ENLIGHTENMENT POLITICAL PHILOSOPHY:
LAWS, NATURAL RIGHTS, AND SOCIAL CONTRACTS:
Two Universes, Two Natures, Two World Orders
Two kinds of "laws of nature." The phrase natural law or law of nature is ambiguous between basic moral principles that we shall discuss below (e.g., "It is wrong to torture children." "It is wrong to kill innocent people.") and laws of nature of a sort that scientists disclose (e.g., Galileo's law of the pendulum, Newton's universal gravitation, Lavoisier's formula for making oxygen, the laws of genetics), which don't seem to have anything at all to do with morality or legal systems. This was not seen as an ambiguity by early writers, who regarded both kinds of laws as God's basic rules for running the world. Some later writers, who did distinguish the two kinds of natural law, were happy to retain the same term, again to signify their conviction that just as God had laid down the laws of motion, etc. for the material universe, He had laid down the laws of action for human beings.
Our double nature. Human beings would also seem to have a double nature, at least according to one main strand of the Western tradition (and no doubt other civilizations as well). On the one hand we are just physical bodies and therefore part of the actual world and subject to natural laws studied by scientists. If we fall off a cliff, we fall in much the same way as a stone or a sack of flour falls. If we spill acid on our skin, . . . and so on. Scientific laws such as those mentioned above would seem to have nothing to do with morality, nor any dependence on human affairs.
On the other hand, we human beings have the power to think of possible worlds, ideal worlds that are not now actual. To some extent, we entertain such worlds when making plans. Some examples: "Today I need to achieve that world in which there is a new bottle of milk in the refrigerator." "Over the next three years I need to make good enough grades to graduate and get a good job so that I can begin building my career." "Robby just kicked Michelle, and I need to straighten this thing out -- to make the world right again -- by scolding Robby -- or at least by finding out what made him do it."
At a more pretentious level, it is this ability to think about other worlds than the actual one that has made possible the emergence of ethics, politics, and law. In the first book of Plato's Republic, for instance, Socrates rejects Thrasymachus's claim that "might makes right," that "justice is what is in the interest of the stronger party" by, in effect, introducing a distinction between the dimensions of description of the real world, or what is the case, and an ideal dimension, an ought dimension orthogonal to the dimensions of our description of actual reality. It is roughly the difference between facts and values (or virtues and vices). Thrasymachus is correct in his descriptive account: what people commonly take to be law and justice is just what benefits those in power. But, says Socrates, we are interested not only in how things are but how they could be (in the case of planning), and of how they ought to be. It is the difference between 'is' and 'ought' (or, to include all three, between what is actual, what is possible but not now actual, and what is possible and should be the case). Indeed, from this expanded point of view, we can criticize some of the laws now on the books as unjust. Laws are not automatically self-justifying. Otherwise, 'unjust law' would be an oxymoron.
The ambiguity of 'natural law' or 'law of nature'. The Greek Stoics said that we should "live according to nature." To have a peaceful, tranquil life, to avoid anxiety, we should live in harmony with nature. This is a universal maxim, since nature is universal and thus the same for everyone. The influential Roman statesman Cicero developed Stoic teachings about the law of nature in more detail, and the natural law doctrine was incorporated into Roman law, which has had a tremendous impact on Western legal and political thinking ever since.
The idea behind natural law is that in addition to the natural world of physical and organic process and their laws, there is a moral universe, a moral nature with its laws. Since human beings belong to both universes, both natures, we are subject to natural laws of both kinds. On the one hand are the laws of nature, mentioned above, that are disclosed by scientific study. These laws cannot be violated (except, possibly, by divine miracle), since if we find a a violation to a scientific law claim, we simply reject that claim as false and seek a deeper law that is true.
But the moral universe also has its "law of nature" and this is also commonly referred to as 'natural law'. The dictates of natural law in this sense are supposed to be the deepest moral principles governing human behavior and also the legal and political systems that we establish. We appeal to natural law in this moral sense in order to criticize as unjust some laws and constitutional principles already on the books. So clearly natural law in this moral sense can be violated. We cannot violate the law of gravity, no matter how hard we try; but we can murder, torture, and rape. Indeed, it might be said, it is only because human beings do violate the basic moral principles that we need to appeal to them! If no one ever did anything wrong, we should not need laws and moral codes.
On this traditional view, then, our double nature means that we are subject to two sets of natural laws, one kind of which we can never violate and the other kind of which we can and do violate. (You may wish to pause to think about this and other differences between laws of science and laws of morality as well as laws in the legal sense. How does the law of the pendulum or law of falling bodies differ from "Do not kill," "The speed limit is 55 mph," or even "Keep off the grass"?)
Well, how do we find out what these basic moral principles are? Not in the way we discover scientific laws, not by positivistically describing and explaining the phenomena of the actual world. According to tradition, the most basic moral principles are self-evident to reason (alternatively, to conscience, to hearts instead of, or together with, heads). Indeed, we find that idea still expressed in the U.S. Declaration of Independence: "We hold these truths to be self-evident. . . ," to be quoted more fully below. Supposedly, every sincere person can see the rational self-evidence of basic moral principles. Hence, they apply universally to everyone in the world and provide a universal, absolute basis (or test) for the morality and justice of constitutions and legal systems in all societies. Appeal to natural law also solves the problem of international law: How do we adjudicate legal and moral disputes between nations with quite different legal and social systems? In short, appeal to natural law in this moral sense is a way to avoid cultural relativism in the legal and political spheres.
The doctrine of natural law is quite controversial today, as we shall see below. It is still today associated with the rather conservative ethics of the Catholic Church, so it is not surprising to hear that the natural law doctrine was sharply attacked by many Enlightenment thinkers and, indeed, pre-Enlightenment skeptics such as Montaigne, who ended up defending a sort of relativism (see our Montaigne section). You may recall that his commitment to natural law was a hot topic in the confirmation hearings of Supreme Court Justice Clarence Thomas, whom critics thought too conservative to champion equality and justice for all. Nevertheless, international tribunals such as the Nuremberg Trials (which prosecuted German war crimes after World War II) are hard-pressed to avoid appeal to something like natural law.
A final thought.
Many analysts have seen in the Western tradition a craving for order, especially
rational order. There must be a rational "center" or "goal" to the
universe, else there is no meaning and nothing makes sense. In the
double-nature, double-law idea described above, we find a double expression
of this craving for rational order. The physical-organic universe
is governed by principles of natural order that are rationally intelligible
to us and hence discoverable by means of scientific investigation, and
the ethical universe is likewise governed by its own principles of rational
order. (See Bredvold for more on the above.)
The Traditional Hierarchy of Laws and its Problems
Medieval and Renaissance thinking about law, society, and the state derived from three primary, ancient sources: The Bible, Aristotle's Politics, and Roman law, the most impressive system of law and its administration that any people had yet developed. From the Middle Ages through at least the time of the Reformation, European peoples lived under a hierarchical system of several distinct types of law, as articulated by Thomas Aquinas in the 13th century.
Highest was the eternal law, the law by which God himself abided. Next was the divine law, as disclosed to us by God in the scriptures and in direct revelation, and passed down by Church tradition. Divine law provided the basis for the Church, and the Church was, of course, its earthly administrator. Through the Renaissance and beyond, the system of ecclesiastical (=church) courts could be as important as the secular courts. Third came the natural law, basic principles innately implanted in the minds or hearts or conscience of all people by God. Human reason was supposed to be sufficient to discover these principles and to recognize their wisdom and validity. In fact, they were supposed to be self-evident to reason. Natural law had apparently originated in the Greek Stoic doctrine that we should "live according to nature," then had been articulated by the Roman statesman Cicero and incorporated into Roman law. Finally came something called human law, civil law, or positive law. These were the humanly made laws that could differ from place to place on earth, and from period to period. Civil law was created and administered by the reigning monarch or parliament. Positive law or the positivist conception of law is a descriptive rather than simply a prescriptive conception: we describe those laws that are actually adopted and enforced by the society in question, rather as a scientist describes the flora and fauna in that part of the world.
Legitimate laws at each level in the hierarchy had to be consistent with, informed by, or even derivable from higher-level principles. Thus, no civil law could stand in violation of natural law or church law. And natural law itself must square with divine law. Like natural law, divine law was supposed to apply to all people, of course, but in practice it applied only to Christendom. (What to do about Jews and Moslems in the West was therefore problematic for these people.) Thus a typical peasant, lord, or guild-worker lived under two distinct systems of law. S/he had to abide by civil laws and customs, the rulings of the temporal authorities, but also by the church law, as administered by the religious authorities. Although these were perfectly compatible with one another, in theory, one's loyalty was somewhat divided.
