contract law

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Individual freedom is exchanged for living in a society based on law

‘For by art is created that great Leviathan called a Commonwealth, or State (in Latin, Civitas), which is but an artificial man, though of greater stature and strength than the natural, for whose protection and defence it was intended'

Thomas Hobbes - Leviathan


The Social Contract Theory has been espoused by many writers from Plato in Crito to modern day writers such as Ayn Rand and John Rawls. However, for English writers Thomas Hobbes undoubtedly holds a certain status as the paradigm of a social contractarian, his work in Leviathan was described as the ‘greatest, perhaps the sole, masterpiece of political philosophy in the English language' . Another leading writer was Jean Jacques Rousseau, his fame owing a lot to do with the French Revolution and subsequent events, and it is on these two writers that this work will focus.

The Social Contract Theory is of importance to all legal scholars because it is a theoretical discourse which attempts to legitimise the coercive and invasive nature of law on naturally free persons. Undoubtedly there are a number of competing concerns that intersect with the Social Contract Theory, such as liberalism, which we must beware also place constraints on this rationale. One of the most appealing attributes of the Social Contract Theory is its ability to delineate the natural from the artificial, the ability to comprehend society as an artificial construction created in order to restrain and improve upon the natural state of things. In that sense Law is much like Technological Engineering i.e. the improvement of the pre-existing by use of the artificial.

One intersecting concern is the use of the paradigm of a contract between the governed and the governing, as we shall see when we discuss the respective views of Hobbes and Rousseau, which may have a similar premise in the abstract but mask a more fundamental difference in the approach of the writers, and begs the question of whether the social contract is a ‘simple exchange' or whether it masks something more complex. The Social Contract Theory is what is called a meta-narrative by post-modernist writers in that it attempts to give an overarching explanation of law's legitimacy which makes a number of assumptions about human nature, the structure that law ought to take and what the social contract agrees upon. It is these criteria which we will be evaluating in the work.

Thomas Hobbes

Thomas Hobbes published his magnus opus Leviathan in 1651 and overthree centuries later the work is still the subject of academic debateand controversy. Hobbes was largely influenced by a number of hiscontemporaries such as Galileo and Francis Bacon and his writingsdistinctly exhibit a post-enlightenment thought which moves away frombasing law on principles of natural justice . I will outline Hobbes'thoughts on the social contract theory and present a number of its mostclassical criticisms and flaws; we will then move onto compare this tothe exchange contemplated by Rousseau.

Hobbes' theory of the social contract has a number of key facetswhich are very important to fully understand the structure of thesocial contract. He starts with the prima facie position that allpeople are equal, or in other words they all possess an inherent‘individual freedom', however without any ‘power able to overawe themall' then:

‘it is manifest that during the time men live without a common powerto keep them all in awe, they are in that condition which is calledwar; and such a war as is of every man against every man'

In this state of ‘war' or ‘nature' there is no such thing as justiceor injustice because only a ‘common power' can issue laws andfurthermore without laws then there is no justice. In this state ofnature men are naturally free, they have an inherent liberty , in otherwords a power to ‘do what he would' without any ‘external impediments'. Thus in Chapter 14 of Leviathan Hobbes sets out clearly how thesocial contract becomes formed, Hobbes stipulates that two ‘natural'principles flow from the state of nature that ‘as long as this naturalright of every man to every thing endureth, there can be no security toany man...of living out the time which nature ordinarily alloweth men tolive' thus men ought to want peace, the only way that this can bemanaged is by a mutual agreement from all people not to use their rightto everything. If only some people were to relinquish their rights thenit would be unjust because it would leave them open to being preyedupon. He summed this up by using the proverb of Lampridius ‘quod tibifieri non vis, alteri ne feceris' .

The only person who didn't relinquish their universal claim to allthings was the sovereign who became the arbiter of legitimate force insociety. Evers has made the point that in a Hobbessian social contractthe paradigm was less of a contract between people and the sovereignand more of the sovereign as a beneficiary of the mutual agreement ofpeople not to exercise their full rights . Thus individual freedom isnot directly swapped for security; it is not a bargain but more of amutual covenant because what is fundamental for Hobbes is theacquiescence of a people to an identifiable sovereign. There is noreciprocity between sovereign and people.

