Some of the key conceptual tools deployed by legal theorists are likely to be familiar to most law students from their undergraduate education. One of these is the notion of the "social contract"--familiar from Hobbes, Locke, and Rousseau. But unless you were an undergraduate philosophy major or have some graduate work in philosophy, you may not be as familiar with some of the ideas that have grown out of the social-contract tradition. One of these is the development of social contract theory in the political philosophy of John Rawls. Two additional ideas are "contractarianism" and "contractualism"--distinctive positions in the social-contract tradition that are respectively associated with David Gauthier and Thomas ("Tim") Scanlon--and many others, of course.
This entry in the Legal Theory Lexicon explores the "social contract" and its contemporary variants. As always, the Lexicon is pitched at law students, especially first year law students, with an interest in legal theory. It goes without saying that social contract theory or any one of its modern variants cannot be summarized accurately in a long article, much less a short Lexicon entry.
Classical Social Contract Theory
The classical social contract tradition is most strongly associated with Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. There are very important differences between these thinkers, but I am got to collapse the differences and present a sort of "generic" version of the social contract. Here goes.
The State of Nature--Social contract theory begins with the notion of a "state of nature". What is the state of nature? That turns out to be a tricky question. The core idea is that the state of nature does not have a government or similar social institutition that can provide security, public order, and other public goods. In the state of nature, individuals must resort to self-help to resolve disputes. There are no institutitions that protect property rights or rights of personal security.
What are the characteristics of life in a state of nature? This is one of the topics upon which social contract theorists disagree. Hobbes is famous for his argument that a state of nature is a state of war of all against all. As a consequence, "the life of man [would be] solitary, poore, nasty, brutish, and short." For Locke, the state of nature, while not a state of war, would be a state of inconvience: because the lack of a common judge would mean that everone would be a judge in their own case, disputes would frequently be resolved by private violence. Both Hobbes and Locke agree that the state of nature would be no utopia--it would be a relatively violent and insecure environment.
A Social Contract--The insecurity that characterizes the state of nature creates the motivation to enter into a social contract or social compact. There are a number of possible variations of this agreement, and it is worth our while to break some of them down:
Who is a party to the social contract? One possibility is that the social contract is an agreement among individuals but not an agreement with the government or sovereign. That is, the parties in the state of nature, A, B, & C, agree one with another to institute some other person, S, (or organized group of persons) as the sovreign or government. On this view, the sovereign is not a party to the social contract. A second possibility is that the social contract is an agreement between the individuals in the state of nature and the sovereign. That is, A, B, & C agree with S. I'm sure you can see immediately that this difference will be important: if the sovereign is a party to the social contract, its provision will bind the sovereign, but if the only parties are the individuals who become citizens, then only they will be bound by the contract.
What is the content of the social contract? Another question about the social contract concerns its content? For example, the social contract could simply obligate citizens to obey the sovereign irrespective of the content of the sovereign's commands (or laws). Hobbes's view of the social contract is close to this extreme--although Hobbes argues that citizens do not bind themselves to obey the sovereign if the sovereign commands them to lay down their own lives. On the other hand, the social contract could impose strict limits on the powers of the sovereign. For example, the contract could obligate the sovereign to protect the security of persons and property. On this understanding, laws that actually invaded personal security or attempted to appropriate property would be invalid as contrary to the provisions of the contract. Locke's view was something like this.
What is the consequence of a breach of the contract? Another question might concern the consequences that would attend breach of the social contract. If the sovereign breaches the contract, one possible consequence is that citizens are released from their obligation to obey the commands of the sovereign or are entitled to engage in revolution. Another possibility, especially interesting to legal theorists, is that violations of the social contract by the legislative or executive branches are not "law" and hence should not be enforced by the judicial branch.
Problems with Classical Social Contract Theory--There are a number of well known problems with classical versions of social contract theory--and answers to these problems--and answers to the answers. (It is an "impacted field of argument" to say the least.) I am going to focus on just one cluster of problems--having to do with the question whether the state of nature is actual or hypothetical.
