to the terms of the marriage contract, in most states in
the U.S., a husband is accorded the right to sexual access, prohibiting the legal category of
marital rape. Prostitution is a case in point of Patemans claim that modern patriarchy requires
equal access by men to women, in particular sexual access, access to their bodies. And surrogate
motherhood can be understood as more of the same, although in terms of access to womens
reproductive capacities. All these examples demonstrate that contract is the means by which
women are dominated and controlled. Contract is not the path to freedom and equality. Rather, it
is one means, perhaps the most fundamental means, by which patriarchy is upheld.
ii. The Nature of the Liberal Individual
Following Pateman's argument, a number of feminists have also called into question the very
nature of the person at the heart of contract theory. The Liberal Individual, the contractor, is
represented by the Hobbesian man, Lockes proprietor, Rousseaus "Noble Savage," Rawlss
person in the original position, and Gauthiers Robinson Crusoe. The liberal individual is
purported to be universal: raceless, sexless, classless, disembodied, and is taken to represent an
abstract, generalized model of humanity writ large. Many philosophers have argued, however,
that when we look more closely at the characteristics of the liberal individual, what we find is not
a representation of universal humanity, but a historically located, specific type of person. C.B.
Macpherson, for example, has argued that Hobbesian man is, in particular, a bourgeois man, with
the characteristics we would expect of a person during the nascent capitalism that characterized
early modern Europe. Feminists have also argued that the liberal individual is a particular,
historical, and embodied person. (As have race-conscious philosophers, such as Charles Mills, to
be discussed below.) More specifically, they have argued that the person at the heart of liberal
theory, and the social contract, is gendered. Christine Di Stefano, in her 1991 book
Configurations of Masculinity, shows that a number of historically important modern
philosophers can be understood to develop their theories from within the perspective of
masculinity, as conceived of in the modern period. She argues that Hobbess conception of the
liberal individual, which laid the groundwork for the dominant modern conception of the person,
is particularly masculine in that it is conceived as atomistic and solitary and as not owing any of
its qualities, or even its very existence, to any other person, in particular its mother. Hobbess
human, is therefore, radically individual, in a way that is specifically owing to the character of
modern masculinity. Virginia Held, in her 1993 book, Feminist Morality, argues that social
contract theory implicitly relies on a conception of the person that can be best described as
economic man. Economic man is concerned first and foremost to maximize his own,
individually considered interests, and he enters into contracts as a means by which to achieve this
end. Economic man, however, fails to represent all persons in all times and places. In
particular, it fails to adequately represent children and those who provide them with the care they
require, who have historically been women. The model of economic man cannot, therefore,
fairly claim to be a general representation of all persons. Similarly, Annette Baier argues that
Gauthiers conception of the liberal individual who enters into the social contract as a means by
which to maximize his own individually considered interests is gendered in that it does not take
seriously the position of either children or the women who most usually are responsible for
caring for those children.
iii. Arguing from Care
Theorizing from within the emerging tradition of care ethics, feminist philosophers such as Baier
and Held argue that social contract theory fails as an adequate account of our moral or political
obligations. Social contract theory, in general, only goes so far as to delineate our rights and
obligations. But this may not be enough to adequately reveal the full extent of what it means to
be a moral person, and how fully to respond to others with whom one interacts through relations
of dependence. Baier argues that Gauthier, who conceives of affective bonds between persons as
non-essential and voluntary, therefore fails to represent the fullness of human psychology and
motivations. She argues that this therefore leads to a crucial flaw in social contract theory.
Liberal moral theory is in fact parasitic upon the very relations between persons from which it
seeks to liberate us. While Gauthier argues that we are freer the more that we can see affective
relations as voluntary, we must nonetheless, in the first place, be in such relationships (e.g., the
mother-child relationship) in order to develop the very capacities and qualities lauded by liberal
theory. Certain kinds of relationships of dependence, in other words, are necessary in the first
place if we are to become the very kinds of persons who are capable of entering into contracts
and agreements. In a similar vein, Held has argued that the model of "economic man" fails to
capture much of what constitutes meaningful moral relations between people. Understanding
human relations in purely contractual terms constitutes, according to her argument an
impoverished view of human aspiration (194). She therefore suggests that we consider other
models of human relationships when looking for insight into morality. In particular, she offers up
the paradigm of the mother-child relationship to at least supplement the model of individual self-
interested agents negotiating with one another through contracts. Such a model is more likely to
match up with many of the moral experiences of most people, especially women.
Feminist critiques of the contractarian approaches to our collective moral and political lives
continue to reverberate through social and political philosophy. One such critique, that of Carole
Pateman, has influenced philosophers writing outside of feminist traditions.
b. Race-Conscious Argument
Charles Mills' 1997 book, The Racial Contract, is a critique not only of the history of Western
political thought, institutions, and practices, but, more specifically, of the history of social
contract theory. It is inspired by Carole Patemans The Sexual Contract, and seeks to show that
non-whites have a similar relationship to the social contract as do women. As such, it also calls
into question the supposed universality of the liberal individual who is the agent of contract
theory.
Mills' central argument is that there exists a racial contract that is even more fundamental to
Western society than the social contract. This racial contract determines in the first place who
counts as full moral and political persons, and therefore sets the parameters of who can contract
in to the freedom and equality that the social contract promises. Some persons, in particular
white men, are full persons according to the racial contract. As such they are accorded the right
to enter into the social contract, and into particular legal contracts. They are seen as fully human
and therefore as deserving of equality and freedom. Their status as full persons accords them
greater social power. In particular, it accords them the power to make contracts, to be the
subjects of the contract, whereas other persons are denied such privilege and are relegated to the
status of objects of contracts.
This racial contract is to some extent a meta-contract, which determines the bounds of
personhood and parameters of inclusion and exclusion in all the other contracts that come after it.
It manifests itself both formally and informally. It is an agreement, originally among European
men in the beginning of the modern period, to identify themselves as white' and therefore as
fully human, and to identify all others, in particular the natives with whom they were beginning
to come into contact, as other: non-white and therefore not fully human. So, race is not just a
social construct, as others have argued, it is more especially a political construct, created to serve
a particular political end, and the political purposes of a specific group. The contract allows some
persons to treat other persons, as well as the lands they inhabit, as resources to be exploited. The
enslavement of millions of Africans and the appropriation of the Americas from those who
inhabited them, are examples of this racial contract at work in history (such as Lockes claim that
Native Americans did not own the land they lived on because they did not farm it and therefore
did not own it). This contract is not hypothetical, as Hobbes describes the one argued for in his
Leviathan. This is an actual contract, or series of contracts, made by real men of history. It is
found in such documents as Papal Bulls and Lockes writings on Native Americans, and acted
upon in such historical events as the voyages of discovery made by Europeans and the
colonization of Africa, Asia, and the Americas. The racial contract makes possible and justifies
some people, in virtue of their alleged superiority, exploiting the peoples, lands, and resources of
other races.
From Mills' perspective then, racism is not just an unhappy accident of Western democratic and
political ideals. It is not the case that we have a political system that was perfectly conceived and
unfortunately imperfectly applied. One of the reasons that we continue to think that the problem
of race in the West is relatively superficial, that it does not go all the way down, is the hold that
the idealized social contract has on our imagination. We continue to believe, according to Mills,
in the myths that social contract theory tells us - that everyone is equal, that all will be treated the
same before the law, that the Founding Fathers were committed to equality and freedom for all
persons, etc. One of the very purposes of social contract theory, then, is to keep hidden from
view the true political reality some persons will be accorded the rights and freedoms of full
persons, and the rest will be treated as sub-persons. The racial contract informs the very structure
of our political systems, and lays the basis for the continuing racial oppression of non-whites.
We cannot respond to it, therefore, by simply adding more non-whites into the mix of our
political institutions, representation, and so on. Rather, we must reexamine our politics in
general, from the point of view of the racial contract, and start from where we are, with full
knowledge of how our society has been informed by the systematic exclusion of some persons
from the realm of politics and contract. This "naturalized" feature of the racial contract, meaning
that it tells a story about who we actually are and what is included in our history, is better,
according to Mills, because it holds the promise of making it possible for us to someday actually
live up to the norms and values that are at the heart of the Western political traditions.
5. Conclusion
Virginia Held has argued that "Contemporary Western society is in the grip of contractual
thinking" (193). Contractual models have come to inform a vast variety of relations and
interaction between persons, from students and their teachers, to authors and their readers. Given
this, it would be difficult to overestimate the effect that social contract theory has had, both
within philosophy, and on the wider culture. Social contract theory is undoubtedly with us for the
foreseeable future. But so too are the critiques of such theory, which will continue to compel us
to think and rethink the nature of both ourselves and our relations with one another.
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Table of Contents
1. Thomas Hobbes
2. John Locke
2. David Gauthier
5. Conclusion
assigns to it.

