contribution of philosophers or bourgeoisie in social contract or constitution

1.1 THE THEORY OF SOCIAL CONTRACT:

Social contract describes a broad class of theories that try to explain the ways in which people form states and/or maintain social order. The notion of the social contract implies that the people give up some rights to a government or other authority in order to receive or maintain social order[1].

The Social Contract was a progressive work that helped inspire political reforms or revolutions in Europe, especially in France. The Social Contract argued against the idea that monarchs were divinely empowered to legislate. The idea of social contract was introduced by Jean-Jacques Rousseau in his book “The Social Contract or Principles of Political Right”. He explains that only the people, in the form of the sovereign, have that all powerful right. He wrote that, “The heart of the idea of the social contract may be stated simply: Each of us places his person and authority under the supreme direction of the general will, and the group receives each individual as an indivisible part of the whole...”

Various philosophers tried to explain the theory of social contract. They included Thomas Hobbes, John Locke and Jean-Jacques Rousseau. They formed the theoretical groundwork of democracy. Others are Hugo Grotius and Pierre-Joseph Proudhon's together with Philip Pettit. The explanations of these philosophers can be considered similar and distinct in various ways.

2.1 PHILOSOPHERS OF THE THEORY OF SOCIAL CONTRACT

2.1.1 Hugo Grotius

In the early 17th century, Grotius (1583-1645) introduced the modern idea of natural rights of individuals. Grotius says that we each have natural rights which we have in order to preserve ourselves. He uses this idea to try and establish a basis for moral consensus in the face of religious diversity and the rise of natural science and to find a minimal basis for a moral beginning for society, a kind of natural law that everyone could potentially accept. He goes so far as to say even if we were to concede what we cannot concede without the utmost wickedness, that there is no God, these laws would still hold. The idea was considered incendiary, since it suggests that power can ultimately go back to the individuals if the political society that they have set up forfeits the purpose for which it was originally established which is to preserve them. In other words, the people i.e. the individual people are sovereign. Grotius says that the people are sui juris - under their own jurisdiction. People have rights as human beings but there is a delineation of those rights because of what is possible for everyone to accept morally - everyone has to accept that each person is entitled to try and preserve themselves and therefore they shouldn't try to do harm to others or to interfere with them and they should punish any breach of someone else's rights that arises.

2.1.2 Thomas Hobbes

The first modern philosopher to articulate a detailed contract theory was Thomas Hobbes (1588-1679), who contended that people in a state of nature ceded their individual rights to create state sovereignty, in return for their protection. A social contract thus evolves out of pragmatic self-interest. He believed that the state of nature for humans was a social and apolitical. The state of nature was also regarded as a state of war, since each individual was unbound by social obligations and acted solely in his own self interest; each person was a threat to others for natural resources. For Hobbes, it is important that this social contract involves an absolute government that does not rule by consent, since this is the only way to create binding rules for persons who naturally compete and disagree with one another about conceptions of justice.

According to Thomas Hobbes, human life would be "nasty, brutish, and short" without political authority. In its absence, we would live in a state of nature, where we each have unlimited natural freedoms, including the "right to all things" and thus the freedom to harm all who threaten our own self-preservation; there would be an endless "war of all against all" (Bellum omnium contra omnes). To avoid this, free men establish political community i.e. civil society through a social contract in which each gain civil rights in return for subjecting himself to civil law or to political authority.

2.1.3 John Locke

John Locke's conception of the social contract differed from Hobbes's in several ways, but retained the central notion that persons in a state of nature would willingly come together to form a state. Locke believed that individuals in a state of nature would have stronger moral limits on their action than accepted by Hobbes, but recognized that people would still live in fear of one another. Locke argued that individuals would agree to form a state that would provide a "neutral judge", and that could therefore protect the lives, liberty, and material possessions of those who lived within it. While Hobbes argued for near-absolute authority, Locke argued that state laws could only be legitimate if they sought to achieve the common good. Locke also believed that "People will do the right thing as a group"; and that all people have natural rights.

2.1.4 Jean-Jacques Rousseau

He believed that a government can only be legitimate if it has been sanctioned by the people in the role of the sovereign; Rousseau claimed that a perfect society would be controlled by the "general will" of its populace. While he does not define exactly how this should be accomplished (as there are many possible ways, each suited to different situations), he suggests that assemblies be held in which every citizen can assist in determining the general will. Without this input from the people, there can be no legitimate government. Importantly, this input cannot come from representatives, but must be from the people themselves.

Jean-Jacques Rousseau (1712-1778), in his influential 1762 treatise The Social Contract, outlined a different version of social contract theory, based on popular sovereignty. Although Rousseau wrote that the British were perhaps at the time the freest people on earth, he did not approve of their representative government. Rousseau believed that liberty was possible only where there was direct rule by the people as a whole in lawmaking, where popular sovereignty was indivisible and inalienable. Citizens must, in at least some circumstances, be able to choose together the fundamental rules by which they would live, and be able to revise those rules on later occasions if they choose to do so - something the English people as a whole were unable to do[2].

Rousseau's political theory has some points in common with Locke's individualism, but departs from it in his development of the "luminous conception" (which he credited to Diderot) of the general will. Rousseau argues a citizen can be an egoist and decide that his personal interest should override the collective interest. However, as part of a collective body, the individual citizen puts aside his egoism to create a "general will", which is popular sovereignty itself. Popular sovereignty (i.e., the rule of law), thus decides what is good for society as a whole, and the individual (including the administrative head of state, who could be a monarch) must bow to it, or be forced to bow to it:

[The social contract] can be reduced to the following terms: Each of us puts his person and all his power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole.