In Hobbes' account the fundamental factor is the fear of people inkeeping their obligations, he recognises that their maybe those whothrough virtuousness keep their word but he explains that fear is thedominant motivation. Furthermore the existence of fear is explained notto vitiate the consent of the people in general. Hobbes unlike manymoral philosophers doesn't assign a particular dignity to the consentor will of the individual, the fact that the will of the people isobtained due to fear of death is merely consistent with the fundamentalhuman nature which tends towards self-preservation.

When we consider Rousseau we will seem some marked differencesbetween the writers but it is uninformative to leave Hobbes at thispoint. His views on the social contract exhibit numerous paradoxes whenwe consider the elements that make up his theory. HobbesianContractarian theory makes a number of assumptions about humanknowledge, the state of nature, rights of people to rebel, conflict andmany other things that other writers such as John Locke and Rousseauwould disagree and these factors need to be realised. Thus Hobbesdidn't believe people had a right to rebel once they had ceded theirrights to the sovereign . He outlines this argument in Ch.18 where hestates the options are clear; if somebody has a problem with aparticular act then he cannot then revoke his consent because ‘he musteither submit to their decrees or be left in the condition of war hewas in before; wherein he might without injustice be destroyed by anyman whatsoever' .

The choice then for a person in the Hobbesian contract is totalsubmission to the sovereign or the state of nature. He does not likeJohn Locke or Rousseau impute that even in the state of nature humanshave an inherent dignity or worth which is to be protected. Thecorollary of this point is that the sovereign is supreme, Hobbes isknown as an absolutist, he doesn't advocate a type of government but hedoes say that it must be supreme. It is clear that Hobbes thought anyimpingement on this supremacy was the slippery slope back to the stateof nature . This is on an objective footing but there is a normativeproposition in Hobbes' work that states a sovereign ought not toimplement a ‘restraint of natural liberty, but what is necessary in thegood of the commonwealth' . In many ways Hobbes' emphasis ismisunderstood and whilst his propositions may seem prima facieanti-liberal they merely emphasise that there are no transcendentrights, those rights may be silenced in certain situations. We see thisin all human rights dialogues across the modern world, for example theright to a fair trial under Article 6 of the European Convention ofHuman Rights causes numerous problems for the detention of terrorsuspects.

However, whilst there is an undoubted liberal sentiment in some ofThomas Hobbes writings this doesn't square with his more abstracttheory which is the paradigm of a simple exchange of individual freedomfor living in society, that is an unconditional surrender to thesovereign of those freedoms which every person possesses in the stateof nature.


A century after Hobbes had published Leviathan, the French moralphilosopher Jean Jacques Rousseau published ‘The Social Contract' in1762. He dedicated a whole book to a subject which Hobbes had written afew chapters on and thus many of his ideas are more explicit whereHobbes was implicit. Rousseau has a similar importance to Hobbes andhas been described as ‘the lynch-pin of the political consciousness ofthe entire modern period' ; his obvious influence on the leading lightsof the French revolution also has given him a place in history.

The main issue for Rousseau was, similarly to Hobbes, to understandthe chains of society and how they were made legitimate consideringthat all people have a basic integrity or free will which ought not tobe contravened. Thus, as we shall see below the aim of the socialcontract for Rousseau was distinct from Hobbes:

‘Rousseau wants to establish a relationship between citizens thatwill provide each with adequate protection backed by the communitywhile preserving the free will and liberty of each'

Rousseau summed up his overarching concept of the Social Contract bysaying ‘Each of us puts his person and all his power in common underthe supreme direction of the general will, and, in our corporatecapacity, we receive each member as an indivisible part of the whole' .The incentive for people to enter the Social Contract was substantivelysimilar to Hobbes but his basic premise wasn't. Rousseau builds up hispremise logically and in an order through Book I of the SocialContract, he starts with a basic liberal premise that all men are bornfree, he disagrees with the Ancient Greek philosophers that thedispositions of ruling and serving are inherent with birth. He thusvalidates his claim that all men are born free by using the examplethat if only one person were alive that they would be the ruler of theworld.

