This article is written by Sushree Surekha Choudhury from KIIT School of Law, Bhubaneswar. It talks about the American social contract theory and the structure of society during the advent of the social contract theory. It also discusses the social contract theories propounded by Hobbes, Locke, and Rousseau among others.
It has been published by Rachit Garg.
Are you someone who is fascinated by history? Perhaps, the historical times, the majestic royal castles, the dresses, and aesthetics, the royal dinners, etc.? If yes, so am I! As an Indian, the ancient royal aesthetics, the big pieces of jewelry, and the majestic palaces of maharajas and maharanis always fascinated me, to the extent that I wish I were a part of it! We know from the global history of ruling that it always comes with untethered powers, has it not? The kings were considered all-powerful and also the ones who could do no wrong. Such was the situation in American society, where the king/ruler was treated as someone who had been vested with power and rights from divinely God. He was meant to rule the people, as his rights came directly from divinity. While all of these sound pleasing and fictitiously amusing to the ears, the people who lived in that era often suffered due to the king’s limitless power. Nobody had the right to question the king’s decisions, and everybody was obligated to follow his orders. Non-compliance always led to severe punishments, hanging till death, for instance.
So, I ask my question again. Do you still wish you were born in that era? I know, either of us wouldn’t. Well, just like you and I, people in those times did not remain silent for long either. Philosophers, guides, activists, and sociologists started opposing the idea. In the advent of this, there came a philosopher, Sir Thomas Hobbes, who introduced the concept of the social contract theory to the world. What did it do? It aimed to bring political changes in society and replace the theory of divine rights enjoyed by the king/ruler. We shall learn more about social contract theory in this article.
Brief about the American social contract theory
The basic ideology of the social contract theory is that people live in a society, in accordance with political rules and moral values. The social contract theory promotes harmony between people through set standards and rules governing their behavior. Propounders of the social contract theory believe that when people live in accordance with moral values, it gives them autonomy and freedom. They no longer need to be governed by rules and regulations made by the ruler/government, since they can live as per a moral code of conduct. The primary objective of the social contract theory is to maintain harmony in society through moral and political obligations.
Social contracts can be explicit or implicit. They can be in the form of laws, regulations, etc., or as everyday behaviors. The American social contract theory is believed to be evident in the US Constitution. It is said that the US Constitution was made in adherence to the American social contract theory. The US Constitution manages and monitors the US Government’s activities. It governs the powers of the government and also puts reasonable restrictions on the government’s actions. American residents and citizens are expected to adhere to the values of the American social contract theory. These values are also directly imposed and mandated on people through the US Constitution, since every person in the US must abide by it.
Origin and history of the American social contract theory
The origin and history of the American social contract theory can be traced as follows:
Pictorial representation of the origin of social contract theory
Evolution of the social contract theory through the years:
Over the years, several philosophers have studied and developed the social contract theory, in America and across the globe. Stuart Rachels, a philosopher, described the social contract theory on the basis of morality. Stuart Rachels described morality as a set of rules that govern human behavior, which is accepted by all.
According to the American social contract theory, the primary duty of the state is to serve the will of the people. The state enjoys political powers vested in it through its citizens. As the powers are vested in the people’s will, they also have the power to withdraw those powers. Thus, the state is bound to serve people’s will. The entire American political system is based on the values and principles of the social contract theory.
The origin of the social contract theory, which is relevant even today, dates back to the 4th-5th century BCE. It was during this period that the concept was introduced by Plato, who spoke about morality governing behavior in society. However, the social contract theory emerged and developed in the 15th century, when Thomas Hobbes wrote about it.
The US Constitution has embedded in itself the values of the American social contract theory. It was in 1787 when Locke’s social contract theory was introduced to the world. The US Constitution embedded these provisions inspired by Locke’s social contract theory. The US Constitution establishes itself as a valid social contract. By this, the US Constitution subsumed and even today, follows the following principles:
- The US Constitution follows the principle of natural justice, which is derived from the American social contract theory.
For instance, the Due Process clause of the US Constitution upholds natural justice. Section 8(b) of the Administrative Procedure Act of 1946 mandates that administrative decisions in the US be backed by just reasoning.
- The US Constitution protects the natural rights of its citizens. This feature is derived from the principles of the American social contract theory.
The US Constitution’s features, like equality, justice, liberty, etc., protect people’s natural rights. The US Bill of Rights has been enacted to protect natural rights in the US.
- The US Constitution prescribes procedures and ways of forming a government in the country. This is derived from the principle of the just creation of government.
A new government is formed after following the rules of election and formation of the government as per Article I of the US Constitution and other election laws and rules that the government may prescribe.
- The principle of the rule of law is followed in the US through its Constitution. It is a feature derived from the principles of social contract theory.