a. Thomas Hobbes
Nature.
unavoidable war.
b. John Locke
pursued.
to one another.
covenants.
out of fairness.
b. David Gauthier
years in prison.
care argument.
and dominate women.
theory.
other races.
5. Conclusion
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Table of Contents
1. Thomas Hobbes
2. John Locke
2. David Gauthier
5. Conclusion
assigns to it.

a. Thomas Hobbes
Nature.
unavoidable war.
b. John Locke
pursued.
to one another.
covenants.
out of fairness.
b. David Gauthier
years in prison.
care argument.
and dominate women.
theory.
other races.
5. Conclusion
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ADVERTISEMENTS:
Social Contract Theory:
The only disadvantage of the state of nature was that there was no recognised system of law and
justice in it. To make good this deficiency and ensure the exercise of his liberty man entered into
a contract by which certain powers were conferred upon the community. J. J. Rousseau in his
Contract Social (1762) held that men in the state of nature were equal, self-sufficient, and
contented.
They lived a life of idyllic happiness and primitive simplicity. But growth in numbers of men
and the quarrels arising among them necessitated the establishment of civil society.
Consequently men entered into a contract in virtue of which everyone, while uniting himself to
all, remains as free as before. According to Adam Smith, society is an artificial device created to
foster a mutual economy.
Brief Criticism of the Various Theories:
The above theories of the origin of society do not provide an adequate explanation of its origin.
All of them have been subjected to numerous criticisms. Not going into the details of the
criticism of each theory we will confine ourselves to certain important observations.
The origin of society is not due to Gods intervention in human history. The society is the
outcome of the social instinct of man. Force, no doubt, is an important factor in the evolution of
society but it cannot be regarded as the one and the only factor.
Several other factors must have entered into the composition of early society. It is as much a
result of voluntary amalgamation as of force or conquest.
Neither of the patriarchal and matriarchal families can be held universal. In the words of
Leacock. No single form of the primitive family or group can be asserted. Here the matriarchal
relationship, and there a patriarchal regime, is found to have been the rule, either of which may
perhaps be displaced by the other.
ADVERTISEMENTS:
The social contract theory seems to assume that man as individual is prior to society but this
assumption is erroneous because of the fact that sociality is in born in man. As soon as he saw
the light of day with others like him society became a fact.
Human beings are human beings inside and not outside of society. Society in fact emerged
gradually. It did not come into existence on a particular day. The above theories might indicate
the way in which certain societies began to exist but they do not offer a valid explanation of the
origin of society.
Evolutionary Theory:
The evolutionary theory offers a generally correct explanation of the origin of society. According
to it society is not a make but a growth. It is the result of a gradual evolution. It is continuous
development from unorganised to organised, from less perfect to more perfect and various
factors helped in its development from time to time. Kinship and family were the earliest bonds
uniting man with man.
Kinship creates society. says Malvern. Patriarchal society was organised on the basis of
Kinship through males. Religion was another factor to help in the creation of social
consciousness. As a matter of fact as Gettell observes, Kinship and religion were simply two
aspects of the same thing.
They were so closely inter-twined that the patriarch, who later became the tribal chief, was also
the high priest. After this man gave up his wandering habits, settled in villages and cities, and
took to the pastoral and agricultural life.
The population began to multiply. Wealth was accumulated. The idea of property took root. The
economic life advanced. All this necessitated changes in the forms of social relations and man
arrived at such advanced forms of social organisations as the nation state.
Thus, society did not come into being by virtue of a pact or special provision; it emerged
spontaneously and followed its own line of development. It passed through several stages of
evolution before reaching its modern complex form.
According to Comte, the society has passed through three stagesthe theological, the
metaphysical and the positive. In his view society came into being as a result of a need for
association, a felt need of human beings which evolved in accordance with definite laws.
Existing societies are on different stages of development.
Progress, according to him, is inevitable, although it is gradual, slow and uneven. Herbert
Spencer also subscribed to the theory of social evolution. According to him, society is subject to
the same laws of evolution to which all organic and inorganic matter is.. To him also evolution
meant progress.
Human society has advanced from a savage state to a civilized state. He marked out these stages,
the primitive, the militant and the industrial in the course of social evolution.
Home Society
STATE OF NATURE
The state of nature is a concept used in moral and political philosophy, religion, social contract
theories and international law[1] to denote the hypothetical conditions of what the lives of people
might have been like before societies came into existence. Philosophers of the state of nature
theory deduce that there must have been a time before organized societies existed, and this
presumption thus raises questions such as: "What was life like before civil society?"; "How did
government first emerge from such a starting position?," and; "What are the hypothetical reasons
for entering a state of society by establishing a nation-state?".
In some versions of social contract theory, there are no rights in the state of nature, only
freedoms, and it is the contract that creates rights and obligations. In other versions the opposite
occurs: the contract imposes restrictions upon individuals that curtail their natural rights.
Societies existing before or without a political state are currently studied in such fields as
paleolithic history, and the anthropological subfields of archaeology, cultural anthropology,
social anthropology, and ethnology, which investigate the social and power-related structures of
indigenous and uncontacted peoples living in tribal communities.
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Thomas Hobbes
The pure state of nature or "the natural condition of mankind" was deduced by the 17th century
English philosopher Thomas Hobbes, in Leviathan and in his earlier work On the Citizen.[4]
Hobbes argued that all humans are by nature equal in faculties of body and mind (i.e., no natural
inequalities are so great as to give anyone a "claim" to an exclusive "benefit"). From this equality
and other causes in human nature, everyone is naturally willing to fight one another: so that
"during the time 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 is of every man against every man". In this
state every person has a natural right or liberty to do anything one thinks necessary for
preserving one's own life; and life is "solitary, poor, nasty, brutish, and short" (Leviathan,
Chapters XIIIXIV). Hobbes described this natural condition with the Latin phrase bellum
omnium contra omnes (meaning war of all against all), in his work De Cive.