He strongly disagrees with Hobbes that violence or strength issufficient to create rights or laws. In society he stipulates no oneperson is strong enough to perpetuate obedience without transformingthat strength into a right and the obedience a general duty, howeverstrength is never sufficient to create either rights or a duty. Forcecannot be a right because it has no abstract existence and would be atthe whim of subjective applications of individual strength thus ‘Assoon as it is possible to disobey with impunity, disobedience islegitimate' , he also says that force cannot create duty because to saythis would be to imply that if somebody were to attempt a robbery,given you could not stop him by force, then you would be under a dutyto give him whatever he desired. He also rejects that the subjugationof a people to a ruler is a form of slavery because no man can givehimself voluntarily into slavery because to do so would be insanefurthermore for the reasons given about force they cannot be forcedinto slavery by a conqueror. Rousseau, distinctly to Hobbes, seems tobe saying that every person, in their natural state, doesn't have aright to everything because certain things are naturally inviolable, sohe would disagree with Hobbes that anybody ever has the right to takethe life of another person .

The Social Contract is thus a way of establishing a society of people,however they may be governed, which resembles a corporate body or asRousseau calls it the ‘body politic'. Every person in a societycompletely alienates their individual rights to the community however,unlike Hobbes; the sovereign is not a beneficiary who retains the wholeambit of rights. The fundamental aspect of this social contract whichis distinct from Hobbes is that:

‘each man, in giving himself to all, gives himself to nobody; and asthere is no associate over whom he does not acquire the same right ashe yields others over himself, he gains an equivalent for everything heloses, and an increase of force for the preservation of what he has'

In Rousseau's schema then that community may for whatever reason decideto subjugate itself to a particular ruler but fundamentally before a‘people' may be formed there must be a social contract between theindividuals that make up that people. Thus for Rousseau it is notcorrect to imagine the social contract as a true contract of exchangebetween the ruler and ruled where one exchanges freedom for security.

It is widely accepted that Rousseau's normative version of the SocialContract was a response to his perceived subjective version which wasthe perpetuation of class divides through those in societies withproperty and power forming together to create a government . Thus theSocial Contract as envisioned by Rousseau was hardly practicablebecause it required an extremely strong form of communitariandemocracy whereby all people came together regularly to makedecisions. Thus a state was envisioned as being small in geographicterms perhaps limited to a province or a large city. An individual thushad power over all the rest as a member of the body politic and wassubject as an individual to the body politic. Whilst like Hobbes thesovereign was a supreme being, the state was made up of all theindividuals and those individuals gave up their rights on the guaranteeof involvement in the governing of their lives not simply for securityof body and goods.

Critiques and Comparisons of Hobbes & Rousseau

There a number of problems with both accounts of the socialcontract theory and the comparisons between the approach of Rousseauand Hobbes are illuminating. In this section we will focus on thevarious flaws and the problems that specifically turn on the exchangethat causes people to enter the social contract which is the subjectmatter of this work.

There are a number of respective problems with the accounts of thesocial contract. Hobbes' problem is that there is no clear delineationbetween the despot who conquers a society and subjugates the people byforce and a democratically formed representative form of government.The commands of both sovereign bodies are legitimate and rightlydeserve the force of law. Hobbes places particular reliance on ‘fear'in perpetuating his theory. Furthermore, the moral concept of anindividual's will is not very palatable for a modern world. Evers makesthe point that Hobbes conception of will is understood not as a morallyrelevant faculty but as part of the human mechanism which is controlledby person's appetites . Thus whether a person ‘wills' to enter a socialcontract because of fear or some more virtuous impulse matters not in amoral sense for Hobbes. The will also can take any form such asacquiescence, silences and forbearances. The individual in a Hobbesiansense has very little choice and Rousseau's own criticism of Hobbes isvalid in this sense; Hobbes' logic is analogous to that of the EmperorCaligula in that ‘some are born for slavery, and others for dominion' .These notions are certainly not palatable in modern day theory which,stemming from John Locke, views the will as a morally significantfaculty of the human being.