Forming a part of the US Bill of Rights, the rule of law is strictly followed in the US. It embodies features like ‘equality before the law,’ ‘supremacy of the law,’ etc. These features are upheld by the Fourteenth Amendment to the US Constitution.
- The US Constitution grants independence to the judiciary in the US. It is a principle of social contract theory.
The US government is divided into branches, in which the US judiciary forms a separate branch. The executive or the legislature does not interfere in the functioning of the judiciary. Article III of the US Constitution talks about the division of the US courts into the Supreme Court and state courts to uphold the values of judicial independence in the US. Article III further talks about the judicial powers of these courts and upholding values of the US Constitution by the US judiciary.
- The division of powers among the different organs of the US government is a form of the social contract theory.
As the US government is divided into three branches: executive, legislature, and judiciary, each branch works separately and performs specific functions. The other two branches do not interfere in the working of this branch in the US government.
It is through the principles of the social contract, that the formation of the US was made possible. A social contract was seen as a mutual political agreement between the ruler/government and its people. This helps in the formation of a civil state. Social contracts shape the civil laws and political framework of a state. John Locke’s social contract theory was referred to, during the formation of the United States of America, the US Constitution, and the US Declaration of Independence. Thus, the US Constitution is said to be a social contract.
Hobbes’s social contract theory
Thomas Hobbes contributed to the development of social contract theory in the 17th century. Thomas Hobbes’s social contract theory was referred to as the standard principle of reference all over the globe. This brought major legislative reforms in England and the Roman Empire. After the disintegration of the Roman Empire, a need for social order and stability was felt. This is where the social contract theory became relevant. A shift was seen, where people and states started shifting towards forming states with political governance, instead of divine intervention.
Hobbes considered people as being ‘naturally evil’ and thus, they must adhere to a superior sovereign authority who can guide their actions. Hobbes believed that superior governance would save society from evils and prevent crimes like robbery, murder, etc. Hobbes believed that humans tend to disagree and have conflicting interests, thus, leading to fights in society. As humans tend to fight, there must be an authority that they would uniformly oblige to. Thus, Hobbes believed that powers should be vested in an authority to control the actions of humans in society. Hobbes called this person someone who held the most power in society at a given point in time. He also stated that individuals have the right to replace this person only on grounds that he has failed to ensure safety and discipline in society. This ideology of the Hobbesian social contract theory has been the primary source of influence for the American social contract theory.
Thomas Hobbes’s theory of ‘state’ (called Leviathan) spoke about the renouncement of powers by individuals to vest powers in a sovereign authority. These powers were to be vested on the sovereign by their people and as a consequence, people must obey the laws and rules made by the sovereign due to the powers vested on them. This was the beginning of the implementation of the social contract theory across the world. Hobbes’s work was complemented by John Locke’s social contract theory.
Hobbes believed that there was no ‘good’ or ‘bad’ in society. It is determined only through human nature and perspectives. Hobbes stated that humans are inherently selfish by nature. They act in furtherance of their best interests. Therefore, they term the things that serve their purpose as ‘good’ and others as ‘bad.’ Everything that people do in society is to satisfy their wants and wishes.
Hobbes’s motive behind studying human nature was to reflect upon its imperfection. Since human nature is imperfect and selfish, humans cannot themselves govern their actions and behavior. Thus, the authority has to be vested with the duty. However, limitless use of power by the authority will render the purpose of vesting power ineffective. So, people must vest power in authorities, and these powers must be limited and restrictive. A social contract governs the relationship between sovereign authority and its people. This sovereign authority has been vested with the power of governance by its people themselves. It creates cooperation and coordination in society.
Features of the Hobbesian social contract
The Hobbesian form of social contract possesses the following elements and features:
- It is a form of one-on-one contract between an individual and an authority (third party). Each individual surrendered their rights to such authority. Therefore, Hobbesian social contract theory does not vest rights to an individual or distribute rights and power commonly within individuals. It rather shifts the power from individuals to an authority.
- This third party is not considered to be a natural person. It is an artificial entity that is named ‘sovereign.’
- Once an individual surrenders his rights and accepts to be governed by a sovereign, he is obligated to obey the sovereign authority.
- Disobeying the sovereign authority attracted punishment.
- It is considered a moral obligation for men and women to obey the social contract and the sovereign authority.
- Powers of the sovereign authority also came with duties. They were vested with duties to uphold people’s rights, and interests, work for their welfare, and provide justice.
- Hobbesian social contract theory is based on consent. An individual surrenders his rights to the sovereignty of his free will.
- Hobbesian social contract theory aimed to establish political authority and form a civil society.
- Sovereign duties included guaranteeing equality to individuals who surrendered their rights.
- The rights and powers vested in the sovereign made it an equal to God in human society.
- Hobbesian social contract and surrendering rights under it was permanent in nature. Sovereign rights and powers were absolute and unlimited. It changed the narrative of the divine rights theory in the manner that the sovereign was vested with powers by people’s consent and wish.