Within the state of nature there is neither personal property nor injustice since there is no law,
except for certain natural precepts discovered by reason ("laws of nature"): the first of which is
"that every man ought to endeavour peace, as far as he has hope of obtaining it" (Leviathan, Ch.
XIV); and the second is "that a man be willing, when others are so too, as far forth as for peace
and defence of himself he shall think it necessary, to lay down this right to all things; and be
contented with so much liberty against other men as he would allow other men against himself"
(loc. cit.). From here Hobbes develops the way out of the state of nature into political society and
government, by mutual contracts.
According to Hobbes the state of nature exists at all times among independent countries, over
whom there is no law except for those same precepts or laws of nature (Leviathan, Chapters XIII,
XXX end). His view of the state of nature helped to serve as a basis for theories of international
law and realism.[5]
John Locke
John Locke considers the state of nature in his Second Treatise on Civil Government written
around the time of the Exclusion Crisis in England during the 1680s. For Locke, in the state of
nature all men are free "to order their actions, and dispose of their possessions and persons, as
they think fit, within the bounds of the law of nature." (2nd Tr., 4). "The state of Nature has a
law of Nature to govern it", and that law is reason. Locke believes that reason teaches that "no
one ought to harm another in his life, liberty, and or property" (2nd Tr., 6) ; and that
transgressions of this may be punished. This view of the state of nature is partly deduced from
Christian belief (unlike Hobbes, whose philosophy is not dependent upon any prior theology).
Although it may be natural to assume that Locke was responding to Hobbes, Locke never refers
to Hobbes by name, and may instead have been responding to other writers of the day, like
Robert Filmer.[6] In fact, Locke's First Treatise is entirely a response to Filmer's Patriarcha, and
takes a step by step method to refuting Filmer's theory set out in Patriarcha. The conservative
party at the time had rallied behind Filmer's Patriarcha, whereas the Whigs, scared of another
prosecution of Anglicans and Protestants, rallied behind the theory set out by Locke in his Two
Treatises of Government as it gave a clear theory as to why the people would be justified in
overthrowing a monarchy which abuses the trust they had placed in it.[citation needed]
Montesquieu
Montesquieu makes use of the concept of the state of nature in his The Spirit of the Laws, first
printed in 1748. Montesquieu interestingly states the thought process behind early human beings
before the formation of society. He says that human beings would have the faculty of knowing
and would first think to preserve their life in the state. Human beings would also at first feel
themselves to be impotent and weak. As a result, humans would not be likely to attack each other
in this state. Next, humans would seek nourishment and out of fear and impulse would
eventually unite to create society. Once society was created, a state of war would ensue amongst
societies which would have been all created the same way. The purpose of war is the
preservation of the society and the self. The formation of law within society is the reflection and
application of reason for Montesquieu.[7]
Jean-Jacques Rousseau
Hobbes' view was challenged in the eighteenth century by Jean-Jacques Rousseau, who claimed
that Hobbes was taking socialized people and simply imagining them living outside of the
society in which they were raised. He affirmed instead that people were neither good nor bad, but
were born as a blank slate, and later society and the environment influence which way we lean.
In Rousseau's state of nature, people did not know each other enough to come into serious
conflict, and they did have normal values. The modern society, and the ownership it entails, is
blamed for the disruption of the state of nature which Rousseau sees as true freedom.[8]
David Hume
David Hume offers in A Treatise of Human Nature (1739) that human beings are naturally
social: "'Tis utterly impossible for men to remain any considerable time in that savage condition,
which precedes society; but that his very first state and situation may justly be esteem'd social.
This, however, hinders not, but that philosophers may, if they please, extend their reasoning to
the suppos'd state of nature; provided they allow it to be a mere philosophical fiction, which
never had, and never cou'd have any reality."[9]
Hume's ideas about human nature expressed in the Treatise suggest that he would be happy with
neither Hobbes' nor his contemporary Rousseau's thought-experiments. He explicitly derides as
incredible the hypothetical humanity described in Hobbes' Leviathan.[10] Additionally, he argues
in "Of the Origin of Justice and Property" that if mankind were universally benevolent, we would
not hold Justice to be a virtue: "tis only from the selfishness and confind generosity of men,
along with the scanty provision nature has made for his wants, that justice derives its origin."[11]
John Calhoun
John C. Calhoun, in his Disquisition on Government, (1850) wrote that a state of nature is merely
hypothetical and argues that the concept is self-contradictory and that political states naturally
always existed. "It is, indeed, difficult to explain how an opinion so destitute of all sound reason,
ever could have been so extensively entertained, ... I refer to the assertion, that all men are equal
in the state of nature; meaning, by a state of nature, a state of individuality, supposed to have
existed prior to the social and political state; and in which men lived apart and independent of
each other... But such a state is purely hypothetical. It never did, nor can exist; as it is
inconsistent with the preservation and perpetuation of the race. It is, therefore, a great misnomer
to call it the state of nature. Instead of being the natural state of man, it is, of all conceivable
states, the most opposed to his naturemost repugnant to his feelings, and most incompatible
with his wants. His natural state is, the social and politicalthe one for which his Creator made
him, and the only one in which he can preserve and perfect his race. As, then, there never was
such a state as the, so called, state of nature, and never can be, it follows, that men, instead of
being born in it, are born in the social and political state; and of course, instead of being born
free and equal, are born subject, not only to parental authority, but to the laws and institutions of
the country where born, and under whose protection they draw their first breath."[12]
20th century
John Rawls used what amounted to an artificial state of nature. To develop his theory of justice,
Rawls places everyone in the original position. The original position is a hypothetical state of
nature used as a thought experiment development to Rawls' theory of justice. People in the
original position have no society and are under a veil of ignorance that prevents them from
knowing how they may benefit from society. They lack foreknowledge of their intelligence,
wealth, or abilities. Rawls reasons that people in the original position would want a society
where they had their basic liberties protected and where they had some economic guarantees as
well. If society were to be constructed from scratch through a social agreement between
individuals, these principles would be the expected basis of such an agreement. Thus, these