Rousseau doesn't fall foul of these problems and clearly setshimself apart from Hobbes in that his approach does, as we noted,recognise fundamental dignities and respects an individuals will as oneof the most important factors in formation of the social contract.However, he too suffers from problems, such as having to account forthe punitive sanctions of certain laws on certain members of societybecause in effect by punishing an individual the sovereign inRousseau's schema is attacking itself . Evers suggests that Rousseau'ssolution dissolves into a society which looks much like the oneenvisioned by Hobbes . He envisions the body politic devolving power tosubordinate magistrates and other executive officers who will carry outthe punishment on individuals and ask the person either to submit tothe punishment or revert to a state of nature.

However, Rousseau's state of nature is not as clearly defined asHobbes'; it is unclear what intrinsic rights an individual quaindividual has in that state. Rousseau suggests that the punishment forbreach of the social contract would be sufficient such that breachwould give the right of the body politic to punish that person in anycase. This opens up a whole other line of concerns such as who decideswhen the contract is broken and does this mean no-one can ever withdrawfrom the contract? Or perhaps once they have violated the laws then theconsent is irrevocable? Rousseau leaves these issues unresolved.

The further problem is that the executive will have power over themembers of the legislature as individuals. Rousseau recognised thatday-to-day governance had to be carried out by a few; it is asociological impossibility to have the majority of people in societygoverning that society and thus the few will inevitably control themany. This creates oligarchic tendencies which may operate to suppressthe democratic elements of society. There is also a similar idea oftacit consent to the commands of those people who govern a consent aswas advocated by Hobbes. This can be contrasted to Locke who required acontinual majority of people to have consent in any particular society.

This is part of a general flaw in Rousseau's work in that despite hisstated aim he fails to ‘explain how strong communities and authenticindividuals can co-exist' . There have been numerous academics whosuggest that it is of moral relevance that one defines ones identity asan individual. It is argued that community based theories of societyare a model of ‘the most terrible forms of homogenizing tyranny' andthere is intensive debate over whether authenticity or individualitycan be made compatible with communitarian models. This is not the placeto go into depth about the debates over what makes up one's self butsuffice to say that it is argued that Rousseau values community to thedetriment of individuality.

What has to be recalled is that for Hobbes and Rousseau thecontractarian ideal was far from a novel concept, the paradigm of acontract between the ruled and ruler has been around since the time ofthe Romans and great philosophical writers of the time such as Cicerohad written of the social contract . The paradigm of a contract, ofoath and promise, was dominant in the feudal relationships of the time,the operation of city principalities and induction into certain guilds. It had been a paradigm for writers with incredibly divergentopinions, thus there was arguments by certain writers that thecontractual paradigm was influenced by the growth of the bourgeoisieand their mercantile relationships . The distinctive approaches ofHobbes and Rousseau to what is fundamentally a very similar arrangementwas therefore hardly novel.

The Social Contract approaches of Rousseau and Hobbes also show adistinctive but also alternately flawed approach to their conception ofnatural rights. In order to exchange freedom for security then peoplemust have at the very least certain natural rights that they couldexchange for their participation in society. We saw in Hobbes thatevery human has one natural right and that is self-preservation. Lund has argued that it is difficult to delineate between this natural rightof human beings and the natural liberty of animals. The difficulty isthat the liberty he gives men makes rights worthless because if menhave rights to everything then ‘the effects of this right are the same,almost, as if there had been no right at all' . The difficulty withHobbes is that it doesn't account for the natural rights that a man hasbefore he enters the social contract because in the end the rights seemto be a semantic sleight of hand. Rousseau doesn't make his conceptionmuch clearer either because whilst undoubtedly the will of the partiesmust exits and be a morally relevant faculty and there are hints atfundamental or natural rights but he never makes it explicit in SocialContract. In his other writings it is difficult to tell what hisopinions because as we shall see they are less aspirational and morepremised on a factual account of the formation of society.