Criticism of Hobbesian social contract theory
Mentioned below are criticisms of Hobbesian social contract theory:
- Powers are vested in a third party. The sovereign authority is not an immediate party to the contract.
- The sovereign authority was vested with unlimited and unregulated power. Immense power also came with its negative implications. A sovereign could abuse the powers vested in it and go unpunished.
- Hobbesian social contract theory proposed that humans surrender their powers and rights to a sovereign authority because he considered humans irrational and biased. Criticism of this theory was that, since humans are selfish and irrational, they would never come forward and surrender their rights to sovereign authority.
- Surrendering rights and powers under Hobbesian social contract theory was permanent in nature. Individuals could not take back their rights even when the sovereign authority turned problematic, tyrannical, or misleading.
- Hobbes talked about granting civil liberties and equality to people, but the power to do so resided solely in the hands of the sovereign authority, which could misuse this power and go unquestioned and unpunished.
Locke’s social contract theory
American political ideologies were majorly inspired by Locke’s social contract theory. Locke talked about a civil government. He aimed to change the way society functioned. In primitive societies, the king/ruler was all-powerful. It was believed that “a king can do no wrong.” Locke changed this narrative and contributed to the formation of a civil government on the basis of political rights and obligations.
Locke’s First Treatise of Government, 1689
In his ‘First Treatise of Government’, Locke rejected the centuries prevalent theory of ‘divine rights of the king.’ Locke stated that the principle of the divine right gave absolute powers to the ruler, without any restrictions. As the name suggests, the divine right principle stated that the ruler derived his powers directly from God. Since it was treated as such, that God was regarded as the source of this power, the ruler enjoyed absolute rights and it was believed that he could do no wrong. Due to this theory, rulers enjoyed absolute power while governing their subjects. This led to injustice in society, but no remedy was given due to the theory of divine right.
Locke stated that the divine right principle should be abolished and it should be replaced with a civil government. The ruler would enjoy power given to it by the people at will, and not as a divine right. This form of power held by the ruler will also be limited by reasonable restrictions. Rulers will not enjoy absolute power and freedom. They shall be held responsible for their mistakes.
The essential ideology behind Locke’s principle of ‘people’s rule’ was based on the theory that all people are created by God, and thus, they all must enjoy political rights and not just one individual (the ruler). Since all these people cannot run the governance of a state, they must vest and delegate their powers to a few able individuals who will possess sovereignty.
Locke’s Second Treatise of Government, 1689
In his ‘Second Treatise of Government’, Locke enhanced the concept of people’s rule further. He stated this to be achieved through social contracts and their principles. Implementation of these principles would establish people’s rule in society and governance. The divine rights theory gave superior rights to the ruler. Instead, Locke’s Second Treatise of Government introduced the concept of natural rights. Natural rights are rights given to every individual by godly or divine powers. This theory made a shift from the divine rights of the king to the natural rights of people.
Every individual is equal before God and must enjoy rights and freedom vested in him by God. Locke’s concept of natural rights included the right to life, personal liberty, and the right to bear estate. Locke treated all these rights as the ‘property’ of an individual. Locke stated that in a society where people are unable to exercise and fight for their rights, the laws of nature must intervene to provide justice. Thus, natural rights were vested in people by divine intervention. These laws guided the morality and conscience of people and also of those in power.
Locke gave importance to people’s consent in governance. This is the reason why he articulated the concept of people’s rule. The government or ruler of a state cannot rule the state without the consent of the people belonging to that state. Locke called society a ‘socially contracted society’ whose primary duty is to protect people’s rights and uphold laws of nature and natural rights.
Features of the Lockean social contract
Mentioned below is the structure of the Lockean social contract theory:
- The Lockean social contract theory talked about political authority. It stated that there existed a relationship between society and its government. This relationship was based on trust. If the social contract is breached by the one in authority (sovereign/government), people in society have the power to replace/change the authority.
- The sovereign can enjoy political authority only with the consent and support of the people in society.
- Although the sovereign must not breach the social contract, it was not a direct party to the contract. The sovereign acted as a third party on whom the rights were vested by the people.
- Lockean social contract theory divided the sovereign/government into three divisions: the executive, the legislature, and the federative. The legislature acted as the supreme division of sovereign and was vested with the duty to make laws for the governance of society. The executive subordinated the legislature and enforced laws made by it. The executive also included judicial powers in the Lockean social contract theory. The federative wing of government managed international relations and external affairs. It also made and enforced treaties in society.
- Locke believed in the establishment of a sovereign based on provisions of the Constitution and rule of law. The Lockean social contract theory refused the absolute power of the sovereign. The sovereign’s powers were limited and restricted to protecting people’s rights, freedoms, liberty and maintaining equality in society.
Criticism of Lockean social contract theory
The Lockean social contract theory was criticized for the following reasons:
- Locke failed to foresee the possible opposition from minorities in society. He inherently assumed that everyone would surrender their rights to the majority rule.
- The sovereign/government was not made a party to the social contract. This made the social contract’s enforceability questionable.
- It gave ultimate power to the sovereign and people had to adhere to the laws even if they disagreed with them. But people had the right to replace the government at will. This created lawlessness and arbitrariness in society. Society remained on the brink of rebellion and war.
Rousseau’s social contract theory
French philosopher Jean-Jacques Rousseau is considered to be an important preacher of social contract theory in the world. The American social contract theory developed with these theories of Rousseau, among others. Hobbes’s social contract theory focused on the creation of a ‘sovereign authority’ with ultimate power vested in it by the people. Locke’s social contract theory provided natural rights to humans and refuted the divine rights theory of the king’s power.
Rousseau took inspiration from all these theories and formulated a concept of the ‘general will.’ General will can be defined as the will of people in a state/society. The sovereign authority is vested with the power to represent and act upon the general will of its citizens. Rousseau believed in principles of democracy and political representation of the general will of the people through a sovereign authority.
Rousseau’s social contract theory consisted of two ideologies. The first ideology talks about human nature. It talks about the changing and evolving human nature. Moral and political ideologies evolve with time and this results in the evolution of human nature. Rousseau wrote about this theory of evolving human nature as a social contract theory in his essay, “Disclosure on the origin and foundations of inequality among men” (also known as ‘Second Disclosure’). This theory attributed the evolution of society to the evolution of human nature. As human nature evolves, so does society, from primitive laws of nature to a modern, evolved society. The second ideology speaks about an ideal social contract theory that shall end problems in society and bring peace and harmony with the help of mutual cooperation and coordination.
Rousseau largely spoke about a ‘state of nature.’ He considered this as the beginning of human civilization from which the concept of society would evolve. Historically, society began with a state of nature which ultimately evolved into civil society through phases of evolution. Humans lived in harmony with one another. Society was free from political and economic influence, and people depended on nature for the fulfillment of their wants and wishes. Thus, there was a ‘state of nature.’
However, this state of nature changed due to changes in society. With the increasing population, it became impossible to satisfy all human wants and wishes from nature. This created competition in society and also led society toward a capitalist structure. As a consequence, moral and political conditions affected the social conditions of individuals as well. This resulted in the creation of class divisions in society. People started forming groups and dividing themselves from the rest of the population. Class divisions also led to labor divisions, in families, communities, and society at large. All these factors, taken together, contributed to the formation of virtues and vices in society. The concept of ‘property’ was formed in society. People started owning property, which became a symbol of their status in society. With all these changes, the state of nature could no longer exist or provide justice to people. Thus, the evolution from a state of nature began toward the formation of modern civil society.
The introduction of ownership of property further created inequalities in society as different people owned properties in different manners. This increased class divisions and the inequalities arising out of it. This is also where capitalism began. One class of society-owned property. They came to be known as the bourgeoisie (Marxist theory of class divisions). People who did not own property had to work for these bourgeoisie business owners. This created a labor class in society. They came to be known as the proletariat. The labor class of people started working for business owners and property owners.
To sustain these class divisions and prevent inequalities, Rousseau’s social contract theory focused on the importance of establishing a sovereign authority that would protect people from exploitation and injustice arising out of inequalities in owning property. A government established as per the social contract theory would ensure equality and protection for all classes of people.
A noteworthy paper by Rousseau, ‘The Social Contract’ began with the lines – “man was born free, and he is everywhere in chains.” ‘Free men’ denotes men of the times when the state of nature was prevalent in society before class divisions began. A progressing society gave birth to virtues and vices. While rights and freedoms were introduced, vices like inequality, discrimination, and suffering also came into existence. Rousseau also acknowledged the fact that progress is bound to happen. A society can neither stay in the state of nature forever nor go back to it. Therefore, political, social, and economic equality must be promoted and ensured for everyone. This is why it is important to have a sovereign authority performing the function and representing the general will of the people.
Features of Rousseau’s social contract theory
Mentioned below are the features of Rousseau’s social contract theory:
- Rousseau stated ‘politics’ to be the core of his social contract theory.
- He opposed the oppression of people and believed it to be non-favorable to societal development.
- He based the social contract theory on the ‘consent’ of people. This came to be known as the ‘general will’ of people.
- Rousseau’s social contract theory aimed to establish political authority while upholding people’s rights and freedoms through the ‘general will.’
- Rousseau believed that the general will and legislative intent would be upheld by democracy.
- Only law has the power to liberate people and bring about changes in society.
- Rousseau did not believe in theories of surrendering power to sovereign authority. He advocated for people to retain ultimate power. The sovereign authority should function as an ‘agent’ for the general will of the people.
Criticisms of Rousseau’s social contract theory
Rousseau’s social contract theory was criticized as:
- His ideology of general will is generic, unclear, and unspecific.
- The practical implications of his theory were difficult to comprehend in society.
- People’s general will can be conflicting. It can further lead to lawlessness in society.
Modern social contract theories
While the social contract theory made its base in the 17th century, the theory has developed with changing societal dimensions and the needs of people. The evolution of the social contract theory was mainly professed by John Rawls and David Gauthier. These evolved social contract theories aimed to adapt and address contemporary societal issues and suggest solutions.
Pollock’s social contract theory
In 2007, Pollock governed and analyzed the social contract theory from the perspective of ‘law.’ He believed that laws are essential for the governance of a society and thus, it shall be the primary basis of the social contract theory. Pollock’s analysis of the importance of laws in society is as follows:
The harm principle
Pollock stated that as evils exist in a society, it is essential to prevent them and protect people from becoming victims of these evils. Evils and the ones doing it have the potential to harm other individuals in society. Therefore, laws must protect the innocent and provide justice to the victim. Thus, laws are essential in society.
The offense principle
Pollock stated that laws must protect individuals in society from the distasteful and harmful behavior of others. Without proper laws in place for preventing crimes like robbery, murder, etc., in society, people will be victimized. Thus, laws must be in place to protect.
Principle of legal paternalism
Pollock stated that laws and regulations must be in place to protect everyone in general, against harm in society. Without proper regulations in place, there would be a state of lawlessness in society.
Principle of legal moralism
Pollock stated that laws and regulations are essential in society to prevent immoral and demeaning activities in society. Laws and regulations prevented activities like gambling, prostitution, etc., in society.
Principle of equality
Laws must be in place to ensure equal protection of everyone’s rights. Laws are essential in society to ensure that one section of society does not suffer at the hands of others.
John Rawls’s social contract theory
John Rawls has made noteworthy contributions in his writings on morality, justice, and philosophy. His work, ‘A Theory of Justice’ (1972), became a guide to standards of morality, political equality, and justice in the late 19th century. Rawls’s theories were based on human nature and capabilities. He believed that humans are capable of being impartial and making moral judgments based on equality and justice. Rawls talks about a ‘veil of ignorance.’ His theories were based on the state of nature, as discussed by Rousseau. Rawls stated that humans are capable of judging good from bad and possess moral and political impartiality. But these virtues are kept hidden by a veil of ignorance of society. If the veil is lifted, humans will become their superior selves and live in harmony with one another by following the principles of equality and natural justice.
Rawls stated that lifting the veil of ignorance would create a society based on morality, justice, equality, and inherent fairness. Rawls stated two principles of justice, based on which society functioned. These principles governed the distribution of economic goods among people, as well as civil liberties. These principles were:
Principle 1: equality
The first principle is based on equality. Rawls talks about equal distribution of civil liberties among people. He states that there is no limit to which a person can enjoy civil liberties in society, as long as the same amounts of civil liberties are enjoyed by everyone else as well. Thus, the distribution of civil liberties, and economic goods must be made equally and fairly.
Principle 2: fairness of equality
Interestingly, Rawls’s second principle speaks of inequalities being fair. Rawls states that inequality is not always bad. It can lead to justice and fairness. This is when inequality is practiced to uplift and favor the marginalized and weaker sections of society. This can be in the form of economic favor and benefits toward the poor sections of society, favoring employment opportunities and education, etc. These inequalities bring a balance to society by uplifting the weaker sections of it. Therefore, Rawls stated inequalities to be just and fair as long as it is for the benefit of the weaker sections of society. Today, we know this as the principle of equity.
Rawls states that these principles are interrelated and chronological. One cannot be fulfilled without also fulfilling the other, and the first principle has to be satisfied before satisfying the second principle. Civil liberties must be granted equally to everyone before furthering on to favoring and uplifting the weaker section of society by fair inequality. In this way, Rawls has set out his theory of justice which is fundamental to modern-day social contract theory. Thus, Rawls’s social contract theory is based upon the principles of justice.
David Gauthier’s social contract theory
David Gauthier’s theory of social contract is strongly influenced by Hobbes’s social contract theory. He wrote a book in 1986, ‘Morals by Agreement’, where he professed Hobbes’s theories of moral and political obligations to be correct. David, just like Hobbes, thinks that society can be studied by studying human nature and both evolve simultaneously. His opinion of human nature is that humans are inherently selfish but also rational at the same time.
Hobbes believed that since humans are self-interested by nature, sovereign authority is needed to maintain equality and order in society. However, David believes that sovereign authority’s governance is not needed to maintain order in society. This is because rational men and women are intelligent enough to separate good from bad, right from wrong, and act accordingly. They can comply and live in harmony and cooperation.
