SOCIAL CONTRACT

Social contract is a concept used variously to explain, on consensual grounds, the origin, limits, conditions, and purposes of political authority and obligation. The contract is usually deduced from some conception of natural law, which serves as the basic reason and ultimate sanction for the agreement, although it has also been put forth on utilitarian grounds to explain political authority in purely conventional terms.

History. The Greek sophists and the philosophy of epicureanism equated nature with self-interest, denied any intrinsic moral virtues, and explained the state as formed by men to obtain security on the basis of a tacit agreement neither to inflict nor to suffer harm. Against this, cicero and the Roman lawyers argued that justice is an intrinsic good, that political authority arises from the collective power of the people, and that it is always subject to natural law.

Medieval Theories. In medieval Europe the contractual basis of political obligation was implied in feudal ism and in the patristic principle that law and government, to be legitimate, must always subserve justice. In the 11th century manegold of lautenbach preached that a people establishes a ruler that he may govern justly; if he violates the agreement, they are absolved from obedience. St. thomas aquinas distinguished (1) the principium, or substance, of authority, which is divinely ordained; (2) the modus or form of government, which is determined by the corporate people; and (3) the exercitium of authority, which must accord with natural law and which is conferred, and can be revoked if misused, by the people. Unlike the Sophists and Epicureans, Aquinas, though regarding the specific form as a matter of free choice, saw government as a dictate of natural law. In the 15th-century conciliar dispute, nich olas of cusa wrote that "if by nature men are equally strong and equally free, the ruler having equal natural power could be set up only by the choice and consent of the others, just as law also is set up by consent" (De Concordantia Catholica 2.14).

Calvinist Theories. During the Protestant reforma tion the idea of contract took systematic form and became a theory of action for beleaguered minority confessions. Depending on their situations, Calvinists and Catholics resorted to it as a weapon against the theory of the divine right of kings and as a principle of legitimacy (the Calvinists giving it a strong theological basis). The Huguenot treatise Vindiciae Contra Tyrannos (1581) answered the question of what obedience was due from a Christian to a prince commanding action contrary to divine law by arguing for the existence of a twofold contract—one between God and the people binding the people to obey God's will and one between the prince and the people binding the people to obey the prince as long as he obeys God's law. If the prince acts in violation of the second contract, resistance is obligatory, but it is exclusively an aristocratic function. English Puritan theory of the 16th century was connected, in good part, with the federal covenant theology and in the 17th century was carried in this form to New England, where it served as the basis of the various compacts establishing new communities.

Counter Reformation Theories. On the Catholic side, the work of the Jesuits Robert bellarmine, Francisco suÁrez, and Juan de mariana was most prominent. In extending the arguments of Aquinas, Suárez maintained that the state is a purely natural phenomenon originating in a voluntary union of heads of families by which each assumes the obligation to subserve the common good. The state depends on God's ordination only insofar as does all of creation. Political power derives from the community; when it is used to contravene the common good or any other injunction of natural law, it may be resisted. Coupled with the indirect theory of papal power to intervene in temporal affairs, the formulation of Suárez (and of Bellarmine) tended to exalt the divine right of the pope and to set the state apart from theology by explaining it in naturalistic terms. More radical, although not novel, was Mariana's deduction that private citizens have the right to kill usurpers of temporal power.

Hobbes. In the 17th century the idea of contract was joined to an individualistic theory of autonomous natural law (see natural law in political thought). Thomas hobbes, in his Leviathan, hypothesized a state of nature wherein men are radically egotistic, perpetually seeking power, and subject to no law, divine or natural. This leads to a bellum omnium contra omnes in which life is "solitary, poor, nasty, brutish and short." Impelled by the desire of self-preservation to seek security and order, men contract with each other to set up a common sovereign to whom they relinquish all their rights. Thus by artifice is set up that "mortal god," the state, which exists not as in the classical tradition as a dictate of nature to help men become good, but as a convention to ensure existence. The desire to be is the fundamental natural right; natural law and the social contract are deductions therefrom that are merely definitive of the conditions of ordered existence. The only real limitation on the sovereign—be he one, few, or many—is the amount of power he can effectively command at any moment. Hobbes's notion of obligation is rooted in interest. Law is the command of the sovereign and is limited only insofar as one is not obliged to obey an order violative of the basic right of self-preservation.