The natural rights approach of both is ambiguous to say the least,but there is the unifying concept that runs through Hobbes, Locke andRousseau that ‘the centrality of self preservation' is ‘the basis forpolitics and the denial of man's political nature' . In a state ofnature self-preservation would have been a ‘natural' concern and thusit is the one that has compelled formation of society. The importantdistinction between Hobbes and Rousseau is that Rousseau's account isaspirational whereas Hobbes is descriptive. Rousseau was attempting toset an abstract standard to measure societies against whereas Hobbeswas interesting in charting the transition from a state of nature andsociety. Rousseau did an in depth empirical study into the backgroundand reality of what humans must have been like in the state of natureand came to the conclusion that both Locke and Hobbes were probablycorrect about the first impulses that caused us to form society. Thusfrom Rousseau's point of view it may be valid to argue that he sawsocieties as being formed not as an exchange of individual freedom forsecurity as such but a sociological process driven byself-preservation. Hobbes felt that this model was satisfactory and tobe the touchstone of a society, however Rousseau perhaps saw his asless of a reality but as a model. The point has been made that thiscreates the interesting perspective that modern man could return to thestate of nature, not in an empirical sense but in a theoretical sense‘to the human condition outside mutually obliging covenants' . Theconceptual difficulty of grasping what life in modern society outsidemutual covenants could possibly be like does create significantdifficulty for this approach . However, it would seem that for Hobbesthere is no opting out and this is reinforced when we consider theobligation not to rebel in a Hobbesian social contract.

Another interesting contrast between Hobbes and Rousseau is theirapparent approach to democracy . Rousseau saw democracy as fundamentalto the ideal social contract; it was only with a guarantee of some kindof participation in your ruling that one delineates slavery andsociety. However, Hobbes is distinctly antithetical to democracy asshown by a variety of his views. Hobbes saw democracy as what wouldnaturally occur as men came out of the state of nature but thatinevitably due to the instability of democracy they would choose eitheraristocracy or monarchy as more stable forms of government


The writings of Thomas Hobbes and Jean-Jacques Rousseau are verydifferent in design, form of government and treatment of individuality.However, the question for this work was to evaluate the statement atthe beginning of this work that the social contract is an exchange ofindividual freedom for security. Hobbes and Rousseau both agreed onthis premise but diverged over whether this legitimised legal systemsand forms of government. Rousseau certainly seems to imply thatdemocracy is fundamental to this surrender of rights and is the thingthat legitimates the use of executive power against its individuals.Hobbes is antithetical to democracy because he is less concerned withthe establishment of a normative ideal form of society than describingreality. Thus perhaps Rousseau is an extension of Hobbesian principles,undoubtedly writers such as Evers point to the fact that the treatmentof executive power by Rousseau exhibits distinct facets of a Hobbesiansocial contract. The interpretations of Hobbes and Rousseau aredivergent and the labels as liberals, absolutists, communists and manyother seemingly conflicting doctrines continue to be appended to thesegreat moral philosophers.

Research Methodology

1. Planning & Researching the Essay

I started the research for this essay by gathering numerous onlinesources which would help direct me to the paper sources in the form ofArticles and Books. This started by using the Scholarly Papers Searchfunction on Google and the trail just flowed from there and includedusing certain websites which specialise in academic articles. I quicklyrealised that articles on Hobbes and Rousseau were covering suchmassive theoretical areas that I had to refine my searches and this wasfurther compounded by the general problem I had with understanding thedirection of the essay, as I outline below. I tried to focus mysearches on any academic articles that critiqued general SocialContract Theory and the views of Hobbes and Rousseau on the state ofnature and the actual exchange that occurred in going from the state ofnature to the social contract situation. This in itself covers a widegamut including articles on democracy and liberalism in theirrespective writings. However, interestingly there are very few directcompare and contrast articles as between Rousseau and Hobbes.

After I had completed my online research I had a number of Articlesof which only a few where relevant enough to actually go into the finaldraft of this work. It had become apparent from doing electronicsearches of the library database that there were seemingly nocomparative works as between Hobbes and Rousseau in book form. I wasaware that there were a couple of books which may have been useful butI was unable to obtain them either from the University library or thelocal libraries, these were; The social contract from Hobbes to Rawlsby Boucher and Kelly and Will and Political Legitimacy : A criticalexposition of social contract theory in Hobbes, Locke, Rousseau, Kant,and Hegel by Patrick Riley. These being unavailable to myself I hiredboth the original sources i.e. Leviathan and Social Contract Theory andwas contented that given the size of the essay that use of originalsources with a number of critical academic articles would be sufficientto answer the question set.

