Nature and terms of social contract

The three social contractualists viewed human nature and the prevailing condition in the state of nature somewhat differently. However, as Garner opines, ‘whatever the difference of opinion among the philosophers as to the actual character of the state of nature, they were all in accord that it was unsatisfactory condition of society.’⁴¹ The unsatisfactory condition for Hobbes is an anarchic situation and threat to life and security; for Locke, absence of appropriate authority to legislate, to execute and to arbitrate; and for Rousseau, it is dominance of self-love (‘actual will’) over consciousness of common good (‘real will’) that hinders men’s self-realization. Though Hobbes, Locke and Rousseau identified different compulsions that force men to covenant and establish civil society, they nevertheless, agree that the State and its authority emerged as a result of voluntary social contract.

The social contract should reflect not only the transition from the state of nature to a civil society, it should also set such requirements that exclude any possibility of reversion to the state of nature again. To ensure this, Hobbes institutes the Leviathan, a full sovereign authority; Locke, a limited constitutional government; and Rousseau, the General Will. Hobbes’s understanding of human nature in terms of primacy of self-preservation and his fear of a potential anarchic situation that could engulf Britain in the seventeenth century led him to postulate an all powerful sovereign—Leviathan. In fact, Hobbes’s Leviathan is a metaphor for excluding any possibility of anarchy. Locke, on the other hand, supports limited/constitutional government that acts as a trust on behalf of society. This is to protect the inalienable rights of individuals. Rousseau gave primacy to community over individual. His understanding that self-realization of individual would be a part of the community led him to set up General Will as the sovereign.

For Hobbes, the social contract is a covenant between individuals by which everyone subjects themselves to a sovereign in the following manner:

I authorize and give up my right of governing myself, to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and authorize all his actions in like manner …⁴²

Hobbes called the receiver of this right ‘that great Leviathan’ or ‘that mortal God’ to which we owe our peace and defence. The following features and characteristics describe the nature and terms of the social contract formulated by Hobbes:

• To seek peace, every one gives up their right to govern themselves and to seek power continuously fearing others—this corresponds with the first law of nature.
• All authorize their natural rights to the receiver, the Leviathan or the sovereign, who is the recipient of power of men—this corresponds with the second law of nature.
• ‘This man or this assembly of men’ seems to envisage or justify a monarchic as well as aristocratic and democratic state—though Hobbes might have a monarchic state in mind.
• The Leviathan is not party to the contract and owes no obligations, though surrender of all powers and rights of men is complete except the right to life.
• Leviathan’s authority is legitimate as each individual has consented so.
• It is a single contract that give rise to the Commonwealth (the state) and the Leviathan (the sovereign).
• Hobbes makes no distinction between society and the State and the State and government.
• By contracting, the multitude of individuals becomes a commonwealth, a state which is an artificial person distinct from the multitude—the State as something artificial, ‘a machine, an artefact, a contrivance of man.’⁴³
• Unity of the sovereign represents the unity of the multitude—’the unity of the representer, not the unity of the represented that makes the person one.’⁴⁴
• The sovereign becomes the repository of all strength and power of the multitude and represents ‘one will.’⁴⁵
• This one will does not provide place for primacy to any associations including the church, as they are ‘worms in the entrails the body politic’—Hobbes proposes a unitary state not pluralist state.
• Remove the sovereign, the unity goes and so does the commonwealth—state of nature again, which is undesirable and hence the sovereign is absolute and directs the actions of men to common benefit—security and life.
• To do this, the sovereign needs power to keep peace and apply sanctions to curb men’s innate unsocial inclinations as ‘covenants without sword are but words’ and ‘the bonds of words are too weak to bridle men’s ambition, avarice, anger, and other passions, without the fear of some coercive power.’⁴⁶
• Leviathan or the sovereign is the sole source of all laws (all laws are command of the Leviathan), rights, justice and possess absolute power—monist concept of sovereignty.
• Neither the law of nature, nor law of God nor conscience can be pleaded against the Leviathan as law is the command of the sovereign and represents public conscience. He is the sole interpreter of law of nature or the law of God.
• Leviathan, thus, is absolute, inalienable, indivisible, irrevocable and permanent.

If such is the nature and terms of contract, Hobbes seems to have removed any fetter to an absolute sovereignty. And by doing so, he even removed what Bodin puts as limitations of the sovereign. However, since the very origin of the social contract and Leviathan is grounded in security and right to life of the individual, Hobbes puts this as the only limitation on the Leviathan. Leviathan cannot will or command a man to kill himself, as it obligated to protect the right to life of the individual. It is the violation of right to life alone that men are empowered to revolt against the Leviathan.