Criticisms of the social contract theory
American social contract theory has been influenced by the social contract theories of Thomas Hobbes, John Locke, and Rousseau. Hobbes, Locke, and Rousseau developed the social contract theory globally and inspired its implementation in states. Given the wide range of evolution and development, the social contract theory has also been criticized in several instances. These criticisms can be seen in the following forms:
Feminists have always focused on uplifting women’s social, economic, and political conditions. Women suffered worse conditions in ancient times and feminist movements have helped improve those conditions over the years. Whenever a new concept or theory was introduced to society, feminists analyzed those theories to be helping them or worsening their conditions. Social contract theory has also been through the analytical lens of feminism and its believers.
Carole Pateman’s arguments
Carole Pateman (political scientist) wrote a book in 1988, named ‘The Sexual Contract’. In her book, she wrote about how Locke, Hobbes, and Rousseau’s social contract theories look at and determine the relationship between men and women in society. She stated that even though the social contract theory was represented to be against patriarchy, in reality, it only shifts control over women from one man to another. The social contract theory waters seeds for modern patriarchy while refuting traditional patriarchy.
Carole believes that the social contract theory does not change the domination of men over women. Rather it enhances patriarchy by shifting and distributing power. In a traditionally patriarchal society, a male exerted power and control over females (daughter, sister, wife, etc.) This changed in modern patriarchy as more men, fathers, brothers, husbands, etc., started exerting power and control over women. This theory was promoted by Locke, Hobbes, and Rousseau, which increased patriarchy in society, intentionally or unintentionally. She backed this argument with the examples of the following contracts:
- A social contract of marriage,
- A contract of prostitution,
- A contract involving surrogacy and motherhood.
In each of these, as well as other forms of the social contract, women are dominated by men. Men are given control over women’s rights, bodies, autonomy, freedoms, decisions, etc. Therefore, Carole argues that the social contract theory promotes patriarchy and brings injustice and inequality to women.
Criticism of analysis of human nature
The social contract theory has largely depended on the nature of men and women who form society. Social contract theory believes that human nature makes up society and a society’s progress, development, and pace of evolution are determined by the nature and evolution of men and women in that society. Feminists argue that this portrayal of human nature is construed generically in the social contract theory whereas human nature is dynamic and differs from person to person.
Feminists point out the irony in this regard since different preachers of the social contract theory have historically considered human nature differently. While they state human nature to be generic, they all construe it differently. Hobbes’s observation of a self-interested human is different from David’s observation who believes men to be rational, even when they are self-interested. In reality, human nature differs depending on various factors, such as the time period in history, social conditions, ideologies governing society, etc. Therefore, a generic assumption of human nature and basing theories on that assumption would lead to deformative analysis.
Feminists further argue that the social contract theory considers the human nature of only men in a particular society. They neglect the nature of women and children who are an equal part of society. Additionally, regarding the nature of men as human nature of the entire generation would lead to mistakes. Man’s nature differs from women and children and they do not match in several aspects. Thus, the social contract theory has failed to address human nature correctly.
Social contract theory bases human nature from the point of view of an ‘economic man’. Determining human nature from the viewpoint of an economic man does not represent every individual in society. An ideal economic man is focused on wealth maximization, but there are numerous other classes of people, the working class of people in a capitalist society, for instance. Therefore, an economic man cannot represent the whole community and human race for the purpose of the social contract theory.
Criticism of moral and political obligations
Feminist philosophers, Baier and Held disagreed with the nature of moral and political obligations talked about by David Gauthier. Feminists believe that the social contract theory does not give enough insight into moral relations and ethics that one must maintain while interacting with others. It does not fully comprehend the moral obligations that people owe to others with whom they maintain a social relationship. The social contract theory does not adequately discuss the political obligations of people in society. It talks about surrendering and handing over rights to a sovereign authority for uniform governance but it does not include aspects that are required in achieving it.
Feminists argue that even though the social contract theory talks about a moral, prudent and rational human being, it does not discuss what makes a person moral and prudent. What degree of morality is moral? What does it take to be a moral human being? What traits does a rational human being possess? The social contract theory has failed to answer these questions. Feminists argue that the social contract theory has failed to consider various aspects of human psychology and morals while comprehending social relationships between people.
Feminists criticize the liberal theory to be the opposite of morals theory. David Gauthier discussed the liberal human theory where he talked about social relationships between humans to be voluntary in nature. The liberal theory states that humans are free in society and they form social relations voluntarily. The moral theory focuses on the importance of morality in human relations. To fulfill the moral theory, it is first important to have social relations. Therefore, these theories are clashing with one another and serve as a flaw in the social contract theory.