principles should form the basis of real, modern societies since everyone should consent to them
if society were organized from scratch in fair agreements.
Rawls' Harvard colleague Robert Nozick countered the liberal A Theory of Justice with the
libertarian Anarchy, State, and Utopia, also grounded in the state of nature tradition.[13] Nozick
argued that a minimalist state of property rights and basic law enforcement would develop out of
a state of nature without violating anyone's rights or using force. Mutual agreements among
individuals rather than social contract would lead to this minimal state.
Between nations
In Hobbes' view, once a civil government is instituted, the state of nature has disappeared
between individuals because of the civil power which exists to enforce contracts and the laws of
nature generally. Between nations, however, no such power exists and therefore nations have the
same rights to preserve themselvesincluding making waras individuals possessed. Such a
conclusion led some writers to the idea of an association of nations or worldwide civil society.
Among them there were Immanuel Kant with his work on perpetual peace.
Rawls also examines the state of nature between nations. In his work the Law of Peoples, Rawls
applies a modified version of his original position thought experiment to international
relationships. Rawls says that peoples, not states, form the basic unit that should be examined.
States should be encouraged to follow the principles from Rawls' earlier A Theory of Justice.
Democracy seems like it would be the most logical means of accomplishing these goals, but
benign non-democracies should be seen as acceptable at the international stage. Rawls develops
eight principles for how a people should act on an international stage.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
State of nature, in political theory, the real or hypothetical condition of human beings before or
without political association. Many social-contract theorists, such as Thomas Hobbes and John
Locke, relied on this notion to examine the limits and justification of political authority or even,
as in the case of Jean-Jacques Rousseau, the legitimacy of human society itself. Visions of the
state of nature differ sharply between theorists, although most associate it with the absence of
state sovereignty.
For Hobbes, the state of nature is characterized by the war of every man against every man, a
constant and violent condition of competition in which each individual has a natural right to
everything, regardless of the interests of others. Existence in the state of nature is, as Hobbes
famously states, solitary, poor, nasty, brutish, and short. The only laws that exist in the state of
nature (the laws of nature) are not covenants forged between people but principles based on self-
preservation. What Hobbes calls the first law of nature, for instance, is
that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he
cannot obtain it, that he may seek and use all helps and advantages of war.
In the absence of a higher authority to adjudicate disputes, everyone fears and mistrusts everyone
else, and there can be no justice, commerce, or culture. That unsustainable condition comes to an
end when individuals agree to relinquish their natural rights to everything and to transfer their
self-sovereignty to a higher civil authority, or Leviathan. For Hobbes, the authority of the
sovereign is absolute, in the sense that no authority is above the sovereign and that its will is law.
That, however, does not mean that the power of the sovereign is all-encompassing: subjects
remain free to act as they please in cases in which the sovereign is silent (in other words, when
the law does not address the action concerned). The social contract allows individuals to leave
the state of nature and enter civil society, but the former remains a threat and returns as soon as
governmental power collapses. Because the power of Leviathan is uncontested, however, its
collapse is very unlikely and occurs only when it is no longer able to protect its subjects.
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For Locke, by contrast, the state of nature is characterized by the absence of government but not
by the absence of mutual obligation. Beyond self-preservation, the law of nature, or reason, also
teaches all mankind, who will but consult it, that being all equal and independent, no one ought
to harm another in his life, liberty, or possessions. Unlike Hobbes, Locke believed individuals
are naturally endowed with these rights (to life, liberty, and property) and that the state of nature
could be relatively peaceful. Individuals nevertheless agree to form a commonwealth (and
thereby to leave the state of nature) in order to institute an impartial power capable of arbitrating
their disputes and redressing injuries. Lockes idea that the rights to life, liberty, and property are
natural rights that precede the establishment of civil society influenced the American Revolution
and modern liberalism more generally.
The idea of the state of nature was also central to the political philosophy of Rousseau. He
vehemently criticized Hobbess conception of a state of nature characterized by social
antagonism. The state of nature, Rousseau argued, could only mean a primitive state preceding
socialization; it is thus devoid of social traits such as pride, envy, or even fear of others. The state
of nature, for Rousseau, is a morally neutral and peaceful condition in which (mainly) solitary
individuals act according to their basic urges (for instance, hunger) as well as their natural desire
for self-preservation. This latter instinct, however, is tempered by an equally natural sense of
compassion. In Rousseaus account, laid out in his Discourse on the Origin of Inequality (1775),
individuals leave the state of nature by becoming increasingly civilizedthat is to say,
dependent on one another.
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The notion of a state of nature, real or hypothetical, was most influential during the 17th and
18th centuries. Nevertheless, it has also influenced more-recent attempts to establish objective
norms of justice and fairness, notably those of the American philosopher John Rawls in his A
Theory of Justice (1971) and other works. Although Rawls rejected the notion of a pre-social or
pre-political state of nature, he argued that the basic features of a just society could best be
discovered by considering the principles of government that would be accepted by a group of
rational individuals who have been made ignorant of their positions in society (and thus also of
the privileges or privations they experience as a result)a heuristic device he called the veil of
ignorance. In this way, Rawls, like Hobbes, Locke, and Rousseau, argued that the best way to
assess the value of social institutions is to imagine their absence.
The American philosopher Robert Nozick, Rawlss contemporary, also turned to a hypothetical
state of nature in his main work of political philosophy, Anarchy, State, and Utopia (1974), to
argue for a position that was markedly different from that of Rawls. According to Nozick, the
minimal state (one whose functions are limited to protecting the natural rights to life, liberty, and
property) is justified, because individuals living in a state of nature would eventually create such
a state through transactions that would not violate anyones rights.
Andr Munro
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In the 17th and 18th century a common device in political philosophy

