File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

The Origin of State: A Comparative study of Social Contract Thinkers

The social contract theory is one of the theories of the origin of the state. It has been emerged since the time of the sophists of the Greece but it has got recognition in the hands of the great trio. The name of these great philosophers were John Locke, Thomas Hobbes and Jean Jacques Rousseau.

The term social stands for the society where these individual persons live and the term contract is an agreement or a promise made between the two or more individual and a groups/society. There were many other theories of the origin of the state but the social contract theory has explained the origin of state in a systematic manner.

This theory states that the society or the state came into being by a contract that was made between the individual and the society or the contract that was made amongst the individual people. It states that the conditions in the state of nature at some point became worst and to come of this situation the people entered themselves into a contract and according to this contract the people will surrender some part of their right to the sovereign.

According to Hobbes people will surrender all their rights to the kings and king will not be a part of the contract, the king will be all sovereign whereas Locke says that the people will surrender only a part of their right to the king and is also a part of the contract and the people will have the right to change the king if he fails to fulfill his duties and Rousseau talks about the General Will, it is not the will of all nor it is the will of the majority but is a general will is the will of the people for the common good.

Elements of the Social Contract
There are two principal elements to the social contract. The first is an initial pre-political situation called a state of nature by the modern philosophers and the Original Position by Rawls, the most significant contemporary exponent of social contract theory.

In this initial situation, all individuals are equal, they are all situated symmetrically relative to one another, and they all have some incentive to leave the initial situation in favor of some relative advantage gained by entry into civil society. The second element is a normative characterization of the parties to the contract.

The parties are described as:
  1. Motivated by self-interest, in as much as they will only agree to the contract if they perceive that they will benefit from social interaction;
  2. concerned for the welfare of others, if only because they recognize that the advantages they expect to derive from the social contract will be conditional on their willingness to guarantee the same advantages to their counterparts; and
  3. rational or reasonable with respect to the way they understand their own interests, the interests of others, and the just or moral principles that ought to govern their pursuit of those interests.

But this theory of social contract has been criticized from the historical point of view, it is not acceptable. History does not give a single evidence which could indicate that there was a stable society. This theory is illogical and baseless. The progress of the society has been from status to contract, contract is not the beginning but the end of society. The contract cannot be made by only one party as one sided contract as expounded by Hobbes. The relation between individual and the state is not by contract but by birth.

Starting Point Perspectives On The Relationship Between Politics And Law
Law and politics as social phenomena are two emanations of the same entity (a monistic ontological conception), regarding which their separate existence is only a consequence of a human dualistic or pluralistic perception of the world (a dualistic ontological conception). Furthermore, the difference between law and politics is, from a deeper ontological perspective, in fact only illusory, for reason of which also in the fields of legal and political theory and philosophy there are conclusions regarding the partial or complete overlapping of law and politics, sometimes even the equating of the two that raises a crucial question of how both notions are defined. Regardless of such findings, the distinction (i.e. consciously persisting in a distinction) between law and politics at the current level of human development is necessary and indispensable.

The Static And Dynamic Nature Of Modern Law
Goethe once said "all periods that regress and decay are subjective, while periods of progress have an objective orientation."21 While it is true that this oscillatory and dualistic perception of the world does generally accompany human development, this or any other bipolarity is, in the holistic sense, merely illusory. In the creation and study of the law, it is always necessary to rise somewhat above the current time and space to see social fluctuations as only a reflection of a general law of relativity which pervades the human world.

In this case, it is not a matter of emphasizing the conservative nature of the law mentioned earlier, but emphasizing the requirement for the law to have a stabilizing function that does not allow the law to succumb to excessive one-sidedness, for instance, being excessively programmatic. However, this can only be achieved by establishing an appropriate balance between the static and dynamic aspects of the law

Differences Between The Law And Politics
In general, it can be concluded that law and politics are similar in their general normative orientation towards ordering societal relations. Within this framework, their search for an appropriate or just distribution of social statuses and goods depend on the standpoints of the given ruling elite at the level of political and legal decision making. Law and politics are similar in that both resort to certain ideological definitions of their value-related objectives, which are at the highest abstract level often even identical.