Feminists further argue that the social contract theory of an ‘economic man’ is contradicting the theory of moral obligations. Feminists argued that an economic man is not an ideal man for fulfilling moral obligations. The economic man theory only considers one aspect of society, i.e., wealth/capital. A society is formed with numerous elements apart from capital. Thus, a theory that only considers capital is incomplete. An economic man fails to comprehend moral relations and social relations between people. The social contract theory is incomplete without considering moral and political obligations, and other factors that together make up a society. Therefore, one must consider such factors while determining moral obligations and social relationships between people. Here, the social contract theory fails to fulfill the moral theory.
Racism in the social contract theory
Just as women’s conditions in society were miserable and the social contract theory was criticized for being silent about it, people who suffered due to racist ideologies in society also criticized the social contract theory.
Criticism of racism
Carole Pateman’s book, ‘The Sexual Contract’ talked about women’s plight and social conditions in society and criticized its inadequate depiction and solution provided in the social contract theory. The social contract theory is also criticized for the depiction of non-whites and their social conditions in society. Charles Mills in his book, ‘The Racial Contract’ (1997) talked about this issue and stated that the social conditions of non-white Americans were the same as women’s social conditions in society, and the social contract theory made no effort to improve it. In his book, Mills questions the universality and diversity of the social contract theory.
Mills criticized the liberal individual theory as having omitted the plights of non-whites in society. Mills talked about a “racial contract” in society. He stated that a racial contract existed in society even before the social contract theory was introduced. This racial contract talked about the position of non-whites in society. It gives priority to moral theory. The racial contract first determines whether a person is moral by checking the standard criterion of morality. If a person passes to be moral, it is only then that he shall be eligible to enter into a social contract.
Reflecting the racial contract theory, Mills stated that the social contract theory only considers white men as ‘moral.’ Thus, the social contract theory only divests privileges, freedoms, rights, and equality to white men. Non-whites, just like women, are denied these privileges, rights, freedoms, and equal status in society. The nature of society in the 19th century was highly detrimental to women’s rights and legal status, as well as to people of color. These people were not allowed to enter into social contracts, or legal contracts as they were not regarded as important enough to do so. In a society like this, the social contract theory brought further divisions while it was supposed to bring equality. The American social contract theory became a means through which white Americans could exert their power and superiority in society. Globally, the social contract theory made superior classes even more powerful and weaker classes’ struggles increased. The social contract theory talked about rational men in society surrendering their powers to a sovereign authority for equality and better governance, but in reality, political power and influence of affluent classes of society increased under the social contract theory.
Mills reflected upon the idea that people’s belief in equality and freedom under the social contract theory will become the reason behind the continued plight of certain sections of society. Racism and other inequalities exist even today because of the deformative social contract theory inculcated into people’s minds and society in the past. The social contract theory has hidden the political reality from people in society. It portrays equality and equal rights for all but in reality, only the powerful and privileged get access to these rights and freedoms. Therefore, Mills argued that rather than the social contract theory, the racial contract theory is more effective. It not only enhances morals and values in society but also accords political rights, freedom, and equality to all.
Social contract theory in the 21st century
The social contract theory in the 21st century is primarily based on the economy and GDP of states. People in society are divided into- workers, consumers, and savers. This economy-based society is a result of the evolution of the social contract theory over the years. While the evolved social contract theory has benefitted some sections of society, some others have been a victim of it as well. The social contract theory is a broad concept that includes social, economic, and political dimensions to it while including morals, justice, and governance. The American social contract theory in the 21st century has been dominated by economic, political, social, and technological dimensions of it. Laws, regulations, and sovereign governance have been the basis of the social contract theory from its inception. While they continue to govern the social contract theory in the 21st century as well, there have been conflicting opinions about certain laws and regulations as certain sections of society suffer.
Mentioned below are certain laws in the US under the governance of the American social contract theory that has been debatable over the years:
Gun violence in the US
Gun control laws are one of the most debated laws in the US. Nearly 40,000 people are killed every year in mass shootings and gun violence in the US and the graph is increasing every year. The US Constitution Second Amendment rights have vested US citizens with the right to keep and bear arms. Thus, the US Government is restricted from interfering with civilians’ right to bear arms.
Thomas Hobbes’s social contract theory stated that men are incapable of self-governing and thus, they must be governed by a sovereign authority. Hobbes stated that for this reason, men must surrender their powers to sovereign authority. However, men must not be deprived of their rights to self-protection and self-preservation. Hobbes believed that every individual must have the right to protect oneself. This theory of Hobbes is in alignment with the Second Amendment right of bearing arms for self-defense. Hobbes’s theory seems justified in the 19th century but it is leading to potential threats to life in the 21st century. In 2014, the US Violence Policy Center reported that only 3% of total gun violence in the US was attributed to self-defense. Therefore, it is evident that laws and regulations are rather contributing to crimes in society and a significant portion of the population is suffering due to this.
