A Brief Study on Social Contract Theory

Project submitted to:Miss. Anukriti Mishra
(Faculty of Jurisprudence-I)

Submitted by:
Neelam Thakur
Section C

Hidayatullah National Law University
Raipur, Chhattisgarh

................................................TABLE OF CONTENT       ACKNOWLEDGEMENT...................................................................................................................................................4 ITNRODUCTION.......................................22 ACKNOWLEDGEMENTS ...............4 OBJECTIVES...............................................................................................21 BIBLIOGRAPHY........5 CONCLUSION..3 RESEARCH METHODOLOGY........

-149 RESEARCH METHODOLOGY . who have helped me with ideas about this work and also a source for constant motivation and hence they were a guiding force to me in making of this project. I would also like to thank my dear colleagues and friends in the University. I take this opportunity to thank Ms. She has been very kind in providing inputs for this work. but not the least I thank the University Administration for equipping the University with such good library and IT lab. by way of suggestions and providing me resource of her vast knowledge of the subject which helped me to look at the topic in its very broad sense also to look at some of the very narrow concepts by expertise view. HNLU) for allotting me this challenging topic to work on. Anukriti Mam (Faculty member in Jurisprudence-I. Last. Neelam Thakur Roll No. My special thank to library staff and IT staff for equipping me with the necessary books and data from the website.First & foremost.

To understand the Doctrine of Precedent in India.1. Constitutional Provision regarding Precedent of the Supreme Court and the Scope of Article. To study the doctrine of stare decisis 6. OBJECTIVES 1. This includes books. To discuss the impact of Social Contract in . 3. 4. 2. 5. 141. The project is based on analytical and descriptive study. To study the advantages and dis-advantages of Doctrine of Judicial Precedent. and articles from newspapers and downloaded from WebPages. textbooks. To discuss theories given by various Jurist on Social Contract. 2. INTROCUCTION . This project has been pursued on the basis secondary sources of information.

In other words. a result of it a society was formed where people undertook to respect each other and live in peace and harmony. To overcome from these hardships they entered into two agreements which are:1. Thus. As. Analysis of the theory of Social Contract by Hugo Grotius (1583-1645) . Thus. “Pactum Unionis” 2. There were hardships and oppression on the sections of the society. and create an enforcement mechanism for the social contract and the laws that constitute it. “Pactum Subjectionis” By the first pact of unionis.The concept of social contract theory is that in the beginning man lived in the state of nature. they must agree to establish society by collectively and reciprocally renouncing the rights they had against one another in the State of Nature and they must imbue some one person or assembly of persons with the authority and power to enforce the initial contract. property and to a certain extent liberty. people sought protection of their lives and property. They had no government and there was no law to regulate them. The authority guaranteed everyone protection of life. By the second pact of subjectionis. the authority or the government or the sovereign or the state came into being because of the two agreements. they must both agree to live together under common laws. people united together and pledged to obey an authority and surrendered the whole or part of their freedom and rights to an authority. to ensure their escape from the State of Nature.

