Published on June 2016 | Categories: Documents | Downloads: 83 | Comments: 0 | Views: 357
of 9
Download PDF   Embed   Report



In the social contract theory, it discusses what is the social contract
theory and the reason, the critical apprehension of the said theory. Then the
article points out the State of Nature according to the proponents namely
Hobbes, Locke and Rousseau. It also put forth the differences of opinions and
criticisms of the feminists and the race-conscious with regards to social
contract. Each persons agrees to follow the laws of the state on the condition
that everyone else does the same. The way, we are all relatively safe from each
other and we all benefit from the other social goods that will result. Thus,
government is needed to enforce the basic rules of social living like for example,
don’t rob people, or don’t break agreements while morality may encompass
some rules that are important for social living but are outside the scope of the
state, this might include for example, don’t insult people for no reason.
According to the Social contract theory, morality is just such a contract. Locke
made the social contract the basis of his advocacy of popular sovereignty, the
idea that the monarch or government must reflect the will of the people. Like
Locke, the other philosopher Jean Jacques Rousseau, found the general will a
means of establishing reciprocal rights and duties, privileges and
responsibilities as a basis of the state. Similar ideas were used as a justification
for both the American and the French revolutions in the 18 th century. It held
that the preservation of certain natural rights was an essential part of the
social contract and that consent of the governed was fundamental to any
exercise of governmental power.
There might be implications of the social contract theory, imagine that
people were living in a state of nature as what Thomas Hobbes describes.
Everyone has an interest in getting out of this state for the reasons discussed
earlier. Now, suppose that everyone could sign a contract with each other
governing how people are to treat each other. The aim of the contract is to
create social order, ending the state of nature and making it possible for people
to cooperate and produce social goods. In order for the contract to best achieve
its aims, it is important that everyone or nearly everyone to be party to the
contract. There are things that are necessary for the survival of any society.
First one is the protection of life and property which means there will be
prohibitions against murder, assault, theft and vandalism. A police force will be
needed. Other rules needed to secure the benefits of social living which means
there will be prohibitions on breaking contracts and one of the examples is
promise and a general requirement of truth telling. Another is the protection of
society against outside threats and an army might be needed. While other
important stuff, these are things that arguably, should be part of the social
contract. However, a society might be able to survive without them.
It is in everyone’s interest that the police and army not take advantage of
their power and abuse people. This means that they must follow rules that
protect people. For example, it is in everyone’s interest to have a criminal
justice system that is effective at prosecuting lawbreakers while at the same
time protecting rights of the accused and providing for fair trials and
reasonable punishments. In the protection of the environment, is in everyone’s
interest to have breathable air and clean healthy environment or claiming it as
private property seem to be in order. Also, the self-interested justification for
environmentalism does necessarily cover protecting endangered species or
anything that is only of interest to some people. Those who are well off have no

need of welfare, public education and government assistance in general. So, on
the face of it, it is not in the interests of these people to pay taxes in order to
support government assistance. But the social contract is supposed to be
in everyone’s interest. For this reason, conservative social contract theorists
sometimes argue that a social safety is not part of the contract. Having
concluded that it is natural and rational for people to give up some liberty
in order to gain security of self-preservation, Hobbes develops a conception of
what forms of social organization and political system are consistent with those
aims. The condition in which people give up some individual liberty in
exchange for some common security is the Social Contract. Hobbes
defines contract as "the mutual transferring of right." In the state of nature,
everyone has the right to everything; there are no limits to the right of natural
liberty. The social contract is the agreement by which individuals mutually
transfer their natural right. In other words, I give up my natural right to steal
your food because you give up your natural right to steal mine. In place of the
natural right we have created a limited right. In this case the right of property.
Hobbes notes that we do not make these agreements explicitly because we are
born into a civil society with laws and conventions and one good example for
this is a contract. It is by performing the thought experiment regarding the
state of nature and following the chain of reasoning Hobbes put before us that
we can see the foundations of our commitment to civil law.
One matter that Hobbes' investigation allows is the examination of
governments for the purpose of determining their legitimacy. The purpose of a
government is to enforce law and serve the common protection. Wherever the
government turns to favor the strong over the weak, one might way that the
government has exceeded its legitimate function. In Hobbes' time the rulers
claimed their authority to rule by virtue of divine right. God made them King
and anyone who questioned the authority of the King was challenging God.
Hobbes made some powerful enemies by doing just that. Even though he
supported the monarchy as the legitimate government, his philosophy clearly
establishes the right of the monarch on the grounds of reasoned principle,
rather than divine right. Hobbes secularized politics which led to an increasing
demand for accountability of rulers to the people. The impact of this
development on contemporary life is profound.
Unable to rely indefinitely on their individual powers in the effort to
secure livelihood and contentment, Hobbes supposed, human beings join
together in the formation of a commonwealth. Thus, the commonwealth as a
whole embodies a network of associated contracts and provides for the highest
form of social organization. On Hobbes's view, the formation of the
commonwealth creates a new, artificial person (the Leviathan) to whom all
responsibility for social order and public welfare is entrusted. Of course,
someone must make decisions on behalf of this new whole, and that person
will be the sovereign. The commonwealth-creating covenant is not in essence a
relationship between subjects and their sovereign at all. Rather, what counts is
the relationship among subjects, all of whom agree to divest themselves of their
native powers in order to secure the benefits of orderly government by obeying
the dictates of the sovereign authority. That's why the minority who might
prefer a different sovereign authority have no complaint, on Hobbes's view:
even though they have no respect for this particular sovereign, they are still

bound by their contract with fellow-subjects to be governed by a single
authority. The sovereign is nothing more than the institutional embodiment of
orderly government.
Since the decisions of the sovereign are entirely arbitrary, it hardly
matters where they come from, so long as they are understood and obeyed
universally. Thus, Hobbes's account explicitly leaves open the possibility that
the sovereign will itself be a corporate person, a legislature or an assembly of
all citizens as well as a single human being. Regarding these three forms,
however, Hobbes himself maintained that the commonwealth operates most
effectively when a hereditary monarch assumes the sovereign role. Investing
power in a single natural person who can choose advisors and rule consistently
without fear of internal conflicts is the best fulfillment of our social needs.
Thus, the radical metaphysical positions defended by Hobbes lead to a notably
conservative political result, an endorsement of the paternalistic view. Hobbes
argued that the commonwealth secures the liberty of its citizens. Genuine
human freedom, he maintained, is just the ability to carry out one's will
without interference from others. This doesn't entail an absence of law; indeed,
our agreement to be subject to a common authority helps each of us to secure
liberty with respect to others. Submission to the sovereign is absolutely
decisive, except where it is silent or where it claims control over individual
rights to life itself, which cannot be transferred to anyone else. But the
structure provided by orderly government, according to Hobbes, enhances
rather than restricts individual liberty. Whether or not the sovereign is a single
hereditary monarch, of course, its administration of social order may require
the cooperation and assistance of others. Within the commonwealth as a
whole, there may arise smaller "bodies politic" with authority over portions of
the lives of those who enter into them. The sovereign will appoint agents whose
responsibility is to act on its behalf in matters of less than highest importance.
Most important, the will of the sovereign for its subjects will be expressed in
the form of civil laws that have either been decreed or tacitly accepted.
Criminal violations of these laws by any subject will be appropriately punished
by the sovereign authority.
Despite his firm insistence on the vital role of the sovereign as the
embodiment of the commonwealth, Hobbes acknowledged that there are
particular circumstances under which it may fail to accomplish its purpose. If
the sovereign has too little power, is made subject to its own laws, or allows its
power to be divided, problems will arise. Similarly, if individual subjects make
private judgments of right and wrong based on conscience, succumb to
religious enthusiasm, or acquire excessive private property, the state will suffer.
Even a well-designed commonwealth may, over time, cease to function and will
be dissolved.
While in the nature of contracts and the value of freedom, Charles Fried
defends the classical conception of contract as promise. He wants to explain
what justifies enforcing contracts. He points out that the classical liberal
tradition has stood for individual freedom and respect for all persons. The

rationale of this view is that each person should be free to pursue her own ends
to the greatest extent possible. It is a first principle of liberal political morality
that must be secure in what is ours so that our persons and property not be
open to exploitation by others, and that form a sure foundation we may express
the will and expend powers in the world. Promising is very general convention
though less general than language since promising is itself a use of language.
The convention of promising has a very general purpose under which it may
bring an infinite set of particular purposes. There exists a convention that
defines the practice of promising and its entailments. Tis convention provides a
way that a person may create expectations in others. By virtue of Kantian
principles of trust and respect, it is wrong to invoke that convention in order to
make a promise, and then to break it.
From Promises, Morals and Law by Patrick Atiyah, he recognizes that the
theoretical rationale of the common law of contracts is the prima facie
enforcement of promises. The philosophical position has long been that
promising is the paradigm of the contract. He points out that the general
obligation of promises was never sufficient for legal obligation. Atiyah suggested
that if we look to the reasons for which promises are made, we will find a set of
rules that make up the doctrine of consideration. He also claimed that if only
some promises are enforced, then the doctrine of consideration says why and
when this is so. According to him, the doctrine of consideration now appears
odd because of the prominence of the theoretical rationale of the doctrine of
freedom of contract. It is therefore, a matter of no surprise to find that much
contemporary philosophical writing concerning promises appears to be closely
related to the classical model of contract theory. Henry Maine discussed the
primitive society and ancient law. He observed that social organization has
changed a great deal from the time of ancient societies to the present day. In
ancient societies, the mode of social organization was patriarchal. This
difference in organization reflects a difference in thinking so profound that may
call it a different worldview, this worldview takes the family rather that the
individual as it’s the fundamental unit of obligation. As what he pointed out,
ancient law was framed for corporate action. Not only was the family as the
basis of obligation and responsibility in civil matters, it was in very early
society the basis of law in general. Each family or tribe was its own nation.
Maine observed that there was a significant change in social organization when
locality rather than family became the basis of society. Even after locality
became the basis of society and law in many respects, a social organization was
still patriarchal, and the family was still the unit of obligation in many other
respects including contract law. It is suggested that this change of social
structure from family to locality paved the way for the gradual change of
contract law from a ceremonial process to its mature form. Maine’s most
famous contention is that social progress is marked by gradual move away from
family obligation to individual obligation, and more specifically from obligation
based on status that is birth or position and to obligation based on contract
that is consent or agreement. He also criticized the ethnocentricity of
scholarship in his own time. The movement of the progressive societies has
been uniform in one respect. Through all its course, it has been distinguished

by the gradual dissolution of family dependency and the growth of individual
obligation in its place.
In the cases on Freedom of Contract, these decisions of Supreme Court
are often called the Lochner line in reference to its most famous case. It
represents a line of reasoning developed by the Court over a span of about fifty
years. Through its decisions, it will follow the reasoning of the Court from 1887
when the first ideas leading to the constitutional protection of the freedom to
contract were developed when the full blown doctrine was rejected. The
doctrine was called substantive due process. The idea was to determine the
substantive meaning of the due process clause of the Fourteenth Amendment
to the Constitution by the gradual and incremental process of common law to
flesh out its meaning case by case over time. Doing this sort of thing is
supposed to be one of the great virtues of the common law system. Through all
the cases discussed on Freedom of Conduct, these run an issue of process and
an issue of substance. Throughout this time period the opinions have been
articulated as they were logically determined by the terms of the Constitution.
And on the last reading which is the Birth of Meztizo, On the procedural
law, from inquisitorial to adversarial, in fact, the Codes of Procedures were
promulgated on December 18, 1899, displaced the provisions of the Siete
Partidas on marriage, securing liberty of marriage and instituting civil
marriages. A good example of twists and turns of the rules of procedure arising
from the shift from the inquisitorial to the accusatorial system is the history of
the jurisprudence on admission of illegally obtained evidence. Under the
inquisitorial system of the Spanish, illegally seized evidence was admissible as
may be noted in the trial of Jose Rizal. The common law rule as distinguished
from the federal rule that was imported into the Philippines by the Americans
is that evidence is not rendered inadmissible simply because it has been
unlawfully obtained.
In retention of private law and custom law, the pre-existing laws in the
Philippines were left in place by the new colonizers except for certain aspects
which were thought to be in conflict with American notions of democracy and
republicanism. Thus, while the Civil Code regulating personal status, the
family, property and land inheritance, contractual and delictual liability was
retained, amendments were instituted with respect to the marriage law and the
laws governing associations, adoption, absence and prescription. It can be seen
that as regards custom law, it was not really a matter of recognition, it was
more of the American’s failure to penetrate the areas inhabited by the ethnic
communities. In a Philippine Supreme Court decision penned by an American
justice, it was stated that the civil law system was in accordance with the
principles of international law.
In statutory interpretation, the rules on interpretation of statutes used
by common law judges began to reshape the law of the land in the Philippines.
When the provisions of a statute need to be interpreted, all the techniques and
guidelines followed in common-law courts are to be employed by the judges in
an attempt to discern the intent of the legislature. With respect to statues
borrowed from American sources, Philippine courts began to resort to
American common-law jurisprudence to understand the meaning of the terms
employed in the statute. Most of the concepts on equity in the Philippines are
seen from the perspective of American common law especially those on
equitable remedies. In obligations and contracts, the notable common-law

doctrines accepted in the Philippines and blended into the civil law system are
the doctrines in the field of tort of proximate cause, negligence and
contributory negligence, reckless negligence, last clear chance, vicarious
liability, sovereign immunity, moral damages, loss of profits, speculative profits
and mitigation of damages. In some decided cases, the courts have applied
American tort doctrines, like last clear chance, requirements of duty, sovereign
immunity and nuisance and trespass. In contracts, the Supreme Court has
also held that the consideration of American law and the causa of the civil law
although somewhat different in theory, have equivalent effects in practical
jurisprudence. The common law consideration is narrower than causa,
consideration may consists in some benefit to the promissor or in some
detriment to the promise, causa is the most essential reason of the contract.
Hobbes, on the contrary, asserts that without subjection to a common
power, men are necessarily at war. Hereby it is manifest that during the time
men live without a common power to keep them all in awe, they are in that
condition which is called Warre and such a warre, as is of every man, against
every man. In on this issue, and also on the meaning of civil society, Hobbes’s
position is the same as the fascist position. Peace is actually war in disguise.
This is why Hobbes argued that corporations should be suppressed and
replaced by the direct exercise of state power. This is why Hitler thought that
declaring war on America was merely a meaningless trivial symbol. It was not
merely a symbol. Peace is not merely maneuvering preparatory to predatory
attack. Unlike the communists and the fascists Hobbes had no specific
concrete plan for suppressing competition and the pursuit of conflicting goals,
and he might well have disapproved of the details of the fascists plans, but he
clearly regarded their objectives as a desirable and popular part of any good
state. Locke was the seventeenth century precursor of classic liberalism, and
Hobbes was the seventeenth century precursor of modern totalitarianism,
particularly fascism. Hobbes argued that what we today call civil society should
exist only by the power of the state, and to the extent that it existed
independent of the state, for example private associations, corporations, and
political discussion, it should be suppressed. This measure is the distinctive
characteristic of modern totalitarianism, both communist and fascist, though
Hobbes’s reasoning in favor of this measure is fascist, rather than communist.
Contract is an aspect of freedom. The ability to contract is one of the
features of a free man in a free society. Contract may indeed be a form of
vinculum juris, or a bond of law whereby one party becomes or is bound to
another to do something according to law. But the bond is self-forged. This,
indeed, is an objection to the reliance theory of contract, which appears to
create contract not out of a free expression or desires as to one's future
conduct, but imposes contract upon someone because of another's reaction to
what the former has said or done, even, possibly, where that reaction is a kind
of over-reaction. There may be good reasons for imposing some kind of liability
upon the one bringing about the reaction, a sophisticated legal system may
have to create such liability. To call it contract, however, is to pervert the very
meaning and essence of contract. Leaving aside the prospect that a contract
can be ended by some subsequent agreement between the parties, either
relieving them of the original undertaking or substituting a new one in its
place, a contract may be terminated in one of three ways. It may be performed.
It may be frustrated. It may be broken. The first situation affords a genuine
example of termination. The second is more pseudo-termination, in that the
contract may be treated as over, for the purposes of relieving the parties from

