Legal soundness

The social contract theory has been charged with lacking legal soundness. Tom Paine criticized it on the ground that it required an eternally binding contract on each generation. For Hobbes, Locke and Rousseau, it is an irrevocable contract and consent once given is binding not for only those consenting but for all the coming generations implicitly. Paine terms this as ‘dead weight on the wheels of progress’. Leon Duguit, a French jurist, rejects the theory as ‘unsustainable hypothesis’. Duguit feels that ‘since men who are not already living in society cannot have any notion of contractual relations and obligations’,⁵⁹ the idea of the presence of contract in the minds of those in the state of nature is unsustainable. Henry Maine also concluded that contract, as a way of relationship amongst men is a later development than status. Furthermore, it may also be argued that contract implies a voluntary relation, contractual relation between parties. Conversely, one can also choose to stay out of it. As a contract, it should be restricted only to the original contracting parties and should not be binding on those who did not consent. Thus, in the face of legal meaning of the word, contract as voluntary relation and absence of expressed consent of subsequent generations—state becomes a ‘matter of caprice’. As Garner say, ‘if followed out to its logical conclusion, it would lead to the subversion of all authority and possibly the dissolution of the state’.⁶⁰ As a result, the social contract theory appears anomalous as a theory of the origin of state. One more aspect that appears anomalous from the legal angle is the priority of contract over authority—social contract creates authority. Generally, as we understand today, there should be some sanction or authority behind a contract, i.e., a contract must derive from a source of authority standing independent and above the contracting parties.

Nevertheless, the terminology of legal contract, as it appears in modern parlance, may not be the appropriate way of appreciating the social contract theory. A more plausible way is to look at this in terms of the past as future. Given the contemporary social, political and economic conditions, the social contract theorists seem to extrapolate a condition of the state of nature (at least Hobbes and Locke) in the past. The state of nature is a picture as if a sound ground of political allegiance of the individual and the authority of the state is not defined. In fact, for Locke and Rousseau, the resulting state is a better guarantee for enjoyment of natural rights and civil rights, respectively. It seems, the social contract theory is less a theory of origin of the State and more a doctrine of nature of the state and relationship of the individual with the state. It redefines the principles of political obligations and deals with the crucial theme of political theory, i.e., resolving the state-individual anti-thesis; why should the individual obey the State and what rights of the individual should the State protect. In the social contract, the individual obeys its own creation and the State serves its creators. The following contributions of the social contract theory may be listed:

• It sought to establish that all authority is derived from the people and provided justification for resistance and revolt against tyranny of rulers. It discredited the divine rights of the kings.
• By bringing the individual at the centre stage of political thought, it was responding to the need of an emerging capitalist society and what Macpherson calls, ‘possessive individualism’.
• The social contract theory is within the framework of liberalism and has contributed to the principles of liberal democracy—the principles of consent, majority rule, representation, government as trust, limited government, separation of powers, collective will of the people (public opinion).
• State as an artificial construct and trust of the people is a conciliator of interests and a neutral arbiter.
• Principles of individualism, liberalism, democracy, sovereignty, political obligation and legitimacy owe to the social contract theory.
• Political commentators and philosophers such as Ernest Barker and John Rawls have sought to highlight the relevance of the contract theory in terms of constitutionalism and welfarism, respectively. Barker maintains that ‘constitutionalism is a modern substitute for contractu-alism’.⁶¹ Constitutionalism is used in the meaning of limitations on government through rights of the individual and separation of powers, which, in turn, provides doctrinal basis for liberal democracy. American philosopher, John Rawls has used the contract theory to build up his theory of distributive justice and welfare.

Notwithstanding, it remains a doubtful theory of the origin of the State and even fails to fully capture the nature of state power. For pluralists, it fails to account for the role of associations through which individual identity and relationships with the State are mediated. For Marxists, its identification of reason for origin of the State is misplaced, as it ignores the role of property. Further, it is a theory of bourgeois State and hides class differences under the cover of individualism. For the exponents of Historical-Evolutionary theory of the origin of the state, it is an incomplete theory of origin of the state, as it does not account for historical, sociological, economic and other relevant factors in the origin of the state.