e. During this period people started questioning. The whole principle of Social Contract stands on these two basic terms: 1) Pactum Unionis. Locke and Rousseau gave their theory on Social Contract. Grotius (1583–1645) introduced the modern idea of natural rights of individuals. no longer to work as sovereign . had been preceded by a social contract. knowledge. So they came together to form a society. When men needs company and society. So.At this stage man initially was a reasonable creature and he seeks society. by means of which each people had chosen the form of government which they considered most suitable for themselves. So. he want to live in society. development of science. According to them there were two types of contract. If the people do not like the sovereign. even sovereign himself cannot go away from his duties i. Reasons were also developed Later in New Classical Modern Era Hobbes. Grotius puts forward social contract as an actual fact in human history. The duty of the sovereign (ruler) is to safeguard the life of the citizens. All those people who had surrendered their all right. he cannot repudiate the contract. . they can revolt against him. Grotius postulates that each individual has natural rights that enable selfpreservation and employs this idea as a basis for moral consensus in the face of religious diversity and the rise of natural science. People surrendered their all rights to the sovereign . He was the jurist who gave social contract theory. once the sovereign is elected. changes in science and technology. It gave rise to the concept of absolute power. Renaissance : Period of enlightenment. Sovereign has absolute power. The constitution of each state. so he decided to form agreement and form a society and live peacefully. has only one right remained in their hand i. he thinks. Sovereign was bound by natural law. When they had society. they decided to surrender their rights to the sovereign. this decision even sovereign himself cannot take. There was a political and economic change. it will be final. all the powers are in the hands of sovereign power. People will choose the ruler but once it is chosen. A man is a reasonable creature and he seeks society.e. right to revolt. People have to follow the sovereign blinderly. This was a period where everything gets changed.In the early 17th century. culture and education took place. Once the sovereign was selected . it was final. and he enjoys all other rights. Idea of state immerged because of social contract theory.

He said the 2nd Pact was the law f nature. Thomas Hobbes lived during the most . Analysis of the theory of Social Contract by Thomas Hobbes(1588-1679) Thomas Hobbes theory of Social Contract appeared for the first time in Leviathan published in the year 1651 during the Civil War in Britain.At this stage people agreed together to surrender their rights to an authority created by them to protect their liberty. so they came together and surrendered their rights to one particular authority which is get chosen by the people themselves.2) Pactum Subjectionis. Actually at this time. Hobbes Theory was based on 2nd Pact. foundation of justice and sources of natural rights. These pacts were the basis of several social contract theories. they realised that their rights and freedom is in threat.

against every man. solitary and poor. Hobbes was a thinker of classical modern era. The element of sanction was present in the law. Man’s life in the State of nature was one of fear and selfishness. . chaotic. like Grotius. recognise an unlimited variety of social contracts by which the people may surrender a greater or smaller proportion of their rights. an unconditional pactum subjectionis by which the whole of the natural right is transferred to the ruler. Thomas Hobbes’ legal theory is based on “Social contract”. Hobbes does not. nasty. This is connected with his view of the state of nature in which men live without a common Power to keep them all in war. Law was whatever given by the sovereign. The sovereign is not bound by natural law but he has to follow natural law as a moral obligation. Everybody has to follow the sovereign at any cost. Law was brought in to put some control over the unrestricted liberty enjoyed by the people under the state of nature which was responsible for the chaotic situation. They surrendered all their powers and rights to the sovereign. men was selfish. Everybody has to follow sovereign at all cost. In his theory. The life in the state of nature was unsecure. There is only one kind of pact. Power of the sovereign was absolute in nature. there was no such right remained. man lived in the State of Nature. There was anarchy everywhere. Law was also brought in bring harmony in the society. who thus obtains absolute power Hobbes gave the concept of absolutism through this. and such a war. he didn’t talked about any right to revolt in the hands of people. Sovereign was not bound by any law. No sympathy for anyone. justice. The chief principle of natural law for Hobbes is the natural right of self-preservation. individuals decided to enter into contract in order to protect their life.crucial period of early modern England‘s history. prior to Social Contract. as is of every man. short. brutal. The main was only survival .So because of such life. they are in that condition which is called War. His social contract theory was based on Pactum Subjectum which says about law of nature. According to him. natural rights and resources.