any present or future obligation although the contract is not without certain
effects or consequences at common law and under statute. The third situation
may not give rise to termination whether it does so depends upon the reaction
of the innocent or injured party as he may be called. A more detailed
examination of these three possibilities may throw light on the question with
which we are concerned. The classical view was that what had to be found was
an implied term, emanating from the obvious hypothetical intentions of the
parties, had they contemplated what in fact occurred. This may now be said to
have gone. In its place is a more modern, possibly less manifestly hypocritical
approach. One way of speaking about these issues might be to talk in terms of
"qualified," as contrasted with "absolute" obligations. The traditional view is
that contracts result in strict liability, in the sense that, without appropriate
expression by the parties, there are no ways of escape from the performance of
what has been promised, undertaken, and intended. In the light of
developments in the law of frustration, as well as those relating to mistake and
exception, exclusion or limitation clauses, it may be argued that, unless
otherwise stipulated, parties are only promising or intending to perform if what
is intended is possible or capable of performance or to put this another way,
only under certain conditions. When Charles Fried, referring to frustration
cases, necessitating the imposition of a resolution of the problem by the court,
he may well be skating over the question, avoiding the correct description of
what is happening. The logical analysis of the promise principle would involve
an examination of whether the parties had absolutely or qualifiedly promised
something. In either event, nothing would be inherently expressed or implied in
what the parties had promised a one example for that is their expression of
their intentions. Termination by breach is a much clearer instance of giving
effect to the parties will or intentions. The contract-breaker shows that he does
not wish to fulfill or continue to fulfill his obligations. The other party, by his
language or conduct, then reveals whether or not he accepts such breach,
thereby intending the contract to end or prefers that the contract remain in
force and effect thereby intending to hold the other party to his obligations,
regardless of the knowledge that the contract breaker will not keep them.
Interestingly, whether an act or omission that is said to constitute a breach is
of sufficient gravity to give rise to the sort of election, would now seem to
depend upon the foreseeable consequences of such breach, rather than as at
an earlier stage in the development of the law, upon the intended nature of the
term that has been broken. Nevertheless, while the focus of attention may have
drifted, the reason why such attention is paid by the law remains more or less
the same. To express this differently, the only difference between frustration
and breach as modes of ending a contract lies in the responsibility of the party
who cannot perform, not in the nature of consequences of that nonperformance. In either instance, the test of determination is whether what has
happened has so interfered with, or interrupted the willed intentions of the
parties as to mean that their contract is no longer purposive and alive. Where
frustration is the cause, there is no blame or guilt, and the contract determines
automatically. Where there is breach, there is guilt, but there is also the
possibility of some choice being asserted by the innocent party. In the final
analysis, the effect of that choice is of little moment, even where an exclusion
clause may be involved, although once upon a time there was the view that in
such cases, the innocent victim's response to the breach might have some
consequences as regards a limitation or exemption provision in the contract.