Within the framework of democracy, for example, the state based on the rule of law, constitutionality and legality, human rights and justice. However, in the process of conceptualization they often grow increasingly different. In concrete cases, the law often applies the principle of the state based on the rule of law, the principle of justice, or a certain human right differently than politics. Besides this, there also exist specific political values, which essentially differ from legal values (e.g. the value of affiliation or loyalty to a certain political orientation).

The Question of Origins
At the domestic level, social contract theory is perhaps most susceptible to criticism with respect to the question of Origins. Because no living person has ever experienced an initial situation like the state of nature or the original position, there is good reason to be skeptical about the state of nature as a literal account of the origin of sovereign power.

This objection, most prominently associated with David Hume, holds that the initial situation of social contract theory can only be sensibly invoked as a hypothetical situation, as a thought experiment that establishes a context within which the parties to an agreement are most likely to act rationally or reasonably. It was in this vein, that Hegel characterized the social contract as following from principle (pure thought), which he distinguished from the historical conditions under which the state and its laws developed. How a state was created Hegel maintained, has nothing to do with philosophy.

One of the striking features of the relations between states, as opposed to the relations between associates within a state, is the extent to which they occur in a context that seems to more closely resemble the state of nature metaphor. While, as we will see, the problems associated with social contract theory on the questions of Justice and Legitimacy are only exacerbated by extending social contract theory to the international context, the international context actually has some advantages with respect to the question of Origins in general and to the Humane objection in particular.

Prior to the establishment of international laws or treaties, states are situated toward one another in two ways that mirror the Lockean or Hobbesian state of nature.
First there is no authority that stands above the parties to any putative treaty or international agreement.

Second, the enactment of any such agreement is based on the explicit consent of the relevant parties, not the tacit consent that Locke was forced to have recourse to in response to the problem identified at the beginning of this section, Every Man, that hath any Possession, or Enjoyment, of any part of the Dominions of any Government, doth thereby give his tacit Consent, and is as far forth obliged to Obedience to the Laws of that Government.

The Questions of Justice and Legitimacy
While the international arena is better suited to social contract theory with respect to the question of Origins, it poses particular challenges with respect to the questions of Justice and Legitimacy. In particular, the international arena violates the basic presupposition of the social contract theory that individuals be as Locke put, promiscuously born to all the same advantages of nature, and the use of the same faculties, should be equal one amongst another.

The social contract's arguments for Justice and Legitimacy presuppose that the parties to the contract will be relatively equally and symmetrically situated with respect to one another. It is this constraint that ensures that the substantive principles that inform the contract will be reasonable, equitable, symmetrical, and so forth. Likewise, it is this constraint that ensures that any authority empowered by virtue of the contract will exercise its authority without favor or prejudice.

This problem is particularly acute at the international level, by consequence of the vast differences between states, especially with respect to their relative wealth and power. However many critics of social contract theory have argued that the problem occurs at the domestic level as well. Particularly noteworthy are those arguing from the feminist perspective (e.g. Carole Pateman's The Sexual Contract) or from the perspective of critical race theory (e.g. Charles Mills, The Racial Contract). These critics argue that racist or patriarchal assumptions are built into social contract theory's claims with respect to the nature of rationality or the substantive principles of justice.

Earlier critics of social contract, such as Rousseau and Karl Marx raised concerns about the assumptions of equality and reciprocity that give the social contract its appeal. Rousseau originally referred to the social contract as the rich duping the poor (though he later articulated his own egalitarian version). Marx describes it as part of the ideology of capitalism, used to legitimize the ongoing exploitation of the working class by the bourgeoisie. Because the assumption of equality is so problematic at the international level, the attempt to apply social contract theory to that arena serves to further illuminate critiques like Rousseau's and Marx's, which emphasize how the morality of the contract is subverted when agents are not equally and symmetrically distributed.