Rousseau's striking phrase that man must "be forced to be free" should be understood this way: since the indivisible and inalienable popular sovereignty decides what is good for the whole, then if an individual lapses back into his ordinary egoism and breaks the law, he will be forced to listen to what they decided as a member of the collectivity (i.e. as citizens). Thus, the law, inasmuch as it is voted by the people's representatives, is not a limitation of individual freedom, but its expression; and enforcement of law, including criminal law, is not a restriction on individual liberty, as the individual, as a citizen, explicitly agreed to be constrained if, as a private individual, he did not respect his own will as formulated in the general will. Because laws represent the restraints of civil freedom, they represent the leap made from humans in the state of nature into civil society. In this sense, the law is a civilizing force, and therefore Rousseau believed that the laws that govern a people helped to mold their character.

2.1.5 Pierre-Joseph Proudhon

While Rousseau's social contract is based on popular sovereignty and not on individual sovereignty, there are other theories espoused by individualists, libertarians and anarchists, which do not involve agreeing to anything more than negative rights and creates only a limited state, if at all.

Pierre-Joseph Proudhon (1809–1865) advocated a conception of social contract which didn't involve an individual surrendering sovereignty to others. According to him, the social contract was not between individuals and the state, but rather between individuals themselves refraining from coercing or governing each other, each one maintaining complete sovereignty upon oneself:

What really is the Social Contract? An agreement of the citizen with the government? No, that would mean but the continuation of [Rousseau’s] idea. The social contract is an agreement of man with man; an agreement from which must result what we call society. In this, the notion of commutative justice, first brought forward by the primitive fact of exchange, …is substituted for that of distributive justice … Translating these words, contract, commutative justice, which are the language of the law, into the language of business, and you have commerce, that is to say, in its highest significance, the act by which man and man declare themselves essentially producers, and abdicate all pretension to govern each other.

 2.1.6 Philip Pettit

Philip Pettit argued[3] that the theory of social contract, classically based on the consent of the governed (as it is assumed that the contract is valid as long as the people consent to being governed by its representatives, who exercise sovereignty), should be modified, in order to avoid dispute. Instead of arguing that an explicit consent, which can always be manufactured, should justify the validity of social contract, Philip Pettit argues that the absence of an effective rebellion against the contract is the only legitimacy of it.

2.2 CRITICISMS REGARDING THE THEORY OF SOCIAL CONTRACT.

2.2.1 David Hume

An early critic of social contract theory was Rousseau's friend, the philosopher David Hume, he stressed that the concept of a "social contract" was a convenient fiction. The defenders of the absolute and divine right of kings, by tracing up government to the DEITY, endeavor to render it so sacred and inviolate that it must be little less than sacrilege, however tyrannical it may become, to touch or invade it in the smallest article. On the other hand the believers in constitutional monarchy, by founding government altogether on the consent of the PEOPLE suppose that there is a kind of original contract by which the subjects have tacitly reserved the power of resisting their sovereign, whenever they find themselves aggrieved by that authority with which they have for certain purposes voluntarily entrusted him.

However, Hume did agree that, no matter how a government is founded, the consent of the governed is the only legitimate foundation on which a government can rest.

 2.2.2 Lysander Spooner

According to the will theory of contract, which was dominant in the 19th century and still exerts a strong influence, a contract is not presumed valid unless all parties agree to it voluntarily, either tacitly or explicitly, without coercion. Arguing on the logic of contracting, Lysander Spooner, a 19th century lawyer and staunch supporter of a right of contract between individuals, in his essay No Treason, argues that a supposed social contract cannot be used to justify governmental actions such as taxation, because government will initiate force against anyone who does not wish to enter into such a contract. As a result, he maintains that such an agreement is not voluntary and therefore cannot be considered a legitimate contract at all.

 2.2.3 Multiple Contracts

This has been explained by Randy Barnett and O.A. Brownson.

Legal scholar Randy Barnett has argued that, while presence in the territory of a society may be necessary for consent, it is not consent to any rules the society might make regardless of their content. A second condition of consent is that the rules be consistent with underlying principles of justice and the protection of natural and social rights, and have procedures for effective protection of those rights (or liberties).

This has also been discussed by O.A. Brownson, who argued that there are, in a sense, three "constitutions" involved: The first the constitution of nature that includes all of what the Founders called "natural law". The second would be the constitution of society, an unwritten and commonly understood set of rules for the society formed by a social contract before it establishes a government, by which it does establish the third, a constitution of government. To consent, a necessary condition is that the rules be constitutional in that sense.

2.2.4 Tacit Consent

The theory of an implicit social contract holds that by remaining in the territory controlled by some government, people give consent to be governed. This consent is what gives legitimacy to the government. Philosopher Roderick Long argues that this is a case of question begging, because the argument has to presuppose its conclusion.

3.0 CONCLUSION:

The stated aim of the Social Contract is to determine whether there can be a legitimate political authority. In order to accomplish more and remove himself from the state of nature, man must enter into a Social Contract with others. In this social contract, everyone will be free because all forfeit the same amount of freedom and impose the same duties on all. From our discussion, it goes without doubt that we must also note the great contribution which the mentioned authors made in the development of democratic constitutions today.

BIBLIOGRAPHY

BOOK

Haywood A, (1996), Politics, 2nd edition, Palgrave books, Cape Town, SA

Pettit P, (1997), Republicanism: A Theory of Freedom and Government

WEBSITE

www.wikipedia.org/social_contract_philosophers

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[1] www.wikipedia.org/social_contract_definition

[2] Haywood, A; (2006) Politics

[3] Republicanism: A Theory of Freedom and Government (1997)