Locke. John locke, in his second Treatise of Civil Government, propounded a contractual theory that proceeded from assumptions similar to Hobbes's but within the framework of transcendent natural law. Locke's state of nature is a condition in which men are free and equal and subject to natural law, the terms of which each judges and enforces. Because of the lack of a common impartial judge and executive, uncertainties and inconveniences arise that can issue in a state of war. To remedy this, men contract to form civil society to protect their property in their lives, liberty, and estates. Government is then set up on a fiduciary basis to protect property; when it acts to the contrary as manifested in a concerted pattern of abuses and usurpations, the people, with the majority as the motive force, may resist. Locke's philosophy underlies the American Declaration of Independence and constitutions of government; it differs from Hobbes's thought in holding that natural rights can never be surrendered to the state but serve as limitations on political authority. Whereas Hobbes's contract theory issued in absolutism, Locke's issued in constitutionalism.

Hume, Rousseau, and Kant. In the 18th century David hume attacked the theory that political obligation may be binding only if it is accepted voluntarily, arguing that the obligation to civil obedience cannot be derived from the obligation to keep an agreement but that both are binding because without them an ordered society cannot be attained and that allegiance develops on habitual grounds, reinforced by education. After Hume the idea of contract lost ground in England; it retained vigor in America until attacked in the 19th century by men such as John C. Calhoun. On the Continent Jean Jacques rousseau postulated the social contract as a means whereby men retain their original freedom while creating morality by establishing as sovereign the general will of the community. Each surrenders himself entirely to the community with all his rights and property and by giving himself to the whole surrenders to no one. Thus civil society is constituted by the agreement between men to subserve the general will, which leaves each as free as before because he subscribes only to his transformed or ideal will. Because Rousseau recognized no fixed ends in man's nature, the general will is purely formal; its only limitation lies in the requirement of its generality. Accepting Rousseau's premises, Immanuel kant viewed the social contract in a metaphysical sense as an instrument relating men to each other so that the freedom of each is compatible with the freedom of all. In this view the social contract is a social imperative prescribing the conditions of free social life rather than a call to action. In the 19th century the idea of contract lost attractiveness because of the growth of historical studies and idealist and evolutionist philosophies.

Critique. The idea of a social contract contains two elements, the pactum unionis, which forms the body politic, and the pactum subjectionis, which organizes political authority in a constitution and government. Catholic thought in the Middle Ages and Calvinist thought emphasized the latter; Hobbes, Locke, Rousseau, and the rationalists emphasized the former; and Catholic scholastic thought, in developed form (Bellarmine, Suárez), does not separate the two but regards the will to common life in political society as realized in a concrete constitutional order. Hobbes, Locke, and Rousseau deny any teleological necessity for the origin of the state in man's nature, seeing authority as rising solely from the wills of the contracting individuals. Catholic thought presupposes families as the basic social units and regards the state as a moral necessity whose concrete realization and organization is the product of man's will. The contract does not create political authority but designates how and by whom it shall be exercised. The state is seen as part of the objective moral order, with human intelligence and will having a role in its construction. It follows that obligation to obedience is not, as with Hobbes, Locke, and Rousseau, rooted in the contractual promise or in individual interest, but in the objective natural law, which indicates the moral necessity of authority. That history shows that many states were established by force and exist by sheer power and that specific conscious acts of consent by all within a community rarely, if ever, occur, does not vitiate the contract theory as a normative explanation of the origin and continued existence of the state. Modern constitutionalism based on the dignity of man recognizes this fact in the emphasis it places on the consensual factor as a legitimating and operational principle.

Bibliography: o. f. von gierke, Natural Law and the Theory of Society, 1500–1800, tr. e. barker (Boston 1957); Political Theories of the Middle Ages, tr. and introd. f. w. maitland (Boston 1958). e. barker, ed., Social Contract: Essays by Locke, Hume, and Rousseau (New York 1948). j. n. figgis, Studies of Political Thought from Gerson to Grotius (Cambridge, Eng. 1960). g. sabine, A History of Political Theory (New York 1961). t. hobbes, Leviathan, ed. and introd. m. oakeshott (Oxford 1957). s. j. brutus, A Defense of Liberty against Tyrants, ed. and introd. h. j. laski (London 1924). h. a. rommen, The State in Catholic Thought (St. Louis 1945). l. strauss, Natural Right and History (Chicago 1953). j. f. fenton, The Theory of the Social Compact and Its Influence upon the American Revolution (New York 1891). d. hume, Theory of Politics, ed. f. watkins (New York 1951).

[a. j. beitzinger]