The problem of asymmetry becomes particularly acute at the international level, where there is and, for much of recorded history, has been a tremendous discrepancy in power among parties to any putative law of peoples. Rawls avoids this problem by beginning from an assumption of rough equality between the parties to the second level original position, an assumption which is, of course, highly questionable, particularly in the current geopolitical context, in which one state exerts tremendous power over most, if not all, of the others.

Beyond the problem of inequality, there are other obstacles to using states as proxies for moral persons in the process of enacting an international social contract. Many states, for example, do not adhere to fundamental moral principles with respect to the way they treat their own people. This makes it unlikely that they would reason in accordance with the principles outlined in Section II. If tyrannical regimes treat their citizens shabbily or cannot or will not represent all of their citizens equally at home, it is unlikely that they will carry norms of equity and reciprocity into international relations.

Conclusion
On the whole, while the social contract theory has been relevant to the explanation of the essence of government as well for theorizing of democratic principles in modern state systems, it has faced certain criticisms, is said to have argued that the social contract theory is not founded on any historical evidence.

In our view, there is no validity of the assumption that men originally lived in a so called state of nature, and then they thought of creating political institutions by mutual agreement to establish order and security. Accordingly, the societal movement is argued to have been from one status to one of contract.

Thus, in primitive society, membership of a social group determined the status of an individual. Life of man was governed by customs at the various level of grouping: family, clan, tribe etc. Law, sovereignty and political institutions were said to have grown from this process in a very slow and gradual manner, not by a compact of freely contracting individual. Postulations of natural liberty and natural rights in the state of nature is said to be out of logic.

One, argues that rights are the products of a developed social consciousness and are enforced by institutionalized law, they could not have existed in the earliest state when political awareness and institutionalized law were totally absent. Moreover, some arguments against social contract theory are about its binding force on generations of men that were not part of the initial arrangement.

In any case, the doctrine of the social contract played a historical role by providing for a theoretical justification for the new pattern of human relations necessitated by the emergence of the capitalist society.

The law and politics create their own particular pictures of reality. None of these pictures correspond to reality as such, which is an inseparable unity beyond our human comprehension. However, both particular pictures are of utmost importance for our societal life. Sometimes they overlap, and sometimes they differ, more or less strongly. Yet, there is something that the law, either national or international, should never include in its sphere.

Namely, the differentiation of adversaries according to a genuinely political criteria, which leads to a strict separation between "ours" and "yours", or, in its most radical expression, to a strict separation between friend and enemy. The ideal of Justice, often presented in a statue of a woman with blindfolded eyes and scales in her hand, must always remain the fundamental guiding principle of the law, and especially of judges and other lawyers, who must never allow themselves to comprehend the parties in conflict - either individuals, or different legal entities, including states and international organizations - as enemies.

When the latter occurs, politics inevitably prevails over the law, and the judge or any other person who thinks and feels in that political-ideological way causes, in proportion to their social rank and power (influence), serious damage to the autonomy of the rule of law. This is, in turn, destructive for the democratic society and international relations and must be as such avoided or appropriately confronted to the highest possible degree.

References:
  1. Burton, SJ.: An Introduction to Law and Legal Reasoning, Little, Brown and Company, Boston - Toronto 1985
  2. Habermas Jiirgen: Between Facts and Norms. Polity Press: Cambridge 1997.
  3. Cassese, Antonio: International Law, 2nd Edition, Oxford University Press, New York 2005.
  4. Immanuel Kant, The Metaphysics of Morals
  5. Rousseau, The Social Contract in The Collected Writings of Rousseau,
  6. Charles R. Beitz, Political Theory and International Relations (Princeton University)
  7. John Rawls, A Theory of Justice (Harvard University)
  8. David Hume, Of the Original Contract,
  9. Hegel's Philosophy of Right.
  10. John Locke, The Second Treatise of Government in Two Treatises of Government (Cambridge University Press, 1988)

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly