University of Virginia Library

The Age of Social Contract. With the English Civil
War begins the century and a half in which Social
Contract theory was most predominant. The reasons
for this are not hard to find when one considers the
problems which men sought to solve by this method.
These were usually concerned with the origins and
legitimacy of government, and the vital question of
when governments might rightfully be disobeyed. It
was such issues which were directly relevant in a pe-
riod encompassing the English Civil War, the estab-
lishment of new communities in North America, the
English “Glorious Revolution” of 1688, the American
Revolution of 1776, and the French Revolution of 1789.
The major long-term consequence of these various
upheavals was the practical inauguration of the liberal
democracy which still predominates in Western society
today. Though our modern state system may have
arrived by force of arms, the values associated with
it were only considered secure once it had won the
philosophical battle against its predecessors. It was
here that the idea of Social Contract played a crucial
role.

Perhaps we should consider whether the framework
in which obligation to obey government is presented
may not logically impel the theorist towards a certain
limited range of conclusions. At first sight such a sug-
gestion seems implausible, as the various values held
by Social Contract theorists cover such a large area
of the political spectrum. However, we must note that,
whatever their differences, Social Contract theorists
did hold some assumptions in common. One of the
major presuppositions implicit in this particular ap-
proach concerns the degree of man's possible control
over his environment. It seems that users of the Social
Contract method are disposed towards viewing society
as artificial rather than natural, primarily as being the
work of man rather than of God or of Nature. In
consequence, we often find those who accept this
method having an attitude towards religion somewhat
at variance with that of their opponents. They see the
world of man as deriving from man's own will, rather
than being merely the expression of external forces.
This is certainly not to say that people holding such
views were atheists, even if their opponents occa-
sionally regarded them as such, for belief in God does
not necessarily imply His being given a continuous
central role in the human drama.

Coupled with belief in the human creation of society
is the strong emphasis placed on the idea of consent.
Contract is presented as a voluntary agreement of those
who will be bound by the rules of the system they
establish. In this we see the emergence of our contem-
porary notions of individual freedom and the self-
determination of peoples, for the implication is that
the authority of the system derives from the free con-
sent of those who compose it, rather than from the
commands of God or king. In this sense the contract's
radical function was as a justification of the breakdown
of the “descending thesis” of government. Although
Richard Hooker accepted the view that some kings
might possibly rule by divine right, his view was the
exception rather than the rule among Social Contract
theorists. More typical was the attack on divine right
made by Locke in the first of his Two Treatises of
Government.

Connected with belief in the importance of consent,
we tend to find the notion of the individual as the
possessor of certain inalienable rights, which the con-
tract is intended to secure, and which the state should
not infringe. This is the manner in which contract
reinforced arguments for limiting government and
exalting the individual, and was the basis on which
resistance was considered justified against those gov-
ernments not abiding by the terms of the supposed
contract.

In postulating natural freedom and natural equality,
in providing a basis for the notion of merely conditional
obedience to government, the Social Contract was used
as a framework for a theory that had potentially dis-
ruptive implications for any society with a predomi-
nantly aristocratic power structure. The emphasis on
government by consent made Social Contract a
weapon against not only the divine right of kings, but
against any form of absolute government. As good a

justification of government by consent as we are likely
to find was provided by the Leveller Col. Rainborough:

(Clarke, p. 301).

To base obligation on consent may not have been
original, but it was still a highly radical proposal in
the hierarchical societies of seventeenth-century
Europe.

However, the full scope of the theoretical poten-
tialities of Social Contract was rarely apparent to those
who used the method. What to us may sound like the
thin edge of a democratic wedge did not always con-
tain such implications for the men of the seventeenth
century. Government might be said to rest on consent,
power might be thought of as deriving from the people,
but in such instances all that was meant was that the
wealthy and influential classes might provide a curb
against the possible excesses of the monarchy. Rarely
was it suggested that the laboring masses of the popu-
lation also possessed full natural rights. “The people”
connoted those who were habitually regarded as en-
titled to take part in the political process, and no
others. This political assumption again is correlated
with contemporary religious views. Thus, the New
England Puritans clearly distinguished between their
own congregation and the unregenerate remainder of
mankind. The right to liberty was thought of in terms
of rights for their own religious liberty, rather than
as rights for all men irrespective of their religious
beliefs. Yet, if these various groups had no intention
of formulating a theory of popular sovereignty, that
was just the way that others were eventually led by
the logic of their anti-absolutist argument. Not for the
first time in the history of thought did works of philos-
ophy become associated with movements which their
authors would have rejected.

So we see that consent need not imply democracy
unless consent refers to the consent of all concerned.
In the same manner Social Contract need not neces-
sarily imply liberal democracy unless the contract is
given liberal democratic terms. It has been argued that
this was the general tendency during the seventeenth
and eighteenth centuries. This, however, should not
blind us to an important counter-current, the most
notable example of which consists of Hobbes' revival
of the contract of subjection. In his Leviathan (1651)
Hobbes contended that men should regard government
as if they had made a contract with it, of such a kind
as to

(p. 89).

This surrender of rights, this establishment of almost
uncontrolled sovereignty, is not advocated as a unilat-
eral individual act. It is a contract only to be made
by “every man with every man.” Behind the much
criticized absolutism of Hobbes is the basic belief that
peace and security are the initial prerequisites of
human society, and are to be pursued even at the cost
of certain individual freedoms. The State of Nature
is so disadvantageous that extreme measures are justi-
fied in saving mankind from relapsing into it. Whereas
contract had usually been regarded as a means of
limiting sovereign power, with Hobbes such power is
placed outside the restraints of contract. The people
make an agreement with each other, but not with the
sovereign. This is a logical derivation from Hobbes'
belief that “Covenants, without the Sword, are but
Words, and of no strength to secure a man at all.”
Agreements are only valid when there is a superior
power to enforce them. In the State of Nature cove-
nants are void, for there is no power to enforce com-
pliance. In civil society, there can be no agreements
with the sovereign, because there can, by definition,
be no superior power to enforce obedience. Thus the
sovereign is still in the State of Nature in respect of
his relations with the society he rules. He is not bound
by any obligations to the people. Thus

That Hobbes' views clashed violently with the more
general “spirit of the age” is evident from even the
most cursory acquaintance with late seventeenth-
century opinion. Conservatives were offended by
Hobbes' neglect of divine right, whilst radicals rejected
his absolutism. Somewhat similar hostility greeted
Spinoza's Tractatus theologico-politicus (1670), a work
strongly influenced by the writings of Hobbes, and in
which Spinoza held that “the sovereign is bound by
no law, and that all citizens must obey it in all things.”
Such a contract of submission was again based on the

need for defense against insecurity, and was presented
as a necessity “advised by reason itself.”

In spite of these pronouncements, the individualist
and democratic kernel of contract theory could not
be entirely ignored. Hobbes may have written of the
individual surrendering all rights of governing himself,
and of his authorizing all the actions of the sovereign,
even to the extent that “every Subject is Author of
every act the Soveraign doth,” yet he only applied this
within the limits imposed by Natural Law. Thus certain
rights were maintained by the individual, and situations
were envisaged in which disobedience to the sovereign
was justified. First, man was at liberty to disobey if
the sovereign command him to kill himself, as this was
contrary to the Law of Nature “by which we are
forbidden to do anything destructive of our own life.”
Second, he need not allow other men to kill him, even
though the sovereign demand it, for the Right of Na-
ture stipulates “the liberty each man hath, to use his
own power, as he will himselfe, for the preservation
of his own Nature.” Likewise, a man interrogated by
the sovereign concerning a crime he has committed,
is not bound to confess, for there is a Law of Nature
that “no man... can be obliged by Covenant to accuse
himselfe.” Finally, the obligation to obey the sovereign
is conditional upon the provision of security, for which
purpose government is established. Thus, the apparent
total absolutism of Hobbes is limited within the indi-
vidualist demands of Natural Law. This is not to say
that the individual is granted explicit rights of resist-
ance against the sovereign, but merely that circum-
stances are envisaged in which obedience is neither
obligatory nor rational.

In spite of these individualist concessions, is the
Hobbes-Spinoza position one which enables us to deny
any logical connection between contract and democ-
racy? I would argue not, and would assert the contrary
proposition that their position actually highlights an
important paradox in democratic theory. In spite of
the apparent surrender of numerous rights to a nearly
unlimited sovereign, we must bear in mind that the
resulting condition is still one of voluntary contract,
representing a definite choice by the members of soci-
ety. That this choice is a strange one, that submission
may not seem a particularly worthwhile action, is not
denied. Choice is still choice, whether other people
find it rational or not. Social Contract theory, being
based on consent, may support all manner of values
that the people might hold. In exactly the same way
democratic elections may be the means by which the
widest conceivable range of governments come to
power. This wide range of conceivable contracts, how-
ever, does not mean that Social Contract theory has
no specific values attached to it. The right to choose
is a value, even though shared basic premisses may
lead to widely divergent conclusions. Belief in the right
of choice does not logically provide a limitation of the
range of choice. The difficulty occurs if we envisage
a situation in which the people may choose not to
choose. The contract of submission can be a self-
annihilating contract, in the same way that freedom
to commit suicide can be a self-annihilating freedom,
or the choice of Bonapartist or totalitarian govern-
ments can be a choice annihilating use of democratic
rights. The contract of submission, then, is an extreme;
it is an act of voluntary surrender on a par with the
democratic choice of governments which destroy de-
mocracy. Freedom, at its full extent, includes the
freedom to extinguish freedom. This paradox is shared
by both Social Contract theory and democratic theory,
and as such serves to demonstrate their similarities
rather than their differences.

In spite of Hobbes and Spinoza, it is generally true
to say that by the end of the seventeenth century those
writers who were most virulent in their attacks on
Social Contract were also those who held basically
antiradical views. They rejected the presumptuous
notion that man could have been the creator of the
imposing hierarchical edifice of society. The views
previously forwarded by James I of England, that the
people could not limit monarchy, that rule was by
hereditary right according to the will of God, and that
God was the only judge of whether the coronation oath
had been infringed, were all sympathetically revived
in the writings of Sir Robert Filmer. In his Patriarcha;
or the Natural Power of Kings (1680), Filmer argued
that monarchy was natural rather than conventional.
Royal power derived from paternal power, as granted
at the creation by God to Adam. Since that time this
power had been transferred by hereditary right to the
various sovereigns, who are regarded as Adam's heirs.
The power of the sovereign, then, derives from God,
and can in no way be limited by the king's subjects.
Natural equality and freedom were condemned as
contrary to biblical evidence, as were “such imaginery
pactions between Kings and their people as many
dream of.” Leaving aside the weighty question of
historical evidence, Filmer asks whether the contrac-
tual act could be considered plausible. Was it likely
that men in a State of Nature could ever agree on the
form a contract was to take? Were they to do so, why
should their terms be binding on subsequent genera-
tions? All in all Filmer regarded the idea of contract
as practically implausible, socially pernicious, and the-
ologically heretical, views which were readily received
by the more conservative sections of English society,
and which John Locke attempted to refute in his fa-
mous Two Treatises of Government.

In 1688 the Convention parliament had passed a
resolution declaring that King James II of England had
“endeavoured to subvert the constitution of the king-
dom by breaking the original contract between king
and people.” It was Locke's intention to justify the
so-called “Glorious Revolution” which deposed King
James, thereby to “establish the Throne of Our present
King William; to make good his Title, in the Consent
of the People.” This required the justification of con-
ditional rights against the monarchy, and the rejection
of Filmer's belief in the divine right of kings. To do
this Locke meets Filmer on his own ground, the writ-
ings of the Old Testament. Both men fully accepted
the Bible as historically accurate, Locke merely claim-
ing that Filmer had misinterpreted the texts. In Locke's
view

In addition, there is no divine law of primogeniture,
nor is there any evidence that the monarchs of the
world were actually descended from Adam. In reply
to Filmer's rejection of contract, Locke manages to
disprove Filmer's argument on divine right.

As a replacement for it, Locke takes a position
characteristic of Social Contract theory, that civil so-
ciety has been consciously constructed by men. This
presupposition is fully accepted as a fact of history,
no less true for being unrecorded, and no less important
for being of long vintage. In reply to the appeal for
evidence of an original State of Nature, Locke provides
an explanation, ingenious rather than convincing,
which amply demonstrates his faith in reason as the
key to historical knowledge. Thus

With regard to the consequences Locke draws from
contract, they certainly would have appeared perni-
cious to those sharing Filmer's approach. With Locke
the act by which individuals mutually agree to leave
the State of Nature is referred to as a “compact.” It
is only consent “which did, or could give beginning
to any lawful Government in the World.” Meaningful
consent, however, is confined to history, for after the
creation of society consent becomes tacit rather than
explicit, and is signified by mere residence within the
territory of a government.

Locke clearly differentiated the origins of society
from the establishment of government, a point he
might have learned from Pufendorf's De jure naturae
et gentium (1672). Pufendorf saw society as resting on
two covenants and a decree. The first covenant forms
society, the decree settles the particular form of gov-
ernment, whilst by the second covenant sovereign
power is constituted. Locke accepted the importance
of differentiating between society and government, but
explained it in rather a different way. The agreements
embodied in compact are of a character in which all
sides are equally bound. Locke found this type of
agreement eminently suitable to describe his notion of
the social relationships of mankind, but quite unsuit-
able as a description of the strictly political relationship
that he wished to advocate. For Locke the people and
their rulers were not on a par, not equally bound by
arrangements made between them. Rather, he believed
that the government was the servant of society, bound
by the provisions for which it had been constituted
by the people. To express this relationship Locke made
use of the common seventeenth-century notion of
“trust.” The main obligation this entails is that the
government should serve to implement the will of the
people. Its role is, therefore, passive; it forfeits its
legitimate authority when it formulates a will of its
own, and seeks to distort, alter, or silence the voice
of the people.

This explains why the notion of contract was only
of limited use to Locke, why he sought to differentiate
the inauguration of society from the establishment of
government, and why he has come to be regarded as
a radical. If security is to be maintained in the general
interest, then the people must be dominant. If the
people are to be dominant, the government must be
subservient. A contractual relationship would have put
the rights of the government on a par with those of
the ruled, whereas one of trust stipulates their sub-
servience. Thus rule is exercised on the people's terms,
the way apparently being left open for the creation
of the conditions they desire. When a breach of this
trust occurs, power quite simply “devolves to the Peo-
ple,” for “Governments are dissolved... when the
legislative, or the Prince... act contrary to their
trust.” This conditional right of resistance is Locke's
justification of the events of 1688.

If “trust” is used to limit arbitrary power, “compact”
is used to delineate the proper scope of government.
This is done by means of his description of the State
of Nature. We have already mentioned that the State
of Nature, in describing man prior to government,
serves to demonstrate what man owes to government.
With Hobbes man owes virtually everything to gov-
ernment, his security, trade, culture, and knowledge.
With Locke this is not so. Locke's vision of the State
of Nature includes a market economy, wage labor,
large landed estates, and the use of money. The only
thing men lack is a “common Judge to Appeal to on
Earth for the determination of Controversies of Right
betwixt them.” The function of proposing such an
implausible situation is to stress that economic activity
and the basic rules of personal relationships do not
derive their impetus from the state. His positing a
tolerable pre-political condition derives from an atti-
tude in which government is seen as of merely supple-
mentary importance. The function of the state is not
to control the economy, but rather to ensure conditions
of safety in which a presumably self-regulating econ-
omy can operate. Similarly, the function of Locke's
placing freedom in the natural pre-social stage is to
demonstrate that this freedom does not derive from
government, which merely guarantees it. Thus, Locke's
positing of natural rights, of property accumulation
prior to the social compact, and of the limitation on
state power imposed by the notion of trust, are all
intended to protect the individual from the encroach-
ments of governmental power.

The complete rejection of the contract of govern-
ment is also found in Rousseau's Du contrat social
(1762). Here it is made clear that only the establish-
ment of society can be based on a contract, for the
role of government is one that precludes them from
a position of being able to bargain with the people.
Sovereign power belongs to the people, the govern-
ment merely being their servants, and having no right
to complain about their conditions of service.

(The Social Contract, trans.
M. Cranston, p. 102).

We noted with Locke how the solely social contract
was a means of alleviating fears of governmental tyr-
anny. A similar purpose was obviously shared by
Rousseau, who took numerous opportunities of ridicul-
ing the contract of subjection, which he associated with
Hobbes and Grotius. Such an act he saw as sheer
madness.

(ibid.,
pp. 54, 58).

Thus far it might appear as if Rousseau and Locke
had both used Social Contract for the same purpose
of securing individual rights. This, apparently, was
Rousseau's purpose. The object of the Social Contract,
he told us, is to

(ibid., p. 60).

Rousseau differs from Locke in that he does not
allow the people a right to decide the terms of the
contract, for these are invariable, being logically
determined by the problem they are designed to solve.
Thus the contract can be revoked, but not amended.
Its institution requires unanimity, and its terms allow
the body politic absolute power over all its members.
It also involves the total alienation of the individual
and his property to the community.

However, the contract itself is not dominant in
Rousseau's overall plan. Once it has been concluded,
it sinks into a place of secondary importance. Its major
function is then seen as the means by which the people
consent to the condition, not of liberal individualism,
but of extreme social cohesion guaranteed by adher-
ence to the General Will.

The General Will expresses the common interest of
all the citizens. It is what each individual would will
if he saw what his real interests were. It can be arrived
at when the correct attitude of mind is displayed, when
men manage to subordinate their personal and sec-
tional interests. Such an achievement is not a mark
of high intellectual endeavor, but merely of simplicity
and honesty, such as Rousseau assumed to exist among
the Swiss peasantry. It was rather in the inane sophis-
tication of urban society that men made government
more complex than need be, by giving their own selfish
aims priority over the good of the whole community.
If such people can learn to will the General Will, so
much the better. If not, Rousseau suggested, they “will
be forced to be free.” This apparent contradiction is
explained by pointing out that all people really want
to follow their best interests, without always knowing

what they are. To allow them to follow a false path
would be to deny them their aim, and so decrease,
rather than increase their freedom. The assumption
behind this is that the good of each individual is to
be found within the General Will. Society as a whole
is given overwhelming predominance over its parts.
All is merged within the General Will.

Such a theory has led to the plausible suggestion
that in guarding against the dangers of the govern-
mental contract of subjection, Rousseau had unwit-
tingly replaced it with a Social Contract of subjection.
Rousseau would argue that man, being a member of
such a society, could not be in a state of subjection
to it, for the body cannot wish to hurt its parts. The
Social Contract, by placing sovereignty in society,
ensures rule in the interests of society. This is in con-
trast to a governmental contract, which, in granting
sovereignty to the government, thereby ensures rule
solely in the interests of the government.

At this point we must note that, unlike Locke,
Rousseau did not regard the contract as a historical
reality. Rather it was an “ideal,” an arrangement that
would have to be made were political right to be
instituted. Hobbes had likewise suggested his system
as an “ideal,” but was far more optimistic regarding
its practical inauguration. “I recover some hope,” he
wrote, “that one time or other, this writing of mine,
may fall into the hands of a Soveraign, who will...
convert this Truth of Speculation, into the Utility of
Practice.” Rousseau had no such hopes. Men might
strive after his ideal, but were destined never to reach
it, for individual wills are always threatening to under-
mine the dominance of the General Will. “The body
politic, no less than the body of a man, begins to die
as soon as it is born, and bears within itself the causes
of its own destruction” (ibid., p. 134). Du contrat social,
then, is not a call to arms. It is a criticism of existing
states, the portrayal of an ideal, carrying little hope
that the ideal will be put into practice. Rousseau's
influence, however, was considerable, his theories
having been frequently invoked by Robespierre and
Saint-Just during the French Revolution. However, it
might be thought that their attempts to establish an
ideal political order merely served to confirm
Rousseau's warning, found in The Origin of Inequality:

With Rousseau the line of major Social Contract
theorists came to an end. Belief in contract continued
into the nineteenth century, but its significance was
greatly decreased—alternative grounds for political
obligation being considered preferable. However, the
notion, increasingly discarded by the political philoso-
phers, was still found useful by practicing politicians,
and nowhere more so than in North America. It was
here that belief in the historical validity of contract
was most firmly and plausibly rooted, and here also
that, in the second half of the eighteenth century, the
problem of obligation to government was most clearly
at the forefront of political concern. The writings of
this period abound with accounts of contract or com-
pact. We find it, for example, in the Boston Gazette
of 1766, in the 1772 “Rights of the Colonists,” the latter
largely written by Samuel Adams, and in the views
proclaimed by the General Court of Massachusetts on
January 23, 1776.

Usually it is a contract of government, rather than
of society, to which reference is made. A common
theme was that George III had broken the contract
by which the American colonists gave allegiance to
the British crown. The action of the colonists was
viewed not as rebellion, but as resistance to the illegal
use of authority. Their original right was to institute
government on the basis of the consent of the ruled.
Were these conditions no longer fulfilled, the people
could reallocate political power in the manner they
found most suitable. Perhaps it was this preoccupation
with the exact terms of the origins of government that
led a newly independent United States of America to
make its distinctive contribution to modern political
practice in the formulation of a written constitution.
Certainly there was a widespread view that the consti-
tution was a governmental contract instituted for the
purpose of limiting state power and guaranteeing indi-
vidual rights.

It is probably no mere coincidence that by the clos-
ing years of the eighteenth century the only notable
English advocate of Social Contract was Tom Paine,
a man who had fought in the American army during
the War of Independence.

In The Rights of Man (1791) Paine uses the explana-
tory form we have already found in Locke's writings—
that is, to speak of society as based on “compact,” and
government on “trust.” Paine's usage of these terms,
however, is more satisfactory than Locke's attempt to
prove that the compact was a historical reality. Thus,
like Rousseau, he stated not that all government and
society had been formed in this way, but that they
ought to be. A compact between the people “to
produce a government... is the only mode in which
Governments have a right to exist.” The government
is neither a superior body nor an equal partner with
the people. It is a trustee, with duties rather than
rights, obliged to serve rather than command. In prac-
tice Paine saw “compact” and “trust” as reaching a

mutual alignment through a constitution. The consti-
tution is a compact; it contains the terms according
to which the people agree to form their society. It is
the arrangement they make with each other; it is also
the limitation within which government is contained.
Without a constitution a government has full legislative
freedom, for good or ill, during its period of office.
Where there is a constitution, this freedom is curtailed;
the people maintain their basic rights. “Government
without a constitution is power without a right.” The
examples of this ideal, and mankind's hope for the
future, Paine saw in the recently inaugurated govern-
ments of the United States of America and France.
This he hailed as the end of violence and superstition.
The Age of Reason was coming into being. The social
compacts of America and France had been its inaugu-
ration; and in their constitutional form, its guarantee.

By this time use of the contract was in decline even
among those consciously adhering to the views of
Locke. Thus we find in his Observations on the Nature
of Civil Liberty (London and Boston, 1776), that
Richard Price had shown himself not particularly
concerned with the origins of the state. What now
seemed of far more value was the Lockean notion of
a trust between rulers and ruled. It was in Germany,
rather than England, that, particularly under the influ-
ence of Rousseau, the notion of contract continued to
find favor. Not least among the reasons for this is the
fact that the German philosophical tradition has always
been more juristically inclined than its English
counterpart, and so was better able to absorb a term
with strong legal connotations. Thus in Fichte's
Grundlage des Naturrechts (1796), we are granted the
luxury of three contracts as an explanation of the state.
The first is the property contract, which leads on to
the second, the protection contract, and finally the
union contract (Vereinigungsvertrag). Kant's Philosophy
of Right (Rechtlehre), appearing in the same year,
contained no pretense that the contract was a historical
reality. It was merely to be regarded as an “idea of
reason,” by means of which the relationship between
the individual and the state might be better understood.