Once I had finished gathering all my sources I planned the structureof the work. It seemed apparent from the reading that I had done thatHobbes & Rousseau's work showed a number of differences that wasripe for a compare and contrast work. I structured it so that the essaybroke down to about 1000 – 1500 words on each writer's originaltheories and about 1500 – 2000 words comparing and critiquing the twotheories. I started with Hobbes simply because he was the earliesthistorically speaking and I had no other criteria to go on.

2. Issues and Difficulties with the Work

I found a number of difficulties with this piece of work. The firstmajor problem in itself was the question. I found that the questionlacked any real direction because it gave the classical definition ofsocial contract theory and then it was simply a ‘Discuss consideringthe ideas of both Hobbes and Rousseau'. It was difficult to walk a linebetween simply narrating the ideas which both writers had espoused andforming some kind of critical basis. I assumed that it was largely acompare and contrast work however there was only so much material inthat angle when you restrict your view to the exchange betweenindividuals and the state. I thus felt whilst I had a good plan, setout above, that the essay meanders a bit because it didn't have a cleardirection. It highlighted the importance in doing my own reflectivework of setting clear questions.

I didn't have any major problems in understanding the texts althoughsome were very abstract such as the work on individual authenticity.The issue I struggled with the most was the vagueness in Hobbes' workover the issue of Natural Rights. It was highly confusing todistinguish between what he viewed as Natural Liberty and NaturalRights, not to mention the occasional slip in his work which implied amore expansive view of Natural Rights. The issue was of minorimportance to this work in any case and thus I attempted to paraphraseit when I discussed the issue however I'm not sure that I fully graspedall the complexities.

I think one of the other most difficult issues, which seem to begeneric when writing about theory, is the open texture of all thephilosophical ideas. I mentioned this in my conclusion because it is sodifficult to cover all the issues in an essay of this size. Undoubtedlythe two writers in question, Hobbes and Rousseau are particularlysusceptible to this and seem to have given rise to so many speculationsabout the conclusions one can take from their work. In fact, one canprobably find a basis for every type of political tendency in thesebooks.

I did however enjoy writing the essay and it really made me thinkabout the issue of law's legitimacy which it is all too easy tooverlook in modern society with the multiple layers of governance andsources of executive power. The issues that both Hobbes and Rousseauwere dealing with were foundational and having written this essay hasmade me want to go onto to do further research on the issue.

Bibliography Books

  • Berki, R A History of Political 1977 / London Thought
  • Hobbes, Thomas Leviathan 1968 / Penguin
  • Rousseau, Jean-Jacques Du Contrat Social 1972 / Clarendon


  • Apperley, Alan Hobbes on Democracy 1999 Politics 19 (3) 165
  • Black, Antony The Juristic Origins Of 1993 History of Social Contract Theory Political Thought Vol 15
  • Evers, Williamson Social Contract: A Critique 1977 Journal of Libertarian Studies 185
  • Fried, Barbara If You Don't Like it, Leave 2003 Philosophy & It”: The Problem of Exit in Public Affairs 31 40 Social Contractarian Arguments
  • Lund, Nelson Rousseau and Direct George Mason Law & Democracy Economics Research Paper No. 03-41
  • Marks, Jonathon Misreading One's Sources: 2005 American Journal Charles Taylor's Rousseau of Political Science Vol. 49 119
  • Owen, J.Judd The Tolerant Leviathan: 2005 Polity 37 130 Hobbes and the Paradox of Liberalism
  • Simpson, Matthew Political Liberty in the A Decade of Social Contract Transformation, IWM Junior Visiting Fellows Conferences, Vol. 8: Vienna 1999

Online Sources

  • Social Contract Theory Internet Encyclopaedia of Philosophy
  • Stanford Encyclopaedia of Philosophy
  • Biography of Thomas Hobbes