Already we can see sources of trouble here. Think of it this way. The Church was in charge of interpreting and administering divine law, so for all practical purposes, it was church law. Moral philosophers and natural philosophers (students of nature) took most responsibility for articulating the natural law, since that was the domain of reason. Meanwhile, the crown and/or the state controlled civil law. Each of these entities or groups wished to increase its own power and authority at the expense of the others. Thus we should expect conflict between each of them.
Church and state. The question here is whether the Church exercises ultimate power over the state, or vice versa. The old hierarchy gave the advantage to the church, but by 1600, say, the balance was shifting to the states. It is not surprising to find princes and parliaments defending their authority against the Church (or the Church exacting taxes and threatening excommunication of princes who got out of line). The princes naturally resented interference in their affairs and the siphoning off of some of their wealth by the Pope, far away in Rome. This power-striving and desire for complete self-determination was one reason for the rapid spread of Luther's revolt against the Church. The new nationalism undermined allegiance to Rome.
Natural law and state. The 16th and 17th centuries saw not only the emergence of nations, in the modern sense, but also the rise of the middle class, the bourgeoisie. And this newly wealthy and powerful group naturally wanted to curb the authority of the king over them. The usual locus of such disputes was some sort of parliament (reflecting the views and aspirations of the middle class) against the arbitrary authority of the monarch. The question was: who had a right to do what, and what were the mutual duties and obligations of the king and the citizenry? Investigation of these questions gave birth to modern political theory in Hobbes, Locke, and other writers. Political theorists on the side of the middle class (as Locke was), tended to cite natural law as higher than civil law, and the natural laws as constituting the framework within which civil law must fit. Thus, even the monarch was limited by the bounds of natural law. Kings and queens could not act in an arbitrary, unjust manner, could not legitimately use murder and deceit and all those other Machiavellian tricks to get their way.
Natural law and church. Many church intellectuals from Aquinas to Galileo's nemesis, Cardinal Bellarmine, defended both natural law and divine law. This was natural, since the Church had the great monopoly on intellectuals until the Renaissance-Reformation period. But since the principles of natural law were supposed to be rationally self-evident as well as evident in nature -- in the natural habits of people everywhere -- we should expect the emergence of conflict between faith and reason, between the defenders of the official faith, on the one side, and the secular philosophers who claimed authority over the domain of reason, on the other. Here one question was: Which is primary, faith or reason? Again, the Church held the upper hand in the early years of our period but gradually lost out to the secular philosophers of reason as the debate wore on. The secular philosophers increasingly divorced questions of moral, political, and natural scientific justification from theology. Hobbes, for example, made a big point of separating political philosophy from theology, which move partly led to his condemnation as an atheist.
Even within the sphere of church law, there was some debate. The question was whether Christ's teaching and the new covenant of The New Testament made the divine laws articulated in The Old Testament obsolete. One view was that they could not be completely rejected, else God would be inconsistent; so it was better to keep the Ten Commandments and other Old Testament injunctions but to interpret in Jesus's way in line with his new principles of faith, hope, charity, and meekness.
Another important legal distinction is that between common law and statute law. This distinction reflects two different sources for positive law, that is, human, civil law. One source was obvious. Laws could be commanded by the king, or perhaps passed by parliament. These were clearly stated rules and regulations, that is, explicit statutes "on the books." This is statute law. The other source was more difficult to get a handle on -- custom. Here judges interpreted the law, on a case by case basis, by reference to legal precedents (other cases that could be interpreted as being sufficiently similar to this one) and, ultimately, by appeal to social custom, to traditional practice. This was common law. For example, if it was customary, when a man was injured (to such-and-such a degree) in an unjustified attack by another, that he should get to take the best cow of his attacker, then the judge should rule accordingly. In being implicit rather than explicit, and in relying so heavily on interpretation of local practice, common law is very messy. It is rather like the current criteria for obscenity in our country, which are relative to local standards. Naturally, it is not surprising that there was conflict between defenders of common law and advocates of statute law. In cases of conflict, which should take precedence? Hobbes, for example, wanted to get rid of common law entirely in favor of statute law clearly stated by the sovereign of his commonwealth. Since the latter, positive law should practically exhaust the law in his judgment, Hobbes also minimized natural law.