was to reason in terms of the "state of nature." What this meant was to
imagine human society as it was before there were states and
governments. The question was usually what life was like in such
conditions and then how and why there was or would be a transition
from it to the arrangements we see now. Often the origin of organized
society was conceived as an original agreement, a "social contract,"
negotiated among people in the state of nature. Three significant
versions of state of nature theory
can be found with Thomas
Hobbes, John Locke, and Jean
Jacques Rousseau.
Hobbes and Locke agree that

things would be bad in the state of nature. Hobbes famously said that life
would be "poor, nasty, brutish, and short." Everyone would be
vulnerable to predation by the strong, and little property could be
accumulated without being looted. To Hobbes, governments are formed
for the sole purpose of protecting one's existence. To the Sovereign, the
King, all power is then ceded. Any rights that the subject then possesses,
over and above their lives, are dispensed at the discretion of the
Sovereign. Locke saw the matter rather differently. In the state of nature,
whatever one's vulnerabilities, right and wrong would already exist.
Murder would already be murder, theft already theft. The problem with
the state of nature is that justice could not be well enforced, especially in
that being a judge in one's own case would inflate one's sense of injury
and turn just retribution into unjust revenge. The purpose of government,
then, is to more effectively institute justice. The rights that already
existed in nature are simply recognized, not created, by government; and
if a government ever failed to enforce those rights, it would lose its
legitimacy.
terms, obedience was owed to the Sovereign, whether he ruled well or