This is a failure on the part of laws, regulations, and the government in protecting people from evils in society. The government’s failure to enact laws for protecting people has resulted in the failure of welfare in society. This seems to be like going back in time, to the times of the ‘state of nature’ where people suffered due to inherent evils in society. It is now up to the government to alter laws in a way that protects people’s rights in society and prevents crimes like mass killings and gun violence.
Abortion rights in the US
Abortion rights have been one of the most controversial issues in the USA. The 1973 judgment of Roe v. Wade which legalized medical termination of pregnancy in the US, came after a long struggle involving feminist movements, rallies by social activists, etc. Fifty years later, in 2022, the judgment has been overturned by the US Supreme Court in Dobbs v. Jackson Women’s Health Organization which took away the fundamental right status of right to abortion. This precedent vested rights and responsibilities on each state to make their own laws relating to abortion. While some states like Texas and Alabama banned them entirely, other states like Washington D.C., and Alaska continue to legalize abortion without any gestation limits. Some states continue to allow abortions with varying gestation limits or viability, for instance, California allows abortion as per the viability test, and Nevada allows it till 24 weeks of pregnancy. Thus, abortion laws now depend on which part of the US a person lives in.
It is a sorry state of affairs where a progressive and global leading country has given a regressive judgment denying women the right to bodily autonomy. The judgment takes back women’s position in society to centuries ago and all the feminist movements, and activists’ efforts are put to vain.
Abortion rights have not yet been recognized as a human right under international human rights. Traditionally, women suffered from strict laws that did not allow them to make their own decisions and make their own choices. The Universal Declaration of Human Rights is the primary advocate for international human rights and Article 25 of the UDHR talks about basic health as a human right of every individual. It talks about the highest attainable standards of health. But abortion rights have yet not been recognized within the ambit of Article 25 of the UDHR.
These regressive decisions rightly point out the negligence of the social contract theory towards women’s plight and their conditions in society.
Debates surrounding abortion rights in the US take two forms: pro-choice and pro-life. People who support abortion rights for women debate as pro-choice to women’s rights and bodily autonomy whereas pro-life talks about the rights of the unborn child. Abortion rights are banned in about half of the US, giving autonomy to states for making their own limitations and laws. But the state laws banning abortion fail to recognize the right to life of the woman and her choice who is also an individual equal before the eyes of the law. While pro-life believers argue in a philosophical note that it is immoral to take a life (unborn child’s life), they often neglect the right to life guaranteed to the woman carrying the child. This is where the American social contract theory is mostly believed to have failed women’s rights in society.
The American social contract theory has been criticized to be of a nature that allows gun violence but does not allow women the right to terminate a pregnancy. While Hobbes stated that every individual must have a right of self-preservation without any governmental interference, the same has not been accorded to women in the US. Therefore, this is often pointed out as a paradox in the American social contract theory. As per the traditional elements of the social contract theory, abortion rights should be guaranteed to every woman in society on moral, philosophical, and social grounds. The pro-life debaters state that since the right to life is an element of the social contract theory, killing a fetus is wrong and immoral. Thus, the debates continue for centuries and opinions continue to be divided on this issue.
It is the duty of the laws, regulations, legislation, and government to protect the rights and interests of every individual in society. The moment they fail to do so, the system can be said to have become irrelevant to the people’s needs and changing societal dimensions.
American social contract theory was inspired by the social contract theories propounded by Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. The American social contract theory’s ideologies were later incorporated into the US Constitution and inspired other legislation in the US. Roots of these were planted by Hobbes, Locke, and Rousseau’s social contract theories. Hobbes was the first philosopher and sociologist who took it upon himself to bring changes in people’s minds and the political scenario of society, which was earlier ruled by the theory of divine rights of the king. The king was considered all-powerful whose decisions and rules could not be questioned by people. Thus, came the social contract theory that aimed to change society and it did. The social contract theory was carried forward by John Rawls and David Gauthier in the contemporary world. A gradual and jolted shift was made from the king’s divine rights theory to a society governed by laws, regulations, and a government whose powers are reasonably restricted.
Frequently Asked Questions (FAQs)
How was the social contract theory implemented in America?
The social contract theory of ‘rational people,’ ‘organized government,’ and ‘sovereignty’ inspired the social contract theory in America. American social contract theory inspired the American Declaration of Independence and other legislative reforms in the state.
What is America’s approach to the social contract theory?
America and its government give greater importance to the social contract theory since it determines the rights and obligations of the government towards American citizens. The US Constitution’s social contract determines moral and political obligations in the state which every resident and citizen is bound to oblige.
Which principle of the US Constitution is derived from the social contract theory?
The US Constitution is entirely based on ideologies of the American social contract theory. The principle of the ‘rule of law,’ ‘natural justice,’ ‘equality,’ and other rights and freedoms in the US Constitution are derived from the social contract theory.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: