Jonah Patel
Social contract theory, a concept that emerged as the leading doctrine of political legitimacy in the mid-17th to early 19th centuries, holds that individuals consent, either explicitly or tacitly, to surrender some freedoms and submit to an authority in exchange for protection of their remaining rights. The U.S. Constitution is often cited as an explicit example of a social contract, outlining the moral and political obligations to which people agree when choosing to live in America. This raises the question: Is the Constitution an example of social contract theory?
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What You'll Learn
The social contract theory and the legitimacy of the state
Social contract theory is a concept in moral and political philosophy that concerns the legitimacy of the authority of the state over the individual. The theory holds that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler or the decision of the majority. This submission is in exchange for protection of their remaining rights or the maintenance of social order. The social contract theory emerged as the leading doctrine of political legitimacy during the mid-17th to early 19th centuries, with prominent theorists including Hugo de Groot, Thomas Hobbes, Samuel von Pufendorf, John Locke, and Jean-Jacques Rousseau.
The starting point for most social contract theories is an examination of the human condition without any political order, often referred to as the "'state of nature'". In this state, individuals' actions are guided only by their personal power and conscience, assuming that 'nature' prevents mutually beneficial social relationships. Social contract theorists argue that rational individuals would voluntarily consent to give up their natural freedom to gain the benefits of political order. For example, according to Hobbes, individuals in the state of nature must agree to establish society by collectively renouncing their rights against one another and transferring this power to a sovereign, which is created as a result of this act.
The U.S. Constitution is often cited as an explicit example of a social contract, outlining the moral and political obligations by which Americans agree to be governed. The Constitution sets out what the government can and cannot do, providing a framework for harmony in society. Similarly, O. A. Brownson argues that three "constitutions" are involved in the social contract: the constitution of nature, the constitution of society, and the constitution of government. The first two are unwritten and commonly understood rules that precede the formation of a government, which establishes the third.
While the social contract theory provides a framework for understanding the legitimacy of the state, some writers argue that consent to join a society is not the same as consent to its government. Lysander Spooner, for example, a 19th-century lawyer who argued before the United States Supreme Court, supported the right of contract between individuals but disagreed with the idea that consent to join a society implied consent to its government. Instead, he believed that the government must be set up according to a constitution that aligns with the superior unwritten constitutions of nature and society.
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The state of nature and the need for political order
The state of nature is a hypothetical concept in political philosophy, referring to the real or imagined condition of human beings before or without political association. It is a key element of social contract theory, which argues that individuals consent, either explicitly or tacitly, to give up certain freedoms in exchange for protection of their remaining rights and the maintenance of social order.
The idea of the state of nature is often attributed to English philosopher Thomas Hobbes, who characterised it as a "war of every man against every man," a violent and competitive condition in which each individual has a natural right to everything, regardless of the interests of others. Hobbes believed that human nature is needy, vulnerable, and prone to selfishness and impulsive behaviour. In the state of nature, the only laws that exist are based on self-preservation, and there can be no justice, commerce, or culture.
Other philosophers, such as John Locke and Jean-Jacques Rousseau, also contributed to the development of social contract theory and had differing visions of the state of nature. Locke considered the state of nature in his "Second Treatise on Civil Government," written during the Exclusion Crisis in England in the 1680s. For Locke, in the state of nature, all men are free and equal, but this freedom can lead to conflict and instability.
Rousseau, on the other hand, argued that in the state of nature, individuals' actions are bound only by their personal power and conscience, assuming that 'nature' precludes mutually beneficial social relationships. He discussed this concept in his 1762 book "The Social Contract" (French: "Du contrat social ou Principes du droit politique").
The state of nature is seen as a hypothetical construct, as it is believed that humans have always lived in some form of political and social organisation. However, examining this concept allows social contract theorists to demonstrate why rational individuals would voluntarily consent to a social contract and the establishment of political order. This contract involves individuals agreeing to relinquish certain natural rights and submit to the authority of a sovereign or government in exchange for protection and the maintenance of social order.
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Explicit and implicit consent
Social contract theory holds that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the state in exchange for protection of their rights or the maintenance of social order. This theory, which emerged as the leading doctrine of political legitimacy in the mid-17th to early 19th centuries, is concerned with the legitimacy of the state's authority over the individual. The idea of consent, whether explicit or implicit, is central to this theory.
Explicit consent, in the context of social contract theory, refers to a clear and direct agreement to the terms of the contract. It requires individuals to voluntarily and unambiguously state their acceptance of the proposed agreement, leaving no room for misinterpretation. This form of consent is essential in ensuring that all parties fully understand and agree to the terms of the contract without any coercion. For example, when individuals vote in an election, they explicitly consent to be governed by the elected officials and abide by the laws they create.