The problem facing political theorists, as the old law-hierarchy began to weaken and positive, civil law became increasingly important in the modern state, was: What is the moral justification of civil law? What right does the government have to force you to serve in the army, or to pay taxes, to tell you where you can and cannot smoke and drink, and otherwise limit your rights? Or do you really have natural rights at all? Where do rights come from? Doesn't it really boil down to "might makes right" -- that justice is whatever someone can force you to do? An urgent problem in 17th-century England is what could possibly justify Parliament, in the name of the people, to execute a king, someone who governed by divine right. (Recall that Charles I was beheaded in 1649.)
Most political thinkers rejected the view that might makes right. They searched for a moral or at least rational legitimization of society and the state. Just because the king is strong enough to confiscate your property does not make it fair, just, or right. In fact, it even makes sense to ask whether a statute law, passed by Parliament, is just? The idea of an immoral or unfair law does not seem to be a contradiction in terms. But what could possibly justify the claim that a duly passed law is unjust?
There are several different answers to these question, corresponding to the different approaches to political philosophy. But two moves are of greatest importance to understanding that period and also our own. (1) Although appeal to divine (church) law was weakening, one could still appeal to natural law, on the basis of reason rather than faith. Even Hobbes did this to a small extent. Locke did it to a very large extent. It is its consonance with natural law that (in part) makes a society and its laws legitimate. Or at least, violation of natural rights is the best way in which to attack a statute as unjust. (2) The move to a social contract theory of society or the state attempts to legitimate the authority of the state over individuals on the grounds that the state has its citizens' consent to be governed in that way. In exchange for security and other benefits from the state, individuals voluntarily give up some of the rights they hold in a "state of nature."
Since they are so
important, let us take a closer look at both natural law and the social
Natural Law and Natural Right
As noted above, the natural law tradition is very old, going back to the ancient Stoic philosophers. It is a broad tradition that contains several rather diverse viewpoints. So, as with other major doctrines and movements, do not suppose that the natural law idea can be reduced to a simple formula. The discussions can quickly get very technical, but we shall stick to the basics.
Actually, the idea of natural law and natural rights is already quite familiar to all of us, from Mr. Jefferson's Declaration of Independence (1776):
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it.Here we have the appeal to natural rights followed by an appeal to a contract theory -- consent of the governed plus the idea that civil governments are supposed to protect and enhance the natural rights of the citizens. Jefferson took these views almost directly from Locke, the leading Enlightenment theorist of both natural law and social contract -- although Locke had insisted that private property was one of the natural rights. His ground was that we possess our own bodies as our properties and, by extension, we possess whatever we "mix our labor" with, provided that we do not thereby prevent others from doing the same. If we go to the work of picking wild strawberries in the woods, they belong to us. Also, as a likely personal motive, Locke wanted to remain in favor with the wealthy middle class as well as noble patrons. You might think that property was taken for granted and not really an issue in that day, but not so: the English Revolution had produced radical sects who sounded in some ways like modern socialists or communists in regard to private property.
All the key ideas of the natural law doctrine are distilled in Jefferson's elegant lines: God has granted us these rights as individuals, regardless of our membership in any society; everyone has these rights in equal share; and they are self-evident to reason. Moreover, Jefferson clearly distinguished the natural rights of the law of nature from divine law. Contrary to popular opinion, this country was not founded upon Christian principles. Jefferson, in the meetings in Philadelphia and elsewhere, was adamant that the political foundations of this country be independent of Christianity or any other particular religion.
The reference to "the Creator" is quite general, but cannot be completely religiously neutral, of course. Jefferson himself put more stock in reason than in God, but the troubling question for later later writers would be: if God is dead, then is there any basis at all for natural law and for assertions of natural rights?
As already noted, Montaigne and later Enlightenment figures such as Locke could be quite critical of the doctrine of natural law. Despite its appeal to universal reason, which appeal Enlightenment thinkers usually liked, natural law was associated with the conservative teachings of the Catholic Church and was widely seen as part of the "dead hand of tradition" that must be overthrown in order to fashion a more enlightened and progressive society.
Basically, Locke and others transformed the old natural law doctrine into a doctrine of natural, inalienable individual rights. The old natural law teaching had not been individualistic at all; on the contrary. But the doctrine of natural, individual rights would become a powerful, even dangerous doctrine that could and did bring revolution -- including the American Revolution of Mr. Jefferson and the far more convulsive French Revolution. Below we shall note the absurdities to which the notion of individual rights has recently been carried. For now, note that here we have an instance in which an older doctrine, an old, traditional, cultural resource, was pressed into the service of new problems, new movements, new tendencies of thought and action. A doctrine that was originally considered highly social and communal was transformed or transmuted into a strong expression of bourgeois individualism, in the literal sense a more "self-ish" philosophy of law, politics, and life.