In the backdrop of the Glorious Revolution of 1688, while Hobbes gave enough theoretical backing to absolute monarchy and the rule of Stuart kings, it was left to Locke to take up the same subject and reach to a different conclusion. True to his contemporary backdrop, Locke advocated constitutional monarchy and limited government in his Two Treatises on Civil Government. Locke’s formulation of inalienable natural rights and absence of appropriate authority to legislate, execute and adjudicate in the state of nature are the two aspects that determine nature and terms of social contract. For Locke, social contract as a means to transit from the state of nature to civil society means:

Whosoever therefore out of a state of Nature unite into a community must be understood to give up all the power necessary to the ends for which they unite into Society … And this is done by barely agreeing to unite into one Political Society, which is all the compact that is, or needs be, between the Individuals that enter into or make up a commonwealth. And thus that which begins and actually constitutes any Political Society is nothing but the consent of any number of Freemen capable of a majority to unite and incorporate into such a society. And this is that, and that only, which did or could give beginning to any lawful Government in the world.⁴⁷

The following features and characteristics describe the nature and terms of the social contract formulated by Locke:

• Social contract of all with all to constitute a commonwealth or ‘political society’ (a community) at first and then to institute the government as agent or trust of this commonwealth as ‘a fiduciary power to act for certain end’—some say Locke’s formulation implied two social contracts, one to constitute political society and the second to institute government.
• The social contract is by the consent of all and unanimous. But this political society is capable of majority, i.e., decisions to be taken by the political society now would be by majority and need not be unanimous.
• Once consented, the contract is irrevocable and each generation must consent to it.
• Social contract results in partial surrender of rights whereby all surrender their rights to be a single power of punishing and be the interpreter of natural law and its executor as well as adjudicator.
• Inalienable rights of life, liberty and estate is retained by the individual in political society also.
• Even partial surrender of rights, then, is to the political society which retains ‘supreme power’ and as such people organized as political society are sovereign.
• This sovereign subsequently institutes government as a trust to perform the functions that ensure the end for which the contract has been entered into—to have a legislator on behalf of all, and executor and an impartial adjudicator.
• The primary end of government is to secure and protect the inalienable rights of life, liberty and estate.
• The political society is both creator and beneficiary of the trust/government.
• To the extent the government breaks the trust of protecting these inalienable rights, it forfeits the trust of the people and the latter can revolt against it—Locke sought to defend the right of revolution in context of Glorious Revolution of 1688—this is Locke’s justification of revolution without incurring instability.
• Revolt against government, however, does not constitute dissolution of political society and is only change in government.

While Hobbes transferred all rights of the individual, except the right to life, to the great Leviathan, Locke allowed rights to life, liberty and estate as indefeasible rights to be retained by the individual. While sovereignty of the Leviathan is supreme, it is much curtailed and trimmed in Locke’s state. From Hobbes to Locke, the concept of sovereignty or supreme authority travelled from absolutism to a limited government.

Notwithstanding Rousseau’s views contained in his Discourses on Inequality on the emergence of state, our focus here will mainly be on his formulation contained in his The Social Contract. The thematic concern of Rousseau’s thought revolved round the inquiry to:

Find a form of association which will defend and protect with the whole common force the person and the property of each associate, and by which every person, while uniting himself with all, shall obey only himself and remain as free as before.⁴⁸

This form of society is possible only when an organic unity is achieved with every individual having consciousness of the common good. This is exactly what General Will represents. In the state of nature, individual gives primacy to actual will (sense of self-love), though real will (consciousness of common good) is also present. For Rousseau, this impulsive and unreflective self-interest is an undesirable state of affairs, if man has to realize ‘moral liberty’, liberty with consciousness of common good. To enjoy moral liberty and not merely instinctive liberty, social contract is required and this is how the liberty of the individual and necessity of social order must converge. This requires transiting from the state of nature to civil society. For Rousseau social contract comes into being when:

… each of us puts his person and all his power (faculties) in common (stock) under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole.⁴⁹

The following features and characteristics describe the nature and terms of the social contract formulated by Rousseau:

• It’s a single contract of all with all to let their ‘real will’ (individual sense of common good) prevail and constitute a volonte generate, the general will (common consciousness of the common good).
• The General Will, which is the common consciousness of the common good, represents the organic unity of the people who constitute a civil society or a body politic.
• It is ‘a common Me’—Un Moi commune, my real will writ large and in association with the similar real will of others writ large includes me as well as others.
• This civil society now acts as a corporate unity and is repository of all powers which an individual had in the state of nature and in addition also has civil liberty which it creates.
• This way, ‘each man giving himself to all, gives himself to none’ and by ‘what he loses by the social contract is his natural liberty and unlimited right to do anything that tempts him which he can obtain … what he gains is civil liberty and the ownership of all that he possesses’.⁵⁰
• By virtue of this, it is sovereign and source of all rights and justice, liberty and freedom—individual liberty is neither beyond nor above what General Will prescribes—’one can be forced to be free’ as General Will only know what freedom is.
• Sovereignty remains with the general will and cannot be represented—it is popular sovereignty that characterizes Rousseau’s civil society.
• General Will is indivisible, absolute, inalienable, permanent and all comprehensive.
• Sovereign is not concerned with details of the government. People entrust executive powers to the government as an agent. As long as the General Will is sovereign, form of government—monarchy, aristocracy or democracy does not matter.⁵¹ However, generally, direct democracy is associated with Rousseau’s idea of General Will.

For Rousseau, social contracting involves ‘the total alienation of each associate and all his rights’⁵² and a complete surrender of an individual to a corporate body. For Hobbes, this corporate body is the Leviathan, standing external to the people in one man or assembly of men. For Rousseau, it is the Volonte Generate, residing within the people impersonally. It seems, Rousseau’s general will is Hobbes’s Leviathan with its head chopped off (impersonal). Locke, one the other hand, does not require complete submission of individual to the Commonwealth. The commonwealth is supreme in certain ways and the individual retains inalienable natural rights. This sounds like the community having partial sovereignty amidst individual retaining natural rights outside the sovereignty of the community. What does this difference mean for the type of the State and government in a post-social contract society?