Is the state of nature an actual historical state or is it a hypothetical state? One line of criticism begins with the contention that the state of nature cannot be an actual historical condition of human society. If there never was a historical condition like the state of nature and therefore, no actual "social contract", so the argument might go, then what is its normative significance. The fact that fictional individuals might have agreed to a social contract under fictional conditions seems to lack normative oomph.
The standard reply to this objection is that the state of nature is hypothetical and not actual, but that hypothetical consent does have normative force, because it tells us that the authority of government is preferable to the alternative--a state without government.
Are the conditions of a hypothetical state of nature arbitrary or unfair? But the argument does not end with the introduction of a hypothetical state of nature. It is just getting started. Now that we know that the state of nature is hypothetical, it becomes clear that the description of the setup of the state of nature is very important. Depending on how the conditions of the state of nature are described, the parties may agree to different versions of the social contract or may not agree to a social contract at all. If the state of nature is really truly awful--a Hobbesian state of war of all against all--then we may agree to an absolute sovereign. On the other hand, if the state of nature is merely inconvenient, we may agree only to a more limited government--perhaps a Lockean state with powers that are constrained by a narrow conception of the purpose of the state. (Of course, the last two sentences vasly oversimplify huge issues.)
If the setup of the state of nature is crucial to the content of the social contract and if both the state of nature are the social contract are merely hypothetical, then we might ask how the setup is justified. Lacking justification, the setup of the state of nature is potentially arbitrary and unfair. "Arbitrary"--because the setup is not constrained by actual social conditions. "Unfair"--because the setup may advantage some individuals over others.
Contemporary Social Contract Theory: Rawls and the Original Position
One reaction to criticism that a hypothetical social contract can be arbitrary and unfair is represented by John Rawls's theory of the original position. (There is a separate Lexicon entry on The Veil of Ignorance that provides additional detail on Rawls's idea.) Rawls's theory does not have a "social contract" or a "state of nature." Instead, Rawls tries to set up a hypothetical choice situation that is neither arbitrary nor unfair. In other words, Rawls asks the question, "What hypothetical choice situation would produced a "fair" agreement?" Rawls calls this hypothetical choice situation "the original position." Simplifying vastly, parties in the original position represent citizens and choose principles of justice that are to regulate the basic structure of society. They do this behind a "veil of ignorance" that masks the identities and other characteristics of the citizens they represent. The veil of ignorance is designed to insure that the choice situation is fair: no one is unfairly advantaged because the characteristics that might create an advantage are excludedvia the veil. Rawls argues that under these conditions the parites would unanimously agree on two principles of justice--the liberty principle (that guarantees an adequate scheme of basic liberties such as freedom of conscience, freedom of speech, and procedural fairness) and the difference principle (that provides the differences in the allocation of what Rawls calls the "primary goods" (including wealth and income) must be arranged so as to beneift the least well-off group in society.
Rawls's theory is not a social contract theory. There is no state of nature and no social compact. But Rawls sees his theory as an extension of the social contract tradition. We might say that Rawls's theory is contracualist or contractarian because it is based on the idea of hypothetical agreement.
The Distinction Between Contractarianism and Contractualism
Rawls has a version of social contract theory, which we just said could be "contractualist" or "constractarian." When Rawls wrote, these labels might have been used interchangeably, but contemporary political philosophers now distinguish between two different kinds of theory in the social contract tradition.
Contractarianism--The term "contractarianism" applies to theories that focus on self-interest; a contractarian justification for civil society would attempt to show that cooperation with government is interest of each citizen.
Contractualism--The term "contractualism" applies to theories that focuses on reasonableness or justifiability to others. Contractualist theories might emphasize the idea that each reasonable person will endorse social arrangements that could be accepted by all reasonable persons--with the idea of reasonable justification acting as a constraint on pure self interest.
The contractarian branch of the social-contract tradition is represented by David Gauthier's Morals by Agreement is one of the most important contemporary works in contemporary contractarian moral philosophy, but in this post I am going to emphasize the contractualist branch and its development in the work of Thomas (Tim) Scanlon.