not. Revolution was inexcusable treason. Locke argued, however, that
government had only a conditional and fiduciary authority, which it
could lose by the non-performance of its charge. We no longer need to
read Locke for a statement of these principles, because Thomas
Jefferson wrote them into the Declaration of Independence in 1776:
"That to secure these Rights, Governments are instituted among Men,,"
and "whenever any Form of Government becomes destructive of these
Ends, it is the Right of the People to alter or to abolish it.." Jefferson
puts in two or three sentences the purport of Locke's Second Treatise of
Civil Government.
But if the state of nature was good for Rousseau, then wouldn't the
reasonable thing be to return to it? That is always a problem for such
views; but even if returning to nature is somehow impossible, or for
some reason undesirable, the question of politics is then how the
conditions of modern government can be revised so as to reproduce
primaeval justice and bliss. Rousseau's version of the Social Contract
(here the name of his book) aims at this end. It is to be accomplished by
creating a state that embodies the "General Will." As in Hobbes, this is a
conception of absolutist government, but it is also even more collectivist
and statist than Hobbes's conception. Unlike Hobbes, Rousseau believes
that there are rights in the state of nature, but then these rights are given
up to the State in the process of creating a vehicle for the General Will.
What goes along with this, in the starkest political contrast to both
Hobbes and Locke, is Rousseau's rejection of the existence Civil
Society. Allowing for Civil Society simply permits the sort of private
interests that exploit others and detract from the General Will.
.
As a thought experiment, the state of nature is of particular use in

relation to Locke's liberalism. That is because the liberal conception of
government is that it only exists for the limited purpose of remedying
particular disadvantages that would occur in the absence of government.
Since the principal disadvantage of the state of nature is that the
innocent and peaceful have difficulty resisting predators, the principal
charge of government is to protect persons and their property. Were
government to become an instrument of predation itself, then it would,
in Locke's terms, be making war on its own citizens and thereby lose all
its legitimacy. Of course, one of the appeals of anarchism (or at least of "
.
FUNCTIONS & IMPORTANCE OF CONSTITUTION