On the other hand, implicit consent, also known as tacit consent, is inferred from an individual's actions or behaviour rather than a direct statement. In the context of social contract theory, implicit consent suggests that by remaining in a society or a territory controlled by a government, individuals implicitly agree to be bound by the rules and laws of that society. For instance, in Socrates' time, citizens of Athens who chose to stay and benefit from the social order were implicitly consenting to abide by the city's laws and accept the associated punishments.
The distinction between explicit and implicit consent is crucial in understanding the social contract. While explicit consent provides a clear indication of an individual's willingness to be governed by certain rules, implicit consent assumes consent based on an individual's presence or actions within a society. This implicit consent is a fundamental aspect of social contract theory, as it suggests that individuals who benefit from the social order have implicitly agreed to uphold their end of the bargain, even if they have not explicitly stated so.
The U.S. Constitution, with its explicit outline of the government's powers and limitations, is often cited as an example of an explicit social contract. It represents a clear agreement between the government and the governed, setting out the rights and obligations of both parties. However, it is important to note that the concept of consent within the social contract theory is not without its criticisms and complexities, as some scholars argue that the absence of effective rebellion against a contract may be its only legitimacy.
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The role of the social contract in constitutionalism
Social contract theory is a core concept of constitutionalism, although it is not always written down in a formal constitution. The theory holds that individuals consent, either explicitly or tacitly, to give up certain freedoms and submit to the authority of a ruler or majority decision in exchange for protection of their remaining rights and the maintenance of social order. This theory is particularly relevant in the context of constitutionalism, as it provides a framework for understanding the relationship between individuals and the state, as well as the legitimacy of the state's authority.
The idea of a social contract has been explored by many philosophers over the centuries, including Socrates, Hugo de Groot, Thomas Hobbes, Samuel von Pufendorf, John Locke, and Jean-Jacques Rousseau. These thinkers sought to understand how rational individuals would voluntarily consent to give up their natural freedom in order to obtain the benefits of political order. For example, Hobbes argued that a sovereign was necessary to enforce compliance with social contracts, while Gauthier believed that rationality alone was sufficient to convince individuals to cooperate and stick to their agreements.
The United States Constitution is often cited as an explicit example of a social contract, as it outlines the moral and political obligations that govern American society. According to this interpretation, individuals who choose to live in the United States implicitly agree to be bound by the Constitution and the social contract it represents. This includes accepting the authority of the government and the protection of certain natural and social rights, such as the right to private property.
The social contract theory also plays a role in understanding the relationship between different levels of government and the people they govern. For example, in the United States, the federal government is established by the Constitution, which is a social contract between the states and the federal government. Similarly, at the state level, the state constitution represents a social contract between the state government and the people of that state. In both cases, the social contract theory helps to explain the legitimacy of the government's authority and the rights and obligations of the governed.
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Social contract theory and natural rights
The concept of natural rights, discussed since antiquity, was developed into its modern form by Enlightenment philosophers. Natural rights refer to inherent human entitlements that exist independently of societal laws or conventions, such as perfect equality, freedom, and the right to life, liberty, and property. These rights are considered fundamental and inalienable, serving as a basis for understanding legitimate political government. The most famous formulation of natural rights comes from John Locke, who argued that people are naturally free and equal, possessing rights that exist independently of any particular society's laws.
Thomas Hobbes, another prominent social contract theorist, proposed that the essential natural right is "to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life." He distinguished between natural "liberty" and "laws," arguing that rights refer to the absence of obligations. Hobbes further asserted that a sovereign power is necessary to enforce compliance with the social contract, while Locke maintained that governments exist by the consent of the governed and can be resisted or replaced if they fail to protect the rights of the people.
The social contract theory and natural rights are interconnected, with changing conceptions of one influencing the other. The U.S. Constitution, for example, is often cited as an explicit expression of America's social contract, outlining the moral and political obligations that govern American society. The theory of an implicit social contract, or ""tacit consent," suggests that by remaining within a society's territory, individuals implicitly consent to be governed by its rules and authority.
In conclusion, social contract theory and natural rights are fundamental concepts in political philosophy that shape our understanding of the relationship between individuals and the state. They provide a framework for justifying governmental authority, defining individual freedoms, and promoting social harmony. The interplay between these concepts has been a subject of ongoing debate and interpretation by philosophers and legal scholars throughout history.
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Frequently asked questions
Social contract theory says that people live together in society in accordance with an agreement that establishes moral and political rules of behaviour.
The constitution is often cited as an explicit example of a part of a country's social contract. It outlines the moral and political obligations that people in that country agree to be governed by.
The antecedents of social contract theory can be found in Greek and Stoic philosophy and Roman and Canon Law. The heyday of the social contract was the mid-17th to early 19th centuries, with prominent theorists including Hugo de Groot (1625), Thomas Hobbes (1651), Samuel von Pufendorf (1673), and John Locke (1689).
Social contract theory typically holds that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler or the decision of a majority. In exchange, their remaining rights are protected and the social order is maintained.