Scanlon's contractualism is inspired by the classical social-contract notion of hypothetical agreement or hypothetical consent. But Scanlon's theory is not a political theory--it is not about the relative powers and duties of individuals and the state. Rather his theory is a moral theory, about what "we owe to teach other". Scanlon's theory is deep and rich--and it defies easy summary. But you can get a flavor of Scanlon's view by thinking about his very famous formulation of contractualism:
An act is wrong if its performance under the circumstances would be disallowed by any system of rules for the general regulation of behaviour which no one could reasonably reject as a basis for informed, unforced general agreement.' T.M. Scanlon, ‘Contractualism and Utilitarianism’ in A. Sen and B. Williams (eds), Utilitarianism and Beyond 110 (Cambridge: Cambridge University Press, 1982)
I'm sure you can already see how precise Scanlon's formulation is, including the following elements: (1) actions are right or wrong in virtue of their being allowed or disallowed by a "system of rules," (2) the system of rules must be one that is for the "general regulation of behavior," and (3) the system must be such that no one could "reasonably reject" the system as the basis for an "informed, unforced general agreement." The core idea is that morality is based on rules that could form the basis for informed and unforced agreement: "informed and unforced agreement" expresses the contractualist dimension of Scanlon's view. An action is morally wrong if it is contrary to the general system of moral rules upon which there could be informed and unforced agreement.
Scanlon's contractualism is a form of deontological moral theory, because it makes the rightness or wrongness of action depend on its conformity to a set of moral rules. Deontological theories can be contrasted with consequentialist theories and aretaic (or virtue-centered) theories. There are Legal Theory Lexicon entries on each of these ideas.
The Rivals of Contractarianism and Contractualism
Before we close, let's situate contractualism and contractarianism in all their forms by looking briefly at some rival views. In moral philosophy, contractarian ethics are usually viewed as a form of deontology. Scanlon's contractarian deontology could be contrasted with Kant's idea that the content of morality can be specified by the categorical imperative, one formulation of which is "act so that the maxim of your action could be willed as a universal law of nature." Outside of deontology, contractarian ethics competes with consequentialisms of various forms, most prominently utilitarianism. Another rival of moral contractarianism is virtue ethics, which posits excellence of character as the fundamental organizing principle of moral theory.
In the political realm, social contract theory has a variety of rivals. Utilitarianism can be the basis of a political theory as well as a moral theory. Democratic legitimacy may rival contractarianism as the fundamental grounding principle of social organization. In recent years, communitarianism and civic republicanism have also been articulated as rivals of social contract theory. Libertarian and anarchist political theories reject the strong role for the state that is implicit in Hobbes or in Rawls's modern variant of political contractarianism.
Conclusion I hope this entry in the Legal Theory Lexicon has given you a lively sense of the broad outlines of the contractarian tradition in moral philosophy and political theory. Of course, I've barely scratched the surface! I've provided some links and references for additional reading and investigation.
Related Lexicon Entries
- Legal Theory Lexicon 006: The Veil of Ignorance
- Legal Theory Lexicon 008: Utilitarianism
- Legal Theory Lexicon 010: Deontology
- Legal Theory Lexicon 012: Virtue Ethics
- Ann Cudd, Contractarianism, Stanford Encyclopedia of Philosophy (2012).
- Elizabeth Ashford & Tim Mulgan Contractualism, Stanford Encyclopedia of Philosophy (2012).
- Fred D'Agostino, Contemporary Approaches to the Social Contract, Stanford Encyclopedia of Philosophy (2011).
- John Locke, Two Treatises of Government (Cambridge University Press 1988).
- David Gauthier, Morals by Agreement (Oxford University Press 1987)
- Thomas Hobbes Leviathan (Cambridge University Press 1996).
- John Rawls, A Theory of Justice (Harvard University Press 1971) (revised edition here).
- T. M. Scanlon, What We Owe to Each Other (Harvard University Press 1999).
- T. M. Scanlon, “Contractualism and Utilitarianism”, in A. Sen and B. Williams (eds.), Utilitarianism and Beyond (Cambridge University Press 1982). Both the essay and the anthology are highly recommended.
- Contractarianism and Rational Choice (Peter Vallentyne, ed., Cambridge University Press 1991).
(Last modified on August 12, 2018.)