Perhaps the most plausible component of the natural law doctrine is the thesis that no legitimate law can require people to do what is physically or psychologically impossible. Another component that even Hobbes could accept was that self-preservation is a natural right. As we look over nature, we find creatures of all kinds struggling to survive, so a survival instinct does seem to be ingrained in nature. On Hobbes's minimal commitment to natural rights, a sovereign could not legitimately command a person to kill himself, and a person could rightfully resist his own execution as ordered by a sovereign. Nor could a sovereign legitimately require anyone to testify against himself.
Without too much stretching, we can see how these kinds of considerations could lead other writers to condemn murder as immoral, and even suicide, indeed even severe, permanent injury. Given that the dignity and integrity of the human body is a natural right, only a little more stretching is required to extend this to one's personal property -- that is, those things that one has produced by "mixing one's labor" with nature. As noted above, that is basically how Locke justified the protection of private property as a natural right. That one should keep one's promises, and that one should not lie and deceive others are considered laws of nature by many writers. (On a Marxist view, private property is theft, but for political conservatives it is private property that distinguishes us from the animals and enables cultured human life to flourish. See Robert Nisbet, Conservatism, pp. 55ff.)
Writing shortly before 1800, the famous German philosopher, Immanuel Kant, tried to show that these principles are self-evident to reason. For breaking promises, lying, and other forms of deceit are logically inconsistent practices in that they undermine the very social institutions on which their success depends. If people regularly broke their promises, for example, then mutual trust would disappear, and the social institution of making and keeping promises would disappear.
Today in the United States, people assert their natural rights to ridiculous lengths, even people who have no religious beliefs whatever. (Usually, these people make no clear distinction between constitutional rights and natural rights, which precede any constitution.) Some people seem to think that they have a right to smoke anywhere they wish, to park anywhere they wish, a right to cheap gasoline prices, to a shiny new car, to a comfortable retirement whether they have worked hard or not; and so on. But what could be the basis of their claims? Where do rights come from? Do we even have a natural right to trial by jury?
But now consider the position that denies the existence of natural rights. Many people (probably including most scientists and scholars today) think of the physical and biological universe as morally neutral. The universe contains no built-in purposes, no moral values, no legal precepts. There are no human rights ingrained in nature. These people believe that all moral and legal principles and precepts are human constructions -- historical products of human civilization. These first developed implicitly in the evolution of human cultures, but, increasingly, they are explicitly formulated in the form of constitutions and civil statutes.
Now the question is: What makes a principle moral or immoral, fair or unfair, on this anti-natural-law position? On what basis can one of these people criticize a law as immoral (assuming that it is consistent with other laws on the books)? What makes a good law good and a bad law bad? For that matter, what makes good good and bad bad? Once we get rid of an objective basis of morality, law, and the legitimization of the state, are we not forced into historical relativism -- the view that all historical societies are equally just, equally fair? How can we criticize a society that sacrifices young women to the gods, for example? How can we even criticize our own, which is unfair to women and various minority groups? Are these the only two positions available -- an absolute morality rooted in objective nature versus historical relativism? (For further discussion of this question and a contemporary defense of natural law against historical relativism, see Leo Strauss.)
A final comment. In the notion of balance of power between states and even more obviously in the notion of balance of powers within the state (already proposed by Machiavelli, developed by Locke, and explicit in the U.S. Constitution) between king and parliament but especially between legislative, executive, and judicial branches of government, we have the germ of the idea of a self-regulating, self-correcting system. In the first case, the self-controlling political system would be the system of European states, perhaps together with the infidel in what is now Turkey. In the second case, an individual state would itself be a self-regulating political system. In either case stability or dynamic equilibrium is the key idea: an excess in one direction tends to be corrected by forces internal to the system and the normal balance is restored. (A physical object is said to be in dynamic equilibrium if, when you tip it a bit, it rocks back to its original position -- like a marble in a bowl or a slightly tipped tripod.)
We see here a hint of the later idea of a servo-mechanism or cybernetic system, as found in the automatic governor of the steam engine around 1800, during the industrial revolution, the theory of which was developed by electronics and artificial intelligence engineers in the mid-20th century. It is interesting that the idea emerges in the sphere of social and political theory and then in the economic sciences before appearing in the physical sciences and engineering (Funkenstein, 344). Clockwork and the clockwork model of the universe might appear to be an exception, but these were mere machines. Escapement mechanisms kept a steady time as the spring wound down, but that sort of stability still seemed thoroughly mechanical and undynamic compared to the vagaries and vicissitudes of the history of a political system.