On the basis of the above definitions of constitution, the main features of constitutions are stated
below.
1. The constitution is the foundation of the rule of state.
2. The constitution is the embodiment of the fundamental laws. This is the doc of the rule of a
state.
3. The constitution describes the powers and functions of different org government and the
relations among these organs.
4. It states on the one side the powers and duties of the government and, on the rights and duties
of citizens.
5. It connects the ruler to the ruled, and vice versa.
The Functions and Importance of constitution
The functions and importance of constitutions are discussed below.
1. Indispensable for Administration:
Constitution is indispensable f administration of state. Administration would not be smooth, fair

and efficient in the absence of a constitution. The constitution is a record of the state providing
for rule of law.
2. Empowerment of state:
The constitution gives powers and strength to the state and government.
3. Establishment of values and Ideals:
Every constitution aims at establishing values and ideals. These ideals may include democracy,
freedom or liberty, welfare people, equality and justice.
The ideas, values and goals of a constitution may be stated clearly or impliedly, of the goals of
India is establishment of socialism. This has been clearly stated in preamble of the constitution.
The interests of rich Americans have been protected b American constitution.
4. Shows Path and Direction to Government:
The constitution is blue print governance. It is the duty of government to follow this blue print.
The constitution shows direction to the government. The government is likely to reach its goal if
it proceeds in that direction. The constitution advises the government to avoid disputes, and also
to disputes.
5. Makes Government Stable and Disciplined:
If the different organs of govern perform their functions according to the provisions of the
constitution, the government will be effective and stable. The constitution has also fixed the
limits of powers of to organs of government. They cannot cross these limits. As a result of this,
there prevails discipline in the government. .
6. Gives Rights to Citizens and Makes Them Duty-bound:
The constitution gives valuable rights to citizens, such as, political, economic, social and cultural
rights. In no times, the government cannot withdraw these rights from citizens. So long as the
citizens enjoy these rights, the government cannot be authoritarian or dictatorial.
Citizens, while enjoying their rights, are also required to discharge some duties, should remain
loyal to their sovereign state and respect the rights of other citizens of country. The constitution
injects a sense of discipline in the citizen.
7. Lends Legitimacy to State/Government:
The constitution, while giving powers to the state/government and determining their functions,
(ends legitimacy to their functions and decisions. In the absence of a constitution, no state will
get respect from other states and even from its own citizens.
8. Establishes Linkage between State/Government and Citizens:
The state and citizen, unless related and linked to each other, will lose then identity. Any
ambiguity or trouble in their bilateral relations will cause damage to both the state and citizen.
The constitution determines the nature of relations between them.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
Constitution-As-Function versus Constitution-As-Form
The principal divide regarding the use of the term constitution has to do with its reference to
either certain functions (however achieved) or a certain form (whatever its function). The
constitution in the first connotation comprises those elements (e.g., laws, theories, and
interpretations) that perform what are traditionally understood as constitutional functions. The
constitution in the second connotation refers to the formal written charter, a form that is now
nearly universal among modern states.
To understand the first conceptualisation, that of constitution-as-function, we should clarify what

scholars view to be the traditional purposes of constitutions. A central idea here is the limitation
of government power. Constitutions generate a set of inviolable principles and more specific
provisions to which future law and government activity more generally must conform. This
function, commonly termed constitutionalism, is vital to the functioning of democracy. Without
a commitment to higher law, the state can operate for the short-term benefit of those in power or
the current majority. Those who find themselves out of power may find that they are virtually
unprotected, which in turn may make them more likely to resort to extra-constitutional means of
securing power. By limiting the scope of government and precommitting politicians to respect
certain limits, constitutions make government possible.
A second function that constitutions serve is the symbolic one of defining the nation and its
goals. In this conception, the constitution functions not so much as a set of rules as an ongoing
set of practices that define the political unit, facilitating, under some circumstances, the
emergence of constitutional identity.
A third and very practical function of constitutions is that they define patterns of authority and
set up government institutions. This function differs from the constitutionalism function of
limiting government. Although the mere process of defining an institution involves some
constraints on its behavior, these organizational maps are conceptually distinct, albeit subtly,
from the substantive and entrenched limits on government action incorporated into the notion of
constitutionalism.
Functional definitions identify the constitution as comprising those rules or understandings that
purport to accomplish the functions described above. The functional constitution includes the
formal, written constitution as well as the collection of legal theories, norms, customs, and
understandings that make up some intersubjective consensus about what constitutes the
fundamental law of the land. The functional constitution is sometimes referred to as the
constitutional order or the small-c constitution.
More formal definitions limit the term to encompassing only the founding charter that is, the
nominal or written constitution regardless of whether it adequately serves the aforementioned
functions. This is sometimes referred to as the large-c Constitution and is more in tune with
what ordinary citizens in most countries think of when they hear the word constitution. A
standard operational definition of written constitutions is the one developed by the principal
investigators of the Comparative Constitutions Project (CCP), which involves a set of three
conditions to assess a laws status as a Constitution:
1. The document is identified explicitly as the Constitution, Fundamental Law, or Basic Law of a
country
2. The document contains explicit provisions that establish it as the highest law, either through
entrenchment or limits on future law
3. The document defines the basic pattern of authority by establishing or suspending an

