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ANALYSIS OF SOCIAL CONTRACT THEORY AND ITS PREVALENCE IN THE PRESENT LEGAL SYSTEM

iNTRODUCTION

Political theorists and philosophers have strived to deliberate the roots of the establishment of the state in innumerable methods. The inception of human settlements goes back to prehistoric times when no written records were found. The Multifaceted historical past provides information about evolutions which is necessary to understand the present. The political conceptualists were compelled to form a pool of hypotheses of the origin of the state, which are now considered a source of formation. Some of the major theories include the Theory of Divine Origin, Force Theory, Idealist Theory, Individualistic, Theory, Organic Theory, and lastly the most prominent ‘Social Contract Theory’. 

The Social Contract Theory is not only the most ancient but also the most eminent of the theories regarding origin of the state. It portrays the liberal perspective of the state and enunciates the relationship between the citizens and the government. The essential element in this theory is the ‘Consent of the People’. This theory describes that there are 3 phases or stages of the state i.e., the State of Nature, the Social Contract, and the Sovereign (State and government).

Richard Hooker was the first scientific writer who gave the logical deliberation of the theory of the Social Contract but the major writers who described their support were Thomas Hobbes, John Locke, and Jean Jacques Rousseau who were called ‘Social Contractualists’. The emergence of social contract theory goes back to the times of the 16th and 17th centuries.

ANALYSIS BY SOCIAL CONTRACTUALISTS:

THOMAS HOBBES

Major thoughts about the social contract were enunciated by Hobbes in his work ‘LEVIATHAN (1651)’.

STATE OF NATURE

The state of nature was pre-social and pre-political. Here pre-social means before the establishment of the society and pre-political means before the establishment of political organization in the society. According to the theory, Man is selfish, egotistic, and wicked. It was also considered a state of war because people had no sense of right and wrong and they fell upon each other with savage ferocity and every man was a rival to the other man. He considered the lives of man as ‘solitary, poor, nasty, Brutish, and short’. People were subject to the Law of Nature which was nothing but a regulation of their common sense.

SOCIAL CONTRACT

As conditions cited above in the state of nature became intolerable, people wanted tranquillity and safety in their life which led them to covenant among themselves to form a civil society known as the ‘Commonwealth’ which would secure and ensure each individual their right to life and liberty. Here the people surrendered their rights to the elected common superior or hand of the society. Covenanted Individuals were made the subjects and they had to obey the common superior who became the sovereign but as the contract was between the individuals, they were forced to obey the superior but the sovereign had no obligation to obey the people as it was not a party to the contract and the contract was unilateral or one-sided.

SOVEREIGN 

As the sovereign was unquestionable, its authority became absolute, unlimited, and indivisible. All powers were vested with the sovereign as it was supreme, all-powerful, and above the law. From the analysis, it is clear that Law was the command of the sovereign and liberty was the gift by the sovereign.

EVALUATION

Firstly, Hobbes’s description of human nature was very negative in nature as people are not inherently so selfish and aggressive. Secondly, normally man moves from state to formation of a contract but Hobbes said that man moves from formation of a contract to state. Thirdly, the nature of the contract is unilateral is nature which makes the sovereign the beneficiary of the contract not a party to it. This makes the sovereign very powerful. Lastly, he completely obliterated the distinction between the state and the government.

JOHN LOCKE

Major political thoughts of John Locke are described in his writing ‘Second Treatise of Government (1690)’.

STATE OF NATURE

The State of nature according to Locke was pre-political, social, and amicable in nature. According to the theory, it was a state of goodwill, mutual existence, and preservation. It is a state of tranquillity or peace and no war-like situation. Here the law of nature was the law of reason which means there existed a phase of rationality. Law of nature provided individuals with three quintessential ascribed rights that include the Right to Life, Liberty, and Property which were on shaky ground as there was no mechanism to give effective protection. This developed a need for civil society as peace was not secure and upset by the corruption and viciousness of degenerated men.

SOCIAL CONTRACT

There are two types of contracts: Social contract and government contract. The first was the social contract which brought into being the civil society and state. The second was the governmental contract where society in its capacity establishes sovereignty to make a government. Here government contract is subordinate or inferior to the civil or social contract.

SOVEREIGN 

Here the government has only fiduciary powers to regulate and is limited to the performance of its duties i.e. the three natural rights. As the community makes the state, it has absolute authority. The sovereign is permanent here but the government may be temporary.  Here society, state, and government are distinguishable. Locke said that law should be the expression of the people and the sovereign should not take the natural rights.

EVALUATION

Firstly, he did not focus on legal sovereignty rather he focuses on political sovereignty. Here legal sovereignty means the body which enjoys the supreme law-making powers in the state and political sovereignty means the ultimate powers reside in the hands of the people who elect their representatives. Secondly, he didn’t describe where the sovereign resides whether it resides in the legislature or the people.

JEAN JACQUES ROUSSEAU

Jean Jacques Rousseau described various dimensions of the social contract in his book ‘Social Contract or Principles of political right (1762)’.

STATE OF NATURE

In the natural state of nature, Man is a Noble Savage which means that they are free and believed in primitive simplicity and idyllic contentment. There is no state of reason in this phase. There is no conflict between ‘haves’ and ‘have-nots’. In this stage, development happens gradually which leads to civilization where man becomes immoral and degraded. The three main elements that disrupt the natural state are the growth of people, the dawn of reason, and private property.

SOCIAL CONTRACT

As the disruption alleviates in society, individuals become degenerated and are compelled to form a social contract where they surrender all their rights in favor of all. One contract is made and established for the community. It includes the people’s general will, which includes the public’s collective good and interests. It recognizes the voice of all for the good of all. This creates a corporate whole with a will of its desiring the good of all. Rousseau made a clear distinction between sovereign people and government. 

SOVEREIGN

The sovereign resides in people which means that the general will is of utmost importance. General Will must also be ‘inalienable and indivisible’ which means it is absolute and inseparable in nature. It should be obeyed by all. The people are responsible for making laws, and the government can only implement them. The main characteristics of the corporate will be unity, permanence, and inalienability. The government is limited in nature and is the agent of the state which is made of the general will.

EVALUATION

Firstly, as the government was limited, it could be modified or taken away by the people which meant that the government was subordinate to the sovereign. Secondly, the ambit of the general will was ambiguous in nature and there was no limitation on the power of the general will, at the same time no individual can disobey the general will which established a system of majoritarianism.

CONCLUSION

Realistically, social contract theory is a mere fabrication. There are no records in the whole ocean of history to show that a state is deliberately created as a product of a voluntary agreement. In primitive society, birth determined the position of every man and it was not a matter of choice so the assumption by contractualists that men are equal in the state of nature is fallacious. The fact of subject is that humans have its place in society from time immemorial and they have to accept certain reasonable restrictions to survive and have their freedom. These restraints are government in the present legal system which demonstrates a functional organization, the social contract theory is superficial in nature and far from actualities. Even on a rational analysis, the principle of social contract can no longer be upheld. The connection between an individual and the country isn’t voluntary. Every one of us is born into a state where we are a part of the state and the state is a part of us. Nevertheless, Social contract theory holds a special place in the study of the political structure of the world because it interprets and describes various dimensions and possibilities in the structure of the political system.

Author(s) Name: Anshita Arora (VSLLS, VIPS-TC, Delhi)