The importance of
the idea of an automatic, self-managing, self-controlling system is that
it appears to be purposive, yet it is a mere mechanism. Such a system
somehow seems to bridge the gap between a purposive, teleological universe
and a blind, dumb, purposeless, mechanistic universe. To some, it
would suggest a way to reduce apparent purpose to mere mechanism.
Eventually, Adam Smith and others will see the capitalistic economic system
as a self-regulating system operating as if designed or governed by a "hidden
hand" or "invisible hand." The laws of supply and demand automatically
adjust prices to a "correct" level, for example. The idea will later
be extended to biological evolution by Darwin.
Social Contract Theories of Society and the State
Although contract theories, in some form or other, had been discussed by the ancient Greeks and Romans (recall the trial and death of Socrates), the period from Hobbes to Rousseau (roughly, 1600-1800) was the heyday of contract theories (though a well-known Harvard political philosopher, John Rawls, continues in that tradition still today). This was no accident, as it was during this period that "the people" were on the rise against the absolute, arbitrary authority of monarchs and tyrants. Contract theory coincides with the assertion of power by the rising middle class. (Remember, class is not defined here by wealth, or certainly not by wealth alone. A nouveau-riche, middle-class businessman could be wealthier than many aristocrats, who tended to live off landed estates.)
The basic political purposes of social contract theories were to (1) politically legitimize the claims for liberty, human freedom, the freedom and rights of human individuals; (2) to oppose absolutistic rulers and governments by limiting the powers of the state and its leaders (e.g., by rejecting the doctrine of divine right of sovereigns); (3) to assert the value of justice and fairness and to reject the view that might makes right; (4) to uphold the related view that society and/or government is based on mutual agreement rather than force; (5) to affirm that societies and/or governments are not natural, not the products of blind, natural forces, but are artificial arrangements designed and agreed-to by human beings acting freely and rationally (possibly inspired by God).
There are two different kinds, or levels, of contract theories. The most basic type is the contract that brings society itself into existence. Without the contract, people would live outside civil society. The second type supposes that society already exists and proceeds to constitute a particular government or state. That is what a constitution is supposed to do -- to "constitute" a new state. The American colonists were already a society in the 1770s, when, in 1789 they adopted a new constitution that supposedly amounts to a social contract among all the past and present citizens of the country to have a government of a the sort described therein.
The three most important social contract theorists in modern times are Hobbes, Locke, and Rousseau.
Thomas Hobbes. Basically, for Hobbes (in Leviathan, 1651) the contract holds among the citizens, who agree to give up their previously unrestricted rights of the brutish state of nature and to abide by the rule of an absolute sovereign and his/her government -- the Leviathan. The people agree to hand their sovereignty (their right to self-rule) over to a monarch. They give up their rights and their sovereignty and become subjects. The monarch is not party to the contract, Hobbes says, yet there turns out to be something of a contractual understanding. For Hobbes allows that if the monarch fails to keep social order and security, the people may legitimately dispense with the monarch's services.
John Locke. For Locke (Two Treatises on Government, 1690), the state of nature is not brutish and already operates under a robust range of natural law principles that limit people's rights. The state of nature could also include a market economy, wage labor, the use of money, and large estates -- much like the American colonies if British rule were removed. The contract again holds among the citizens, but Locke's government is not so absolutist as Hobbes's. For Locke the government acts as a kind of trustee, guarding the interests of the people. He is quite clear that the people retain the sovereignty, not the governing entities. The people are not subjects of any ruler, as for Hobbes; on the contrary, the government is the servant of the people. Moreover, if the governing powers behave badly enough, the people may affirm their sovereignty by changing the government (e.g., deposing a king, as Charles II was sent into exile and William and Mary were brought in as joint rulers in the Glorious Revolution of 1688-89).
Jean Jacques Rousseau (French-Swiss). Rousseau's On the Social Contract (1762) also makes the government the servant of the people, who retain sovereignty and individual rights. In Rousseau's state of nature we find "the noble savage," simple, sincere, unaffected by the evils of civilization. Rousseau's contract, even more than Locke's, is a social contract rather than a government contract. But Rousseau forged so tight a link between the individual citizens and their society that to critics it looked like he removed with his one hand the individual rights that he had preserved with the other. The notion of general will is the new idea in Rousseau. His ideal society is marked by extreme social cohesion, achieved by a unanimous consent to the social contract.