executive or legislative branch of government.
The first condition is sufficient to qualify a document as a constitution, whereas the others are
applied as supplementary tests if the first is not met. According to this operational definition, the
United Kingdom is the only country in the world without a written constitution.
Functions of constitutions
State and legal structure
Constitutional laws may often be considered second order rulemaking or rules about making
rules to exercise power. It governs the relationships between the judiciary, the legislature and the
executive with the bodies under its authority. One of the key tasks of constitutions within this
context is to indicate hierarchies and relationships of power. For example, in a unitary state, the
constitution will vest ultimate authority in one central administration and legislature, and
judiciary, though there is often a delegation of power or authority to local or municipal
authorities. When a constitution establishes a federal state, it will identify the several levels of
government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application
and enforcement.
Human rights
Human rights or civil liberties form a crucial part of a country's constitution and govern the
rights of the individual against the state. Most jurisdictions, like the United States and France,
have a codified constitution, with a bill of rights. A recent example is the Charter of Fundamental
Rights of the European Union which was intended to be included in the Treaty establishing a
Constitution for Europe, that failed to be ratified. Perhaps the most important example is the
Universal Declaration of Human Rights under the UN Charter. These are intended to ensure
basic political, social and economic standards that a nation state, or intergovernmental body is
obliged to provide to its citizens but many do include its governments.
Some countries like the United Kingdom have no entrenched document setting out fundamental
rights; in those jurisdictions the constitution is composed of statute, case law and convention. A
case named Entick v. Carrington il a constitutional principle deriving from the common law.
John Entick's house was searched and ransacked by Sherriff Carrington. Carrington argued that a
warrant from a Government minister, the Earl of Halifax was valid authority, even though there
was no statutory provision or court order for it. The court, led by Lord Camden stated that,
"The great end, for which men entered into society, was to secure their property. That right is
preserved sacred and incommunicable in all instances, where it has not been taken away or
abridged by some public law for the good of the whole. By the laws of England, every invasion of
private property, be it ever so minute, is a trespass... If no excuse can be found or produced, the
silence of the books is an authority against the defendant, and the plaintiff must have judgment."
Inspired by John Locke, the fundamental constitutional principle is that the individual can do
anything but that which is forbidden by law, while the state may do nothing but that which is
authorised by law.
The commonwealth and the civil law jurisdictions do not share the same constitutional law
underpinnings.
Legislative procedure
Another main function of constitutions may be to describe the procedure by which parliaments
may legislate. For instance, special majorities may be required to alter the constitution. In
bicameral legislatures, there may be a process laid out for second or third readings of bills before
a new law can enter into force. Alternatively, there may further be requirements for maximum
terms that a government can keep power before holding an election.
Study of constitutional law
Constitutional law is a major focus of legal studies and research. For example, most law students
in the United States are required to take a class in Constitutional Law during their first year, and
several law journals are devoted to the discussion of constitutional issues.
The Rule of Law
The doctrine of the rule of law dictates that government must be conducted according to law.
Dicey identified three essential elements of the British Constitution which were indicative of the
rule of law:
1. Absence of arbitrary power;

2. Equality before the law;
3. The constitution is a result of the ordinary law of the land.
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Constitutional Law Assignment Question: Describe Social Contract As Propounded by Thomas Hobbes, John Locke and J.J.Rousseur

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Constitutional Law Assignment Question: Describe Social Contract As Propounded by Thomas Hobbes, John Locke and J.J.Rousseur

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What is the state of nature according to Hobbes?

What is the state of nature according to Hobbes?

How does Locke differ from Hobbes in his conception of the state of nature?

How does Locke differ from Hobbes in his conception of the state of nature?

Constitutional Law Assignment

Question: Describe Social Contract as propounded by Thomas Hobbes,

1.Introduction and the theorists background-Locke,Hobbes,Rouseeeau&

1.Introduction and the theorists background-Locke,Hobbes,Rouseeeau& Humes

2.The Rational behind the theory

It is used as a means of demonstrating the value of government, the

The classic form of social contract theory suggests that there is a

3.The Theory & Meaning

4.Divegent views of the theory

6.The influence of the theory on modern politics, constitutionalism

7. Underpinning philosophies of constitution.

1. The Social Contract is a theory expounded during the Age of Enlightenment in

Hobbes, Locke and others were free to consider the development of

Hobbes created a ruler with absolute authority, who was irrevocably

The purpose of the Leviathan commonwealth is to uphold the natural

Hobbes great accomplishment was to make government a subject for

Lock unlkike Hobbes was a believer in the seperation of powers ( t

Thomas Hobbes concept of the social contract is the enduring

John Locke (1634 1704)

Thomas Hobbes' Leviathan (1651)

John Locke's Second Treatise of Government (1689)

Pierre-Joseph Proudhon's individualist social contract (1851)

John Rawls' Theory of Justice (1971)

David Gauthier's Morals By Agreement (1986)

Philip Pettit's Republicanism (1997)

David Hume, "On Civil Liberty" [II.XII.1][15]

Natural law and constitutionalism

2. Modern Social Contract Theory

3. More Recent Social Contract Theories

4. Contemporary Critiques of Social Contract Theory

i. The Sexual Contract

ii. The Nature of the Liberal Individual

iii. Arguing from Care

2. Modern Social Contract Theory

4. Contemporary Critiques of Social Contract Theory

i. The Sexual Contract

ii. The Nature of the Liberal Individual

iii. Arguing from Care

2. Modern Social Contract Theory

4. Contemporary Critiques of Social Contract Theory

i. The Sexual Contract

ii. The Nature of the Liberal Individual

iii. Arguing from Care

Social Contract Theory:

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