that means once a social contract is done. no judiciary. liberty and estate. Once an agreement was made sovereign cannot transfer or change his responsibilities. separation of powers between executive and legislature excluding judicial function. He supported the American declaration of Independence and emphasized on supremacy of law. Hobbes has said in his theory that people individually had surrendered their rights but according to Locke. the sovereign cannot repudiate it also here the State does not has absolute power though the rights were surrendered and there was some power but it cannot act arbitrarily by making bad law. By this contract there was foundation of State. he said there was general will of the people on surrendering their rights. . There was a peaceful social life. So. In short. Locke didn’t talk clearly whether people can revolt against the sovereign or not. They entered into a contract to secure their property. an executive without enforcement power. there was no law. the job of the state was to protect people’s property i.e. People were responsible. to protect their property and estate people made a social contract. According to him the contract was made by the general will of the people and only limited set of rights and liberties were surrendered to sovereign not all. A person has the power to overthrow the law if the sovereign is not making a good law. you can appeal to the heaven” .But. He supported the idea of separation of powers. life. He oppose the idea of revolt and in any such case he said “in case of bad sovereign.Analysis of the theory of Social Contract by John Locke (1632-1704) For him the state of nature was peaceful. So. There was no impartial judge and lastly there was no entity to enforce law i. They made this contract because their property was insecure and also because there was no law to execute them. everyone was happy and had a property. property according to him include life. no executive.e. Concept of State Through this contract there was an emergence of State and the prime responsibility of the State was to protect the life and liberty. liberty and estate. they were living in a golden era. The property was unsecured because firstly there was no law in golden era.

state was formed to bring civil liberty and to protect civil rights. His works were very different from others. the rights were never surrendered to any single individual but they made society/community as a sovereign. He supported Natural law which about law of liberty and equality. An individual in the state of nature surrendered their rights to the society as a whole and not to a particular sovereign. rights. People surrendered their rights by framing a common general will to get civil liberties and these liberties are to be enforced and protected by the State. when he is following the general will. So. social contract was a hypothetical contract and not a historical fact i. it should be made by the general will. then it’s not a law. Law is supreme for him. equality and liberty. Its Criticisms would be that he didn’t talk about rights of the minorities. It is for the common good of the people. he is himself subject to the laws made by him. he(sovereign) is not above the law.Analysis of the theory of Social Contract by Rousseau(1712-1778) He talked about popular sovereignty and general will of the people. freedom. which is so called popular sovereignty. What about the interest of the minority. State was something to guarantee to the right to freedom. People were living in a golden period. for him the general will should be of common interest. Sovereign is supposed to act according to the law and it is his job to make laws.e. According to him. It is something which supports equality. . if we are making a law according to the general will of the majority. it was the majority will. According to him. If the law is made against the general will. No absolute powers were given to the sovereign. he is basically following himself because the law is made by the sovereign and people are themselves sovereign. He said that when a person is following a law. About General Will There was complete will of the community. The general will is something which is followed by all. Sovereign should be the subject of law. it is based on presumption and there was no proof of it. The majority will follow the general will. If we have to make a law. For him the state of nature was similar to that of what Locke has said. life was peaceful and happiness. He influenced the French Revolution. There was equality. just and reasonable.

But. his theory was later recognised as a vague theory. Men was selfish in nature. According to him the concept of Justice and Law should be based on “ought to be” principle and law should be such that any prudent man would accept it. General criticisms of social contract theory 1) It is not clear that who were the parties to the contract. what is the ideal state of mind. Law and Justice should be based on “ought to be” principle. Rawl theory was that a man in state of nature was equal. one was not aware of his social status. . Men were not aware of their social status in the State of Nature. there was no protection of rights so how people agreed together to form a social contract and surrendered their rights. age. All were equal. wealth. 2) Hobbes said that there was chaos in the society.Analysis of the theory of Social Contract by John Rawl He supported Rousseau’s social contract view that it is hypothetical in nature and not historical. It was similar to the original position. All were similar in the pre-political condition. health. who came up to form a contract. Ought to be principle is something we are finding. nasty and brutal in the state of nature. should be such that any common person could understand and accept it. He compared the natural state with the original position which is behind the veil of ignorance. People have to have How we can say that people came together to make a contract when there was selfsurvival was the only choice of people. 3) The concept of general will was very vague 4) The condition of state of nature given by different Jurists is only based on assumption. In original position men were equal.