The general will is the common interest of all the citizens. The trouble is, a community of individuals will almost never actually agree unanimously on anything. (Besides, for Rousseau even unanimous agreement is not the same as the general will.) So Rousseau said that the general will was what each individual would do if they were truly aware of their real interests. Indeed, sometimes they might even have to be forced to act in their own true interests! The idea of liberal democracy begins to slip away at this point, and the state begins to look rather paternalistic -- telling the citizens what is really good for them. Indeed, the state begins to look rather totalitarian. The idea of collectivism enters Western political discussion for the first time. This was a theme that German theorists would later develop.
Rousseau recognized that for such a state to work, people would have to put aside their selfish rivalries and submerge their individual interests in those of the state. He thought this would easiest for a simple, unaffected people such as the Swiss peasants to do. Naturally, it would take more forcing for urbanized people who already had been corrupted by too much culture. But Rousseau did not think that his society would even be realized; it would always remain an ideal.
Rousseau's idea of an organic state in which individuals lose themselves in the society would powerfully influence some French revolutionaries and numerous political thinkers and activists to this day -- particularly people of a fascist tendency. (For fascism as opposed to democracy and communism, see "Four Political Systems.")
To sum up: For Hobbes, in a sense, the will or sovereign rule was actual but not general, since it was localized in the person of the absolute sovereign, not in the citizens. Meanwhile, for Locke the will was general, across the whole population of sovereign citizens, but was not actual, since the citizens exercized their sovereign power only in those very rare instances in which the government-cum-trustee makes a complete mess of things. Rousseau wanted the citizens to be not only sovereign but actively engaged in political rule (Barker, xxvii).
When contract theorists of this period refer to "the people" and require
"the voluntary consent of the governed," and such, do not automatically
suppose that they are asserting universal equality, universal suffrage,
and those other good things, as would a liberal democrat of today.
Often, for example, "the people" meant only the franchised people, the
white, male, Christian property owners. And when groups such as the
Puritans called for religious freedom, they did not mean the freedom of
any individual to worship as s/he pleased, but rather freedom for them,
the Puritans, to worship as their sect required. Incidentally, this
is also true of the Puritans who came to America. Contrary to what
you may have read in elementary school texts, they did not allow anyone
to worship, or not worship, as s/he pleased! They were extremely
intolerant by today's standards. This is yet another lesson in reading:
you cannot assume that words from another time and place mean exactly the
same thing that they mean to us today.
Some Standard Criticisms of Social Contract Theories
Here are some standard criticisms of social contract theories in general. Naturally, contract theorists believe that they can answer these objections. Since there are many different kinds of contract theories, it is not surprising that the objections weigh more heavily against some than others. Historically, Rousseau was the last great contract theorist of the classical period, and contract theories soon lost their attraction, except in America and France, during their revolutionary periods. The contract idea was too neat and logical to thrive at a time when people were coming to an increasingly historical conception of the origin of societies.
Note that a contract is an agreement between two parties (or among more than two parties) of differing, even diametrically opposed interests. A contract creates a new, "local" morality -- the morality of the contract Think of it as a legal promise, a mutual promise among the parties.
Several of the objections below lose some of their bite once we appreciate that most contract theorists took for granted the existence of natural law as a background and basis for the contract. Many also presupposed the law of God even behind that. Thus the people entering into the contract were not total savages who knew nothing at all of rights and obligations. Despite the thrust of the first few objections below, then, we should not suppose that the social contract was itself an attempt to totally replace natural law by something positive and artificial.
1. Contract theories of the origin of society or the state are mechanical and artificial rather than organic. They treat social relations in purely external way rather than as a natural, historical process of internal development. Rousseau is the main exception.
2. Contact theories are legalistic in a positive manner. They try to replace normal, natural, customary relations among people by explicit contracts. They reduce human relations to a matter of legal contract. (Consider the increasing use of prenuptial agreements and marriage contracts today -- although marriage contracts were probably more frequent back in the days when marriages were alliances between families, to consolidate power or wealth. Consider personal service contracts today: you can hire someone to talk to you, to be your paid "friend," for instance.)
3. In their legalism, contracts lack moral force. They fail to establish a moral basis for law, a moral justification for legally prescribed duties and obligations. They fail to explain why it is a legitimate law rather than the arbitrary dictate of a king or of a group of people. Since when can people just "take the law into their own hands"?