At certain levels, perhaps. At the level of discourse with which we are
concerned, perhaps not. It is enough for the lawyer to appreciate and
understand that, once he has found the kind of agreement which has been
defined and recognized as amounting to a valid enforceable contract in law, he
can then describe the various rights and duties that emerge from such a legal
relationship. His task is to find the relevant duty and see that it is either
specifically enforced or compensated for if breached. The lawyer's search, in
other words, is for the relevant duty. In this respect, the judges of the common
law have spent many centuries analyzing and formulating the kinds of duty
that can be created by agreement between consenting parties, and the ways in
which those various kinds of duty can be expressed so as to indicate what it
was that the parties desired and intended to impose on themselves. Whether or
not they have always succeeded, or have achieved results that meet with the
approval of all lawyers, let alone all philosophers, does not really concern us.
As we go along, it seems that these three articles namely The Social
Contract Theory, The Nature of Contracts and the Value of Freedom and the
Birth of Mestizo are related to each other. What tells us these following article
that social contract theory raises the possibility that the need for social order
and certain inherent constraints might provide us with a natural basis for
morality. While it might seem that there are strong incentives for social anarchy
without an outside objective and perhaps supernatural source of morality,
according to some philosophers like Thomas Hobbes, the incentive is built into
the social system by the very nature of our existing among each other. The
need naturally exists for us to form some sort of agreement to treat each other
with basic respect and follow certain basic rules. That is, we find it most
advantageous to form a social contract to base our lives in general and our
moral judgments. It also elaborates the importance of contract in our society.
According to Thomas Hobbes, without contract, unbounded liberty can be very
dangerous and life without any rules at all. It could also be solitary, nasty,
brutish, and short our society if contracts wouldn’t exist. There are also some
factors why contracts should exist. First is the equality of need, we all have
certain basic needs in common such as food, clothing and shelter. The second
one is scarcity. Basic needs wouldn’t really be a problem at all except for
scarcity. There is not an unlimited supply of food, clothing, and shelter just to
name the essentials. Economists know this all too well and often define
economics as the study of the scarce allocation of resources which have
alternative uses. The third is the equality of human power which creates a
serious problem when combined with basic needs and scarcity. For a time, a
few can perhaps take control and take what they want at the expense of
everyone else. But in the long run, this power cannot be sustained because
one’s persons weakness is another person’s strength. One person may have
force on their side, but perhaps others have another advantage. In the end
these differences tend to even out which creates a situation where everyone is,
in Hobbes’ phrasing at war against everyone else for the same scarce resources.
So, taken together these factors create real problems in the absence of any
social order or moral rules. And the question will create to our minds is how
can we prevent these factors from leaving us in the brutish position that
Hobbes calls the state of nature. According to Hobbes, we need to establish a
mutual agreement that involves two factors. First, that we will not harm one
another and second that we will keep our word with one another. These two
factors, which Hobbes saw as the primary responsibility of government, would
allow us to come together and cooperate socially as well as economically.

Escaping the state of nature has its benefits but the social contract does come
with a price. We must be willing to give up some of our liberty in order to
secure a stable social context. We must give some of our power to a centralized
authority to enforce the rules we agree to for not harming one another and
keeping our agreements. For Hobbes, this central authority had to be very
strong and ideally in the hands of one or a few people. Hobbes advocated a
monarchy as the best form of government. Other advocates of the social
contract like John Locke saw that it was possible to gain the benefits of
cooperation within the framework of a democratic republic. In either form
though, social contract theory says that morality consists in the set of rules,
governing how people are to treat one another that rational people will agree to
accept for their mutual benefit, on the condition that others follow those rules
as well.
Social contract theory has also its own advantages as well as
disadvantages. The major benefits to social contract theory are that it provides
very clear answers to very difficult questions in ethical theory. It also seems to
provide an objective basis for morality. The major disadvantages involve
questions about whether the social contract ever had a basis in history and
how it addresses non-participants in the contract. The fact that the social
contract does not necessarily refer to a real historical event. The point of the
social contract is to act as a test for the justification of moral principles. Also, it
can be said that were implicitly participate in such a social contract by acting
cooperatively in our social arrangements. The second objection has to do with
non-participants to the contract. It seems there are two groups in mind namely
non-human animals and non-rational humans. Strictly speaking both groups
are left out of the social contract and so our treatment of them need not be
guided by the moral principles within the contract. This seems problematic at
the very least and disturbing at worst.
As social contract theory as connected with our government, we said that
it can be defined as a sort of hypothetical or actual agreement between society
and its state. This agreement has been said to be responsible for the bases of
our moral, decisions and instances. In other words, we merely abide by the
rules and regulations of the government in the hope that others will so the
same, subsequently leading to a more secure and comfortable life. On the other
hand, the said theory also captures main ideas around morality being the
same as the law. In conclusion it would be difficult to determine whether all
our moral obligations could be justified by a social contract theory. In the
earlier discussions, there are acts of kindness seen everyday from people which
don’t expect anything in return. This state of nature’ is a great thought
experiment to see how we would act and behave, but most importantly whether
our principles would change. Our moral obligations and duties are by nature
complex and can be justified in a number of ways, and the social contract
theory could be just one of them.

Sponsor Documents

Or use your account on


Forgot your password?

Or register your new account on


Lost your password? Please enter your email address. You will receive a link to create a new password.

Back to log-in