4. Contracts are too rationally calculative. The parties to the contract supposedly calculate their interests, with and without various possible contracts, then negotiate the kind of relationship acceptable to both. But human reason and human knowledge are too limited to achieve a workable result, let alone one superior to the naturally evolved society and state (see 6 below). Besides, custom and habit and the wealth of intricate and subtle relations that result from enculturation into a community cannot be reduced to a set of explicit rules and regulations. How can trust be replaced by a set of legal requirements? The whole system presupposes a certain degree of trust.
5. They are unhistorical and a priori. No state actually originated in this way. Social contracts are fictions, the a priori dreams of theorists. (E.g., if The Magna Carta of English history amounts to a contract, why did the document fail to mention any contract?) They are therefore also historically naive in being universal, too purely rational. They abstract away from all societies, all cultures, from all of history, and suppose that people in all times and all places have the same needs and interests. Worse, such theories typically fail to abstract completely from the assumptions about human nature, morality, polities of the social contract theories (and their societies) themselves. Hence, rather than being historically neutral, social contract theories always reflect the presuppositions and the historical conditions of their authors -- typically, bourgeois conceptions of human nature and human values.
6. Societies and governments come into existence over long periods of time, often involving force at some point, with the evolving arrangement gradually becoming accepted on the basis of custom and tradition, nothing so logical and legalistic as a contract. Attempts to institute or reorganize a society simply by making a new constitution and implementing a new form of government always fail, since the people are not accustomed to behave in these manners. Success would require appropriate social practices already to exist.
7. Social contracts are too static and logical to be compatible with historical development. If present citizens were bound by an agreement made by their ancestors generations ago, there could be no significant learning from political experience. The contract would thwart social progress.
8. Nor are contracts any better as a logical theory of justification rather than a theory of historical origin. For contract stories of the logical basis of rights, duties, and obligations are logically impossible. They are conceptually incoherent. They beg the question of the formation of the state by assuming the very thing that was supposed to be proved. Social contract theories would have us belief that people in a state of nature got together and negotiated a pact, a legal agreement. But this presupposes some basis for law and agreements, duties and obligations (in carrying out the terms of the contract) already exist. In supposing that these creatures are rationally negotiating an agreement in accord with their desires and interests and rational deliberations, it supposes that they are already human beings. But a creature is human, in this sense, only inside society, as beings that are already socialized some extent. This begs the whole question of the foundation of society. The idea of complete savages entering into contractual negotiations is absurd. The social contract is a failed attempt to "bootstrap" the state into existence.
9. Social contracts presuppose an untenable, atomic or individualistic view of human nature. Social contract theorists think that they can dissolve away society leaving genuinely human beings as atomic units, from which to rebuild society in a rational and transparent manner. However, human beings are essentially social, cultural creatures. All their categories of thought and action are socially derived, not innate or intrinsic to individuals. Social contract theories ascribe far too much to "nature" and far too little to "nurture." That is, they seem to think that our being civilized to some degree is an innate, biological condition, not something learned as we grow up within a society. Again, Rousseau is the big exception. As he famously put the point: "Do not commit the error of making man "a philosopher before he is a man."
10. Social contract theory (at least in Rousseau's version, if not Locke's) is politically dangerous. It led directly to the French Revolution and is therefore obviously disastrous. The French Revolution is the reductio ad absurdum (reduction to absurdity) of contract theory.
11. Hobbes's contract
is a contract of subjection, in which individuals give up their rights.
Rousseau's theory, though at the opposite theoretical extreme, turns out
to be just as bad. While purporting to protect individual rights
and interests, Rousseau's model leads straight to collectivism and totalitarianism,
i.e., the dismantling of individualism.
Secondary Sources Used or Recommended
of the History of Ideas has good articles on natural law and social
contract. Bronowski & Mazlish, The Western Intellectual Tradition,
includes chapters on Hobbes, Locke, and Rousseau. See also references
on this figures cited in earlier sections. See also Ernest Barker,
Social Contract (Oxford, 1947) and Garry Wills, Inventing America
(Garden City, NY, 1978). A gold mine of information on political
theory (plus references to other work) is Leo Strauss and Joseph Cropsey,
History of Political Philosophy (2nd ed., Chicago, 1972).
Louis Bredvold, The Brave New World of the Enlightenment (Ann Arbor,
1961) is a very readable treatment of some of these issues.
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